16 Aug 2019
GS Paper 2
India’s reluctance regarding negotiations for a separate treaty on Crime Against Humanity doesn’t augur well with India’s image as a champion of human rights. Analyse.
- Explain the concept of Crime Against Humanity (CAH) in the introduction.
- Explain the reasons for India’s reluctance regarding negotiations for a separate treaty on it.
- Conclude by giving reasons why India should engage in negotiations for the treaty.
- Crimes against humanity are certain acts that are deliberately committed as part of a widespread or systematic attack directed against any civilian or an identifiable part of a civilian population.
- It is an offence in international criminal law, and is part of the Rome Statute of the International Criminal Court (ICC).
- World poverty, human-made environmental disasters, and terrorist attacks have thus been described as crimes against humanity.
- In State v. Sajjan Kumar (2018) Delhi High Court with reference to anti-Sikh riots of 1984 held that neither ‘crimes against humanity’ nor ‘genocide’ has been made part of India’s criminal law, a lacuna that needs to be addressed urgently.
- The court categorically stated that these kind of mass crimes “engineered by political actors with the assistance of the law enforcement agencies” fit into the category of crimes against humanity (CAH).
India is not a party to the Rome Statute, which means that it is under no obligation at present to enact separate legislation dealing with CAH. The reasons for India’s reluctance regarding negotiations for a separate treaty on CAH are:
- Negotiations at the International Law Commission (ILC) seek to adopt the same definition of CAH as provided in the Rome Statute.
- India is not in favour of using ‘widespread or systematic’ as one of the conditions, but prefers ‘widespread and systematic’, which would require a higher threshold of proof.
- Second, India wanted a distinction to be made between international and internal armed conflicts.
- India’s internal conflicts with Naxals and other non-state actors in places like Kashmir and the Northeast could fall under the scope of CAH.
- The third objection is related to the inclusion of the enforced disappearance of persons under CAH, which occurs when a person is secretly abducted or imprisoned by a state or a third party with State authorization.
- India has signed but not yet ratified the UN International Convention for the Protection of All Persons from Enforced Disappearances, therefore, it is under no obligation to criminalise it through domestic legislation.
Thus, India’s domestic conditions compel India not to engage in negotiations at the International Law Commission (ILC).
However, to abide by the constitutional principle of rule of law, India should adhere to its image as a champion of human rights. Thus, turning a blind eye to such crimes against humanity reflects poorly on India’s status as a democracy.
Hence, India should show political will and constructively engage with the ILC, which would also, in the process, address the shortcomings in the domestic criminal justice system.
- India's policymaking has been motivated by the motto: Think globally, act locally, but in the case of crime against humanity India must follow Act locally, Inspire globally.
- So India's eventual adherence to the International Criminal Court and the Rome Treaty will act as a pathway for the renaissance for the future of human rights-oriented modes of Indian governance.
- It will be conceived as an endeavour to make power more accountable, governance increasingly just, and the state incrementally ethical.