The process of negotiating a Convention on the Prevention and Punishment of Crimes against Humanity continues to move forward, perhaps remarkably given the fractured and contentious multilateral environment. The year began at the first Preparatory Committee (PrepCom) with states establishing (though with difficulty) the leadership for that and the second PrepCom to come in April 2027, sharing their perspectives on the substance of the potential convention, and allowing the participation of broader civil society in the negotiating conference. Since then, states have submitted initial amendment proposals to the draft convention, a civil society coalition for the convention has formed, and discussions are starting to be held the world over on the convention.
The initial proposed amendments reveal much about where states stand vis-à-vis the treaty’s content, and parallel processes such as negotiations toward a treaty on the Protection of Persons in the Event of Natural Disasters are instructive about the fights to come, including during the upcoming April PrepCom. It’s clear that, while enthusiasm for the treaty remains high, opposition to a strong and effective convention on crimes against humanity is slowly increasing, and proponent states and civil society will need to redouble their efforts to maintain the current positive trajectory. More signals may become apparent today and on Oct. 12, as the United Nations General Assembly’s Sixth (Legal) Committee meets to set dates for the first negotiations in 2028, an agenda that has drawn a surprising degree of interest from states.
State Proposals: Signs of Hope for a Progressive Convention – and Signs of Risk
In April, states had their first opportunity to submit formal amendment proposals to the International Law Commission’s (ILC’s) draft articles, which serve as the zero draft of the convention. There were 66 proposals representing 71 states, the European Union, and the Holy See. Proposals came from all U.N. regional groups, though unevenly (Africa Group 10, Latin American and Caribbean 9, Asia-Pacific 13, Western Europe and Others 26, Eastern Europe 14).
Although 94 states and six regional groups intervened during the opening plenary session of the first PrepCom in January, only 61 states intervened on the treaty’s substance during the Working Group of the Whole meetings that were part of PrepCom, paralleling the 66 proposals submitted pursuant to the April 30th deadline. Our discussions with states have revealed a range of reasons for this dropoff, including lack of capacity and the inability to get the requisite approvals from capitals within the short timeframe between the end of the PrepCom in January and the April 30th deadline.
The preamble and sections on definitions, victims and witnesses, prevention and general obligations drew the most proposals. Overall, the proposals track the Sixth Committee, PrepCom, and Working Group of the Whole discussions (see our March article), as well as civil society proposals, including those of the American Branch of the International Law Association’s Study Group on Crimes against Humanity, which one of us (Leila) chaired. Most proposals supported and sought to advance the draft articles. A handful of states, however, including China, Egypt, the Russian Federation, and Turkey, rejected fundamental aspects of the text. They have consistently opposed the convention since the ILC took up the topic in 2013 and clearly have not changed their views. Notably, only one state, Japan, joined the group of treaty opponent states in its April 30th submission.
On the preamble, progressive proposals included a Martens Clause, requiring the assumption of protection irrespective of an individual’s status under international treaty law (Colombia). Others added protections for Indigenous status (Australia), and called for integrating a gender perspective across prevention, investigation, prosecution and punishment (Mexico). Côte d’Ivoire and the State of Palestine stressed human rights protections for the accused; Cameroon emphasized technical assistance for developing States; and several states, including Cameroon, Namibia, and Nigeria, recalled the enduring harms of slavery, the slave trade, colonialism, and apartheid. On the regressive side, Algeria, China, Egypt, Iran, the Russian Federation, and Turkey contested the jus cogens status (non-derogable obligations) of crimes against humanity, rejected the Rome Statute definition of crimes against humanity as the basis for Article 2, denounced “unilateral coercive measures,” and urged that priority for territorial or nationality jurisdiction be given to the state where the crime happened or the state of the perpetrator’s or victim’s nationality.
Article 2, the definition, drew the most proposals. Some states urged fidelity to Article 7 of the Rome Statute, which defines crimes against humanity. But many proposed adding offenses to Article 2(1) of the draft treaty, including the slave trade, reproductive violence, forced marriage, recruitment of child soldiers, gender apartheid, starvation, terrorism, grand corruption, colonialism, resource extraction, looting of cultural artifacts, and widespread, prolonged, or severe environmental destruction. The Russian Federation and Nigeria each proposed replacing Article 2 entirely, and several states proposed deleting “other inhumane acts.” On the chapeau — or the umbrella elements of all crimes against humanity (acts when committed as part of a widespread or systematic attack directed against any civilian population pursuant to a state or organizational policy, with knowledge of the attack), Egypt, Turkey, and Iran proposed changing “widespread or systematic” to “widespread and systematic,” and the State of Palestine suggested deleting the requirement that the perpetrator act “with knowledge of the attack.”
Proposed additions to the grounds of persecution included Indigenous status, age, and disability, and several States proposed deleting the requirement that persecution be committed “in connection with any act referred to in this paragraph.” China proposed deleting enforced disappearance. Proposals on Article 2(2) included deleting a clause saying that the definition of forced pregnancy “shall not in any way be interpreted as affecting national laws relating to pregnancy” and replacing “woman” with “person.” Gender proved contentious: some states, in explanatory notes not included in the compiled text, supported the ILC’s decision not to define it, while others proposed reinstating the Rome Statute definition or replacing “gender” with “sex.”
Articles 3 and 4, which focus on state obligations to not commit crimes against humanity and to prevent and punish them, also drew many proposals. Most sought to strengthen the obligations not to commit crimes against humanity and to prevent them, but Iran proposed edits that gutted the obligation, and the Russian Federation and the United Arab Emirates appeared to limit crimes against humanity to armed conflict. Egypt proposed deleting paragraphs 2 and 3 (no exceptional circumstances justify crimes against humanity), and Canada surprisingly proposed that “in situations of armed conflict, international humanitarian law continues to apply as lex specialis,” a suggestion the International Committee of the Red Cross has explicitly rejected. And while most states sought to strengthen the prevention obligation in Article 4, Egypt, perhaps the state evidencing the most hostility to the Draft Articles overall, proposed deleting it entirely.
Many proposals sought to strengthen Article 6 (criminalization under national law), including adding conspiracy, incitement, and common purpose to the modes of liability in Article 6(2); others adjusted the command responsibility language in Article 6(3). Egypt and Saudi Arabia proposed deleting Article 6(4) on superior orders not being a ground for excluding criminal responsibility. On the issue of irrelevance of official position (Article 6(5)), one state proposed referencing the ILC’s Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction, and Egypt proposed deleting the entire provision, substituting a new article emphasizing the immunity of “heads of state and government and senior officials.” Argentina, Ukraine, and Côte d’Ivoire proposed barring any amnesty for those responsible for crimes against humanity.
On jurisdiction, many States proposed tweaks to Article 7 on the establishment of national jurisdiction. China and Egypt proposed eliminating universal jurisdiction by deleting paragraph 2, and the Russian Federation, Turkey and Iran sought to give primary jurisdiction to the territorial state or state of nationality. On extradition (Article 13), proposals included giving priority to the territorial or nationality state (Russian Federation), as well as extensively strengthening the text (Germany). On mutual legal assistance (Article 14), Germany proposed a notable data protection provision (France proposed a new Article 16 on the same issue), and Sierra Leone and The Gambia proposed including a new article on capacity building and technical assistance.
On dispute settlement (Article 15), Switzerland and other states proposed strengthening the provision by removing the opt-out, while the Russian Federation proposed weakening it by making recourse to the International Court of Justice optional. Mexico, Portugal, the Nordic countries, Sierra Leone, and The Gambia called for a treaty body to strengthen enforcement.
Finally, states proposed final clauses, which the ILC text omitted, with entry-into-force thresholds ranging from 20 ratifications (Austria) to 60 (Cameroon). Belgium, also on behalf of Estonia, The Gambia, Iceland, Liechtenstein, Mexico, Slovenia, and Timor-Leste, proposed prohibiting reservations.
In short, the compilation contains many creative new proposals, many modifications to the ILC’s language, and, from a small number of states, several challenges to fundamental elements of the Draft Articles. Because states may introduce proposals at any point in the negotiations, the compilation, like the ILC draft, is a starting point rather than a final product. Still, it is notable that the Commission’s 2019 Draft Articles continue to attract significant support.
Negotiations on Protections of People in National Disasters – A Signal of Battles to Come?
While the substance of the proposed Treaty on Crimes Against Humanity has been the focus of much attention, equally important are the procedural rules for the diplomatic conference, which will be adopted by the second PrepCom in April 2027. A parallel process in the U.N. General Assembly’s Sixth Committee to negotiate a legally binding instrument on the protection of persons in the event of national disasters (PPED) is likely a harbinger of the challenges to come. In fact, the Sixth Committee secretariat has suggested that the rules of procedure for the PPED negotiating conference will serve as the template for the crimes against humanity conference.
In August 2026, the PPED’s PrepCom met for a little over a week to negotiate and finalize the rules of procedure for its negotiating conference in January 2027. Originally scheduled to conclude on Sept. 4, the final adoption had to be delayed by a week to Sept. 11 to allow sufficient time to agree on contentious issues, in particular on decision-making and civil society participation. Perhaps most contentious was the discussion on decision-making, specifically whether decisions would be made by consensus, and when it was possible to vote. The albatross of consensus is not new to the Sixth Committee, particularly during the long process leading to the adoption of resolution 79/122 setting out the process for negotiating the treaty.
During the PPED PrepCom, the initial rules of procedure had provided that if every effort in good faith to reach consensus had been exhausted, the president of the negotiating conference “shall consult the Bureau [of the Conference] and recommend the steps to be taken, which may include the matter being put to the vote[.]” States raised a range of objections or alternatives to this proposal, from the need to clarify the steps between the efforts to reach consensus and a vote (Syria, Iran, United States), and reliance on other potential precedents from the Tax Convention (Nigeria) or Cybercrimes Convention (Russian Federation). Mexico, long a stalwart for the need to retain the possibility of a vote, called for language clarifying the conference president’s authority in determining whether every effort was made to reach consensus and clarifying/streamlining so that the president then “shall proceed to a vote.”
Ultimately, the language on recourse to a vote was dropped, leaving only the following: “[t]he Conference shall exhaust every effort in good faith to reach agreement on matters of substance by consensus.” The implication of this change is that the U.N. General Assembly rules will apply, which permit a vote to be called once it is clear that achieving consensus is not possible. Mexico delivered an Explanation of Position noting that it does not see this as a precedent for future proceedings, and that they retain the right to raise this issue again when the PPED conference meets in January 2027 to adopt the rules of procedure.
The fixation of some states on the idea of consensus is concerning. As we have argued before, consensus does not guarantee a positive outcome or inevitably produce better results. In fact, a 2004 study by the Sixth Committee Secretariat observed that while consensus may be worthwhile and indeed necessary on some matters, “in other cases it is often time-consuming and results in decisions that provide little added value.” As the proposals outlined above preview, there will be significant debate on many aspects of the convention, and while consensus may be desirable in principle, it will be important for states to vote in order to have a strong and effective treaty that responds to modern needs.
The other issue that proved contentious for the PPED process was related to the approval of applications for participation by civil society representatives not already accredited with the U.N.’s Economic and Social Council. Resolution 80/169, which governs the PPED negotiating conference, mandated that the PrepCom decide on their participation “based on a list prepared by the Secretariat, with due regard to the principles of transparency and equitable geographical representation, and whose work is relevant to the Conference.” While a decision on such a list is usually relatively pro-forma and approved unless a member state formally objects within a set timeframe (though this was not specified), some states, including Iran and the Russian Federation, raised the need to know more about the NGOs on the list to be able to determine “if their work is relevant to the Conference.” Iran for example, noted that this information could include “proper information on the nature, objectives, potential relevance, sources of financing and any conflict of interest, among others.” Ultimately, it was decided that the Secretariat would provide publicly available information related to each organization’s mandate and staffing.
For the process related to the proposed crimes against humanity treaty, the first PrepCom adopted a strong decision on the participation of civil society, which specified that it would be a non-objection process and could take into account transparency, equitable geographical representation (both also in the PPED decision), and gender parity. While we can hope that the relative strength of the decision in the crimes against humanity context will be a bulwark, considering the pushback on civil society participation across the multilateral system, ensuring the inclusion of diverse civil society will require constant vigilance.
What Comes Next?
On the agenda for today and Monday’s Sixth Committee meeting on the proposed crimes against humanity treaty, the only official business on the table is to set the dates for the first negotiations conference in 2028 (anticipated to be in January). However, the speakers list includes, as of this writing, 88 states and entities, indicating a strong level of interest in the agenda item. The focus of these statements may send some signals for what is ahead for the second PrepCom and the negotiating conference. If last year is a guide, we can be hopeful for statements expressing support for the process and the need to keep the momentum moving forward.
Thus far, the number of states opposing the treaty has remained relatively stable over time, but it is slowly increasing due to some changes in governments and the realization of others that the negotiations are ongoing and may in fact result in a new convention. Meanwhile, the number of states supporting the treaty has remained relatively stable as well. This means that treaty proponent states and civil society must redouble their efforts to attract new supporters and to ensure favorable procedural rules for the 2028 diplomatic conference.
