UNGA Approval of the Crimes Against Humanity Treaty
Context:
On December 4, 2024, the United Nations General Assembly (UNGA) approved the text of a historic treaty aimed at preventing and punishing Crimes Against Humanity (CAH). This marks a significant step toward international criminal justice, filling a crucial gap in global law.
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- Unlike genocide and war crimes, which are addressed under the Genocide Convention and the Geneva Conventions, CAH had previously been governed primarily by the Rome Statute of the International Criminal Court (ICC), which has limited jurisdiction.
- This new treaty seeks to hold states accountable for failing to prevent CAH, and proposes expanding the definition of CAH to include acts like starvation, gender apartheid, forced pregnancy, use of nuclear weapons, terrorism, and exploitation of natural resources.This development aims to broaden the scope of international accountability and enhance the protection of human rights globally.
The Rome Statute and the ICC:
- Establishment of the ICC: The Rome Statute, adopted in 1998, established the International Criminal Court (ICC) as the first permanent international tribunal tasked with prosecuting crimes like genocide, war crimes, and crimes against humanity. However, the ICC’s jurisdiction is limited to countries that have ratified the Statute, making it dependent on member states for enforcement.
- Principle of Complementarity: The ICC’s jurisdiction operates on the principle of complementarity, meaning it only intervenes when national courts are unwilling or unable to prosecute such crimes.
- India’s Non-Ratification of the Rome Statute: India has not ratified the Rome Statute, primarily due to concerns about the ICC’s overreach and the potential for politically motivated prosecutions. Key issues include:
- The powers of the ICC prosecutor
- The role of the UN Security Council under the Rome Statute
- Exclusion of nuclear weapons as a category of war crimes
India has also expressed concerns about the ICC’s jurisdiction over domestic issues and its possible impact on national sovereignty.
India’s Stand on the Rome Statute and Its Reasons: India’s position on the Rome Statute has been shaped by several key reservations. As a non-party to the Rome Statute, India remains skeptical of the ICC’s framework, primarily due to concerns over:
- Sovereignty: India has long maintained that international courts should not override national sovereignty, especially regarding domestic legal matters.
- Overreach of the ICC: India views the ICC’s powers, particularly those of the ICC prosecutor, as a form of judicial overreach.
- UN Security Council’s Influence: India is critical of the UN Security Council’s role in triggering ICC investigations, viewing it as potentially politically biased and not representative of global interests.
- Exclusion of Nuclear Weapons: India strongly advocates for the inclusion of nuclear weapons as war crimes, a matter that has not been adequately addressed in the ICC framework.
The Need for a Crimes Against Humanity (CAH) Treaty:
The approval of the CAH treaty addresses a significant gap in international law. While genocide and war crimes are well-defined and governed by international conventions, crimes against humanity had been governed primarily by the Rome Statute. This gap has made it challenging to prosecute acts that have severe humanitarian consequences but do not strictly fall under genocide or war crimes.
- State Accountability: The proposed CAH treaty aims to provide a more comprehensive framework for state accountability, ensuring nations are held responsible for preventing crimes against humanity within their borders, even when the crimes are not directly committed by the state.
- Expanding the Scope of CAH: The new treaty also proposes expanding the scope of CAH to include acts such as:
- Terrorism
- Exploitation of natural resources
India’s Reservations on the CAH Treaty:
India has expressed skepticism about the need for the new CAH treaty, primarily because it views the treaty as potentially redundant. India believes the existing framework under the Rome Statute already provides the necessary tools to address crimes against humanity, and adding another international regulation may complicate the legal landscape without improving enforcement.
- India’s Focus on Terrorism: India has advocated for terrorism to be explicitly recognized as a crime against humanity. However, it has opposed the inclusion of other acts like enforced disappearances, which it perceives as less relevant to its national security concerns.
- Skepticism about Redundancy: India believes the new treaty might duplicate the existing regime under the Rome Statute, arguing that it could create legal redundancy rather than enhance global efforts to combat impunity for crimes against humanity.
Why India Needs Strong CAH and Human Rights Protection Laws:
- No Specific Legislation: India does not have specific laws for prosecuting crimes against humanity or genocide, which remain outside the scope of its legal framework.
- Judicial Concerns: In 2018, Justice S. Muralidhar noted this significant lacuna in the case of State vs Sajjan Kumar, where the lack of a specific law hindered proper legal action for serious crimes.
- Missed Opportunities: India’s recent criminal law reforms have failed to address CAH or genocide adequately, which remains a critical gap in its human rights protections.
The Way Forward:
- Strengthening Domestic Laws: India’s stance on the CAH treaty should now shift towards strengthening its domestic laws to address crimes against humanity and other international crimes. Doing so would:
- Enhance India’s global standing.
- Set an example of leadership in human rights protection.
- Position India as a vishwaguru (a global leader in human rights).
- Integrating International Crimes into Indian Law: Despite being outside the Rome Statute framework, India should create robust legal structures to address international crimes like genocide and crimes against humanity.
- Balancing International Legal Frameworks: India could also contribute to international efforts by advocating for a balanced approach to the CAH treaty, ensuring that it complements the existing international legal frameworks rather than duplicating them.
