Sixth Committee Speakers Commend Administration of Justice System’s Progress, But Call for Further Improvements in Resolving Workplace Disputes
Concluding Criminal Accountability of Officials on Mission, Legal Committee Takes Up Crimes Against Humanity
Positive developments in the formal and informal systems for resolving workplace disputes within the Organization over the past year must be joined by further improvements, speakers stressed as the Sixth Committee (Legal) today considered the administration of justice at the United Nations.
As delegates took up the Secretary-General’s reports on that topic (documents A/78/156, A/78/170 and A/78/121), China’s representative joined many others in welcoming improvements to the Organization’s internal justice system over the past year. However, she pointed out that disagreements still exist on some of the United Nations Dispute Tribunal’s rules of procedure. Having proper rules for evidence, statutes of limitations and the scope of judicial review is crucial to maintain the efficient, independent functioning of the formal system of justice at the United Nations.
That justice system is needed to resolve issues that arise in the workplace, said the representative of Eritrea, highlighting the importance of both formal and informal formats. This is all the more important given that the Organization faces systemic racism. More broadly, he stressed that — as every UN staff member is expected to “meet the highest aspirations of the people of the world” — they must enjoy a working environment in which they feel included, valued and respected.
The representative of Switzerland, however, underlined the need to ensure that the internal justice system is accessible to all categories of UN personnel. Non-staff are often reluctant to discuss their professional issues due to the nature of their contracts and the fear of retaliation. She therefore expressed support for regularizing the pilot project enabling non-staff personnel to turn to the Office of the United Nations Ombudsman and Mediation Services.
Mozambique’s representative also welcomed the use of mediation as a tool for dispute resolution, as it is cost-effective, saves time and avoids the strain of the litigation process. Adding that the number of cases pending in the Dispute Tribunal in December 2022 was less than when that year began — a positive development — he nevertheless stressed that “higher productivity must be accompanied by the quality of the justice that is delivered”.
The Sixth Committee also began its debate on crimes against humanity today, centred on the International Law Commission’s draft articles on the prevention and punishment of such crimes — last discussed when the Committee resumed its seventy-seventh session in April. (For background, see Press Release GA/L/3683.)
Speaking for a cross-regional group of 86 Member States — as well as the European Union — the representative of Gambia said that the April dialogue was a constructive experience for the Committee to move beyond a procedural debate, expressing hope that this process will be replicated in April 2024. He also joined many others in pointing out that there is no dedicated treaty addressing crimes against humanity. A convention on such crimes would, inter alia, provide a new legal basis for extradition and mutual legal assistance.
Detailing an example of recent progress in that area was Hungary’s representative, who spotlighted the 26 May adoption of the Ljubljana — The Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes and other International Crimes. However, she emphasized, this new instrument focuses on mutual legal assistance and, therefore, cannot be considered as an alternative to the draft articles.
Building on that, Latvia’s representative — also speaking for Estonia and Lithuania — said that the existing legal gap isolates victims from receiving the justice they deserve. A convention, however, would prioritize the protection of victims’ rights and their access to justice. “A dedicated convention on crimes against humanity would send a clear message to the world that these crimes are intolerable and will not go unpunished,” she stressed.
Also voicing support for such a convention was Brazil’s representative, who added that the instrument’s preamble should refer to the Charter of the United Nations and its principles on the non-use of force and the non-intervention in the internal affairs of any State. This would dispel fears that allegations of crimes against humanity could be misused as a pretext for aggression and intervention, and thus facilitate the negotiation of — and wide adherence to — a future convention.
Austria’s representative expressed support for an early convening of a diplomatic conference — possibly in Vienna — to finalize and adopt such a convention, urging delegations to constructively engage in the debate to make meaningful progress to that end. While criminalization does not always prevent crimes from happening, it still means a change of awareness, he stressed, observing that a dedicated convention based on the draft articles will strengthen prevention.
At the outset of the meeting, the Committee concluded its debate on criminal accountability of United Nations officials and experts on mission. (For background, see Press Release GA/L/3689.)
Haiti’s representative, expressing concern that almost all cases in the Secretary-General’s report lack follow-up, said that this raises serious questions regarding the efficacy of current mechanisms for monitoring and prosecution. He spotlighted the United Nations Stabilization Mission in Haiti (MINUSTAH), where — although serious cases of human rights violations were reported — allegations concerning blue helmets were not acted on. He added that the total lack of information on current investigations and prosecutions is particularly worrisome, given the seriousness of the allegations and the need to maintain public trust.
The Sixth Committee will next meet at 10 a.m. on Thursday, 12 October, to continue its discussion of crimes against humanity.
Criminal Accountability of United Nations Officials and Experts on Mission
Mr. ALI HASANI (Iraq), associating himself with the Non-Aligned Movement, reaffirmed that United Nations officials and experts on mission have the legal responsibility of respecting the rules organizing their work. Immunities were granted to them to undertake their missions in impartiality, he noted, emphasizing that, at the same time, they must respect the rules organizing their work. He stressed that adopting a strict legal framework will reduce any violations in this regard, reiterating Iraq’s readiness to support all efforts in this direction. He also expressed confidence that the Secretary-General and his team are equally keen on preserving the Organization’s reputation and on holding defaulters accountable.
GLORIA DAKWAK (Nigeria), associating herself with the African Group and the Non-Aligned Movement, underscored that UN officials and experts must always behave professionally when in the field and should not be exempt from criminal liability. To this end, she voiced support for the General Assembly resolution that encourages States to introduce measures ensuring that personnel who violate laws are held accountable. Noting that offenders should be referred to States of their nationality for prosecution, she underscored that punishment for perpetrators of heinous crimes serves as a deterrence. Nigeria, for its part, adheres to a zero-tolerance policy regarding criminal activities of officials, in particular abuse and sexual exploitation. Also important is pre-deployment and regular training, she said, welcoming any measures put in place to prevent crimes by UN personnel. To redress injustices, Nigeria will continue to support the Trust Fund in Support of Victims of Sexual Exploitation and Abuse, she said.
Ms. NGUGU (Kenya), associating herself with the African Group and the Non-Aligned Movement, said that her country — one that contributes troops and hosts a UN office on its territory — understands the importance of collective responsibility for ensuring that isolated incidents of misconduct are dealt with in a timely, decisive manner. The starting point must be at recruitment, which should include thorough vetting and background checks to ensure that candidates have no criminal records. Further, Member States must continually remain responsible for acts committed within their territories or by their nationals, which requires the adoption of measures necessary for sufficient jurisdictional capacity. It also calls for building capacity in the different aspects of accountability, including jurisdiction, investigation and prosecution. In this regard, she encouraged cooperation and the sharing of good practices among Member States, along with technical assistance by the UN.
THI NGOC HANH NGUYEN (Viet Nam), associating herself with the Non-Aligned Movement, said that UN peacekeepers and personnel must uphold the laws of the host country and their country of nationality. Reiterating support for the zero-tolerance policy, she pointed out that to ensure accountability it is essential to address jurisdictional gaps. Calling on States to adopt national legislation and enhance international cooperation to ensure that the perpetrators of criminal activities among the UN officials and experts on mission do not go unpunished, she drew attention to Viet Nam’s legislative measures and other relevant instruments. She also spotlighted the importance of preventive measures, including strengthening training and vetting measures, and endorsed the Secretary-General’s efforts to ensure mandatory pre-deployment training, induction training upon arrival and refresher training to enhance awareness of the UN personnel regarding the Organization’s standards of conduct.
NICAISE SERVAIS DOUCKAGA NZENGUI (Congo), associating himself with the Non-Aligned Movement and the African Group, emphasized that his country attaches great importance to the issue of respect for protection of human rights, in particular regarding accountability for crimes against humanity. Such acts should not go unpunished, even if each State should benefit from diplomatic immunities and protections. Recently, Congolese military officials in the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) underwent judicial investigation, he reported, noting that the process is still underway at the national level. While any candidate for deployment should receive training and awareness-raising, there should be processes aimed at tackling criminality and punishing those responsible, especially in cases of proven sexual allegations. Criminal accountability should be implemented in line with the principles of a fair trial and presumption of innocence. Sometimes those prosecuted are being targeted intentionally, he said.
Mr. CAMARA (Guinea), associating himself with the African Group and the Non-Aligned Movement, reported that his country has “made a number of contributions in this area to properly represent the international community”. However, while welcoming efforts made on various fronts, he underlined the need to better define strategies necessary to effectively combat the problems still occurring. “Impunity should not exist,” he underscored, noting that his country is supporting several initiatives to combat this kind of abuse. He also said that, while undertaking measures that will allow “cardinal virtues” to be promoted around the world “is a good thing”, the international community must avoid double standards. To this end, national arsenals must be strengthened to avoid the actions of a few international officials on mission staining the image of those who risk their lives to help others throughout the world.
ZACHARIE SERGE RAOUL NYANID (Cameroon) said that subsidiary bodies should have greater disciplinary powers since they are closer to the events on the ground. More so, they should be able to take on conservatory measures to provide moral respite to the victims. He welcomed the texts adopted by the United Nations Entity for Gender Equality and the Empowerment of Women (UN‑Women); they will serve as a framework for handling the cases of non-abidance by the UN System Code of Conduct. Underscoring the importance of creating a calm environment within the Organization to ensure that everyone who works there is motivated, he added: “Governance should be front of mind for us, because we all need to shoulder our share of responsibility.” Furthermore, States must refer cases to national authorities whenever the investigation results prove that the crime was committed, he asserted. Citing an African proverb, he observed: “Whip marks on your back will not help a child behave better.”
BETELIHEM TAYE (Ethiopia), associating himself with the African Group and the Non-Aligned Movement, noted that her country — one of the largest contributors to United Nations peacekeeping missions — bears a dual responsibility to ensure the criminal accountability of UN officials and experts on mission. It both hosts and sends out personnel that enjoy immunity. To prevent impunity, Ethiopia’s criminal law has a universal jurisdiction over its nationals. All States should assume and exercise jurisdiction over crimes committed by their nationals whom enjoy diplomatic immunity as UN staff. However, there is an urgent need for the United Nations to strengthen its preventive and redress mechanisms against various forms of transgressions, as well as its internal systems for investigating and holding its personnel accountable. Further, protection for whistle-blowers and witnesses against retaliation and intimidation must be strengthened. Also crucial is the cooperation between the Organization and host countries, she added.
WISNIQUE PANIER (Haiti), aligning himself with the Community of Latin American and Caribbean States (CELAC), recalled that his country has hosted around 10 UN missions over the last 30 years. Thus, the Haitian people have seen the advantages and challenges such missions can bring to a country in a difficult situation. Expressing concern that almost all cases in the Secretary-General’s report lack follow-up, he said this raises serious questions regarding the efficacy of current mechanisms for monitoring and prosecution. He spotlighted the United Nations Stabilization Mission in Haiti (MINUSTAH), where — although serious cases of human rights violations were reported — allegations concerning blue helmets were not acted on. This left an impression of impunity and eroded Haitians’ trust in international institutions. Adding that the report shows systemic problems with transparency and accountability in UN missions, he said that the total lack of information on current investigations and prosecutions is particularly worrisome, given the seriousness of the allegations and the need to maintain public trust.
Administration of Justice at the United Nations
MARVIN IKONDERE (Uganda), speaking for the African Group, expressed support towards strengthening UN’s internal system of justice to ensure that work-related disputes receive the fullest attention of managers and are resolved in a timely manner. Pointing out that informal conflict resolution is an equally crucial component of the justice administration system within the UN, as it reduces resorts to unnecessary litigation and is cost-effective, he encouraged continuous recourse of the informal resolution of work-related disputes. Further, he said he was pleased to see the decrease in the backlog of pending cases by the UN Dispute Tribunal, while noting with concern that field personnel continue to carry the highest number of caseloads.
Expressing appreciation for the combined support provided by the Office of Administration of Justice’s outreach efforts for staff opting for self-representation by providing them with dispute and appeal toolkits, he underlined that applicants who decide to be self-represented should have all the necessary information to file a case and be confident in having a fair outcome. Recognizing the current financial constraints of the Organization, he welcomed the measures introduced by management to increase the handling of the caseload and deemed it appropriate to maintain the “half-time judges model”, which has proven to enhance the effectiveness of the justice system.
SIMONA POPAN, representative of the European Union, in its capacity as observer, welcomed the reduction of the backlog of cases. To accelerate that trend, there should be an increased recourse to informal mediation services for administrative and labour disputes. While the systematic reviews of the policy on protecting parties and witnesses against retaliation are commendable, the current system requires further improvement, especially regarding privacy and confidentiality matters. In light of this, she called on the Dispute and the Appeals Tribunals to implement mechanisms for granting anonymity to victims and witnesses should the circumstances so require. Any proposals for amending the formal pillar of the Administration of Justice structure must strengthen the cooperation between and functioning of both Tribunals. Endorsing all endeavours towards strengthening the transparency and accessibility of the system, she commended the establishment of a new CaseLaw Portal and Electronic Digest for all judgments.
Turning to the informal administration of justice, she pointed to the unequal access to mediation services of the Office of the United Nations Ombudsman and Mediation Services for staff and non-staff personnel. Such processes remain underutilized among the latter, she noted, stressing that the informal pillar offers a cost‑ and time-effective alternative to protracted litigation. To reduce such inequality, she called for regularizing the pilot project that extends access to informal dispute resolution services to non-staff personnel. On promoting dignity for all and eliminating instances of racism, she praised the skill-building activities to foster conflict competence and prevention of conflict escalation. The Dignity through Civility campaign and the dialogues on racism in the Organization have proven effective in promoting understanding, empathy and respect among employees. Multilingualism within the system of the Administration of Justice contributes to effective, efficient and accessible dispute resolution whilst increasing outreach and awareness, she said.
KEVIN TIMOTHY MEAD (Canada), also speaking for Australia and New Zealand, emphasized the importance of a transparent, impartial, independent and effective internal justice system at the United Nations. An effective, transparent and adequately resourced system — anchored in the principles of due process and access to justice — is essential for the Organization to be able to deliver its objectives. He commended the productivity of the Dispute and Appeals Tribunals for their successful efforts in continuing to reduce the backlog of pending cases. He also recognized the Tribunals’ efforts to train and foster the competence of new judges. Further, he welcomed the ongoing commitment to multilingualism and the increase in geographical and linguistic diversity of the Tribunals during the reporting period.
He went on to note that the Office of the United Nations Ombudsman and Mediation Services has identified systemic issues that underpin workplace conflict. In that regard, he welcomed efforts to address mental health challenges and improve working environments. While expressing concern over the harm caused by discriminatory attitudes and behaviours, he acknowledged ongoing efforts to address racial and gender discrimination and sexual harassment in the Organization, along with efforts to promote diversity, equality and inclusion. Also expressing concern over the risk of retaliation as a persistent problem in the Organization, he called for more attention and action to ensure protection against retaliation and for whistle-blowers.
DOROTHY PATTON (United States), spotlighting the Office of the Ombudsman and Mediation Services’ twentieth anniversary, noted that over the past two decades over 25,000 cases handled by the Office have yielded lessons learned on continuously improving the workplace for UN personnel. Over the past year, the challenges of in-person work and increased travel have resurfaced, she noted, highlighting that the Office has “wisely” recognized the mental health issues — that accompany other concerns — require attention over the long term. She also commended the Office’s “informal first” approach to resolving workplace conflicts before such issues spiral out of control, also pointing to continuous improvements in judicial and operational efficiency under the Case Disposal Plan. These improvements resulted in the Dispute and Appeal Tribunals reducing their pending caseloads, including the improved access to justice and transparency that the CaseLaw Portal, e-filing capabilities and virtual courtrooms have enabled, she observed.
FANNY RATHE (Switzerland) underscored that access to justice should be fair, transparent, effective and non-discriminatory. It is essential to ensure that the Administration of Justice system is accessible to all categories of UN personnel without distinction. She pointed out that non-staff are often reluctant to discuss their professional issues because of the nature of their contracts and fear of retaliation. Stressing the importance of extending access to effective remedies to such personnel, she welcomed the Secretary-General’s proposals to improve their access to justice. She also expressed support for the regularization of the pilot project enabling non-staff personnel to turn to the Office of the United Nations Ombudsman and Mediation Services. Commending that Office’s work to promote informal resolution of work-related conflict, she noted that mediation is still used insufficiently. The Secretary-General should promote to a greater extent its use for all personnel categories, she said.
ANGELIQUE VAN DER MADE (Netherlands), aligning herself with the European Union, said that, while 2022 was a year of change and transition, the importance of ensuring a pleasant workplace in which all UN personnel can perform their best is clear. When conflict does occur, it must be addressed as soon as possible — either at the managerial level or through the Ombudsman. Noting that the United Nations Dispute Tribunal disposed of 251 cases during 2022 while also reducing its backlog, she nevertheless pointed out that a backlog remains and encouraged the Tribunal to increase its efficiency. She also said that the Office of the Ombudsman and Mediation Services provides a safe, accessible and cost-effective way for all staff members to discuss any workplace concern. Of a total of 1,560 cases opened by the Office in 2022, 100 involved mediation. This presents an opportunity to increase the use of mediation services, she said, encouraging the Office to continue promoting this form of dispute resolution.
NATALIA JIMÉNEZ ALEGRÍA (Mexico) said that in 2022 the lowest number of pending cases were registered, including the cases unresolved for over 400 days, although some cases have been resolved informally using the services of the Office of the Ombudsman and Mediation Services. Yet, despite the increase in utilizing mediation services, the Office continues to be underused, she observed, while spotlighting its potential to resolving disputes. In this regard, she expressed support for dissemination and awareness-raising, which will contribute to strengthening the notion of the informal solution as a first step. Underlining the importance of non-staff personnel having access to mediation services, she highlighted a pilot programme to that end. It is crucial that the pilot programme be regularized, she stressed, pointing out that the services of the Office of the Ombudsman and Mediation Services have been used mostly by women. In addition, she spotlighted the progress of the CaseLaw Portal and the new composition of the Tribunals in fostering multilingualism.
MA YANBO (China) welcomed the achievements of the internal justice system over the past year, as well as the efforts made to increase its efficiency, including effective measures to eliminate the backlog of cases, promoting multilingualism and introducing the CaseLaw Portal. Nevertheless, continued efforts are necessary to improve internal justice procedures. Commending the Dispute Tribunal for its proposed amendments to rules of procedure, she noted that disagreements still exist on some provisions. Having proper rules on evidence, statute of limitations and scope of judicial review is crucial to maintain efficient and independent functioning of the two Tribunals. Pointing out that the requests received by the system reflect certain trends, she called for potential disputes to be resolved at their inception. Mediation should the first step, using the informal approach to whatever extent possible. She also noted that last year, two candidates from China were elected as judges of the two Tribunals.
AMANUEL GIORGIO (Eritrea), aligning himself with the African Group, said that, as every UN staff member is expected to “meet the highest aspirations of the people of the world”, there must be a working environment in which they feel included, valued and respected. As well, there must be an administration of justice system that resolves issues that arise in the workplace through both formal and informal formats. The Office of Staff Legal Assistance has an important role to play in this context, guiding UN staff how and where to take their cases. He went on to stress that the Organization faces the persistent, pervasive challenge of systemic racism and racial discrimination, which must be eliminated. On that, he noted that the Secretary-General’s report outlines commendable measures in place to address racism in the workplace and promote dignity for all in the UN system.
ARIANNA CARRAL CASTELO (Cuba) noted that the Administration of Justice system constitutes a conflict resolution mechanism that seeks to strike a balance between the interests of the Organization’s administration and its staff. Thus, this system must aspire to be independent, transparent and professional. Emphasizing that one of the main objectives of the system should be to ensure protection of all rights — including human rights and the fulfilment of the obligations of officials — she said it should also guarantee accountability. She further spotlighted the role of the Office of Staff Legal Assistance in providing advice and other legal services essential to the fair and expeditious resolution of disputes. Encouraging a regular review of the system to continue improving it, she said it should have the necessary, adequate and decentralized resources at its disposal to carry out its functions effectively.
DUNCAN LAKI MUHUMUZA (Uganda), associating himself with the African Group, welcomed the appointment of judges appointed in November 2022 to enhance the geographical and linguistic diversity of the Administration of Justice system. With the new composition, the Appeals Tribunal will benefit from additional judicial capacity in French, Spanish, Arabic and Chinese. The system should embody the principle of fairness with people rather the Organization at its centre. This is increasingly important when addressing the issues of workplace culture, institutional racism and discrimination as part of the Decade for Action to Combat Racism and Racial Discrimination. Still, while mediation has proven effective at the national level, this process has been underutilized by the international system in addressing administrative and labour disputes. The Organization should use it as a tool to improve the quality of the relationship between management and staff, thereby also enhancing the quality of work, he noted.
INÁCIO VIRGÍLIO CHICO DOMINGOS (Mozambique), aligning himself with the African Group, underlined the importance of an independent, impartial, transparent and effective system for the administration of justice at the UN. Judges must be guided by these principles when adjudicating cases in the Dispute Tribunal and the Appeals Tribunal. They also must be immune to external influences of any kind and treat parties equally. Observing that labour conflicts are “inherent to the social nature of work” — and that the UN is not immune to this — he emphasized the need for an employee-centred mechanism to resolve disputes. On that, he welcomed the use of mediation as a tool for dispute resolution, as it is cost-effective, saves time and avoids the strain of the litigation process. Adding that the number of cases pending in the Dispute Tribunal in December 2022 was less than when that year began — a positive development — he nevertheless stressed that “higher productivity must be accompanied by the quality of the justice that is delivered”.
MELINA LITO (United Kingdom) recalled that her country was supportive of the Secretary-General’s proposal on amending the Dispute Tribunal to reinforce the legal framework established by the General Assembly regarding the authority to impose disciplinary measures on staff members. Welcoming the further analysis on amending four of the rules of procedure, she said she would welcome additional clarity on the practical impact of these proposed rule changes and whether all of them needed to be adopted as a package or if some may be easier to adopt than others. Turning to the report on the jurisprudence of the Tribunals concerning the anonymization of the names of applicants in judgments, she underlined that States need to uphold the transparency of the Administration of Justice system, while also ensuring protection of individuals through anonymization in exceptional cases. She said she would have concerns about the impact of anonymization if it was extended unduly, particularly in sexual exploitation and abuse cases, and welcomed further discussions to that end.
ZACHARIE SERGE RAOUL NYANID (Cameroon), associating himself with the African Group, welcomed the various approaches used by the United Nations in settling disputes. To resolve conflicts before they spiral out of control, he encouraged the Office of the United Nations Ombudsman and Mediation Services to make its role and its guiding principles better known. He also noted that the Office recorded a significant increase in the number of requests for its services, while the number of cases using the formal procedure fell. Regarding the power of the Secretary-General to take disciplinary measures, he expressed concern over its recent transfer to the Tribunals. However, in cases of sexual harassment, sexual exploitation and abuse, the highest official of the Organization cannot rely on an investigation report from the Office of Internal Oversight Services. The conclusion whether such acts were committed must be made by a judge of the Dispute Tribunal, he noted.
Crimes Against Humanity
AMADOU JAITEH (Gambia), speaking for a cross-regional group of 86 Member States, as well as the European Union, noted that there is no dedicated treaty addressing crimes against humanity, despite being recognized by the international community over 75 years ago in the Statutes of the Nuremberg and Tokyo Tribunals, and their potential wide application to many contemporary situations. Highlighting a gap in the international treaty framework, he said a convention on crimes against humanity would strengthen the prevention and punishment of such heinous crimes at the national level and establish obligations for States to cooperate and provide a new legal basis for extradition and mutual legal assistance.
The Sixth Committee’s engagement in April in a substantive and detailed legal dialogue on the International Law Commission’s draft articles on crimes against humanity was a constructive experience for the Committee as a whole to move beyond a procedural debate, he continued, voicing hope that it will be replicated in April 2024. “It is important to continue discussing and understanding our respective positions, as progress can only be made through structured dialogue and engagement,” he stressed, inviting all delegations to continue their constructive engagement, with the view to making a decision on the matter in the General Assembly’s seventy-ninth session.
DUNKAN LAKI MUHUMUZA (Uganda), speaking for the African Group, recalled that the substantive exchange of views in April aimed to achieve the necessary consensus on this matter without prejudice towards future action on this topic. Stressing that the success of global efforts against international crimes depends on the international community’s ability to act collectively, he said this will require all States to respect the fundamental foundations of societies, specificities and geographic realities. While the draft articles may be considered the basis for future work on this subject, legitimate concerns raised during the April debate must not be ignored as differences remain.
He went on to recall the negative impact that the injustices of slavery and exploitation had on Africa and people of African descent, calling for the inclusion of slavery and exploitation as crimes against humanity. He also emphasized that the fundamental legal concepts of territorial integrity, sovereign equality and non-interference enshrined in the Charter of the United Nations should be mentioned in the draft articles. Further, to effectively combat impunity, an efficient legal framework is needed, along with strengthened national prosecutorial capacity. He added that transparent debate should continue in the resumed session in April 2024, “using all time necessary for the proper and clear appreciation of the draft articles”.
SIMONA POPAN, representative of the European Union, in its capacity as observer, also noted that crimes against humanity were recognized by the international community in the Charters of the Nuremberg and Tokyo Tribunals over 75 years ago. They were also recognized in the statutes of international or internationalized tribunals such as the International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda, International Criminal Court, Extraordinary Chambers in the Courts of Cambodia and the Extraordinary African Chambers in the Senegalese Courts, she added. Yet, unlike the crime of genocide and war crimes, which are regulated in distinct conventions, crimes against humanity do not have a dedicated treaty, despite being one of the atrocity crimes.
“Without an instrument dedicated to crimes against humanity there is a gap in the international treaty framework, which is no longer defendable and — as many of us have said — must be filled,” she stressed. Recalling all delegations’ engagement in substantive discussion on the draft articles at the Committee’s resumed session in April, she emphasized that “the overwhelming majority no longer questions the usefulness of a convention”. She underscored the importance of continuing discussions and understanding delegations’ substantive differences with a view to finding a suitable path to move forward on the draft articles. Recalling a colleague citing an African proverb in April, she quoted: “If you want to go fast, go alone; if you want to go far go together”, adding her hope that working together on this important topic will progress towards a global convention.
JULIA FIELDING (Sweden), also speaking for Denmark, Finland, Iceland and Norway, said that a lack of a dedicated convention on crimes against humanity is a significant gap in international treaty law — a gap that the international community needs to fill without delay. Thus, a convention would provide further impetus to the prevention and punishment of atrocity crimes, she said, expressing support towards the International Law Commission’s recommendation to elaborate such an instrument. Further, a convention based on the draft articles would contribute to strengthening national laws and criminal jurisdiction, while promoting inter-State cooperation with investigation, prosecution and punishment of crimes against humanity, she pointed out.
Recalling that in April the Sixth Committee engaged in substantive and inclusive legal discussions on the Commission’s draft articles, she said it was a constructive experience to move beyond the procedural debate. She also noted that the countries for which she speaks were pleased to note convergence of views on several aspects. “It is time to deliver to ensure justice for victims of crimes against humanity,” she emphasized.
ZOE RUSSELL (New Zealand), also speaking for Australia and Canada, underscored that, with increased frequency of atrocities worldwide, all States must remain committed to preventing and punishing serious international crimes. While crimes against humanity are well-founded in customary international law, addressed in some treaties and criminalized in the domestic law of several States, the absence of a dedicated international convention causes gaps and ambiguities. This can lead to opportunities for impunity. Experience has demonstrated and the principle of legality demands that international law must clearly define and establish a minimum standard framework for States’ obligations to prevent and punish serious international crimes. Unlike other areas of international law, international criminal law applies both at the individual and State level, requiring close observance of due process, she said.
Acknowledging the need to strengthen national capacities to prevent, investigate and prosecute crimes against humanity, she pointed out that an international convention would bolster such efforts. The draft articles are a solid foundation for its development. They draw from and replicate existing provisions on prevention and punishment in other treaties, including the Convention on the Prevention and Punishment of the Crime of Genocide, Convention against Torture and the language pertaining to the definition found in the Rome Statute of the International Criminal Court, which a large majority of States have ratified. She, nevertheless, expressed readiness to explore and consider language in the draft convention to reflect evolving definitions under customary international law. Such language must be inclusive, integrate gender equality and ensure enhanced prevention and accountability measures for sexual and gender-based crimes. With a decision on this matter upcoming in its following session, the Sixth Committee should maintain momentum, she stressed.
ELVIRA CUPIKA-MAVRINA (Latvia), speaking also for Estonia and Lithuania and aligning herself with the European Union, voiced regret that allegations and incidents of crimes against humanity are rising, while efforts to bring alleged perpetrators to justice appear to be increasing. Echoing other speakers, she noted that crimes against humanity do not have a dedicated convention. The existing legal gap isolates victims from receiving the justice that they deserve. Therefore, a convention would provide a clear and internationally recognized legal framework for identifying, prosecuting and punishing those responsible for those heinous crimes. Most importantly, it would prioritize the protection of victims’ rights and their access to justice. She noted that the Russian Federation’s forced deportation of children from Ukraine and forcible transfer of Ukrainian children to the occupied areas and the Russian Federation’s territory may amount to a crime against humanity. “A dedicated convention on crimes against humanity would send a clear message to the world that these crimes are intolerable and will not go unpunished,” she stressed.
YONG-ERN NATHANIEL KHNG (Singapore), noting that the engagement of many delegations at the resumed session reflects the readiness of Member States to engage with the draft articles in order to resolve divergence of views, emphasized that the complexity of the issues underlying the countries’ differences will require serious and careful treatment. He observed that under draft article 7, multiple States may concurrently wish to exercise national jurisdiction over a particular criminal offence. However, that text does not state how such potential conflicts of jurisdiction can be resolved. Where such conflicts of jurisdiction exist, the draft articles should accord primacy to the State which can exercise jurisdiction on the basis of at least one of the limbs in draft article 7, paragraph 1, he said. He also pointed out that other areas that would benefit from further clarification include prevention in draft article 4 and the treaty-based nature of the jurisdictional link under draft article 7, paragraph 2, which should be stated in the draft articles for greater legal certainty.
MERHABA HASLER (Liechtenstein) also pointed to a gap in the international legal system and voiced support for work toward the elaboration of a convention on crimes against humanity. Recalling her country’s participation in the Committee’s intersessional discussions on the subject, she voiced hope that delegations, in the short-term, will also have an opportunity to engage in discussions at a conference focused on elaborating a convention on crimes against humanity. Noting the existing language in the draft articles on international cooperation to combat impunity for the most serious crimes, she congratulated all who participated in the successful adoption of the Ljubljana — The Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes and other International Crimes. The elaboration of a convention on crimes against humanity is complementary to the Mutual Legal Assistance Treaty, she said, expressing hope that together Member States will also one day adopt a convention on crimes against humanity.
VICTOR SILVEIRA BRAOIOS (Brazil), aligning himself with the cross-regional group of 86 Member States and the European Union, voiced support for a convention on crimes against humanity. Detailing recommendations for its draft articles, he said the preamble should refer to the Charter of the United Nations and its principles addressing the general prohibition of the use force and to non-intervention in the internal affairs of any State. This would dispel fears of misuse of allegations of crime against humanity as a pretext for aggression and intervention, and thus facilitate the negotiation of and wide adherence to a future convention. Regarding the article on the "definition of crimes against humanity", he called for an approach more on par with the current human rights concept of gender. It would be a pragmatic decision to avoid the inclusion of what constitutes gender, thus leaving Member States to interpret its meaning in accordance with their national legislations and alleviating concerns that would prevent ratification of a future convention.
MARK SIMONOFF (United States), aligning himself with the cross-regional group of 86 Member States and the European Union, said his country has a long history of supporting accountability for those responsible for crimes against humanity, dating back to the instrumental role it played in the first prosecution of such crimes before the International Military Tribunal at Nuremberg. Noting his country’s participation in the Committee’s deliberation on the draft articles in April, he said the United States looks forward to submitting written comments and observations later this year and encouraged all Member States to do the same. Highlighting his country’s further efforts to address accountability for crimes against humanity, he noted the expression of support by President Joseph Biden’s administration for a proposed statute that would make crimes against humanity offenses under United States criminal law, which remains a topic of discussion in the United States Congress.
CARLA MARIA RODRÍGUEZ MANCIA (Guatemala), underscoring that the prohibition of crimes against humanity is an imperative norm, said that all States should exercise their criminal jurisdiction with regard to these offences. Noting her country is a State party to the Rome Statute, she stressed that the firm commitment, support and cooperation of States parties is crucial to bolster the capacities of the Court to ensure timely accountability. Highlighting the importance of the responsibility to protect, she said that Guatemala was part of the core group that presented the General Assembly resolution on the responsibility to protect and the prevention of genocide, war crimes, ethnic cleansing and crimes against humanity; it was then adopted in 2021. Turning to the resumed session of the Committee in April, she welcomed the active participation of Member States and expressed hope for the same participation during the second resumed session in 2024.
MAXIMILIAN GORKE (Austria), noting that crimes against humanity are already established crimes under customary international law, pointed to the gap in international treaty law on their criminalization and legal cooperation. While criminalization does not always prevent crimes from happening in the first place, it still means a change of awareness, he stressed, observing that a dedicated convention based on the draft articles will strengthen prevention. He expressed support for an early convening of a diplomatic conference — possibly in Vienna — to finalize and adopt such a convention and invited delegations to constructively engage in the debate to make a meaningful progress to that end. Emphasizing that not every crime against humanity can be prevented, he said that States should do their utmost to minimize the likelihood of those crimes happening in the first place.
MICHAEL HASENAU (Germany), aligning himself with the cross-regional group of 86 Member States and the European Union, emphasized that crimes against humanity are among the most serious crimes known to humankind. Unfortunately, they are “witnessed too often on a nearly daily basis”, he said, expressing support for a convention on the prevention and punishment of such crimes. As the concept of crimes against humanity is widely accepted, there is a legal gap in this area because these crimes are not governed by a convention — unlike genocide and war crimes. Therefore, this gap must be closed to strengthen accountability and give meaning to the principle of complementarity. A new convention would “add the finishing touch” to treaty law relating to the most serious crimes, he observed, underscoring that it would also foster inter-State cooperation in the investigation, prosecution and punishment of such crimes.
Ms. GRANDJEAN (Belgium), associating herself with the European Union, said that tackling impunity for the most serious crimes which affect the entire international community remains a priority for her country. Against this backdrop, he advocated for the development of a convention based the draft articles on the prevention and punishment of crimes against humanity, as recommended by the International Law Commission. Such a convention would fill a significant gap that exists in international treaty law. It should be consistent with other existing international instruments, in particular the recent Ljubljana — The Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes and other International Crimes. Noting that its signing ceremony will take place in February 2024, she expressed hope that it can be ratified and enter into force as soon as possible.
MELINDA VITTAY (Hungary), associating herself with the European Union, noting that some delegations have pointed out that article 7 of the Rome Statute contains widely supported provisions on crimes against humanity, stressed that the draft articles, instead of creating an international body of criminal justice, impose obligations directly on States to act in their respective national jurisdictions and capture the obligation of prevention. While accountability does serve as a strong deterrent, the prevention obligation means a clear added value to the international legal framework, she stressed, underscoring the importance of an internationally agreed legal definition for crimes against humanity. Recalling that the Ljubljana-Hague Convention was adopted on 26 May, she said it will enable countries to cooperate internationally in the investigation and prosecution of the most serious international crimes, including the crime of aggression. However, as the focus of this new instrument is mutual legal assistance, it cannot be considered as an alternative to the draft articles, she emphasized.