Indian Council of World Affairs

Abstract: Crimes against humanity (CAH) are the most serious atrocities of concern under international law, yet they only remain an international crime without a codified international treaty for their prevention and punishment. As the Genocide Convention (1948) and various other treaties on war crimes provide clear obligations for states, the legal framework for CAH is still in its infancy, relying largely on the Rome Statute. However, the statute focuses on individual criminal responsibility rather than state-to-state cooperation and prevention. To address this, the International Law Commission (ILC) adopted a set of draft articles in 2019^[i] that are currently under negotiation at the United Nations as a proposed “Convention on the Prevention and Punishment of Crimes Against Humanity”. From 19^th to 30^th January 2026, the Preparatory Committee met and undertook its work pursuant to General Assembly Resolution 79/122 of December 2024 and UNGA Decision 80/521 of 15 December 2025, which emphasises the need for a dedicated and codified convention on CAH.^[[ii]] This treaty is contested because of states’ objections over the definition of CAH and issues of sovereignty and non-interference. India’s position is to be looked upon in this light for the interpretation of international law. 

Background and Contemporary Developments 

The journey towards this proposed treaty began in 2008 with the Crimes Against Humanity (CAH) Initiative.^[iii] This initiative gained significant momentum between 2009 and 2010 by circulating an initial draft in Saint Louis, Missouri, and culminated in the signing of the Washington Declaration in March 2010,⁵  which established the first model convention. This project finally moved into the official United Nations system when the International Law Commission (ILC) included the topic in its long-term work programme in the 65^th session in 2014, which was recommended by a working group in 2013, followed by the formal appointment of Professor Sean D. Murphy as the special rapporteur in 2015. With this, the topic moved to the active agenda, and the special rapporteur began submitting its substantive reports.^[iv] Over the next 5 years, the ILC developed and refined a set of 15 draft articles, which were formally adopted in their second reading in 2019.⁶ After the COVID-19 pandemic in 2020, the UN Sixth Committee (Legal) resumed substantive exchange in 2023 and 2024.  The active negotiation phase is commenced, beginning with the first session of the Preparatory committee held from January 19 to 30, 2026, in New York.^[v] Governments have been invited to submit their formal proposals by a critical deadline of 30 April 2026,^[vi] which will then be synthesised by the UN Secretariat into a ‘compiled text’. After a secondary four-day procedural session in 2027 to finalise the rules of engagement, the process will culminate in the United Nations Conference of Plenipotentiaries. This high-level diplomatic conference is scheduled to meet for two separate three-week sessions in 2028 and 2029 to formally elaborate and adopt the final legally binding convention, closing a century-long gap in international atrocity law.^[vii] 

What are the gaps that exist historically while dealing with the Crime Against Humanity? 

The crimes against humanity were initially seen as a legal concept after the Second World War, when the Nuremberg Trials (1945–1946) were set up, and individuals were held responsible for crimes committed against civilians, even when such acts were legal under domestic law. The Charter of the International Military Tribunal (IMT)^[viii] defined CAH in Article 6(c) as murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations, as well as persecution on political, racial, or religious grounds. It established that individuals could be held criminally responsible under international law for acts against civilians, regardless of domestic legality. This shifted the focus of international law from states alone to individual criminal responsibility.

After the Nuremberg Trials, the concept of CAH gradually took shape. For years, however, there was no permanent international criminal court or dedicated treaty for addressing these crimes. Later, in the 1990s, this idea gained attention with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY)^[ix] in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994.¹⁰ These tribunals clarified the definition of CAH under Articles 5 and 3 of the ICTY and ICTR Statutes, respectively. Under both the above-mentioned articles, it was stated that CAH can be inflicted during the ‘armed conflict’ as well as during ‘peacetime’. Article 3 of the ICTR also states that CAH can be committed in purely internal situations and also highlights its jurisprudence on sexual violence as a crime against humanity. After that, the Rome Statute of the International Criminal Court (ICC), adopted in 1998, provides a clear definition of CAH in Article 7 (1) as: 

“…a crime against humanity means certain serious acts such as murder, torture, rape, enslavement, deportation, persecution, enforced disappearance, apartheid, and other inhumane acts, when they are committed as part of a widespread or systematic attack against a civilian population…  

Moreover, these acts must not be isolated incidents but form part of a planned or large scale pattern of violence. The person committing the act must have knowledge of the attack on civilians. Crimes against humanity can be committed both in war and in peacetime” ...  

It is the first permanent international court with the authority to address such crimes. However, the ICC faces several limitations, including limited jurisdiction, political challenges, and dependence on state cooperation.^[x]

The first two paragraphs of draft article 2 of the ILC Draft Articles^[xi] define CAH. Also, paragraph 3 of draft article 2 is a “without prejudice” clause, indicating that this definition does not affect any broader definition provided in an international instrument, customary international law, or national law.   

The commission considered Article 7 of the Rome Statute to be an appropriate basis for defining such crimes. The text of Article 7 of the Rome Statute was used verbatim except for three changes. First, the opening phrase of paragraph 1 reads ‘For the purpose of the present draft articles’ rather than ‘For the purpose of this Statute’.^[xii] Second, the phrase in article 7, paragraph 1 (h), of the 1998 Rome Statute that criminalises acts of persecution when undertaken in connection with ‘any crime within the jurisdiction of the Court’ has not been retained for paragraph 1 (h) of draft article 2. Third, article 7, paragraph 3, of the Rome Statute on the definition of ‘gender’ (as well as a cross-reference to that paragraph in paragraph 1 (h)) has not been retained for draft article 2.^[xiii]  

The ILC draft articles reflect customary international law, as they are based on extensive state practice and existing treaty provisions. Their purpose is not to create new crimes but to codify and strengthen the existing laws. The draft convention, which is currently under negotiation, is based on the definition set out in the ILC Draft Articles 2019. 

India’s Position on Crimes Against Humanity

The perspective of India can be deciphered from the official statements of the country on the Sixth Committee (Legal) in the 79^th Session w.r.t. CAH having agenda item 80, as India’s position on ‘crimes against humanity’, is that the definition shall include terror-related acts and use of nuclear weapons, as these crimes are horrendous in nature, and India is of the view that it simply rejects the idea of transposing the already existing norms into a new convention.^[xiv]

India reiterated its consistent position on the establishment of a clear jurisdictional linkage principle for the exercise of jurisdiction by states over crimes committed by their nationals. Moreover, it is also stated that these proposed draft articles should not take precedence over a Member State’s sovereign right to exercise jurisdiction through its own judicial mechanism, and the draft articles should consider and address the concerns related to CAH.^[xv] Overall, India’s position is to solve the debate on draft articles through ‘constructive engagement’ and ‘meaningful dialogue’, and attempts should not be made to reiterate or superimpose the definitions of ‘crimes against humanity’ from other international agreements that lack universal acceptance, i.e., the Rome Statute for the International Criminal Court.^[xvi]

India gave a very detailed response in the first meeting of the Preparatory Committee and reiterated or substantiated the brief arguments given in the earlier sixth committee (Legal) report. It argues that as there was no detailed or comprehensive discussion of the ILC draft articles, it reduces to an ‘absence of engagement’ from all member countries, but in reality, it needs a detailed deliberation on these ILC draft articles to avoid duplication with existing instruments and to consider rules on state responsibility. Then it emphasised the importance of the amalgamation of ‘the rule of law’ and ‘state sovereignty’ as essential principles in preventing CAH. Further, India reaffirmed the importance of respecting the ‘principle of non-interference’, referring to the Sixth Committee discussion where many member states underscored that the primary responsibility for protecting populations from such crimes rests with the state itself and highlighted the need for technical assistance to strengthen national capacities for investigation and prosecution of CAH. India highlights that the objective of international law is the preservation of universal human values, and the serious violations of it run counter to the spirit and purpose of the United Nations Charter. India believes that CAH are already addressed by existing legal instruments, and countries that are parties to the Rome Statute have acknowledged this, while those that are not parties have included provisions regarding such crimes in their national legislation. For example. Indonesia incorporated CAH in their national legislation, which is punishable by up to 20 years’ imprisonment.[xvii]

India also highlighted the lacuna of the definition of this draft convention, which has been taken without any considerable change from the Rome Statute, which in itself is not universally accepted by all the member states, and is trying to incorporate it in the future draft convention, thereby claiming universality under the progressive development, which would ultimately impede the ‘consensus-building’ among the member states. Then the Indian delegation stressed the territorial jurisdiction (where the crime occurred) or national or active personality jurisdiction (where the accused person is located). It argues that these jurisdictions should be prioritised while prosecuting CAH, because they protect justice, the rights of the accused, and the interests of victims. However, countries may need technical assistance to improve their investigation and prosecution systems, and there must be a “clear jurisdictional link” before a state exercises jurisdiction over crimes committed by its nationals. This view is based on basic principles of international law, which give sovereign states the right to use their courts to try crimes committed within their territory or by their nationals.

India believes that CAH requires a legally binding instrument, but it will be too early to draw any conclusions without a comprehensive and in-depth discussion of the draft articles’ lacuna and improvements, and member states’ views must be carefully considered. Moreover, it reiterates that the draft articles lack sufficient state practice and rely heavily on the analogy of existing convention, which makes the draft articles lacking ‘universality’.^[xviii]

Conclusion

After the perusal of original submissions made by the Indian state and various other deliberations, we can conclude that though states have participated in their full rigour, they are fragmented on issues of how to proceed with the draft articles. As an example, Thailand and Malaysia supported the draft articles, but China stated that the ‘time was not ripe for the conclusion of convention.’ Other states, such as Vietnam, submitted that the ICC does not enjoy broad consensus internationally, so to form a convention based on the rules and jurisprudence of the ICC is not legally plausible. So, in conclusion, there is a need for a broader consensus amongst the states participating in the meeting; only then can negotiations move in a positive direction. 

Way Forward

India’s stance against terrorism aligns with its national security policy, which requires further adoption under CAH. India has consistently raised issues, such as jurisdictional challenges, culpability, and sovereignty with other states that share the same concerns. The concern of India that the ‘primacy of protecting populations from CAH rests with the state’ is consistent with the ‘non-interference’ principle under the framework of the Charter of the United Nations as articulated in Article 2(7), and a broader deliberation is necessary for ‘consensus building’, which is the purpose of the UN Charter under Article 1(4).

The object of CAH is to eradicate the mass atrocities against humanity; however, the process must be ‘fair and just’, aligning with the objectives and purposes of the UN Charter. Hence, a broader deliberation and consensus should be achieved before agreeing a new treaty on CAH. Issues of sovereignty are important but consideration also needs to be given regarding the responsibility to protect civilian population in instances, where sovereignty is functionally absent or has collapsed. Issues pertaining to state responsibility or collective responsibility of a group of states as opposed to mere liability of individuals are also important for not only punishing the guilty but also to make mends in governance in the interest of delivery of justice.

*****

*Madhuri Prajapati , Research Intern, Indian Council of World Affairs, New Delhi
Disclaimer: Views expressed are personal. 

Endnotes 

[i] International Law Commission, Draft Articles on Prevention and Punishment of Crimes Against Humanity

(2019), Yearbook of the International Law Commission, vol. II (Part Two), https://legal.un.org/ilc/texts/instruments/english/draft_articles/7_7_2019.pdf.

[ii] United Nations, “Crimes Against Humanity: Preparatory Committee,” https://legal.un.org/diplomaticconferences/cah/prepcom.shtml.

[iii] Crimes Against Humanity Initiative, “Declaration on the Need for a Comprehensive Convention on Crimes Against Humanity (2010),” Whitney R. Harris World Law Institute, Washington University School of Law, https://bpb-us-e2.wpmucdn.com/sites.wustl.edu/dist/b/2004/files/2019/02/Declaration9292010.pdf.

[iv] International Law Commission, “Summaries of the Work of the International Law Commission: Prevention and Punishment of Crimes Against Humanity (2019),” Yearbook of the International Law Commission, vol. II (Part Two), https://legal.un.org/ilc/summaries/7_7.shtml.

[v] ibid.

[vi] UN Sixth Committee, “80th Session,” https://www.un.org/en/ga/sixth/80/80_session.shtml.   

[vii] Human Rights Watch, “Moving Toward a New Treaty,” (15 December 2025) https://www.hrw.org/news/2025/12/15/recommendations-for-the-international-convention. 

[viii] Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (IMT Statute), (8 August 1945), 8 U.N.T.S. 279.

[ix] S.C. Res. 808, U.N. SCOR, 3175th mtg.., at 2, U.N. Doc. S/RES/808 (1993). ¹⁰ S.C. Res. 955, U.N. SCOR, 3453d mtg.., at 2, U.N. Doc. S/RES/955 (1994). 

[x] Rome Statute of International Criminal Court, art. 7(1), (July 17, 1998), 2187 U.N.T.S. 90.

[xi] International Law Commission, Draft Articles on Prevention and Punishment of Crimes Against Humanity (2019) art 2, commentary para 1; see n 1.

[xii] Sean D. Murphy, First Report of the Special Rapporteur on Crimes against Humanity (2015), https://core.ac.uk/download/232646099.pdf.

[xiii] International Law Commission, Draft Articles (2019), art. 2, commentary para. 8; see n 1.

[xiv] Statement by India, Preparatory Committee on Crimes Against Humanity, First Session, para 4 https://www.un.org/en/ga/sixth/79/pdfs/statements/cah/09mtg_india.pdf (accessed January 18, 2026).

[xv] ibid., para. 5.

[xvi] ibid., para. 9.

[xvii] Statement by Indonesia, Preparatory Committee on Crimes Against Humanity, First Session

https://www.un.org/en/ga/sixth/79/pdfs/statements/cah/08mtg_indonesia.pdf.

[xviii] “Statement by India,” Preparatory Committee on Crimes Against Humanity, First Session, United Nations, https://legal.un.org/diplomaticconferences/cah/prepcom_1sess/statements/03_india.pdf.