Why Urgent Action is Needed for a Crimes Against Humanity Treaty


18.09.24 | 

[Richard Dicker was the longtime international justice director and is now a senior legal adviser for advocacy at Human Rights Watch. He teaches courses on international criminal courts at Columbia Law School.]

Goitom, a 42-year-old ethnic Tigrayan farmer, living in that northern region of Ethiopia, watched helplessly when, on January 17, 2021, Amhara Special Forces – a brutal paramilitary group – beat up and detained Tigrayan men in his town.

As he told Human Rights Watch researchers, “Our numbers were decreasing by the day. After the Tekeze incident [a massacre of 60 Tigrayan men] happened, Tigrayans left in big numbers. There was nothing to live for. We were not part of the town; it was taken over by other people. We were not allowed to live.”

A 74-year old survivor of the Tekere River killings described it to Human Rights Watch. “When they shot at us, I fell first and then I saw also when the others in front of me were shot and fell. And the people behind me fell on me and covered me ….” After that, he heard the para-military troops say, “‘The Tigrayans don’t die easily, shoot again.’”

These acts and others committed against Tigrayans were crimes against humanity. These are acts of murder, rape, torture, apartheid, deportation and persecution committed as a part of a widespread or systematic attack against any civilian population following from a state or organizational policy. Along with genocide and war crimes, they are the most serious international crimes.

These first-hand descriptions are similar to accounts that witnesses and victims have conveyed to investigators in Ukraine, southern Israel, Gaza and Sudan as crimes against humanity proliferate globally. And before these more recent scenes of devastation unfolded, civilians in Syria, Iraq, Myanmar and Afghanistan endured—and continue to endure—comparable assaults.

Yet, unlike for genocide and war crimes there is no specific international treaty to prevent and punish crimes against humanity. Thisleaves a stark gap in international law protections for those all-too-often at risk. The UN’s International Law Commission finalized a set of provisions – the Draft Articles on Prevention and Punishment of Crimes Against Humanity (“Draft Articles”) in 2019 and promptly forwarded them to UN Headquarters five years ago with recommendations to start negotiations. Yet, a handful of obstructive states stalled headway. In 2022, nearly a majority of UN Member States—north and south—moved to close the gap with the Draft Articles as the essential starting point in actual negotiations. Since then, there have been two special sessions for “discussion” in 2023 and 2024 at the General Assembly’s legal committee—its Sixth Committee—plus several yearly debates and written submissions of positions. This effort is heading to a climactic showdown in the fall.

The Sixth Committee is mandated to make a decision, on whether to move these draft provisions forward to negotiations or, in the alternative, consign them to the oblivion of endless rounds of discussion. With its potential protective impact for civilians at risk, this next step is the most significant decision on international law-making the UN will make this year.

A much-needed international treaty to prevent and punish crimes against humanity, could be enforced by national courts, adding significantly to the global ecosystem to support justice for the worst crimes. While not a panacea, a convention could significantly strengthen protections for potential victims by both preventing and punishing these crimes. A treaty would also define the legal obligations of treaty member states to cooperate with one another. This would include extraditing suspects to those member states that are prepared to try them fairly. This would extend justice’s reach where other courts like the International Criminal Court are not able to act.

At UN headquarters, the drive to start negotiations is being led by Mexico and The Gambia. These two have recently circulated a draft resolution to all UN member states calling for negotiations to begin and end in 2026. The number of states willing to co-sponsor this text will be a measure of the breadth and depth of support to move forward. In 2022, 86 member states signed on as co-sponsors. These states represented all regions of the world—Africa, the Americas, Europe and North America, the Middle East, and Asia. This year the numbers and regional diversity of supportive states will be especially important.

At a time of intensifying geo-political divisions that are clearly manifest in the meeting rooms of the UN, it’s hardly surprising that there is deeply entrenched opposition towards a treaty on crimes against humanity. There is a small group bound by ideology and self-interest—the Russian Federation, the Peoples Republic of China, Iran, Cuba, DPRK, Eritrea—that are adamantly against any headway. Seeking some veneer of legitimacy, the group has anointed itself “the Friends of the UN Charter.” These “Friends” deny that there is a missing pillar of international law due to the absence of a crimes against humanity treaty.

The actual alignment of forces was on clear display at the last “discussion” session in April 2024. There, states made 51 separate statements favoring moving to negotiations. This number includes remarks by groups of states. Some were larger groups, like the European Union and the states of the Americas region, while some were smaller, like the Portuguese-speaking nations. At that same session, six states took the floor to oppose going to negotiations.

To predict what will happen at the Sixth Committee this Fall, one could look to the sequence of events two years ago. In 2022, after denouncing the effort to start negotiations, some of the “Friends” returned to bargain for—and obtain—a few concessions. This led to a “consensus” agreement supported by all member states that propelled a General Assembly Resolution mandating two years of “discussion” and a final decision on next steps in Fall 2024. The supportive states are clearly seeking a consensus decision which will require an even larger and more diverse group of backers.

Among UN member states, there is a large group that have yet to take a position on next steps for the Draft Articles and a large segment of them need to voice their support for negotiations. Many of these states have had direct experience with these crimes. They have a great deal to add in creating a treaty that will provide meaningful protections for their populations. Recognizing that strengthening their national judicial systems through an international treaty is a crucial link in enabling these to become supporters.

At the same time, the terrain is different than it was two years ago. The geo-political divisions shaping today’s international landscape are more intense than in 2022. This tension spills over onto nearly every issue at UN Headquarters. In addition, the stakes are higher than they were two years ago: the decision at hand is to begin negotiations. So no matter how many states want to start negotiations, it’s entirely possible that some of the “Friends” will not agree to a consensus to begin negotiations.

Significantly, unlike other General Assembly committees, the Sixth Committee over the years has taken its decisions by “consensus.” The UN Charter and rules do not require this. There are various reasons that states, large and small, cite to justify this peculiar method of multilateral decision-making and the resulting paralysis it has engendered. But if consensus to start negotiations proves to be impossible to attain, the supportive states, prompted by the imperative of creating a treaty preventing and punishing these crimes, need to be ready to depart from consensus and take this to a vote.

The rationale for breaking with the tradition of consensus is rooted in the serious consequences for those at greatest risk of these crimes. Given the devastation that has scarred countless civilians, a crimes against humanity treaty will offer future victims a means of redress. In the face of the growing number of conflict or unstable country situations, that have been exacerbated by sharpening geopolitical divisions, beginning negotiations will send a powerful signal. On an increasingly fractured global landscape, the decision to negotiate would demonstrate that the protections of international law are expanding, not withering. That would be a powerful and greatly positive message to emanate from the United Nations this Fall.