(Editor’s Note: The authors discuss the crimes against humanity treaty developments on the Just Security Podcast here.)
On Friday, Nov. 22, 2024, the United Nations Sixth (Legal) Committee took a pivotal decision to advance toward negotiations on a global treaty regarding the prevention and punishment of crimes against humanity. The move is the latest in a series of discussions that has taken place over the past six years and brings States one step closer to finally closing the nearly 80-year-old gap in international law to comprehensively address these grave crimes.
We have been tracking this process together since 2021 in a Just Security series on the potential draft treaty, and in a recent article we chronicled the discussions in October 2024 that preceded this decision. The Crimes Against Humanity Initiative, an effort to analyze the need for a comprehensive treaty and define its elements, directed by one of us (Leila Sadat) has also published a comprehensive report each year cataloging State responses to the proposed treaty. We have observed that over the years, State support for the negotiation of a new treaty has consistently grown as the need for the new legal instrument has become increasingly and painfully evident. With a decision made, we’ll look what it took (and what was lost) to adopt a resolution on the basis of consensus, the process established by the resolution, and the road ahead.
Getting to Decision Day
In September 2024, Mexico and Gambia, as co-facilitators, circulated a zero-draft, meaning a first proposal, of a resolution entitled “United Nations Conference of Plenipotentiaries on the Prevention and Punishment of Crimes against Humanity” with a view to advancing the International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity (the Draft Articles) to treaty negotiations. The zero draft envisaged a streamlined process whereby a Preparatory Committee (Prep Comm) would meet in 2025 to discuss the organization and methods of work of the Conference, which would then be held in 2026 for a three-week period.
After several weeks of extensive negotiations, the text was amended twice. The first time, States agreed to expand the timeline for negotiations and the process by convening a Working Group of the Conference in 2025 to “facilitate consultation on the draft articles, and to enable Governments to prepare formal proposals for amendments” for consideration at the Conference, followed by a Prep Comm in 2026 and treaty negotiations to follow in 2027. Negotiations continued and on Friday, Nov. 15, Mexico and the Gambia as co-facilitators uploaded what they believed to be a final draft (the L.2 Rev.1 draft) of the resolution with 93 co-sponsors. This text expanded the negotiation process to four years, with the Prep Comm meeting for two sessions in 2026, followed by two, three-week negotiations to take place in early 2027 and 2028. The Working Group was retained and would meet for the entirety of the first session of the two Prep Comms in January 2026. The resolution continued to provide for robust civil society participation, although some States were exerting pressure on the co-sponsors to reduce that participation.
Following the tabling of this resolution, work continued among the co-sponsors and other States to develop consensus. As we have noted elsewhere, the consensus tradition of the Sixth Committee, by which any State can block action on a text by refusing to join a resolution taking it forward, is an anomaly in the United Nations where voting is the norm, and has often resulted in blocking projects from moving forward. Indeed, it had blocked the Draft Articles from advancing since 2019. Insistent on maintaining the consensus requirement, the Russian Federation, joined by the Democratic People’s Republic of Korea and Nicaragua formally tabledhostile amendments to the L.2 Rev.1 draft which, among other things, would have kept the Draft Articles in limbo by continuing to debate them in a working group of the Sixth Committee which would meet for three years to “identify the points of convergence and prepare a widely acceptable draft text of a potential convention.” These amendments were unacceptable to the co-sponsors. A Chair compromise proposal, which weakened the draft considerably, was then advanced to try to bridge the gap, which Russia and its allies rejected, not once, but twice. This compromise text again extended the timeline, this time to 2029, and convened the Preparatory Committee to begin in 2026, with the Working Group to meet for the entire first two sessions of the Preparatory Committee and reducing civil society participation by emphasizing the inter-governmental nature of the Conference, deleting a key paragraph on participation and curtailing a provision allowing civil society to address the Conference.
The Weaponization of Consensus
On Friday morning, Nov. 22, the agenda reflected the decision of the co-sponsors and co-facilitators to move forward with their own text, and not the Chair’s compromise text which was considerably weaker. Understanding that there seemed to be no realistic possibility of achieving consensus, a recorded vote had been requested on both the Russian amendments and the draft resolution.
Gambia, who alongside Mexico had been leading this process since 2022, introduced document L.2/Rev. 1, opening the topic with a powerful and moving speech that emphasized the urgency and importance of moving forward to negotiations, and underscoring that over the last two months, that all efforts to reach consensus had been exhausted. The Russian Federation was then given the floor to introduce its amendments. Rather than doing so, it upended the meeting by requesting that the meeting be suspended so that delegates could try to reach consensus on the Chair’s compromise text (that it had already rejected “many times”). Mexico, armed with the rules of U.N. General Assembly procedure, immediately called for a vote on the suspension under Rule 118, which provides that motions to suspend or adjourn a meeting “shall not be debated but shall be immediately put to the vote.” At this point the Committee Chair temporary suspended the meeting in order to consult with the Secretariat and delegations on the way forward. Eventually a decision was made to move on to other items of the Sixth Committee’s agenda, while delegations engaged informally to see if consensus could in fact be achieved.
After several hours of meetings (by WhatsApp message, virtually, and in person), and as the Committee returned for an unplanned afternoon session, it seemed at several junctures that an agreement had been reached. However, even as delegates were sending the message that a compromise had been reached and “white smoke” had appeared, Russia again threw the meeting into chaos by saying it needed instructions from Moscow before joining the text. Many States and civil society organizations perceived this as a sign of bad faith, which unified the co-sponsors, who then quickly reached a consensus resolution by incorporating some elements of the Chair’s compromise text into the L.2/Rev.1 draft. The resolution was gaveled in and adopted around 5 p.m., without a vote, to sustained applause. Russia withdrew its amendments and dissociated from the resolution. The Sixth Committee’s decision will likely be ratified by the General Assembly plenary on Dec. 4, in a process that we largely expect to be a formality.
Following the adoption of the resolution, which was supported by 99 co-sponsoring States, several States expressed their excitement, relief, and joy to finally be moving forward, including States like Eritrea, Iran, and Singapore that had not been supportive of the Draft Articles in earlier meetings. While most of the explanations after the vote were positive, the Czech Republic argued that the Sixth Committee had been “held hostage” by the Russian Federation’s evocation of consensus and compromise, which it had advanced in “bad faith.” And indeed, the drive for consensus resulted in long and exhausting negotiations that produced a text that was weaker than the zero draft, although given the aspiration of a treaty that will achieve universality, the fact that 192 States supported it was extraordinary and augers well for future negotiations (which will attempt to achieve consensus but will not be bound by it).
The Resolution
The resolution that was finally adopted provides for two Prep Comm meetings, one from Jan. 19-30, 2026, and for four days in 2027. The Prep Comm is tasked with two key areas of work. First, to discuss and decide upon the organization and methods of work of the Conference, including the rules of procedure, as well as deciding on the modalities of the participation of NGOs that do not have accreditation from the Economic and Social Council (ECOSOC), and other stakeholders. Second, a Working Group to facilitate discussions and amendment proposals will meet for the entirety of the first Prep Comm session. In addition, following the first Prep Comm, States will have until April 30, 2026, to submit proposals for amendments to the Draft Articles to be included in the U.N. Secretary General’s compiled text. These meetings will precede treaty negotiations, now to be held in 2028 and 2029.
Significantly while the zero draft and L.2/Rev.1 included robust language on civil society participation, a last-minute deletion of this language kicks the can down the road on who will be able to participate and how. It should be noted that NGOs accredited by ECOSOC are not affected by this change.
Key Issues for Future Negotiations
A long road lies ahead, and it will be essential to keep up the momentum over this period, and to remain vigilant to ensure that provisions that were added at the last-minute, including a potential delay tactic on the timeline (“unless agreed by the Preparatory Committee”) as well as potential limits discussed above on broad, diverse and meaningful civil society participation.
Timeline
While not ideal, a longer timeline does give the opportunity for States and civil society to meaningfully reflect on the complex legal issues implicated by the treaty, engage in discussion and debate, and develop proposals to ensure that the strongest possible convention is adopted. This can include the production of expert briefs on key issues, including issues of treaty design and definitions of crimes, and intersessional meetings hosted by States and other institutions on key themes. This is envisaged by the text which encourages Conference participants to “organize consultations on issues of substance, prior to the convening of the Conference.”
Civil Society Engagement and Participation
Even as civil society engagement with the treaty process has continued to grow over the last few years, there is a need to build an inclusive and diverse civil society coalition to see the treaty over the finish line. This should include a particular focus on ensuring that those who have often been excluded from such negotiations and processes – including most importantly victims, survivors, and members of affected communities – are meaningfully included. The provision deleted at the last-minute noted the importance of transparency, equitable geographical representation, and gender parity. Even if deleted from the text itself, these principles can and should guide civil society coalition development and action. Civil society infrastructure and resourcing will also need to be built up and reinforced to ensure sustainable engagement.
Civil society will also need to stay vigilant against efforts to curtail participation during the Prep Comms. Certain States have repeatedly used the ECOSOC Committee on NGOs to unfairly block the accreditation of certain types of NGOs or those working in particular geographies; the same could come to bear here. This connection also reinforces the problem with the resolution only explicitly permitting the participation of those who have been able to make it through the arduous process of obtaining ECOSOC accreditation. Civil society has been an essential partner to States and the International Law Commission throughout this process, and their meaningful participation is essential to the successful elaboration of a treaty.
The Way Forward
The adoption of the resolution to convene a diplomatic conference for the negotiation and conclusion of a new treaty on the prevention and punishment of crimes against humanity is an extraordinary achievement. For the first time in nearly 20 years, the Sixth Committee showed its willingness to vote, if need be, to advance an important product of the International Law Commission and to engage in the progressive development and codification of international law as mandated by Article 13 of the U.N. Charter. In a world wracked by war, despair, and grave crimes, the Sixth Committee’s dramatic finish represented a recommitment – by the entire world – to the values of peace and justice that the United Nations was established to promote.