Human Rights Violations as International Crimes**

Nexus between IHL, IHRL, and ICL

Understanding how certain human rights violations come to be considered international crimes requires examining the relationship between three distinct but related bodies of international law: International Human Rights Law (IHRL), International Humanitarian Law (IHL), and International Criminal Law (ICL).

Here's a breakdown of their relationship:

International Human Rights Law (IHRL)

IHRL sets out the basic rights and fundamental freedoms that all individuals are entitled to from their state. It primarily governs the relationship between states and individuals within their territory or subject to their jurisdiction. IHRL applies at all times, in peace and during armed conflict or states of emergency. State responsibility arises under IHRL when a state breaches its obligations (to respect, protect, or fulfill human rights).

International Humanitarian Law (IHL)

IHL (also known as the law of armed conflict or the law of war) is a body of international law that regulates the conduct of parties engaged in armed conflict. Its purpose is to protect persons who are not or are no longer participating in hostilities and to restrict the means and methods of warfare. IHL applies *only* in situations of armed conflict. State responsibility under IHL arises from breaches of its rules.

International Criminal Law (ICL)

ICL is a body of law that defines certain acts as international crimes and holds individuals criminally responsible for committing them. ICL focuses on individual accountability, distinct from state responsibility under IHRL or IHL. The most serious international crimes are often violations of fundamental norms contained in IHRL and IHL.

The Connection

The nexus is that ICL criminalises the most egregious violations of IHRL and IHL. While IHRL and IHL set the standards for state conduct and protection of individuals, ICL provides the mechanism for prosecuting the individuals who commit the most serious breaches of these standards. Think of it this way:

IHRL and IHL prohibit certain harmful actions (like torture, arbitrary killing).
When these prohibited actions reach a certain level of severity or occur in specific contexts (like systematic attacks on civilians or during armed conflict), ICL steps in to hold the *individuals* who committed, ordered, or were complicit in these acts criminally accountable under international law.

IHRL and IHL provide the underlying substantive norms, while ICL provides the criminal enforcement mechanism for the gravest violations of those norms. These three bodies of law thus form interconnected layers of protection and accountability.

Venn diagram showing the overlap between IHRL, IHL, and ICL, with major international crimes located in the overlapping areas.

Crimes Constituting Human Rights Violations

Certain international crimes are intrinsically linked to gross violations of human rights. These are often referred to as "atrocity crimes". The Rome Statute of the International Criminal Court (ICC) is the key treaty that defines the core international crimes over which the ICC has jurisdiction. These include Genocide, Crimes Against Humanity, War Crimes, and the Crime of Aggression. The first three are particularly relevant as they constitute, by their very nature, severe and systematic or widespread human rights violations.

Genocide

Genocide is defined in Article 6 of the Rome Statute (mirroring the 1948 Convention on the Prevention and Punishment of the Crime of Genocide) as committing certain acts with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. The prohibited acts include killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group.

Genocide is the "crime of crimes" because it aims at the destruction of the group identity itself. It constitutes a mass-scale violation of fundamental human rights, particularly the right to life, the prohibition of discrimination, and cultural rights, targeting individuals specifically because of their membership in a protected group. The prohibition of genocide is considered a peremptory norm (*jus cogens*) of international law.

Crimes against humanity

Crimes against Humanity are defined in Article 7 of the Rome Statute as acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Unlike genocide, they do not require specific intent to destroy a group, but they must be part of a larger policy or practice, not isolated acts.

The acts constituting crimes against humanity are severe violations of fundamental human rights, including:

Murder: Violation of the right to life.
Extermination: Mass killing.
Enslavement: Violation of the prohibition of slavery.
Deportation or forcible transfer of population: Violation of freedom of movement and potentially right to home.
Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law: Violation of the right to liberty.
Torture: Violation of the absolute prohibition of torture.
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity: Violations of physical integrity, dignity, and freedom from sexual violence.
Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender... or other grounds that are universally recognized as impermissible under international law: Violation of the principle of non-discrimination.
Enforced disappearance of persons: Violation of liberty, right to life, freedom from torture, right to recognition as a person before the law.
The crime of apartheid.
Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Crimes against humanity are widespread or systematic violations of human rights perpetrated against civilian populations, irrespective of whether an armed conflict is occurring.

War crimes (grave breaches)

War Crimes are defined in Article 8 of the Rome Statute as serious violations of International Humanitarian Law committed in armed conflict. Unlike Genocide and Crimes Against Humanity, war crimes are intrinsically linked to the context of armed conflict.

Many war crimes are direct violations of human rights standards applicable during conflict. Examples listed in the Rome Statute include, in international armed conflicts, the "grave breaches" of the 1949 Geneva Conventions, such as:

Willful killing: Violation of the right to life of protected persons (like prisoners of war or civilians).
Torture or inhuman treatment: Violation of the prohibition of torture and ill-treatment against protected persons.
Wilfully causing great suffering, or serious injury to body or health: Violation of the right to physical integrity.
Taking of hostages: Violation of liberty and security of person.
Intentionally directing attacks against the civilian population or civilian objects: Violation of the right to life and security, right to property.
Pillaging a town or place, even when taken by assault: Violation of the right to property.
Rape, sexual slavery, torture, mutilation or any form of sexual violence...: Violations of dignity and physical integrity.

The Rome Statute also criminalises serious violations of IHL in non-international armed conflicts (internal conflicts), such as torture, cruel treatment, outrages upon personal dignity, and killing of persons taking no active part in hostilities (based on Common Article 3 of the Geneva Conventions), as well as other serious violations of the laws and customs of war applicable in non-international armed conflicts.

War crimes are thus violations of IHL norms that are considered so serious that they trigger individual criminal responsibility under international law. Many of these simultaneously constitute violations of fundamental human rights applicable even during conflict.

Individual Criminal Responsibility for Gross Human Rights Violations

A fundamental principle of International Criminal Law is that individuals can be held criminally responsible for committing international crimes, irrespective of their official position (head of state, government official, military commander, etc.). This is a departure from the traditional focus on state responsibility in international law and is crucial for accountability for mass atrocities.

Basis of Individual Responsibility

Individual criminal responsibility arises from various forms of participation in the commission of international crimes:

Direct Commission: Physically carrying out the criminal act (e.g., pulling the trigger, performing an act of torture).
Ordering, Soliciting, or Inducing: Ordering someone else to commit a crime, or encouraging or persuading them to do so.
Planning, Instigating, or Contributing: Being involved in the planning of the crime, inciting others to commit it, or contributing significantly to its commission by a group acting with a common purpose.
Aiding, Abetting, or Otherwise Assisting: Providing practical assistance, encouragement, or moral support that has a substantial effect on the commission of the crime.
Command Responsibility (Article 28 Rome Statute): Military commanders or persons effectively acting as military commanders can be held criminally responsible for crimes committed by forces under their effective command and control if they knew or should have known that the forces were committing or about to commit such crimes and failed to take all necessary and reasonable measures within their power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. A similar principle applies to civilian superiors in positions of authority and control over subordinates.

Crucially, under ICL, neither the official capacity of an individual (e.g., Head of State or Government) nor the fact that an act was committed pursuant to an order from a superior generally relieve that individual of criminal responsibility (subject to specific defences like duress, which are narrowly interpreted). These aspects may be considered in sentencing but are not absolute defences.

Mechanisms for Prosecution

Individuals accused of international crimes can be prosecuted before:

National Courts: States have the primary responsibility to investigate and prosecute international crimes committed within their territory or by their nationals. Some states also assert universal jurisdiction, allowing them to prosecute individuals for certain grave international crimes (like torture or war crimes) regardless of where the crime was committed or the nationality of the suspect or victim.
International Criminal Courts/Tribunals: Ad hoc tribunals (like the ICTY for the former Yugoslavia, ICTR for Rwanda) were established to prosecute crimes committed during specific conflicts. The International Criminal Court (ICC), established by the Rome Statute, is a permanent court that investigates and prosecutes individuals for genocide, crimes against humanity, war crimes, and the crime of aggression committed after 1 July 2002, in situations referred to it or falling under its jurisdiction (typically crimes committed by nationals of States Parties or on the territory of States Parties).

India is not a State Party to the Rome Statute of the ICC. This means the ICC does not have automatic jurisdiction over crimes committed on Indian territory or by Indian nationals, unless the situation is referred by the UN Security Council. However, individuals can still be prosecuted for crimes recognised under international law before national courts in India, based on domestic criminal law (like the Indian Penal Code, which prohibits murder, grievous hurt, etc.) or potentially under principles of universal jurisdiction if incorporated into Indian law, or before international *ad hoc* tribunals if established with competence over crimes relevant to India (though none currently exist). Furthermore, India's ratification of IHL and IHRL treaties creates obligations to criminalise and prosecute many of the underlying acts that constitute international crimes.

Individual criminal responsibility under ICL complements the state's responsibility under IHRL and IHL. While state responsibility provides for reparations to victims and measures to prevent future violations by the state, individual responsibility focuses on punishing the perpetrators of the most serious crimes, contributing to accountability and deterrence for gross human rights violations.