Context: The UN General Assembly (UNGA) has adopted a resolution in December 2024 to bring a comprehensive treaty on Crime Against Humanity. The ongoing debates and discussions at UNGA have raised questions about the Indian stance on the issue.
Relevance of the topic:
Prelims: Scope of questions from ICC, Rome statute.
Mains: Analytical question on Indian stance about war, crime and human rights violation.
Major Highlights:
- UNGA has adopted a resolution approving the text of the proposed treaty governing the crime against humanity (CAH) on the basis of recommendations of the International Law Commission. This marks the beginning of the negotiation process among states for the conclusion of a CAH treaty.
- Though such crimes (CAH) are covered under the Rome statute, the founding treaty that created the International Criminal Court (ICC). However, the need for a new treaty arises due to the gaps in the state's accountability and the individuals under the present mechanism in ICC.
What is the International Criminal Court?
- ICC is an international tribunal established under the Rome Statute 1998 to address impunity for the gravest crimes threatening the global community.
- Rome Statute entered into force on 1 July 2002 after ratification by 60 countries.
- ICC is an independent international organisation and is not part of the United Nations.
- The seat of ICC is in The Hague, Netherlands.
Jurisdiction of the International Criminal Court:
- ICC investigates and prosecutes individuals accused of the gravest crimes of international concern, as defined under the Rome Statute:
- Genocide
- War Crimes
- Crimes against Humanity
- Crime of Aggression
What are Crimes Against Humanity?
- The Rome Statute of the ICC includes the most extensive list of crimes against humanity. These can include:
- Murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment, torture, rape, sexual slavery.
- Persecution against any identifiable group or collectivity on political, national, ethnic, cultural, religious, gender or other grounds.
- Enforced disappearance of persons, apartheid, other inhumane acts involving serious harm to physical or mental health.
Limitations of International Criminal Court:
ICC has certain limitations that necessitates the need for a new treaty governing the crime against humanity (CAH). They include:
- Limited Jurisdiction: ICC can only act in member countries or where crimes are committed by individuals of member countries. It makes it difficult to take actions on perpetrators of crimes in non-member states. E.g., Cannot act on Uyghur genocide as China is not a member.
- Lack of Executive Power: Does not have police force to enforce arrests. ICC relies on State Parties to apprehend individuals. Trials cannot proceed until the accused is arrested and brought before ICC.
- Perception of Bias: Until January 2016, all nine situations that ICC was investigating were in African countries, leading to withdrawal of Burundi. Accusations of partiality and flawed investigations. E.g., By Philippines.
- Waning Support: Powerful countries such as India, Israel, Russia, China and the US are not the state parties yet. Actual and threatened withdrawal from ICC indicates waning support. E.g., Withdrawal of Burundi.
- Threat to Autonomy: US imposed financial sanctions, visa bans on ICC judges in response to investigations against American nationals for alleged atrocities perpetrated in Afghanistan.
How is the new CAH treaty different from the Rome Statute?
Though, both CAH and Rome statute cover the various crimes against humanity but there are certain differences;
- State's obligation: ICC ensured individual accountability for the crime, but CAH treaty would allow holding the state accountable for the failure to control the crime against humanity.
- Extending the scope: CAH treaty focuses on extending the scope of crimes including starvation of population, gender apartheid, forced pregnancy, the use of nuclear weapons, terrorism, exploitation of natural resources, and crime against indigenous populations.
India’s stand on CAH Treaty:
- Reflection of Rome Statute: Indian stand on CAH treaty is often considered as the reflection of its stance on Rome statute i.e., the aversion against Rome Statute and ICC being discriminatory and violative of nation's sovereignty.
- India's reason for aversion against Rome Statute is also based on non-inclusion of 'usage of nuclear weapon for mass destruction’ as war crime.
- Stance on Terrorism: India also favours the inclusion of 'terrorism’ as an act amounting to CAH.
- Focus on domestic litigation: India advocates for the National Courts and National litigations to deal with the CAH and other International crimes.
Way Forward: In State vs Sajjan Singh case 2018, Delhi High Court has observed that India do bot have a dedicated law to deal with the genocide and crime against humanity. Though India has its valid concerns regarding Rome Statute and proposed CAH treaty, the need of the hour is to come up with the dedicated statutes to deal with such crimes against humanity. This will help India to elevate the human rights status paving the way to become a Vishwaguru.