Crimes Against Humanity: A Global Perspective and India’s Position

Sub: IR

Sec: Int conventions

Why in News

On December 4, 2024, the United Nations General Assembly (UNGA) adopted a resolution approving the text of a proposed treaty on the prevention and punishment of crimes against humanity (CAH). This marks the commencement of negotiations among member states for concluding a treaty aimed at combating impunity for CAH.

What are Crimes Against Humanity (CAH)?

Grave offenses such as murder, extermination, enslavement, deportation, torture, imprisonment, and rape committed as part of a systematic attack on civilians.
Codified first in the 1945 London Charter for prosecuting Nazi war crimes during the Nuremberg Trials.
Governed under the Rome Statute of the International Criminal Court (ICC).
Unlike genocide and war crimes, CAH lacks a dedicated treaty akin to the Genocide Convention of 1948 or the Geneva Conventions of 1949.

Why is a Dedicated CAH Treaty Needed?

The ICC’s reach is restricted to its member states, leaving perpetrators in non-member states unaccountable.
Unlike the Rome Statute, a treaty could impose obligations on states to prevent and address CAH, akin to the Genocide Convention.
Example: In 2019, The Gambia filed a case against Myanmar for genocide before the International Court of Justice (ICJ) under the Genocide Convention.
Suggestions to include acts like starvation of civilians, gender apartheid, forced pregnancy, use of nuclear weapons, terrorism, exploitation of natural resources, and crimes against indigenous populations.

India’s Position on the CAH Treaty:

India is not a party to the Rome Statute due to concerns over:
- ICC prosecutor’s powers.
- Role of the UN Security Council.
- Exclusion of nuclear weapons as war crimes.
Prefers defining CAH as crimes committed only during armed conflicts, not peacetime.
Opposes the inclusion of “enforced disappearance” as CAH.
Advocates inclusion of terrorism as a CAH category.
Argues that domestic courts and legislations are better suited for addressing CAH.
India has consistently called for an in-depth study before adopting a CAH treaty.

Challenges for India:

Absence of Domestic Legislation: India lacks laws criminalizing international offenses like CAH and genocide. In 2018, Justice S. Muralidhar emphasized this legal gap in the case of State vs Sajjan Kumar.
Missed Opportunities: Recent amendments to India’s criminal laws did not address CAH, reflecting a lack of domestic policy debate.

About 1945 London Charter:

Established the legal basis for the Nuremberg Trials to prosecute major Nazi war criminals after World War II.
Codified crimes against humanity (CAH), war crimes, and crimes against peace.
Introduced individual criminal responsibility for state officials.
Laid the foundation for modern international criminal law.
Jurisdiction over crimes committed during war.
Prohibited acts like extermination, enslavement, and deportation.

About International Criminal Court (ICC):

ICC was created in 2002 under the Rome Statute.
Purpose: Prosecutes individuals for genocide, war crimes, crimes against humanity, and the crime of aggression.
Rome Statute (1998): Treaty signed by 123 states (India is not a signatory).
- Defines the four international crimes.
- ICC operates based on the principle of complementarity: intervenes only when national courts are unwilling or unable to prosecute.
Challenges: Limited jurisdiction, dependency on state cooperation, and allegations of bias.

About Geneva Conventions (1949):

A series of four treaties and additional protocols that establish international legal standards for humanitarian treatment during war.
Protects non-combatants, prisoners of war, and wounded soldiers.
Codifies the principle of humanity in armed conflicts.
First Convention: Protection of the wounded and medical personnel.
Second Convention: Protection for those at sea.
Third Convention: Treatment of prisoners of war.
Fourth Convention: Protection of civilians during wartime.