Justice Delayed is Justice Denied: Moving Forward with a New Crimes Against Humanity Treaty

Eleven years after the International Law Commission (ILC) began considering the topic of crimes against humanity, and nearly 80 years after the London Charter was negotiated in the ashes of World War II, will States finally begin negotiating a new crimes against humanity treaty next year? The answer is not yet clear, although an overwhelming majority of the States expressing themselves last week said “yes.” This essay is a snapshot of the current state of play and is based on our firsthand observation of the plenary debate as well as discussions with State delegates and members of civil society. Negotiations are still ongoing and a final outcome is expected in a few weeks.

As readers of Just Security will recall from earlier articles, the U.N. Sixth (Legal) Committee, which met in New York, from Oct. 9-14, 2024, was charged under Resolution 77/249 to meet for two years in resumed session to exchange views in an “interactive format” on the Draft Articles on the Prevention and Punishment of Crimes Against Humanity submitted by the International Law Commission in 2019 (Draft Articles), and to discuss the Commission’s recommendation for the elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries. Operative paragraph 7 of Resolution 77/249 charges States with “tak[ing] a decision” on the Draft Articles at this October meeting. And meet they did. Resumed sessions were held in April 2023 and April 2024, which are summarized in a report compiled by the Chair, the Draft Articles were discussed at the Sixth Committee’s annual meeting in October 2023, and governments submitted additional written comments in December 2023, which were summarized by the Secretary-General and published in January 2024. Intersessional meetings were held as well, hosted at the German Mission to the United Nations in 2023 and 2024.

As we have written in an earlier article, Resolution 77/249, introduced by Mexico and the Gambia, along with a core group of States, broke an impasse in the Sixth Committee, which had, for the preceding three years, simply “taken note” of the Draft Articles, rather than examining them substantively or deciding upon their fate. Following the same strategy, Mexico and Gambia, on behalf of a cross-regional group of States (now numbering 89, but it is anticipated that more will join) tabled a “zero-draft” resolution in September 2024. The zero-draft sets forth a concrete and time-bound process for negotiations, and operative paragraph 4 of the text calls for convening a “United Nations Conference of Plenipotentiaries on Prevention and Punishment of Crimes Against Humanity, to meet at United Nations Headquarters in New York for three consecutive weeks . . . to elaborate and conclude a legally binding instrument on prevention and punishment of crimes against humanity.”

So many States decided to speak that the one day of meetings scheduled spilled over into three. The tension in the Trusteeship Council where the Sixth Committee was meeting was palpable as States recognized that they needed to, finally, “decide” whether to move the Draft Articles out of “discussions” and into “negotiations.” The speakers list exceeded earlier meetings on the topic, with 102 inscribed representing 143 States, including multiple representing regional or cross-sectional groups. A rough tally of the interventions made showed strong support for moving forward to negotiations – with 123 States expressing positive views, 7 remaining neutral, and 13 expressing negative views. Several States which had previously indicated concerns about the need for a treaty or the process, including Egypt and Nigeria. spoke positively in the 79th session, with Nigeria saying for example that “my delegation strongly welcomes this convention on the Prevention and Punishment of Crime Against humanity…[and] rejects any resolution or conference that attempts to distract this process. We exchanged substantive views during the two sessions therefore we should build on the gains and proceed with negotiations.”

Nigeria’s statement underscored an often-repeated point—that the process set forth by Resolution 77/249 had accomplished its purpose of creating the space for States to substantively engage on the ILC’s Draft Articles, and that negotiations were the next logical step. A cross-regional statement delivered by Sierra Leone on behalf of 77 member States echoed this point: “In the past two years, we were delighted to see members of the Sixth Committee engaged in concluding the substantive and detailed legal dialogue on the draft articles … [i]t was a constructive experience for the Sixth Committee as a whole to move beyond a procedural debate and we encourage this action-oriented spirit to continue…with a view to adopting a draft resolution in this session that convenes to a United Nations Conference of Plenipotentiaries on Prevention and Punishment of Crimes Against Humanity.”

Some States, seven by our count, took a more neutral position emphasizing the importance of an inclusive and constructive dialogue, and the Sixth Committee’s tradition of consensus. For example, Indonesia, while showing support for the ongoing dialogue, also stated that the Committee’s long-standing practice of consensus should be “strictly” adhered to. As noted in earlier writings, consensus is a tradition and not a rule, and if achieving consensus is impossible, voting can and has been employed by the Sixth Committee. While the consensus tradition can be useful in many circumstances, and indeed, Resolution 77/249 was adopted by consensus, if need be, the Draft Articles may be seen as a “special case” warranting voting due to their connection to human rights, humanitarian law, peace, and security, as well as the fact that they are the basis for a criminal law convention that is, by all accounts, desperately needed.

Some delegations suggested that more time was needed for more study and to resolve differences, but as Brazil put it, “will there ever be an ideal moment?” noting that “time of  essence, especially when it comes to the preservation of human life and dignity.” Portugal noted that in order to resolve the differences between States, negotiations were needed “to resolve divergences [and] . . . facilitate a compromise that reflects and accommodates different views.” Other States also urged delegates to move forward, including the United States, Jordan and Sierra Leone, speaking in its national capacity and on behalf of a 77-State cross-regional group, offered to host a diplomatic conference (an offer previously made by Austria). Ireland; Peru, speaking on behalf of a group of Latin American States; and Cabo Verde, speaking on behalf of the Portuguese language group of States, joined the chorus. As the discussion progressed it became clear that even where concerns and points of divergence existed, for most delegations, the appropriate next step was to proceed to negotiations.

Perhaps the most important voices in the room, however, were the States emphasizing the needs of victims, often referencing their own historical tragedies. South Africa noted its own painful and wrenching history with the crime of apartheid. Afghanistan (representing the recognized government, not the Taliban), the scourge of gender apartheid. Haiti and Sierra Leone the horrors of slavery and the slave trade. Bangladesh, Israel, Myanmar, and the State of Palestine spoke as well, referring to painful experiences both in the past and in the present. Poland referenced attacks on children, and as noted above Nigeria expressed strong support for moving forward, while underscoring the need to respond to crimes of deep concern to African States, including colonialism, and emphasized the need for reparations.

Of course, States opposing the treaty or moving forward to negotiations also had their day. While theirs is a minority view, they were insistent and sometimes vehement in their opposition, in particular the Russian Federation and China, although their numbers have remained static in contrast to those supporting the treaty, whose numbers have increased and diversified regionally. As the process moves from the public, formal debate to closed, informal negotiations on the zero-draft resolution, these voices will be powerful in pushing back against the form and details of a process for negotiations, especially with the deep commitment to consensus in the Sixth Committee.

So, what can we expect to issue from the current negotiations, and what redlines are we hoping supportive States will draw?

First, and foremost, the resolution should set a clear and time-bound mandate for negotiating and concluding a treaty in a single session. While we understand that some delegations would prefer a multi-session format over a year or years, our concern is that this could prolong decision-making, disrupt momentum, and double (or more) the costs of any process. The zero-draft resolution currently proposes a three-week negotiation, and States should stick closely to this proposal. After all, the significantly more complex treaty establishing the International Criminal Court was negotiated in five weeks; three weeks, with solid preparations, seems appropriate.

Second, States should not delay negotiations through the creation of unnecessary preparatory committees or processes to prepare a “zero draft” for negotiations. However, as was made clear by many states during the debate, an accurate reflection of the proposals and discussions during the resumed sessions, for example, the wide support for the enumeration of the slave trade, is key to their support to move to negotiations. Accordingly, appropriate consideration should be given to incorporating the work done already into the process leading up to a diplomatic conference. For example, States could utilize the ILC’s Draft Articles as the basis and establish a clear and efficient process for the proposal and consideration of amendments, additions, and deletions, a process which could be agreed upon during the five-day organizational prep comm proposed in the resolution, or, if necessary, this prep comm could be expanded.

Third, the resolution should ensure that the consensus blockage is once and for all set aside by setting clear procedural rules and processes that ensure as much. Consensus should be a clear preference, but it should not be used to essentially provide every State with a veto.

Finally, States should ensure robust civil society participation in all aspects of the process. The current resolution proposes the meaningful inclusion of a wide array of civil society in the process, including, but not limited to organizations with ECOSOC accreditation. Civil society has been an active partner to the ILC and States throughout this process, and their expertise and engagement will only help to strengthen the negotiations. Over 650 experts and civil society organizations have signed a Declaration urging States to take the treaty to negotiations, and the civil society organization Avaaz has circulated a petition in favor of the treaty that received more than 500,000 signatures in three weeks.

Negotiations on the draft resolution are sure to be tough, but we hope that the overwhelming support for the draft treaty expressed in the public debate will help shift the tide in favor of a concrete decision during the current Sixth Committee session.

In a previous article, we noted that skillful leadership would be needed to take this project forward. Over the last two years, we have seen exactly this—thoughtful and skillful cross-regional leadership that demonstrates why a standalone treaty of the prevention and punishment of crimes against humanity is so important. And as these formal debates have continued, we have seen in every corner of the globe why this treaty is so desperately needed, not only to prevent and punish crimes, but to protect humanity itself.

The number of cosponsoring States is continuing to increase with the passage of time; this tally represents the count as of Oct. 22, 2024.

IMAGE: A shot of the U.N. General Assembly hall (via Getty Images).