A Step Closer Towards A Treaty On Crimes Against Humanity

On October 18, 2022, the Sixth Committee, the primary forum for the consideration of legal questions in the U.N. General Assembly, approved a resolution on “Crimes against humanity” without a vote. The resolution offers a space for a substantive exchange of views on all aspects of the draft articles on the prevention and punishment of crimes against humanity and a consideration of the International Law Commission’s recommendation for the convention on the basis of the draft articles. The resolution sets out the process for the Committee’s consideration of this topic and a clear timeline for the Committee’s consideration of the draft articles. The resolution further invites States to submit, by the end of 2023, written comments and observations on the draft articles and on the recommendation of the Commission. The Secretary-General is to prepare and circulate a compilation of those comments and observations well in advance of the session of the Sixth Committee to be held in 2024. The resolution follows the International Law Commission’s report and draft articles for a crimes against humanity treaty submitted to the Sixth Committee for consideration in 2019.

Crimes against humanity are defined in Article 7 of the Rome Statute to the International Criminal Court as crimes such as murder, extermination, enslavement, deportation or forcible transfer of population, torture, rape, sexual slavery, and many more, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Crimes against humanity do not need to be linked to an armed conflict and can also occur in peacetime.

The draft articles on prevention and punishment of crimes against humanity, which are to become the basis for the international treaty, incorporate, among others, important obligations to prevent crimes against humanity. In accordance with the draft Article 3 on general obligations, “1. Each State has the obligation not to engage in acts that constitute crimes against humanity. 2. Each State undertakes to prevent and to punish crimes against humanity, which are crimes under international law, whether or not committed in time of armed conflict. 3. No exceptional circumstances whatsoever, such as armed conflict, internal political instability or other public emergency, may be invoked as a justification of crimes against humanity.” Furthermore, under the draft Article 4 on the obligation of prevention, “each State undertakes to prevent crimes against humanity, in conformity with international law, through: (a) effective legislative, administrative, judicial or other appropriate preventive measures in any territory under its jurisdiction; and (b) cooperation with other States, relevant intergovernmental organizations, and, as appropriate, other organizations.”

Currently, such obligations in relation to crimes against humanity do not exist in international law, while there are international treaties focused on other international crimes, and in particular, crimes of genocide, torture, apartheid and forced disappearances.

As the Sixth Committee is to proceed with the next steps to make the draft articles on prevention and punishment of crimes against humanity a legally binding international law mechanism, the need for such a treaty cannot be stressed more. Considering the ever-growing number of horrific cases of atrocities around the world, more needs to be done to ensure that this trend is addressed as a matter of urgency. Despite the existing duty to prevent genocide, in Article I of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), States are reluctant to recognize atrocities as genocide, or even recognize the serious risk of genocide, to act to prevent. The unique nature of the crime of genocide, as defined in Article II of the Genocide Convention, requiring the specific intent to destroy a protected group, in whole or in part, enables States to get away without taking any actions as they claim that the threshold of the crime has not been met. This even after the International Court of Justice clarified that “a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed”, rather than States being sure that genocide is being perpetrated. The much broader responsibility to protect (R2P) incorporating a responsibility of States to protect their own populations from genocide, war crimes, ethnic cleansing and crimes against humanity and a collective responsibility to encourage and help each other uphold this commitment, is a political commitment, and as such, not legally binding.

The new treaty on crimes against humanity would add legal force to the prevention and punishment of crimes against humanity. Again, the treaty is more needed now than ever. If in doubt, one needs to think of the atrocities perpetrated in Myanmar, Xinjiang (China), Tigray (Ethiopia), Nigeria, Ukraine, Afghanistan – atrocities which meet the legal definitions of crimes against humanity and genocide.