The United Nations recently took a major step toward a treaty on crimes against humanity. The U.N. General Assembly’s Sixth Committee, which handles legal matters, reached agreement on a resolution to move to detailed discussions of draft articles for such a treaty to prevent and punish these egregious crimes. Significantly, 86 U.N. members joined to co-sponsor the resolution in the committee, breaking a three-year logjam by Russia and China. Representing nearly half the 193 U.N. member States, this was a genuinely cross-regional group that included countries from Africa, Asia, and the Americas, along with the customary Western supporters.

This diverse show of strength contradicted claims that the initiative is a Western ploy, and it influenced the handful of States that had been obstructing forward movement, as they finally recognized their best option was to engage in negotiations over the resolution text. Informal exchanges in those negotiations led to changes by the larger, like-minded group of co-sponsors, while avoiding concessions that would have undermined their principles. As a result, a process and a structure are now in place for a substantive exchange of views, and a timeline, though unfortunately spread over two years, will guide action for the next phase of formal negotiations.

Mexico’s Resolution Flipped the Dynamics

Going into this year’s Sixth Committee session, there was widespread expectation that the questions of whether and how negotiations over the draft articles could proceed would have to be resolved by a vote in the Sixth Committee rather than the usual process of consensus, which had been abused in the case of this treaty by a handful of opponents. The international reaction to atrocities committed in Russia’s invasion of Ukraine, together with the August report by the U.N. Office of the High Commissioner for Human Rights on possible crimes against humanity in Xinjiang, China, seemed to bolster the likelihood of a vote, though various member States sought to avoid such a balloting for their own reasons.

Mexico added to this momentum toward a vote by introducing a resolution, quickly co-sponsored by seven other States, early in the committee’s session. According to committee procedure, the introduction of the text shifted the burden of calling for a vote, if one proved necessary, onto the opponents. This was a game-changing move that altered and shaped the dynamics that followed, in part by raising the specter that the opponents would be isolated as a tiny minority in a vote.

Consistent with the Sixth Committee’s procedure, following a plenary debate on the draft articles, the process moved to “informal consultations” over the proposed resolution. In the course of those discussions, led by Mexico and the Gambia as co-facilitators, China made clear its insistence on certain alterations, and its delegates proposed several changes, prompting a back-and-forth.

These informal discussions also drew out an undercurrent that was becoming clearer beforehand — the reluctance of many of the co-sponsoring States from the Global South to hold a vote. They regarded it as a departure from the traditional Sixth Committee practice, which over years had become overwhelmingly bound up with making decisions by consensus. A certain mythology had arisen that, because the committee was mandated to advance international law, any action should have “universal” support, which consensus conveys and voting contradicts. If the products of international law-making were to be deemed legitimate, the argument went, decisions could only be made by consensus. However, right alongside this rationale lay another factor more clearly reflecting actual self-interest among these smaller countries: consensus gave them some perceived greater influence in committee decision-making.

The informal negotiations also made clear the deep antipathy of the U.K. and the U.S. to voting. Both these Permanent Security Council members were in the eight member “Core Group,” which consisted of those States that initially co-sponsored Mexico’s resolution. It appeared that London and Washington’s priorities, including making headway on the draft articles, was to steer the process away from voting. This was driven by their fear of the precedent a vote could create regarding other draft treaties emerging from the International Law Commission (ILC). The ILC, the U.N. body that makes recommendations for advancing international law, had forwarded a number of draft conventions to the Sixth Committee that the U.K. and the U.S. – along with other western States — opposed. For a time, it seemed that the U.K. and U.S. were amenable to a vote on these draft articles because the human rights imperative underlying a proposed treaty could easily be distinguished from other ILC draft conventions. But ultimately, these two members’ opposition to voting proved dominant.

In the end, negotiations over the wording of that resolution led to a compromise text that would avoid a vote, and the minority agreed to its adoption. It was a moment of accomplishment in strengthening the rule of law at a time when that very concept is under stark assault worldwide.

Resolution Text on Timing and Civil Society

Nevertheless, the States that support a treaty to prevent and punish crimes against humanity will need to make effective use of the next two years of discussion to prevail in the crucial decision that will be taken then.

In the informal sessions that preceded the Nov. 18 adoption, the resolution text changed. Rather than a timeframe for the next-stage discussions to take place being two weeks in 2023, as Mexico’s resolution had stipulated, the overall time period was extended by a year, so that the talks would be held in two one-week sessions in April 2023 and April 2024.

More significantly, while the original text had called for the creation of an ad hoc committee to work on the proposed treaty, China’s opposition resulted in the vehicle for the two-year discussions shifting to a “working group of the resumed session of the Sixth Committee.”  This terminology, by definition, would have limited the sessions exclusively to U.N. member States; civil society groups would be excluded from participation. This compromise was deemed necessary to bring the Chinese on board for a consensus-supported resolution that would avoid a vote. However, from reports of a few people present at the time, the “working group” terminology proved unacceptable to Russia, and the language was revised to its final form, which describes the negotiation platform as “the Sixth Committee meeting in resumed session in an interactive dialogue.” This language opens the way to civil society participation.  

In addition, States were invited to submit written comments and observations by the end of 2023 on the draft articles and on the ILC’s recommendation to move ahead to a new international convention on crimes against humanity. On the basis of a written summary of the deliberations at the two sessions in 2023 and 2024, together with the views expressed by States on moving the process forward at both, the committee will be mandated to take a decision on next steps in Fall 2024. Clearly, this language is intended to assure opposing members that every effort will be made to include the views of all States as part of the record.

The Road Ahead

While adopting the resolution was a step forward, the outcome essentially “kicks the can down the road” two years to the Sixth Committee’s meeting in Fall 2024. There is certainly no guarantee even then that the discussions will move forward to finalize a text. To increase the likelihood that the discussions over the next two years do move ahead and don’t prove all this effort to be for naught, supporting States will need to make the most of this interim period. This should involve the following measures:

  • Ensuring that the two one-week sessions, in 2023 and 2024, focus as much as possible on the substantive issues in the draft articles as opposed to simply airing re-statements of general positions.
  • Engaging delegations from smaller U.N. member States in the substantive issues before the one-week sessions each year to encourage the broadest-possible informed participation of these delegations.
  • Forging greater understanding within a very divided Sixth Committee about the purposes of voting and consensus. In reality, the wide range of support among co-sponsors did not reflect or generate a unity of commitment to drive the process — come hell, high water, or a vote — across the finish line. Work must be done to overcome these differences.
  • Making sure civil society organizations are able to participate to the fullest extent possible in the “interactive” discussions. This is crucial, not as a favor to civil society, but because it is exactly the broad engagement of these groups worldwide and at the U.N. that will create wider awareness and expectations on the potential for an international convention on crimes against humanity, to generate public support that will in turn influence governments.

The two-year period for discussion provides a valuable opportunity to strengthen the position for the tough fight to come at the end of that process. But if this time is not used well, the Sixth Committee will find itself in 2024 merely stuck in the all-too-familiar morass of divisions over voting, and the progress made this year could prove meaningless.

IMAGE: Members of the Muslim Uyghur minority present pictures of their relatives detained in China, during a press conference in Istanbul, on May 10, 2022. Turkey’s Uyghur community urged the then-UN human rights chief Michelle Bachelet to probe so-called “re-education camps” during a long-delayed visit to China that month, including to Xinjiang, where Western lawmakers have accused Beijing of genocide. Bachelet released her report on the situation in August. 2022. (Photo by OZAN KOSE/AFP via Getty Images)