Description

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Context:

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.

What is the CAH Treaty?

It is a proposed international treaty aimed at preventing and punishing crimes against humanity, which was approved by the UN General Assembly.

CAH includes specific crimes such as murder, extermination, enslavement, deportation, torture, imprisonment, and rape when committed as part of a large-scale or systematic attack against a civilian population.

The treaty would impose obligations on member states to:

Take administrative, legislative and judicial measures to prevent CAH
Being responsible under international law for failing to prevent CAH
Allow cases to be brought to the International Court of Justice

Unlike genocide and war crimes, which have dedicated treaties (the 1948 Genocide Convention and the 1949 Geneva Conventions), CAH currently lacks a specific treaty and is only covered by the Rome Statute.

There are proposals to expand the remit of the CAH to include:

Starvation of the civilian population
Gender apartheid
Forced pregnancy
Use of nuclear weapons
Terrorism
Use of natural resources
Crimes against indigenous peoples

The treaty aims to address the limitations of the International Criminal Court, whose jurisdiction extends only to member states and focuses exclusively on individual criminal responsibility rather than state responsibility.

About the Accountability Gap in International Law

Missing legal framework

Crimes against humanity (CAH) are among the most egregious violations of international law, but the legal framework governing these crimes lacks the comprehensiveness and clarity afforded to other international crimes such as genocide and war crimes.

This gap stems from the absence of a specific treaty specifically addressing CAH unlike the 1948 Genocide Convention and the 1949 Geneva Convention, which provide clear mandates and obligations for the prevention and prosecution of these crimes.

The CAH, although codified in the Rome Statute of the International Criminal Court (ICC), suffers from limitations in enforcement and scope.

Adopted in 1998, the Rome Statute is the treaty that established the ICC to prosecute individuals for genocide, war crimes, crimes against humanity and aggression.

It aims to ensure accountability for serious international crimes and promote global justice.

ICC Jurisdiction Challenge

One of the main problems of accountability lies in the limited jurisdiction of the ICC.
As a treaty-based institution, the ICC can only exercise jurisdiction over crimes committed on the territory of its member states or by their nationals unless the UN Security Council refers a case to it.
This limitation excludes a significant number of states, including major global players, from the reach of the ICC
It creates a jurisdictional void where perpetrators in non-member states can evade justice.

Without a specialized treaty binding broader state cooperation, many CAH cases remain unresolved.

Responsibility of the individual versus the state

Another problem is the focus of the Rome Statute on individual criminal responsibility, which, although essential, does not take into account the responsibility of the state.
Genocide and war crimes treaties establish state obligations to prevent and punish these crimes allowing for legal action at the state level.
- - For example, the 2019 case of Gambia v. Myanmar at the International Court of Justice (ICJ) was possible because the Genocide Convention contains provisions on state responsibility.
Similarly, the CAH Treaty could empower states and international bodies to hold governments accountable for failing to prevent CAH, thereby reinforcing the principle that states share the responsibility to protect human rights.

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

India's Approach	A cautious and calculated approach rooted in concerns about international criminal justice mechanisms.
Non-Signatory to Rome Statute	India has reservations about the International Criminal Court (ICC), its jurisdiction, prosecutor's powers and the role of the UNSC.
Skepticism About ICC Framework	ICC's jurisdiction is perceived as a violation of national sovereignty. Investigations authorized by the UNSC are seen as geopolitical overreach. Concerns about the prosecutor's discretionary powers lead to selective justice or political motivations.
Concerns on CAH Treaty	India fears the treaty may expand ICC influence or create overlapping jurisdictions that undermine state sovereignty.
Definition and Scope of CAH	Opposes inclusion of crimes like enforced disappearance, citing lack of universal applicability. Advocates for the inclusion of terrorism as a crime against humanity. Criticizes exclusion of nuclear and WMD-related crimes from the Rome Statute’s war crimes definition.
Preference for National Jurisdiction	Advocates for the primacy of domestic jurisdiction. Believes national systems are better suited to address CAH and international crimes. However, lack of comprehensive domestic legislation for international crimes, creating a legal gap.
Call for Further Discussion	Advocates for thorough study and discussions on the need for a CAH treaty. Warns against duplicating the Rome Statute’s regime to avoid inefficiencies. Caution could be interpreted as a delaying tactic given India’s reservation about international frameworks.

Conclusion

The adoption of the CAH treaty resolution is a milestone in the international community's efforts to combat impunity for crimes against humanity. While India's reservations reflect legitimate concerns, its lack of domestic legislation dealing with international crimes undermines its position.

By enacting comprehensive anti-CAH laws, India can not only address this disparity but also pioneer the global quest for justice and embody the role of a true global leader.

READ ABOUT

International Criminal Court (ICC)

International Court of Justice

ICJ and Genocide Convention

Source:

THE HINDU

PRACTICE QUESTION

Q.Discuss the concept of ‘Crimes Against Humanity.’ How has international law evolved to address such crimes? Analyze the challenges in enforcing accountability for these crimes in the contemporary global context. (250 words)