Speakers Discuss Rights of Victims and Offenders, Debate Need for Convention, as Sixth Committee Continues Resumed Session on Crimes against Humanity
The Sixth Committee (Legal) continued its consideration of the International Law Commission’s draft articles on “Crimes against humanity” today, with delegates further illustrating the nuance required to approach international codification on such crimes as they debated provisions seeking to establish safeguards before turning to the larger issue — the Commission’s recommendation to elaborate a convention on this topic.
Today’s discussion focused on the fifth thematic cluster — the draft articles’ provisions concerning safeguards — which included articles addressing non-refoulement, fair treatment of alleged offenders and measures States must take with respect to victims and witnesses. At the outset of the meeting, the Committee also concluded its debate on the fourth thematic cluster, concerning international measures to prevent and punish crimes against humanity. (For background, see Press Release GA/L/3710.)
Taking up the draft article governing the treatment of witnesses and victims, the representative of the European Union, in its capacity as observer, affirmed that any future convention on crimes against humanity should ensure an approach centred on victims and survivors. Accountability is key for ensuring justice, but guaranteeing that victims are heard, engaged with, and that they and their families are not subject to retaliation is key for delivering justice. Additionally, the dignity of victims must be re-established through reparation, restitution, compensation, satisfaction or rehabilitation, as well as guarantees of non-repetition.
Building on that, Poland’s delegate emphasized that the most vulnerable group of people consists of children from all over the world, who are suffering as victims, witnesses and persons forced to act as perpetrators of hideous international crimes. Therefore, the draft articles “are a great base for an ambitious binding international instrument” that would directly secure the rights of all children, regardless of their status, she said.
Iceland’s delegate, also speaking for Norway, Denmark, Finland and Sweden, agreed that “victims and survivors are — and should be — at the heart of international criminal justice”. She noted interesting ideas that emerged during the Committee’s April 2023 session, including language concerning victims’ right to receive information regarding the process and outcome of a complaint. She also said that the countries in her group are amenable to the potential inclusion of language emphasizing the importance of States employing best practices to avoid re-traumatization during evidence collection.
The representative of the Republic of Korea similarly emphasized the importance of mainstreaming victims’ rights, observing that a future convention will contribute to delivering restorative justice to victims, witnesses and others. As most States already incorporate similar safeguards within their national systems, she concurred with the International Law Commission’s approach of allowing States flexibility in this area.
New Zealand’s delegate remained open to further language directed towards enhancing the protection of victims’ rights, while also expressing support for the flexibility integrated into the draft articles that preserves States’ discretion to determine the appropriate form for reparations. This approach recognizes that, in the aftermath of the commission of crimes against humanity, various scenarios may arise that require tailored reparations.
Also speaking on reparations, the observer for the State of Palestine — while voicing strong support for “a victim-oriented approach” — noted that their rights to such redress must be consistent with international law and the normative standards ensuring accessibility for all victims. As for the provision obliging a State to ensure that national law provides for reparation to victims of crimes against humanity committed “in any territory under its jurisdiction”, she suggested adding “and its control” to that formulation.
Other delegations, including India’s, emphasized that — due to differences in national legal systems — each State should be able to decide the form and scope of reparations, such as whether to include “moral reparations” for victims of crimes against humanity.
Brazil’s delegate, for his part, said that the draft articles could be enhanced by including a clear definition of “victim”, adding that the definition of that term in the Rules of Procedure and Evidence of the International Criminal Court could serve as a valuable reference point. While Mexico’s delegate said that his delegation is open to negotiating such a definition in future negotiations, Australia’s delegate agreed with the Commission’s decision not to define the term “victim” — as this affords States the flexibility to implement a definition consistent with their national law.
The representative of Argentina, in contrast, called for a concrete definition of the term. As each State may have a different approach, such a formulation might serve as a minimum basis for addressing victims in national legislation. Further, the relevant draft article should provide for victims’ right to know the truth regarding the circumstances under which the crimes affecting them occurred, he emphasized, pointing out that widespread or systematic attacks against civilians are often accompanied by the dissemination of erroneous information used to justify them.
Delegates also addressed the draft article concerning non-refoulement, with the representative of Austria noting that, while the principle may have originated in international refugee law, the current wording is based on that in the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment — which enjoys nearly universal ratification. The investigation and prosecution of crimes against humanity should not become associated with the commission of new crimes of humanity, he urged.
Israel’s delegate, also stressing that States’ non-refoulement obligation is well-established in international customary law, welcomed its inclusion in the draft articles and added that his country has committed to this principle in its extradition treaties. Calling for further discussion on the scope of these obligations, he noted that various treaties have framed this obligation differently. While the draft articles discuss this principle in the context of a belief that a person would be in danger of being subject to crimes against humanity, he asked: “But couldn’t there be broader considerations that should be addressed as well?”
The representative of Iran, however, said that the draft articles’ incorporation of the principle of non-refoulement simply because of their existence in other instruments may not suffice to support this principle in the context of crimes against humanity. He stressed that the provision could lead to arbitrary interpretations that impede effective international cooperation in fighting various crimes, as it subjects extradition to arbitrary interpretations of non-refoulement.
While non-refoulement is part and parcel of refugee law, Cameroon’s delegate also stressed that the principle is subjective and invites legal uncertainty when it is up to the requested State to assess activities taking place in another. Thus, this draft article weakens the provisions of those governing national measures by encouraging respect for human rights to be based on value judgements in certain circumstances. The right to refuse extradition is a legitimate right, but it does imply the need for more robust rationale, he said, adding that otherwise, “we are opening the door to States refusing refoulement or extradition”.
Striking a balance, Jordan’s delegate said that this draft article should consider the legal interests of both protected persons and host States. She therefore proposed redrafting the first paragraph of this provision to specify that returning an individual to part of a State’s territory where he or she would not be in danger of being subject to crimes against humanity would not be unlawful. These are situations where the danger of crimes against humanity being perpetrated is only confined to certain parts of the State — and not all of its territory — she observed.
Nigeria’s delegate raised another issue, stating that the draft articles should clarify how to determine — and what constitutes — “substantial grounds” for believing a person is in danger of being subjected to a crime against humanity. Further, she disagreed with the non-refoulement draft article’s emphasis on “violations of human rights” or “serious violations of international humanitarian law”, pointing out that these are issues covered under international human-rights law and should therefore be treated accordingly. She also urged clarification of provisions in the draft article governing fair treatment of alleged offenders, highlighting language concerning “stateless persons” and adding: “We should be very careful.”
In the afternoon, the Committee turned to consideration of the International Law Commission’s recommendation that a convention be elaborated based on the draft articles by either the General Assembly or by an international conference of plenipotentiaries. Many delegates hailed the draft articles as a solid foundation on which to begin negotiations, also stressing the need for a convention to fill a yawning gap in international law.
Unlike for war crimes and genocide, there is no international convention regarding crimes against humanity, noted the representative of Bolivia, also speaking for Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, the Dominican Republic and Uruguay. He emphasized that this alarming situation is exacerbated by the fact that a considerable number of countries do not have national legislation penalizing such grave international crimes. Recalling that the international community managed to unite to conclude universal instruments such as the Genocide Convention and the Geneva Conventions, he stressed the importance of starting negotiations without delay.
Ukraine’s delegate noted that the lack of a dedicated instrument on crimes against humanity is particularly relevant for his country, which is currently suffering from the Russian Federation’s aggression. Reporting that 12,071 civilians, including 525 children, have been killed so far — alongside over 19,000 wounded — he underscored the importance of bridging the current legal gap for the sake of international justice. Despite discrepancies in positions, he expressed hope that this resumed session will bring Member States one step closer to adopting a future convention.
The choice for the elaboration of a convention is not a difficult one, stressed the representative of the European Union, speaking in its capacity as observer, adding that “humanity needs it”. The representative of Iceland, also speaking for Denmark, Finland, Norway and Sweden, stressed that “in plain words, it simply makes no sense that there’s still a gap in international law in terms of prevention and punishment of crimes against humanity” when treaties on genocide and war crimes have existed for decades. Stating that the draft articles “enjoy a very high level of support among delegations”, she said that fighting impunity for crimes against humanity is a matter of urgency.
Echoing that sentiment, Timor-Leste’s delegate, speaking for the Community of Portuguese Language Countries, said: “It is high time we launched negotiations for an international convention to prevent and punish crimes against humanity.” Such negotiations will be an opportunity to address the concerns raised by States during debates, he added. The representative of Guatemala, underlining the duty of every State to exercise their legal competence regarding such crimes, agreed that an international conference to elaborate a convention on crimes against humanity will significantly strengthen the prevention and punishment of these crimes in the future.
Australia’s delegate, speaking also for Canada and New Zealand, stated: “Experience has demonstrated that, when it comes to suppressing and punishing international crimes, it is critical to have a clear definition and a standard minimum framework for States’ obligations.” She stressed that the draft articles would not be “cut and paste” into a legally binding instrument and then imposed upon States without their consent. Rather, they provide a starting point for negotiations.
Other representatives, including those of Albania, Belgium, Germany and Hungary, echoed the sense that the time is ripe for negotiations towards a convention. Spain’s delegate, stressing that the international community is at a “crucial stage”, underlined the responsibility to initiate negotiations and “send a message” to those who believe that they are unpunishable. Bulgaria’s representative observed: “Our commitment to fight impunity is stronger than our differences”.
Ghana’s delegate, while noting that “history will always remind us” about heinous crimes like slavery, the slave trade and colonialism, said they can only be remembered through a convention. Member States’ divergent views during negotiations are the “essence of multilateralism”, and he emphasized that the need for a convention is greater now than it was when the Commission first submitted the draft articles in 2019. “Now is the moment to press the process forward to negotiations,” he stressed, adding: “If not now, then when?”
Haiti’s delegate, similarly, said that the tragic legacy of slavery and oppression makes such a convention not only necessary, but urgent. Recalling concerns expressed by Cameroon’s delegate on the definition of crimes against humanity and the applicability of the death penalty, he said that such contributions highlight the complexity and sensitivity of the topic, as well as the need for an inclusive dialogue that considers diverse legal and cultural traditions. He called for an inclusive approach that recognizes the need to address the historic consequences of crimes such as slavery, as the voices of victims must be heard and respected throughout the process.
The representative of Equatorial Guinea, supporting continued debate, stressed that the international community must not forget that international law is based on consent between States — not only in drafting, but also in ratification and later implementation. “If we want to have an international convention that is universal, we must continue to exchange positions,” he said.
Similarly, Chile’s delegate recognized that the draft can be perfected both in terms of updating elements to avoid politicization and ensuring that it is not a source of future controversy. While his delegation is in favour of a diplomatic conference, it is also flexible regarding the time frame for negotiation.
The representative of Uruguay, for his part, pointed out that a new convention on crimes against humanity will give States that are not prepared to adhere to the Rome Statute an option to adhere to an independent treaty on the subject. However, conversations on the new convention should be complementary to conventional law on these offenses to avoid fragmentation and overlapping norms, as well as to generate cohesion between instruments that regulate the punishment and prevention of such crimes.
Other delegates pushed back stronger, with Nicaragua’s representative stressing that it is premature to elaborate the draft articles into a convention. Many of the legal provisions that have been proposed are linked to the Rome Statute, she said — to which many States are not party. Further, many of those who strongly advocate for a convention do not address the need to resolve underdevelopment, poverty and the structural problems that cause conflicts to break out. Nor do they call for an end to the illegal unilateral coercive measures that represent a crime against humanity against fellow nations, she said.
Other delegations echoed that scepticism, such as Iran’s representative, who stated that, as current international and bilateral instruments provide sufficient basis for the prevention and punishment of crimes against humanity, it is premature to draft a new convention at this time. The representative of China agreed on utilizing existing legal tools to combat these crimes, while the Russian Federation’s delegate stated that divergences between delegations remain significant, and that the Commission’s product is still “raw”.
“It is not by chance that we are here,” observed the representative of Gambia, recalling his delegation’s co-sponsorship of the General Assembly resolution that enabled the Sixth Committee to conduct this resumed session. Stressing the need for constructive and forward-looking engagement to ensure that the draft articles do not end up being mere technical rollovers, he called on the international community to “dare to be different”. “The draft articles are not perfect,” he acknowledged, but the international community has an obligation to victims. Against that backdrop, he underscored: “The time for negotiation is now”.