Draft global treaty on crimes against humanity reaches critical juncture

Ruth Green, IBA Multimedia JournalistWednesday 29 September 2021

Though crimes against humanity were first prosecuted at Nuremberg in 1945, they have still never been codified in a dedicated global treaty. That may be about to change as UN business regains some semblance of normality, with the General Assembly resuming in-person gatherings in September. There’s renewed hope for a convention to fill this long-standing gap in international law.

The groundwork for such a treaty has been 13 years in the making, initiated as a project of Washington University School of Law in St. Louis in 2008. Leila Sadat, the James Carr Professor of International Criminal Law and Director of the University’s Whitney R. Harris World Law Institute, has been spearheading the initiative.

Discussions gathered momentum after the International Law Commission (ILC) took on the project in 2013 and appointed Sean Murphy as Special Rapporteur for Crimes Against Humanity the following year. In 2019, the ILC submitted a final text of draft articles to the General Assembly.

The pandemic has been partly to blame for the treaty’s stalled progress, but the General Assembly’s legal committee is due to review the latest draft on 8 October. This will mark the third attempt to push discussions towards a fully-fledged negotiation process.

Sadat is optimistic about its prospects and believes states recognise the need to end impunity for crimes against humanity, which include murder, extermination, enslavement, torture, deportation and other inhumane or sexually violent acts committed against any civilian population. ‘Look at some of the crises we have today, whether it's the Rohingya, the Yazidi, the Uighurs or what’s happening in North Korea,’ she says. ‘What we're arguing about in almost every one of those cases is whether or not it's genocide. The urgency of this treaty is greater than ever to refocus our attention on the prevention of atrocity crimes and to building real tools to deal with these crimes.’

Mark Ellis, Executive Director of the IBA, says it’s only right that the same legal mechanisms exist to prosecute crimes against humanity as other atrocity crimes, such as genocide, war crimes and torture. ‘It is, in many respects, the most common atrocity crime in existence,’ he says. ‘Thus, the lack of a treaty regime establishing concrete obligations to prevent and punish crimes against humanity has left a loophole in the law.’

Whether it's the Rohingya, the Yazidi, the Uighurs or what’s happening in North Korea, what we're arguing about in almost every one of those cases is whether or not it's genocide

Leila Sadat
Chair, Crimes Against Humanity Initiative Steering Committee

Like the Rome Statute before it, the ILC’s draft text states that crimes against humanity can occur both in peacetime and armed conflict. This consistency is important, says Professor Juan Méndez and Justice Richard Goldstone, who both sit on the steering committee for the initiative.

Although the ICC investigates and prosecutes crimes against humanity as well as genocide and war crimes, Méndez says the Rome Statute is no substitute for a global convention protecting civilians specifically against crimes against humanity. ‘The Statute of Rome defines crimes against humanity for the purposes of the jurisdiction of the ICC and it's very useful,’ says Méndez, who served as UN Special Rapporteur on torture from 2010-2016. ‘There’s still a need for a treaty that establishes state responsibility for crimes against humanity. It's also important to establish the kind of obligations for mutual assistance between states that are characteristic of both genocide and war crimes. There’s currently nothing mandating it for crimes against humanity.’

Hans Corell, former head of the UN Office for Legal Affairs, also sits on the steering committee, and agrees the proposed treaty would clarify the responsibilities both of states and the international community. ‘Even if crimes against humanity are regulated in the Rome Statute of the International Criminal Court it is important to have a specific convention, which will regulate all elements related to the interstate cooperation in fighting these crimes,’ he says.

Despite delays caused by the pandemic, Corell says the progress of the draft articles at the UN has been nothing short of ‘extraordinary’ and hopes states will ‘engage actively’ in the upcoming discussions.

‘The initiative is a huge achievement and it's got just one hurdle to go,’ says Goldstone, who is also Honorary President of the IBA’s Human Rights Institute. He’s confident the treaty will garner widespread support. ‘There are 123 members of the ICC and I think there will be a huge increase in the number of states who would sign up to the convention,’ he says. ‘That's been reflected in the debates that have taken place at the ILC, but more importantly, in more recent years before the Sixth Committee.’

Sadat was recently reappointed as a special adviser on crimes against humanity to ICC Chief Prosecutor Karim Khan QC – a position she held under his predecessor since 2012. She says the convention would help fill the ‘accountability gap’ left by the ICC and other ad hoc tribunals. Moreover, it would also be the first global treaty to criminalise sexual and gender-based violence in both peacetime and wartime.

Sadat says it would also put an end to what she refers to as ‘the atrocity cascade’ that has engulfed countries like Syria, where the conflict has already claimed the lives of more than 400,000 civilians. ‘It’s a war that has deteriorated into pockets of genocide,’ she says. ‘We have these horrible pockets of atrocity crimes that are in the hundreds of thousands around the world. Having a global treaty on crimes against humanity makes a statement that we care, not just about punishment, but about prevention.’

Ellis believes there’s no excuse now for states to delay formalising the proposals, which draw largely on existing laws. ‘The ILC’s commentary painstakingly traces the legal lineage of the draft articles to existing treaties,’ he says. ‘With this robust backing in practical law, the draft articles are a necessary solution to an unfortunate oversight in the current state of international criminal law. It is time to rectify this error.’

Image: Bakhtiar Zein C / Shutterstock.com

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