India and the ICC

Print edition : March 31, 2001

India, along with a few other countries, is for now holding out against the ratification of the Rome Statute for the establishment of an International Criminal Court. A discussion of the concerns and imperatives in this regard.

THE Rome statute for the establishment of an International Criminal Court (ICC) was voted in, in July 1998, by 120 states; seven states voted against it and 21, including India, abstained (Frontline, August 14, 1998). Since then 139 countries have signed on and 29 states have ratified the statute. The United States, which resisted the statute through the negotiations, admittedly worried that its armed forces could be hauled up before the ICC, did a near about-turn when it signed the statute on De cember 31, 2000. Ratification, though, is not in sight. India continues to boycott the statute. The ICC will be established after the deposit of the 60th instrument of ratification, acceptance and approval or accession with the Secretary-General of the U nited Nations.

The Indian state's concern revolves around the role of the Security Council as a trigger for investigation and prosecution and in the matter of deferral of prosecutions; the inherent jurisdiction of the ICC; the office of an independent prosecutor; and t he inclusion of internal armed conflict as a crime that the ICC can try.

THE Rome statute provides for three triggers: a State Party to the statute, the Security Council, and the Prosecutor on his or her own initiative. This privileging of the Security Council was resisted by many states, including India, during the run-up to the Rome conference. There was an illogicality in vesting this power with the Security Council when its permanent members appeared less than enthusiastic about a criminal court with universal jurisdiction. The U.S., particularly, was categorical in its opposition to the ICC, which was projected as a threat to its armed forces which act as policemen around the world. The difficulty in keeping the Security Council out was, however, that the ICC was jostling for jurisprudential space that would not confli ct with the U.N. statute. Chapter VII of the Statute, which authorises the Security Council to take "action with respect to threats to peace, breaches of the peace and acts of aggression", could not be wished away; nor could the ICC override the provisio ns of the U.N. statute. Granting the role of a trigger to the Security Council then was a compromise - an uneasy compromise, unacceptable to some states, but almost inevitable.

The inevitability also arose from recent experience with tribunals that were established to try the cases of violence and bloodshed in Rwanda and Yugoslavia. The International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal fo r Former Yugoslavia (ICTFY) are ad hoc tribunals set up by the Security Council. Both were set up after the events and they were to try the kind of offences that were specifically witnessed in those arenas. The need for such ex post facto interven tion could be obviated by encouraging the Security Council to use the ICC rather than set up tribunals of competing jurisdiction.

The opposition to the Security Council operating as a trigger also loses its singular acridness when it is recognised that the Prosecutor may initiate action upon receiving information from any quarter. But this too is a bitter pill for India. The power of the Prosecutor to take a case to trial is tempered by the intervention of a pre-trial chamber which will decide whether there is a case to be investigated and tried. Yet the potential for receiving complaints and investigating into their genuineness r esides in the Prosecutor and that was stoutly, if unsuccessfully, resisted by India.

The Rome statute envisages the Prosecutor initiating investigation "on the basis of information on crimes within the jurisdiction of the court" (Article 15). The office of the Prosecutor is to be an independent organ with the court "responsible for recei ving referrals and any substantiated information on crimes within the jurisdiction of the court, for examining them and for conducting investigations and prosecutions before the court"(Article 42). And no member of the office of the Prosecutor may "seek or act on instructions from any external source." This power to act on information received opens the field for initiating the process before the ICC upon receiving a complaint from any person, not merely a State Party or the Security Council. For India, doubts about how independent an independent Prosecutor would be, or even could be, were therefore interspersed with a rejection of the potential for individuals and organisations getting the wheels of the ICC moving.

There are significant differences between the ICC and other international institutions such as the International Court of Justice (ICJ) and the Committee for Human Rights. The ICC will try individuals, and not states. Further, being a criminal court, the re will be an accused, fair standards in the trial of the accused, a threshold for evidence to constitute proof, punishment of imprisonment or/and fine, and reparation and compensation to the victims of the crime.

The theme running through the statute, and which informed the proceedings all the way up to the signing of the statute in Rome, was that of impunity. In countering impunity, exclusive reliance on State Parties or the Security Council could be fatal. More over, in criminal law everywhere (with exceptions only in cases such as bigamy, for instance) it is not who reports the crime, but the fact that the crime has been committed which is the starting point for bringing a perpetrator to justice. The prosecuto rial power to investigate and initiate prosecution is, in the meantime, hemmed in by the statute, by making the Prosecutor bound by the decision of the court at every stage of the proceedings.

The potential for interference by the Security Council is pronounced in its power to defer investigation and prosecution. Under Article 16, the Security Council, through a resolution adopted under Chapter VII of the U.N. Charter, may request the court th at no investigation or prosecution be commenced or proceeded with under the statute for a period of 12 months; and such a request may be renewed by the Security Council. The Security Council's designated role as a peacekeeper under Chapter VII was used t o incorporate this provision into the statute. That all five permanent members of the Security Council would have to agree to such deferral is the one insurance against any indiscriminate use of this power. For India, which has been worried more about be ing hauled up before the ICC than the effectiveness of the ICC itself, this should cause little concern, though it opposes this provision in principle.

WHAT does worry the Indian state is the inherent jurisdiction of the ICC. In fact, opposition on this ground seemed so obvious that delegates at the Rome conference were caught by surprise at the widespread acquiescence with the proposal to give the cour t the authority to determine its own jurisdiction. The ICC statute is premised on the principle of complementarity; that is, the primary responsibility for investigation and trial rests with the state. It is where the state is unwilling or unable to carr y out investigation or prosecution that the ICC steps in (Article 17).

The Indian position has been that this inherent power of the court to decide whether a state has acted, and acted in a manner that is consistent with justice, impinges on the sovereignty of the state. An Indian official was quoted as saying: "India has i ts own laws to deal with human rights abuses; we have the Human Rights Commission, an active judiciary and a free press. We don't need the ICC to bring offenders to justice, we do it ourselves." This, of course, is an exaggerated claim, which is belied b y statistics presented in the Jammu and Kashmir Assembly. On February 26, 2001 Mohammad Yousuf Tarigami of the Communist Party of India (Marxist) alleged in the Assembly, without being effectively countered, that the number of persons missing from the cu stody of the security forces and the police had risen to 2,174 in Jammu and Kashmir, 76 cases had been registered and only one person had been challaned. Similar is the case of disappearances in Punjab; the Central Bureau of Investigation confirmed that 2,097 bodies were treated as "unidentified" (even where they were in fact partly identified in some cases) and cremated in three districts of Punjab during the period of disturbances. The National Human Rights Commission, which was authorised by the Supr eme Court to act, declined to consider that these were symptomatic of what had happened in Punjab and not just in the three districts where the investigative officers had managed to obtain information, and rejected the plea that the phenomenon of disappe arances be investigated. The issue has been reduced to one of paying compensation to individual claimants. The Punjab government has agreed to pay a compensation of Rs.1 lakh each in 18 cases of disappearance, but without admitting the justness of the cl aims being made or without suspecting any culpability on the part of its officers.

That there are systemic blind spots is hard to dispute. What worries the Indian state, however, is that the ICC may be used by adversaries, or states inimical to India, to embarrass it. In advancing this as a reason for rejecting the ICC, there is a deli berate underplaying of the high thresholds that have been built into Indian laws for investigating a crime and launching prosecution. Legal definitions of crimes are peppered with words such as 'widespread', 'systematic' and 'large-scale'. It is difficul t to reconcile the Indian state's confidence in its human rights record with this diffidence. The rejection of cases filed before the ICC would, in fact, be a feather in India's cap.

IN working out what would constitute an internal armed conflict, the Rome statute specifically excludes "situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature" (Articles 8(d) and (e)). It would be in India's interest to engage constructively in the manner in which these provisions of the statute evolve.

India has not questioned the need to bring to justice perpetrators of large-scale violation of human rights. The experiences with Augusto Pinochet of Chile and Pol Pot of Cambodia and in Sierra Leone, Rwanda and Bosnia, the disappearances, detentions and deaths under the military juntas in Central America, apartheid, and so on are too recent to forget. Universal jurisdiction is the emerging principle that is expected to ensure that perpetrators of mass outrages are punished and, hopefully, deterred. Als o, the potential for misuse of political and armed power, cynically represented as moves for peace, has been repeatedly demonstrated; for instance, in the recent air strikes over Iraq. And, the Security Council's authority to establish ad hoc tribunals h as gained respectability with none having openly challenged this exercise of discretion; there is no denying that this could be selectively invoked. It is in this context that the statute for an ICC has been constructed. It is, therefore, to be a permane nt court, with regional representation and a prospective mandate. Its credibility and the cooperation of participating states will depend considerably on the precedents that are set and the consistency of the institution. The international human rights a nd legal communities are not unaware of this.

Since July 1998, many positions have changed. A significant step was taken when France, one of the permanent members of the Security Council, ratified the statute. There have been debates in the House of Lords to bring national legislation in conformity with the ICC statute. The U.S. has signed it. Bangladesh, whose attempt to try war criminals after the war of liberation in 1971 was thwarted by its inability to reach the perpetrators, has signed the statute.

The problem in refusing to be party to the statute is that it reduces the potential for making a difference to the development of a law around the ICC statute - there would be no Indian representation among the judges in the Prosecutor's office, in the R egistry and in the Assembly of State Parties. Yet, if the state where the offence is committed or the accused belongs to a nation which is a State Party to the statute, or the Security Council decides to refer the matter to the ICC, India would be caught in a bind: there would be no obligation to cooperate, but refusal would inevitably cause extreme awkwardness.

The urgency does not appear to have lessened in the pursuit of procuring ratifications. It seems it is only a matter of time, and that not too much, before the 60th ratification will be in. India will have to decide whether it will continue its sullen si lence or opt for the pragmatic route of participation.

Usha Ramanathan is a New Delhi-based researcher on law.

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