The Just Security Podcast

A Major Breakthrough Towards a Treaty on Crimes Against Humanity

• Just Security • Episode 90

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On November 22, the United Nations General Assembly’s legal arm, the Sixth Committee, adopted a resolution paving the way for negotiations on a first-ever treaty on preventing and punishing crimes against humanity. The resolution comes after years of impasse and after Russia and a handful of other countries dropped amendments that could have derailed the process at the last-minute. 

Crimes against humanity are those committed as part of a large-scale attack on civilians and include acts such as murder, rape, imprisonment, enforced disappearances, sexual slavery, torture and deportation. To be considered a crime against humanity, a violation doesn’t necessarily have to occur during an active war. And while crimes against humanity are covered by the International Criminal Court, nearly 70 countries are not members of the Court, which creates a gap in fully prosecuting these crimes in countries from Sudan to Syria to Myanmar. 

What can we expect next as States prepare for negotiations, and how might a future crimes against humanity treaty close the impunity gap?  

Joining the show to unpack the developments on the crimes against humanity treaty are Akila Radhakrishnan and Leila Sadat.  

Akila is an international human rights lawyer and gender-justice expert, who currently serves as the Strategic Legal Advisor for Gender Justice for the Atlantic Council’s Strategic Litigation Project. Leila is the James Carr Professor of International Criminal Law and longtime Director of the Whitney R. Harris World Law Institute at Washington University School of Law. 

Show Notes: 

Paras Shah: On November 22, the United Nations General Assembly’s legal arm, the Sixth Committee, adopted a resolution paving the way for negotiations on a first-ever treaty on preventing and punishing crimes against humanity. The resolution comes after years of impasse and after Russia and a handful of other countries dropped an amendment that could have derailed the process at the last-minute. 

Crimes against humanity are those committed as part of a large-scale attack on civilians and include acts such as murder, rape, imprisonment, enforced disappearances, sexual slavery, torture and deportation. To be considered a crime against humanity, a violation doesn’t necessarily have to occur during an active war. And while crimes against humanity are covered by the International Criminal Court, nearly 70 countries are not members of the Court, which creates a gap in fully prosecuting these crimes in countries from Sudan to Syria to Myanmar. 

What can we expect next as States prepare for negotiations, and how might a future crimes against humanity treaty close the impunity gap? 

This is the Just Security Podcast. I’m your host, Paras Shah. 

Joining the show to unpack the developments on the crimes against humanity treaty are Akila Radhakrishnan and Leila Sadat. 

Akila is an international human rights lawyer and gender-justice expert, who currently serves as the Strategic Legal Advisor on Gender Justice for the Atlantic Council’s Strategic Litigation Project. Leila is the James Carr Professor of International Criminal Law and longtime Director of the Whitney R. Harris World Law Institute at Washington University School of Law.

Akila, Leila, thanks so much for joining the show. There have been some very exciting recent developments in the crimes against humanity treaty discussions after years of delay. Could you start by giving us an overview of how we got to this point? Leila, let's start with you. 

Leila Sadat: Okay, and I think what I'll do is try to keep it fairly short, because we can always dig in and go backwards, right? Basically, what happened last Friday was an adoption by the legal committee of the General Assembly of a resolution designed to take a new treaty on the prevention and punishment of crimes against humanity to negotiations over a four-year period, culminating, we hope, in the adoption of a treaty in 2029. And in some ways, we can trace this all the way back to World War II and the Nuremberg trials, when crimes against humanity is used as one of the three crimes that was the basis of the trial of the Nazi leaders after the war. And we know that crimes against humanity have been really important in international criminal courts and tribunals, but we've never had a treaty on it since 1945, other than the Rome Statute for the International Criminal Court. 

So, since 2007 and 2008, I've been leading a group of scholars and experts and practitioners in advocating for a new treaty. And we were very fortunate when the U.N. International Law Commission picked up this call for a treaty and drafted its own set of draft articles which are going to be the basis for the negotiations in 2028 and 2029. So, I think I'll stop there and let Akila fill in some of the interesting details.

Akila Radhakrishnan: Sure, happy to jump in. I mean, I think that, you know, from my perspective, I first got involved in the process, really, around some work during the ILC’s drafting process, thinking about how, if there is to be a new such treaty, that we make sure that, you know, that it's gender competent. There were a range of efforts that were ongoing around the gender definition, other issues. And so, we got involved, kind of in providing some expert commentary to the ILC and then, with Leila and other partners, started engaging as the Sixth Committee kind of continued to fail to act on the process, you know, starting when it was turned over to them in 2019. And I think a lot of this work has actually been tracked in various articles on Just Security for those who are interested.

 And you know, getting to last Friday was quite a journey, and last Friday was certainly a really exciting moment in the step forward and certainly was quite the dramatic day in getting there. You know, we always knew, and no one more so than Layla, that you know, certain rules or procedures of the Sixth Committee consensus, which we can talk a little bit more about, you know, were ways in which progress has been stymied in the Sixth Committee, which is tasked with the progressive codification of international law. And so, you know, we really saw, kind of, what I think often you don't see at the U.N., which is, what does diplomacy in action look like, especially when you're looking at, you know, which, in the words of one of the member states who spoke out after the debate, was bad faith negotiations. How do you actually — where, you know, member states are not engaging in good faith — how do you actually still get to a positive result? And I think that what happened last Friday, even if there's things in there that we're not as pleased about as we could be, was really a show of one, I think, how important this agenda item and getting to this treaty is for so many member states, and two, how, you know, courageous leadership and diplomacy can really be instrumental in actually making sure that this multilateral system, you know, that has so many ambitious goals actually does work at the end of the day.

Paras: Yeah. What was it like watching those negotiations? You mentioned the high drama at the end, with Russia dropping its amendments, along with a few other states that were North Korea and Nicaragua. What was it like just watching the discussions unfold? 

Leila: You know, I was in the room. I actually flew back to New York for the last day. I hadn't planned to go, really, but I thought, you know, if it's going to happen, we all need to be there. And if it's not going to happen, all the states that have been championing this were going to need a collective group hug, you know, one way or the other. I think it was really important to physically be there. And Thursday evening when I went to bed after flying into New York, what was on the table was a chair proposal. Russia had tabled some amendments on Monday. They were largely unacceptable. It sort of crossed all the red lines, including keeping the working group in the Sixth Committee, which has this consensus rule, which was an absolute red line for us, and a whole lot of other additions. So, the Russian proposals of Monday were unacceptable. There was a struggle then to get the co-sponsors to rally around a new text. The chair proposed a text that had some difficulties. And so, when I went to bed on Thursday, that's sort of the lay of the land, what was going to happen on Friday?

And we woke up Friday morning to an agenda that said, the first item would be calling for a vote on the Russian amendments, and the second agenda item would be calling for a vote on an earlier version of the text, which was very satisfactory to civil society as well as the co-sponsor group. But it was right there in the agenda that there would be a vote. And I don't think, honestly, we breathed for about the next eight hours. I don't think any of us took a breath, because we didn't know what that was going to look like, because so many states really did not want to vote. And the first thing that the Russian Federation did when it took the floor was call for suspension of the meeting on the basis that it thought now, maybe, it might accept the chair proposal that it had rejected earlier in the week. And so, the meeting ended up being suspended. People were milling about on the floor, looking tense and upset. A lot of people are texting each other on WhatsApp, trying to figure out a way forward. It was really touch and go for the rest of the day, as the core group and some other states went, sort of, and were negotiating as the sixth committee was finishing up with other agenda items.

And at one point — and Akila, just jump in if you want anymore — but I was physically sitting there, and we hadn't really eaten all day long, and we're kind of holding our breath up in the peanut gallery, where the civil society observers can sit. And at one of the delegates texted me a picture of white smoke coming, saying, okay, we have a solution. Yay! The white smoke is appearing. And I think the next picture we got from another delegate was a picture of a chihuahua rolling its eyes in despair, because Russia had first agreed to the consensus and then said, well, actually, we can't agree to that. We need instructions from Moscow. And at that point, it was actually a pivotal moment, because that rallied the supporters to say, okay, we're done. We've been kind of mucking about with this all day long. It's clear the Russian Federation will never sign on to a content consensus text, so let's just go forward. And that was the breakthrough that the core group needed to get the consensus resolution adopted.

Leila: I mean, maybe I'll add. I was unfortunately not able to be in the room. But I think it was high drama and tension for folks wherever they were, and all of us turned into WhatsApp warriors, you know, reaching out as much as possible, because we were also getting, you know, these furious conversations were happening between delegates, between co-sponsors, and also just, you know, us as civil society doing whatever we could in the last minute to rally the support, and you know, really try to make sure that red lines were being adhered to, and that, you know, that, you know, messages were being passed. So, there was kind of a lot of mobilization, I think, amongst not only delegates, but civil society, to do everything we could to make sure that we came out with the positive results at the end of the day. And so it was, you know, as someone who’s sat in on a lot of U.N. meetings, it was definitely one of the more exciting meetings. And also, you know, oftentimes we use the word debate when it comes to the United Nations, and it's usually just a pre-prepared set of statements. And you could say that nothing about the way Friday turned out was any of that.

Paras: Yeah, that is really striking, that image of white smoke, of course, referring to the process for selecting a pope. When the cardinals have selected a pope, they send up the white smoke instead of gray, to know that they've had a new leader selected. And here we have a resolution passing.  

And crimes against humanity are within the jurisdiction of the International Criminal Court. How will this treaty help to strengthen the process by which these crimes are really punished and prosecuted?

Leila: Oh, that's a great question. I mean, one of the things we know about the ICC — which I've supported my entire career, I served as Special Advisor for 10 years — but we also know the limitations of the court, that it's a treaty-based court with limited jurisdiction, that it has limited resources, can only prosecute a handful of cases. And unfortunately for us, the crimes are continuing to fester and multiply and proliferate around the world. So, we have too many crimes and too little justice capacity.  

So, where can you strengthen the justice capacity? It's in national systems. And national systems in the ICC, in the Rome Statute system, really, are the first line of defense anyway. The court is a court of last resort, not first resort. And so, the ICC really sits at the center of an international justice system. And the point of this treaty is to strengthen the ability of national systems not only to prosecute but to prevent crimes against humanity. The treaty will also rope in the International Court of Justice by creating the opportunity for states to go to the ICJ for the interpretation and application and fulfillment of the convention. And depending on how strong a treaty we get, you could look at monitoring mechanisms and other things. So, the idea of this treaty is really to complement and enhance the Rome Statute system. The ILC and our project initially conceived of it very much as using the Article Seven of the ICC statute, which is the crimes against humanity provision, as the central pillar of the text. And I think most of Article Seven will stay in the new draft, but I think there will be some interesting new amendments proposed for new crimes and for the enhancement of crimes against humanity, because it has been over 25 years since the Rome Statute was negotiated. But the idea, really, is that it will complement and enhance the ICC and its work.  

Paras: So, in terms of next steps, the General Assembly still needs to approve this resolution with a final vote in December. But that's largely expected to be a formality, and the reason this is so important is because it kicks off the process to actually begin negotiations. And for so long, the reason that this has languished in the Sixth Committee is because the Sixth Committee operates by consensus, and any state can really block these efforts, as we saw with Russia just last week. What can we expect next in terms of actually drafting the treaty, which could stretch until 2029?

Akila: So, one of the things that we saw in the draft resolution is an outline, kind of, of the key next steps that, you know, that will be a part of the conference. And so, they set up — in terms of the negotiations, the negotiations are meant to take place in 2028 and 2029. We don't have the specified dates quite yet, and in getting to 2028 and 2029, there will be some both substantive and procedural conversations that are envisioned to help really develop the basis for negotiations.  

So the first part is, you know, over the last two years, in the Sixth Committee, through the resumed sessions, we saw a lot of states raise, you know, both, you know, what they thought about should be strengthened and remain, as was reflected in the in the draft articles, and also raise amendments to the draft articles, including the inclusion of certain new crimes as well as related to the wide range of provisions within the treaty. And so, for a lot of states, this conversation was really important and pivotal in having them decide that actually, it was really important to move forward in this process and to negotiate. And so, for many of those states, that meant that, while the draft articles could be a baseline, one baseline for negotiations, they wanted to have more explicit what some of these other proposals and ideas on the table could be. 

So, the first thing we'll see, as specified by the resolution, is in 2026 a working group/preparatory committee session that's really going to be meant to discuss and help states formulate proposals for amendments, which are due to be submitted to the Secretary-General for compilation in April 2026. And then that'll be followed in 2027 by a more procedural prep com to really set the rules of the conference, discuss the different modalities. And it's also during these preparatory commission meetings that the extent and breadth of civil society participation will be decided, because that was one of the provisions where there was a really strong provision on the inclusion of civil society that was compromised on and deleted at the last minute, with the decision on that being deferred to the prep coms. 

So, those are some of the key things that we're tracking. I think for a lot of folks who are very interested in thinking substantively, definitely that 2026 conversation and moment around developing proposals will be particularly important. But in 2027, we need to make sure that civil society is meaningfully engaged in the prep com as well as has the ability to participate fully in the negotiations, or as fully as possible in the negotiations. So, we'll definitely be keeping an eye on those things. Leila, correct me if I got anything wrong, because things were moving fast on Friday. 

Leila: No, and we're still waiting. That was perfect, Akila. You know, one of the things is because this document was being amended on the fly during the day, they actually used the preceding text and then had various amendments to it that were read aloud orally, but we're still waiting for everything to be translated into all six languages, and for the Secretariat to make sure all the cross references and the paragraphs are right. 

I think what we got in the document is, there some wiggle room now for mischief, because some of the provisions were sort of softened in a way that some mischief to the process or to the participation of civil society could happen. My suspicion, though, is given the enormous support for this, I don't see that as highly likely, and so, I certainly think that we're not going to worry about that until it happens, but we'll obviously be vigilant with respect to participation. I think one of the advantages of the longer timeline — there are a lot of disadvantages — but one advantage is, I think next year would be a critically important year, even though it won't involve formal treaty negotiations, I think you will see states beginning to put pen to paper, as well as civil society, and coming in with very concrete proposals and thinking very deeply about the structure and shape of this future treaty now that we know there will be a treaty. So, I think it is a year that we can use very effectively to get some momentum going into 2026 when the preparatory committee and the working group start to work officially.

Paras: Yeah, next year will also be a critical year here domestically in the U.S. because of the change in presidential administrations. And with the Trump administration coming in on January 20, do we anticipate any change in the U.S. position, and how might that affect the negotiations?

Leila: Well, I suppose I could speak to there probably will be a change in the U.S. position, at least based upon the first Trump presidency, where the United States provided comments on the ILC draft. Those comments were fairly negative, so the United States was not particularly supportive of this endeavor under the Trump administration. I think what will be interesting, and Akila, maybe you want to jump in here, is, will the United States participate at all? You know, the Bush administration often stayed out of international negotiations, preferring to attack the institution or just create its own policy. I don't know whether the Trump administration will be deeply engaged in this process or will simply choose not to participate. So, I think that's a question.  

Akila: I think you're right. And when I think back to the last administration, for example, one of the offices that's been really instrumental in galvanizing U.S. support in this moment has been the Office of Global Criminal Justice, which in many ways was somewhat dormant in under the last Trump administration and did not really get a new proper leadership until towards the end of the time of the administration. So, it'll be interesting to see whether or not this becomes something that is a priority.

I think for me, one of the things that, of course, comes to mind as someone who's focused on gender justice, is that overarchingly, in the last iteration, the Trump administration did take relatively regressive positions when it comes to a range of different issues on gender, not the least around issues of, you know, of reproductive rights. And certainly, there are CSOs, including the one I used to run, and I continue to be a part of the advocacy on including a crime of reproductive violence, for example. And so, definitely, I think, concerned about where, if the administration does participate on some of the, you know, some of the definitions of certain crimes, and particularly of those that may be on the progressive side, what alliances the U.S. may take and engage with. And then the other kind of interesting, the interesting thing here is, with this long timeline going to 2029, we may have another change in administration by the time this whole process is concluded. 

Paras: Yeah, thanks for that overview. And are there specific issues that you're tracking where this treaty might be able to actually make progressive developments in international law? As you all mentioned, some of this is tracking Article Seven of the Rome Statute, but that was drafted in the late 1990s. Where can this actually be an avenue or a vehicle for advancing our understanding of issues like gender and international law? 

Leila: So, I'll let Akila speak to many of the gender proposals, which range from fairly not technical amendments, but amendments that I think are very common sense, to amendments that are really much more progressive and far reaching. I think another area that I've been working with is environmental crimes. We've seen this ecocide proposal come to the ICC. I think it's hard to amend the Rome Statute, and even when we do amend the Rome Statute, very few states tend to ratify the amendments, which means that even if you were able to put a definition of ecocide into the Rome Statute, which has a certain number of challenges. I think it would be very hard to make it effective. 

Whereas we have an opportunity with this new treaty to take ideas that have been on the table for a long time, including the slave trade, including environmental crimes, and including some of the other crimes like colonialism that are very important to African states, and they've been kicked around for the past 30 years. This is — these aren't new ideas. They just didn't make it into the Rome Statute for a variety of reasons. And so, I think we might be able to bring back some of those important elements as this new treaty drafts, because it will be a more universal instrument. I love the fact that this was a Global South-led process with full support, also, from western states. And so, I think the combination of that Global South leadership and that coming together of North and South really offers an opportunity for this to be a treaty of the 21st century. 

There will be pushback. So, I'll let Akila talk about some of that. But on the gender area, there's some great proposals that are on the table that she's been spearheading.

Akila: No, thank you so much, Leila, and I could not agree with you more that this has to be a treaty that's forward looking, that's future looking. You know, we can't just kind of keep the law as it is, because I think in this world, we are continuing to learn about what are the gaps in the law. And something I think about a lot, and I think you can see, also, in terms of the other gaps that have been highlighted, not on the gender issues, such as the, you know, colonialism, environmental degradation, is really who's at the table when it comes to making law, and how do we rethink some of those processes of who are excluded to make sure that this process that we're about to go into is one that really thinks about the affected communities and how they can meaningfully participate, and we can think about how to incorporate the things that are important to them into a treaty, because I think that, you know, part of the trajectory of international law, It's always been a coalition of the powerful with what means the most to them, right? It's why in the human rights sphere, we often see a preference for focusing on civil and political rights over economic, cultural and social rights, which, when you talk to communities, tend to often be far more important. And so, I think that's one of the challenges that we're going to face. 

 And certainly, this is something that is particularly important on issues of gender. The Rome Statute marked some really important progress in thinking about what we learned in jurisprudence, in fact, profile from the conflict in Yugoslavia, Rwanda, what we learned out of those tribunals to really create a much broader understanding of gender-based crimes beyond that of rape. In the nearly 30 years now since the Rome Statute, we've learned even more. And so, how do we make sure that a treaty that is looking forward not only incorporates the, you know, the jurisprudence and what we've learned in the law? That it fixes, you know, retrogressive decisions or compromises that were made in Rome, and then also thinks about how this can be an opportunity to recognize new phenomenon?

And you know, at the moment there are proposals, I suspect there will be many more proposals potentially but, you know, that kind of touch on all of these issues in these areas, right? So, in the context of thinking about fixing a compromise, there's proposals on the table to remove a compromise provision on the definition of forced pregnancy. There are also proposals around how to think about the definition of gender as it relates to the treaty. In terms of catching the jurisprudence up to where we're at, we're thinking about, you know, crimes like forced marriage, which, you know, including at the ICC, has brought in another and other inhumane act and has been prosecuted in Sierra Leone and other tribunals reproductive violence and concepts of reproductive violence that have been prosecuted successfully in regional courts and domestic courts, in Colombia and Peru, where we're really thinking more broadly and expansively about the context of gender based harms. And of course, I think one of the ones that a lot of folks have been talking about is the proposal to codify gender apartheid, really thinking about the experience of the totalizing erasure and the systematic oppression and domination of women in Afghanistan. And so, how do we think, kind of, across all of these lines, to really build a future progressive treaty that meaningfully protects populations from all around the world, because, as Leila mentioned, that's what this treaty is. It's really global in intent, and it should be global in its impact.

Paras: Yeah, thanks so much for that overview, and that's really helpful context to think about what a progressive treaty could look like. We're running short on time, but looking forward to the end of the year, we have about a month left. What are the one or two biggest trends that each of you is looking for or tracking?

Leila: So, I think right now, everyone's a little exhausted. So, I think right now what we're looking is a little bit of a pause in the frenetic activity that we've all been experiencing over the past two months. But even as soon as about ten days from now, civil society will gather on the margins of the ICC Assembly of States Parties meeting, and there are already scheduled two major side events, one put together by Akila and others, a workshop on civil society, basically explaining what just happened, getting ideas about what should happen in 2025 during this sort of interim year, and there's going to be a second side event on gender. There will be several publications forthcoming, obviously, kind of chronicling and cataloging what's already happened to date. One of the things I'm working on is, as chair of the International Law Association’s American branch, we now have a study group on the treaty, and will start to put together a program of work for 2025 that will look at some of the really fundamental issues of treaty design, as well as substance, in terms of the definition. And what I mean by that is, will the treaty permit reservations? Will the treaty have a prevention obligation that's extraterritorial in scope? What will be the enforcement mechanisms, right? Lots of the design issues that go into making a treaty work need to be thought about carefully. So, I think all of us are kind of getting together with those in our space and figuring out how to best focus on 2025. And I think the core group of states will be also holding seminars and talking to each other about how to keep momentum going and how to create a like-minded group that can carry the treaty across the finish line in 2029.

Akila: I think maybe I'll just add one quick thing that relates and builds on what Leila was saying, which is, I think, you know, we're also looking forward to engaging a much broader group of constituencies and stakeholders in this process. Leila knows, but for much of this process, civil society engagement has been a largely lonely one, or a very small group of civil society that's been engaged, because it's really hard to invest resources in a process that you don't know whether or not it's going to make it over the finish line. And you know, it is difficult sometimes to have optimism about U.N. processes in this day and age with kind of what we see across the multilateral system. And so now, I think it's really about, you know, and it's a short-term goal, and it's a long-term goal, how do we build the excitement and the awareness of this upcoming process, think through what are the opportunities for really diverse constituencies to be able to think about why this is important, how they want to engage and galvanize the resources to actually be able to meaningfully engage and influence the negotiations? 

Paras: Yeah, certainly a lot to look forward to there. Is there anything that we haven't touched on yet that you'd like to add? 

Leila: You know, I might add one final coda, which is, I think a lot of the exuberance and enthusiasm and the relief that we heard in the applause last Friday was that all states want widespread and systematic attacks on civilians to stop. I think this treaty raises the hope that we can reinforce the norms of international law and stop what we have widely perceived to be a backsliding in the international legal framework and its effectiveness. And so, I think this really can be the treaty of our generation that can really provide hope, that we can, in fact, build a better, safer and more peaceful world. And I think that enthusiasm and that optimism is what we were feeling in the Trusteeship Council at the United Nations last week.

Paras: We'll be following all of this at Just Security, and listeners can read Akila and Leila, your extensive analysis on the treaty discussions over the years. We'll link to your analysis in the show notes. Thank you again for joining the show.

Leila: Thank you for having us. 

Akila: Thank you for having us.

Paras: This episode was hosted and produced by me, Paras Shah, with help from Clara Apt. 

Special thanks to Akila Radhakrishnan and Leila Sadat. 

You can read all of Just Security’s coverage of crimes against humanity, the United Nations, and the International Criminal Court, including Akila’s and Leila’s analysis, on our website.  

If you enjoyed this episode, please give us a five-star rating on Apple Podcasts or wherever you listen. 

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