Crimes Against Humanity & Indian Stance

Syllabus: GS2/Effect Of Policies & Politics Of World On India’s Interests

Context

• Recently, the UN General Assembly (UNGA) adopted a resolution approving the text of a proposed treaty governing the prevention and punishment of crimes against humanity (CAH Treaty).

About the Crimes Against Humanity

• These represent some of the gravest offenses under international law, encompassing acts such as murder, extermination, enslavement, deportation, torture, and rape when committed as part of a widespread or systematic attack against civilians.

Historical Context

• The concept of crimes against humanity was first codified in the 1945 London Charter, which established the Nuremberg Tribunal to prosecute major war criminals of the Second World War.
• This marked a significant development in international law, establishing that individuals, not just states, are accountable for atrocities committed during conflicts, irrespective of their official capacity.

International Legal Instruments

• Rome Statute (1998): It established the International Criminal Court (ICC), which has jurisdiction over genocide, war crimes, and crimes against humanity.
  • It defines crimes against humanity and outlines the court’s mandate to prosecute individuals responsible for such acts.
• Draft Articles on Prevention and Punishment of Crimes Against Humanity: The International Law Commission (ILC) has been instrumental in developing draft articles aimed at preventing and punishing crimes against humanity.
  • These articles propose measures for criminalization under national law, establishment of national jurisdiction, and international cooperation in investigations and prosecutions.

Key Elements

• Widespread or Systematic Attack: The acts must be part of a larger attack against a civilian population.
• State or Organizational Policy: There must be a policy or plan behind the attack, indicating it is not random.
• Types of Acts: Includes murder, extermination, enslavement, deportation, imprisonment, torture, rape, and other inhumane acts.

Need for a Crimes Against Humanity (CAH) Treaty

• Unlike genocide and war crimes, which are governed by the Genocide Convention of 1948 and the Geneva Conventions of 1949 respectively, crimes against humanity are only covered under the Rome Statute of the ICC.
  • It complicates efforts to hold perpetrators accountable, especially in countries that are not parties to the Rome Statute.
  • A dedicated CAH treaty would not only address individual criminal responsibility but also hold states accountable for failing to prevent such crimes, similar to the obligations under the Genocide Convention.
• Jurisdictional Limitations: The ICC’s jurisdiction is limited to its member states, which means that crimes committed in non-member states often go unpunished.
  • It underscores the need for a comprehensive treaty that would obligate all states to prevent and punish crimes against humanity, similar to the obligations under the Genocide Convention.
• Political and Diplomatic Obstacles: States may be reluctant to cooperate with international investigations or to extradite suspects due to political alliances, fears of retaliation, or concerns about national sovereignty.
  • Additionally, powerful states can exert influence to shield their allies from accountability, further complicating international justice efforts.
• Implementation and Enforcement Issues: Many countries lack the necessary legal infrastructure or political will to prosecute crimes against humanity effectively.
  • This is compounded by issues such as corruption, weak judicial systems, and inadequate resources, which can impede the investigation and prosecution of these crimes.
• Victim and Survivor Support: Many survivors face ongoing trauma, stigmatization, and economic hardship.
  • Ensuring their protection, offering psychological and financial support, and involving them in justice processes are essential but often neglected aspects of addressing these crimes.

India’s Position on CAH

• India’s stance on the proposed CAH treaty reflects a cautious approach, rooted in its broader concerns about international criminal justice mechanisms.
• India is not a party to the Rome Statute and has historically expressed reservations about the ICC’s jurisdiction and the potential for political misuse. 
• India advocates for a balanced approach that respects state sovereignty while addressing the need for accountability.

Domestic Legal Framework

• Currently, India’s domestic legal framework does not specifically address crimes against humanity.
• It was highlighted by Justice S. Muralidhar of the Delhi High Court, who noted that neither crimes against humanity nor genocide is included in India’s criminal law.
• Incorporating CAH into domestic legislation would align India with international standards and strengthen its commitment to human rights.

Conclusion and Way Forward

• The adoption of a resolution to negotiate a treaty on crimes against humanity marks a significant milestone in the international community’s efforts to combat serious human rights violations.
• The resolution calls for preparatory sessions in 2026 and 2027, followed by negotiating sessions in 2028 and 2029 to finalize the treaty.
• This treaty is expected to play a pivotal role in ensuring that impunity for crimes against humanity is addressed comprehensively and effectively.

Source: TH