States considering the International Law Commission’s draft articles for a proposed treaty on crimes against humanity sought to narrow their differences in a weeklong session last month that began an 18-month process of debate and discussion towards the goal — at long last — of negotiations to conclude a treaty on the prevention and punishment of crimes against humanity.
A diverse cross-section of States engaged substantively on a number of issues, and it was clear by the conclusion of the session that positive momentum continues to build. As State representatives and civil-society organizations meet in Ljubljana, Slovenia, to discuss a parallel process, negotiations for a multi-lateral mutual legal assistance treaty, we hope that it serves as a springboard to further support the momentum achieved on crimes against humanity.
Organization of the Work
As readers of Just Security will recall, on Nov. 18, 2022, the United Nations General Assembly’s Sixth Committee (the legal committee) adopted Resolution 77/249 on the International Law Commission’s (ILC’s) Draft Articles on crimes against humanity (CAH Draft Articles), creating a two-year process for their debate and discussion within the committee. The first session of that process took place April 10-14.
Resolution 77/249 set the purpose of these sessions to be the exchange of “substantive views” by member States on all aspects of the draft articles and called for these interactions to proceed in an “interactive format.” The Sixth Committee’s Bureau, led by Mozambique, developed a program of work that organized the meetings into five substantive clusters: (1) introductory provisions; (2) definition and general obligations; (3) national measures; (4) international measures; and (5) safeguards. The program eliminated any general debate, and imported from the ILC its practice of “mini-debate” as a way to encourage state-to-state interaction on the points raised and positions taken. The three co-facilitators, Anna Pála Sverrisdóttir (Iceland), Sarah Zahirah Ruhama (Malaysia), and Edgar Daniel Leal Matta (Guatemala) presided and summarized the meeting at its close.
Robust Engagement by Delegates
Prior to the session, chaired by Pedro Comissário Afonso of Mozambique, some delegates expressed concern that States would not find enough to discuss for the full five days, given the novelty of the process. That concern was swiftly allayed as discussion of Cluster 1 (preamble and scope of the Draft Articles) extended through the first day until mid-morning of day 2. The week-long debate proved interesting and lively, and a briefing from the Secretariat on the ILC’s recommendations provided delegates with background information and context to help frame the discussions. States were well prepared to attend, because many had participated in a workshop, hosted by Germany and France, on the eve of the resumed sixth committee session.
Unsurprisingly, most interventions were positive, given the strong showing of support for Resolution 77/249 in November 2022, with 86 co-sponsor, and a total of 100 States supporting the draft text in some measure. Not all interventions were complimentary of the work or the meeting’s organization. As the week progressed, however, and several lively mini-debates occurred, occasionally veering into humor as well as legal text and philosophy, the tension in Conference Room 4 was reduced, and the meeting concluded on a positive note.
Nature of Crimes Against Humanity: Most, but not all, delegations were prepared to recognize that the prohibition of crimes against humanity rises to the level of a jus cogens norm, meaning that States consider it a fundamental rule of international law that must not be violated. All delegations agreed on the importance of preventing such crimes, and the ILC’s text was generally praised in this regard, although many States thought either more comprehensive provisions were needed or more clarification was required. Sierra Leone, for example, mentioned the need for capacity-building measures. Other delegations suggested that the principle of non-interference should receive more emphasis.
Definition and Relationship to the Rome Statute: The explicit reference to the Rome Statute in the draft preamble received a mixed reaction. While some States welcomed the reference, others argued that this was either an unnecessary provision, or, more fundamentally, that the Rome Statute is a “strait jacket” that does not cover certain activities that might affect future generations, such as deforestation or other environmental crimes. Most delegations agreed that the definition should build upon Article 7 of the Rome Statute but seemed willing to consider the possibility of certain departures, including, for example, adding groups to those specifically protected under the crime of persecution, including indigenous groups and the disabled, or modifying the definition of enforced disappearances. India proposed consideration of terrorism, and Sierra Leone the crime of slavery and the slave trade. The Commission’s inclusion of a “without prejudice clause,” in Article 2(3) was generally viewed positively.
Gender Issues: Most States approved of the Commission’s decision to delete the definition of gender (a binary and regressive definition that does not accord with understandings of gender today) in Article 7(3) of the Rome Statute from the proposed treaty text, although some spoke in opposition to that change. Some States also proposed changes to language and substantive terms that could make the treaty provisions more gender-sensitive and protective of victims of sexual and gender-based violence. For example, both Canada and the United Kingdom proposed enumerating forced marriage in Article 2 of the ILC draft and raised the idea of amending the limited definition of forced pregnancy to bring it in line with judicial rulings and other developments. Canada also suggested that the fair treatment of the offender, set out in Article 11 of the draft, should also include provisions relating to fair treatment of survivors and witnesses. Belgium expressed concern about the marginalization of LGBTQIA+ individuals.
National Measures: In terms of Cluster 3 (national measures, Articles 6 through 10), the debate was wide-ranging and detailed. Draft Article 6 (criminalization by states) is a complex 8-paragraph text that received a great deal of attention. Included in the ILC’s provisions are not only a duty to enact implementing legislation, but to abolish any applicable statutes of limitations, provide appropriate penalties, eliminate superior orders and official position as defenses, and create modes of liability appropriate to international crimes. The United Kingdom suggested that conspiracy and incitement might be added to this provision; other states focused on penalties, and several raised questions about immunities. Participants also debated whether the provisions on establishment of national jurisdiction in Draft Article 7 should indicate which states have priority in particular cases, as well as with respect to the duty to extradite or prosecute in Draft Article 10.
Mutual Legal Assistance and Enforcement: The meetings on international measures (Cluster 4) generated the least discussion, perhaps due to its highly technical nature. Some States observed that the treaty should be succinct, like the Genocide Convention so that it would be easily comprehensible. Most seemed to feel that the text was “solid” and offered a good basis for negotiation. The U.K. suggested that survivors should be at the heart of the evidence-gathering process. The U.K. and Sierra Leone stated that a monitoring mechanism could be helpful in promoting enforcement of the treaty.
The legality of the death penalty spurred debate in the context of requests for the extradition of potential suspects to States that permit the application of the death penalty. Singapore defended its use and legality under international law; others (such as the European Union) objected. In terms of dispute settlement, while some states thought the “opt out” provision included in Draft Article 15(3) was positive, others, such as Germany, suggested that ICJ jurisdiction should be compulsory.
Safeguards: In terms of safeguards (Cluster 5), States were generally positive about the Commission’s proposals. The EU suggested that Draft Article 12 (victims, witnesses, and others) could be more ambitious by including additional provisions on children’s rights and gender. Colombia suggested additional provisions could be included in Draft Article 11 (fair treatment of the offender), and several States commented on the protections of Draft Article 5 against returning individuals to territories where they might face threats to life or liberty (non-refoulement). Most States supported the draft article, but some objected, including Jordan, which thought the language was overbroad and should be redrafted, and Iran, which felt this was a human rights protection not applicable to crimes against humanity. Reparations was another topic that was extensively addressed.
In the Sixth Committee: This October, the Sixth Committee will hold a general debate on the topic during its normal session, and States will have the opportunity to submit written comments by December 31, 2023. Next April, the Sixth Committee will once again meet in a resumed session for six days. Finally, in October 2024, the Sixth Committee will take a decision on the ILC’s recommendation that a treaty be elaborated on the basis of the Draft Articles. While the October 2022 Resolution was adopted by consensus, it remains to be seen whether consensus will be achieved in 2024, or whether States wishing to move forward will need to proceed to a vote.
Achieving a positive result next October will require that the momentum created by the April 2023 session be maintained. It is also critical to ensure robust participation by States and civil society in all subsequent steps. Civil society will be important in providing legal expertise to States on key open questions, including those outlined above, as well as for advocacy to help a diverse range of States understand the importance of the treaty. And while State engagement was strong and diverse at the recent resumed session, it is vital that more States that may not have the capacity of larger States participate in next April’s resumed session, including more African, Asian, Caribbean, and Pacific-Island States, as well as more representatives of civil society.
Relationship to the Mutual Legal Assistance Treaty: Related upcoming negotiations on an initiative for an MLA treaty on genocide, crimes against humanity, war crimes, and other international crimes, scheduled for May 15-26, 2023, in Ljubljana, Slovenia, offer an opportunity for States to reaffirm their commitment to the core values and provisions of the ILC Draft Articles on Crimes Against Humanity. Yet, as Amnesty International noted in its recent paper setting out recommendations for the conference, there is a risk that the provisions incorporated into the treaty will not take into consideration the fuller conversation now occurring at the United Nations particularly regarding the scope and definition of crimes against humanity. Furthermore, at 87 articles, a treaty that was originally focused on the technicalities of mutual legal assistance has become an extremely long and complex instrument; one option is for States to get behind a version of the treaty proposed by Switzerland in 2020: a “pure MLA Convention focused on the cooperation between States.” At the very least, States and civil society participating in the Ljubljana conference should ensure that their work in Ljubljana bolsters and complements the broader ongoing work at the United Nations on crimes against humanity.
At the end of the April session on the ILC Draft Articles in New York, Amadou Jaiteh, Gambia’s legal adviser (one of Resolution 77/249’s two co-facilitators with his Mexico counterpart, Pablo Arrocha) said he had found “renewed hope” in the process. He cited constructive engagement throughout the weeklong session, and importantly, observed that the “differences are getting narrower and narrower.” Let us hope that continues over the next 18 months. As atrocities continue in every part of the globe, not only in war but also in peacetime, the charge of crimes against humanity is often the only one that fully captures the harm to victims, whether it be from murder, deportation, rape and sexual violence, disappearances, torture, and other inhumane acts. The absence of a stand-alone crimes against humanity treaty is thus a significant gap in the international legal architecture that needs to be addressed as quickly as possible.