Moving Ahead to a Crimes Against Humanity Treaty

[Richard Dicker is Senior Legal Adviser for Advocacy at Human Rights Watch and an Adjunct Professor at Columbia Law School]

It has taken two years of consideration, discussion and debate, but the agreement necessary to draft an international treaty to prevent and punish Crimes Against Humanity has finally been reached. The UN General Assembly’s Sixth Committee, which is mandated to encourage “the progressive development of international law and its codification,” took a momentous decision on November 22 in the final minutes of its annual session. 

Late that afternoon, after hours of uncertainty over the substantive outcome, the Committee adopted, by consensus, a resolution setting dates to start and complete negotiations. The treaty will fill a lacuna in international law that has contributed to egregious acts of murder, torture, enforced disappearance, rape, and persecution, among others, inflicted on civilian populations in a widespread or systematic manner resulting from a government or organization policy. 

Today, these offenses are being committed wantonly against civilians in   numerous countries.  But unlike for most other egregious international crimes — genocide, war crimes, torture, enforced disappearances, apartheid — there has been no treaty specifically enumerating the obligations of states to prevent and punish crimes against humanity along with their role cooperating with other treaty member states to that end. The gap has reinforced a sense of impunity for perpetrators. The Sixth Committee’s action, beginning what will be several years of a contentious treaty-making process, is of landmark proportions.  

Crimes against humanity were included in the Charter of the Nuremberg International Military Tribunal and applied in close conjunction with the Tribunal’s other two offenses (crimes against peace and war crimes) against the leaders of the Nazi regime in Germany. The same crimes were part of the Nuremberg Principles endorsed by the UN General Assembly in 1946. While a few states incorporated crimes against humanity into national legislation, no further effort was made to codify these acts in a separate international convention. The step agreed to by the Sixth Committee was truly eighty years in the making.

Treaty negotiators will build — and very likely expand — directly on the work of the drafters of the Rome Statute of the International Criminal Court. Significantly, in the Rome Statute the drafters included a definition of crimes against humanity in the jurisdiction of the Court along with “vertical” obligations ICC member states owe the Court to cooperate. 

The Sixth Committee’s resolution (adopted on December 4 by the General Assembly as Resolution 79/122) coming at a time when the rule of law generally, and institutions of accountability, are under intense assault, highlights a crucial underlying reality: the large number of states of all regions that are committed to strengthening international law protections for civilians at risk. In the face of the recent horrific criminal offenses ravaging civilians in Ukraine, Gaza, southern Israel, Ethiopia, Sudan, and Myanmar, this resolution signals that rather than shrinking, criminal law for grave crimes is extending its reach. 

Consensus or a Vote

The adoption of the resolution by consensus came as a surprise to many of the participating delegates and civil society observers in the UN’s Trusteeship Council that Friday afternoon. Given the intense and relentless opposition by the Russian Federation, many expected that a vote would be needed to adopt the resolution. The key factor explaining the last-minute reversion to consensus was the weight of 98 states’ co-sponsoring a draft resolution submitted by Mexico and The Gambia in early September. Ultimately, the number and the broad regional diversity of this supportive bloc combined with its own likely desire not to call for a vote, compelled the Russian Federation to concede. It did so only after several rounds of dizzying, clever, and yet ultimately unsuccessful, maneuvers.  

Exactly a week before the final session, on Friday, November 15, after reaching an agreement with another set of states — the A6 group (Egypt, Algeria, Uganda, Nigeria, Cameroon, and Eritrea) the draft resolution’s co-facilitators (Mexico and The Gambia) along with others — focused their efforts on obtaining agreement with the Russian Federation. Palestine, which had a very active and influential role in the process on the Draft Articles, made several efforts to obtain a compromise. The Russians, however, rebuffed these entreaties.   

The Chair of the Sixth Committee, the deputy permanent representative of Portugal to the United Nations, had also circulated a compromise text to the Russians and a few other key delegations. This proposal was significantly weaker than the original Mexico-Gambia text, yet the Russian team rejected it twice. As a result of Russia’s consistent rebuffs, the chair sent a note to all delegations that the effort to achieve a consensus-supported compromise had failed.  

So delegates arriving in the Trusteeship Council on November 22 for the Committee’s final, and sure-to-be climactic meeting, fully expected to vote on a text. As the first vote the Sixth Committee would have taken on a substantive matter in 20 years, this would have been a stark departure from the Committee’s traditional practice of taking decisions by consensus. 

Yet, as the session agenda turned to Item 80, the Draft Articles on Crimes Against Humanity, the Russian Federation suddenly announced that it was prepared, despite all its prior rejections, to see if agreement was still possible. While perhaps signaling a significant concession to the nearly 100 co-sponsors of the Mexico-Gambia text, Russia’s move also exacerbated tensions among those same states over the fraught question of the Committee approving a resolution by voting as distinct from a consensus adoption.

The chair, while not formally suspending the meeting at Russia’s announcement, initiated a break that allowed time for consultations. This lapse stretched through the two-hour lunch period between 1 and 3 p.m. During this time, numerous meetings — large and small — took place. The large group of co-sponsoring states, after free-ranging discussion but principled leadership in place, remained committed to its initial text. The “break” continued well beyond 3 p.m. as a very small group of delegates worked to agree on textual changes. Finally, at 4:30 p.m., the Russian Federation took the floor to withdraw its amendments, which would have blocked the path to actual negotiations. The Russian Federation went on to dissociate itself from the resolution but did not break the consensus. Through its sudden last minute about face, Russia managed to gain a few concessions. These included a year’s delay in convening the Diplomatic Conference as well as language the Russians hope to use to diminish, if not degrade, the primacy of the Draft Articles as the fundamental text for negotiators’ use at the Diplomatic Conference.  

Recognizing the significance of taking the decision to convene negotiations, along with setting fixed dates for the Diplomatic Conference, after the chair banged his gavel signaling the resolution’s adoption, delegates broke into loud and sustained applause.  

What’s To Come

General Assembly Resolution 79/122 mandates a Conference of Plenipotentiaries to meet for a three-week negotiating session in 2028 followed by another three-week session in 2029. The intended outcome is opening an international convention to prevent and punish crimes against humanity for state signature and ratification.

While that is more than five years away, the resolution mandates a Preparatory Committee of the Diplomatic Conference to begin work in January 2026. The committee will meet twice that year. The January session will facilitate the formulation by states of proposals for amendments to the Draft Articles. Following the terms of the resolution, finalized proposals are to be submitted to the UN Secretariat by April 30, 2026. 

The proposed amendments, the written submissions made by states to the UN Secretariat in December 2023, the Sixth Committee Chair’s Summary of the resumed sessions and, most fundamentally, the Draft Articles, will be submitted to the Diplomatic Conference as the bases for the substantive negotiations.   

The second committee session, later in 2026, will focus on rules of procedure for the conference. It is also likely to recommend the participation of civil society organizations that do not have ECOSOC accreditation. 

Going Forward

The next few years offer an opportunity to create broader public understanding of the nature and effect of crimes against humanity, which have been overshadowed for decades, in part, by the paramount status of the crime of genocide. This public awareness is needed to create an effective international instrument to prevent and punish these offenses when and where they occur. 

Succeeding in these goals will require the active and engaged participation of civil society organizations around the world. These groups will bring the invaluable experience and views of communities most affected by crimes against humanity to the negotiations. This will contribute to an effective victim-centered approach as currently envisioned by Draft Article 13. This, of course, must be consistent with affording those accused the full protection of rights to a fair trial.  

Supportive States

It will be necessary for the strongly supportive states to use the upcoming several-year process well, particularly in 2025, when no official activities are scheduled. This will require a strategic view of the importance of entering the January 2026 discussions in as strong a position as possible. Specifically, this could include “ring fencing” the Draft Articles, contrary to Russian objectives, as the principal focus of the negotiations.  

For the most active supportive states, using the time well also means giving thought to the forms of multi-regional organization best suited to advancing a successful negotiation process. It is worth noting that first gathering of what became the 70- state Like Minded Group in the Rome Statute negotiations met in March 1996. This was just prior to the first session of the Preparatory Committee that led to the Diplomatic Conference two years later.   

The adoption of General Assembly Resolution 79/122 was a hard-fought victory. It sets the path for several years of multilateral negotiations to advance international and national law that will be applied by domestic courts to bring those responsible for crimes against humanity to account in fair trials while trying to bring closure to the victims and survivors. Yet much work and contention lie ahead. As one active Legal Adviser put it, Resolution 79/122 marks “the end of the beginning.”