The Importance of a Treaty for Crimes Against Humanity

By Alexis Bloodsworth

Introduction

Currently, a treaty for crimes against humanity is absent from international law. Crimes against humanity are committed every day, and unlike war crimes or genocide, these crimes “do not engage State responsibility,” meaning that private individuals may be held responsible for committing them [1]. Similarly, unlike war crimes and genocide, which have dedicated international law treaties, crimes against humanity have not received the same treatment [2].  

In April of 2024, the United Nations (“UN”) Sixth Committee, per the General Assembly, will continue its consideration of a potential treaty for crimes against humanity in a resumed 78th session [3]. This session follows several other General Assembly sessions considering the item after the International Law Commission (“ILC”) proposed a set of fifteen draft articles to rectify this gap in international law [4]. These were titled “Draft Articles on Prevention and Punishment of Crimes Against Humanity” [5]. The Sixth Committee is set to decide on the treaty at the 79th session [6]. By discussing two of the main articles of the draft, we can hopefully understand why a treaty like this one is necessary.  

Background

What are crimes against humanity?  

Crimes against humanity were first recognized under international law in the 1945 Nuremberg Charter, but the Rome Statute of the International Criminal Court contains the newest and most thorough definition [7]. The definition of the Rome Statute provides: 

‘a crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: a. Murder; b. Extermination; c. Enslavement; d. Deportation or forcible transfer of population; e. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; f. Torture; g. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; h. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds; i. Enforced disappearance of persons; j. The crime of apartheid; k. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health [8]. 

What are the relevant lawmaking bodies? 

ILC and Sixth Committee  

The ILC was established by the General Assembly in 1947 under Article 13 (1) (a) of the Charter of the UN [9]. Its main purpose upon creation was to advocate for the development of international law [10]. As mentioned above, the ILC was the driving force behind the potential treaty when it released the draft articles. The Sixth Committee is the “primary forum for the consideration of legal questions in the General Assembly” [11]. All member states of the General Assembly have representation in the Sixth Committee [12]. The Sixth Committee is the body of the UN that will ultimately decide on the potential treaty [13].   

Analysis

As discussed above, a treaty for crimes against humanity is a significant piece missing from the puzzle that makes up international law. Even though crimes against humanity have been defined and even codified in the Rome Statute, the topic has never been given its own protections [14]. The two articles below will paint a broad picture of what the treaty could entail and what impact it might have.  

Article 3: General Obligations 

Article 3 of the draft articles includes general expectations that States will be held to by the proposed treaty [15]. The three general obligations contained in the draft are that (1) states have the obligation to not engage in crimes against humanity; (2) states must prevent and punish crimes against humanity regardless of whether they were committed during times of armed conflict; and (3) there are no exceptional circumstances that can be used to justify crimes against humanity [16]. 

Several draft comments provide notable insight into what these obligations might demand in practice. First, the comments discuss how the International Court of Justice has interpreted similar obligations in the past while applying the Convention on the Prevention and Punishment of the Crime of Genocide [17]. Relevant to the first obligation in this draft, the Court deemed that this obligation is not limited to a State’s own territory but wherever it is acting [18]. In interpreting an obligation like the second in this draft, the Court found that States should use their “best efforts (a due diligence standard)” in complying [19]. Lastly, the comments discuss how the formulation of the third obligation “relates to the conduct of either State or non-State actors” [20]. This approach encompasses individual behavior, which will prevent private people from using extraordinary circumstances as a defense to their crimes.  

Article 4: Obligation of Prevention 

Article 4 of the draft articles confers specific responsibilities on States that expand upon Article 3, Section 2: the duty to prevent crimes against humanity [21]. Article 4 says that for States to prevent crimes against humanity, they should promote legislative, administrative, judicial, or other preventive measures and cooperate with other States or intergovernmental organizations [22].  

Returning to the draft comments as well as the Convention on the Prevention and Punishment of the Crime of Genocide, we can gain insight into what things States are expected to do when fulfilling an obligation such as prevention [23]. Some of these expectations include protecting a State’s own population from the crimes, encouraging Member States to build their capacities to prevent, and appointing “focal points” for prevention [24]. Although these expectations were discussed initially in the context of genocide, they are appropriately transferrable here. In addition to discussing expectations in the genocide context, the comments also discuss the potential expectations for States, specifically in the context of crimes against humanity [25]. These include adopting national laws that promote early detection, reviewing those laws periodically, educating government officials on the State’s obligations, providing training for law enforcement, and, if an act is committed, investigating and prosecuting in good faith [26]. 

Finally, the comments discuss the importance of the second part of Article 4 by including text from the Charter of the United Nations [27]. One of the main purposes of the charter was to promote international cooperation to solve international problems [28]. Therefore, the second part of Article 4 directly aligns with this goal while also promoting the objective of preventing crimes against humanity.  

Conclusion

Although this is a dramatically broad overview of the proposed treaty, it hopefully sheds some light on the possibilities that are currently afoot. There is still a great deal of uncertainty regarding the outcome of this proposed treaty for crimes against humanity. However, regardless of the Sixth Committee’s final decision, the draft articles published by the ILC have revitalized an international interest in preventing and punishing crimes against humanity. 

[1] Trial International, Crimes Against Humanity, Trial Int’l, https://trialinternational.org/topics-post/crimes-against-humanity/ (last visited Mar. 12, 2024).  

[2] Q&A: Towards a Crimes Against Humanity Treaty, Hum. Rts. Watch, (Oct. 6, 2022), https://www.hrw.org/news/2022/10/06/qa-towards-crimes-against-humanity-treaty#Q2.  

[3] Sixth Committee – Legal (78th Session), United Nations, https://www.un.org/en/ga/sixth/78/cah.shtml (last visited Mar. 13, 2024).  

[4] Id.  

[5] Id.  

[6] Id.  

[7] Trial International, supra note 1.  

[8] Crimes Against Humanity, United Nations, https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml (last visited Mar. 13, 2024).  

[9] Home, Int’l Law Comm’n, https://legal.un.org/ilc/ (last visited Mar. 13, 2024).  

[10] Id.  

[11] Sixth Committee (Legal), United Nations, https://www.un.org/en/ga/sixth/ (last visited Mar. 13, 2024).  

[12] Id.  

[13] Sixth Committee – Legal (78th Session), supra note 3.  

[14] Q&A: Towards a Crimes Against Humanity Treaty, supra note 2.  

[15] Int’l L. Comm’n, Rep. on the Work of Its Seventy-First Session, U.N. Doc. A/74/10, at 47 (2019).  

[16] Id.  

[17] Id. at 48. 

[18] Id.  

[19] Id. at 49.  

[20] Id. at 53. 

[21] Id. at 54.  

[22] Id.  

[23] Id. at 58. 

[24] Id.  

[25] Id. at 59.  

[26] Id. 

[27] Id. at 61. 

[28] Id.