Why We Need a Treaty
What are crimes against humanity? How are they different from war crimes and genocide?
Crimes against humanity (CAH) are among the most serious violations of human rights, and can include:
murder; extermination; enslavement; deportation or forcible transfer of population; illegal imprisonment or other severe deprivation of physical liberty; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; persecution; enforced disappearance; the crime of apartheid; and other inhumane acts.
In order for any of the above acts to constitute crimes against humanity, two elements must be met: the act committed against a civilian population (as opposed to soldiers or other non-civilian populations), and the act must be part of a widespread or systematic attack (not singular violations).
In other words, crimes against humanity are distinguished from “ordinary” crimes by being widespread or systematic, and by the targeting of civilians. Crimes against humanity, war crimes, and genocide are each considered a “core” international crime, but there are important differences among them.
War crimes, by definition, can only be committed in the context of an armed conflict. These crimes involve grave breaches of the laws of war, committed against people or entities who are protected under those laws (such as civilians and their property) and/or the use of prohibited methods or means of warfare. The acts that can constitute war crimes range from willful killing to pillaging, sexual violence, and declaring that there will be “no mercy” in a military operation. Because crimes against humanity can be, but are not required to be, committed in the context of an armed conflict, it is possible for the same act to constitute both a crime against humanity and a war crime.
Genocide differs from both of these categories of crimes because it must be motivated by a specific intent to destroy, in whole or in part, a national, racial, ethnical, or religious group. Some of the acts involved in genocide, such as killing or sexual violence, can also constitute war crimes and crimes against humanity – but for these acts to constitute genocide, they must be committed with the intent to destroy.
Although these three categories of crimes are different, there is no hierarchy among them. The distinctions between these crimes reflect legal categories designed to accurately describe the nature of the crimes and to capture the distinct motives and methods of perpetrators.
Why do we need a crimes against humanity treaty?
Although crimes against humanity are defined under various treaties, including the Rome Statute of the International Criminal Court (ICC), and prohibited under customary international law, there is no specific treaty which expressly addresses states’ responsibilities to prevent or punish these crimes. This gap distinguishes crimes against humanity from war crimes and genocide, each of which have their own dedicated treaties (the Geneva Conventions and the Genocide Convention, respectively).
The Geneva Conventions and the Genocide Convention provide unified definitions of war crimes and genocide. They also indicate the responsibilities of states and clarify who can be charged with these crimes. For example, under both treaties, states have obligations to act to prevent both genocide and war crimes wherever they occur. Acts of genocide and war crimes must also be criminalized in domestic law.
A treaty on crimes against humanity could similarly clarify states’ obligations to prevent and punish these crimes. It could also require states to adopt national legislation to outlaw crimes against humanity in their domestic criminal codes, cooperate with other states to extradite or domestically prosecute perpetrators, furnish protections for victims and witnesses, guarantee fair treatment of the accused, and provide mutual legal assistance.
Although codifying these crimes does not stop them from occurring, clear international and domestic legal rules are an important first step to holding perpetrators accountable. The existence of these laws signals to all potential perpetrators that they will face justice if they commit these crimes and can thus contribute to helping to deter their commission over time. In this way, a crimes against humanity treaty can help reduce the number of people who suffer from these crimes in the first place. A treaty could also codify the rights of victims and require states to engage with them to achieve justice. Finally, the negotiation of a new treaty is an opportunity to incorporate progress in international law, including on addressing sexual and gender-based violence, that has been made in the decades since the Rome Statute was written.
What are the Draft Articles and how did they come to be?
The United Nations’ (UN) International Law Commission (ILC) prepared the Draft Articles on the Prevention and Punishment of Crimes Against Humanity to provide a starting point for the discussion and negotiation of an international treaty. The Draft Articles include provisions:
- defining crimes against humanity, including crimes of sexual and gender-based violence;
- articulating state obligations to prevent, criminalize, investigate, and punish these crimes;
- outlining the rights of victims and witnesses, including to redress and reparations; and
- addressing cooperation between states, including obligations to extradite or prosecute, and mutual legal assistance.
The current Draft Articles are the result of six years of work in the ILC, including extensive consultation with and feedback from states, experts, and civil society. In 2019, the ILC completed their consultations and study of the issue and adopted the Draft Articles on the Prevention and Punishment of Crimes against Humanity. The ILC recommended to the international community that the Draft Articles form the basis of a treaty to be adopted by states, either through the framework of the UN General Assembly (UNGA) or an independent treaty negotiation process.
What about the International Criminal Court and International Court of Justice?
The ICC plays a vital role in delivering justice for crimes against humanity and other atrocity crimes. At present, the ICC is the only permanent mechanism for individual criminal accountability at the international level.
However, the ICC does not have the authority to address questions of state obligations regarding crimes against humanity. The ICC also has substantive, procedural, and practical limitations, which can constrain justice and accountability for crimes against humanity. The ICC was never intended to be the sole body responsible for seeking judicial remedies for mass atrocities, nor does it have the capacity to investigate every situation or bring every perpetrator to trial. The Draft Articles complement the ICC by strengthening and empowering domestic jurisdictions to prosecute individuals for the commission of crimes against humanity. Since the ICC can only act when a state is unwilling or unable to prosecute, the strengthening of national jurisdictional capacity to act is an important complement to the work of the ICC.
In addition, the ICC can only address one side of the accountability picture — individual criminal responsibility — leaving state responsibility for crimes against humanity aside. The Draft Articles account for this by explicitly detailing not only individual states’ obligations to prevent and punish crimes against humanity, but also providing for state-to-state dispute resolution at the International Court of Justice (ICJ). Without a treaty, states cannot be held accountable by the ICJ for the failure to adequately prevent and/or punish crimes against humanity that occur within their territory.
What is the status of the Draft Articles? Is this the final text of the treaty?
While the Draft Articles may serve as a starting point for the negotiations of a treaty, the text of a future treaty would not be considered final until it has been sufficiently negotiated by states.
After the ILC adopted the Draft Articles in 2019, the UNGA took note of them and sent them to the Sixth Committee, the UNGA body where legal questions are considered. For three years, the Sixth Committee had the ILC draft “under consideration.” Following this stagnation, in November 2022, the Sixth Committee passed a resolution that would allow the committee to begin deliberation of the substance of the text, with a view towards discussing the ILC’s recommendation that a treaty be negotiated on the basis of the draft articles.
The resolution established a two-year timeline for states to “exchange substantive views” on “all aspects of the draft articles,” in two resumed sessions. The Sixth Committee met for the first “resumed session” on April 10-14, 2023, and will meet for the second resumed session on April 1-5 and 11, 2024. As specified in the programme of work, the plenary meetings are livestreamed and open to the public, and states consider the Draft Articles in thematic clusters. At the end of the first resumed session, the Sixth Committee Bureau’s Co-Facilitators produced an oral report summarizing the session. States had the opportunity to submit written comments on the Draft Articles by December 1, 2023, and these may help to inform the structure and substance of the April 2024 resumed session. The Sixth Committee also held a general debate on the Draft Articles per its normal practice during the United Nations General Assembly in October 2023. They again debated the Draft Articles in the UNGA in October 2024 with the view to make a decision on the next steps for the Draft Articles at that time.
On November 22, 2024, the United Nations Sixth Committee adopted by consensus a resolution to advance the draft treaty on crimes against humanity to negotiations. The resolution calls for a concrete and time-bound process consisting of preparatory sessions in 2026 and 2027, and three-week negotiations in 2028 and 2029, where a treaty will be finalized. On December 4, 2024, the UN General Assembly adopted the Sixth Committee resolution without a vote, confirming the process of negotiations.
How long will this take?
The resolution adopted by the United Nations Sixth Committee on November 22, 2024 calls for a concrete and time-bound process consisting of preparatory sessions in 2026 and 2027, and three-week negotiations in 2028 and 2029, where a treaty will be finalized.
How can civil society engage in the process?
As the Sixth Committee considers the substance of the treaty, now is an important time for civil society to engage. Civil society can encourage and support states to meaningfully participate in the resumed sessions and demonstrate their commitment to the advancement of the Draft Articles, and provide suggestions and options to states to strengthen the ILC’s draft. As the final treaty will be the product of state negotiations, it is important that states hear from civil society both on what should be protected in the current draft text, as well as what can be improved. These considerations may reflect a range of perspectives and expertise, including how to ensure that the treaty is gender-competent, survivor-centered, and intersectional.
Such input has already helped to shape the draft articles; for example, civil society engagement during the ILC process was vital to removing from the text a regressive definition of gender that was carried over from the Rome Statute. Other civil society proposals to strengthen the draft include bolstering victims’ rights, and adjusting the definitions of crimes such as forced pregnancy, persecution, and enforced disappearances.