This fall, the United Nations General Assembly’s legal arm (the Sixth Committee) convened to discuss and debate the Draft Articles on Prevention and Punishment of Crimes Against Humanity (Draft Articles). The meeting was the latest in a series of gatherings held under a December 2022 General Assembly resolution calling for a series of sessions to discuss elements of the International Law Commission’s (ILC’s) draft treaty, which was developed to address gaps in international law in combatting crimes against humanity.
Unlike in past sessions, the majority of the interventions during this round, which ran from Oct. 9-14, 2024, focused on whether to move forward with the ILC’s recommendation to use the Draft Articles as the basis for negotiating an international treaty on crimes against humanity. A significant majority of States supported this approach.
Even with this focus, a number of States expressed support for the inclusion of various gender justice proposals in a future treaty. Multiple States expressed support for the inclusion of specific gender-justice crimes, such as reproductive violence and forced marriage, and a handful of States backed the general application of a gender lens to a future convention. Only a few States expressed any concerns.
In addition to debates, States also had the opportunity to submit written comments on the Draft Articles in December 2023, and these comments were published in January 2024. Taking all of these interventions and written comments into account, 114 U.N. Member States have to date expressed either support for or openness to the inclusion of at least one aspect of gender justice in a future treaty on crimes against humanity.
Including the Slave Trade as a Crime
Sierra Leone, El Salvador, Nigeria, and Bolivia all explicitly supported the inclusion of the “slave trade” as a crime in a future convention on crimes against humanity. In addition, the 54 States in the African Group joined a statement, delivered by Uganda, in support of including the slave trade as a crime. Although the Draft Articles already enumerates “enslavement” as a crime against humanity, several prominent international legal scholars have noted that “enslavement” and the “slave trade” are two separate crimes and many civil society groups have backed its incorporation into the treaty. The crime of enslavement requires the exercise of ownership power (e.g., ownership rights), whereas the crime of the slave trade includes non-ownership conduct such as bartering for or transporting slaves.
Referencing the historical impact of the slave trade, as well as the continued impact of the transatlantic slave trade and racial discrimination “which continue to the continent and people of African descent,” the African Group statement noted that “it is in this context that we continue to call for the admissions of responsibility for slavery and the slave trade… [and] reiterate our call for the inclusion of these crimes as crimes against humanity as the prohibition of these crimes is inalienable and imprescriptible.”
Sierra Leone, speaking in its national capacity, expressed that the explicit inclusion of the slave trade “would send a strong signal to the victims in the comprehensive acknowledgement of and redress for their harm,” and “urge[d]” States to include it in any future convention. (bold in original).
Nigeria noted that it “further supports the expansion of the scope of the definition of Crime Against Humanity and this is not limited to as provided in the ILC draft article, in addition to including slavery, the slave trade, colonialism and the illegal exploitation of resources.” El Salvador and Bolivia also expressed support for the inclusion of this crime.
Further, although not explicitly using the term “slave trade,” Côte d’Ivoire, Togo, Burkina Faso, and Haiti highlighted the effects of slavery in their interventions.
Gender Apartheid
One State, Afghanistan (representing the recognized government, not the Taliban), expressed its continued support for the inclusion of gender apartheid as a crime against humanity in a future convention. While discussing the effects of the current Taliban rule, Afghanistan noted that “one of the most alarming developments has been the institutionalization of gender apartheid in Afghanistan.” The delegate went on to explain that “the denial of education and employment opportunities for women is not simply a violation of their rights, it’s an assault on the very foundation of Afghan society” a “broader strategy of persecution that the international community cannot ignore.”
Gender Justice
Colombia, Spain, and Myanmar commented on the need to include a gender perspective in a future convention on crimes against humanity. Colombia highlighted that women are uniquely impacted by the nature of crimes against humanity, and that this “need[s] to be addressed” in order to achieve inclusive justice. Spain expressed support for “the inclusion of a gender-based perspective in the articles.” Myanmar also expressed its support for an international convention, specifically highlighting the effects of current atrocities on women and girls in Myanmar as an example of why a convention on crimes against humanity is so needed. “Since the illegal coup attempt in February 2021,” the delegate said, “over 5,700 were brutally killed [by] the military junta. Over 3.4 million people [have been] displaced. Over 18.6 million people are in urgent need of humanitarian [assistance], [the] majority of them are women and girls.”
Seven other States specifically highlighted the need to include a progressive perspective on sexual and/or gender-based violence in a future convention. Denmark, who spoke on behalf of the Nordic Group – Denmark, Finland, Iceland, Norway, and Sweden – stated that a convention on crimes against humanity “could reflect evolving definitions under customary international law and contribute to increasing prevention and accountability for grave human rights violations, including sexual and gender-based crimes.” Likewise, Spain noted that “a future convention could provide the unique opportunity to reflect on progress in international criminal law with regard to the concept of sexual crimes and gender-based violence.” While expressing a more negative view on the exclusion of the Rome Statute of the International Criminal Court’s (Rome Statute) definition of the word “gender,” Niger expressed support for a focus on sexual violence, saying that women and girls are “raped and subject to other forms of sexual violence” that “have to be considered as crimes against humanity.”
Survivor-Centric Approach
Denmark (on behalf of the Nordic Group), El Salvador, Poland, and Mongolia all also expressed support for a survivor-centered approach to a future convention. In particular, Poland noted that it has been “a strong advocate of the victim-centered approach and [has] paid particular attention to the plight of child victims in the global efforts to fight international crimes.”
The Exclusion of the Gender Definition
On a less positive note, two States expressed their dissatisfaction with the ILC’s decision to exclude the definition of “gender” included in the Rome Statute’s definition of crimes against humanity. As noted by the ILC, excluding this gender definition in a treaty on crimes against humanity would allow space for our understanding of the term “gender” to evolve over time. While noting that Nigeria strongly supports moving forward with negotiations and welcomes the decision to model the definition of crimes against humanity after the Rome Statute, it “reject[s] the decision of the [ILC] to delete [paragraph] 3 of the article based on written comments submitted by some group of states.” Speaking for the first time on the topic of crimes against humanity, Niger also expressed concern regarding the ILC’s decision to omit the gender definition. The Holy See, which has U.N. observer status, also reiterated its desire to exclude the gender definition.
Analysis of Overall Growth in Gender Justice Support
The chart below tracks each gender justice-related position expressed by States over all four Sixth Committee debates as well as in written comments, reflecting a continuous increase in support over time.
(Note: An asterisk indicates a view expressed via a group statement, italics indicates an intervention from a non-member State or organization with U.N. observer status.)
| Gender Justice Position | Indicating strong support of at least one element of the gender justice position | Indicating openness to at least one element of the gender justice position | Indicating opposition to at least one element of the gender justice position |
| Overall Gender-Competent Approach to Treaty | Australia | Albania* | |
| Gender Definition, i.e. not including a definition | Argentina |
|
Algeria*
Chad* DRC* Mali* Togo* |
| Forced Pregnancy, i.e. to remove the national law caveat and have a more expansive reference to persons as opposed to women | Brazil | Denmark* | Holy See |
| Forced Marriage, i.e. inclusion of the crime | Australia | Hungary | |
| Reproductive violence, i.e. inclusion of the crime | Australia | ||
| Gender Apartheid or Conduct That Would Amount to Gender Apartheid, i.e. inclusion of the crime | Afghanistan | Austria | Cameroon |
| Slavery/Slave Trade, i.e. inclusion of the crime | Algeria*
Chad* DRC* Mali* Togo* |
Iceland | Qatar |
| Survivor-centric approach | Albania | Turkey | |
| Sexual and Gender-Based Violence | Canada | Russian Federation |
The Prospect of Treaty Negotiations
In accordance with Resolution 77/249, the Sixth Committee must decide by the end of its 79th session, November 22, 2024, whether to move forward with formal negotiations for an international treaty on crimes against humanity. While the four Sixth Committee debates on crimes against humanity demonstrate significant support for the advancement of gender justice in a future convention, this progress cannot occur if States do not opt to move forward into negotiations. States committed to gender justice in international criminal law should redouble their efforts to ensure a positive outcome leading to negotiations of the much-needed convention.