International Criminal Court and India
This article is written by Shivani Agrawal, a 2nd-year law student at the Faculty of Law, University of Delhi. Through this article, she wants to give the readers brief information on what the International Criminal Court is and its relations with India.
The International Criminal Court (ICC) is an unprecedented initiative by the world community to go over and beyond the national or domestic governments to punish the individuals responsible for certain crimes. These crimes as stated by the Rome Statute are the four core international crimes- genocide, crimes against humanity, war crimes, and crimes of aggression. The statute empowers the ICC to investigate and prosecute the offenders of these four core crimes only in situations where the states are unable and unwilling to do justice.
The jurisdiction of the ICC is complementary to that of domestic courts. ICC however, only has jurisdiction when the crime is committed by a state party or a citizen of the state party. The ICC is a product of a widespread, long-time, international sentiment of the need to have an independent and permanent criminal court to address heinous crimes of international concern. The ICC was established in 2002 and had its first sitting on July 1, 2002, after receiving more than sixty ratifications. It is headquartered in the Netherlands at The Hague. ICC is different from the International Court of Justice (ICJ) as the ICC deals with individuals, whereas, the ICJ hears disputes between the states.
However, the ICC has faced multiple setbacks since its inception. Powerful countries like China, Russia, and the United States have declined to participate or support the cause. The United States has even threatened to withdraw its troops from the United Nations peacekeeping forces unless the US citizens are exempted from prosecution by the ICC.
Member countries of the International Criminal Court
As of the present date, 123 countries are party to the Rome Statute. Countries like India, China, Indonesia, North Korea, and Iraq never signed the treaty while a few countries like Iran, Russia, Egypt, and the US signed the treaty but it was never ratified by their legislatures.
India’s abstinence from the International Criminal Court
The main reason for India to not be a signatory to the Rome Statute yet is that it believes that ICC threatens its sovereignty. The ICC has publicly expressed the reservations on various occasions, but India continues to not take part in the discussions concerning the court. Some of these reservations are-
- Objection to the role of Security Council- The extraordinary powers given to the United Nations Security Council to make referrals to the Court was one of the reasons why India did not want to be a signatory to the Court. India wanted the ICC to be an impartial institution, independent from any political influence like that of UNSC. India believes that the powers of the UNSC are already mentioned in the Un Charter and the Statute can have no effect on the powers entrusted in the UNSC, thus, the statute should not give special powers to the UNSC in the interest of independence of the Court.
- Refusal to enlist the use of nuclear weapons- India was in favour of including the use of nuclear weapons as war crimes. It was proposed that the use of nuclear weapons is against international humanitarian law. Nevertheless, India had nuclear weapons at the time of the Rome Conference, it hoped and still hopes not to use them. India also has a novel nuclear doctrine that states that “India will not be the first to initiate a nuclear strike, but will respond with punitive retaliation should deterrence fail”. However, India’s proposal has not been accepted by the ICC, becoming another reason for India’s abstinence.
- Jurisdictional Issues- India wanted the ICC to not have compulsory jurisdiction. It supported the idea of optional jurisdiction where the ICC could exercise its jurisdiction only upon the consent of the concerned state. It was also hard to contemplate a situation where Indian courts would be unable to provide justice in the unlikely event of the commission of such a grave crime within its jurisdiction. India also did not support the idea of initiation of proceedings by the chief prosecutor of ICC on his/her own volition.
- The inclusion of cross-border terrorism from the ambit of ICC- India believed that since the ICC is to address the crimes of international concern, it must include terrorism in the list of such crimes. India has suffered long from terrorist activities and has always supported the movement against terrorism. India submitted two reports, one suggesting to make terrorism a crime against humanity and the second to include terrorism in the core crimes of the statute.
- The Indian Judicial System- Signing of the Rome treaty means that an international court will observe how the investigation, prosecution, and judgement is passed in the Indian Judicial system, which might open our judicial system to criticism. India also takes pride in its judicial system which infers that it will be disrespectful to our judicial system if an international court takes over or interferes with the process of administration of justice.
The rejection of these suggestions or proposals made by India to the ICC has been viewed as a defeat and has become the reason to abstain from the vote to adopt the statute. India is also vulnerable to its troops defending its borders and its peacekeepers at the UN missions as they are susceptible to possible allegations of human rights violations. The unearthing of mass graves in Kashmir or extra-judicial killings in North-east India could also be possible reasons for India’s reluctance towards adopting the Rome Statute.
There are various structural weaknesses in the ICC. It cannot act upon any case dating before 2002 and also cannot make arrests. For better functioning, ICC must start accepting the suggestions made by non-members like India. India’s status towards the statute is similar to that of other Asian nations who share a similar concern about the dilution of their sovereignty. India is unlikely to ratify the treaty in the near future as its primary concern is to protect the primacy of its national courts.
[i] See Article 5 of the Rome Statute of the International Criminal Court- “Crimes within the jurisdiction of the court”
[ii] See Article 3 “Seat of the Court” under Part 1 “Establishment of the court” of the Rome Statute of the ICC.
[iii] See “The State Parties to the Rome Statute” under the head “Assembly of State Parties” of www.icc-cpt.int – “123 countries are States Parties to the Rome Statute of the International Criminal Court. Out of them 33 are African States, 19 are Asia-Pacific States, 18 are from Eastern Europe, 28 are from Latin American and Caribbean States, and 25 are from Western European and other States.”
[iv] See clause 2(ii) of PIB Press Releases– A posture of “No First Use” nuclear weapons will only be used in retaliation against a nuclear attack on Indian territory or on Indian forces anywhere
[v] See “Jurisdiction” under “How the Court works” at www.icc-cpt.int – The Court may exercise jurisdiction in a situation where genocide, crimes against humanity or war crimes were committed on or after 1 July 2002.
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