Crimes Against Humanity: Strengthening Justice and Accountability

Context

• The United Nations General Assembly (UNGA) recently adopted a resolution approving a proposed treaty to prevent and punish crimes against humanity (CAH).
• This marks significant progress in closing a crucial gap in international criminal law.
• The journey began in 2019 when the International Law Commission submitted the draft text to the UNGA’s Sixth Committee.

Gap in International Legal Framework

1. Absence of a Dedicated Treaty:

   • Unlike the Genocide Convention (1948) and Geneva Conventions (1949), CAH lacks a specific treaty.
   • Current enforcement is limited under the Rome Statute (1998) of the International Criminal Court (ICC).
   • A dedicated treaty is essential for a clear and comprehensive legal framework to prevent and prosecute CAH.

2. Limitations of the Rome Statute:

   • Focuses on individual criminal responsibility but lacks provisions for state accountability.
   • Limited jurisdiction, covering only member states or cases referred by the UN Security Council (UNSC).
   • These gaps hinder efforts to address crimes against humanity effectively.

Accountability Challenges

1. Jurisdictional Issues:

   • Non-member states and major global players are often beyond the ICC's reach, creating a jurisdictional void.
   • Broader state cooperation is needed to address unprosecuted CAH cases.
   • Without global jurisdiction, many perpetrators escape accountability.

2. Individual vs. State Responsibility:

   • The Genocide Convention allows state-level accountability, enabling cases like The Gambia vs. Myanmar (2019).
   • A CAH treaty could empower similar actions, reinforcing shared responsibility for human rights.
   • State-level accountability ensures broader mechanisms to prevent and punish crimes.

India’s Position on the CAH Treaty

1. Scepticism About the ICC:

   • India is a non-signatory to the Rome Statute, citing concerns about jurisdictional overreach and UNSC influence.
   • Criticizes discretionary powers of ICC prosecutors, fearing selective or politically motivated cases.
   • India's concerns highlight the tension between global governance and national sovereignty.

2. Disagreements on Scope:

   • Opposes inclusion of enforced disappearance in CAH definitions, citing lack of universal applicability.
   • Strongly advocates for inclusion of terrorism and criticizes the exclusion of nuclear weapons.
   • India’s views emphasize the need for a more inclusive and balanced treaty.

3. Preference for National Jurisdiction:

   • Argues domestic courts are better equipped for justice, considering social and political contexts.
   • However, India lacks comprehensive domestic laws addressing CAH.
   • This contradiction weakens India’s position in the global arena.

Way Forward for India

1. Incorporating CAH into Domestic Law:

   • Developing comprehensive legislation to address international crimes, including CAH.
   • This would align national laws with global expectations and enhance India’s credibility.
   • A robust domestic framework is vital for India to uphold human rights commitments.

2. Proactive Engagement in Treaty Negotiations:

   • India could push for inclusion of issues like terrorism and nuclear weapons while shaping the treaty.
   • Active participation reinforces India’s commitment to justice and human rights.
   • Engagement in negotiations enables India to influence the treaty constructively.

Conclusion

• The CAH treaty is a pivotal step in combating impunity for crimes against humanity.
• India’s legitimate concerns, while important, are undermined by the absence of domestic legislation.
• By addressing these gaps, India can emerge as a global leader in justice and human rights advocacy.
• India must seize this opportunity to lead the global fight against crimes against humanity.