A Future Crimes Against Humanity Convention and Asia: A New Tool for Accountability

[Aakash Chandran (X: @ChandranAakash is the Legal Advocacy and Communications Manager at Asia Justice Coalition.]

The international community is currently navigating a turbulent phase marked by armed conflicts, aggression, and manifest violations of international humanitarian law and human rights law. The situation in South, Southeast, and East Asia also continues to present alarming developments, including the escalating situation in Myanmar, exacerbated by the absence of concerted international action. The entrenched impunity in Sri Lanka concerning the civil war has left thousands of victims of atrocity crimes without access to justice, as has the widespread and institutionalized violation of women’s and girls’ human rights in Afghanistan under the Taliban. Serious concerns also exist about the 2024 transitional justice law and its implementation in Nepal, as well as the increasing forced deportation of refugees from Thailand and Malaysia. These issues collectively underscore the urgent need for accountability in the region.

Earlier this year, in March, the former President of the Philippines, Mr. Rodrigo Roa Duterte, was arrested and surrendered by the Philippine National Police to the International Criminal Court (“ICC”) in The Hague, Netherlands. The absence of any effective investigations or prosecutions of Duterte and other alleged perpetrators for the infamous nationwide ‘War Against Drugs’ campaign in the Philippines or in the region, coupled with a newfound willingness to cooperate by the new government, paved the way for the initial proceedings relating to charges of crimes against humanity before the ICC.

In Asia, the Duterte case serves as an emblematic illustration of the accountability gap, particularly concerning crimes against humanity. In the absence of a regional human rights treaty or Asia-wide human rights court, the UN diplomatic conference on Prevention and Punishment of Crimes against Humanity (“CAH”), scheduled to be held in 2028-2029, becomes crucial.

On 22 November 2024, the UN General Assembly (“UNGA”) Sixth Committee, after six years of deadlock, took a consensual decision (except for Russia) to move the 2019 International Law Commission Draft Articles on Crimes Against Humanity (“ILC Draft Articles”) to diplomatic negotiation to adopt a global treaty on the prevention and punishment of crimes against humanity. This was later confirmed by the full UNGA.

The ILC Draft Articles provides an excellent basis for advancing a CAH Convention and will be a foundational text to negotiate the treaty. The General Assembly Resolution 79/122 also allows States to submit amendment proposals to the ILC Draft Articles to be added to the compiled text, which will be considered by the Preparatory Committee for the negotiations.

Why a CAH Convention is Relevant for Asian States

Asian States have had limited engagement with mechanisms of international justice and accountability. It is also exemplified by the fact that Asia has the fewest states per region that are signatories to the Rome Statute of the ICC – only 19 as per the last count. Likewise, only a handful of States have ratified the Genocide Convention. There is a weak track record of pursuing accountability for atrocity crimes at the domestic, regional, or international level.

A global convention on crimes against humanity would bridge the normative gap in treaty law by providing for state responsibility for these crimes under international law. Modelled similarly to the Genocide Convention, the CAH Draft Articles explicitly call upon states to not just punish crimes against humanity but also prevent the commission of the crime in the first place.

The Draft Articles, recognising the primary responsibility of States to exercise their criminal jurisdiction, call on States to enact domestic legislation to criminalise crimes against humanity, exercise their jurisdiction, investigate, and prosecute individuals suspected of having committed CAH.

Importantly, for Asia, the future CAH Convention would facilitate inter-state cooperation in the prevention and punishment of the crime. A deepened horizontal relationship between States, in our region would strengthen State-to-State cooperation and the exercise of mutual legal assistance, which in turn would bolster national capacity and allow States to prioritise the use of domestic justice systems to account for crimes under international law.

Active Participation by Asian States on the CAH Draft Articles

While a few States did not participate in the UNGA Sixth Committee due to lack of capacity, Asian States have engaged with the Draft Articles actively in that forum. Since 2019, we have witnessed growing support within the Asian bloc for the Draft Articles and a future convention. (See AJC mapping of Asian States at AALCO here)

At the 2023 and 2024 Resumed Sessions and the October 2024 Sixth Committee session, an increased number of States and regional groups participated, reflecting greater engagement and more in-depth understanding of the text by the delegations. At the 79^th UNGA Sixth Committee session, in late 2024, over 99 States co-sponsored the resolution supporting convening a diplomatic conference for a CAH convention.

Afghanistan and Myanmar (represented by Permanent Representatives appointed by the former civilian governments, and not the current authorities in power) supported the Draft Articles for the victims of mass atrocities by reaffirming their commitment to human rights and accountability, especially given the situation under the Taliban and the military junta, respectively.

Bangladesh, recalling its 1973 war history and the recent 2024 Monsoon Revolution, strongly supported the convening of a diplomatic conference and called upon States to address impunity and to cooperate with each other and with international justice mechanisms at all stages. Recently, Bangladesh has been exploring options to prosecute crimes against humanity allegedly committed in the past year through its contentious International Crimes Tribunal.

Building on its public position calling for accountability for mass atrocities committed in Gaza and adherence to the Genocide Convention, Malaysia, the 2025 Association of Southeast Asian Nations (ASEAN) Chair, expressed its support of further elaboration of the Draft Articles through the General Assembly or through an international conference. As a member of the Hague Group, Malaysia has routinely called on States to uphold the principles under the UN Charter and international justice and accountability. Similarly, the Maldives, a fellow member of the Hague Group, categorically stated the inadequacy of the international legal framework to address crimes against humanity and affirmed its commitment to strengthen and complement the existing legal framework through the CAH Convention.

The Philippines, based on its 2009 domestic law on crimes against humanity, supported the Draft Articles for their dual focus on prevention and punishment of crimes against humanity. It called upon States to exercise national jurisdiction to effectively prosecute perpetrators and not let them go unpunished. The country’s fraught history with martial law under former and first President Marcos, with crimes against humanity of enforced disappearance, killing, torture, and arbitrary detention committed against civilians with impunity, provides an insight into the need for such a convention. The decision to support the passage of a CAH treaty by the Philippines government precedes the developments in the Duterte case at the ICC.

Indonesia has witnessed mass killings and crimes against humanity committed against millions of civilians during the presidency of General Suharto in the 1960s. Sixty years later, highlighting its 2024 Penal Code criminalising crimes against humanity, Indonesia acknowledged the existence of a normative gap in international law that will be filled with the adoption of a future CAH convention under international law. Further, it saw the Draft Articles not only as a tool for prevention and accountability but also as a way to promote greater cooperation and harmonization of national laws. 

Mongolia, speaking for the first time at the Sixth Committee, came out strongly in support of the Draft Articles as a universal legal instrument. As a then core-group member and the only Asian State that has signed the Ljubljana – The Hague Convention on International Cooperation in Prosecuting Crimes under International Law, Mongolia called upon States to move towards an inclusive and transparent negotiation process to resolve all the pending differences.

Singapore remained neutral through the deliberations of the Sixth Committee. It saw value in promulgating a new convention on crimes against humanity and ending impunity but has some concerns with the existing text. While the Draft Articles do not present any hierarchy or prioritisation on jurisdiction based on existing international law, Singapore sought clarification regarding potential conflicts of jurisdiction and calls for primacy to be given to the State under Draft Article 7(1). 

Timor-Leste, continuing with its call to uphold international justice and accountability in Myanmar, joined the Portuguese Language Countries’ statement to press upon States to move towards a diplomatic conference, as it would be the best opportunity for an in-depth review of views and differences. As an upcoming 11^th member of the regional bloc, Timor-Leste has an opportunity to be a leader and center international justice and accountability within the ASEAN. The 1999 hybrid UN-East Timor tribunal in Dili, one of the first in Asia, adjudicated upon crimes against humanity and other serious crimes that occurred prior to the independence of East Timor.

Japan and South Korea, Rome Statute States, have been strong supporters of the CAH Draft Articles. Along with Mauritius, Japan and Korea aligned themselves with Sierra Leone’s cross-regional statement on behalf of 77 Member States. The statement called upon States, as contracting parties to the UN Charter and Genocide Convention, to take decisive action to end impunity for crimes under international law. 

South Korea’s transition to democracy has dark chapters in its history. The 2024 declaration of martial law by the former President Yoon Suk Yeol brought back memories of multiple coups, including the imposition of 1980 martial law and cold-blooded killing of thousands of pro-democracy protesters in Gwangju. At the same time, North Korea’s widespread, gross and systematic human rights violations in political prison camps and elsewhere cast a dark shadow.

India, China, Pakistan, North Korea, Sri Lanka, and Viet Nam joined a small number of states in expressing their reservations regarding the utility of a Convention, flagged concerns with the draft provisions and called for continuous deliberation and study of the Draft Articles within the Sixth Committee to reach a consensus before moving towards a diplomatic conference.

The Next Steps and the Importance of Asian States in Negotiations

UNGA Resolution 79/122 establishes a timeline to conclude and adopt an international treaty on crimes against humanity, which will be held in 2028 and 2029 at UN headquarters in New York. It will be preceded by two Preparatory Committee (“PrepCom”) sessions in 2026 (19 – 30 January) and four days in 2027.

The PrepCom will fine-tune the rules and procedures and working methods of the upcoming conference, including finalising non-United Nations Economic and Social Council (ECOSOC) affiliated civil society participation. It will also collate and facilitate discussions on the amendments that States may want to propose to the Draft Articles. States have until 30 April 2026 to submit amendment proposals to the text contained in the ILC Draft Articles to the UN Secretariat to be included in the Secretary-General’s compiled text. The UNGA resolution calls upon States to hold consultations on substantive treaty work, which could facilitate participation of subject-matter experts, academics, civil society, and other relevant stakeholders.

Asian States now have an opportunity to submit substantive proposals strengthening the Draft Articles and to incorporate regional experiences into an effort aimed at the prevention and punishment of crimes against humanity. To effectuate meaningful participation from often underrepresented Asian civil society and victims groups, Asian States must also support and ensure that non-ECOSOC accredited NGOs and other stakeholders, including experts, get a seat at the table during the diplomatic negotiations. The relegation of Asian voices and experiences to the periphery of international lawmaking, either by non-participation or by design in the name of ‘procedure’, results in less representative negotiations and convention text. 

The deteriorating situation of human rights and crimes against humanity across the region unequivocally demonstrates the link between regional stability and justice and accountability. Entrenched impunity directly creates fertile ground for transnational crimes, terrorism, and armed conflict.

UN Member States have a duty towards the maintenance of international peace and security. As we witness atrocities unfold around the world, it raises serious concerns about the effectiveness of the UN and the capacity of its Member States in preventing and punishing the perpetrators of the crimes to end impunity. Asian States have the opportunity to lead from the front and fulfil their promise to victims and survivors of atrocity crimes by engaging, negotiating, and adopting a global convention on crimes against humanity.