Speakers Argue over Elaborating Draft Texts on Crimes against Humanity Into Convention, as Sixth Committee Begins Debate
Delegates Conclude Debate on Criminal Accountability for United Nations Official, Experts on Mission
As the Sixth Committee (Legal) began its consideration of the International Law Commission’s draft articles on crimes against humanity, speakers debated on whether or not a convention, based on those texts, should be elaborated.
The representative of Portugal urged the international community to heed the International Law Commission’s recommendation and convene a diplomatic conference to negotiate and adopt a convention based on the draft articles. Distinguishing this from the MLA Initiative, which aims to adopt an international convention to enhance cooperation among States on the most serious crimes, he said the two projects should not be used as an excuse not to advance either. Both could be developed together to create a comprehensive international legal framework.
Argentina’s representative commended the removal of the definition of gender from the Commission’s draft articles, given evolutions in international criminal law and human rights law. While also highlighting the MLA Initiative, launched by a core group of countries including his, he underscored that a legally binding instrument on crimes against humanity will consolidate the international legal architecture.
The representative of Austria added his support for a convention, as well as a diplomatic conference to elaborate such an instrument. While the COVID‑19 pandemic currently prevented the convening of such an event, this did not mean that discussions on the way forward should be delayed. He called for a clear timeline for future considerations, noting that the Commission’s work deserves appropriate follow‑up.
However, the representative of Singapore struck a cautionary note, pointing to divergence in views among States in the comments they submitted to the Commission. While the drafts might provide useful practical guidance, they could be improved or clarified. In particular, he noted his reservations concerning draft article 7, paragraph 2, which should expressly reflect that it does not extend to establishing jurisdiction over nationals of non-States parties.
Syria’s representative, also underscoring the importance of non‑interference in the domestic affairs of all States — be they poor, wealthy, large or small — said the draft articles did not adequately address all concerns, especially as relating to the International Criminal Court. The Sixth Committee is the sole body capable of reaching agreement among States regarding a draft convention on this issue, he said, stressing the need for further consideration in order to reach consensus.
The representative of Sudan, echoing this strong opposition, insisted that the draft articles could not constitute the basis for a convention and called for more time to study them before deciding how to proceed. Many of the texts were copied, without alteration, from other treaties and conventions that remain controversial, he observed. While there is a need to combat impunity for the perpetrators of these crimes, States have the right to implement their national jurisdictions, he said.
South Africa’s representative, speaking for the African Group, struck a midpoint in the debate. Welcoming open discussions, he said that, while the relevant draft articles can serve as a basis for a future convention, Member States’ legitimate concerns should not be ignored. Cautioning against imposing legal theories or definitions derived from international agreements that are not universally accepted, he underscored the need to establish an effective international legal framework to prevent and punish these crimes that “deeply shock the conscience of humanity”.
The Committee also concluded its consideration of the report of the Secretary‑General on “Criminal accountability of United Nations officials and experts on mission”, with delegations of troop‑contributing countries reporting on measures undertaken by their Governments to ensure such accountability. (For background, see Press Release GA/L/3617.)
The representative of Indonesia, calling peacekeepers “guardians of peace” encouraged all States to equip themselves with legal tools such as extradition and reported that his country’s penal code establishes criminal jurisdiction over its nationals wherever they may commit crimes.
Morocco’s representative called for an integrated approach, emphasizing preventive actions such as trainings adapted to local context. Her country ensured that their troops are given holistic, high‑quality predeployment training, covering a variety of topics ranging from sexual exploitation to international humanitarian laws, she reported.
The Sixth Committee will meet next at 3 p.m. on Thursday, 14 October, to conclude its consideration of crimes against humanity and begin the debate on administration of justice.
Crimes against Humanity
The representative of South Africa, speaking for the African Group, highlighted the importance of the fight against impunity for perpetrators of crimes against humanity and welcomed open discussions to establish an effective international legal framework to prevent and punish these crimes that “deeply shock the conscience of humanity.” However, while the relevant draft articles can serve as a basis for a future convention on the issue, Member States’ legitimate concerns should not be ignored. Future discussions should not attempt to impose legal theories or definitions derived from international agreements that are not universally accepted. He also underscored the importance of developing and strengthening national capacities to investigate and prosecute crimes against humanity.
The representative of Austria, aligning himself with the European Union, expressed support for a convention on the prevention and punishment of crimes against humanity based on the International Law Commission’s draft articles. The Commission’s work in this area deserves appropriate follow‑up. He also stated that a diplomatic codification conference would be the most suitable forum for the elaboration of such a convention. While COVID‑19 currently prevents the convening of such an event, this does not mean that discussions regarding the way forward should be delayed. He stressed that a clear timeline for future consideration of this issue is imperative to ensure progress.
The representative of Argentina, while praising the draft articles under consideration, highlighted the need for a definition of the term “victim”. He also commended the removal of the definition of gender, given evolutions in international criminal law and human rights law. Stressing the importance of an international convention on prevention and punishment of crimes against humanity, he reiterated his country’s firm commitment to battling impunity for serious crimes. A legally binding international instrument will consolidate the international legal architecture on this matter. The work of the MLA Initiative, a core group of countries including Argentina, aims to promote adoption of a convention on international cooperation in investigating genocide and war crimes. A diplomatic conference on the MLA Initiative was to be held earlier this year but had to be postponed due to the pandemic, he noted, adding that it will be organized as soon as safely possible.
The representative of Singapore said the Commission’s draft articles and commentaries can contribute to the strengthening of accountability by providing useful practical guidance to States on this matter. However, the draft articles could be improved or clarified in the manner proposed in his country’s written comments. Draft article 7, paragraph 2 should expressly reflect in its text that it only permits States to establish jurisdiction over crimes committed by a national of a State party and does not extend to establishing jurisdiction over nationals of non‑States parties. Also noting submissions of comments from other countries, he said these demonstrate some divergence in views, adding that he looked forward to continuing discussions on these important matters.
The representative of Syria stressed the importance of non‑interference in the domestic affairs of all States, be they poor, wealthy, large or small. He noted the importance of the work of the International Law Commission but underscored that the Sixth Committee is the sole body capable of reaching agreement among States regarding a draft convention on this issue. The draft articles currently do not adequately address the concerns of Member States, especially those relating to the International Criminal Court — a body whose role and purview remain controversial. Stressing the need for further consideration of the draft resolution in order to reach consensus, he supported a proposal that the draft resolution contain language incorporating this agenda item into the General Assembly’s seventy‑seventh session.
The representative of Germany, aligning herself with the European Union, said that a new convention on the prevention of crimes against humanity would complement existing treaty law and foster international cooperation on this matter. It will also provide further impetus for prevention of atrocity crimes and be a milestone in the fight against impunity. All States, including those with reservations to the International Criminal Court, should have a legal instrument aimed at preventing crimes against humanity at the national level. The draft articles remain within the familiar framework of international criminal cooperation, she observed, underscoring the need for a structured approach to future negotiations that will put this important project on track. Taking note of Austria’s suggestion of a diplomatic conference, she called on delegates to come to an agreement on concrete steps forward.
The representative of Brazil, noting that the draft articles are largely inspired by the Rome Statute of the International Criminal Court, said this will ensure consistency within the international law system. However, in the final product, there should be a reference to issues of jurisdiction. While there is no doubt on the need to ensure that crimes against humanity do not go unpunished, the means to attain this goal might deserve further debate, taking into account the developments of international law and institutions. The draft articles would also benefit from the addition of safeguards to prevent the abuse of the universality principle. Joining the large number of States that favor the elaboration of a convention, she said that the Sixth Committee has an unfulfilled task in front of it. Therefore, it is imperative to prioritize a format that provides the legitimacy and inclusiveness needed to the discussions.
The representative of Sudan, aligning himself with the African Group, said that many of the draft articles on this topic were copied, without alteration, from other treaties and conventions that remain controversial. Therefore, the draft articles cannot constitute the basis for a convention. Highlighting the need to end impunity for crimes against humanity and war crimes, he supported all legal efforts leading to justice for the victims of such crimes, especially women and children. While there is a need to combat impunity for the perpetrators of these crimes, States must also have the right to implement their national jurisdictions. More time is necessary to study the draft articles before deciding how to proceed, he said.
The representative of the Czech Republic, aligning herself with the European Union, said that the draft articles deserve the attention of the international community. They provide a framework for cooperation between States on this issue. All States have a duty to hold perpetrators of crimes against humanity responsible. However, prevention and punishment of these crimes is regulated only partially on the international level, she pointed out. Thus, a convention would fill the legal gaps in this area and complement other conventions regarding the prosecution of the most serious crimes under international law. The draft articles take into account other generally accepted criminal-law instruments, she added.
The representative of Portugal stressed that the international community must heed the International Law Commission’s recommendation to convene a diplomatic conference to negotiate and adopt a convention on the basis of the draft articles on crimes against humanity. A legally binding instrument would offer another important substantive and procedural mechanism towards fighting impunity and ensuring accountability for such crimes. He also pointed to the MLA Initiative, which offers the possibility of concluding an international convention to enhance cooperation among States, not only where crimes against humanity are concerned, but also other most serious crimes. The two projects should not be used as an excuse not to advance either. He was convinced both could be developed and implemented together and, in doing so, establish an effective and comprehensive international legal framework to fight against these crimes, he stated.
The representative of New Zealand said the work of the Special Rapporteur and the International Law Commission provides a strong basis for Member States to consider the negotiation of a draft convention on crimes against humanity. The effective prevention and prosecution of such crimes is enabled by taking measures at the national level and by enhancing international cooperation, including with respect to extradition and mutual legal assistance. The draft articles recognize this, he pointed out, adding that a convention, based on the work of the Commission on this topic, would complete the important exercise of codification of these crimes. Because such crimes are of concern to the entire international community, and in the interests of fostering widespread cooperation of States in this area, the way forward must be the subject of a broad-based and inclusive dialogue, he stressed.
The representative of Costa Rica, adding her support for the development of a convention on crimes against humanity, said that such an instrument would fill a vacuum in international law. Responding to concerns raised by other delegations regarding negotiating a convention despite certain aspects remaining undefined, she stated that pending issues could be addressed via the transparent, participatory and inclusive nature of a diplomatic conference. The draft articles are the culmination of five years of work by the International Law Commission. States share the objectives of combatting impunity for perpetrators and delivering justice to victims of these crimes. She also emphasized that these crimes must be classified as such under domestic criminal law, as this facilitates prosecution at the national level.
The representative of Estonia, aligning herself with the European Union, said it is the international community’s common responsibility to take a stance when crimes against humanity and pursuit of justice are at stake. The draft articles and their commentaries have already significantly contributed to these efforts, she said, applauding the Commission for its transparent and open procedure. Voicing support for the elaboration of a convention on the basis of the draft articles, she pointed out that such an instrument would fill the current gap in the international treaty law and strengthen the international criminal law system alongside the relevant international treaties on genocide and war crimes.
The representative of Mexico, underscoring the importance of the International Criminal Court in combatting crimes against humanity, expressed concern regarding denunciations of the Rome Statute heard in recent years. Noting the vacuum in international law regarding crimes against humanity, he added his support for a convention based on the draft articles to close gaps at both the international and national levels. He also called for substantive discussions to agree on a process for negotiation with clear deadlines, stressing that the relevant forum for addressing issues with the draft articles is an intergovernmental conference. The Sixth Committee has the opportunity to break the cycle of inertia and inaction that has reigned in recent decades, he stressed, outlining the twin benefits of doing so — progressing the development of international law and improving the dynamic between the Committee and the International Law Commission.
Also speaking today were the representatives of Nigeria, China, Viet Nam, El Salvador, Bangladesh, Pakistan, Sweden (also for Denmark, Finland, Iceland and Norway), Venezuela, Switzerland, Slovakia, Sierra Leone, Egypt, Cuba, Paraguay, Russian Federation, Chile, Saudi Arabia, United Kingdom, Guatemala, Republic of Korea and India, as well as a delegate from the European Union.