The UN International Law Commission Progresses Towards a New Global Treaty on Crimes Against Humanity

On July 17, 2014, the United Nations International Law Commission (ILC) voted to move the topic of a new treaty on crimes against humanity to its active agenda and appoint Professor Sean Murphy as Special Rapporteur.[1] Over the past two years, the Rapporteur has made significant progress, and the Commission has now approved ten draft articles—four in summer 2015[2] and six additional articles in August 2016.[3] The expectation is that a complete set of Draft Articles will be completed in 2018. This could lead to the adoption of a new global treaty on crimes against humanity, filling a gap that has persisted for nearly seventy years.

This Insight briefly examines the potential contribution of a new treaty on crimes against humanity to the framework of international law, explores the work of the Commission thus far, and offers a few reflections on possible future issues that may arise as the Commission completes its work.

Crimes against humanity were prosecuted at Nuremberg and Tokyo as one of the three charges brought against Axis leaders arising out of their conduct during the war, although the terms “crimes against humanity” and “offenses against the laws of humanity” have long historic pedigrees.[4] Following the trials, the UN General Assembly adopted the Nuremberg Principles embodied in the International Military Tribunal Charter and Judgment,[5] and the International Law Commission codified them in a way that largely retained the Nuremberg definition of the crime.[6] This transformed “crimes against humanity” from a rhetorical flourish to a category of offenses condemned by international law for which individuals could be tried and punished.  

No comprehensive treaty on crimes against humanity was ever proposed or negotiated, however, although the Genocide Convention (1948), the Apartheid Convention (1973), the Torture Convention (1984), and the more recent Convention on Enforced Disappearance (2006) recognize certain offenses as crimes against humanity. The International Law Commission continued to work on defining the crime under customary international law in the 1991 and 1996 versions of the Draft Code of Crimes,[7] and a consensus definition finally appeared in a multilateral treaty in 1998 when the Rome Statute for the International Criminal Court (ICC) was adopted.[8] The Rome Statute set out a list of eleven acts—including murder, extermination, and torture—that would reach the level of crimes against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”[9]

The absence of a comprehensive treaty on crimes against humanity does not mean that international law does not prohibit their commission. However, it does make concrete legal action—either before the International Court of Justice, international criminal tribunals, or national jurisdictions—more difficult for a variety of reasons. First, it is difficult to bring criminal cases under customary international law (as opposed to legislation) in national jurisdictions because of legitimate concerns about fairness to the accused. Second, international tribunal statutes vary considerably in their definitions of crimes against humanity and have very limited, retroactive application to crimes committed only during one specific conflict. Third, the International Court of Justice has no way of asserting jurisdiction in cases involving crimes against humanity other than genocide because there is no treaty with a compromissory clause so providing.[10] Finally, the limited number of national jurisdictions that have incorporated crimes against humanity into their domestic legislation lack tools for interstate cooperation in terms of extradition, arrest, prosecution, and the gathering of evidence, which make prosecutions very difficult at the national level.[11] Although the adoption of the Rome Statute represented real progress in defining crimes against humanity, the ICC Statute applies only to those few cases tried before the Court and does not require states to adopt implementing legislation.[12] The ICC Statute also provides no vehicle for interstate cooperation, leaving gaps in mutual legal assistance, extradition, and other aspects of the horizontal cooperation needed for the prosecution of atrocity crimes across state borders.

The International Law Commission included the topic of a crimes against humanity convention in its long-term work program in 2013 on the basis of a report prepared by Professor Murphy[13] that built upon the work of the Crimes Against Humanity Initiative, which had produced a draft comprehensive specialized convention on crimes against humanity in 2010.[14] The ILC’s 2013 Report identified four key elements a new convention should have: a definition tracking Article 7 of the ICC Statute; an obligation to criminalize crimes against humanity with national legislation; robust interstate cooperation procedures; and a clear obligation to prosecute or extradite offenders.[15] The obligation to criminalize crimes against humanity under national law is significant. A 2013 study found that only 54 percent of UN member states (104 of 193), and 66 percent of the states party to the Rome Statute of the ICC (80 of 121) have some form of domestic legislation relating to crimes against humanity.[16] The 2013 ILC report also emphasized how a new treaty would complement the Rome Statute.[17]

In autumn 2013, states commented on the Commission’s decision at the General Assembly’s Sixth Committee. Many states commented favorably, such as Slovenia, which stated that “all efforts should be directed at filling this gap.”[18] Austria, the Czech Republic, Italy, Norway, Peru, Poland, and the United States also welcomed the decision.[19] Other states, including France, Iran, Malaysia, Romania, and Russia,[20] questioned the need for a new treaty, arguing that a sufficient framework for the prevention and punishment of crimes against humanity is already provided for in the Rome Statute and other international instruments.

Following this input from governments and, subsequently, experts and civil society,[21] the Commission moved the topic of crimes against humanity to its active agenda in 2014.[22] The General Assembly took note of the Commission’s decision in paragraph 7 of its Resolution 69/118 of December 10, 2014,[23] and in the Sixth Committee, most states commenting on the topic expressed support for the Commission’s work.[24]

In 2015, the Special Rapporteur submitted his First Report and proposed two draft articles.[25] After debate and discussion, four articles emerged from the Drafting Committee, which the Commission then adopted.[26] These articles (1 through 4) define the scope of the draft convention, the general obligations of states (to prevent and punish crimes against humanity whether or not committed in time of armed conflict), and crimes against humanity identically to Article 7 of the ICC Statute, while also including an innovative “obligation of prevention.” When the Commission’s work was again presented to the Sixth Committee, twenty-five of the thirty-eight states commenting on the project reacted positively, while again emphasizing the need for the draft articles to be consistent with the Rome Statute for the International Criminal Court.[27] A few states maintained that a Convention on the topic of crimes against humanity was unnecessary, and others still noted that the project was in its infancy and they would continue to develop their views as the Commission progressed in its work.[28]

In May 2016, the Commission considered the Special Rapporteur’s Second Report, which proposed six additional draft articles.[29] The Commission also received a memorandum by the Secretariat providing information on treaty-based monitoring mechanisms.[30] After debate, the Commission provisionally adopted draft articles 5 through 10 with commentary.[31] These articles include provisions requiring states to criminalize the offense, provide for command responsibility, eliminate the defense of superior orders, abolish any statute of limitations, impose appropriate penalties, and establish the liability of legal persons over the crime. The last of these provisions proved somewhat controversial for the Commission, which had to balance a variety of state views and a divergence in approaches taken by international legal instruments regarding the responsibility of legal, as opposed to natural, persons. The Commission decided to extend liability to legal persons given their potential to be involved in the commission of crimes against humanity, however, in doing so used language that has been “widely accepted by States in the context of other crimes” and that allows for considerable flexibility on the part of states in the implementation of their treaty obligation.[32] The draft articles also address jurisdiction, investigation, preliminary measures, aut dedere aut judicare, and fair treatment of the alleged offender. The provisional text evinces the careful and thorough work of the Special Rapporteur, as well as the attention devoted to the topic by the Commission.  The Drafting Committee clearly took into account the comments of members (particularly with regard to the importance of streamlining the project with preexisting legal frameworks, such as the Rome Statute), as well as the views of experts and NGOs, and the resulting draft text includes many ideas advanced during these discussions. The reaction of governments to the Commission’s 2016 Report was positive, with only three states (of thirty-six commenting) proffering negative views, and all others ranging from neutral to strongly positive.[33]

The Special Rapporteur is now preparing its Third Report and is contemplating one more to follow,[34] meaning that a full set of draft articles could be ready as soon as August 2018. Further articles may concern a possible treaty monitoring mechanism, provisions on interstate cooperation, and a dispute resolution provision. The question of reservations will also be important. Under the Commission’s Statute, following the completion of this work it can suggest further study, depending upon government reaction. The Commission can also propose a revised set of draft articles on second reading, the convening of a diplomatic conference to negotiate a new treaty,[35] or the adoption of the Convention by a General Assembly Resolution. Seventy years after Nuremberg, the Commission’s work to elaborate a text of a new global treaty on crimes against humanity is historically significant and is clearly an important contribution to both the progressive development and codification of international law.

About the Authors: Leila Nadya Sadat, an ASIL member, is the Special Adviser on Crimes Against Humanity, ICC Prosecutor; James Carr Professor of International Criminal Law; and Director of the Whitney R. Harris World Law Institute at Washington University School of Law. Kate Falconer, LLB ’16 (University of Queensland), LL.M. in U.S. Law ’16 (Washington University School of Law)