Since the publication of a model draught treaty 16 years ago, there has been an increase in interest in negotiating and adopting a new international treaty on the prevention and punishment of crimes against humanity. This is especially true after the United Nations International Law Commission (ILC) submitted a final set of draught articles to the General Assembly on August 5, 2019.

Progress on this significant treaty has stopped in the Sixth Committee of the U.N. General Assembly, despite paragraph 42 of the ILC’s report recommending “elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries on the basis of the draught articles.”

But there are ways the U.N. General Assembly’s Sixth Committee, which examines legal problems, might advance the draught language of the ILC, fulfilling its obligation under the U.N. system and raising the possibility that this important instrument will be negotiated and ratified soon.

The Past Three Years of Sixth Committee Deliberations

It was not the first time a new treaty had been suggested before the General Assembly when the ILC’s draught was presented to the Sixth Committee in 2019. Since starting to work on the subject in 2013, the ILC has diligently surveyed State opinions, and the draught has taken into consideration a substantial amount of State feedback. As a result, a sizable majority of States in 2019 were ready to start the treaty’s negotiations at a diplomatic conference that Austria proposed to host.

Crimes Against Humanity However, a tiny number of States questioned the text and requested additional time to review it, while an even smaller number outright rejected the pact. The outcome was a dismal resolution that made a promise to review the proposed articles the next year while also “taking note” of them.

The COVID-19 pandemic in 2020 made things worse. The Sixth Committee adopted a technical rollover resolution once more just “taking notice” of the draught articles as a result of strict restrictions on working procedures being put in place. This time, Mexico expressed worries that there was a “danger of being stuck in a cycle of examination and postponement of the articles without actual action, which might weaken the connection between the General Assembly and the ILC,” and received backing from 13 more States.

Expectations were high in 2021 since State initiatives in the Sixth Committee received largely favourable reviews. A few States once more voiced their opposition to taking any action (in striking contrast to their opinions that on other agenda issues a working group may be constituted to take into account the Commission’s advice and report back to the Sixth Committee). Crimes Against Humanity Due to the Sixth Committee’s custom of reaching decisions by “consensus,” those who supported the draught articles declined to put the subject to a vote, which led to another technical rollover to 2022.
Several nations, notably Mexico, which disassociated itself from the draught resolution and therefore broke the consensus, voiced disappointment at this unsatisfactory decision. Other nations, such as the United States, the United Kingdom, Israel, and the European Union, voiced opposition in their “explanation of position” documents (joined by 22 additional States for a total of 50). The EU statement failed to “capture[] the view of the majority” and was in conflict with the Sixth Committee’s authority granted by the U.N. Charter, according to the statement, which noted that the ILC’s draught was being withheld from discussion because of the consensus tradition of the Sixth Committee.

In 2022, breaking the impasse

It is difficult to excuse the Sixth Committee’s ongoing silence on the proposed wording of the ILC given the horror and prevalence of crimes against humanity around the world as well as the character of this standard as a peremptory principle of international law. In an effort to envision how the procedure may move ahead, we have developed a White Paper that outlines three potential directions:

The General Committee may transfer the draught articles on crimes against humanity to the Third Committee or the General Assembly’s plenary; the Sixth Committee may convene an Ad Hoc Committee; go immediately to a codification conference; or work on the draught articles as a Committee of the Whole.

The United Nations is nearby.
For two reasons, the Sixth Committee is the main topic of this study Crimes Against Humanity. First off, the Sixth Committee has already adopted ILC goods with success. In addition to fulfilling the General Assembly’s mission under Article 13(1) of the U.N. Charter to foster “the progressive evolution of international law and its codification,” it serves as the customary forum for discussion and implementation of the ILC’s recommendations.

The U.N. Convention on Jurisdictional Immunities of States and Their Property and the ILC’s Draft Statute for the Establishment of an International Criminal Court are two ILC products that the Sixth Committee Crimes Against Humanity has successfully adopted. Other ILC products have also been adopted by the Committee as a whole (for the development of the U.N. Convention on the Law of the Non-Navigational Uses of International Watercourses), or by sending draught articles directly to a Codi (i.e., as it did in 1984 to negotiate the Convention on the Law of Treaties between States and International Organizations or Between Two or More International Organizations final text

The majority of States supported the formation of an ad hoc committee to discuss the ILC Draft Articles on Crimes Against Humanity during the Sixth Committee’s 2021 session, which was obviously consistent with prior Sixth Committee practise. They just weren’t willing to go against the “custom” of the majority and cast their ballot.

Voting versus consensus

Any of the solutions put up by the Sixth Committee might be carried out either by passing a resolution by agreement or by a vote. The use of the so-called consensus “rule,” which is neither a rule nor being used to establish consensus, has stalled progress.