The road to a new Convention to Prevent and Punish Crimes Against Humanity has been a bumpy one. For many years, the Sixth Committee of the United Nations General Assembly (UNGA), repeatedly postponed work on a draft treaty until, in 2021, Mexico finally broke that cycle of inaction and introduced a new strategy to move the work forward. To understand the current process and why it is an achievement to finally be on a path toward negotiations, it is important to understand how that cycle was broken and what that entailed.
First, some brief observations on the practice of the Sixth Committee of the U.N. General Assembly. Technically speaking, the Sixth Committee does not adopt resolutions; it recommends texts that are eventually adopted as General Assembly resolutions in the Plenary. Most draft resolutions of the Sixth Committee belong to its bureau, which appoints facilitators from across all member States. It asks those individuals to lead the negotiations and facilitate the discussions of the draft resolutions. Traditionally, all drafts are adopted at the end of the session without a vote. It is important to highlight that the word “consensus” is nowhere to be found in the General Assembly’s rules of procedure. Each draft resolution is adopted without a vote rather than by consensus. This has been the practice for many years now.
When there are new draft resolutions to address specific International Law Commission (ILC) products, facilitators are also appointed to conduct negotiations in the Sixth Committee. This process was used for the ILC’s draft articles on Crimes Against Humanity, but the committee used what is commonly called “technical rollovers” every year since 2019 to postpone consideration of taking any action. This phrase – technical rollover – is used to refer to draft resolutions that are adopted over and over again without substantive changes. Only the necessary “technical” updates (such as the date, symbols, or references to U.N. reports) are incorporated in the new drafts leaving the substantive topics de facto “frozen.” Finally in 2021, Mexico decided to dissociate from that consensus to break the inertia and to embark on a new strategy to create a path to negotiate a convention based on the ILC draft articles. This dissociation was not easy and came with political costs, but Mexico made the decision to be able to make progress at the U.N.
Essentially, the key distinction from all other processes in the Sixth Committee was that Mexico, joined by The Gambia, introduced a draft resolution in the country’s national capacity, instead of waiting on a draft prepared by co-facilitators appointed by the bureau. UNGA’s rules of procedure allow any member State to submit proposals on any topic and this is precisely what was done under the agenda item “Crimes Against Humanity.” This approach allowed the drafters to be free from the usual restraint placed on bureau facilitators to maintain consensus. Mexico and The Gambia were able to propose an action-oriented draft that, if opposed, any delegation could have requested a vote for its adoption. By moving away from the minimum common denominator as the standard, a higher threshold for resolutions was established, and the political pressure of calling for a vote fell to the minority that did not want to negotiate a Convention. This was the true game changer.
This strategy allowed us to move forward and adopt resolutions 77/249 and 79/122. To demonstrate that these efforts enjoyed the support of the majority of States, both drafts were opened for co-sponsorship, an unusual move in the Sixth Committee. For the first resolution that launched the deliberation process, 86 States decided to co-sponsor it. For the second resolution, that number grew to 99.
Breaking the Logjam
It is worth reflecting upon how many ILC draft articles that, to this day, remain stagnant, trapped in technical rollovers without progress for decades. They could have a different outcome if States adopted a similar strategy. The Crimes Against Humanity Convention proves that when there is will, there is a way, and that there is a chance to escape deadlock situations.
The fact that the draft resolution had been proposed as a country-led initiative did not close the text to negotiations. It was not a “take it or leave it” approach. Open, transparent, and inclusive negotiations still took place within the Sixth Committee. The idea was always to create ownership of the process rather than imposing it on reluctant States. To move the draft text forward, the co-sponsors of the draft made important concessions along the way, one of them being the time frame for the negotiating conference, which is now scheduled for 2028 and 2029.
The next steps, however, will also present significant challenges. Before moving on to the substantive questions that will have to be addressed by the Conference, several procedural issues still need to be resolved. A decision will have to be made regarding the participation of civil society organizations that do not have consultative status at the U.N. Economic and Social Council. Preparing a zero draft for the negotiations will also be key. Although many States agree that the starting point should be the ILC draft, a minority of delegations believe that the drafting process of the convention should begin from scratch and only to consider the draft articles as a point of reference. As a compromise, the draft articles adopted by the ILC will serve as the basis for the conference, along with their commentaries, and if member States wish to submit a compilation of proposals and amendments, they are welcome to do so. These suggestions, whether new proposals or amendments to the draft articles of the ILC, will be compiled and submitted as a separate document to the Conference of Plenipotentiaries for its consideration. The deadline for submitting textual amendments to be included is April 30.
Following the first session of the Preparatory Committee, which is currently taking place in New York City, a second session is scheduled for 2027, when the rules of procedure of the Conference will be adopted. This pivotal step will govern many aspects of the negotiations, including participation. Most importantly, the rules will also define the conference’s decision-making process. For now, UNGA’s rules of procedure apply until the Conference adopts its own, which also provide a safeguard, as UNGA’s rules allow decisions to be made by voting if consensus cannot be reached. As mentioned earlier, having the possibility to vote has been a crucial element in enabling progress. Although both resolutions referred to above were, somewhat ironically, adopted without a vote, there has not been an actual consensus in the Sixth Committee to move forward.
The reality is that both resolutions were adopted without a vote because some delegations were more fearful of the precedent that a vote in the Sixth Committee would set for other topics. It would be dangerous to mistakenly believe that the apparent “consensus” can and will be maintained in the future. Not having the possibility to vote would be a strategic error. Therefore, it will be necessary to adopt rules of procedure that ideally include a decision-making mechanism allowing for voting when required to move forward, once all efforts toward consensus have been exhausted.
Once the rules of procedure are adopted, participation is decided, and member States have submitted their proposals or draft amendments, the conference will be ready to dive straight into negotiations.
As mentioned, substantive negotiations will begin in 2028, followed by a second session in 2029, each scheduled to last three weeks. Additional sessions may be convened as needed, with such decisions made by the conference itself based on progress. The hope and expectation are that, by then, this process will run more smoothly and may not require extended conference sessions.
The path ahead will require extensive dialogue, ongoing efforts to engage and persuade delegations about the relevance of the process but also about the substantive issues, highlighting both what needs to be protected and what should be achieved. Addressing these issues will ensure that we are collectively ready to close this gap in international law and finally adopt a legally binding instrument to prevent and punish crimes against humanity—a treaty that the world, unfortunately, desperately needs.
