On the 28th of April 2021, The Guardian published an article by Arundhati Roy in which she claims the failure of the Indian government (GOI) in containing the pandemic amounts to ‘Crime Against Humanity. She says it wasn’t just a ‘failure’ or ‘criminal negligence’ on the part of the GOI but “an outright Crime Against Humanity”. This article aims to understand what under International Criminal Law qualifies as Crime Against Humanity and whether or not the act of the GOI clears that threshold.

Crime Against Humanity

The idea of Crime Against Humanity can be traced back to the St. Petersburg Declaration (1868), limiting the usage of explosive or incendiary projectiles as they were ‘contrary to the law of humanity’. About half a century later in May 1915, the crimes which would be later included in the concept of Crime Against Humanity found their first formal mention in the Declaration of France, Great Britain, and Russia condemning the atrocious act of the Ottoman empire in Armenia. Consequently, in 1919 the Versailles Peace Conference Commission came forward with the idea of individual criminal responsibility for the violation of the ‘Law of humanity’. It was post-WW-II that the concept of Crime Against Humanity was explicitly mentioned and defined in various instruments such in Art.6(c) of the Nuremberg Charter, Art.5 and 3 of the ICTY and ICTR statute respectively, however, the definition of Crime Against Humanity under these instruments was very vague and inconsistent as they were mostly limited or linked to armed conflict. Under the current legal framework, the Crime Against Humanity has been defined under Art.7 of the Rome Statute and covers a wide range of ‘conducts’ not limited to ‘armed conflict’. As per the Chapeau of Ar.7(1), the accused must intend to inflict great suffering or serious injury by the means of a ‘widespread and systematic attack directed against a civilian population.’ Which must be ‘in pursuant to or in furtherance of a State or organizational policy to commit such attack’. The act of the accused must fulfill both the ‘Objective and the Subjective elements’ as mentioned in the Elements of Crime. Under Art. (7)(1) of the Rome Statute, various ‘acts’ have been mentioned which would amount to Crime Against Humanity. In the present case, looking at the nature of the alleged conduct of GOI, the acts/omissions can be categorized as a Crime of ‘Other Inhumane Acts’ (OIA) under Art.7(1)(k). But before we move ahead, there’s a caveat, the Pre-Trial Chamber (PTC) in Muthaura Confirmation has mentioned that the provision of Crime Against Humanity “must be interpreted conservatively and must not be used to expand its scope uncritically”.

The Objective Element

The PTC in Bemba Confirmation noted that the term ‘attack’ does not necessarily equate to a “military attack”, it means a campaign or operation conducted against the civilian population. The PTC went on to say that “the term ‘widespread’ connotes the large-scale nature of the attack, which should be massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims” and in Katanga Confirmation it opined that the term ‘systemic’ refers to “the organized nature of the acts of violence.” and it must exclude isolated and random acts. To prove there exists a systematic attack, sufficient nexus must be established between the unlawful acts and the attack. The ICTY in Delalic Trial made it clear that the alleged inhumane treatment must result out of an intentional act or omission that is an act which, judged objectively, is deliberate and not accidental which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.

And lastly, for Crime Against Humanity, it was observed in the Ruto & Sang Confirmation, it is the prima facie requirement to prove the organizational intent to attack the population, and such attack must involve multiple acts, and according to the Bemba Confirmation; the civilian population must be the primary object of the attack and not just an incidental victim of the attack and such acts should be attributable to an organizational policy.

The Subjective Element

The Statute defines OIA as “acts of a similar character intentionally causing great suffering, or serious injury to body or mental or physical health.”  For conduct to qualify as an OIA it must fulfill the Subjective element a.k.a. the Mental element as enshrined under Art.30 of the Rome Statute as there’s no specific or additional requirement mentioned in Art.7(1)(k). The PTC in Katanga Confirmation made it very clear that the “other inhumane acts” require the consequences to be a direct result of the act done with sufficient ‘mens rea’.

According to the high threshold set forth by the Statute, proving the perpetrator has knowledge is not enough but the knowledge must be accompanied with intention. The preparatory reports on the Statute suggest that even if the accused knew, it would be superfluous to charge them for OIA as the term ‘knowledge’ and ‘intention’ are conjunctive and such formulation ensures both the knowledge and intention elements must be satisfied. As Art.30(2) of the statute mentions the accused (i) intended to engage in this conduct (ii) as means to cause the consequences (iii) or was aware that it will occur in the ordinary course of events. The court in Lubanga Appeal cautioned that to the standard of ‘will occur in the ordinary course of events there must be a virtual certainty.

Unlike Roy, the majority has accused GOI of ‘Gross Negligence in the hang Covid situation, e.g., see here and here. Thus the question arises can negligent or reckless acts fulfill the mental element required under the Rome Statute? The PTC Lubanga Confirmation made it clear that mere recklessness or dolus eventualis is not covered under Art.30 of the Statute and later in Katanga Confirmation it was opined that the objective elements must be committed with dolus directus of the first and second degree. Moreover, based upon the jurisprudence of Stakic Judgement; to prove individual liability it must be proved that (i) the Defendant was aware of the substantial likelihood that the conduct will result in a crime in the ordinary course of events from the execution of his order, and (ii) accepted or reconciled himself with such consequences.

A Crime Against Humanity?

So, the question arises: did the GOI intend to inflict great suffering or serious injury by the means of a ‘widespread and systematic attack’ directed against a civilian population.’ Which was ‘in pursuant to a State or organizational policy to commit such attack’? 

To answer this question we need to look into the alleged acts of the GOI such as (i) the Act of granting permission for the Kumbh Mela which saw a footfall of more than 9 million devotees with little or no adherence to covid protocols whilst the catastrophic second wave was engulfing the country and the Chief Minister of the state going to the extent of encouraging people to attend the so-called super spreader event; (ii) The Prime Minister himself addressing and praising a massive crowd at an election rally when the nation saw a surge at the rate of more than 200,000 cases, per-day; (iii) The complacency in not being prepared for the second wave and prematurely declaring victory; (iv) Deaths due to inability to provide basic medical facility such as medical grade oxygen despite repeated warnings about the possible shortage of oxygen; (v) Various discrepancies in the vaccination process such as the lack of public funding and acute shortage of doses. 

All these acts raise serious alarms about the grim condition of the pandemic in India. As of 9th May, the country witnessed a daily surge of 400,000+ covid cases with more than 3000 deaths a day. The country’s health system has been overwhelmed and the crematorium and cemetery are flooded with bodies. But still, Roy is unable to prove how under the current legal framework the acts of GOI qualify as a Crime Against Humanity.

Did the government have knowledge about their act possibly resulting in such a catastrophe? Most probably yes, but mere knowledge can not prove the acts and omissions tantamount to Crime Against Humanity, it must be accompanied with a clear intention. It would be almost impossible to show that such consequences were part of an attack against the civilian population of India and that it was all a part of an organizational policy. 

Conclusion

It can be contended that the actions and the policy of GOI resulted in a grave breach of Human rights and it did not keep up with its obligations amid pandemic under the International Health Regulation, to develop national public health capacities to detect, assess and respond to events, and to report to the WHO. That being said, human rights violation alone can not form a basis for Crime Against Humanity as the court in Katanga Confirmation cautioned the ‘OIA’ cannot be used as an “all-encompassing, ‘catch-all’ category”, there must not be broader interpretation such that every other human rights violation would qualify ‘other inhumane act’. 

Nonetheless, India isn’t a party to the ICC and the idea of the UNSC referral seems quite far-fetched and even if it happens given the history of the court it would be practically impossible for the conduct of GOI to qualify as a Crime Against Humanity. 

Priyansh Priyadarshi, a 4th-semester student at Chanakya National Law University, Patna.
(The opinions expressed in this publication are those of the author/s. They do not purport to reflect the opinions or views of The Policy Observer or our members.)

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