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Wednesday, April 15, 2009

INTERNATIONAL CRIMINAL COURT & INDIA





JAVED I. NAQI 





1.     The International Criminal Court 

 

1.1 General overview

The ICC is an independent permanent tribunal that tries persons accused of international crimes such as genocide, crimes against humanity and war crimes. It was established by the Rome statute on 17 July 1998 and it began work on 1 July 2002.

From the 1st October 2008 108 countries will be State Members of the Court.

The ICC is a court of last resort. It doesn’t act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine and it only tries those accused of the gravest crimes.

 

1.2 History

After the second World War the UN constituted the Nuremberg Tribunal (1945) and the Tokyo Tribunal (1948). After these two big steps the United Nations General Assembly realized the need for a permanent international court. An International Law Commission (ILC) was nominated by the General Assembly and it started working on two draft statutes (1950s), but these were put aside because of the Cold War.

In 1989 Robinson, the prime minister of Trinidad and Tobago, proposed the creation of an International Criminal Court with jurisdiction also on drug traffic. After his request the UN disposed the resumption of the ILC activity.

In 1993 the international community established the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda.

In 1994 the ILC completed its work and submitted the draft to the UN General Assembly. The UN General Assembly created the Ad Hoc Committee on the Establishment of an International Criminal Court. This Committee met twice and draw up a draft. In 1995 the Assembly established the Preparatory Committee on the Establishment of an International Criminal Court to prepare a widely acceptable consolidated draft text for submission to a diplomatic conference. In March-April 1998 the Preparatory Committee completed its work.

The 17th of July of 1998 the Statute of the International Criminal Court was adopted at the United Nations Conference of Plenipotentiaries in Rome with the participation of representatives of 160 States, 33 Intergovernmental Organisations and a Coalition of 236 Non Governmental Organisations. 120 countries voted in favour, 7 against and 21 abstained. The ICC was established not as an organ of the United Nations but as an independent organisation with an independent budget.

The Preparatory Commission for the International Court was convened on 16 February 1999 and started work immediately. As with the Rome Conference, all States were invited to participate in the Preparatory Commission. Among its achievements, the Preparatory Commission reached consensus on the Rules of Procedure and Evidence and the Elements of Crimes. These two texts were subsequently adopted by the Assembly of States Parties. Together with the Rome Statute and the Regulations of the Court adopted by the judges, they comprise the Court’s basic legal texts, setting out its structure, jurisdiction and functions.

The Commission also worked on a relationship agreement between the Court and the United Nations; basic principles governing a headquarters agreement for the Court; financial regulations and rules; an agreement on the privileges and immunities of the Court; a budget for the first financial year; the rules of procedure of the Assembly of States Parties.

In January 2002 the UN, in agreement with the Sierra Leone government established the Special Court for Sierra Leone.

In April 2002 the number of countries that ratified the Statute reached 60 (the number required before the Statute could be enforced).

The Statute legally entered into force on the 1st July 2002. It states that the Court can prosecute the crimes committed after that date and under the Statute. An Advanced team of Experts began working in The Hague. The Team was responsible for the first practical arrangements for the coming into operation of the Court and its mandate ceased on 31 October 2002.

The Rome Statute is an International treaty which binds only the states which formally expressed their consent to comply with its measures and, as a consequence, to become “Parties” to the Statute.

In February 2003 an Assembly of State Parties elected 18 judges which in March swore-in before the President of the Assembly of States Parties HRH Prince Zeid Ra'ad Zeid Al Hussein during the inauguration of the Court.

The Court has already started four investigations into crimes committed in the Central African Republic, the Democratic Republic of Congo, Darfur (Sudan) and Uganda, it has issued its first arrest warrants on 8 July 2005 and the first pre-trial hearings were held in 2006.

 

1.3 Assembly of State Parties

Today 108 States have become Parties to the Statute. The State Parties meet in the Assembly of State Parties which is the management oversight and legislative body of the Court.

The Assembly of State Parties consists of one representative from each state who is proposed to the credential Committee by the Head of State of government or the Minister of Foreign Affairs. The bureau of the Assembly of State Parties is composed by a President, a Vice-President and 18 members elected by the assembly for a three-year term.

The Assembly of States Parties decides on various items, such as the adoption of normative texts and of the budget, the election of the judges and of the Prosecutor and the Deputy Prosecutor(s) .
Each State Party has one vote and every effort has to be made to reach decisions by consensus both in the Assembly and the Bureau. If consensus cannot be reached, decisions are taken by vote.

 

1.4 Structure

The Court is based in The Hague, The Netherlands, but its proceedings may take place anywhere, it’s an independent institution and it maintains a cooperative relation with the UN.

It is composed of four organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor and the Registry.

The Presidency is responsible for the administration of the Court.

The Judicial Divisions consists of the 18 judges of the Court which are divided in three divisions: Pre-Trial Division, Trial Division and Appeal Division.

The office of the Prosecutor acts independently, it receives referrals and information about crimes within the jurisdiction of the Court and it conducts investigations and prosecutions before the Court.

The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court.

 

1.5 Jurisdiction

The ICC exercises its jurisdiction over the crimes of genocide, crimes against humanity and war crimes (defined in the Statute of Rome) and aggression. The crime of aggression is not defined in the Statute o f Rome, so the court can’t exercise its jurisdiction on it till the Statute doesn’t give a clear definition of the crime.

The Court has jurisdiction over the individuals accused for these crimes. This means that the Court prosecutes not only the material and direct responsible of the crime, but also anyone who can be liable for it.

The Court may exercise its jurisdiction only if:

·         The accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court;

·         The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court; or

·         The United Nations Security Council has referred the situation to the Prosecutor, irrespective of the nationality of the accused or the location of the crime.

The jurisdiction of the Court takes place from the 1st of July 2002 and is a State joins the Court after that date, the Court has jurisdiction since the date of its adhesion.

On the strength of the principle of “complementarity” in some cases the Court cannot act even if it has jurisdiction and Art 17 and 20 of the Statute describe the cases.

The principle of complementarity means that the ICC will complement national courts so that they retain jurisdiction to try genocide, crimes against humanity and war crimes. If a case is being considered by a country with jurisdiction over it, then the ICC cannot act unless the country is unwilling or unable genuinely to investigate or prosecute. A country may be determined unwilling if it is clearly shielding someone from responsibility for ICC crimes. A country may be unable when its legal system has collapsed.[1]

 

1.6 How it works

The Prosecutor begins an investigation on his own initiative or after receiving information of crimes within the jurisdiction of the Court by State Parties or the UN Security Council. He evaluates the information received and he decides whether proceeding or not. If he decides to proceed he asks the Pre-Trial Chamber to authorize an investigation. The prosecutor investigates all facts and evidences and incriminating and exonerating circumstances.

During the investigation the Pre-Trial Chamber is responsible for the judicial aspects of proceeding, it can issue a warrant of arrest, and it has to confirm the charges that will be the basis of the trial before the Court.

The case is then assigned to a Trial Chamber. The accused is presumed innocent until proven guilty by the Prosecutor beyond reasonable doubt. The accused has the right to conduct the defense in person or through counsel of his or her choosing. Victims may also participate in proceedings directly or through their legal representatives. Finally the Trial Chamber issues a sentence. The decision can also be appealed and decided by the Appeals Chamber.

108 countries are now States Parties to the Rome Statute of the International Criminal Court:

Albania, Andorra, Antigua and Barbuda, Argentina, Australia, Austria, Barbados, Belgium, Belize, Benin, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Bulgaria, Burkina Faso, Burundi, Cambodia, Canada, Central African Republic, Chad, Colombia, Comoros, Congo, Costa Rica, Croatia, Cyprus, Democratic Republic of the Congo, Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, Estonia, Fiji, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Guinea, Guyana, Honduras, Hungary, Iceland, Ireland, Italy, Japan, Jordan, Kenya, Latvia, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Mali, Malta, Marshall Islands, Mauritius, Mexico, Mongolia, Montenegro, Namibia, Nauru, Netherlands, New Zealand, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Poland, Portugal, Republic of Korea, Romania, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Samoa, San Marino, Senegal, Serbia, Sierra Leone, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Tajikistan, The Former Yugoslav Republic of Macedonia, Timor-Leste, Trinidad and Tobago, Uganda, United Kingdom, United Republic of Tanzania, Uruguay, Venezuela, Zambia.

 

2.     India and the ICC

 

2.1 India’s position on ICC

India actively participated in the preparatory works for the treaty instituting the International Criminal Court and proposed a series of requests. The most important concerned the qualification of nuclear weapons as prohibited weapons.

India decided not to ratify the treaty of Rome instituting the International Criminal Court. India’s position is due to many reasons: some of them have been explained during the Conference of Plenipotentiaries in Rome and some haven’t been formally mentioned.

India's first proposal tried to deny the Security Council the right to subject critical country-specific situations to investigation by the Court or to request the Court to delay investigations by one year. In addition, the use of nuclear weapons and other weapons of mass destruction were to be included in the list of war crimes.

During the Conference in Rome India’s representative, explained first of all that India insisted a lot to obtain the ban of the use of nuclear weapons, but its request hasn’t been considered. This decision leads, in representative’s advise, to the conclusion that the decision of the Plenipotentiaries suggests the international community that the use of nuclear weapons in legal.

In second place he strongly criticized the Security Council’s position and role in the International Criminal Court since the Statute gives the SC the possibility to violate international law and, he added, the power to refer, the power to block and the power to bind non-States Parties.

The power to refer means that the SC can point out cases to the ICC. This power has no sense unless the council’s referral is more binding than other referrals and it implies that some members do not enter the ICC but have the privilege to refer cases to it.

The power to block means that the SC can order not to proceed with a case.

The power to bind non-State parties considers the fact that the SC can make referrals about countries which are not State Members of the Court and which would be bound by the provisions of a treaty they have not accepted. Through the SC non-State Parties would have the power to bind other non-State Parties.[2]

The Indian Government also feared that charges brought against Indians by some countries could be politically motivated.

There are also other reasons (non-official reasons) which haven’t been mentioned during the conference.

First of all we have to consider the characteristics of Indian foreign policy after its independence from British rule in 1947. A strong opposition to British imperialism seen as an exploitative system         lead to a Foreign policy constructed upon two pillars: anti-imperialism and anti-fascism. In particular anti-imperialism is the foundation of India’s international relations.

After the colonization period India inherited a vastly multicultural and plural society; for this reason it has developed a considerable nationalism to keep the country together and the power has been decentralized to federal states.

India and its political parties maintain a very cold attitude and a position of resistance towards the outside world and they are determined to keep on judging themselves by themselves.

We can notice this attitude not only in the rejection of the International criminal Court but also in the WTO negotiations and over nuclear proliferation: India prefers penalties rather than compromising.

The rejection of international agreements that do not respond to India’s strict distributive negotiation strategy as witnessed in recent WTO and nuclear proliferation agreements is a consequence of an anti-colonial mindset that rejects any interference in state sovereignty and nationalist rhetoric that claims a special place for India in the formulation of international principles and proclaims a strong sense of pride both in Indian economic success since the liberalization of 1991 and the administrative and judicial system that was inherited by the British.

In second place we have to count the possible consequences of the ICC on Indian society.

If we firstly consider the jurisdiction of the court, the principle of complementarity comprises three elements: any state has the right to hold a trial for crimes such as genocide, crimes against humanity and war crimes and the national courts retain jurisdiction over these crimes. There are however two situations when the ICC may step it. First, if the country in question is unwilling to prosecute the crime, or clearly shielding someone from responsibility for ICC crimes, and secondly, if the country in question is genuinely unable to investigate or prosecute ICC crimes because its legal system has collapsed.

If India would carry out genuine investigations the ICC would not have jurisdiction, but the way investigations, prosecutions and criminal proceeding are lead in India leaves space to the ICC jurisdiction. Indian delegation was also afraid that an independent prosecutor could initiate investigations proprio motu (Article 15 Rome Statute) and thereby trigger the jurisdiction of the ICC.

The second point concerns the inclusion of armed conflicts not of an international character in the jurisdiction of the Court. India fears the ICC intervention since in its territory there are and there have been some conflicts (Kashmir, Gujarat) and because of some internal issues (like inter-religious fights), in particular the problem of impunity.

India also dissents the exclusion of terrorism from the ambit of the definition of crime which according to an Indian Delegate to the Rome Conference is the “most condemnable form of international crime.” However many jurists have proven that terrorism is part of the definition of genocide, war crimes and crimes against humanity.

Finally the resistance in recognizing the role of the SC is also due to India’s claims for a seat in the SC and to its composition: India had a war with China in 1962, while France and Britain are former colonial masters of India. In fact giving the SC the power to bind states not party to the Rome Statute, would also violate principles of international law as stipulated under the Vienna Convention on the Law of Treaties.

 

2.2 Situation of Human Rights in India

However in reality India’s Human Rights laws have many loopholes. There have been numerous incidents of human rights violations in Assam and Northeast India during the past twenty or more years. India, although lauded as the largest democracy in the world, has a consistently poor record in terms of human rights violations. Places where people have been tortured, maimed and killed by the Indian army, paramilitary forces, and the police on numerous occasions are primarily in Kashmir, Punjab, Assam, and the Northeast India.

In Kashmir, the state and the non-state actors continue to enjoy impunity from torture, death in custody, abduction and unlawful killings.  At least twenty thousand Kashmiri civilians have been killed (Kashmiri groups say that the number is much higher). Tens of thousands have been injured. Hundreds of thousands have been internally displaced, including some three hundred thousand Hindu Kashmiris. Approximately thirty thousand Muslim Kashmiris have fled to neighboring Pakistan as refugees, while thousands have crossed that same border to train as fighters.[3]

In case of disappearances in Punjab; the finding of the Central Bureau of Investigation into the allegations of unlawful killing of 2,097 people who were cremated by the police had still not been made fully public, nine years after the investigation was launched.

The human rights situation is pathetic in Assam and the Northeast India, firstly, The Armed Forces (Special Powers) Act, 1958, empowers even a non-commissioned officer of force to shoot to kill anybody, if he is in the opinion that it is necessary to do so. They have got total impunity under the Act. Secondly, insensitivity of the other police forces towards the rights of the people. They still operate under colonial Police Act of 1860. As a result, there are innumerable cases of human rights violations by the security forces such as non-registration of FIR in genuine cases, implicating innocent people in trumped up cases, harassment and violence by the police in the name of search and raids, detention and arrest in false charges, use of excessive force in time of arrest even to the extent of causing serious injuries, tortures in custody sometimes leading to custodial deaths and rapes, opening fire leading to serious injuries and death in the face of slightest or no provocation, staging drama of encounters, enforcing disappearances and many other such form of violations and violence against the people showing utter disregard to the law of the land.[4]

Amnesty International India in its 2008 Annual Report holds India responsible for human rights violations in Gujarat where “five years after the violence in which thousands of Muslims were attacked and more than 2,000 killed, justice continued to elude most victims and survivors”.

Also the National Human Rights Commission which was set under persistent pressures from the international human rights organization, the UN Human Rights Commission and western governments, which pulled up New Delhi for wide scale violation of human rights, has been rendered unfruitful because of the strict limitation on its powers by the Indian government.[5]

 

2.3 Relevance of the International Criminal Court to India

The existing law in the country has been unsuccessful in responding to large-scale violation of human rights, such as crime against humanity and genocide. There are many reasons for the near collapse of the Indian justice delivery system a)the general problems related to the system, such as backlogs of cases, huge time delays, poor investigation and corruption; b) an absence of  definition of grave crimes such as genocide and crimes against humanity under Indian law, leading to a situation where it is extremely difficult, if not impossible, to prosecute such crimes; c) immunity from prosecution for high-ranking government officials as well as non-state actors due to the requirement of government permission for such prosecutions; d) a lack of any policy of reparations by state for human rights violations caused by its officials, including the police. The ICC could be useful to overcome these situations; it is the only hope to end impunity, and to ensure justice and accountability.[6]

 

3.     The press

 

If we consider Indian press we can deduce an almost homogeneous tendency favourable to the International Criminal Court.

The Hindu and its national magazine Frontline have dedicated a large number of articles to the ICC and we can conclude a positive opinion about the ICC and The Treaty of Rome.

In 2002 and in 2003, after the crimes committed in Gujarat, the newspaper published some articles illustrating the gravity of the crimes committed in Gujarat from the standpoint of international law and to highlight the potential that exists for using an international mechanism to terminate a culture of impunity within the country. The author strongly criticized the culture of impunity present in India and invited Indian government “to review its reluctance over acceding to the treaty creating the ICC. If our human rights record is good, and our legal machinery foolproof, we have nothing to fear from the ICC. But if we are afraid that our dirty linen may be washed in public, it is time we ensure that our laundry system becomes sound”.[7]

The crimes committed in Gujarat were classified as genocide, so pursuable by the ICC, considered as the first legal option, only if India were to make a declaration accepting jurisdiction for crimes committed even before ratification.[8]

After the formal opening of the offices of the ICC in The Hague in 2002, in some articles The Hindu expressed its hopes and expectations towards the ICC to be the institution which won’t let human rights violators, torturers and bloody dictators be able to operate with impunity any more.[9] It also showed its doubts in relation to USA’s decision to use its veto to block the renewal of a U.N. peace-keeping mandate in Bosnia after the fail of the guarantees the USA requested to exempt from possible war crimes prosecution its peace-keepers engaged in U.N. forces in Bosnia[10], and to France’s request to ratify the treaty with a seven-years exemption for war crimes because of its involvement in former colonies.

Frontline magazine comments and criticizes USA-India signature of the “Impunity agreements” in December 26th, 2002 saying that this is nullifying the potential of the International Criminal Court. The “Impunity agreements” are bilateral treaties which provide that neither country will surrender any current or former government official or national of the other country to an international tribunal without the express consent of that country. This is not limited to the nationals of the two states, but could include anyone in the pay of either state, including for instance those involved in espionage or undercover operations. The author also makes the point that “the impunity agreement amounts to an express assertion of non-cooperation with the court” and it “was a closely held piece of information. There was no public information of the impending deal, no discussion which could have elicited public opinion. And, now that the treaty has been signed, sealed and delivered, there is no means of retracting even if the agreement were to meet with public opprobrium”.[11]

"The ICC is the best international forum for combating impunity and bringing to book perpetrators of serious crimes, which often go unpunished", says Usha Ramanathan, a New Delhi-based independent law researcher. "It is ideally placed to achieve justice for all, to act as a court of last resort, to remedy the deficiency of ad hoc tribunals, to deter future perpetrators of heinous crimes, and to have true and lasting peace, based on justice."

In these articles prevail the themes related to the function of the ICC[12], global criminal justice, genocide, prosecution and, in particular, they deeply analyze and criticize USA’s position towards the ICC.

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 Registry 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.[13]

The theme of genocide and Gujarat is also quite treated and the ICC is seen as the right institution to obtain justice for the crimes committed in that region and to prosecute the responsible.[14]

Besides the opinions about the ICC there are also some articles dedicated to USA’s position in this field and USA-India `Impunity agreements'[15].

The general idea is that they are favourable to the International Criminal Court and they suggest the ratification of the Treaty of Rome by India since it is seen as “an extraordinary body that is without question required in a strife-torn modern world”[16], but they also recognize that this new institution has to sort out many elements, but for the maturity of a country this is a step to be done.

In The Times of India it is underlined the importance of justice, the role of governments to ensure life of dignity and freedom, the failure of the democratic process trough militancy, the responsibility of those who weld arms and the prosecution of those who break this fundamental norm. All these arguments and September 11th lead to the conclusion of the favourable establishment of an ICC.[17]

In another article it is analyzed the relation between the ICC and the UN considering also the role and the position of the USA (against ICC).[18]

The Indian Express reported the position of the BAI chairman and of the jurist Fali S Nariman who said that it is time for India to define genocide, war crimes and crimes against humanity. So that even if India doesn’t ratify the treaty of Rome, these crimes can be punished. It was also said that there is a misconception about ICC, which in reality is complementary to domestic legal system.[19]

The newspaper explains the need of an ICC where those who break international law are brought to a fair trial. After asking if a country exercising its unilateral sovereignty makes for a better world, he concludes[20] that it is necessary to give up some sovereignty and underlines the need of international organizations.

Another article explained the importance of ICC for India (ex. extradition of people suspected of having committed terrorist offences on Indian soil), how the ICC works in relation to national jurisdiction (principle of complementarity) and it also said that India has to join the ICC for moral and strategic reasons.[21]

 

4.     The response of political parties

 

BJP: about the Iraq war, India is considering to send its troupes to help the USA in the occupation of Iraq . The BJP is proud of being recognized as a regional power from Washington.[22]

The BJP and the RSS have suppressed religious basilar rights. In particular they are hostile to christianism. In fact the attacks against Christians have increased since the BJP has become more powerful.

Many say that the BJP is responsible for the Gujarat massacre. The state is accused of the massacre and many people are asking for justice.[23] The state officials didn’t recognize their responsibility. Narendra Modi is the Chief Minister of the state of Gujarat since 7th October 2001. It is said to be collaborator in Gujarat’s violences and to be protected by the BJP party. He also helped the maintain of relations between RSS and BJP.[24]

The party is also accused of having committed and of being still committing crimes or of being behind them.[25]

From all these accuses addressed to the BJP we can deduct that the party doesn’t support India’s ratification of the Treaty of Rome instituting the ICC. In fact, if the accuses are well founded they will surely be prosecuted.

The ICC prosecutes only the crimes committed after the adhesion of the country, so the Gujarat massacre wouldn’t be considered unless India’s expressed request to avoid this clause.

India’s ratification of the Treaty of Rome is nonetheless urgent to signal both its acceptance of international accountability and to deter further crimes.[26]

INC: A Rajya Sabha member, E.M. Sudarsana Natchiappan in a recent conference discussing about the importance of ICC in India, said that India must become a signatory to the ICC adding that 'our police forces and agencies do not have the efficiency nor the protocol to fight terrorism, crimes against women and children' and that 'We need a federal police system with power to investigate and file charges,'. Until such a system is in place, India must become a signatory to the ICC.[27]

During the Session in the House, Shri Eduardo Faleiro, Indian politician and former federal minister related to the INC, raised among The matters of Urgent Public Importance one concerning the International Criminal Court.

 

5.     Society organizations

 

ISIL

During the Second law conference (14-17 Nov 2004, New Delhi) topics such as development, international terrorism, international trade, international human rights and amicably resolving political and economic conflicts among nations were AFFRONTATI. Kirsch, the president of the ICC participated to the conference.

Golden Jubilee Summer course on International Law (16th June-27th June 2008). Discussion about many topics including International Criminal Law and references to the International Criminal Court.

Third international conference on the emerging trends on International Criminal Jurisprudence (10-11 December 2005). Kirsch was present to the discussion.

The Indian Society of International Law (ISIL) and the Law Centre-ll, University of Delhi, jointly organised a seminar on, Implementation of International Law in India: The Problems and Prospects at the Society's premises (2nd April 2005).

4th summer course on International Law (20th June-2nd July 2005 in New Delhi). The summer course was conducted with the objective to impart the current developments regarding important and contemporary issues of international law.

 

UGC Refresher Course in International Law (8th-27th Sept): TRATTATE many branches of International Law and special attention to International Criminal Law.

International Jurist Organization (IJO)

 

For IJO’s 18th anniversary a workshop was held on “The UN at 60 years” (16-17 Dec 2005 New Delhi). The workshop was divided in five sessions; the fourth was completely dedicated to “The working of the ICC”.

 

International initiative justice (IIJ): “Threatened existence: A feminist analysis of the Genocyde in Gujarat”. It was requested to accede to the Rome Statute instituting the ICC in order to condemn the responsible of the crimes committed in Gujarat.

 

6th International Conference of Chief Justices in the World 10th December 2005 at 9:00 am at the CMS World Unity Convention Centre. Hon’ble Madam Justice Anita Usaka, Judge, International Court of Justice was represented by Hon’ble Mr Reinhold Gallmetzer, Legal Officer, Trial Division, International Criminal Court, who made a multimedia presentation on her behalf which reminded everyone that ICC can be an effective tool, including to protect the rights of children and women. This despite the fact that several states still prefer to do as they will and deal with these international matters internally but there are a 100 members and India unfortunately is not. So he wished for India to ratify the ICC’s statutes.

 

The Indian Law Insititute (24-25 November 2006, New Delhi) organized a conference and among the main topics they talked about ICC.

 

International seminar in New DelhiIndia, Europe and the changing dimensions of security” 21-22 November 2002. “The EU is a staunch promoter of the International Criminal Court, a critical milestone in the evolution of international human rights, another crucial face of the security that our governments have to warrant to our citizens. This is at the heart of the new agenda of what is nowadays known as human security. In this respect, more advocacy needs to be done. We hope that India will soon recognize the importance of such an approach and that it will join the rest of the international community in this global endeavour”.

 

World Social Forum held from 16 to 21 January 2004 in Mumbai. They also talked about the ICC on 20 January in the seminar “the Globalization of Justice: the International Criminal Court” examined the relevance of the International Criminal Court to the phenomenon of globalization of justice. Speakers from the Indian civil society emphasized the Indian experience.

 

The Conference on people’s foreign policy-resolution in 7-8 December 2006 in Mumbai lead to the conclusion that the treaty of Rome needs to be ratified by all the states.

 

A one-day seminar aimed at focusing the attention of academic circles on the International Criminal Court (ICC) was held on 29 January by the ICRC in cooperation with the law department of Punjab University in Chandigarh, the joint capital of the northern Indian states of Punjab and Haryana.
A senior judge of the Punjab and Haryana High Court opened the seminar, stressing the need to set up an internationally acceptable mechanism to punish crimes against humanity committed in times of armed conflict. A number of eminent academics from universities in northern India, senior lawyers, students and journalists discussed various aspects of the ICC. They concluded that the ICC marked an important step forward in strengthening the international judicial system, especially given the complexity of today's conflicts. They also discussed about the jurisdiction and structure of the ICC, the crimes that come under its purview and national implementation of international humanitarian law and highlighted certain misconceptions about the ICC which could hamper its establishment.

 

26th -27th October 2007, New Delhi: UNIFEM  with funds raised from PONDs India Limited supported The Lawyers Collective (Women’s Rights Initiative) (“LCWRI”) to organize a “National Conference to Commemorate the Protection of Women from Domestic Violence Act (PWDVA) in the Gulmohur Hall of the India Habitat Centre, New Delhi. The Conference was organized in collaboration with the Ministry of Women and Child Development, the National Commission for Women, and the Bureau of Police Research & Development. The Conference brought together representatives of state agencies (such as Departments of Women and Child Development, State Commissions for Women, Protection Officers, police, Legal Services Authorities, etc.) as well as women’s groups to share their experiences of working with the law and provide their suggestions for its effective implementation. Participants were drawn from all states and union territories in the country. One of the highlights of the Conference was the Keynote Address by Judge Navanethem (Navi) Pillay. Born in South Africa, Judge Pillay has been both a symbol and a standard-bearer for human rights in her country, and throughout the world. She is currently serving as one of the 18 Judges of the International Criminal Court (ICC) based in The Hague, and the only woman judge in its Appeals Division. 

 

Leading the list of these organizations is the ICC Campaign of the Women Research and Action Group (WRAG)[28] whose objective is to ensure India’s accession to the ICC treaty and using ICC standards to strengthen the domestic legal system. WRAG along with Indian Centre for Human Rights and Law (ICHRL) are working towards spreading awareness about the International Criminal court and are also trying to make India a part of this treaty. WRAG   believes that India’s objection to ICC is based on frivolous grounds some of which are[29]:

1.      Inherent jurisdiction of ICC would perpetuate impunity.

2.      Power of referral ascribed to U.N. Security Council.( this objection no longer holds water since U.S. objection to ICC has blocked all possible referrals.)

3.      Powers of prosecutor(the reality is that there are ample safeguards to prevent misuse of this power)

4.      Inclusion of War Crimes committed during non-international conflicts. ( India is already a signatory to conventions which consider internal armed conflicts to be in the purview of war crimes; e.g. Article 3 of the 1949 Geneva Convention.)

5.      India’s insistence on the inclusion of nuclear weapons as a weapon of mass destruction has been termed as “hypocrisy” by the international community since India herself is a nuclear state.

This Organisation under the leadership of Saumya Uma is trying its best to fill the lacuna of knowledge regarding ICC and initiate a dialogue with the government regarding its ratification .As a part of the campaign, discussion meeting on International Criminal Court & India was held on 18 January 2005 at Bhubaneswar, Orissa. The meeting was organized by ICC-India – the Indian campaign on International Criminal Court, in collaboration with Martin Luther King Centre for Democracy and Human Rights, Bhubaneswar. The event was hosted by the Post-graduate Department of Psychology, Utkal University, Bhubaneswar. The participants for this discussion included lawyers, human rights activists, and representatives of non-governmental organizations, law teachers, students and media persons. Apart from this ICC-India has also organized several other campaigns in various states.[30] WRAG also held a Parliamentary discussion in association with People’s Watch, Tamilnadu. It was at the instance of these organizations that the Parliament Members Forum on Human Rights took up the topic International Criminal Court for discussion in its second meeting on 3rd August, 2005. This was basically a knowledge disseminating session in order to update Parliamentary members on this latest international development.

 

 

6.     Universities

 

Many universities have included in the study programs topics related to the International Criminal Court, International Criminal Law and Humanitarian Law.

 

 

7.     Conclusions

 

Without an international criminal court that holds individuals responsible for their actions, acts of genocide and violations of human rights have generally gone unpunished in the last 60 years. An international criminal court with universal jurisdiction has been the missing link in the system of international criminal justice. The ICC’s permanence, institutionalised identity, and universal jurisdiction will enable an escape from the tyranny of the episodic and attenuate perceptions of politically motivated investigations and selective justice. It should be an efficient alternative to ad-hoc tribunals with respect to money, time, and energy, and may also provide sensible alternatives to dubious sanctions and unilateral military retaliation.

ICC’s intervention must always be guided by the precautionary principles of right intention, last resort, proportional means, and reasonable prospects.

The application of international mechanisms comes second, only after the domestic mechanisms are either exhausted or powerless. The ICC Statute stipulates that its jurisdiction is activated only when states are “unwilling or unable genuinely to investigate or prosecute.” Similarly, the “responsibility to protect” concept expects and requests states first to protect their populations, and triggers international intervention only after governments are either weak and unable, or unwilling (complicit in crimes) to do so.

The problem is the atrocities committed against innocent civilians. The related two tasks are to protect the victims and punish the perpetrators. Both require substantial derogations of sovereignty, the first with respect to the norm of non-intervention and the second with respect to sovereign impunity up to the level of heads of government and state. At the same time, both require sensitive judgment calls: the use of external military force to protect civilians inside sovereign jurisdiction must first satisfy legitimacy criteria rooted largely in just war theory, while the prosecution of alleged atrocity criminals must be balanced against the consequences for the prospects and process of peace, the need for post-conflict reconciliation, and the fragility of international as well as domestic institutions.[31]

The ICC was vigorously promoted by the UN and is related to it through several agreements. Its statute complements the UN charter. The Security Council can refer a particular matter or situation to the ICC, but the Court does not need Security Council approval before starting proceedings. The ICC can try cases referred to it by States Parties, by the Security Council, or by its Special Prosecutor, who can initiate an investigation into a crime that has come to his/her attention.

The ICC statute contains numerous checks and balances to prevent possible misuse. It is based on the principle of complementarity (it would complement national legal systems, and not act as a substitute for them). The prosecutor cannot start an investigation without permission from a pre-trial chamber of three judges.

But, India and the U.S. have joined hands to oppose the ICC. In Dec. 2002, they signed an agreement not to extradite each other's nationals to "any international tribunal without the other country's express consent." The U.S. opposes the ICC because it claims its soldiers and officials would be the target of politically motivated prosecutions, hampering its "peacekeeping" efforts around the world. India ostensibly opposes the ICC because it excludes terrorism from its list of crimes, as well as the first use of nuclear weapons. However, the real reason may have to do with the human rights violations of Indian security forces in Kashmir and the north-east and the impunity it grants in practice to the perpetrators of hate crimes and communal violence of the kind that western Gujarat state witnessed in 2002, when 2,000 Muslims were killed with state connivance or complicity.

The research I did lead me to the conclusion that India shows two tendencies that almost collide.

On one side India doesn’t want to be part of the ICC because of an anti-colonialist mentality and for the fear that the blank and impunity which characterizes Indian legal system could leave too much space to the intervention of the ICC.

On the other side we can notice a strong tendency especially trough the medias turned to obtain justice in India after all the crimes and massacres (Gujarat, Kashmir) which took place during the last years and whose liable would have been punished if the Rome Treaty had been ratified in India.

The first type of tendency comes from the high, from the strongest powers represented by those who guide this country. It is a tendency linked also to relations with other powers such as the USA with who India signed the ‘Impunity agreement’. It is also influenced by economic alliances with other countries with whom India has important trade and commercial relations (Sudan).

The second tendency instead, derives from who has no other interest out of the love for justice and for freedom.

Unfortunately the first nowadays id prevailing on the second since the supporters of the ICC are less powerful and not enough numerically to be influent enough.

It is, in my opinion, fundamental to work on both front lines.

It is necessary to persuade the strong powers, but to make this happen we have to considerably increase the number of supporters and connoisseurs.

I have singled out the potential supporters in young students: they represent the next future and the energies of this country.

A good strategy could be structured like this: ICC experts should go to every University and invite all the students to activities that allow them to know more about ICC trough workshops, seminars, case competitions, simulations, study of cases, gifts and videos.

This activity must be developed in an incisive way to be effective in the brief period.

I also think that a group of experts should go to primary schools to explain to children the basic concepts of ICC (ICC=justice). In this way future generations will grow up with the consciousness that the ICC exists and that it is something good, positive and a guarantee of justice.

Later on it is necessary to organize some meetings-discussions of high level in which politicians representing their political parties and students/experts will discuss together about the need and the importance of the ICC. During the meetings between the students/experts and the politicians the intention of the first ones to have an ICC must be manifested in a clear and firm manner.

I have in fact verified that there are many preconceptions and ignorance from the political world on ICC.

The promotion of a constructive meeting between young expert students and politicians on ICC could be a good way to acknowledge the politicians on ICC and to show the strong powers that the most promising future of the country (students) wants the ICC.

I don’t think that the creation of a political party pro-ICC would lead to positive results: in fact we risk the creation of a break-up and in the end the movement would be associated to a particular political current; as a consequence not all the parties would be motivated to adhere to it or to follow it.

All the activities promoted till now by the society organizations, such as seminars and workshops, despite being very interesting, have remained limited to a particular group of people and the knowledge of the ICC hasn’t really increased that much among common people.

Instead if we try to diffuse the knowledge on ICC in a horizontal way trough the students and trough the politicians it is more probable to obtain a positive result.

 



[1] www.icc-cpi.int

[2] Mr. Dilip  Lahiri, Additional Secretary (UN), Statements in the Conference on the International Criminal Court, June 16, 1998

[3] Balraj Puri, “Pattern of Human rights violation in Jammu & Kashmir”, J& K Human rights journal, available at http://humanrightsjournal.com/index.php?option=com

[4] See ‘Walliullah Ahmed Laskar, “ Human Rights situation in Barak Valley in Assam”, available at http://www.countercurrents.org/laskar/90308.htm

[5]   Sumanta Banerjee, “Human rights in Global Context”, Economic and Political Weekly, Vol. 38(5), 2003 (Feb), at p.425.

[6] Mihir Desai, in Workshop on ICC: Relevance and challenges in India, on 25 November 2006.

[7] Saumya Uma, The Gujarat Carnage & ICC, May 14, 2002, The Hindu

[8] Arvind Narrain, Case for `the genocide', Mar 02, 2003, The Hindu

[9] Vaiju Naravane, Bush Govt. move weakens court, Jul 02, 2002, The Hindu

[10]Opinion-Editorial, America's dubious dissent, Jul 03, 2002, The Hindu

[11] Usha Ramanathan, To Kill A Court, Frontline (Volume 20 - Issue 02, January 18 - 31, 2003)

[12] Usha Ramanathan, India and the ICC, Frontline (Volume 18 - Issue 07, Mar. 31 - Apr. 13, 2001)

[13] India and the Icc, Usha Ramanathan, Frontline, Volume 18 - Issue 07, Mar. 31 - Apr. 13, 2001

[14] Case for `the genocide', Arvind Narrain, The Hindu, 02 /03/2003; India and world concern on Gujarat
A. G. Noorani, Frontline, Volume 19 - Issue 11, May 25 - June 07, 2002

[15] To kill a court,  Usha Ramanathan, Frontline, Volume 20 - Issue 02, January 18 - 31, 2003

[16] R.K. Raghavan, Rendering Criminal Justice Globally, Frontline (Volume 21 - Issue 05, February 28 - March 12, 2004)

[17] Gautam Navlakha, 'There are no short cuts to justice', Dec 09, 2001, The Times of India

[18] Rakesh Bhatnagar, International court needs to come out of UN control, Nov 29, 2004, The Times of India

[19] “Let us define genocide, crime against humanity”, Feb 25, 2006, Indian Express

[20] Dhiraj Nayyar “What’s sovereignty?”, Sept 22, 2007, Indian Express

[21] Neha Jain, “Justice has another address”, Apr 26, 2008, Indian Express

[22] Siddharth Varadarajan, “Eight theses on the war in Iraq

[23] Ram Puniyani, Newsletter of All India Secular Forum: Vol I, No 5, January 2007, Plural India

[24] “Cong lying about Lord Ram and me: Modi”, Dec 06, 2007, Expressindia.com

[25] Shyam Chand, “Vigilance is the Price of Liberty”, Sept 10, 2008, (Vol XLVI No 38), Mainstream

[26] “The Applicable Principles Of Responsibility (Chapter 9)” Threatened Existence: A Feminist Analysis of the Genocide in Gujarat-Report by the International Initiative for Justice (IIJ), December 2003

[27] India must join International Criminal Court: expert, Indo Asian News Service, 09 August, 2008

[28] It is a Mumbai based organization.

[29] Saumya Uma, Internatinal Criminal Court and India, Women’s Research and Action Group[WRAG], Mumbai.

[30] For details please refer to Appendix 1.

[31] The responsibility to protect — and prosecute?, Ramesh Thakur, The Hindu, 10/07/2007