The upcoming U.N. conference for the negotiation of a Convention on Prevention and Punishment of Crimes against Humanity, launched by the U.N. General Assembly in December 2024, will have as its basis draft articles produced by the U.N. International Law Commission (ILC). This essay briefly recounts the process at the ILC and the substance of the draft articles.
In 2012-2013, due to the lack of a treaty that obligates States to prevent and punish crimes against humanity, and that calls for inter-State cooperation to that end, I proposed that the ILC undertake drafting articles that could serve as the basis for such a convention. Once the topic was formally launched in 2014, I submitted to the ILC a first report (2015), second report (2016), and third report (2017) proposing text for the draft articles, based on an assessment of State practice, treaties, general principles of law, and jurisprudence. Those proposals were refined in the ILC’s drafting committee, after which I prepared commentary that was developed and adopted in the plenary, allowing for a complete “first reading” package to be sent in 2017 to the General Assembly for reactions.
Over the course of nearly two years (2017 to 2019), the ILC received not only oral comments by States in the Sixth (Legal) Committee of the General Assembly, but also written comments by 38 States, seven international organizations, and more than 700 other persons (to include human rights committees, individuals holding human rights mandates, NGOs, and academics). In my fourth report (2019), I proposed revisions to the draft articles and commentary based on these comments, which were developed and adopted by the ILC at a “second reading.” The final product, consisting of a draft Preamble, 15 Articles, and Annex, along with commentary, was sent to the General Assembly, along with a recommendation that they serve as the basis for the negotiation of a new convention. The General Assembly has now decided to move forward, with preparatory work in 2026-2027 and negotiations in 2028-2029.
The draft Articles can be grouped into five different clusters. The first cluster consists of the draft Preamble and draft Article 1. The draft Preamble comprises 10 clauses, which indicate the reason for and foreshadow the substance of the draft Articles. Draft Article 1 identifies the scope of the draft Articles, succinctly stating that they apply to the prevention and punishment of crimes against humanity.
The second cluster encompasses the definition of crimes against humanity, as well as certain general obligations. Draft Article 2 defines “crimes against humanity.” The ILC discussed carefully what the definition should contain, principally by examining the evolution of crimes against humanity in international law and national laws from Nuremberg to the present. Ultimately, the definition that appears in Article 7 of the Rome Statute was viewed as capturing appropriately contemporary international law, and as one that may appeal not just to the 125 States Parties to the Rome Statute but to other States as well. The objective was not to preclude individual States from having a broader definition in their national laws if they wished to do so (draft Article 2 is without prejudice to such broader definitions), but to find common ground among States, thereby facilitating interstate cooperation on matters such as extradition and mutual legal assistance.
Draft Articles 3 and 4 address general obligations to prevent and punish crimes against humanity. Draft Article 3 contains an obligation for States to refrain themselves from engaging in conduct that, if prosecuted against an individual, would constitute crimes against humanity. Further, Draft Article 3 provides that each State undertakes to prevent crimes against humanity by others which, as the commentary notes, is a due diligence obligation to be assessed in context. Draft Article 4 expands upon the obligation of prevention, calling upon States to adopt appropriate preventative measures (the commentary notes that this may entail, for example, relevant training programs for police and military personnel) and to cooperate with other States, relevant intergovernmental organizations, and, as appropriate, other organizations (for example, the International Committee of the Red Cross).
The third cluster, consisting of draft Articles 6 to 10, indicates specific measures that must be taken by States at the national level to investigate, prosecute, and punish crimes against humanity when they occur. Draft Article 6 requires that crimes against humanity, as such, be constituted as offenses in national law, whether committed directly, attempted, or aided and abetted. Further, draft Article 6 addresses issues such as command responsibility, the impermissibly of a “superior orders” defense, no statute of limitations, punishment by appropriate penalties, and liability of legal persons.
Draft Article 7 requires that the State be in a position to exercise jurisdiction over an alleged offender when the offense occurs in a State’s territory (or territory under its jurisdiction), when it was committed by one of the State’s nationals, or when the alleged offender turns up in the State’s territory. If a State wants to exercise jurisdiction when a victim of the alleged offense is of its nationality, it can do so, but that jurisdiction is not mandatory.
Draft Article 8 provides that, if a potential situation involving crimes against humanity arises within a State’s territory, the State must investigate it. Such an investigation is not about targeting a specific individual; rather, it involves taking investigative steps to understand what may be occurring in a particular location, and may concern actions carried out by non-State actors. By contrast, draft Article 9 focuses on the apprehension and gathering of facts with respect to a particular individual. If someone within the State’s territory is suspected of committing crimes against humanity, the State is required to take that person into custody or otherwise prevent him or her from fleeing. The State must then conduct a fact-specific inquiry into the individual’s actions, essentially compiling a dossier detailing the basis for the suspicion. In addition, the State must notify other States that may also have jurisdiction over the case, recognizing that such notification may be important for mutual legal assistance or extradition.
Draft Article 10 obliges the State to submit the case for prosecution or to extradite the suspect to a State prepared to submit the case to prosecution. This aut dedere aut judicare obligation requires handing over the dossier to prosecutors, who retain the discretion to determine whether the case is suitable for prosecution. At the same time, this obligation can be satisfied by extraditing the individual to another State willing to submit the matter to prosecution.
The fourth cluster addresses international measures. Draft Article 13 indicates procedures for facilitating extradition if a State chooses to extradite an alleged offender to another State (notably, there is no obligation to extradite). Draft Article 14, as well as the draft Annex, address mutual legal assistance between States. In essence, these provisions help facilitate cooperation whenever a State requires another State’s assistance in gathering witness testimony or documentary evidence, or in enabling witnesses to travel cross-border to testify in a trial. If the two States already have a mutual legal assistance treaty (MLAT), draft Article 14 and that MLAT would be used. The Annex applies when there exists no MLAT between the two States.
Draft Article 15 addresses inter-State dispute settlement. Similar to the Convention on the Prevention and Punishment of the Crime of Genocide, this draft article provides that, if one State has a disagreement with another regarding the interpretation or application of the convention, it can raise the issue with the other State. Both States are then obligated to attempt to negotiate a resolution to the dispute. If no settlement can be reached, the matter may be referred by either State to compulsory dispute resolution at the International Court of Justice (ICJ). However, the third paragraph of draft Article 15 allows a State to opt out of such compulsory jurisdiction.
The fifth cluster focuses on certain safeguards protective of individuals. Draft Article 11 addresses the fair treatment of alleged offenders, including guarantees to a fair trial, access to legal counsel, and other fundamental protections commonly found in human rights law and domestic legal systems. Draft Article 12 focuses on protections for the victims, witnesses, and certain others affected by crimes against humanity. Such persons must be permitted to file complaints with government authorities without ill treatment, and victims shall be allowed to present their views at appropriate stages of the criminal proceedings. Moreover, draft Article 12 affirms the right of victims to seek reparation, though it does not specify the form that such reparation should take, or require that reparation be provided on an individual (as opposed to collective) basis. Draft article 5 contains a non-refoulement obligation; States are prohibited from returning a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to a crime against humanity.
The ILC considered several other matters that might have been included in the draft Articles but ultimately did not include them. For example, while the U.N. Secretariat produced an excellent memorandum in 2016 on existing treaty-monitoring mechanisms, the ILC opted not to include such a mechanism, seeing that as a matter best left for States to decide. Indeed, the draft articles are now in the hands of States, who I look forward to assisting as a U.N. expert during the negotiations.
