Contribution – Towards a New Treaty on Crimes Against Humanity…
Is it time for a new global treaty on crimes against humanity? Ever since the Crimes Against Humanity Initiative published a Proposed Convention on the Prevention and Punishment of Crimes Against Humanity in 2010, there has been a robust global conversation about the possibility of negotiating and adopting such a treaty, along with the lines of the Genocide and Geneva Conventions adopted after World War II following the Nuremberg Trials.
Attention increased particularly after the International Law Commission (ILC) added “crimes against humanity” to its long-term program of work in 2013. Support for the idea grew among States over time, as well as with NGOs, and the ILC received a record number of comments (approximately 750), including from 39 States, on its initial set of draft articles authored in 2017.
Next month comes to another important milestone in the consideration of this important new global treaty when the United Nations General Assembly’s Sixth Committee, which considers legal issues, resumes discussion of the articles.
Development of the ILC Draft
During the early phases of the project, questions arose regarding the need for a new treaty, the relationship any new treaty would have to the International Criminal Court (ICC), and what elements any new proposed convention should contain. During the work of the Crimes Against Humanity Initiative, and later during the work of the ILC, many of these questions were addressed either at conferences or special expert meetings (some of which are memorialized in Forging a Convention for Crimes Against Humanity), in scholarly writings (including symposia in the Journal of International Criminal Justice and the African Journal of International Criminal Justice), or in the excellent reports of Special Rapporteur for Crimes Against Humanity Sean Murphy. These questions were also featured in debates at the ILC.
Eventually, most participants concluded that, although the ICC Statute considerably advanced the normative work of defining crimes against humanity, it did not fill the legal gap in regard to their prevention and punishment. Although a limited number of crimes against humanity are codified in international treaties — such as apartheid, enforced disappearance, and torture — most are not. The crimes not covered by any existing treaty include mass murder or campaigns of extermination undertaken without genocidal intent, or against political, social, or other groups not covered by the genocide convention during peacetime; crimes of sexual and gender-based violence; the crime of persecution; and deportation or forced displacement outside of armed conflict. (Because crimes against humanity can occur in peacetime, prior to the onset of armed conflict, treaties and conventions on the laws of war do not adequately address them.)
In 2019, the ILC revised its draft, transmitting a final set of Draft Articles on Prevention and Punishment of Crimes Against Humanity, with Commentaries, to the United Nations General Assembly. Paragraph 42 of the ILC’s August 2019 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.” Given the historic role of the ILC in the codification of international law, including its codification of the Nuremberg Principles and its 1994 Draft Statute for the International Criminal Court, it was a natural forum for work on a new global treaty on crimes against humanity as it had both the expertise and jurists from all regions could and did contribute to the project during the several years of its elaboration.
Discussions in the Sixth Committee
Shortly thereafter, in October and November 2019, the General Assembly’s Sixth Committee, which addresses legal matters, debated the ILC’s 2019 Draft Articles, with more than 80 States and entities commenting or joining a statement on the revised text, and Austria offering to host a diplomatic conference for the new treaty. Although this was a positive development, the Sixth Committee did not take up the ILC’s invitation to proceed directly to the negotiation of a new convention. This is because many States had not yet had time to really study the ILC’s work, and the Sixth Committee works on the basis of consensus. Instead, the resolution adopted essentially forwarded the ILC’s work to the General Assembly, which “took note” of it in Resolution 74/187 and determined to include the topic in the provisional agenda of its next session. Disappointed in the outcome, 42 States joined a statement from Austria regretting “that the Sixth Committee was not able to agree on an ambitious and structured approach for . . . future deliberations on the recommendation of the ILC to elaborate a convention on the basis of its draft articles.”
Having thus postponed concrete action on the Draft Articles in 2019, the Sixth Committee again considered the topic in October 2020. In large part due to the COVID-19 pandemic’s limitations on working methods at the U.N., the Sixth Committee opted for a technical rollover, adopting a draft resolution on Nov. 12, 2020, for the General Assembly’s consideration that again “took note” of the Draft Articles and decided “to . . . continue to examine the recommendation of the Commission” with a view to taking it up the following year. (The U.N. General Assembly later adopted this text on Dec. 15, 2020.)
Again disappointed by the outcome, Mexico delivered a statement on behalf of itself and 13 additional countries warning that this resolution “run[s] the risk – as it has been the case with other ILC products in the past – of getting caught in a cycle of consideration and postponement of the articles without concrete action, which in our view may undermine the relationship between the general assembly and the ILC.” The statement continued: “we trust, however, that we will be able to revisit this agenda item [in 2021] with a constructive and flexible approach in order to break this inertia and to take collective decisions that would allow us to move forward into the definition of a process to consider the recommendations of the ILC, under terms that will be agreeable to all delegations.”
This is where things stand today. On October 8, 2021, the Sixth Committee will again take up the ILC 2019 Draft Articles. The pandemic has made progress over the past year difficult, but not impossible. In June 2021, the U.K. government, joined by the governments of Kenya and Sierra Leone, hosted an important discussion on the commission’s work to prepare for discussions in October. There have also been discussions among experts, civil society organizations, and States regarding the best way forward.
Relationship to the MLA Initiative
During the work on crimes against humanity that began in 2008 at Washington University of St. Louis (where the Crimes Against Humanity Initiative is based), a question was raised about the utility of a new multilateral assistance treaty on cooperation and mutual legal assistance (MLA) for all core crimes, a proposal first floated by the Dutch. Two options were debated at that time, either that such provisions could be included in a new protocol to the ICC Statute but open to all States, or as a freestanding convention. Ultimately, a group of States took up this possibility independently, outside the U.N. system, and have now elaborated a text. Like the ILC crimes against humanity draft, and like the Proposed Convention emanating from the Crimes Against Humanity Initiative, the MLA Initiative, as it is now called, drew many of its provisions from U.N. treaties on transnational crime with strong interstate cooperation features, in particular the U.N. Convention against Transnational Organized Crime and the U.N. Convention Against Corruption. The hope had been to conclude that project in 2020; however, debates regarding the scope of that project as well as difficulties finalizing consultations due to the pandemic have caused the MLA Initiative to postpone continued consultations until November 2021.
Conclusion: Towards a New Treaty on Crimes Against Humanity?
As the ILC and members of the MLA Initiative have made clear, the two projects, while occurring in different fora and having different objectives, are compatible. Certainly, it will be important for whichever States participate in the MLA Initiative process to coordinate the interstate cooperation features of their text with the development of any new U.N. treaty on crimes against humanity, and most observers have agreed that it is important for both projects to coordinate their work with the existing provisions of the Rome Statute for the ICC.
The development of the ILC text on crimes against humanity and possible negotiation of a complementary protocol on interstate MLA raise the exciting possibility of enhanced cooperation between States for preventing the core crimes of the Rome Statute and prosecuting them at the national and international levels, and for interstate cooperation on both of those elements. Although many European states already have significant levels of interstate cooperation in legal matters through Eurojust and the European Arrest Warrant, other States may have fewer options.
Perhaps more importantly, a new treaty on crimes against humanity could dispel the notion that it is only genocides that deserve international sanction and attention and shift the normative conversation away from the crime of genocide – which is very difficult to prosecute and prove – to crimes against humanity. A case like The Gambia v. Myanmar would thus potentially turn not on whether officials in Myanmar could be shown by clear and convincing evidence to have had “genocidal” intent but on the suffering and displacement of more than 900,000 Rohingyas brutalized by the commission of atrocity crimes, particularly since August 2017. Given the enhanced role of national systems in the enforcement of international criminal law in increasing numbers of cases brought under universal jurisdiction and through transitional justice mechanisms, this would be an extraordinary step forward in the fight against impunity. It would also be a powerful symbolic completion of the legacy of the Nuremberg trials, where crimes against humanity first materialized in positive international law as Article 6(c) of the International Military Tribunal’s Charter.