Diplomats at the U.N. General Assembly’s legal committee — its Sixth Committee — will be engaged in an intense battle in the coming weeks that encapsulates the sharp divide between rule-of-law-supporting governments and those determined to repress rights. The fight will take shape over the question of whether to deepen protections for civilian populations at risk of crimes against humanity by advancing draft articles for a proposed treaty that would achieve that goal. To prevail, supportive states will have to step up their game. Given developments yesterday evening, they are off to a strong start.
Crimes against humanity are acts of murder, rape, torture, apartheid, deportations, persecution, and other offenses committed as part of a widespread or systematic attack against a civilian population based on a government or organizational policy. A treaty would define these egregious, but not well-understood, atrocities and aim to prevent and punish those responsible.
While crimes against humanity are enumerated and prohibited in Article 7 of the Rome Statute of the International Criminal Court (ICC), there is no comprehensive international treaty that specifically outlaws these grave offenses and requires cooperation among States to suppress them, unlike other atrocity crimes such as genocide and war crimes. This constitutes a major gap in international law. From a legal perspective, it is crucial to remedy the shortcoming. What’s more, for civilians at risk, moving at least to initial substantive discussions on such a treaty is a human rights imperative.
The outstanding question at the U.N. is whether the world’s rule-of-law governments will succeed in beginning such initial discussions on a set of draft provisions on these egregious crimes. Some of these U.N. member States, much to their credit, have taken a new, positive tack. Eight governments, in a cross-regional group led by Mexico and including Bangladesh, Costa Rica, Colombia, Gambia, the United States, the United Kingdom, and South Korea introduced a resolution last night calling for convening an ad hoc committee in 2023 to discuss the substance of the draft articles and report to the whole of the U.N. General Assembly in Fall 2023 to decide next steps.
Diverse Group and Potential Heightened Scrutiny
This is, obviously, a diverse group with varying degrees of will and/or ability to apply their criminal law to their own nationals for alleged international crimes, but their initial co-sponsorship is noteworthy. The involvement in the new resolution of the United States and the U.K. — among the permanent five members of the Security Council and more recent recruits to the activist approach previously championed by smaller states — will, rightfully, heighten scrutiny over their commitment to the equal application of the law when their own citizens are the alleged perpetrators. This bold move is a marked departure from previous Sixth Committee working methods on the issue of the proposed crimes against humanity treaty, and flows from the deep frustrations of the early champions – Mexico, Portugal and Austria — with the lack of progress over three successive years.
The draft treaty provisions proposed for negotiation were formulated by the U.N.’s International Law Commission, an expert body mandated to develop and enact international law. When, following extensive negotiations, the finalized articles are eventually agreed to, they would become the text of a new international treaty. But like so many issues on the international stage, progress has been blocked by the entrenched opposition of a small handful of governments, led by Russia and China, that have displayed no interest in rights except to repress them.
The contention between treaty opponents and supporters will only be resolved by breaking with the Sixth Committee’s traditional insistence on consensus. New working methods, as demonstrated by the introduction of yesterday’s resolution and including a vote rather than relying on consensus, will be essential to move these draft articles to the next phase.
The International Law Commission completed the Draft Articles on Prevention and Punishment of Crimes Against Humanity in 2019 to address this gap in international law. However, consideration of the draft articles has stalled in the Sixth Committee for the last three years due to obstruction by a few States. Yet crimes against humanity have proliferated, devastating communities around the world. State and non-state actors, including armed insurgent groups, have victimized civilian populations in every region of the globe, with vehemence in Myanmar, Syria, China, Israel and the Occupied Palestinian Territories, and the Central African Republic, to name just a few. In just the year since the Sixth Committee failed to move forward on the draft articles at the 76th U.N. General Assembly in 2021, crimes against humanity have been widely inflicted on civilians in Ethiopia and in Ukraine.
Incorporating Elements Into National Laws
A treaty will make a difference by mandating State parties to incorporate the definition and prohibition of these offenses into their national laws. The treaty would provide national authorities with more tools to investigate and conduct impartial proceedings against those accused in their national courts. This will be crucial for governments whose nationals are credibly believed to have perpetrated these offenses at home or abroad. Failure to pursue such cases will bring stigma on a government breaching its obligations of State responsibility and undercut claims of adherence to, let alone leadership on behalf of, the rule of law.
Moreover, if such national proceedings in the territorial state are not possible or do not take place, then, according to the draft provisions, there would be an obligation to extradite suspects to a jurisdiction that could do so. While the Rome Statute provides for cooperation between the ICC and its 123 State parties, it does not provide for cooperation among States on these crimes.
The lack of a specific treaty also creates misunderstanding as to the gravity of crimes against humanity in comparison to genocide. A treaty would focus attention on these egregious offenses. While genocide and the effort “to eliminate a population in whole or in part on the basis of its nationality, ethnicity, race, or religion” has been considered “the crime of crimes,” the gravity of crimes against humanity has all too often been misunderstood by the public and undervalued in governmental response due, in part, to the lack of a specific treaty to cover these abuses.
Over the last three years, the stalling tactics initiated by Russia and China have been facilitated by the Sixth Committee’s practice of taking decisions by consensus, though rigid adherence to consensus is not rooted in any legal or procedural requirement. Consensus decision-making has evolved as an almost sacrosanct tradition over the last 20 years at the committee, but this commitment has led to paralysis, leading to the increasing view that the committee is ineffective, if not nearly irrelevant. Additionally, the lack of committee action undermines the value of the International Law Commission by preventing headway on the products of its important deliberations.
An unyielding adherence to consensus is also linked to States wielding an effective veto over the committee’s mandate. This has been used to thwart “unwanted” ILC draft items proceeding to negotiations. While the committee has in fact voted in the past, many States have been reluctant, for various reasons, to break with consensus in this instance. This reticence has been reinforced by deliberate disinformation about moving to negotiations. Some contend that the drive is only another neo-colonialist ploy to go after those in the Global South or just another front in the West/NATO’s effort to politically isolate Moscow and that other states have no interests here.
What’s at Stake: Protection of Civilians
But what’s actually at stake here is providing additional protection for civilian populations at risk from egregious crimes. To press these draft articles forward requires the broadest cross-regional group of States and, eventually, the largest number of ratifications, including from States that normally hold themselves aloof from treaties requiring accountability. Countries whose civilian populations have been victims of these grave crimes and whose national judicial systems have taken steps toward impartial and fair accountability such as Argentina, Peru, and Sierra Leone, have particular standing. Their active engagement will bring a deep credibility to the exchange of views and subsequent negotiations.
The longtime practice of consensus-seeking along with disinformation has similarly obscured the effect of this particular vote: it will be entirely procedural in its impact. An affirmative vote will simply open the door to discussions; no U.N. member State will be bound to participate in any negotiations, nor will a U.N. member later be obligated by any negotiated treaty that it does not join.
When the Sixth Committee holds its plenary debate on this item on Oct. 10, governments, including those noted above in which domestic courts have responded fairly on behalf of victimized civilian populations, need to take the floor in strong support of the resolution that has been introduced to move the draft articles ahead, and supportive states will need to co-sponsor the text. It will also be crucial for as many supportive States as possible to participate in the informal discussions that follow the main open debate, to make their views known. They will need to emphasize to others the importance of departing from consensus given the urgency of this file and, if necessary, voting affirmatively on the resolution in order to advance protections for their populations.
The stakes are extremely high: to extend safeguards to civilians at risk at a moment when respect for rights is being assaulted on many levels. The delegations meeting at U.N. headquarters need to send a crucial signal at this challenging moment that protections for civilians are deepening — not withering.