(Editor’s Note: This article is part of a series on a proposed Convention on the Prevention and Punishment of Crimes Against Humanity that was considered in the recent session of the Sixth Committee, the U.N. General Assembly’s primary forum for legal questions.)
The United Nations General Assembly’s legal committee again missed the opportunity to take action this year on the draft text of a new treaty on crimes against humanity proposed by the International Law Commission. The failure, in the form of a vote Nov. 18 on a draft resolution that simply took note of the draft articles, leaves a critical gap in the legal architecture for preventing and punishing mass atrocity crimes. The result deprives a range of victims and survivors the effective protection and justice they deserve.
As this series has demonstrated, it is imperative to adopt such a treaty for a host of reasons. Even amid substantive disagreements on what the new treaty should include, those cannot be debated and resolved until there is forward momentum and a concrete schedule for such discussions. However, despite overwhelming support from States to establish such a process this year, a few States that appear vehemently opposed to the project stalled concrete progress yet again.
On Oct. 13 and 15, 84 States and the European Union took the floor during the 76th Session of the U.N. Sixth (Legal) Committee to examine the recommendation of the International Law Commission (ILC) that either the General Assembly elaborate a convention or States convene a diplomatic conference do so, on the basis of the ILC’s draft articles on crimes against humanity, as finalized in 2019. Two States — Canada and Chile — joined the EU explanation of position when the draft resolution was presented for adoption in November.
Readers of this series may recall the backdrop: Austria in 2019 had offered to host a treaty conference, and enthusiasm for the ILC draft text was high. But States needed more time for study, and over the past two years, seemingly had ample opportunity to do so. In this third effort to break through an apparently impenetrable diplomatic logjam, one could discern three general directions advocated by the States and entities taking the floor during the opening plenary.
An Overwhelming Majority Favored Moving Ahead
First, an overwhelming majority – 72 of the 86 who spoke or aligned with the statements of others either during the plenary debate or following the adoption of the draft resolution – strongly favored the creation of an ad hoc committee or some similar entity that would have a clear mandate and a well-defined timeline to discuss the ILC draft text in meetings over the next year, with a view to developing a product that could be reported out directly to the General Assembly in 2022. Another four States were supportive but neutral as regards the process moving forward.
States and entities in the positive category included the European Union, whose delegate from Slovenia spoke on behalf of its members, as well as for EU candidate states and for Georgia, Moldova, and Ukraine. They emphasized the need to close the legal gap currently present in international law, and suggested that an ad hoc committee or similar “institutional framework” could allow States with a more ambitious approach and others that are more cautious to come together in an “open,” “frank,” and “inclusive” debate to achieve progress. This concept was echoed by many States from other regions, including Bangladesh, Jordan, Mexico, New Zealand, Nigeria, the Nordic countries, the Republic of Korea, Sierra Leone, and South Africa, as well as additional European countries.
In a measure of progress, the U.S. statement was particularly positive this year. It noted that the “absence of . . . a treaty addressing crimes against humanity has left a hole in the international legal framework that we strongly believe should be addressed.” The United States added that “[a]dvancing discussion of this project towards the elaboration of a convention on the prevention and punishment of crimes against humanity should be our shared goal. Anything less would fall short of filling this critical gap.”
A handful of States in this group, such as Israel, seemed inclined to support a robust process moving forward but offered various critiques of the ILC text. The four more neutral States included Azerbaijan, Singapore, Sri Lanka, and Vietnam.
As negotiations were underway, this call to move forward was echoed in a statement signed by dozens of prominent international lawyers and practitioners, including International Criminal Court (ICC) Prosecutor Karim Kahn, his predecessor Fatou Bensouda, and Silvia Fernandez de Gurmendi, president of the ICC Assembly of States Parties. The statement urged the Sixth Committee to make progress through the creation of a timebound process with a clear mandate. (Full disclosure: We were among the signatories.)
A second, smaller group of States seemed willing to discuss the ILC project, but offered critical reflections, and seemingly advocated for a less structured approach, such as the creation of a working group without a specific timeline. These included Cameroon, Cuba, Egypt, Iran, and the Philippines. Concerns raised by this group included the universal jurisdiction provisions in the draft text, alleged politicization of the text, and the universality of the Rome Statute definition of crimes against humanity. They suggested they would be willing to consider further discussions but were not convinced of the urgency of the project, nor its strong legal foundation.
Finally, a handful of States including China, India, and the Russian Federation, echoing positions they had adopted in prior years, appeared to oppose moving forward at all. Although they expressed some willingness to have further conversations, their general approach was that, in the words of India’s representative, “there is no requirement of a convention.”
Minority of States Exercise a Veto Power
The frustration of the States wishing to make progress was evident when the draft resolution was introduced on Nov. 18. According to observers and participants in the debates, intense informal negotiations nudged some States that had initially expressed hesitations to a position of being willing to at least create a process for moving forward. And some States that had initially been cautious or even negative regarding the ILC’s draft changed their views and became supportive of the new treaty (including the United States). But at the end of the day, the opposition of a small number of States, including China and the Russian Federation, prevented forward movement because of the Sixth Committee’s consensus requirement.
Thus, rather than establishing a clear process to move forward, or even a deferral, as Mexico had proposed, a second technical rollover was placed before the delegates, essentially postponing all structured discussion to 2022. Mexico disassociated from the draft resolution in the strongest of terms, calling it “unacceptable,” and noting that “it sends a negative message about the absence of a serious discussion by the Committee.” Mexico added that “this succession of texts contributes once again to the paralysis of the Sixth Committee’s consideration of ILC products and generates a new vicious circle of inaction that adds to the list of nearly a dozen topics that are trapped in cyclical considerations from which there seems to be no way out.”
It is truly incomprehensible that consensus is being used to prevent the opening of a formal, structured, inclusive dialogue, which is meant to further the understanding of the Member States’ position and iron out differences. As the world watches us, the resolution we are adopting today – which signals inaction and unwillingness to move beyond taking note of the draft articles for the third consecutive year – not only falls short of capturing the view of the majority of those represented here today, but also fall short of the responsibility this Committee has under the UN Charter.
In essence, the consensus rule in the Sixth Committee had the practical effect of importing the veto prerogative from the Security Council into the General Assembly.
Also impacting this year’s decision-making was the continuance of the U.N.’s COVID-related ban on the participation of civil society. Over the course of the year, as the threat of COVID lessened in New York, delegates, staff, and media were allowed back into U.N. headquarters. But civil society was singled out for exclusion. This allowed U.N. actors to sidestep meaningful inclusion of civil society in discussions including the Sixth Committee’s consideration of the ILC draft articles on crimes against humanity, and shielded decision-making behind a veil of secrecy. While the U.N. recently announced that civil society will once again be issued grounds passes beginning January 2022, significant opportunities have been missed.
Disappointment and Limited Progress
Yet even amid the disappointment at this year’s result, a measure of progress was evident. There was clearly more determination of purpose on behalf of the supporting States, and more urgency in their advocacy. A total of 86 States and entities expressed themselves publicly, 76 of which were positive. Some States that had previously been negative, such as Egypt, appeared willing to create a process for moving forward, and others, including Turkey and the United States offered strong support for the elaboration of a new treaty.
There were notable statements issued by some delegations as well. Haiti’s representative delivered a potent indictment of the evils of slavery and the slave trade and their crippling legacy, and Myanmar’s representative evoked the ongoing victimization and crisis in his country. These two interventions brought the suffering and the voices of the victims into the comfortable and well-appointed rooms of U.N. headquarters in New York, serving as reminders that the problem of crimes against humanity is not an abstract legal theory, but a question of real victimization on a massive and global scale.
As Slovenia’s representative noted in the EU’s explanation of position, “there [were] no winners with this outcome,” which was a “missed opportunity” that “cost time and effort.” It imposed a “cost in real-life human suffering and in the international community’s ability to act and put in place the necessary measures to address it.” This is what States should keep in mind over the next year, as they work actively to address the concerns and hesitations raised by States this fall so that come next October, the Sixth Committee’s discussions achieve measurable and concrete progress. They may also wish to reevaluate the working methods of the Sixth Committee to avoid the kind of impasse experienced over the past three years.