Opinion:

BY ELISE KEPPLER

“Wait, why is it that we need a crimes against humanity treaty if we already have the International Criminal Court’s Rome Statute?,” asked several activists during a group discussion I attended this week in Cote d’Ivoire’s capital Abidjan.

With only six months until the UN’s Sixth Committee takes a decision whether to advance the Draft Articles on Prevention and Punishment of Crimes Against Humanity to treaty negotiations, the need for greater awareness on the Draft Articles is high, especially on the African continent. Africa has the largest number of states that have yet to expressly weigh in on whether the Draft Articles should advance to negotiations.

A crimes against humanity treaty would in fact be distinct from the ICC’s Rome Statute. First and foremost, the ICC deals with individual criminal responsibility, while the hoped-for crimes against humanity treaty would concern the responsibility of states to both prevent and punish the crimes. And, it is precisely such a treaty that could open the door for states to hold other states accountable through the International Court of Justice if those obligations are not met.

While genocide and war crimes have dedicated treaties—the Convention for the Prevention and Punishment of the Crime of Genocide and the Geneva Conventions—crimes against humanity exist in customary international law. Having express, delineated agreed upon provisions in a treaty is far more desirable. Indeed, this is such an obvious gap to be filled that I have yet to meet an activist who did not wish to lend their support to the effort once appreciating its purpose.

Our discussion among Ivorian human rights advocates turned quickly to how to best mobilize Cote d’Ivoire and other African states to support negotiations for the treaty.

The UN’s Sixth Committee met in April in New York to discuss the Draft Articles and states’ views on whether it is time to move them to formal treaty negotiations. More than 70 countries spoke out in support. But achieving consensus—the customary operating procedure of this committee—to move the process to negotiations will necessitate more support.

Among African governments, several have taken a clear position. Sierra Leone has shown particular leadership, alongside South Africa and Gambia. Ghana and Portuguese speaking African states—Angola, Mozambique, Guinea Buissau, Sao Taome and Principe, Equatorial Guinea, and Cabo Verde also voiced support at the April session. A couple of others earlier expressed support—including Senegal and Tunisia.

But far too many African governments have yet to take an official position on the need to move these Draft Articles to negotiations for a crimes against humanity treaty, including those that have a history of supportive positions on matters of accountability–such as Zambia, Malawi, Lesotho, Namibia, Botswana, Benin, Liberia, Cote d’Ivoire, and Uganda, among others.

Global Justice Center has disseminated a series of proposals to enhance the Draft Articles to be gender-competent and survivor-centric. The following crimes, in our view, should be expressly incorporated into the Draft Articles: forced marriage, reproductive violence, gender apartheid, and the slave trade. We also are advocating for language that is meaningless at best regarding national pregnancy laws to be removed, for excluding the Rome Statute’s definition of gender, and for adding a definition of victims that recognizes the scope of victimhood and language that attends to victims’ needs—including reparations.

But the priority is to advance the process, which has been pending in the UN’s Sixth Committee for multiple years, to the next stage – to treaty negotiations where particular proposals can be further debated.

Advocates, activists, and experts agree. More than 400 civil society groups and individuals, many from across the African continent, have signed a joint statement calling for their governments to support entering into negotiations on a crimes against humanity treaty.

Governments—particularly the many across Africa that have yet to take a formal position in support of treaty negotiations—should heed the call.

This opinion piece first appeared in the Daily Maverick on May 12, 2024.

About Elise Keppler

Elise Keppler is Executive Director of the Global Justice Center (GJC), an organization that uses international law to fight for gender equality.

She joined in January 2024, after two decades at Human Rights Watch’s International Justice Programme, where she focused on situations across Africa.

A microsite hosted by GJC on the hoped-for treaty, with resources and the joint statement—which continues to attract new endorsements weekly – can be accessed at: https://cahtreatynow.org/.