Seventy-eighth Session,
38th & 39th Meetings (AM & PM)

In Second Resumed Session, Sixth Committee Debates Propriety and Substance of Possible Future Convention to Govern Crimes Against Humanity

As the Sixth Committee (Legal) met today to continue its consideration of the International Law Commission’s draft articles on “Crimes against humanity”, many delegates pointed to a gap in the existing international legal framework even as others differed on whether the articles are ready to be elaborated into a global agreement to bridge it.

Opening the session, Suriya Chindawongse (Thailand), Chair of the Sixth Committee at its seventy-eighth session, recalled the first round of deliberations held on this agenda item during the 2023 resumed session.  The current set of meetings represent the second leg of the process envisaged by General Assembly resolution 77/249, he said, noting that the programme of work and working arrangements for both 2023 and 2024 were adopted concurrently.  Further, the Committee will use the “interactive format” it adopted in 2023 to allow delegations, after hearing interventions, to ask for further clarifications and express their views in relation to that statement.  (For more details, please see Press Release GA/L/3679).

While the day’s discussion centred around the first of five thematic clusters — the draft articles’ preamble and scope — many delegates used the opportunity to underscore the urgent need for a convention on crimes against humanity.  Jordan’s delegate noted that, since the Nuremberg trials, there has been no significant development in the legal regime concerning these crimes — but the current draft articles cover this gap, she stressed.  Highlighting the preamble’s reference to the prohibition of crimes against humanity having jus cogens status, she said this reflects the fact that this prohibition is accepted and recognized by the international community as a norm. 

The representative of Latvia, also speaking for Estonia and Lithuania, praised the International Law Commission for drafting the articles in a way that would not cause fragmentation of international law.  The draft articles would both fill the existing legal gap and serve as a missing tool to combat impunity, she said.  The preamble emphasizes the gravity and heinousness of these crimes, she added, which will benefit overall understanding of context and purpose when applying and interpreting a future convention.

Similarly, the representative of the European Union, speaking in its capacity as observer, said that the preamble can provide context and foster a sense of unity and shared purpose, also noting that it recalls the prohibition of crimes against humanity as jus cogens and refers to the definition of the crimes against humanity set forth in the Rome Statute of the International Criminal Court.  While some delegations did not support this reference — as it does not enjoy universal adherence — the focus should not be on the source, she said, but rather on the reasons why the Rome Statute inspired the draft articles’ definition of crimes against humanity.

This reference emerged as a focal point of today’s discussion, and Sweden’s delegate, also speaking for Denmark, Finland, Iceland and Norway, reiterated support for the preamble’s use of the Rome Statute definition of crimes against humanity, which is “the most recent codified definition” of that term.  While a convention in this area would address horizontal relations between States, the Rome Statute addresses the vertical relation between the Court and States.  She added that States do not need to become party to the Rome Statue to adopt a potential convention.  Further, the preamble sets out a balanced and useful context, acknowledges the Holocaust and stresses the link between the pursuit of criminal justice and the maintenance of international peace and security, she pointed out.

However, the representative of India emphasized the importance of accounting for divergent legal systems, with due respect to the principle of sovereign equality.  Several countries in Africa and Asia, including hers, are not parties to the Rome Statute, she said, noting that many of those have put national legislation in place to deal with such offences. Further, recent acquittals have cast a shadow on the Court’s credibility, and she emphasized that the mechanism will not serve the larger purpose of justice when cases are referred primarily for political reasons.

The representative of the Russian Federation also opposed the inclusion of a reference to the Rome Statute, stating that the number of parties to the Statute is limited and that the Court itself does not enjoy universal support.  He further stressed that the Court is a politicized structure and, therefore, that the Rome Statute must not serve as a starting point for the Committee’s work.  He also rejected the classification of crimes against humanity as jus cogens, noting there is no such practice in the law of international treaties.

The representatives of Cuba, Qatar, Türkiye, Ethiopia and Pakistan joined others to also object to the Rome Statute reference, noting that its inclusion would weaken a proposed convention as it is not universally accepted.

Reflecting on the concerns raised by various States about this reference, the representative of the United Kingdom said that his delegation is open to the proposal of “simply noting the Rome Statute in reference to the definition of crimes against humanity and adding a reference to customary international law”.  “This may represent a sensible way forward for States parties and non-States parties to the Rome Statute alike,” he observed.

Over the course of the day many delegates also cited current world events, with the representative of Saudi Arabia, speaking for the Arab Group, asking how the question of crimes against humanity can be discussed in the United Nations without considering the crimes committed against the Palestinian people for more than 75 years by the Israeli occupation. Condemning this selective application of international law and international moral norms, he called on the international community to end this double standard, halt these crimes and hold Israel accountable for violations in Gaza.

“Tragedies of the past and today inform” the current discussion, Lebanon’s delegate said, mourning the collective failure to uphold elementary humanity in Gaza.  Southern Lebanon is also under attack from Israel, which is deliberately targeting children, journalists and humanitarians using white phosphorus.  Syria’s delegate also noted the paradox of discussing crimes against humanity while one of the most atrocious of those offenses is currently being perpetrated.  With the United Nations struggling to end the genocide in Gaza, he pointed out that the transparency of the current discussion — and the credibility of the Organization — are being sorely tested.

The representative of South Africa said that the need for a convention on crimes against humanity has become more critical given “the most horrendous international crimes some of us could ever witness in our lifetime being carried out by Israel against the Palestinian civilian population”.  International courts serve an important role in ensuring accountability for serious crimes, but can never fully subsume the role of States, she said, expressing support for the preamble’s recognition that criminal jurisdiction should always be the responsibility of States.

“Every evolution of international law was linked to a tragedy we failed to prevent,” the observer for the State of Palestine said, adding that every convention bore witness to an inhumanity that was later condemned.  The prevention and punishment of the most serious crime — genocide — is enshrined in an existing convention; yet, it is being committed by Israel in Gaza with full impunity.  Calling for a stronger focus on prevention in the draft articles, she said that ending impunity is not only about deterring these crimes, but also about accountability. 

Responding, the representative of Israel expressed concern that some delegates were “shamelessly politicizing this forum”.  The heinous terror attack of 7 October unquestionably constitutes a serious violation of the most fundamental norms of international law, amounting to war crimes and crimes against humanity, he said.  Underscoring that the perpetrators of the most heinous crimes should be prosecuted for their actions, he reported that Israel is committed to reaching broad acceptance of the rules for preventing and punishing crimes against humanity.

Uganda’s delegate, speaking for the African Group, also called for an end to the genocide unfolding in the Gaza Strip, adding that double standards and selective justice erode international law.  The principles of sovereignty, equality and non-interference in the internal affairs of States are fundamental legal concepts of historical importance to African Member States, he said.  Highlighting the importance of accommodating cultural specificities and geographical realities, he expressed concern over “some provisions borrowed from other internationally binding instruments”.  He also drew attention to the consequences of the transatlantic slave trade, calling for the inclusion of slavery as a crime against humanity.

The representative of Eritrea, for her part, said that the draft articles must focus on promoting national prosecution. States have the sovereign right to exercise jurisdiction over crimes against humanity committed by their nationals or on their territory.  Accordingly, the principles of sovereignty, non-intervention in internal affairs, political independence and territorial integrity should be incorporated in the preamble, she said, which should also make explicit reference to the immunity of a State and its officials from foreign criminal jurisdiction.

In that vein, Brazil’s delegate proposed that the preamble address the concern that allegations of crimes against humanity might be used as a pretext for aggression and interference in the internal affairs of States.  A clear reference to the principles of the Charter of the United Nations could engender universal adherence to a future convention, he said.  Further, expressly circumscribing the scope of the draft articles to the prevention and punishment of crimes against humanity would set clear boundaries for domestic courts’ interpretation and application of all provisions of a future convention.

However, the representative of the Republic of Korea noted that language in the preamble is commonly found in multilateral treaties addressing the most serious crimes, such as the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and the Rome Statute.  On territorial scope, she stated that the phrase “in the territory” — included in several of the draft articles — suffices when referring to geographical scope.  As many bilateral treaties and multilateral conventions do not explicitly include provisions on territorial scope, nor on the definition of territory, a standalone provision may not be required.

All of these diverging views, Iran’s delegate said, suggest that the draft articles should remain open to further in-depth discussion.  “My delegation is not yet convinced that drafting a new convention could bring any added value to the existing international legal framework,” he added, stressing that an effective fight against crimes against humanity requires genuine, effective implementation of obligations — free from double standards, politicization and selectivity.  The solution is not fragmentation of international law, he said.

Along similar lines, China’s delegate said that there is a lack of sufficient proof for the preamble’s characterization of the prohibition of crimes against humanity as jus cogens.  “In fact, there has always been significant disagreement” on this point, he said — both in the International Law Commission and in the Sixth Committee.  Cautioning against the potential use of a future convention to denounce and suppress other countries, he called for thorough consultations and urged the strengthening of mutual political trust.  Given that the draft articles impose obligations on States, he underlined the need to emphasize the principles of sovereign equality and territorial integrity.

Echoing that, the representative of Ethiopia also expressed reservations about the draft articles and stated that the Committee’s discussion should be centred around investigation, prosecution and judicial processes at the national level.  “If States believe they have a loophole in their legal framework, they should have the right and responsibility to fill the gap as they see fit,” he emphasized.

Other delegates suggested additional clarifications that could, in their view, strengthen the draft articles.  Mexico’s delegate stressed the need to maintain — and “if possible, strengthen” — references to the rights of women, children, girls and Indigenous People.  Such a gender perspective should be incorporated into the preamble and be analysed in a cross-cutting manner throughout the draft articles, she said.

However, the representative of Sierra Leone suggested language referring to “people” — rather than specifying gender or age groups — similar to that in the Charter of the United Nations.  He also echoed several delegations in calling for the inclusion of international-law principles found in the Charter, including the prohibition against the threat or use of force, sovereign equality and non-intervention in the internal affairs of other States.

“We should avoid dissecting and dividing humanity into groups, categories and subgroups,” Cameroon’s delegate urged, expressing significant reservations regarding questions of gender in the preamble. Rather, the preamble should cover all dimensions of humanity, which would ensure a legal regime that can best protect humanity as a whole.  He also disagreed with the preamble’s clear reference to jus cogens, adding that, while the International Law Commission is very “honourable and relevant”, it is not a legislator.  Its opinions are not dogma, he stressed — “even less are they sermons that require dogmatic acceptance”.

The representative of the United States said that further clarification will be necessary to ensure that nothing in the draft articles is construed to authorize any act of aggression or use of force inconsistent with the Charter of the United Nations.  Further, he said that the draft articles should guard against the possible use of the duty to prevent and punish crimes against humanity as a pretext for the unlawful use of force.

Meanwhile, the representative of the Philippines called for stronger language on international cooperation, including provisions based on those present in similar conventions such as the Genocide Convention.  She expressed support for the language currently governing the draft articles’ scope of application, with the understanding that they are meant to apply in two parts: prevention and punishment.

The Committee also began its consideration of the second thematic cluster as the meeting drew to a close, taking up the definition of crimes against humanity as well as States’ general obligations regarding such crimes.  Finland’s delegate, who also spoke for Denmark, Iceland, Norway and Sweden, said that the draft articles’ primary objective must be prevention.  Welcoming provisions in the articles that operationalize the prevention obligation contained therein, she proposed adding a monetary mechanism to a possible future convention to strengthen these efforts.

The draft articles’ inclusion of a general obligation to prevent crimes against humanity is a much-needed and positive development in international criminal law, said Latvia’s delegate, also speaking for Estonia and Lithuania.  Prevention is key to combat these heinous crimes, and this obligation encourages States to take proactive measures to prevent them from occurring in first place.  The representative of the European Union, speaking in its capacity as observer, echoed that, stating that the draft articles ultimately aim to protect humanity by preventing the occurrence of these crimes.  She added:  “Whenever humanity fails, and crimes against humanity do occur, States are under the obligation to punish them.”

For information media. Not an official record.