Editor’s note: This is part of our series on gender in the draft crimes against humanity treaty.
As work on the International Law Commission’s (ILC) Draft Articles for a proposed crimes against humanity treaty (CAH Draft Articles) progresses following debate and discussion at the Sixth Committee of the U.N. General Assembly in October, States now have the opportunity to submit comments by Dec. 1. This process follows a two-year timetable laid out in the Nov. 18, 2022, Resolution 77/249 and builds on previous discussions, including the first resumed session, which took place Apr. 10-14, 2023.
This article will briefly update readers on the October session and highlight what might be expected in 2024 and beyond.
Continued Robust and Substantive Engagement
Less was at stake during this October meeting, as it was neither exclusively dedicated to crimes against humanity, unlike the April resumed sessions, and no resolution needed to be negotiated given the continued applicability of Resolution 77/249. Moreover, as we reported out from the April session, there had been robust engagement during the first resumed session in April 2023, leading many observers to wonder whether many States would take this floor in October.
As it turned out, a record number of States intervened, with overwhelmingly positive results. Amadou Jaiteh, Legal Adviser of The Gambia to the United Nations, delivered a statement on behalf of 86 States, representing a “cross-regional group,” stating that “a convention on crimes against humanity would strengthen the prevention and punishment of such heinous crimes” and that “we continue to see a gap in the international treaty framework.” An additional 14 States were similarly positive, bringing the total to 110 positive interventions. Interestingly, some States that had been negative last year appeared either positive or neutral regarding the proposed treaty, and even those in opposition, such as the Russian Federation, delivered relatively temperate remarks, in contrast with some of the strident rhetoric heard in prior years. We carefully studied State interventions, including in comparison to their previous interventions, and coded the statements on a spectrum from very supportive of a treaty to opposes a treaty. Our tally of statements made during the October 2023 session is as follows:
| Levels of Support | Total | Percent | |
| Very Supportive of a CAH Treaty | 96 | 76.8% | |
| Supportive of a CAH Treaty, but Offered Some Critical Comments | 14 | 11.2% | |
| Neutral (Positive, but Not Supportive) | 7 | 5.6% | |
| Negative, but with a Constructive Tone | 2 | 1.6% | |
| Opposes a CAH Treaty | 6 | 4.8% | |
| Total Positive: 110 States; Neutral 7; Negative 8 | |||
Four States that had been positive in 2022 did not join The Gambia’s statement or speak in 2023 (Bahamas, Lesotho, Liberia and Tanzania), but if we assume, as seems likely, that they remain supportive, a total of 114 States have now expressed themselves as supportive of the treaty’s negotiation. In 2022, Resolution 77/249 was adopted with 86 co-sponsors, and a total of 100 States supporting the draft text in some measure. Thus, as substantive discussions have both explained and demystified the treaty, one continues to see a pattern of growing support.
Issues Addressed by States
While during the October general debate, many States chose to limit their comments to the process in the Sixth Committee itself, some substantive themes did emerge, which are summarized here.
Importance of the ICC’s Rome Statute. A certain number of States, in addition to expressing support for the treaty, raised the possibility of amendments to the ILC Draft Articles. These included European States like Italy, as well as States from other regions. Sierra Leone echoed the views of many States in noting that the new treaty must “fully respect the integrity of the Rome Statute of the International Criminal Court.” Some non-ICC States parties, however, contended that because the Rome Statute is not universal, it was not necessarily the case that it reflected customary international law. While this was decidedly a minority view, it was raised more than once.
“Gentle” expansion of the definition of crimes against humanity. Several States, including Sierra Leone, while underscoring the central importance of the Rome Statute to the new treaty, at the same time suggested that the list of prohibited acts should be “extended” to include “economic, land and mineral exploitation, and environmental degradation.” In addition, Sierra Leone evoked its proposal to amend the Rome Statute as well as the definition in the proposed crimes against humanity treaty to include the slave trade as a crime against humanity, in addition to slavery. Mexico suggested that “that there is room to strengthen the current draft articles in aspects such as the inclusion of slave trafficking, forced marriage or gender apartheid, and strengthen the gender perspective as well as the rights of victims and survivors.” A small group of African states also suggested that exploitation of resources be included.
Relationship between the crimes against humanity convention and the recently concluded MLA Treaty. Nine States (Liechtenstein, Belgium, Hungary, Netherlands, Portugal, Slovenia, South Africa, Italy, and France) suggested that the new treaty on crimes against humanity must be consistent with the treaty recently concluded for mutual legal assistance on core crimes in Ljubljana, Slovenia. That treaty will open for signature on Feb. 14, 2024, in The Hague, and will enter into force once it has three ratifications. The MLA Treaty adopted the Rome Statute definition of crimes against humanity verbatim, other than dropping the definition of gender in Article 7(3), as the ILC had also done. Fifty-three states participated in that negotiation, with another 15 present as observers. Given that only a small minority of U.N. Member States participated in the MLA treaty negotiations, it may be problematic to suggest that its adoption may constrain ongoing U.N. efforts to adopt a new specialized and comprehensive treaty on crimes against humanity; however, States wishing to support both initiatives will obviously be mindful of the overlap between the two.
Other Issues Raised. Singapore, Thailand, and Egypt raised concerns about the need to clarify the process for States exercising concurrent jurisdiction. Sierra Leone raised the need for a treaty monitoring body, an important potential preventative feature of the new convention. Multiple States raised their readiness to move to a diplomatic conference, and Austria reiterated its offer to host such a conference.
Roadmap to October 2024 and Beyond
Many issues raised in discussions this year will undoubtedly resurface in April 2024 when the Sixth Committee again meets in a six-day resumed session. 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. 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 maintaining the momentum created to date. It is also critical to ensure robust participation by States and civil society in all subsequent steps. Civil society has an important role to play here – through the provision of legal expertise to States on key open questions, including those outlined above – as well as advocacy to help a diverse range of States understand the importance of the project and treaty. Indeed, as Priya Pillai wrote recently on Opinio Juris, it was clear from the negotiation of the MLA Treaty in Ljubljana that civil society played a key role both in information dissemination and in advocacy. Finally, while State engagement was even stronger and more diverse in October than during the April 2023 resumed session, it is vital that more states participate in the upcoming April 2024 resumed session, including more African, Asian, Caribbean, and Pacific Island states. This is true of civil society as well.
The 2023 session in October was, as one would expect, roiled by world events. Rights of reply were exercised by India and Pakistan; Armenia and Azerbaijan; and by Israel and the State of Palestine. Each was a reminder of how important the prevention and punishment of crimes against humanity are in a world increasingly plagued by violence and human rights violations. It was once again Haiti that made the case for the new treaty, observing that “for its delegation, the struggle against crimes against humanity was equally a struggle for memory, for truth, and, for justice.”