During the United Nations General Assembly’s 79th session in October and November, Member States in the Sixth Committee are expected to decide whether to open formal negotiations on a proposed Crimes against Humanity Convention (for background, see here and here). Support for adopting a new treaty continues to grow, given the need to fill the existing legal gap regarding such crimes in the international legal framework.
Among the most prominent advances a Crimes against Humanity Convention would achieve is enhancing prevention of such crimes, including through provisions which would make such prevention a duty of States party. Together with punishment, prevention is one of the two overall objectives identified by the International Law Commission (ILC) in the Draft Articles on Prevention and Punishment of Crimes Against Humanity (Draft Articles), which would form the basis of a future convention text. The Draft Articles address the obligation to prevent in its Preamble, Article 3, and Article 4. As discussed below, these provisions constitute a solid starting point for any future negotiations.
Preamble: the Rationale for the Obligation to Prevent
Paragraphs 5 and 6 of the Draft Articles Preamble provide as follows (emphasis in the original):
Affirming that crimes against humanity, which are among the most serious crimes of concern to the international community as a whole, must be prevented in conformity with international law,
Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.
Echoing the Preamble of the Rome Statute, preambular paragraph 5 clarifies that the particular gravity of crimes against humanity explains why their prevention is paramount. In turn, preambular paragraph 6, which reproduces verbatim paragraph 5 of the Rome Statute Preamble, connects punishment and prevention of crimes against humanity by “indicating that prevention is advanced by putting an end to impunity for the perpetrators of such crimes” (ILC’s Commentary, p. 26, para. 7).
The two preambular paragraphs are important to understand the strictly interrelated, yet distinct nature of the obligations to prevent and to punish within the Draft Articles (ILC’s Commentary, p. 50, para. 9). On the one hand, the two are closely connected since one of the ways to prevent crimes against humanity is through the deterrent effect of prosecutions. On the other hand, prevention is a fully autonomous obligation, which – if fully met – would make the need for punishment redundant. In fact, while the punishment of crimes against humanity remains paramount, preventing their perpetration in the first place should be the central objective of the international community.
In this sense, a Crimes against Humanity Convention would go beyond the Rome Statute which, by focusing on punishing individuals for crimes against humanity, may contribute to prevention only in the form of deterrence vis-à-vis possible future perpetrators. In fact, the Rome Statute contains no substantive provision on the obligation to prevent, nor could it be used to engage State responsibility for failure to prevent crimes against humanity. Within the Draft Articles, instead, the preventative dimension acquires an autonomous significance from the punitive one, placing on States a clear obligation to adopt specific measures of prevention (see below). Thus, one of the added values of a Crimes against Humanity Convention would precisely be to strengthen and broaden the obligation to prevent crimes against humanity beyond, but complementarily to, obligations found in the legal frameworks of existing accountability mechanisms such as the International Criminal Court. Several States, including Australia, Belgium, Canada, Colombia and France, raised this point in their submissions and statements at the Sixth Committee.
Article 3: the General Obligation to Prevent
Article 3(2) of the Draft Articles provides that “[e]ach State undertakes to prevent and punish crimes against humanity …” (emphasis added). The ILC has modeled this provision after Article I of the Genocide Convention. To construe the content and scope of the prevention limb of Article 3(2), one should look at the International Court of Justice’s (ICJ) interpretation of the obligation to prevent genocide in the Bosnia v. Serbia case:
… the obligation in question is one of conduct and not one of result … the obligation of States parties is … to employ all means reasonably available to them, so as to prevent genocide so far as possible. … In this area the notion of “due diligence”, which calls for an assessment in concreto, is of critical importance. Various parameters operate when assessing whether a State has duly discharged the obligation concerned. The first … is clearly the capacity to influence effectively the action of persons likely to commit, or already committing, genocide. … a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of genocide (para. 430).
The ILC framed the obligation to prevent crimes against humanity in light of this pronouncement. Article 3(2) would require a State to “employ the means at [its] disposal” to prevent the commission of crimes against humanity, and particularly “to use its best efforts (a due diligence standard) when it has a ‘capacity to influence effectively the action of persons likely to commit, or already committing’ the acts, which in turn depends on the State party’s geographic, political and other links to the persons or groups at issue” (ILC’s Commentary, p. 49, para. 7). Correspondingly, a State incurs responsibility when it manifestly fails to take all available measures to prevent crimes against humanity and only if such crimes are actually committed (ibid.; ICJ Bosnia v. Serbia, para. 431; Articles on State Responsibility, Article 14(3)). Colombia, for instance, proposed that the content of the obligation to prevent, as resulting from the ICJ’s jurisprudence, be reflected in the actual text of Article 3(2) (see also Workshop Report, para. 37).
One key element is that any measures adopted by a State to meet the obligation to prevent crimes against humanity must be “in conformity with international law”, as specified in both paragraph 5 of the Preamble and in the chapeau of Article 4, and as held by the ICJ with respect to the prevention of genocide (Bosnia v. Serbia, para. 430). A State must thus act within the limits imposed by the U.N. Charter, international humanitarian law and international human rights law, among others (ILC’s Commentary, p. 57, para. 5), and may adopt only lawful measures, including diplomatic, political, and economic ones. Unilateral military interventions not authorized by the U.N. Security Council under Chapter VII of the U.N. Charter are excluded (Schabas, p. 720). This view was reiterated in the Sixth Committee by a number of States, including the Czech Republic, Mexico, Portugal, the United States and the European Union.
On the other hand, the ILC overlooked two important aspects of the ICJ’s reasoning, which are relevant to the obligation to prevent crimes against humanity: the triggering of this obligation and its extraterritorial scope. Regarding the former, the ICJ stated that “… a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed” (Bosnia v. Serbia, para. 431). What triggers the obligation to prevent genocide, therefore, is the existence of a “serious risk” of genocide and a State’s knowledge of such a risk. By analogy, the same conditions could apply to the triggering of the obligation to prevent crimes against humanity.
The second oversight by the ILC concerns the question of the extraterritorial dimension of the obligation to prevent crimes against humanity (Schabas, p. 728; Workshop Report, para. 34). The ICJ clarified that the obligation to prevent genocide is not “limited by territory” and applies “to a State wherever it may be acting or may be able to act in ways appropriate to meeting” it (Bosnia v. Serbia, para. 183, emphasis added). As Marko Milanovic explained, “[n]o threshold criterion of application such as state jurisdiction is mentioned in the text of the Genocide Convention, nor has the Court found it implicitly built in”; rather, “the scope of a state’s obligation to prevent genocide is directly proportionate to the state’s ability and influence over the relevant actors” (p. 686; contra, Judge Tomka, para. 67; Judge Skotnikov, p. 379). In this sense, the application of the obligation to prevent genocide is not confined to foreign territory or areas over which a State exercises de jure or de facto authority or control, e.g. in occupied territory or detention facilities located abroad.
The relevance of the extraterritorial dimension of the obligation to prevent genocide becomes clear when considering two recent ICJ cases connected to Israeli military operations in Gaza since Oct. 7, 2023 (South Africa v. Israel and Nicaragua v. Germany). This obligation was indeed relied on by two States not involved in the armed conflict: South Africa invoked it as the basis to institute proceedings against Israel (para. 3), while Nicaragua alleged its breach by Germany, a State also not directly involved in the conflict (paras. 3 and 16).
The scope of the obligation to prevent crimes against humanity under Article 3(2) should be interpreted in a similar fashion (see also Schabas, p. 721). In this respect, Argentina and The Netherlands explicitly stated that the ICJ’s jurisprudence on the obligation to prevent genocide should analogously apply to Article 3(2), including with regard to its extraterritorial dimension. This means that a State would be required to act to prevent crimes against humanity committed on another State’s territory to the extent it has the “capacity to influence effectively the action of persons likely to commit, or already committing,” crimes against humanity (as per ICJ Bosnia v. Serbia, para. 430).” Such extraterritorial dimension of the obligation to prevent could be reflected in the text of article 3, in order to circumscribe its elements clearly.
Article 4: Specific Measures of Prevention
In addition, Article 4 of the Draft Articles sets out the specific measures a State is meant to adopt to prevent crimes against humanity:
Each State undertakes to prevent crimes against humanity, in conformity with international law, through:
(a) effective legislative, administrative, judicial or other appropriate preventive measures in any territory under its jurisdiction; and
(b) cooperation with other States, relevant intergovernmental organizations, and, as appropriate, other organizations.
The text of Article 4(a) is directly inspired by Article 2(1) of the UN Convention against Torture (CAT). In interpreting the latter, the Committee against Torture clarified that “States parties are obligated to eliminate any legal or other obstacles that impede the eradication of torture and ill-treatment; and to take positive effective measures to ensure that such conduct and any recurrences thereof are effectively prevented,” including to constantly review the effectiveness of such measures (General Comment 2, para. 4).
Relying on the latter interpretation, the ILC further specified that “[t]he term ‘effective’ implies that the State is expected to keep the measures that it has taken under review and, if they are deficient, to improve them through more effective measures.” Also, “[t]he term ‘appropriate’ offers some flexibility to each State when implementing this obligation, allowing it to tailor other preventive measures to the circumstances faced by that particular State” (ILC’s Commentary, p. 58, para. 8).
Examples of preventative measures may include the adoption of laws and regulations; training of law enforcement, military, and judicial officials; and the establishment of national independent early warning and monitoring mechanisms. Importantly, Article 4(a) provides a certain degree of flexibility to tailor any such measures to the specificities of a given context. At the same time, the effectiveness of said measures in practice is the yardstick against which to assess compliance with Article 4(a) and, as a consequence, “international responsibility of the State arises if the State has failed to use its best efforts to organize the governmental and administrative apparatus, as necessary and appropriate, in order to prevent as far as possible crimes against humanity” (ILC’s Commentary, p. 59, para. 11).
In comparison to the general obligation to prevent under Article 3(2), the specific obligation to prevent under Article 4(a) has a narrower extraterritorial scope. In fact, Article 4(a) explicitly limits the obligation to adopt preventative measures to “any territory under its jurisdiction”. This obligation still retains an extraterritorial dimension, in that it applies to any areas or territory abroad under a State’s de jure or de facto jurisdiction (ILC’s Commentary, p. 60, para. 12). For instance, the Committee against Torture interpreted the words “any territory” in Article 2(1) of the CAT to include “all areas where the State party exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law” (General Comment 2, para. 16).
However, Article 4(a) does not encompass contexts in which a State itself does not exercise “jurisdiction” over a “territory.” This limitation may be explained by the object of this provision, i.e., the prevention of crimes against humanity by actors – State or non-State – located in a territory or area over which a State exercises de jure or de facto jurisdiction. This seems to be reflected in the type of preventative measures envisaged, especially legislative, administrative, and judicial ones, which typically require the exercise of some form of authority or control over a territory or area. In contrast, as discussed above, the actions demanded of a State under Article 3(2) are not connected to the exercise of jurisdiction over the territory in which said actors are located, but to its capacity to effectively exert influence over State or non-State actors involved in actual or potential crimes against humanity abroad. This means that the extraterritorial scope of the obligation to prevent under Article 3(2) is broader than that under Article 4(a) (for a different take on this point, see Workshop Report, para. 34).
Article 4(b), in turn, prescribes a duty to cooperate to prevent crimes against humanity. Such cooperation concerns both other States and “relevant” intergovernmental organizations, which include international organizations such as the U.N. and its specialized agency, based on their mandate and functions. “Other organizations” may also be involved in such cooperation, including NGOs, albeit “as appropriate,” which means that the obligation to cooperate “does not extend to these organizations to the same extent as it does to States and relevant intergovernmental organizations” (ILC’s Commentary, p. 61, para. 14). The obligation to cooperate under Article 4(b) would become especially relevant when national authorities do not have the capacity and expertise regarding the prevention of crimes against humanity, which would thus require them to seek external capacity building and other relevant forms of assistance.
Article 4 has received varied reactions in the Sixth Committee. Some States criticized Article 4(a) for being too prescriptive (Pakistan) or ambiguous (Türkiye), while others generally supported the text of the provision, with some adjustments (Brazil; Czechia; United States). With respect to Article 4(b), reactions have been even more mixed. By way of example, Portugal and the Nordic countries supported the obligation to cooperate as is; Canada proposed to extend cooperation to international courts and tribunals; Colombia and Ireland called for further clarification of the terms of this provision; while Türkiye and India argued that the scope of the obligation should be narrowed, particularly by limiting cooperation to states and relevant intergovernmental organizations only.
Notwithstanding differences in views among States, which should be addressed and resolved during formal negotiations, Article 4 offers a solid blueprint for States to operationalize the obligation to prevent in any territory under their de jure or de facto jurisdiction, including through cooperation with other States and entities.
Conclusion
The continued commission of crimes against humanity around the world requires the international community to step up its efforts towards their prevention. That’s why the obligation to prevent is a central element of the Draft Articles. Adopting a Crimes against Humanity Convention would significantly strengthen such efforts, as well as reinforce both the delivery of justice, truth, and reparations to victims and the international justice framework as a whole.
It is crucial that, during the upcoming session of the Sixth Committee in October and November, States support the opening of formal negotiations in a diplomatic conference. In particular, States should not obstruct such a process and rather be committed to engage actively and in good faith to improve the text of the Draft Articles during future negotiations.
Also, States must recognize the upcoming session of the Sixth Committee for what it is: a key moment for strengthening the international legal framework, which must be fully grasped to close an existing impunity gap.