The resolution adopted recently at the United Nations General Assembly’s legal committee on draft articles for a treaty on crimes against humanity creates a two-year process for debate and discussion of the proposal within the committee. This opens the door for the possible adoption of a new, critically needed, global treaty on crimes against humanity within the next three or four years. Such a treaty would close several gaps in the legal architecture of atrocity crimes — particularly the legal obligation to prevent crimes against humanity, a duty not imposed by complementary regimes, including the Rome Statute of the International Criminal Court and the proposed Mutual Legal Assistance Treaty.
As Just Security readers will recall from previous articles, the project had been stuck for the past three years. Each year, an overwhelming majority of States voiced their enthusiastic support in the Sixth Committee. This was then followed by weeks of debate and the adoption of a disappointing resolution “taking note” of the International Law Commission’s work to produce the draft articles and placing it on the agenda for the following year. The primary culprit was not the draft articles themselves or States’ unwillingness to debate this important potential treaty. Instead, it was a product of the working methods of the Sixth Committee, which insist upon “consensus” (meaning de facto unanimity) for any concrete action to occur with respect to ILC products. As we have already noted here and here, this not only prevented any action with respect to the draft articles, but imperiled the legitimacy of the International Law Commission and the Sixth Committee itself.
To overcome this infelicitous cycle, we spent the past year working with other colleagues on a series of options that could propel the treaty forward, either in the Sixth Committee, in another Committee of the General Assembly or in the Plenary, or adjacent to the U.N. itself. As our White Paper shows, models and precedents exist for all three options, and any or all could be employed with or without voting.
Some States hesitated to circumvent the consensus tradition in the Sixth Committee either by moving the draft articles out of the U.N. entirely or by voting on them. At the same time, for an increasing number of States, it was simply intolerable to fail once again to advance discussions of the draft articles, especially in a world increasingly wracked by violence and war.
In a thoughtful compromise, a cross-regional group of eight States – Colombia, Costa Rica, The Gambia, Mexico, the Republic of Korea, the United Kingdom, and the United States – proposed a “Zero Draft” resolution on Oct. 5, shortly after the start of the Sixth Committee’s session, and prior to consideration of the agenda item on Oct. 10. Led by Mexico and The Gambia, who acted as co-facilitators, these States encouraged others to join them in finding a way forward within the Sixth Committee, as Richard Dicker and Paloma van Groll noted in their recent Just Security article.
During the initial plenary debate, the draft text received considerable support, with 76 of 95 States speaking in favor either of the draft resolution or the immediate elaboration of a new treaty. Four States took neutral positions on the resolution, and 15 opposed either the draft resolution, the proposed new treaty, or both. After weeks of difficult negotiations, during which both the co-facilitators and opponents showed flexibility, a modified draft was adopted. The resolution provided for an inclusive, structured, and transparent process for discussion of the Draft Articles, qualities that were key benchmarks for the proponents.
At the same time, the proponents conceded several elements. The time period for discussion was extended from one to two years; the venue would no longer be an “Ad Hoc Committee” but the Sixth Committee itself meeting in “interactive format;” and, perhaps of greatest concern, rather than reporting out to the General Assembly itself, in which voting is de riguer, the two-year process will remain within the Sixth Committee, which will itself “take a decision” in 2024 regarding the draft articles, meaning that the question of voting (or not) may simply have been pushed off for two years.
A Breakdown of State Support
|Supports Zero Draft and/or CAH treaty (plenary)||76|
|Additional States co-sponsoring the Resolution||20||83.5% positive|
|Neutral States (plenary)||4||3.5% neutral|
|Opposed to zero draft or opposed to CAH treaty (plenary)||15||13% negative|
By the time the text was adopted by consensus, without a vote, the list of States acting as co-sponsors grew to 86, meaning that a total of 100 States either directly supported the new potential treaty (96 States who co-sponsored or spoke in favor during the plenary) or indicated their willingness to discuss it (4 States) in 2022. If one examines statements from prior plenaries, it is clear that State support is continuing to grow. This year, several small Pacific Island nations joined as co-sponsors, and new supporters came on board from Africa, Asia, and the Middle East. States that had previously been negative or neutral have joined the ranks of the treaty’s supporters, including Australia, Canada, Colombia, and Turkey. A handful of States – Cameroon, China, India, and the Russian Federation – have remained implacably opposed to the proposed treaty, but they are few in number.
As this project continues, supporters must continue to encourage the participation of a diverse group of States from all regions of the world. In our engagement with States this session, it became apparent that for many, particularly smaller States, the failure to engage was not necessarily a reflection of opposition or disinterest, but rather capacity. For example, States with smaller delegations in New York often don’t have a dedicated legal adviser focused on the Sixth Committee, and individuals within those missions often must cover multiple areas and priorities across the U.N. system.
So where is the project headed? At this point, discussion of substance is back on the table, with the opportunity to address possible gaps in the work of the ILC, such as the absence of a Martens clause, an inappropriately limiting definition of persecution, and the lack of a monitoring body for the treaty. It may also be useful to conduct a “gender audit” of the draft articles to ensure that the treaty advances a holistic, gender-competent approach, and to consider processes, such as a gender focal point, to ensure that these issues do not drop off during negotiation.
All the issues raised in the 2019 session of the Sixth Committee by States may resurface, including questions of conflicts of jurisdiction, immunities, protections for victims and witnesses, the dispute-resolution clause, the question of reservations (or not), and the complex provisions on mutual legal assistance contained in the annexes to the ILC draft articles. It will be vitally important to maintain momentum so that the ship, having set sail, can be guided safely into harbor. The active participation of civil society, which was a game changer this year, is critical in that regard. As we noted on Just Security after last year’s disappointing results, the exclusion of civil society in 2021 allowed decisionmakers to operate behind a veil of secrecy. It also prevented members of civil society from supporting and interacting with delegates of smaller States that may not have been following the negotiations closely, and it meant that the important voice of organizations representing the victims of crimes against humanity were absent from conversations about the proposed treaty.
In addition, the working methods of the Sixth Committee represent a persistent challenge that could once again stymie progress in 2024. As South Africa observed during the closing session of the Sixth Committee’s 2022 session, expressing the frustration of a group of States, “The existence of divergent views is being increasingly used as an excuse to prevent the Committee from moving forward” on ILC products. Overcoming this procedural impasse in 2024 will require the kind of skillful and committed leadership exhibited this year.