Draft Convention on Crimes Against Humanity: A Window of Opportunity

The Sixth Committee of the United Nations adopted resolution A/C.6/77/L.4 on the Draft Convention on Prevention and Punishment of Crimes against Humanity on 18 November 2022. This draft convention was elaborated upon and adopted by the International Law Commission, and submitted by the ILC to the General Assembly for further consideration and action in 2019. 

The resolution at the Sixth Committee was co-sponsored by eighty-six states, including Bangladesh, South Korea, New Zealand, Fiji, Mauritius, Vanuatu, Djibouti, Samoa, Japan and Comoros. The Sixth Committee will now consider the draft CAH convention on issues of substance over two sessions, one in April 2023 and the second in April 2024. Para. 4 of the resolution elaborates on its decision

“…to exchange substantive views, including in an interactive format, on all aspects of the draft articles, and to consider further the recommendation of the Commission contained in paragraph 42 of its report on the work of its seventy-first session for the elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries on the basis of the draft articles…” 

The detailed report of the ILC on its 71^st session and its recommendations, specified in the resolution above, is found here.

There is unfortunately no dearth of atrocity crimes being committed, with devastating consequences for civilian populations across the world, in Myanmar, Ukraine, Syria, Ethiopia, to name a few. In particular, many of these situations are in keeping with the definition of crimes against humanity – acts committed as part of attacks against a civilian population that are widespread or systematic, part of a policy and committed with knowledge of the policy. The crimes within this rubric would include murder, deportation, enforced disappearances, torture, persecution, sexual offences, apartheid, among others.   

Legal prohibitions against the commission of international crimes are contained in specified treaties such as the Genocide Convention, the Convention Against Torture, the Geneva Conventions. However, while crimes against humanity are included in the Rome Statute, they are not elaborated in a stand-alone legal treaty. While Article 7 of the Rome Statute defines crimes against humanity and elaborates on prohibited crimes, the scope of this treaty is limited to individual criminal responsibility. Further, there are fewer signatories to this treaty, and in particular, from the Asia-Pacific region. There is a need for states to recognize that there are obligations under international law in regard to prevention, prohibition and punishment of crimes against humanity, that would be captured in the framework of a treaty. National courts have in cases lamented the lack of a legal framework or language to capture this type of atrocity, and a treaty such as this would provide the legal certainty needed.     

There is now a specified and time bound window of opportunity to work on the next steps towards a treaty on Crimes Against Humanity. Time is of the essence, and it is important to keep the momentum going.