Symposium on Prosecuting Asia-Pacific Crimes: Prosecuting Asia-Pacific Crimes in Domestic Courts – Crimes Against Humanity Convention and the Obligation to Prevent

[Aakash Chandran is a Senior Legal and Advocacy Manager at Asia Justice Coalition. He leads the AJC’s advocacy on Crimes Against Humanity Convention]

Asia has historically witnessed and continues to experience armed conflicts and atrocity crimes, including crimes against humanity (CAH) – crimes that are widespread or systematic attacks directed against civilian populations. The Taliban administration in Afghanistan represents a direct and systemic threat to democracy, women’s rights and human rights. The Office of the Prosecutor of the International Criminal Court (ICC) has requested the issuance arrest warrants against the Supreme Leader of the Taliban and the Chief Justice for the crime against humanity of persecution on gender grounds. Similarly, the arrest and transfer of former Philippine President Duterte to the ICC, where he awaits trial for his alleged role in the ‘war on drugs’ campaign and committing crimes against humanity of murder, torture, and rape, demonstrates the relevance and urgency of a global Crimes Against Humanity Convention.

The brutal and deteriorating situation in Myanmar under military rule exemplifies brazen impunity. Although the ICC has limited jurisdiction over crimes against humanity of deportation and persecution committed against the Rohingya, an accountability gap remains regarding crimes committed by the military junta and non-state armed groups like the Arakan Army following the 2021 coup. Multiple universal jurisdiction proceedings concerning Myanmar have been initiated globally, as this symposium reveals.

This increase of seeking justice and accountability through national proceedings addressing crimes against humanity in Asia signals a positive development. The adoption of a CAH treaty would further establish new pathways for accountability in the region. It would enable victims and survivors to use new tools to pursue justice and seek reparations. Given that many atrocity crimes fail to meet the stringent mens rea threshold for genocide, the proposed convention would allow alleged perpetrators to be charged with CAH, which offers a lower mental element for peacetime crime.

The Road Towards the CAH Convention

Recognising the normative gap in international law, civil society organisations and legal practitioners have been advocating for an international CAH convention. In 2008, Prof. Leila Sadat established the Crimes Against Humanity Initiative, engaging subject-matter experts to prepare a draft model treaty. Subsequently, in 2014, the International Law Commission (ILC) added CAH into its programme of work and appointed Prof. Sean Murphy as Special Rapporteur.

Following multi-year deliberations (2014-2019), the ILC adopted and submitted the Draft Articles on Prevention and Punishment of Crimes Against Humanity with its commentary to the UN General Assembly (UNGA). Importantly, the ILC recommended:

“the elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries on the basis of the Draft Articles”.

Pursuant to the ILC recommendations, the Draft Articles were taken up by the Sixth Committee of the UNGA. In November 2022, a cross-regional resolution (77/249), co-sponsored by 86 States, established a two-year timeframe to discuss the contents of the Draft Articles through Resumed Sessions of the Sixth Committee in 2023 and 2024. States also submitted their written comments on the Draft Articles to the Sixth Committee in December 2023.

Finally, in December 2024, the UNGA adopted resolution 79/122, deciding to advance to formal negotiations on a CAH Convention on the Prevention and Punishment of Crimes Against Humanity. Resolution 79/122 also established two Preparatory Committee (“PrepCom”) sessions for 2026 and 2027 (12 – 15 April), followed by three weeks of diplomatic negotiations at the UN Headquarters in New York in 2028 and 2029, aiming to conclude and adopt an international treaty on crimes against humanity.

One significant decision taken during the January 2026 PrepCom concerned the participation of civil society organisations not accredited by the Economic and Social Council (ECOSOC) in PrepCom sessions and the diplomatic conference. At the end of the PrepCom, States consensually adopted (with a handful of States disassociating themselves) a resolution allowing relevant non-ECOSOC NGOs, academic institutions, and the private sector, to request participation in the diplomatic conference, taking into account the principles of transparency, equitable geographical representation and gender parity. However, civil society’s participation in the second PrepCom remains uncertain and will require continued advocacy.

Obligation to Prevent under the CAH Convention

The proposed CAH Convention bridges the formal gap in existing international law by addressing state responsibility for the prevention and punishment of crimes against humanity (Draft Article 1). It clarifies that States bear responsibility for breaches of their international obligations separate from the individual criminal responsibility of perpetrators.

Unlike the Rome Statute of the ICC, the CAH Convention governs the horizontal relationship between States. The Rome Statute also does not impose a distinct obligation upon States Parties to prevent CAH. The CAH Convention, which will be complementary to both the Rome Statute and the Ljubljana-The Hague Convention, vests primary responsibility to prevent and punish crimes against humanity upon States. It obligates States to criminalise, investigate, and prosecute CAH within their domestic criminal systems. In doing so, the Convention could bolster national capacities for atrocity crimes prosecution, especially concerning extradition and mutual legal assistance. Consequently, it will strengthen both national and international legal frameworks and empower States to exercise jurisdiction, including universal jurisdiction (see Jan and Kate’s forthcoming submission in this symposium).

The Convention’s dual focus on prevention alongside prosecution, mirroring the Genocide Convention, requires States to treat prevention as an autonomous obligation. While punishment serves as one of the tools to prevent the commission of crimes against humanity, the duty to prevent remains a distinct and separate obligation imposed on States. Such an obligation, with respect to genocide, has extraterritorial application as confirmed by the International Court of Justice (ICJ) in The Gambia v. Myanmar, and is mutatis mutandis applicable to CAH.

Modelled on the Convention Against Torture (CAT), the Draft Articles impose a binding legal obligation upon States to not commit CAH (Draft Article 3(1)), whether directly or indirectly. In other words, any act or omission by a State could give rise to state responsibility if it contributes to or constitutes CAH. This duty emerges from the customary international law prohibition to commit CAH, reflecting the peremptory nature (jus cogens) of the obligation (Preambular paragraph 4).

Drawing from the ICJ’s judgment in Bosnia and Herzegovina v. Serbia and Montenegro, the Draft Articles clarify that the obligation to prevent entails a legal duty for States to abstain from committing CAH themselves. This duty extends to any action undertaken by a State’s ‘own organs, or persons over whom they have such firm control that the conduct becomes attributable to the States’ (CAH Draft Articles Commentary, p. 48, para. 3). Inherent in the obligation to prevent is the requirement to not aid and abet the commission of such crimes. A state may be held liable for complicity if its organs were aware of the existence of serious risks that CAH might be committed, yet enabled or facilitated the commission of those acts (ICJ, Bosnia v. Serbia). Upon becoming aware of such serious risks, the obligation to prevent requires States ‘to employ all means reasonably available to them’ to prevent the commission of the crime (CAH Draft Articles Commentary, p. 49, para. 7). This obligation further necessitates States that have the ‘capacity to influence effectively the action of persons likely to commit, or already committing’ CAH to undertake preventive measures (CAH Draft Articles Commentary, p. 49, para. 7). The mentioned obligation is one of conduct rather than result, requiring States to exercise due diligence based on an evaluation of facts on the ground.

Draft Article 3(3), building upon CAT, provides that no circumstances may be invoked to justify any act of crimes against humanity. This prohibition must be maintained and respected under all conditions.

Draft Article 4(a) calls upon States to prevent the commission of CAH through legislative, administrative, or judicial measures (a non-exhaustive list, which could include diplomatic measures), to be undertaken in any territory under its jurisdiction. The Draft Article imposes a mandatory obligation upon States under Draft Article 4(b) to cooperate with other States and relevant intergovernmental organizations, including the UN and its specialised agencies, and further provides for cooperation with ‘other organizations’, including sui generis organisations like the International Committee of the Red Cross and relevant CSOs, ‘as appropriate’. (For more details and recommendations concerning prevention and the CAH treaty, see Asia Justice Coalition, here).

The obligation to prevent includes a duty to take preventive and deterrent measures even against those suspected of preparing for CAH. It therefore extends to inchoate crimes such as aiding, abetting, and conspiracy. However, the current Draft Articles lack explicit language to this effect. Similarly, Draft Article 4 does not provide for the prohibition and prevention of CAH via direct and public incitement, although this addition has been recommended by CSO groups, including FIDH.

Once implemented, the CAH treaty would allow individuals to file domestic complaints alleging complicity and failure to prevent potentially including the transfer of weapons, jet fuel, or dual-use goods and technology. This is important for the region, given that the UN Special Rapporteur on the situation of human rights in Myanmar has called for a complete ban on such trade to Myanmar’s military junta.

Asian States Position on Prevention

Asian States have strongly expressed support for the prevention obligations under the Draft Articles. Bangladesh, Japan, Myanmar, Afghanistan, Australia, New Zealand, Indonesia, South Korea, Singapore, Philippines, and Maldives have endorsed the dual scope of the Convention and reiterated the importance of obligation to prevent to ensure that the perpetrators of such crimes do not go scot-free. Bangladesh and the Maldives also called for strengthened international cooperation, without which the promise of prevention of CAH would remain incomplete. Following its 2009 domestic law, the Philippines supports the current formulation as it considers prevention and punishment as distinct obligations. Timor-Leste has been a vocal supporter within the ASEAN bloc and finds the Draft Articles operationalise the duty to prevent and provide a sound basis to negotiate a future convention.

The Philippines, South Korea, and Indonesia support twin obligations present under Article 3(1) (a) –  States may not engage in CAH through their own organs or those they have such control of that the breach engages State responsibility if the act is attributable, and (b) States have obligations under international law not to aid, assist, direct, control, or coerce another state in the commission of an internationally wrongful act. Relatedly, India, China, and Indonesia have also called for language reflecting respect for “principles of sovereignty, territorial integrity, and non-interference” within Draft Article 3.

On Draft Article 4, South Korea and Singapore support the rationale underlying the obligation to prevent, which is not an absolute obligation of result, but an obligation of conduct governed by the standard of due diligence. While Singapore and Indonesia sought greater textual clarity on the nature of obligations, South Korea supported the present text and cautioned against ‘over-detailing’ as it would detract from state flexibility. Malaysia also called for discretion to be vested with States to determine how certain provisions, including the obligation to prevent and punish CAH, are operationalised within domestic legal frameworks. According to Indonesia and Vietnam, enhanced international cooperation would help in discharging the overall aim of the convention i.e., fighting impunity, particularly through prevention.

UN Member States also submitted written amendment proposals to the Draft Articles by April 2026. Engagement from Asian States was limited and witnessed submissions only from Afghanistan, China, Japan, Nepal, South Korea, Timor-Leste, and Singapore. Nepal called for the addition of ‘in accordance with domestic legislation’ under Draft Article 3(2) to provide flexibility to States to undertake preventive measures. China recommended adding to the chapeau of Draft Article 4 the phrase ‘in conformity with domestic law alongside international law’. China and Singapore, under Draft Article 4(b), recommended keeping the mandatory cooperation obligation for States to cooperate with only States. While we await additional proposals from Asian States on the Draft Articles, it is evident that the international community cannot defer the adoption of a global convention on CAH in a world increasingly mired in global conflicts. Asian States, with their extensive expertise and regional voice, must engage in good faith and advocate for a robust multilateral treaty under the aegis of the UN, reaffirming respect and commitment toward a rules-based international legal order and multilateral institutions.