Case Explained: Forging a Convention for Crimes Against Humanity – EJIL: Talk! – Legal Perspective

This is a post in our Joint Symposium on “Negotiating a Treaty on Crimes Against Humanity” run in partnership with Just Security.

In November 1945, as the world began emerging from the devastation of World War II, 22 former members of the Nazi regime were arraigned in a courtroom in Nuremberg on three charges: crimes against peace, for the waging of a war of aggression; war crimes, for violations of the laws and customs of war; and, finally, crimes against humanity. This latter offense was perhaps the most revolutionary of the three, as it made criminal the depredations of the Nazi regime not only against civilians in occupied territory, but encompassed the horror of the holocaust including the deportation, murder, and extermination of German Jews, Roma and others, particularly opponents of the regime. With the establishment of the United Nations a year later, the international community began codifying the Nuremberg precedent with the adoption of the four Geneva Conventions in 1949, but what had been charged as crimes against humanity at Nuremberg was never embodied in a comprehensive, specialized crimes against humanity treaty. Instead, the Genocide Convention was negotiated and adopted in 1948, with its limited application to the destruction of only four groups: racial, religious, national, and ethnic.

Like a dormant volcano, the Nuremberg precedent was quiescent until re-erupting in the 1990s with the establishment of the international criminal tribunals for the former Yugoslavia and Rwanda, and later the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the adoption of the International Criminal Court (“ICC”) Statute in 1998. Each of these instruments included the offense of crimes against humanity, in addition to genocide; and as these courts and tribunals carried out their work it became increasingly evident how critical crimes against humanity charges were their success, particularly at the ICC, due to the ability of prosecutors to use it in times of relative peace, as well as during armed conflict, and its application to State and non-State actors. 

As international criminal law became part of the tool kit of international lawyers, it also became evident that the absence of a crimes against humanity convention, even after the establishment of the ICC, left significant gaps in the international legal system. The Rome Statute does not include an enforceable duty to prevent crimes against humanity; it does not provide for State responsibility, but only addresses crimes committed by individuals; it has no provisions on mutual legal assistance and inter-state cooperation unlike modern international criminal law treaties; and its obligations are not binding upon non-States Parties. Moreover, the system of complementarity upon which the ICC is premised places national systems at the forefront of global criminal justice; and the limited jurisdiction of the ICC and its structure and organization all but guaranteed at the outset that it would take very few cases, a prediction which has been borne out over the Court’s lifetime. 

For this reason, in 2008, I started a project known as the Crimes Against Humanity Initiative, to engage experts in studying the issue of crimes against humanity and drafting a model treaty that could serve as an academic offering to States. Under the leadership of an eminent international Steering Committee, and after consulting with more than 250 experts worldwide, the Initiative published a Proposed International Convention on the Prevention and Punishment of Crimes against Humanity, the text of which is now available in 8 languages. 

Building upon this foundation, the U.N. International Law Commission began its own study in 2013, and in 2014 moved the topic of crimes against humanity to its active agenda, appointing Prof. Sean Murphy as Special Rapporteur. As a close observer of the Commission’s work, I was delighted to see how quickly it progressed, and how much our initial study was useful to it. In 2017, a first set of draft articles was published, responded to by States, civil society, and U.N. officials, and in 2019, a second and final set of draft articles (“2019 Draft Articles”) with commentaries was adopted by the Commission and submitted to the U.N. General Assembly with the recommendation that there be “the elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries on the basis of the draft articles.” And there the project sat for four years, until in 2022, Resolution 77/249 was adopted after intense negotiations that allowed for substantive discussion of the 2019 draft articles in resumed sessions held in April 2023 and April 2024. Finally, on November 22, 2024, what became Resolution 79/122 was adopted by the U.N. Sixth (Legal) Committee, by consensus and to sustained applause, setting out a four-year negotiation timeline for the elaboration of the new treaty. 

Four primary challenges emerged during the six years that the proposed treaty languished in the Sixth Committee: first, the consensus tradition of the Sixth Committee meant that a very small number of States could block forward progress indefinitely; second, the COVID-19 pandemic negatively affected working methods and access to the building, particularly for civil society in 2020 and 2021; third, it took time for a core group of States to emerge that were committed to carrying the project forward, and that could and did steadily increase State support over the six-year period; and finally, States needed to engage with and substantively discuss the dense and comprehensive work product of the Commission, which had produced a draft with a preamble, 15 articles and a comprehensive annex, as well as commentaries, totalling 140 pages.  Overcoming these challenges required sustained effort, substantive research, procedural innovation, diplomatic acumen, skillful leadership, and hard work. The leadership of Mexico and the Gambia in co-facilitating the adoption of Resolution 77/249 and, later, Resolution 79/122, was truly extraordinary, as were the efforts of many other delegations and civil society partners. 

The framework set out in Resolution 79/122 is complex. Fortunately, the Secretariat has now established a helpful website. From January 19-30, 2026, the first Preparatory Committee meetings will occur, including meetings of a Working Group of the Conference, with a second Preparatory Committee meeting to be held in April 2027. Then the Diplomatic Conference will take place, in two three-week sessions, in early 2028 and 2029, with the possibility of an additional session if needed. Heading into November 2022, a stronger text with a more streamlined process, timeline and robust civil society participation had been on the table. However, last-minute compromises were made, largely due to pushback by the Russian Federation. This upset some delegations, given that the Russian Federation dissociated from the text after extracting significant compromises from treaty proponents. 

That said, even if the final text is not as strong as desired, its adoption by consensus by both the Sixth Committee and the General Assembly sets the stage for inclusive negotiations on a treaty with universal acceptability. Further, while the text prolongs the process, its adoption represents an extraordinary achievement in terms of building State and civil society support for this new legal instrument. 

Over the next four years, the treaty will take its final shape. The Preparatory Committee and the Diplomatic Conference, unlike the Sixth Committee, may take decisions by voting, if necessary, as is normal within the U.N. system. While consensus is urged, it is not required. The ILC’s 2019 Draft Articles provide an excellent starting point for negotiations, but the ILC did not address all aspects of the proposed new treaty in its Draft (particularly final clauses), and there are areas in which some clarification of the Draft text would be useful, or additions to the text would be desirable. The Sixth Committee Chair’s Summary Report of the two April resumed sessions includes many comments by States relating to the text, as do the comments already submitted by governments, not only in 2018 on the first reading of the text, but also in 2023, under the framework provided by Resolution 77/249. 

During the past six years, many States and members of civil society have advanced new proposals. Some have already begun to organize around the issue of children’s rights in the treaty, gender issues, and disability rights. Questions have also been raised in relation to several other topics, some of which have been the subject of proposals authored under a Study Group of the International Law Association (American Branch), including the absence of a Martens Clause and the unusual drafting of the definition of persecution in the text. States have also debated about incitement as a mode of criminal participation (or crime) and including a definition of ‘victim.’ Other issues concern the creation of a treaty monitoring mechanism, the enhancement of fair trial rights of the accused, amnesties and immunities. Proposals suggesting that the treaty might benefit from the addition of new crimes have also been advanced, including environmental destruction, gender apartheid, forced marriage, slave trade, and starvation. Finally, important questions of treaty design in terms of reservations, dispute settlement provisions (with an ICJ compromissory clause), and the geographic scope of the duty to prevent will also need to be addressed.

Under Resolution 79/122, States may submit proposals until April 30, 2026, for a compiled text, although they may, of course, submit amendments and proposals at any time during the negotiations as they unfold. In January the programme of work set out by the Secretariat will follow the discussions that were undertaken during the resumed sessions in 2023 and 2024, with the Draft Articles subdivided into five “clusters” for discussion, in addition to a session set aside to receive new proposals. Finally, under Resolution 79/122, while organizations accredited by the Economic and Social Council (ECOSOC) will be able to participate in the Preparatory Committee and Conference, the participation of non-ECOSOC accredited organizations and other stakeholders will be decided at the end of the 2026 Preparatory Committee. This is critically important both for inclusivity and transparency, and because civil society will strengthen the negotiating process by bringing engagement and expertise to it, as Costa Rica, on behalf of a broad regional cross-section of States noted in its 2025 intervention. During the six years that the draft treaty languished in the Sixth Committee, we saw that participation by civil society organizations (CSOs) was critical to advancing the treaty. When civil society could get into the building, the dynamics changed. 

This new treaty, and the hope it represents, is not just a piece of paper: It is a promise to survivors. At the end of the day, the real beneficiaries will be those who receive justice or do not become the victims of crimes against humanity at all. We cannot know how many will benefit, nor will its adoption ensure that all crimes have been prevented or all perpetrators punished. History instructs that its adoption will be a necessary, but not sufficient, first step in preventing and punishing the commission of crimes against humanity. Without it, States and the international community are missing a critical legal tool to combat the commission of these international crimes. With its eventual adoption, perhaps humanity stands a chance. As the Chief Prosecutor for the United States, Robert H. Jackson, argued nearly eighty years ago in that Nuremberg courtroom:

Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude. . . It does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace. . .

Even once the treaty is adopted, the work will need to continue: a ratification campaign will be required, and implementation and enforcement by States will be critically important. It may be that the most difficult part of the journey lies ahead, not behind, particularly given the current geopolitical environment. Yet, like the Reverend Dr. Martin Luther King, I believe that the arc of the moral universe is long, but it bends towards justice. It is thus fitting, perhaps, that the first Preparatory Committee meeting for the treaty’s negotiation opens on Martin Luther King, Jr. Day.