Accountability for atrocity crimes
Crimes against humanity were first prosecuted at Nuremberg in 1945 but have never been codified in a dedicated global treaty. Global Insight reports on efforts to fill this long-standing gap in international law.
It is now ten years since the start of the war in Syria, which has claimed so many lives. The decade-long conflict stands out, not only for unleashing the largest refugee crisis since the First World War, but for underlining repeated failures by the international community to hold those in power to account.
A protestor holds an 'Every Life Matters' sign in support of Uighur Muslims at the 'Uyghur Solidarity Rally' at Edinburgh Place, Hong Kong, 22 December 2019. Shutterstock.com/Sandra Sanders
Fighting impunity remains a global challenge. The crises facing the Rohingya, the Yazidis, the Uighurs and other vulnerable communities across the world are grave reminders that the need to end impunity for crimes against humanity is greater now than ever. That the UN’s Sixth Committee met in October at the General Assembly to debate the latest draft proposal for a long-awaited treaty on crimes against humanity must be welcomed.
The idea for the treaty was conceived in 2008 and the 13-year-long project has been spearheaded by Leila Sadat, the James Carr Professor of International Criminal Law, University of Washington. The International Law Commission (ILC) took on the project in 2013 and submitted a final text of draft articles to the General Assembly. Progress on the treaty was stalled in 2020 due the pandemic, but in-person discussions about the treaty’s framework have resumed at the UN – the third time the proposals have been presented to the Sixth Committee.
Despite the outright objections of three ‘recalcitrant’ states to establishing a treaty at all, Sadat says the latest discussions have given hope that there’s strong political will among the majority of states to push ahead and engage in a structured process towards making the treaty a reality. ‘There were more interventions than we've ever seen – very similar to 2019’, she says. ‘A lot of states were very enthusiastic and speaking in concert about the progress that they hope to be able to make. You could hear some evident frustration on the part of those wishing to move forward that there were a handful of states really unwilling to create a real process to take the draft forward. That's where the Sixth Committee is now and they are in informal consultations.’
Sadat says a dedicated treaty on crimes against humanity would fill a significant ‘accountability gap’ in international law and put an end to what she refers to as ‘the atrocity cascade’ that has engulfed countries like Syria, where human rights violations have descended into atrocity crimes. ‘Think of Syria, where the government is firing on protesters’, says Sadat. ‘It's locking people up. There's torture. It’s just a terrible human rights situation and then that human rights situation slips in peacetime to a situation of crimes against humanity, where it becomes widespread or systematic, where the attacks are so frequent that the entire civilian population, or segments of the civilian population, are being targeted. Then those individuals being targeted will often take up arms and you have a degradation into civil war and then pockets of genocide.’
If you're trying to empower national jurisdictions to be able to do the job that we know the ICC and ad hoc tribunals can do. We need states as a core part of that process. We have to give them the right tools
Chair, Crimes Against Humanity Initiative Steering Committee
The International Criminal Court (ICC) prosecutes crimes against humanity as well as war crimes and genocide. As Syria is not party to the Rome Statute, the ICC does not have jurisdiction to investigate the situation there. To date, the Court has not received a UN Security Council referral permitting it to investigate the allegations. Situations like these only serve to strengthen the moral argument for codifying a separate convention on crimes against humanity to hold states to account, says Justice Richard Goldstone, former Chief Prosecutor of the UN International Criminal Tribunal for the former Yugoslavia (ICTY) and Honorary President of the IBA’s Human Rights Institute. ‘These are such horrible crimes and they should be binding on and within states and not only in international humanitarian law’, says Goldstone, who also sits on the steering committee for the initiative.
He’s in no doubt that a separate convention is sorely needed. ‘Crimes against humanity are the only serious war crimes that are not governed by a convention’, he says. ‘War crimes against humanity are defined in the Rome Statute and so the question has been why do you need a separate convention? But the reason obviously is that not all member states of the United Nations are member states of the Rome Statute. In any event, the Rome Statute doesn't provide for mutual legal assistance between states.’
Sadat, who was recently reappointed as a special adviser on crimes against humanity to the ICC, says a treaty on crimes against humanity would finally give states the necessary tools to prevent, as well as punish, atrocity crimes regardless of where and when they take place. ‘We've seen that the Convention on Torture has been the basis for very important cases brought before the International Court of Justice’, she says. ‘If you're trying to empower national jurisdictions to be able to do the job that we know the ICC and ad hoc tribunals can do – and it’s a big job – everybody has to be all hands on deck. We need states as a core part of that process. We have to give them the right tools.’
Dolkun Isa, President of the World Uyghur Congress, sets up an exhibition showing people who are allegedly held in camps in Xinjiang. This display is in front of the United Nations in Geneva, Switzerland, 16 September 2021. REUTERS/Denis Balibouse
Mutual obligation and cooperation
A treaty would also help states work together to fight crimes against humanity that transcend national borders, says Baroness Christine Van den Wyngaert, who is a member of the steering committee. ‘Think for example of crimes committed by groups such as Boko Haram and al-Shabab across the territories of various African States’, says Van den Wyngaert, who currently serves as a judge at the Kosovo Specialist Chambers and previously served at the ICTY, the ICC and as an ad hoc judge at the International Court of Justice (ICJ).
Uighur women work in a cloth factory in Hotan, Xinjiang province, China. 27 April 2019. Shutterstock.com/Azamat Imanaliev
She points to the case of Anwar Raslan, the former Syrian security officer on trial for war crimes and crimes against humanity at a small regional court in the southwest German town of Koblenz. Van den Wyngaert says a treaty on crimes against humanity would empower more states to seek redress against individuals who reside in their jurisdiction but have committed egregious crimes in other parts of the world. ‘In view of the – sadly enough – almost permanent refugee crisis worldwide, it is important for states to be able to act against people who claim refugee status but who are in fact perpetrators of the most serious atrocities, as many countries in Europe have been experiencing, including Germany, France and Sweden’, she says. ‘Without jurisdiction, states risk becoming safe havens for these “refugees”.’ She says the proposed treaty would help ‘close this gap’.
Even long after the transition to democracy in Latin America the notion of crimes against humanity has been very useful to break the cycle of impunity for crimes committed by military dictatorships
Former UN Special Rapporteur on torture
Such a treaty would significantly bolster domestic prosecutions, agrees Shannon Raj Singh, Treasurer of the IBA War Crimes Committee and a member of Guernica 37 International Justice Chambers. ‘Under Article 6 of the draft, State Parties would be required to ensure that crimes against humanity are criminalised under their domestic criminal legal systems, using a definition set forth in the Convention, which is based on the definition articulated in the Rome Statute’, she says. ‘That would go a long way towards ensuring that crimes against humanity can be prosecuted in domestic courts, and also that they are consistent with the existing international understanding of the crime.’
A makeshift shelter in the Balukhali Rohingya camp, in Ukhiya, Coz's Bazar, Bangladesh, 25 September 2017. Shutterstock.com/Sk Hasan Ali
Raj Singh has been following the progress of the ILC’s proposals carefully, having been commissioned in 2018 to serve as special rapporteur for the War Crimes Committee on the ILC’s Draft Articles on Crimes Against Humanity. She led the drafting of the Committee’s written submission proposing recommendations for the draft text to the ILC. She says the treaty would strengthen the international justice system’s capacity to hold perpetrators of atrocity crimes accountable. ‘By bolstering domestic prosecutions, you strengthen the entire international framework around atrocity crimes’, she says. ‘The ICC has limited capacity and has always been intended to be a court of last resort, so state courts should really be the first and most common fora for these types of prosecutions.’
The concept of crimes against humanity has already proved crucial to securing the transition of many Latin American nations to democracy, says Juan Méndez, a member of the steering committee and former UN special rapporteur on torture. ‘Even long after the transition to democracy in Latin America the notion of crimes against humanity has been very useful to break the cycle of impunity for crimes committed by military dictatorships’, he says.
As many countries in the region continue to contend with democratic backsliding, Méndez says codifying these crimes under an international treaty would make it much easier for such heinous acts to be investigated and prosecuted in future. ‘The judiciaries of the newly democratic Latin American countries were grappling with what we mean by crimes against humanity’, he says. ‘We had some good language from decisions by international bodies like the Inter-American Court of Human Rights, defining crimes against humanity generally and also establishing the legal effects of something being a crime against humanity. That was incredibly helpful to the efforts to break the cycle of impunity because you could then avoid questions like statutes of limitation and they did avoid amnesties and pardons that made it impossible to pursue crimes against humanity. But crimes against humanity is a term of art in international human rights law, so you still need at the UN today a treaty that gives this definition a treaty basis. That’s why I think it's important to have that.’
What’s more, having an international treaty on crimes against humanity could help dispel the long-held misconception among some activists and victims that genocide should be regarded as a more serious crime. ‘Crimes against humanity in its earlier configuration at the time of Nuremberg and the years that followed were confined to acts associated with an armed conflict’, says William Schabas, who also sits on the steering committee.
‘Genocide was really the only peacetime international crime we had for many decades, and I think that contributed a great deal to its elevated status’, says Schabas, who chaired the UN’s Independent Commission of Inquiry into the Gaza war and today is a professor at both Middlesex University, London and Leiden University. ‘Then it got into the public consciousness about it being this highly elevated crime with special status and it’s been very difficult to roll back on that. It’s clear that international law recognises crimes against humanity in peacetime, as well as in time of armed conflict. Would having a crimes against humanity treaty change that? It might. It shouldn't be necessary legally for that to happen, but it might have that impact.’
The ICJ does not have jurisdiction to try individuals accused of war crimes or crimes against humanity. Article IX of the Genocide Convention grants the ICJ jurisdiction in all disputes related to the Convention’s interpretation, application and fulfilment. This includes state responsibility. ‘This is what allowed Bosnia to proceed against Serbia and, more recently, The Gambia against Myanmar’, says Van den Wyngaert. ‘If we would have a proper enforceable treaty on crimes against humanity, this possibility would exist for those crimes as well, and the efforts to “upgrade” some crimes against humanity to genocide, for mere jurisdictional reasons, would stop.’
Yazidi people who escaped abuse from ISIS outside their tent in the Kanke refugee camp in Kurdistan, Iraq, 17 May 2014. Shutterstock.com/quetions123
Crimes against humanity include murder, extermination, enslavement and torture, or the crime of persecution, deportation or forced displacement outside of armed conflict and any other inhumane or sexually violent acts committed against any civilian population. Some of these crimes – such as apartheid, torture and enforced disappearance – are already codified in international treaties, but the majority are not.
Protesters hold photos of Ekpar Asat, who is believed to have been in solitary confinement since 2019, during a rally in support of the Uighurs, in New York City, New York, 12 August 2021. REUTERS/Jeenah Moon
Schabas says the breadth of these crimes and what they include is one reason why it’s been so difficult to gain consensus on an international treaty framework to date. ‘When states look at the definition of crimes against humanity, it's much broader and the boundaries are not as predictable as the boundaries, for example, of the crime of genocide or the crime of apartheid’, he says. ‘I think that's the difficulty with getting it through. We’ve got this far, which is already a phenomenal accomplishment to get to this stage. First, the work that we, the steering committee, did under Leila Sadat’s guidance and the work that was undertaken by the International Law Commission. It's a great innovation. It’s filling a very important gap and that's why it has to be done, but it's also why it's proving not to be straightforward and simple.’
As debate continues within the Sixth Committee on specific aspects of the ILC’s draft articles and necessary next steps, both Schabas and Méndez agree that the draft proposals in their current form would make for a treaty that will have lasting resonance. ‘I think the ILC draft is good enough because the other temptation would be to water it down so much to get a good level of participation’, says Méndez. ‘The present draft is very self-conscious of those tendencies and is well worth supporting. If approved, it's going to make a difference.’
The draft presents an opportunity for the international community to coalesce around a common denominator, and demonstrate that despite these trends, the gravity of atrocity crimes is severe enough to warrant collective action
Shannon Raj Singh
Treasurer, IBA War Crimes Committee
Mark Ellis, IBA Executive Director, believes the treaty can’t come soon enough. ‘It has been more than 70 years since Nuremberg and while other atrocity crimes such as genocide, war crimes and torture have been given the heightened level of legal protection offered by an international treaty, the mechanisms to prosecute crimes against humanity remain elusive’, he says. ‘There is no reason to delay the consideration and passage of the draft articles which are modelled on provisions that states have already accepted from widely adhered to treaties.’
Raj Singh agrees that the time is right for the ILC’s proposals to be enshrined in international law: ‘We are in the midst of major democratic backsliding in jurisdictions across the globe, there has been a surge in populism and authoritarianism, and resistance to multilateralism is high’, she says. ‘The draft Convention on the Prevention and Punishment of Crimes Against Humanity presents an opportunity for the international community to coalesce around a common denominator, and demonstrate that despite these trends, the gravity of atrocity crimes is severe enough to warrant collective action.’
Hans Corell, former Co-Chair of the IBA Human Rights Institute, also sits on the steering committee. As former Legal Counsel of the UN, he knows all too well how drawn-out these drafting and negotiation processes can be. He believes a dedicated convention would succeed in regulating ‘all elements related to interstate cooperation in fighting these crimes’ and says the treaty’s progress has been nothing short of ‘extraordinary’.
Sadat is encouraged by the fact that so many states have been willing to engage with the ILC’s latest draft articles. ‘Overwhelmingly states were saying that we need to move forward and we need a clear timeline’, she says. ‘Crimes against humanity are happening right now and that really was the point of the Myanmar intervention and the Haitian intervention and several others, who gave very moving testimonials as to how crimes against humanity can devastate a country for centuries.’
Ruth Green is Multimedia Journalist at the IBA and can be contacted at firstname.lastname@example.org