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Context: U.S. authorised new sanctions on the International Criminal Court (ICC) in an act of retaliation against the UN body’s high-profile investigation to bring justice to victims of war crimes and crimes against humanity. 

The U.S. decision has been criticised by the UN, the EU, 10 members of the UN Security Council, including the U.K. and France, as well as several international human rights agencies, all of which have called for the sanctions to be reversed.

Analysis

  • In March 2020, the Hague Court’s Appeals Chamber unanimously authorised investigation into alleged atrocities by U.S. troops in Afghanistan since May 1, 2003 as well as other alleged crimes committed since July 1, 2002 in the Central Intelligence Agency’s so-called black sites in Poland, Romania and Lithuania. 
  • The U.S. has always refused to recognise ICC jurisdiction over U.S. personnel on the grounds that it is not party to the Rome Statute that underpins the court. 
  • On the other hand, the 1998 Rome Statute provides for the prosecution of crimes committed in the territory of any one of the 123 states-parties, even if the accused come from a non-member nation. 
  • This is the basis for the current investigation wherein Afghanistan and the three European nations, the location of the alleged crimes, are within the ICC’s jurisdiction, even if the U.S. remains outside.
  • U.S. said that the new measures would also be deployed to shield Israel, which faces a separate inquiry at ICC. 
  • It relates to Israel’s settlements on the West Bank and the 2014 invasion of Gaza, resulting in hundreds of Palestinian casualties.
  • Both U.S. and Israel have refused to sign up to the court, which was set up in 2002 to be the only global tribunal trying the world’s worst crimes, war crimes and crimes against humanity.
  • A full ICC investigation could possibly lead to charges against individuals. States cannot be charged by the ICC.
  • While the U.S.’s concerns about the ICC are shared by India and other countries that weren’t signatories, the U.S. action is seen as another blow to multilateralism. 
  • In the last few years, the Trump administration has walked out of several UN agencies and international agreements, including Human Rights Council, UNESCO, the Paris climate change agreement and the Iran nuclear accord.

The International Criminal Court 

  • The ICC is the world’s first and only permanent international criminal tribunal and is considered a court of last resort.
  • It is headquartered in The Hague, Netherlands, and is charged with investigating and prosecuting crimes of genocide, crimes against humanity, aggression, and war crimes.
  • The Rome Statute is the founding treaty of the International Criminal Court.
  • Under the Rome Statute, the International Criminal Court (ICC) can only investigate and prosecute the four core international crimes in situations where states are “unable” or “unwilling” to do so themselves; the jurisdiction of the court is complementary to jurisdictions of domestic courts. 
  • The court has jurisdiction over crimes only if they are committed in the territory of a state party or if they are committed by a national of a state party.
  • The ICC has jurisdiction over the gravest instances of atrocity crimes and targets only the highest priority perpetrators of these crimes.
  • The ICC prosecutes individuals, not organizations or governments.
  • The ICC is not part of the United Nations.
  • The UN Security Council is empowered, under the Rome Statute, to refer complaints against non-member nations to the International Criminal Court. 
  • Cases are referred to the court by national governments or the United Nations Security Council.
  • The 18 judges of the Court serve nine-year terms.
  • The governing body of ICC, the Assembly of States Parties (ASP), currently consists of 123 countries that have ratified the Rome Statute: largest number of countries are from the Africa region.
  • Malaysia recently become the latest ICC member.
  • Burundi withdrew from the ICC effective October 2017, and the Philippines gave notice of withdrawal in March 2018, which goes into effect one year later. An effort by the government of Kenya – at a time when its president and deputy president were facing charges before the court – to lead a mass withdrawal of African states from the treaty failed to materialize.
  • Burundi is the first member-country to leave the ICC because, in September 2017, a UN commission investigating violence for over two years under President Pierre Nkurunziza recommended a criminal investigation by the court. 
  • Some notable countries like United States, Russia, India, China, Israel, Qatar, Iraq, and Libya – aren’t part of the ICC.
  • The Rome Statute has been signed by 139 countries, and 123 have ratified it through their Parliaments and internal process. 
  • Although the U.S. was part of the founding movement to build the ICC to try cases of genocide and war crime, especially after the courts in Rwanda failed, it decided not to ratify the Statute in 2002. 
  • Countries like Russia, China and India, however, were never in favour of the Rome Statute or the ICC, and never signed on. 
  • For India, the decision was based on a number of principles. 
  • To start with, the ICC is a criminal court, unlike the International Court of Justice (which adjudicates on civil matters), and arrogates to itself the right to prosecute matters against countries that aren’t even signatories. 
  • “India said that the Statute gave to the UN Security Council a role in terms that violates international law by giving the power to refer cases to the ICC, the power to block such references and the power to bind non-State parties to such decisions,” former Indian envoy to the UN Asoke Mukerji told The Hindu, explaining that India based its objections on the basis of the Vienna Convention on the Law of Treaties. 
  • India also objected to the omission of cross-border terror, use of nuclear arms and weapons of mass destruction from the areas the ICC would institute its investigations.

India and ICC

  • India abstained from voting on a UN Human Rights Council draft resolution, in March 2019, on the “situation of human rights in Myanmar.”
  • Co-sponsored by the European Union (EU) and Bangladesh, the resolution “expresses grave concern at continuing reports of serious human rights violations and abuses in Myanmar”, particularly in Rakhine, Kachin and Shan States, and calls for a full inquiry into these by the Council’s own mechanism and the International Criminal Court (ICC). 
  • Both India and Myanmar are non-signatory of the Rome Statute which is the founding treaty of the International Criminal Court.

What differentiates the International Court of Justice from the International Criminal Court and the ad hoc international criminal tribunals?

  • The International Court of Justice has no jurisdiction to try individuals accused of war crimes or crimes against humanity. 
  • As it is not a criminal court, it does not have a prosecutor able to initiate proceedings.
  • This task is the preserve of national courts, the ad hoc criminal tribunals established by the United Nations and also of the International Criminal Court, set up under the Rome Statute.
  • The Court is not a supreme court to which national courts can turn; it does not act as a court of last resort for individuals. Nor is it an appeal court for any international tribunal. It can, however, rule on the validity of arbitral awards.

India and crimes against humanity 

  • Neither ‘crimes against humanity’ nor ‘genocide’ has been made part of India’s criminal law, a lacuna that needs to be addressed urgently. 
  • This was the lament of Delhi High Court, while pronouncing the judgment in State v. Sajjan Kumar (2018).
  • The case concerned the mass killing of Sikhs during the anti-Sikh riots in 1984 in Delhi — and throughout the country. 
  • The court categorically stated that these kind of mass crimes “engineered by political actors with the assistance of the law enforcement agencies” fit into the category of crimes against humanity (CAH).
  • Internationally, CAH are dealt with under the Rome Statute of the International Criminal Court (ICC). 
  • They are defined as offences such as murder, extermination, enslavement, deportation, torture, imprisonment and rape committed as a part of “widespread or systematic attack directed against any civilian population, with knowledge of the attack”.
  • India is not a party to the Rome Statute, which means that it is under no obligation at present to enact a separate legislation dealing with CAH. 
  • Even after ratification of the Genocide Convention (1948), India has not enacted it in domestic legislation.

Reasons for reluctance

  • The most probable reason for India’s reluctance to actively participate in the negotiation process on a separate Convention on CAH, which started in 2014, could be the adoption of the same definition of CAH as provided in the Rome Statute.
  • The Indian representatives at the International Law Commission (ILC) have stated that the draft articles should not conflict with or duplicate the existing treaty regimes. 
  • India had objected to the definition of CAH during negotiations of the Rome Statute on three grounds.
  • First, India was not in favour of using ‘widespread or systematic’ as one of the conditions, preferring ‘widespread and systematic’, which would require a higher threshold of proof.
  • Second, India wanted a distinction to be made between international and internal armed conflicts. 
  • This was probably because its internal conflicts with naxals and other non-state actors in places like Kashmir and the Northeast could fall under the scope of CAH.
  • The third objection related to the inclusion of enforced disappearance of persons under CAH. 
  • It is pertinent here that India has signed but not yet ratified the UN International Convention for the Protection of All Persons from Enforced Disappearances as it would put the country under an obligation to criminalise it through domestic legislation.

A familiar pattern

  • In State v. Sajjan Kumar, the Delhi High Court also said that “a familiar pattern of mass killings” was seen “in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha in 2008, and Muzaffarnagar in Uttar Pradesh in 2013”, where the criminals “have enjoyed political patronage and managed to evade prosecution”.

Conclusion

  • India’s missing voice at the ILC does not go well with its claim of respect for an international rules-based order. 
  • Turning a blind eye to the mass crimes taking place in its territory and shielding the perpetrators reflect poorly on India’s status as a democracy. 
  • It would be advisable for India to show political will and constructively engage with the ILC, which would also, in the process, address the shortcomings in the domestic criminal justice system.