Enthusiasm for negotiating and adopting a new global treaty on the prevention and punishment of crimes against humanity has been growing since the issuance of a model draft treaty 16 years ago, particularly after the United Nations International Law Commission (ILC) submitted a final set of draft articles to the General Assembly on Aug. 5, 2019. Although paragraph 42 of the ILC’s report recommended the “elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries on the basis of the draft articles,” progress on this important treaty has stalled in the U.N. General Assembly’s Sixth Committee. But there are ways the Sixth Committee, the U.N. General Assembly panel that considers legal issues, could make progress on the ILC’s draft text, thereby fulfilling its role within the U.N. system and increasing the likelihood that this critical treaty will be negotiated and adopted in the near future.
The Sixth Committee Deliberations over the Past Three Years
When the ILC’s text was introduced to the Sixth Committee in 2019, it was not the first time the idea of a new treaty had been floated at the General Assembly. The ILC had assiduously canvassed State reactions since beginning work on the topic in 2013, and the draft took into account extensive State comments. Thus, a significant majority of States in 2019 were willing to proceed quickly to a Diplomatic Conference to negotiate the treaty, which Austria offered to host. A handful of States demurred, however, asking for more time to study the draft, and an even smaller number opposed the treaty entirely. The result was a disappointing resolution “taking note” of the draft articles and promising to revisit them the following year. Austria, joined by 42 other States, expressed disappointment.
In 2020, the COVID-19 pandemic made matters worse. Strict limitations on working methods were imposed, causing the Sixth Committee to adopt a technical rollover resolution again simply “taking note” of the draft articles. This time Mexico, joined by 13 other States, voiced concerns that this ran the “risk . . . of getting caught in a cycle of consideration and postponement of the articles without concrete action, which could undermine the relationship between the General Assembly and the ILC.”
In 2021, expectations ran high as State interventions in the Sixth Committee were overwhelmingly positive. A handful of States again opposed any action (in stark contrast to their views that on other agenda items a working group could be convened to consider the Commission’s recommendation and report back to the Sixth Committee). Those supporting the draft articles were unwilling to put the matter to a vote due to the tradition of taking decisions by “consensus” in the Sixth Committee, and the result was another technical rollover to 2022.
Many States expressed frustration at this disappointing outcome, including Mexico, which dissociated from the draft resolution — in effect breaking consensus. Other States objected in their “explanation of position” documents, including the United States, the United Kingdom, Israel, and the European Union (joined by 22 additional States for a total of 50). The EU statement, which noted that the consensus tradition of the Sixth Committee was being used to prevent the opening of a formal, structured, inclusive dialogue on the ILC’s draft, failed to “captur[e] the view of the majority” and was inconsistent with the Sixth Committee’s responsibility under the U.N. Charter.
Breaking the Impasse in 2022
Given the horror and ubiquity of crimes against humanity around the globe, and its nature as a peremptory norm of international law, the Sixth Committee’s continued inaction on the ILC’s proposed text is difficult to justify. In endeavoring to imagine how the process could be unstuck, we have elaborated a White Paper setting out three possible paths forward:
- The Sixth Committee could act, either by convening an Ad Hoc Committee, moving directly to a codification conference, or working directly on the draft articles as a Committee of the Whole;
- The General Committee could shift the Draft Articles on Crimes Against Humanity to the Third Committee or the Plenary of the General Assembly; or
- A treaty on crimes against humanity could be developed either outside of, or adjacent to, the United Nations.
This essay focuses on action in the Sixth Committee for two reasons. First, the Sixth Committee has successfully taken up ILC products in the past. Second, it is the traditional venue for discussion and implementation of the ILC’s recommendations and is tasked with achieving the General Assembly’s mandate under Article 13(1) of the U.N. Charter to encourage “the progressive development of international law and its codification.”
The Sixth Committee has successfully adopted other ILC products, either using ad hoc committees (i.e., the ILC’s Draft Statute for the Establishment of an International Criminal Court and the U.N. Convention on Jurisdictional Immunities of States and Their Property); as a Committee of a Whole (i.e., with respect to the development of the U.N. Convention on the Law of the Non-Navigational Uses of International Watercourses); or by sending draft articles directly to a Codification Conference (i.e., as it did in 1984 to negotiate the final text of the Convention on the Law of Treaties Between States and International Organizations or Between Two or More International Organizations). In the 2021 session of the Sixth Committee, most States favored the creation of an ad hoc committee to take up the ILC Draft Articles on Crimes Against Humanity, a process clearly consistent with past Sixth Committee Practice. They just were not willing to break with the consensus “tradition” and vote on the question.
Consensus v. Voting
Any of the options on the table at the Sixth Committee could be accomplished either through a consensus resolution or by taking a vote. Progress has been stymied by the invocation of the so-called consensus “rule,” which is neither a rule, nor being employed to achieve consensus.
The Sixth Committee’s practice of consensus is better described as a tradition than a rule. Although endeavoring to take decisions by “general agreement,” “consensus,” or “without a vote” reflects a longstanding practice of the General Assembly and its Main Committees, voting is employed as a standard practice if consensus fails. The General Assembly has considered, and rejected, incorporating consensus-based decision-making into its rules of procedure. Voting takes place regularly in other Main Committees of the General Assembly, in the Plenary, and with respect to the adoption of major treaties. Even the Fifth Committee, which is the only committee with a General Assembly mandate to endeavor to reach decisions by consensus, recognizes that voting may be required if “every effort [has been] made to reach consensus” to advance the committee’s work.
According to a study published by the Secretariat in 2004, the Sixth Committee will adopt draft resolutions and decisions by a vote in “exceptional and rare circumstances,” “after exploring other possible alternatives for compromise.” The Sixth Committee has voted, for example, during the adoption of the U.N. Convention on the Law of the Non-Navigational Uses of International Watercourses, and on the adoption of the U.N. Declaration on Human Cloning in 2005. So why not with respect to crimes against humanity?
“Consensus” does not mean “unanimity”
The word “consensus” means a majority of opinion or a “general agreement or concord; harmony.” Although the U.N. Juridical Yearbook refers to consensus (in a different context) as “the absence of objection rather than a particular majority,” where an overwhelming majority of States support a particular action, such as moving the ILC Draft Articles to an ad hoc Committee for further substantive discussions, blocking a resolution to that effect is defeating, not supporting, consensus in any real sense of the term.
During the 76th session of the General Assembly, a significant number of States expressed frustration that consensus was being used to prevent continued dialogue and meaningful consideration of a crimes against humanity treaty. The United States noted the “long tradition of consensus-based decision-making,” but emphasized that for it to work as intended, there needed to be a willingness to negotiate in good faith, not with “absolutism.” While States have a sovereign right to decide not to support a particular agenda item, if they are preventing other States from acting on initiatives that they support, particularly following several years of extensive negotiations which have failed to produce any results, they may be preventing the Sixth Committee from executing its mandate.
Voting in the Sixth Committee is Appropriate in this Case
Some States have argued that the Sixth Committee should operate by consensus (meaning de facto unanimity) because it establishes legal norms. Yet this argument cannot apply to the process to be used to take a matter forward. As for the substance, treaties must be considered by States not only at the international level but also in their own national systems. Thus, the argument that the Sixth Committee should only work by consensus (unanimity) in this case because it is “creating law,” is misplaced.
Finally, a vote on the Draft Articles does not automatically mean that all ILC products will require or receive a vote in the Sixth Committee. A proposed treaty on crimes against humanity may warrant voting due to its connection to human rights, humanitarian law, peace, and security, items that are regularly voted on in the United Nations. Moreover, unlike other areas of international law in which “soft law” instruments may be effective and authoritative, such as the ILC’s Draft Articles on State Responsibility, experience has demonstrated, and the principle of legality requires, that criminal law suppression conventions must have clear definitions of crimes and modalities of enforcement.
The scourge of crimes against humanity afflicts every region of the world and their prevention and punishment has been hampered by the absence of a treaty. This is an urgent crisis, as atrocities multiply and the term “genocide” is invoked by policymakers and the press in part because of the absence of a treaty on crimes against humanity. As the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence and the Special Adviser to the Secretary-General on the Prevention of Genocide noted in a recent joint study, “[u]nlike genocide and war crimes, which are recognized and prohibited under international criminal law, there is no convention on crimes against humanity . . . Finalizing and adopting the draft convention [of the ILC on crimes against humanity] would demonstrate the commitment of the United Nations to atrocity prevention.”
Consensus decision-making as a default position is unobjectionable. However, it neither guarantees a positive outcome for a treaty adopted on that basis, nor does it inevitably produce better results. The Secretariat’s 2004 study 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.” The General Assembly has noted the desirability of adopting decisions and resolutions by consensus “when doing so. . . contributes to the effective and lasting settlement of differences, thus strengthening the authority of the United Nations.” If consensus weakens or undermines the authority of the United Nations, however, voting is preferred.
The ILC and the codification process have been entrusted to the Sixth Committee since 1947. But the codification process — and the ILC itself — risks becoming increasingly irrelevant if the Draft Articles on Crimes Against Humanity do not progress to the next phase given the broad support they have received from States. States must act now by adopting effective procedures that can move the crimes against humanity project forward so that 2022 is not a repeat of prior years. By acting on the draft articles, including voting, if need be, the Sixth Committee can protect, defend, and preserve the integrity of the International Law Commission and the Sixth Committee itself, as well as the important role they play in the codification of international law.