Originally Published 2010-11-24 00:00:00 Published on Nov 24, 2010
Terrorism and the use of nuclear weapons could be taken up for consideration for inclusion in the International Criminal Court's purview. Effective participation by India, even as an observer, could influence the evolution of the ICC in the course of such discussions.
Should India continue to stay out of ICC?
The International Criminal Court ( ICC ) is an unprecedented initiative by the world community to go over the heads of national governments and bring to trial and punish individuals responsible for the commission of genocide, war crimes, crimes against humanity and aggression in situations when the countries to which they belong are unable or unwilling to bring them to justice. There has been widespread international sentiment for a long time that such an independent, permanent criminal court was needed to deal with heinous crimes of international concern in such situations.

But even a few years ago, the concept of sovereign jurisdiction within national territory was so ingrained that the issue of an ICC arrest warrant against the serving President of Sudan for crimes committed within his own country, making him subject to arrest in any country which had ratified the ICC Statutes and to being handed over to the ICC for trial and punishment, would have been unimaginable. . In the case of Sudan, which is not a Party to the ICC, it was particularly bizarre to see the UN Security Council voting to subject it to ICC jurisdiction, when the majority of the permanent members of the Council have themselves stayed out of the ICC.

Not everyone agrees that this set a good precedent. Many say that this declaration of a defiant Sudanese President as an international criminal has obstructed a peaceful resolution and prolonged the suffering in Darfur. Several countries, like Spain and South Africa, had earlier chosen peace and reconciliation after their national traumas during the Franco dictatorship and apartheid respectively, over the likely upheaval of bringing their earlier leaders, who still had substantial following, to trial and punishment .

The Nuremberg and Tokyo trials had earlier addressed war crimes, aggression as a crime against peace, and crimes against humanity committed during the Second World War. But this was victors’ justice , and the Indian judge at Tokyo had disassociated himself from the verdicts. In the 1990s, after the end of the Cold War, tribunals like the International Criminal Tribunal for the former Yugoslavia and for Rwanda were established by the UN Security Council, with dubious legal authority under the Charter, to try crimes committed within a specific time-frame during specific conflicts. Lacking an appropriate forum, since the ICC has no jurisdiction over crimes committed before its Statutes came into force in 2002, Cambodia and Bangladesh are engaged in national efforts, with the cooperation of the UN, to try persons responsible for the millions of killings and atrocities during the Pol Pot regime and the Pakistan Army crackdown in what is now Bangladesh.

The Rome Statutes of July 17, 1998, which govern the International Criminal Court (ICC), defined the crimes of genocide, crimes against humanity and war crimes, three of the four major crimes within the ICC purview, and the conditions under which the ICC can exercise jurisdiction , leaving the crime of aggression to be taken up later. Many major countries, between them constituting the majority of the world’s population, did not sign the Rome Statutes, including the United States, Russia, China, India, Indonesia, and many Islamic countries, including Pakistan .111 states have currently ratified the 1998 Rome Statutes, which entered into force on July 1, 2002 after ratification by 60 countries.

There was high drama at Rome when India strenuously argued against the form that the ICC was taking under the proposed Statutes. The Rome conference even evaded a vote on India’s proposal to include the use of nuclear weapons as an ICC crime through a procedural ‘no action’ resolution. India has always supported international cooperation for the development and codification of international criminal law and should have been expected to be a natural supporter of such international cooperation to suppress and deter heinous crimes of international concern through the ICC. But an excess of zeal by purists made the Rome Statute of the ICC a deeply flawed instrument. India eventually abstained in the vote on the Statutes, has not taken any steps for its signature and ratification, and has been largely a silent observer in the Conferences of Parties and other ICC meetings since 1998. There has been some criticism of India’s position by some prominent Indian jurists, who have felt that India should not turn its back on such a forward looking humanitarian innovation in international law.

The principal objections of India to the Rome Statute are that it
•   Made the ICC subordinate to the UN Security Council, and thus in effect to its permanent members, and their political interference, by providing it the power to refer cases to the ICC and the power to block ICC proceedings.
•   Provided the extraordinary power to the UN Security Council to bind non-States Parties to the ICC ; this violates a fundamental principle of the Vienna Convention on the Law of Treaties that no state can be forced to accede to a treaty or be bound by the provisions of a treaty it has not accepted.
•   Blurred the legal distinction between normative customary law and treaty obligations, particularly in respect of the definitions of crimes against humanity and their applicability to internal conflicts, placing countries in a position of being forced to acquiesce through the Rome Statutes to provisions of international treaties they have not yet accepted.
•   Permitted no reservations or opt-out provisions to enable countries to safeguard their interests if placed in the above situation
•   Inappropriately vested wide competence and powers to initiate investigations and trigger jurisdiction of the ICC in the hands of an individual prosecutor
•   Refused to designate of the use of nuclear weapons and terrorism among crimes within the purview of the ICC, as proposed by India

However, beyond these positions of principle, the iron in India’s soul with respect to submitting to ICC jurisdiction had entered with the increasing use fronts of terrorist organizations, with the support of domestic and international NGOs, of allegations of human rights violations as a pressure point against Indian security and armed forces engaged in combating insurgency and terrorism in Jammu and Kashmir, the North East and earlier Punjab. Indian leaders were implacably opposed to allowing any possibility of Indian civilian and military commanders being indicted abroad by an over zealous or politically motivated ICC prosecutor for alleged crimes committed in the course of performing their duties.

Such concerns regarding possible misuse and abuse were not confined to India, and were shared by most countries whose armed forces found themselves involved in situations of armed conflict, internal or external. There was a bruising struggle by the US to obtain immunity for its soldiers engaged in UN peacekeeping operations and to secure bilateral agreements not to hand over accused US nationals to the ICC. As it turned out, such fears were exaggerated due to the safeguards built into ICC procedures, which have, by and large, been respected in practice.

The recently concluded Review Conference of the Rome Statutes in Kampala, Uganda in June 2010, has completed the process of definition and conditions for exercising jurisdiction for the fourth designated crime of aggression, so that the ICC now has the legal framework to act against all the crimes currently under its jurisdiction. Apart from this, it was agreed to bring under the jurisdiction of the Court the war crime of employing certain poisonous weapons and expanding bullets, asphyxiating or poisonous gases in armed conflicts not of an international character The only recent instance of the use of such weapons by a state was by Saddam Hussein against Iraqi Kurds ,and this is unlikely to be repeated after the prohibition and tightly verified process of destruction of chemical weapons. It is ironical that States Parties were able to address this arcane issue, but could not deal with nuclear weapons and other WMDs, depleted uranium weapons etc.

Apart from this, the Kampala meeting agreed on certain procedural innovations which, if pragmatically agreed to at Rome in 1998, may have dramatically altered the trajectory of international support for the ICC. An ‘opt-out’ provision has been added, permitting State Parties to be exempt from the exercise of jurisdiction by the Court with respect to the new crime of aggression .This is in addition to the provision that 30 of the State Parties who helped to adopt the aggression amendment must ratify it before it can apply to them, and that too , not before 2017. If such an ‘opt-out’ provision had been provided at the time of adoption of the Rome Statutes regarding the listing of crimes against humanity, whose ICC definition is not universally accepted, or the applicability of ICC jurisdiction to domestic conflict, there is no doubt that many more States would have signed on. The Kampala conference also decided to continue allowing new States Parties to opt for excluding themselves from the Court’s jurisdiction over war crimes allegedly committed by its nationals or on its territory for a period of seven years.

The record of the ICC since 2002 has not borne out the dire misgivings of many of the countries who stayed out at Rome. The general impression is that the ICC has guarded against politically motivated prosecutions. The U.S. remains wary about exposing its troops to politically motivated prosecutions for unpopular wars, such as in Iraq and Afghanistan . But it has changed its approach from outright opposition to constructive engagement. Russia and China have also participated as observers in meetings of ICC State Parties which have been negotiating substantive and procedural issues relating to the evolution of the ICC.

On the other hand, the ICC has proved very expensive, having already spent over half a billion euros on a handful of cases . Its political judgment has also been questionable, with allegations of racial bias. By October 2007, the ICC prosecutor had received 2,889 communications about alleged war crimes and crimes against humanity in at least 139 countries. Yet by March 2009, the prosecutor had opened investigations into just four cases in Uganda, Democratic Republic of Congo, the Central African Republic, and Sudan Darfur. All of them are in Africa! Thirteen public warrants of arrest have been issued, all against Africans. The March 4, 2009 issue by ICC of an arrest warrant against the Sudanese President Omar al-Bashir angered the African Union, which had advised against it. On concerns about misguided activism, news that controversial Spanish judge Baltasar Garzon, with his penchant for tilting at distant windmills, starting with General Pinochet in Chile, may be joining the ICC, has also given rise to misgivings.

But with 111 ratifications, 30 odd more signatories, and a successful Review, the ICC has clearly established itself and will grow in influence and representativeness. While there is no immediate pressure on India to join, staying out indefinitely will scarcely enhance India’s moral stature and international profile with its overall past record on human rights issues. Indeed, in normal circumstances, India would have wished to be among the first to join such a revolutionary initiative to improve the international system. Staying out also reduces India’s ability to influence the evolution of the ICC or to have judges from India on the Court.

How serious are Indian concerns at being politically targeted in the ICC if it joined? This was the primary reason for the strong opposition of the armed forces and security authorities to India to supporting the ICC. In J&K, the North East and earlier Punjab, sympathizers and front organizations of the insurgents, both in India and abroad, have tried hard in the past to bring pressure on India in international fora with allegations of human rights abuses and violations. They can be expected to try to take advantage of the ICC Statutes to lobby the ICC prosecutor to launch investigations against Indian leaders and commanders. They might even succeed in constructing dossiers carrying prima facie persuasiveness against some of them.

But the specter of high ranking Indian civil and military officials being on the run to evade ICC arrest warrants if they travel abroad is farfetched. First of all, there are strict safeguards in place against a politically motivated Prosecutor running off with the bit between his teeth, and the Prosecutor has to obtain prior authorization to proceed with an investigation from a Pre-trial Chamber of judges of the ICC. Secondly, ICC jurisdiction is founded on the principle of complementarity, with absolute priority on exercise of national jurisdiction. The principle of complementarity provides that the ICC cannot take up a case if it is already being investigated by the concerned State, unless the State is manifestly unwilling or unable to carry out the investigation or prosecution. To start with, when the Prosecutor has determined that there is a reasonable basis to commence an investigation, he has first to notify all States Parties which would normally exercise jurisdiction over the crime .Within one month of receipt of that notification, a State may inform the Court that it is investigating the crime ,and at the request of that State, the Prosecutor is required to defer to the State's investigation. It is highly unlikely that any ICC Prosecutor could decide to take over the prosecution of an ICC crime in India on the basis of a determination that the Indian legal system was unable or unwilling to deal with it. These safeguards thus make direct ICC prosecution of Indian officials virtually impossible to conceive.

The ICC Prosecutor cannot ,of course, on his own, try to exercise jurisdiction over nationals of a country which has not joined the ICC, and this was undoubtedly one of the principal reasons for the decision by India to stay out. But this does not mean that Indian nationals can entirely escape the ICC’s reach. The UN Security Council has been provided the authority under the ICC Statutes to bring non members of ICC under its jurisdiction. Despite strong protests, inter alia by India, this provision was included in the Rome Statutes. Staying out of the ICC therefore does not prevent prosecution by the ICC on a reference by a mandatory Chapter VII decision of the UN security Council , as has happened in the case of Sudan.

In practice, of course, the contingency of a referral by the UNSC by a Chapter VII resolution for serious crimes by Indian nationals to the ICC is extremely remote. Enforcement decisions under Chapter VII of the UN Charter, which all States are obligated to implement, have never been invoked against India in UN history , though it is, of course, theoretically possible. Permanent members of the UNSC, on the other hand, cannot be referred to the ICC due to their veto. UNSC Permanent members who do not join the ICC (US, China, Russia) cannot be proceeded against by either the Prosecutor or the UNSC, and are therefore totally outside ICC jurisdiction.

While such gross lack of equity between the permanent members of the UNSC and India in treatment before the ICC may rankle, it would be seen from the above that the actual adverse effects would be minimal. There could, of course be irritations. Allegations from reputable NGOs & other reliable sources crimes of ICC interest in India or by Indian nationals e.g. in J&K or the North East can be taken cognizance of by the ICC Prosecutor. If the Prosecutor determines that there are good grounds for an investigation/ prosecution, he will have to notify India which will have to start national proceedings against those accused within a month to ensure that the ICC defers its own action. The ICC Prosecutor will have the right to require periodic reports of the progress of the case in India. It would however scarcely be reasonable to make heavy weather of these inconveniences, which would be faced by all States, As long as Indian diplomatic and legal machinery was alert, there is no possibility of the ICC directly investigating or prosecuting crimes under the ICC remit in India.

There are other legal issues to be resolved before India could join the ICC, whose Statutes are not consistent with India’s position on other international legal instruments. For example, India has not accepted Common Article 3 of the Geneva Conventions which relate to war crimes during conflicts not of an international character. However Articles 7 and 8 of the ICC Statutes include such crimes, and no reservations are permitted. Article 124 of the Statutes does permit States at the time of joining to opt out of war crimes jurisdiction for seven years. However, on signing up, India would immediately come under ICC jurisdiction for crimes against humanity during conflicts not of an international character. Perhaps India’s position on Common Article 3 of the Geneva Conventions and crimes against humanity in the course of domestic conflicts needs to be reconsidered. Having become Party to so many UN human rights conventions, which require us to submit a variety of periodic reports for UN scrutiny on domestic actions to implement these obligations, it is scarcely appropriate that India should assert impunity for the commission of the most heinous crimes imaginable in the course of combating domestic insurgencies.

With so many major countries staying out, there is no pressing hurry for India to decide immediately on becoming an ICC State Party. But it is not clear why India seems to have washed its hands off substantive involvement in ICC matters over the last ten years by apparently limiting our observer delegations to ICC meetings with only a silent watching brief. US, China and Russia, which voted against the Rome Statutes, have participated actively and substantively in these ICC bodies including at the recent Review Conference. The current set-up in the ICC is not set in stone and existing opportunities to influence developments should not be neglected. Future meetings of the ICC Assembly of Parties could well consider, for example, extending the Kampala ‘opt-out’ provisions . Terrorism and the use of nuclear weapons could be taken up for consideration for inclusion in the ICC’s purview. Effective participation by India, even as an observer , could influence the evolution of the ICC in the course of such discussions. Of course , this could be done much more easily as a State Party.


1.  The ICC is here is to stay as an increasingly central institution in the international legal architecture to combat massive human rights violations which could affect peace and security.
2.  Even if India is not ready to join, it should move towards a posture of constructive engagement with the ICC.
3.  Concerns about Indian leaders/military commanders being prosecuted by the ICC if India joined are highly exaggerated
4.  ICC jurisdiction over India under the UNSC referral process would be theoretically possible whether or not India joins the ICC, but highly unlikely in practice.
5.  India should immediately ensure substantive and effective participation in ICC deliberative and negotiating bodies which it is entitled to attend as an observer.

(The author is a Distinguished Fellow at Observer Research Foundation. He is a former diplomat and was the leader of the Indian delegation to the 1998 Diplomatic Plenipotentiary Conference at Rome which negotiated the ICC Statutes)

Courtesy: Indian Society of International Law

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