Note4Students:

As aspirants prepare for the UPSC GS Paper 2 and explore topics related to international organizations, it’s essential to focus on the implications of international treaties and India’s position in global justice mechanisms. This article aims to provide a detailed overview of India’s complex position regarding a proposed CAH treaty and highlights the underlying concerns in relation to international criminal law. The key takeaways from the article, such as India’s concerns about overlap with existing laws, reluctance to allow foreign judicial intervention, and its preference for national jurisdiction, are critical for constructing strong responses to questions related to international governance mechanisms.

PYQ ANCHORING:

GS 2: ‘Sea is an important Component of the Cosmos’. Discuss in the light of the above statement the role of the IMO(International Maritime Organisation) in protecting environment and enhancing maritime safety and security. (2022)

MICROTHEMES: Miscellaneous Organisations

India’s stance on a proposed Crimes Against Humanity (CAH) treaty reflects its longstanding reservations about the Rome Statute and the International Criminal Court (ICC).

‘Crimes Against Humanity’

Component	Description	Example
Widespread or Systematic Acts	Crimes involve widespread or systematic attacks against civilian populations.	The Rwandan Genocide (1994): Systematic killing of the Tutsi ethnic group.
Acts Included	Offenses include murder, extermination, enslavement, deportation, torture, rape, enforced disappearance, and persecution.	Bosnian War (1992–1995): Mass extermination, forced deportation, and persecution of Bosniaks and Croats.
Targeted at Civilians	Specifically directed against civilian populations rather than combatants.	Syrian Civil War: Chemical attacks on civilians in Ghouta, Syria (2013).
State or Organizational Policy	Committed as part of a policy or plan by a state or non-state entity.	Holocaust (1941–1945): Nazi Germany’s systemic policy of extermination of Jews and minorities.
Intent and Knowledge	Perpetrators act with intent and knowledge of the attack on civilians, disregarding human dignity.	My Lai Massacre (1968): Intentional killing of hundreds of unarmed Vietnamese civilians by U.S. soldiers.
International Recognition	Recognized under international law and prosecuted by bodies like the ICC.	Darfur Conflict (2003–present): ICC issued an arrest warrant for Sudanese President Omar al-Bashir for crimes against humanity.

Indian Approach to Crimes Against Humanity

Component	Indian Approach
Non-Party to the Rome Statute	India has not signed the Rome Statute, opposing the jurisdiction of the International Criminal Court (ICC). It argues that issues related to crimes against humanity (CAH) should be addressed through national legal systems rather than international mechanisms.
Call for In-Depth Study	India advocates for a comprehensive examination of the need for a dedicated CAH treaty, reflecting its belief that existing international frameworks may already address these issues sufficiently.
Concerns Over Duplication	India fears that a new CAH treaty might overlap with existing frameworks like the Rome Statute, potentially creating complexities and redundancies in ensuring accountability.
Lack of Domestic Legislation	India does not currently have specific domestic laws addressing CAH. Justice S. Muralidhar of the Delhi High Court has highlighted the legislative gap, noting that neither CAH nor genocide is covered under India’s criminal laws.
Emphasis on National Jurisdiction	India prioritizes national jurisdiction for prosecuting international crimes like CAH, preferring to handle these matters domestically rather than submitting to international judicial mechanisms.
Legislative Gaps and Opportunities	While India has ratified international conventions like the Genocide Convention, it lacks enabling legislation to implement these provisions domestically. This highlights the need for new laws to align with international standards while retaining sovereignty.

REASONS India Should Have Proper Legislation Related to CAH

Inadequate Domestic Legislation: Despite ratifying the Genocide Convention, India lacks domestic laws to enforce its provisions, leaving a gap in prosecuting crimes like genocide and CAH.
International Accountability: Enacting CAH laws would bring India’s legal framework in line with international standards, enhancing its role in global justice efforts.
Justice for Mass Atrocities: India’s history of communal violence highlights the need for CAH laws to ensure accountability and deterrence against future atrocities while protecting human rights.
Leadership in Human Rights: Adopting CAH laws would strengthen India’s global standing in human rights advocacy, enabling it to address issues like terrorism and promote justice and dignity.
Empowering National Courts: CAH laws would enhance the capability of Indian courts to address serious human rights violations, reinforcing India’s preference for domestic jurisdiction.

What Are India’s Specific Concerns Regarding the Definitions and Scope of Crimes Against Humanity?

1. Definition of Crimes: India objects to the inclusion of “enforced disappearance” as a CAH while advocating for “terrorism” to be recognized as such, reflecting its focus on issues relevant to its national security.

2. Scope of Application: India argues that only crimes committed during armed conflicts should qualify as CAH, opposing broader definitions that include peacetime offences. This position aligns with India’s strategic interests and its approach to framing accountability primarily in terms of state actions during conflicts.

WAY FORWARD

In the case of State v. Sajjan Kumar, the Delhi High Court highlighted a troubling pattern of mass killings in India, referencing incidents in Mumbai (1993), Gujarat (2002), and Muzaffarnagar (2013). In these cases, criminals received political support, allowing them to escape prosecution.

India’s absence from the International Law Commission (ILC) weakens its position on advocating for a rules-based global order. Ignoring crimes against humanity tarnishes India’s image as a democratic nation committed to justice. It would be beneficial for India to actively participate in discussions with the ILC, using this opportunity to address gaps in its own criminal justice system.

India’s policymaking has often followed the principle of “Think globally, act locally”, but when it comes to crimes against humanity, India should flip this approach and “Act locally, inspire globally”. By aligning with the International Criminal Court and the Rome Statute, India would take a significant step toward promoting human rights and enhancing its governance.

India’s active involvement in shaping the Crimes Against Humanity (CAH) treaty would signal its commitment to upholding the rule of law, both at home and globally. It would ensure that power remains accountable, governance becomes fairer, and the state embraces ethical values in its actions, contributing to a more just world.

BACK 2 BASICS: INTERNATIONAL CRIMINAL COURT

About the International Criminal Court (ICC)

Purpose: The ICC is a global tribunal dedicated to holding individuals accountable for some of the world’s most severe crimes.
Status: It is the only permanent international criminal tribunal.

Background of the ICC:

Established: On 17 July 1998 through the Rome Statute.
Jurisdiction and Functions: The Rome Statute outlines the ICC’s jurisdiction, structure, and functions.
Entered into Force: The Statute became effective on 1 July 2002.

Mandate of the ICC:

The ICC investigates and tries individuals for the following crimes:

Genocide
War Crimes
Crimes Against Humanity
Crime of Aggression

ICC Headquarters and Members:

HQ: The ICC is located in The Hague, Netherlands.
Members: There are 123 States Parties to the Rome Statute, which includes countries that recognize the ICC’s authority. However, some notable exceptions are the U.S., China, Russia, Israel, and India.

Funding:

The ICC is primarily funded by:

Contributions from States Parties
Voluntary contributions from governments, international organizations, individuals, corporations, and other entities.

Composition of the ICC:

Judges: The court has 18 judges, each representing different member countries, who serve non-renewable nine-year terms.
Presidency: Composed of three judges – the President and two Vice-Presidents.
Judicial Divisions: These are:
- Pre-Trial Division
- Trial Division
- Appeals Division
Office of the Prosecutor (OTP): Responsible for handling referrals, gathering information, investigating crimes, and prosecuting offenders.
Registry: Provides administrative and operational support to the court’s various functions.

Jurisdiction of the ICC:

Unlike the International Court of Justice (ICJ), the ICC focuses on individual prosecutions rather than disputes between states.
The ICC can only handle a case if:
- The country where the crime occurred is a party to the Rome Statute.
- The perpetrator’s home country is a party to the Rome Statute.
The ICC has jurisdiction only if national courts are unwilling or unable to prosecute the alleged crimes.
Only crimes committed after the Rome Statute’s entry into force on 1 July 2002 can be prosecuted.

Relationship with the United Nations (UN):

Article 2 of the Rome Statute outlines the ICC’s relationship with the UN.
While the ICC is not a UN body, it has a cooperation agreement with the UN.
UN Security Council: If a situation falls outside the ICC’s jurisdiction, the UN Security Council can refer the matter to the ICC, granting it jurisdiction over the case.