India’s response to a ‘crimes against humanity’ treaty aligns with its aversion to the Rome Statute and the International Criminal Court

“India advocates for the inclusion of ‘terrorism’ as an act amounting to CAH. India’s response to a CAH treaty aligns with its aversion to the Rome Statute and the ICC. For the last five years, since 2019, India has consistently argued for an ‘in-depth study’ and thorough discussion on the need for a dedicated treaty. India’s stance at the UNGA reflects its skepticism that a CAH treaty might duplicate the already existing regime under the Rome Statute. Further, India takes issue with the exclusion of ‘terror-related acts’ and the ‘use of nuclear weapons’ from the definition of CAH in the proposed treaty. Most importantly, reiterating that it is not a party to the Rome Statute, India has stressed at the UNGA that national legislations and the jurisdiction of national courts are more appropriate fora for dealing with CAH and other international crimes.”

On December 4, 2024, the UN General Assembly (UNGA) adopted a resolution approving the text of a proposed treaty governing the prevention and punishment of crimes against humanity (CAH treaty). This marks the beginning of the negotiation process among states for the conclusion of a CAH treaty. This resolution comes five years after the International Law Commission submitted the draft text of the CAH treaty to the Sixth Committee — the primary forum for considering legal questions in the UNGA. This development is a landmark in the international community’s quest to combat impunity for CAH.

There is a gap in accountability
Alongside genocide and war crimes, CAH are among the grave international crimes which the International Criminal Court (ICC), established under the Rome Statute, seeks to punish. Importantly, genocide and war crimes are also governed by dedicated treaties, i.e., the Genocide Convention of 1948 and the Geneva Conventions of 1949, respectively. However, CAH are governed only under the Rome Statute, which includes specific criminal acts such as murder, extermination, enslavement, deportation, torture, imprisonment, and rape committed as part of a ‘widespread or systematic attack directed against any civilian population, with knowledge of the attack’. CAH were first codified in the 1945 London Charter establishing the Nuremberg Tribunal to investigate and prosecute the crimes committed in connection with the Second World War, and later in the statutes of the International Criminal Tribunal for Yugoslavia, and Rwanda. However, there is no dedicated treaty for CAH yet, creating a gap in terms of accountability in the legal architecture of international criminal justice. There are three reasons justifying the need for a CAH treaty.

First, the jurisdiction of the ICC covers a limited number of states, making it challenging to punish perpetrators of CAH in non-member states. Second, the Rome Statute and the ICC only address individual criminal responsibility. A dedicated CAH treaty would allow for holding states accountable under international law for their failure to prevent the commission of CAH, as is the case with the Genocide Convention of 1948. For instance, in 2019, The Gambia filed a case before the International Court of Justice (ICJ) against Myanmar for alleged violations of the Genocide Convention against the ethnic Rohingya population. A dedicated CAH treaty would create an obligation for state parties to adopt administrative, legislative, or judicial measures to prevent the commission of CAH. Failure to meet this obligation could become the basis for the ICJ’s jurisdiction if the CAH treaty so provides. Third, a CAH treaty presents an opportunity to enlarge the scope of CAH to include, as suggested by various states in the Sixth Committee, starvation of civilian populations, gender apartheid, forced pregnancy, the use of nuclear weapons, terrorism, exploitation of natural resources, and crimes against indigenous populations.

India’s stand
India is not a party to the Rome Statute and has consistently objected to the ICC’s jurisdiction over issues such as the powers of the ICC prosecutor, the role of the UN Security Council under the Rome Statute, and the non-inclusion of ‘use of nuclear weapons and other weapons of mass destruction’ as a war crime. Further, India has argued that crimes committed only during armed conflicts — and not those committed during peacetime — should be considered CAH. Moreover, India does not favor the inclusion of ‘enforced disappearance’ as an act that can constitute CAH. Instead, India advocates for the inclusion of ‘terrorism’ as an act amounting to CAH. India’s response to a CAH treaty aligns with its aversion to the Rome Statute and the ICC. For the last five years, since 2019, India has consistently argued for an ‘in-depth study’ and thorough discussion on the need for a dedicated treaty. India’s stance at the UNGA reflects its skepticism that a CAH treaty might duplicate the already existing regime under the Rome Statute. Further, India takes issue with the exclusion of ‘terror-related acts’ and the ‘use of nuclear weapons’ from the definition of CAH in the proposed treaty. Most importantly, reiterating that it is not a party to the Rome Statute, India has stressed at the UNGA that national legislations and the jurisdiction of national courts are more appropriate fora for dealing with CAH and other international crimes.

Lead the way
Currently, India does not have domestic legislation prohibiting international crimes. In 2018, Justice S. Muralidhar of the Delhi High Court in State vs Sajjan Kumar observed that ‘neither crimes against humanity nor genocide have been made part of India’s criminal law, a lacuna that needs to be addressed urgently’. Nonetheless, there is little or no debate on the need for such laws in the domestic legal and policy spaces. The recent amendments to the criminal law were a missed opportunity to include these crimes in the penal law. This is inconsistent with India’s own insistence on the primacy of national and territorial jurisdiction for dealing with CAH. India should incorporate CAH and other international crimes into its domestic law, even if it is not a party to the Rome Statute, and lead the way in ending impunity for grave human rights violations — a role that befits a true Vishwaguru.

(Varsha Singh is Assistant Professor at the National Law University, Jodhpur, Rajasthan)