Written by Oscar Cheng

Special thanks to Professor Lena Raxter for providing invaluable comments and guidance in the development of this article.

Introduction

After several years of advocacy, a U.N. treaty on crimes against humanity is finally coming to fruition. Unlike other international crimes, there has not been a specific treaty focusing on crimes against humanity.¹See, e.g., Toward a Convention on Prevention and Punishment of Crimes Against Humanity: Recommendations to States, Trial Int’l (May 3, 2024), https://trialinternational.org/latest-post/towards-a-convention-on-prevention-and-punishment-of-crimes-against-humanity-recommandations-to-states (on file with American University International Law Review). In 2019, the International Law Commission (“ILC”) recommended the Draft Articles on Prevention and Punishment of Crimes Against Humanity (“CAH Draft”).²Int’l L. Comm’n, Rep. on the Work of Its Seventy-First Session, U.N. Doc. A/74/10, ¶ 42 (2019), reprinted in [2019] 2 Y.B. Int’l Comm’n 23, U.N. Doc. A/CN.4/SER.A/2019/Add.1 (Part 2). As the U.N. Preparatory Committee finished its first deliberation in January of this year, the CAH Draft is on track to becoming a legally binding instrument by 2029.³Timeline of the Draft Articles, CAH Treaty Now, https://cahtreatynow.org/timeline (on file with American University Washington International Law Review) (last visited Jan. 20, 2026). For details about the conference, see United Nations Diplomatic Conference of Plenipotentiaries on Prevention and Punishment of Crimes against Humanity, U.N. Diplomatic Conf. of Plenipotentiaries (Feb. 12, 2026), https://legal.un.org/diplomaticconferences/cah/prepcom.shtml (on file with American University International Law Review).

Unfortunately, despite the intention of the CAH Draft filling a gap in targeting international crimes⁴Draft Articles on Prevention and Punishment of Crimes Against Humanity with Commentary, Gen. Comment. ¶ 1, in Rep. of the Int’l L. Comm’n, ¶ 45, U.N. Doc. A/74/10 (2019) [hereinafter CAH Draft Commentary] (observing a lack of an international treaty “dedicated to preventing and punishing crimes against humanity and promoting inter-State cooperation in that regard” in contrast to genocide and war crimes). and affirming the prohibition on crimes as humanity as a preemptory norm (jus cogens),⁵Draft Articles on Prevention and Punishment of Crimes Against Humanity, pmbl. para. 4, in Rep. of the Int’l L. Comm’n, ¶ 44, U.N. Doc. A/74/10 (2019) [hereinafter CAH Draft]. the current project will likely result in a treaty that is only applicable to State parties. Because jus cogens norms can never be violated,⁶See, e.g., Jus Cogens: The Foundation of Peremptory Norms in International Law, USLegal, https://legal-resources.uslegalforms.com/j/jus-cogens (on file with American University International Law Review) (last visited Mar. 18, 2026). the CAH draft framework should include a provision clarifying that it will be applied “in all situations, at all times and by all persons, without any exception.”⁷U.N. GAOR, 70th Sess., 6th Comm. Summary Record of the 22nd Mtg. ¶ 78, U.N. Doc. A/C.6/70/SR.22 (Nov. 23, 2015) (statement by Croatia delegation). A future Convention on crimes against humanity should incorporate a mechanism that would allow the framework to apply to parties not fully recognized as a state, enabling the obligation and mutual support on crimes against humanity to apply in internal and territorial disputes.

Background: the Rome Statute and a Treaty for Crimes Against Humanity

The CAH Draft is a fruit of an initiative led by Professor Lelia Sadat beginning in 2008.⁸Professor Sadat’s Crimes Against Humanity Initiative Reached a Historic Milestone, WashULaw (Jan. 8, 2025), https://law.washu.edu/news/professor-sadats-crimes-against-humanity-initiative-reached-a-historic-milestone (on file with American University International Law Review). The topic of crimes against humanity was added to the ILC’s long-term programme of work in 2013, following a proposal submitted by then-member Sean Murphy, who became the Special Rapporteur for the project.⁹See generally Analytical Guide to the Work of the International Law Commission: Crimes Against humanity, Int’l L. Comm’n, https://legal.un.org/ilc/guide/7_7.shtml (on file with American University International Law Review) (last visited Feb. 14, 2026) (compiling the general history of the CAH Draft in ILC and the General Assembly). After two years of inactivity and four years of development following the proposal, the CAH Draft was adopted by the ILC in 2019 and recommended to the General Assembly for treaty formation.¹⁰Id. The U.N. General Assembly tabled the issue for three years,¹¹See G.A. Res. 74/187, ¶ 2–3 (Dec. 18, 2019) (taking note of the work and including it into the agenda next year); G.A. Res. 75/136, ¶ 2–3 (Dec. 15, 2020) (same); G.A. Res. 76/114, ¶ 2–3 (Dec. 9, 2021) (same). and finally agreed to move forward in 2022,¹²G.A. Res. 77/249, ¶ 4–8 (Dec. 30, 2022) (mandating a discussion on the issue in the Sixth Committee). beginning the formulation process in 2024.¹³Press Release, Sixth Committee, Sixth Committee, Upholding Tradition of Consensus in Historic Meeting, Approves Text to Begin Elaborating International Convention on Crimes Against Humanity, U.N. Press Release GA/L/3738 (Nov. 22, 2024); see also generally G.A. Res. 79/122 (Dec. 4, 2024) (establishing treaty formulation process for the CAH Draft).

In the commentary accompanying the CAH Draft, the Special Rapporteur clarified that the draft articles avoid conflict with state obligations under the International Criminal Court (“ICC”) or other tribunals.¹⁴CAH Draft Commentary, supra note 4, Gen. Commentary, ¶ 4. Indeed, it is meant to address inter-state cooperation and complement the 1998 Rome Statute of the International Criminal Court (“Rome Statute”).¹⁵Id.; see also CAH Draft, supra note 5, art. 4 (obligation of prevention), art. 5 (non-refoulement), art. 13 (extradition), art. 14 (mutual legal assistance). The CAH Draft defines crimes against humanity; and outlines various state obligations and cooperation, including the obligation of prevention, non-refoulement, extradition, mutual legal assistance, and an (optional) obligation of dispute settlement with the International Court of Justice.¹⁶See CAH Draft, supra note 5, art. 2 (defining crime against humanity), art. 4 (outlining state obligation of prevention), id. art. 5 (outlining non-refoulement obligation), arts. 11–12 (outlining treatment of alleged offender, victim, witness, and relevant personnel), art. 13 (outlining extradition obligation), art. 14 (mutual legal assistance obligation), art. 15(2) (establishing ICJ jurisdiction between treaty states). But see CAH Draft, supra note 5, art. 15(3) (allowing a reservation for ICJ jurisdiction).

While the CAH Draft is proposed with the Rome Statute in mind,¹⁷See, e.g., id. pmbl. para. 7 (“Considering the definition of crimes against humanity set forth in article 7 of the Rome Statute of the International Criminal Court.”) (emphasis original); CAH Draft Commentary, supra note 4, Gen. Comment. ¶ 4 (noting the CAH Draft focuses on “inter-state cooperation” and “investigation, apprehension, prosecution, extradition and punishment in national legal systems” and contribute to principle of complementarity within the Rome Statute). its jurisdictional structure fundamentally deviates from it. The Rome Statute, which entered into force in 2002, establishes the ICC and outlines the framework of international criminal law that is widely recognized and referenced today. The Rome Statute primarily confers the ICC jurisdiction over certain international crimes occurring within the jurisdiction of a state party, or committed by the national of a state party.¹⁸Rome Statutes art. 12(1)–(2); see also id. art. 13(2) (allowing referral from the United Nations Security Council). Additionally, Article 12(3) of the ¹⁹See e.g., Sean D. Murphy (Special Rapporteur of Crimes Against Humanity), Fourth Rep. on the Crimes Against Humanity, ¶ 17, U.N. Doc. A/CN.4/725 (Feb. 18, 2019) (referencing the Rome Statute and noting it has drew provisions from widely ratified treaties to shape the obligation).Rome Statute allows a non-party member to declare acceptance of jurisdiction for a specific dispute.²⁰Id. art. 12(3). In contrast, the CAH Draft does not have a mechanism like Article 12(3) of the Rome Statute, effectively limiting its application only to “States” who signed onto the treaty.²¹See generally CAH Draft, supra note 5 (noting the obligations among “[e]ach State” without any provision allowing explicit application toward non-party state); see also CAH Draft, supra note 5, art. 7 (establishing national jurisdiction of “[e]ach State” when offence is committed in its jurisdiction, the offender is its national, or “if that State considers it appropriate,” the offender is a stateless person habitually resides it the State, or the victim is its national).

Legal Analysis: The Necessity for a Rome Statute Article 12(3) Provision

The lack of Rome Statute Article 12(3) or equivalent mechanism under the CAH is critical because it would effectively preclude its application in areas that involves non-party states (or non-state actors who are unable to sign the treaty) and go against the nature of crimes against humanity as jus cogen.²²Id. pmbl. para. 4 (“Recalling also that the prohibition of crimes against humanity is a peremptory norm of general international law (jus cogens)”) (emphasis original). The CAH Draft creates a string of obligations and benefits that each state receives, including an obligation to prevent and punish crimes against humanity,²³See id. art. 3 (General obligations); id. art. 4 (obligation of prevention); id. art. 6 (criminalization under national law); id. art. 7 (establishment of national jurisdiction); id. art. 8 (investigation). as well as a framework of procedures, rights, and cooperation between states in prosecuting crimes against humanity.²⁴See id. art. 5 (Non-refoulement); id. art. 9 (Preliminary measures when an alleged offender is present); id. art. 10 (Aut dedere aut judicare); id. art. 11 (Fair treatment of the alleged offender); id. art. 12 (Victims, witnesses and others); id. art. 13 (extradition); id. art. 14 (Mutual legal assistance); id. art. 15 (settlement of disputes). Only applying the CAH Draft to states who signed on to the treaty would diminish the jus cogens norm of prohibiting crimes against humanity.

Article 12(3) declarations under the Rome Statute shows its necessity to facilitate cooperation and application of international criminal law in times of war. In response to the invasion of Ukraine since 2013, Ukraine lodged two declarations accepting ICC jurisdiction in 2014 and 2015.²⁵See Ukraine, Int’l Crim. Ct., https://www.icc-cpi.int/situations/ukraine (on file with American University International Law Review) (last visited Sept. 29, 2025) (showing Ukraine lodged two declarations and became a party in 2025). These declarations affirm ICC jurisdiction and permits cooperation and examination immediately resulting in an official investigation in 2022.²⁶Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: “I have decided to proceed with opening an investigation.”, Int’l Crim. Ct. (Feb. 28, 2022), https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-i-have-decided-proceed-opening (on file with American University International Law Review); see also Int’l Crim. Ct., Report on Preliminary Examination Activities 2020 68 (2020) (noting the Prosecutor of the ICC opened the preliminary examination in Ukraine in April 25, 2014, seven days after the declaration).

Perhaps the most prominent example of a future application is the potential conflict between Taiwan and China. After losing the civil war in 1949, the Kuomintang (KMT) (中國國民黨) retreated to Taiwan, which China has since vowed to capture.²⁷See, e.g., Winberg Chai, Relations Between the Chinese Mainland and Taiwan: Overview and Chronology, 26 Asian Affs. 59, 59 (1999). For the purpose of simplicity, we refer the government of Republic of China (ROC) as Taiwan, and People’s Republic of China (PRC) as China. Veiled with economic coercion and military threats, a conflict in Taiwan is looming with suspicions that China will invade Taiwan in 2027.²⁸Ja Ian Chong et al., “Stand Up like a Taiwanese!” PRC Coercion and Public Preference for Resistance, 24 Japanese J. Pol. Sci. 208 (2023); Times of India, Trump Secretly Greenlights Taiwan Invasion? Chinese Military’s Chilling Declaration on Cam | Watch, YouTube (Mar. 9, 2025), https://www.youtube.com/watch?v=FYOU-HhBggk (on file with American University International Law Review); 中國駐法大使盧沙野：有天統一，要再教育台灣人，讓他們變回愛國份子、再支持統一，YouTube (Aug. 6, 2022), https://www.youtube.com/watch?v=_AguM3HASIg (on file with American University International Law Review). Taiwan’s situation is further complicated due to its contention of legal statehood, in which Taiwan faces difficulty to engage and ratify large multilateral treaties established under the auspices of the United Nations.²⁹See e.g., Yu-Jie Chen, Isolated but Not Oblivious: Taiwan’s Acceptance of the Two Major Human Rights Covenants, in Taiwan and International Human Rights: A Story of Transformation 207 (Jerome A. Cohen, William P. Alford & Chang-fa Lo eds. 2019) (noting how Taiwan was rejected from depositing ratification for the two human rights covenants, yet nevertheless ratified it as internal law). For a brief introduction of Taiwan’s statehood controversy and its implication to the classification of armed conflicts, see Eric Jensen et al., Taiwan Statehood (or Not) and Its Ramification for Armed Conflict, Lieber Institute, West Point: Articles of War (Dec. 20, 2024), https://lieber.westpoint.edu/taiwan-statehood-or-not-its-ramification-armed-conflict (on file with American University International Law Review). Under the formulation of CAH Draft, Taiwan would not be able to sign this treaty.

While Article 12(3) of the Rome Statute remains contingent on state consent,³⁰2 M. Cherif Bassiouni & William A. Schabas, The Legislative History of the International Criminal Court 142–44 (2d revised and expanded ed. 2016) (noting the state consent and the goal of the court, which is to “allow and encourage States to exercise jurisdiction over the perpetrators of a particular crime,” and how Article 22(2), the predecessor of Article 12(3) illustrates a form of consent via ad hoc declaration). its application shows a possibility of universal application. Article 12(3) of the Rome Statute creates a potential framework where non-party states and non-state actors may accept the jurisdiction of the ICC.³¹See generally Sze Hong Lam, Should the ICC Accept Taiwan’s Delegation of ad hoc Criminal Jurisdiction? A Debate on Taiwan’s Functional Statehood in the Context of Article 12(3) of the Rome Statute, 11 Cambridge Int’l L.J. 51 (2022) (observing the ad hoc declaration of Article 12(3) of the Rome Statute in the context of Palestine, and raises arguments that Taiwan could lodge the same declaration despite its contested status). Jus cogens norms are meant to be mandatory and universally accepted throughout the world.³²Wex Definitions Team, Jus Cogens, Corn. L. School, https://www.law.cornell.edu/wex/jus_cogens (on file with American University International Law Review). By the same logic, the support framework and obligation regarding crimes against humanity should also apply universally, which a provision similar to Article 12(3) of the Rome Statute can accomplish.

Conclusion: Where the Light Don’t Shine

The cold and harsh reality is that state sovereignty precludes accountability if the state does not agree to be bound by it.³³See, e.g., Oona A. Hathaway, International Delegation and State Sovereignty, 71 L. & Contemp. Problems 115, 123 (2008) (noting that under the principle of sovereign consent, a state can only be required to follow an international agreement “only if it has voluntarily agreed to be bound”). For example, China is unlikely to sign the CAH Draft, as it has voiced concern that underlying law is not settled, and the issue should be resolved under state sovereignty and national law.³⁴Leila N. Sadat & Madaline George, An Analysis of State Reactions to the ILC’s Work on Crimes Against Humanity: A Pattern of Growing Support, 6 Afr. J. Int’l Crim. Justice 162, 189 (2020) (noting China’s initial neutral attitude in 2013 and later opposition in 2019). This reality entails that even if Taiwan can sign onto the CAH Draft, it cannot seek any potential accountability in the international court due to the lack of consent from China.³⁵See generally CAH Draft, supra note 5, art. 15 (establishing the dispute settlement within state parties, and the right to reservation); see also Declarations Recognizing the Jurisdiction of the Court as Compulsory, Int’l Ct. of Just., https://www.icj-cij.org/declarations (last visited Mar. 18, 2026) (on file with American University International Law Review) (noting China’s lack of acceptance to ICJ compulsory jurisdiction).

Nevertheless, an Article 12(3) mechanism remains helpful for the CAH Draft in realizing a universal application and accountability by virtue of the benefit it confers. Besides dispute settlement, the CAH Draft establishes a framework of legal assistance and other obligations,³⁶See note 16 and accompanying text. which Taiwan could benefit from via documentation and investigation of potential crimes against humanity. This is precisely the benefit Ukraine enjoyed, which were instrumental in establishing accountability beyond ICC jurisdiction.³⁷See note 25–26 and accompanying text; see also e.g., Cornelia Riehle, EU Supports ICC in Investigation of International Crimes in Ukraine, 2022 Eucrim 79, 79 (noting the ICC signed an agreement to join a Joint Investigation Team on the issue of Ukraine). Without a similar mechanism, the treaty would not apply to a potential conflict in Taiwan, leaving a gaping hole of application and support framework the CAH Draft promises to achieve.

A crime against humanity is a humanitarian crisis; it is not a mere political problem. The CAH Draft is a ray of hope to further consolidate international law against crimes against humanity. However, without a jurisdictional solution, this ray will not shine onto the location when it is needed. Either by modeling the Article 12(3) provision of the Rome Statute or creating an equivalent mechanism, a future Convention on Crimes Against Humanity should incorporate a mechanism that applies to all states, even those that are unable or unwilling to join its framework. Through extending such a mechanism, the international community can ensure the protection of human rights from a jus cogens violation on crimes against humanity.