In international law, there is a legal gap in relation to the prohibition of crimes against humanity. There is no standalone international treaty that exists codifying these crimes, unlike the crime of genocide (Genocide Convention) and war crimes (Geneva Conventions).
From 1-5 April, and on 11 April 2024, the UN General Assembly Sixth Committee – the legal committee of member states – discussed a potential new treaty on crimes against humanity. This was a crucial step in a two-year process before this committee, building upon years of work of the International Law Commission (ILC), which has deliberated on this topic since 2014, as well as other independent initiatives.
The ILC prepared a draft of the treaty in 2019, recommending it as the basis for UN treaty negotiations on crimes against humanity. The Sixth Committee now has the responsibility to make a decision on this crucial step, before the end of the year, and held deliberations on the content of this draft this month.
At present, the only multilateral treaty that does in fact address crimes against humanity – but only for the purposes of holding individuals criminally responsible before an international court – is the 1998 Rome Statute. This is a very specific treaty, negotiated to establish the International Criminal Court in the Hague that has jurisdiction to prosecute these crimes in specific instances, usually when a state is unable or unwilling to prosecute these offences itself, and based on whether a state has consented to the jurisdiction of this international court by ratifying this treaty. This is very different for instance from the Genocide Convention, which is a treaty that establishes the responsibility of states to undertake particular actions, and is not solely about the responsibility of an individual. In this vein, a treaty on crimes against humanity would be a step towards state responsibility for these mass atrocity crimes.
A new crimes against humanity treaty is important for several reasons.
The scope and understanding of what constitutes crimes against humanity has evolved over the years, through jurisprudence at international courts including for the Former Yugoslavia, Rwanda, Sierra Leone, and Cambodia, and at the International Criminal Court. The commission of crimes against humanity are unfortunately extensive, and are arguably the most prevalent of all international crimes. Crimes against humanity include crimes that are widespread or systematic, that are committed against any civilian population, in times of conflict or peacetime, with knowledge of the attack. Various acts could fall within this category, including murder, enforced disappearances, extermination, persecution, torture, rape and other crimes. The protection of civilians and the fact that these crimes are not just committed in armed conflict, but may be committed in times of peace, is a significant component of crimes against humanity.
It is not sufficient to only be able to hold some individuals to account from states that have ratified the Rome Statute establishing the International Criminal Court. State responsibility is also crucial, and is missing in the legal lexicon for crimes against humanity. This will also provide a legal pathway for redress, due to incorporation into domestic law, before national courts, as well as in international courts. It is also time to break the perceived hierarchy of atrocity crimes with a convention on crimes against humanity.
At the Sixth Committee this month, the ILC draft articles were subjected to a thorough examination, the second such exercise after the previous session in April 2023. The articles were divided per cluster, with states able to present their viewpoints on each cluster via statements, as well as by means of “mini-debates”.
The last session dealt specifically with the ILC’s recommendations to move towards treaty negotiations. This session was instructive, in the number of states that chose to speak, as well as the number that came out in support of next steps of a treaty negotiation. There was a sense of optimism in the room, and in the aftermath, speaking with many of the legal advisors present, a real sense of momentum building.
However, there were also fears expressed, many unfounded, which need to be addressed.
A major misconception is that because the Rome Statute contains a provision on crimes against humanity (Article 7), this is sufficient, and there is no need to elaborate a treaty on this matter. Yet, as the ILC has elaborated in great detail in the commentary to its draft, there are multiple obligations that include that of prevention of such crimes, of international and state to state cooperation in legal assistance, extradition, prosecution, rights of victims, among other areas encapsulated in the draft, all of which are essential to address the commission of crimes against humanity. These are not within the purview of the Rome Statute, which is for a specific purpose – the prosecution of individuals for the commission of crimes at a specific international court.
The other wholly unfounded fear seems to be that the elaboration of such a treaty means a state agreeing to the Rome Statute through the back door. This is not correct, and is a misunderstanding of the essentials of treaty law, as well as of the Rome Statute. Agreeing to a treaty on crimes against humanity for those states that are not a party to the Rome Statute does not mean that they now have to adhere to the Rome Statute. Adherence to treaty provisions is still dependent on the state ratifying the treaty. The idea of the draft borrowing the definition of crimes against humanity from the Rome Statute is that it is a starting point for multilateral negotiations, which should finesse the definition, based on evolving international law developments in the past years.
It is beyond time to codify crimes against humanity in an international treaty. Since the conceptualisation of crimes against humanity at the Nuremberg and Tokyo tribunals in the aftermath of the Second World War, the lack of progress in the intervening years and the gap in the legal architecture needs to be remedied. It will be inexplicable to future generations if this opportunity is missed.
*Dr Priya Pillai is an international lawyer and heads the Asia Justice Coalition. She attended the UNGA Sixth Committee session in April 2024.
