Source: The Hindu  

Introduction  

On 4^th December 2024, the UN General Assembly took a significant step by adopting a resolution for a new treaty on crimes against humanity (CAH). This development fills a crucial gap in international criminal law, as while genocide and war crimes have dedicated treaties, CAH has been governed only under the Rome Statute until now. The proposed treaty aims to enhance accountability by allowing states to be held responsible for failing to prevent CAH, unlike the current system under the International Criminal Court (ICC) which only addresses individual criminal responsibility. This initiative marks a historic moment in the international community's efforts to combat serious human rights violations. 

What is CAH Treaty? 

• It is a proposed international treaty focused on preventing and punishing crimes against humanity that was approved by the UN General Assembly . 
• CAH includes specific criminal acts like murder, extermination, enslavement, deportation, torture, imprisonment, and rape when committed as part of a widespread or systematic attack against civilian populations. 
• The treaty would create obligations for member states to: 
  • Adopt administrative, legislative, and judicial measures to prevent CAH 
  • Be held accountable under international law for failing to prevent CAH 
  • Allow cases to be brought before the International Court of Justice 
• Unlike genocide and war crimes which have dedicated treaties (Genocide Convention 1948 and Geneva Conventions 1949), CAH currently lacks a specific treaty and is only covered under the Rome Statute. 
• There are proposals to expand CAH's scope to include: 
  • Starvation of civilian populations 
  • Gender apartheid 
  • Forced pregnancy 
  • Use of nuclear weapons 
  • Terrorism 
  • Exploitation of natural resources 
  • Crimes against indigenous populations 
• The treaty aims to address limitations of the International Criminal Court, whose jurisdiction only covers member states and focuses solely on individual criminal responsibility rather than state accountability. 

What is the Historical Evolution of Crimes Against Humanity (CAH) in International Law? 

• CAH was first established and codified in the 1945 London Charter, which created the Nuremberg Tribunal to prosecute World War II crimes. 
• In 1948, the Genocide Convention was established as a dedicated treaty to address genocide as an international crime. 
• In 1949, the Geneva Conventions were created as dedicated treaties to govern war crimes. 
• The concept of CAH was later incorporated into the statutes of the International Criminal Tribunal for Yugoslavia. 
• CAH was also included in the statutes of the International Criminal Tribunal for Rwanda. 
• The Rome Statute established the International Criminal Court (ICC) and currently serves as the primary governance framework for CAH. 
• Under the Rome Statute, CAH includes specific acts like murder, extermination, enslavement, deportation, torture, imprisonment, and rape when committed as systematic attacks against civilians. 
• In 2019, the Gambia vs Myanmar case at ICJ demonstrated how dedicated treaties (like the Genocide Convention) enable state accountability, highlighting the gap in CAH framework. 
• In 2024, the UN General Assembly adopted a resolution approving text for a proposed CAH treaty to fill this historical gap in international criminal justice. 

What are the Reasons for the CAH Treaty? 

• Limited ICC Jurisdiction: The ICC's jurisdiction only covers member states, making it difficult to prosecute CAH perpetrators in non-member states, creating a significant enforcement gap in international criminal justice. 
• Individual vs State Accountability: The Rome Statute and ICC only focus on individual criminal responsibility, while a CAH treaty would enable holding entire states accountable for failing to prevent crimes against humanity, similar to how the Genocide Convention allowed Gambia to bring Myanmar before the ICJ. 
• Expanded Scope of Crimes: A CAH treaty would allow broadening the scope of crimes to include new categories like starvation of civilians, gender apartheid, forced pregnancy, nuclear weapons use, terrorism, natural resource exploitation, and crimes against indigenous populations, as suggested by the Sixth Committee. 

Why does the International Community Need a Dedicated Treaty for Crimes Against Humanity? 

• The UN General Assembly adopted a resolution approving a proposed treaty for crimes against humanity on December 4, 2024, marking the start of state negotiations. 
• The International Criminal Court (ICC), established under the Rome Statute, handles three grave international crimes: genocide, war crimes, and crimes against humanity. 
• While genocide and war crimes are governed by dedicated treaties (Genocide Convention 1948 and Geneva Conventions 1949), CAH currently lacks a dedicated treaty and is only governed under the Rome Statute. 
• CAH was first codified in the 1945 London Charter for the Nuremberg Tribunal and later in tribunals for Yugoslavia and Rwanda. 
• The ICC's jurisdiction is limited to member states, making it difficult to punish CAH perpetrators in non-member states. 
• The Rome Statute and ICC only address individual criminal responsibility, not state accountability for failing to prevent CAH. 
• There's a push to expand CAH scope to include new crimes like starvation of civilians, gender apartheid, forced pregnancy, nuclear weapons use, terrorism, and crimes against indigenous populations. 
• The international community sees a significant gap in accountability due to the lack of a dedicated CAH treaty, which the new UN resolution aims to address. 
• The proposed CAH treaty would require state parties to adopt measures to prevent CAH, similar to the Genocide Convention's requirements. 

What are India's Stances and Challenges Regarding a Dedicated Crimes Against Humanity (CAH) Treaty?  

• Fundamental Opposition: India is not a party to the Rome Statute and consistently objects to ICC's jurisdiction, particularly regarding the ICC prosecutor's powers and UN Security Council's role. 
• Definition Concerns: India argues that only crimes committed during armed conflicts should be considered CAH, not those during peacetime, and opposes including 'enforced disappearance' as a CAH. 
• Terrorism Focus: India strongly advocates for including 'terrorism' as an act amounting to CAH and objects to the exclusion of terror-related acts from the proposed treaty. 
• Nuclear Weapons Issue: India takes issue with the non-inclusion of 'use of nuclear weapons and other weapons of mass destruction' as a war crime in CAH definitions. 
• Treaty Skepticism: Since 2019, India has consistently called for an 'in-depth study' and thorough discussion on the need for a dedicated CAH treaty, expressing skepticism about duplicating the Rome Statute regime. 
• National Jurisdiction Preference: India emphasizes that national legislations and national courts are more appropriate forums for dealing with CAH and other international crimes. 
• Domestic Legal Gap: Despite its emphasis on national jurisdiction, India currently lacks domestic legislation prohibiting international crimes, as noted by Justice Muralidhar in the 2018 Sajjan Kumar case. 
• Missed Opportunities: Recent amendments to criminal law failed to include these crimes in the penal law, showing a disconnect between India's international stance and domestic implementation. 
• Future Direction: India needs to incorporate CAH into its domestic law to align with its aspirations of being a Vishwaguru, even while maintaining its position on international treaties. 

Conclusion  

While India maintains its reservations about the CAH treaty and the ICC's jurisdiction, there is a pressing need for the country to address this gap in its domestic legal framework. Despite India's emphasis on national jurisdiction for handling such crimes, it currently lacks specific legislation addressing crimes against humanity. As noted by Justice Muralidhar in the Sajjan Kumar case, this legislative gap needs urgent attention. If India truly aspires to be a Vishwaguru (world leader), it should take proactive steps to incorporate CAH into its domestic law, regardless of its stance on international treaties.