Category Archives: Rome Statute

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August 1, 2013

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Crime of Aggression, ICTR, ICTY, International Criminal Court, Rome Statute, UN Charter

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Superior Orders under the Rome Statute: a Flawed Development

Individual criminal responsibility for the violation of the provisions of International Humanitarian Law is the matter of International Criminal Law. The latter, in turn, envisages different forms of responsibility for the crimes committed as well as certain grounds upon which one may be relieved of the aforementioned responsibility. Article 33 of the Rome Statute of the International Criminal Court deals with individual responsibility in cases of superior orders or the prescription of law and states that:

1.         The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

(a)     The person was under a legal obligation to obey orders of the Government or the superior in question;

(b)     The person did not know that the order was unlawful; and

(c)     The order was not manifestly unlawful.

2.         For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.[1]

Several interesting issues should be pointed in respect to this. First, in order to relieve one of individual criminal responsibility under Article 33 its conditions (a), (b) and (c) have to be met cumulatively. Moreover, Article 33 won’t be of much help when committing a crime of genocide or a crime against humanity pursuant to an order of the government or a superior. Thus, given that the Rome Statute currently envisages only three crimes which fall under the jurisdiction of the Court (genocide, war crimes, crimes against humanity), meeting the aforementioned criteria cumulatively arguably relieves a person of criminal responsibility only for the committal of war crimes.

One should bear in mind that this provision of the Rome Statute is different from those of the Charter of the International Military Tribunal (the Nuremberg Tribunal), the Charter of the International Criminal Tribunal for the former Yugoslavia and the Charter of the International Criminal Tribunal for Rwanda which provided for individual criminal responsibility of subordinates notwithstanding the circumstances. The decision of the ICTY on the case of Dražen Erdemović is notable in this regard. On the 16 of July 1995 Dražen Erdemović, a soldier of the 10th Sabotage Detachment, and others received an order to execute 1000-1200 men and boys who had surrendered to the members of the Bosnian Serb police or army near Srebrenica. Erdemović allegedly resisted the order, but was then told that he either shot them, or hand his gun to another, and join those to be killed. Erdemović followed the order and performed the execution. He was brought before the ICTY and found guilty notwithstanding the circumstances since the ICTY Charter did not contain provisions on the relief of criminal responsibility.[2] This was fortunately fixed in the Rome Statute, yet, one might argue that the latter has its own flaws.

Since the provisions of Resolution RC/Res.6[3] adopted at the Kampala Conference and amending the Rome Statute do not affect Article 33, one can reasonably argue that meeting its three criteria cumulatively also relieves one of criminal responsibility for the committal of the crime of aggression. The definition of the crime of aggression is set in Article 8 bis (1) of the Rome Statute:

For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

To narrow it down a bit in order for there to be a crime of aggression there has to be an act of aggression which constitutes a manifest violation of the UN Charter. Bearing in mind that the three criteria have to be met cumulatively a person is relieved of criminal responsibility only if the order of a superior or the government is not manifestly unlawful. If these two statements are put together, the following question arises: can an order to perform an act constituting a manifest violation of the UN Charter be not manifestly unlawful? I doubt it.

Moreover, as argued by P. Gaeta, “if the performance of an order by a superior implies the commission of a war crime, the order cannot but be considered manifestly unlawful, given the very serious nature of the conduct prohibited by the international rules on such crimes. The illegality of an order which constitutes a grave breach of the 1949 Geneva Convention (such as the order to kill, torture or threat inhumanely persons protected by the Conventions) is obvious.”[4]

Therefore, the provision of Article 33(1)(c) of the Rome Statute read in conjunction with Article 33(2) is arguably futile since it can hardly be applied to any crime at all, however, in the absence of any judicial practices in this respect it is hard to tell whether the ICC will unconditionally decline the challenges raised under it. Moreover, currently the Court primarily focuses on superiors and given that it operates in a highly charged political atmosphere and still has to assert itself within the international community the application of Article 33(1)(c) is not likely to happen within the near future.

Written by Jan Guardian

[1]       UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, Article 33 [online][accessed 31 July 2013].

[2]       Prosecutor v. Dražen Erdemović (Sentencing Judgement), IT-96-22-Tbis, International Criminal Tribunal for the former Yugoslavia (ICTY), 5 March 1998 [online][accessed 31 July 2013].

[3]       Kampala Review Conference, Resolution RC/Res. 6, 13th Plenary Meeting, June 11, 2010, I.C.C. Doc. RC/Res. 6 [online][accessed 31 July 2013].

[4]       Paola Gaeta, The Defence of Superior Orders, 10 EJIL 172 (1999), p. 185 [online][accessed 31 July 2013].

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July 23, 2013

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International Criminal Court, Rome Statute, Sentencing

Sound Sentencing? Aggravating Factors in Lubanga

Written by: Regina Paulose

Hidden deep within the Rome Statute and the ICC Rules of Procedure of Evidence (RPE) are the sentencing guidelines for the ICC. These articles receive very little attention. This is most likely because there has been only one case which has reached the sentencing phase at the ICC. How the Chamber interprets aggravating factors and the challenges that lay ahead in the use of aggravating factors is the focus of my article this month. Continue reading →

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May 3, 2013

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Human Rights, International Criminal Court, Jurisdiction, Jurisprudence, Rome Statute

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Extraordinary Rendition and the ICC

Contemporary international practices in fighting crimes and, especially, those related to the exercise of the jurisdiction over a suspected criminal envisage a possibility of implementation of a set of mechanisms used for his search and subsequent committal for a trial which inter alia may include extradition and other interstate procedures.[1] However, these practices show that extradition as a form of international cooperation is referred to by the states more frequently than the others, whereas the procedure of surrender is exercised solely on the basis of the mutual will of the sovereign states concerned subject to the application of the requesting state, consent of the surrendering state and the latter’s compliance with the principle aut dedere aut judicare in cases of committal of serious international crimes by the suspect.[2]

On the other hand, even when the aforementioned application has been made by the requesting state, the surrendering states are sometimes unable to detect the location of the suspect. In such cases states may search for the suspects proprio motu and resort to transnational abduction from the territory of another state. Moreover, these actions are often undertaken notwithstanding the existence of an extradition treaty which provides for the use of regular legal procedures ensuring prosecution or execution of punishment.[3]

In this respect, while such a resort to irregular means of surrender of the fugitive has almost unilaterally been defined by scholars as ‘extraordinary rendition’,[4] there is still a continuous debate on whether a court should exercise its jurisdiction over such a person and what the necessary prerequisites and possible consequences are.[5] This issue has somewhat been pleaded in few domestic and international proceedings across the globe and is enshrined in the famous doctrine male captus bene detentus,[6] which provides for the possibility of the expansion of extraterritorial jurisdiction of the state, abduction of the fugitive and the exercise of the jurisdiction by the court notwithstanding the circumstances of a person’s arrest.

Nonetheless, given the growing number of such instances, yet, little and controversial reflection of the matter in national and international law this dilemma has become even more worrying with the establishment of the International Criminal Court (hereinafter ICC) in 1998, whose Statute does not contain any provisions in respect to the issue at stake.[7]

One should bear in mind that rendition as means of eliminating secure zones for criminals and, in particular, terrorists, should not at the same time undermine international legal order which is based on the principles of state sovereignty and non-interference which prohibit any illegal intrusion in the surrender of the suspect as well as the exercise of forcible actions in the territory of another state without latter’s knowledge and consent. Moreover, when there is a serious violation of the rights of the suspect regardless of whether it occurs due to the actions of states, individuals or international institutions, there arises a legal impediment which may trigger the unwillingness of the judicial body to exercise its jurisdiction for the sake of integrity and stability of international legal order and human rights as its integral part.

Unfortunately, the Rome Statute of the ICC does not contain any provision in respect to extraordinary rendition as such. Arguably, the only applicable provisions concern the legality of arrest of the accused and certain human rights. Article 59(1), for example, imposes an obligation on State Parties to apprehend suspects upon the request from the Court.[8] This, however, is to be done “in accordance with the law of that state,” while according to Article 59(2) the arresting state must also have a “competent judicial authority” determining, “in accordance with the law of that State, that:…(b) the person has been arrested in accordance with the proper process; and (c) the person’s rights have been respected.”[9]

Some scholars argue that the aforementioned Article does not entail the right of the accused to have the lawfulness of his arrest or detention reviewed by a domestic court, nonetheless, bearing in mind that it may follow from human rights conventions to which the requested State is a party.[10] As regards the human rights of the accused, Article 55(1) of the Rome Statute envisages that no one shall be subjected to arbitrary arrest or detention.[11] Article 21(3), in turn, provides that the law shall be interpreted and applied by the Court in a way consistent with internationally recognized human rights.

However, the Rome Statute is silent as to the right of the requested state to decline the surrender on the grounds of an illegal arrest. This, in turn, leads to believe that the obligation of the requested state to surrender the suspect to the ICC is supreme over any national law that might allow the domestic court to decline such a surrender when the suspect has been subjected to illegal arrest or detention. Therefore, it is up to the ICC as to consider the violation of human rights of the suspect, and, as provided by Article 85(1) to arbiter compensation to anyone who has been the victim of an unlawful arrest or detention.[12] However, the Rome Statute and the Rules of Procedure and Evidence do not provide a definite answer to the issue of whether and when the Court should exercise its jurisdiction in cases of extraordinary rendition.

The uncertainty in this respect was about to change on 14 December 2006, when the Appeals Chamber had to reconsider the application lodged by Thomas Lubanga Dyilo.[13] Mr. Dyilo challenged the Court’s ability to exercise jurisdiction over him under Article 19(2) of the Rome Statute before the Pre-Trial chamber. In his application Mr. Dyilo alleged that he had been subjected to mistreatment when he was detained in the Democratic Republic of the Congo prior to his surrender to the ICC which the Prosecutor had been complicit in. He alleged that it constituted the abuse of process and applied for the dismissal of the case.

Referring to Nikolić and Barayagwiza the Pre-Trial Chamber stated that it could potentially dismiss the case as a remedy for abuse of process and on the protection of the fundamental rights of the accused in Article 21(3). However, the Chamber had to decline the application due to the lack of evidence in support of complicity and mistreatment. This has been reconsidered by the Appeals Chamber whose findings varied drastically. The Chamber stated, that the issue was not that of jurisdiction, but rather “a procedural step not envisaged by the Rules of Procedure and Evidence or the Regulations of the Court invoking a power possessed by the Court to remedy breaches of the process in the interests of justice.”[14] Further on, the Chamber reviewed the doctrine of abuse of process and stated that since the concept is not really known to civilian systems, the doctrine “is not generally recognized as an indispensable power of a court of law, an inseverable attribute of judicial power,” and therefore was not among any inherent powers the ICC had.[15] Nonetheless, the Chamber stated that the human rights standards imposed by Article 21(3) imply the Court’s power to stay proceedings if the treatment of the accused interferes with the right to a fair trial.[16] In particular the Court confirmed that there must be a human rights-based remedy available to the accused under Article 21(3) of the Rome Statute, however, declining to characterize it as a “jurisdictional” power.

The aforementioned approach seems balanced and justified. Nevertheless, if the ICC decides to change it, there will certainly be cases where prosecuting universally condemned offences will by itself create threats to international peace and security. Notably, the ICC operates in a highly-charged political atmosphere and even a minor disregard of illegality might provoke a political conflict, which will worsen the situation and damage the legitimacy and credibility of the ICC.[17] Therefore, it is highly advisable that these practices have no future before the Court.

Written by Jan Guardian

[1]      See Aparna Sridhar, The International Criminal Tribunal for the Former Yugoslavia’s Response to the Problem of Transnational Abduction, 42 Stan. J. Int’l L. 343 (2006) [hereinafter Sridhar, ICTY Response], at 343-344.

[2]      Ozlem Ulgen, The ICTY and Irregular Rendition of Suspects, 2 Law & Prac. Int’l Cts. & Tribunals 441 (2003), at 441.

[3]      See e.g., United States v. Alvarez-Machain, 504 U.S. 655 (1992).

[4]      Laura Barnett, Extraordinary Rendition: International Law and the Prohibition of Torture, (rev. July 17, 2008) [online][accessed 1 May 2013].

[5]      Frederick Alexander Mann, Reflections on the Prosecution of Persons Abducted in Breach of International Law, in International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne (Yoram Dinstein ed., 1988), at 414.

[6]      Douglas Kash, Abducting Terrorists Under PDD-39: Much Ado About Nothing New, 13 Am. U. Int’l L. Rev. 139 (1997) [hereinafter Kash, Abducting Terrorists], at 141.

[7]      UN General Assembly, Rome Statute of the International Criminal Court (last amended January 2002), 17 July 1998, A/CONF. 183/9 [hereinafter Rome Statute][online][accessed 1 May 2013].

[8]       Ibid., Article 59(1).

[9]       Ibid., Article 59(2).

[10]        B. Swart, Arrest Proceedings in the Custodial State, in the Rome Statute of the International Criminal Court, Vol. II (A. Cassese, P. Gaeta and J.R.W.D. Jones, eds , 2002), at 1252.

[11]     Rome Statute, supra note 7, Article 55(1).

[12]     S. Zappala, Compensation to an Arrested or Convicted Person, in A. Cassesse, P. Gaeta and J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford-New York: Oxford University Press, 2002) 1577, at 1580.

[13]     Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2) of the Statute of 3 October 2006), Case No. ICC-01/04-01/06 (OA4), 14 December 2006 [online][accessed 1 May 2013].

[14]     Ibid., para. 24.

[15]     Ibid., para. 35.

[16]     Ibid., para. 37.

[17]     John Rosenthal, A Lawless Global Court: How the ICC Undermines the UN System, Policy Review, February – March 2004, at 29.

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April 30, 2013

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International Criminal Court, Jurisprudence, Rome Statute

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Do Not Touch My President

The election of Uhuru Kenyatta and William Ruto as President and Deputy President of Kenya respectively brings again to the foreground the issue of immunity from prosecution. The two are currently suspects of international crimes facing charges at the International Criminal Court. Do they, by virtue of their current status, enjoy any immunity-whether functional or personal-from prosecution by the International Criminal Court? This question, especially in light of the provisions of the Rome Statute, might seem to be obviously in the negative. After all the provisions of Article 27 are patently unambiguous:

“This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government…shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence”
“Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”

One must applaud the attempt by the drafters to ensure that impunity is fought on all fronts. True, criminals should not be allowed to use their positions to hide from the natural consequences of their actions. The echo of this call comes all the way from the Nuremburg Military Tribunal. Indeed even the United Nations General Assembly affirmed the Nuremburg principles by resolution thus:
“(1) any person who commits an act which constitutes a crime under international law is personally responsible and as such is liable to punishment; (2) that the act is not in violation of internal law within the host State does not exempt responsibility for it under international law; (3) the status of the defendant does not exempt him from responsibility under international law; (4) that the act was an order by the government or superior does not exempt it from responsibility under international law; (5) any person charged with a crime in violation of international law has a right to a fair trial; (6) the crimes in violation of international law are crimes against peace, war crimes and crimes against humanity; (7) collaboration in the foregoing crimes is a crime under international law” (i)

The ICC itself has also had occasion to ruminate on the question of the immunity of a serving head of state. In the Bashir case(ii) on an application for warrants of arrest against the current President of Sudan, the court stated that the “current position of Omar Al Bashir as Head of a state which is not a party to the Statute, has no effect on the Court’s jurisdiction over the present case…(since) one of the core goals of the Statute is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole which, must not go unpunished”(iii) . Thus, President Bashir became the first sitting head of state to face criminal charges in an international court.
Whereas the court’s reading of the law in the Bashir decision seems prima facie correct there was a lost opportunity to provide further guidance on an otherwise still grey area. If a head of state is indicted, for example, what privileges is he entitled to during the trial? Surely the individual who is the personification of an independent sovereign state should not have the same treatment as a common criminal. It would make sense, for example, to allow the head of state to forego all but very necessary appearances in court in light of his/her often punishing work schedule and, more importantly, so as to ensure that the lives of the nation are not held in suspense for years as the trial proceeds. It would also seem appropriate to allow the head of state to waive, if s/he chooses, any personal appearances in court so as not to embarrass the state concerned.
I also submit that the supposed removal of the immunity of heads of states is not without exceptions. Article 98 of the Rome statute for example provides as follows:
“1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that
third State for the waiver of the immunity.

2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender”

If therefore, for example, the government of Sudan has a bilateral agreement with say the government of Malaysia where each country agrees not to release the other country’s citizens to the ICC then Bashir’s immunity would prevail whenever he visits Malaysia. A warrant of arrest to all and sundry, such as the one issued by the Bashir court is therefore questionable.
If the immunity of heads of states is taken away then how, pray tell, do we deal with the other treaties that provide protection to them? What of customary international law that provides that heads of states are “untouchable”? The Vienna Convention on Diplomatic Relations 1961 for example, provides that “the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity”(iv) . The rationale for this is simple: the diplomat represents the sending State. The principle of sovereign equality of States would therefore not countenance a situation where the host state arrests or charges the diplomat. Similarly, what applies for the diplomat would apply to the head of state. It would be a legal misnomer for the diplomat to be protected in order to preserve the “purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations”(v) while not affording the same level of protection to the heads of state. If, as has been decided, a host state cannot arrest or charge diplomats or heads of states in the national courts (vi), they should also not be able to arrest them at all (vii). The principle of sovereign equality of states is applicable at all times. Since there is no “international police force” any State that attempts to arrest a sitting head of state would be interfering with a cardinal principle of international law. Evidently therefore “the exercise of jurisdiction of international criminal courts can have serious consequences for the sovereign equality of states and the intercourse of international relations…just like the exercise of jurisdiction by domestic courts over foreign State officials, the ICC’s exercise of jurisdiction in such cases can engender severe repercussions for the fabric of inter-state relations. The exercise of jurisdiction by, the Court will affect, and be affected by, the same considerations of State sovereignty that inform the doctrine of head of state immunity and its application before domestic courts”(viii)

Lastly the practicality of removing the immunity of a sitting head of state is in doubt. Intricate relationships among states cannot allow this. With the knowledge of the repercussions of any attempt to arrest any sitting head of state, nay any senior government official, who, pray tell, would bell the cat?
_________________________________________________________________________(i) General Assembly Resolution, Affirmation of the Principles of International Law Recognized by the Charter of the Nurnberg Tribunal 95(I), 11 December 1946.

(ii) In the Case of the Prosecutor V. Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”)- Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, No. ICC-02/05-01/09

(iii) Ibid para. 41-42

(iv) Article 29

(v) Preamble to the Convention

(vi) Heads of States immunity from the jurisdiction of national jurisdiction has been affirmed by the ICJ in Certain Questions of Mutual Judicial Assistance in Criminal Matters (Djibouti v France). For more see Immunities of State Officials, International Crimes, and Foreign Domestic Courts by Dapo Akande and Sangeeta Shah, EJIL (2010), Vol. 21 No. 4, 815–852- http://www.ejil.org/pdfs/21/4/2115.pdf

(vii) Admittedly, in the case of Prosecutor v Charles Ghankay Taylor, Case Number SCSL-2003-01-I, Decision on Immunity from Jurisdiction, 31 May 2004 the court held that “the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.” But, since Mr Taylor was no longer serving as a head of state at the time, the considerations were different.

(viii) The Survival of Head of State Immunity at the International Criminal Court, Wardle, Phillip, Australian International Law Journal, Vol. 18

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April 27, 2013

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Why India Continues to Stay Out of ICC?

Written by Garima Tiwari

ICC, Author Vincent van Zeijst

 

 

“We can understand the need for the International Criminal Court to step in when confronted by situations such as in former Yugoslavia or Rwanda, where national judicial structures had completely broken down. But the correct response to such exceptional situations is not that all nations must constantly prove the viability of their judicial structures or find these overridden by the ICC.” – Indian delegate said in his official statement delivered at the Diplomatic Conference.[i]

Years after the establishment of International Criminal Court (hereinafter “ICC”) India has no indication of becoming a State Party to the Statute. The establishment of the ICC came out of the need for an independent, permanent criminal court to deal with heinous crimes of international concern. India’s decision to remain out of ICC is not something of an aberrant stand it took. Even when the International Military Tribunal for the Far East was established after the surrender of Japan at the end of Second World War, Dr. Radhabinod Pal, Judge from India gave a Dissenting Judgment .He refused to be bound by the charges brought against the defendants by the Prosecution. Consequently, Justice Pal declared the accused Japanese leaders innocent of all charges. [ii] This dissenting judgment of Justice Radhabinod Pal at the International Military Tribunal for the Far East) is of unique importance in the history of international law as a new interpretation of contemporary (i.e. history of the pre-second World War era) history of international events.[iii] Under the Charters of the Nuremberg and Tokyo Tribunals, radical changes were made in the definitions of international laws. These tribunals made definitions of new offenses and held individuals in power responsible for perpetrating such offenses. Justice Radhabinod Pal from India, however, refused to be carried by such an innovation. Justice R.B. Pal, however, vehemently opposed the changing concepts of international law.  In his judgment, he made a critical and detailed study of the status of international law in the first half of the twentieth century and argued that international law could not be changed by mere ipse dixit (dogmatic pronouncement) of the authors of the Charter in question.[iv]

At the time of the drafting of the Rome Statute, some of the fundamental objections given by Indian delegates in their opposition to the Court relate to the perceived role of the UN Security Council and its referral power. India has therefore, not signed and raitifed the statute. As mentioned by Mr. Lahiri, the principal objections of India to the Rome Statute have been the following:  [v]

  1. 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.
  2. 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.
  3. 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.
  4. Permitted no reservations or opt-out provisions to enable countries to safeguard their interests if placed in the above situation.
  5. Inappropriately vested wide competence and powers to initiate investigations and trigger jurisdiction of the ICC in the hands of an individual prosecutor.
  6. Refused to designate of the use of nuclear weapons and terrorism among crimes within the purview of the ICC, as proposed by India.[vi]

India has ratified Geneva Conventions and has even enacted Geneva Conventions Act 1960, but in practise, India has decided to overlook Common Article 3 in its special enactments, applicability and Supreme Court rulings. Moreover, it is normally and more extensively argued that at no point has the situation in India met the threshold required for the application of Common Article 3. Thus, India has not accepted the application of Common Article 3 of the Geneva Conventions to the situations prevailing in the country.

There are reports on hundreds of mass graves in Kashmir[vii]. Torture, hostage-taking, and rape have all been prominent abuses in the Kashmir conflict. Both security forces and armed militants have used rape as a weapon: to punish, intimidate, coerce, humiliate and degrade, but no we do not meet the threshold of Common Article 3.There is widespread and frequent fighting throughout Kashmir, recourse by the government to its regular armed forces, the organization of insurgents into armed forces with military commanders responsible for the actions of those forces and capable of adhering to laws of war obligations, the military nature of operations conducted on both sides, and the size of the insurgent forces and of the government’s military forces, which makes Common Article 3 is applicable to the conflict in Kashmir[viii]-but still Indian government argues that it does not meet the threshold for application of Common Article 3. This is because India has viewed the conflicts it has been beset with as domestic affairs, if above the ‘law and order’ level but certainly below that of a non-international armed conflict. As we know the definition of Non international armed conflict not having been attempted in Common Article 3, the threshold of its applicability is pitched high by domestic states. Governments are understandably reluctant because of sovereignty considerations to concede belligerency opportunities for the non-state groups who they accuse of posing an armed challenge to the state. [ix]This reluctance is despite Common Article 3 stating that its application ‘shall not affect the legal status of the Parties to the conflict.’[x]

Another example is, Armed Forces (Special Powers) Act, 1958 [xi]( hereinafter ‘AFSPA’), passed when  the Naga movement in the North eastern States for independence had just taken off. AFSPA has just six sections. The most damning are those in the fourth and sixth sections: the former enables security forces to “fire upon or otherwise use force, even to the causing of death” where laws are being violated. The latter says no criminal prosecution will lie against any person who has taken action under this act. While article 3 prohibits killing of innocent civilians in non-international armed conflict, AFSPA under section 4(a) gives wide ranging powers to the armed forces to use force to the extent of causing death on mere suspicion. This has occasioned the application of AFSPA without resorting to the emergency provisions that would then invite its accountability externally. In last 54 years, not a single army, or paramilitary officer or soldier has been prosecuted for murder, rape, destruction of property (including the burning of villages in the 1960s in Nagaland and Mizoram). [xii]There has been regrouping of villages in both places: villagers were forced to leave their homes at gunpoint, throw their belongings onto the back of a truck and move to a common site where they were herded together with strangers and formed new villages. It is a shameful and horrific history, which India knows little about and has cared even less for. [xiii]  There are extrajudicial executions, made emphatically in the north east region, which Government normally remains silent about. Justice Jeevan Reddy committee recommended the repeal of the AFSPA in 2005 but the findings and recommendations are buried as the government has neither taken a call on them nor made them public.[xiv]

Various reports, academic views as well as conferences, have  time and again highlighted the need for India to actually accept the common article 3 in practice. The Judiciary has failed its duty in this context by overlooking ‘judicial guarantees’ as required by the article. [xv]The situation of conflict that persists in Kashmir and the North-East explains the reasons for the state’s anxiety that this manner of violence could be referred to the ICC. Always arguing that the threshold  has not reached, India continuously evades application of Common Article 3. Some help  could have been taken from Additional Protocol II,where a lower threshold in found under Article 1(2) but India has not ratified the same. Even, the inclusion of ‘armed conflict not of an international character’ in defining ‘war crimes’ in Article 8 of the Statute for an ICC met with resistance from the Indian establishment.

There is a mild fear that if India signs Rome statue it would come under the jurisdiction of ICC under Common Article 3 and crimes against humanity during non-international armed conflict. This may be said to be a major reason for staying out of ICC since Articles 7 and 8 of the Rome Statute include such crimes, and no reservations are permitted, except the opt out provision  under Article 124 of the Statute . As Mr. Lahiri notes, “having become Party to so many human rights conventions, which requires India 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.” [xvi] India also looks for an opt-in provision whereby a state could accept the jurisdiction of the ICC by declaration (possibly for a specified period), and this might be limited to particular conduct or to conduct committed during a particular period of time. The lack of such a provision, and the inherent jurisdiction which replaced it, are perceived as representing a violation of the consent of states, and thus a threat to sovereignty. India’s resistance to accepting the inherent jurisdiction of the ICC is explained, in part, by anxieties about how investigation, prosecution and criminal proceedings in the Indian system may be judged by an international court. Further elements giving rise to India’s misgivings are the fear that the Court might be used with political motives, the power conferred on the Prosecutor to initiate investigations proprio motu and the role allotted to the Security Council.[xvii]

Maybe in the future meetings of the ICC Assembly of Parties could well consider, for example, extending the Kampala ‘opt-out’ provisions .  Discussions on inclusion of terrorism and nuclear weapons are already taking place. [xviii]  Prosecution of Indian officers , leaders and army by ICC, is an overstretch and the jurisdiction over India under the UNSC referral process is possible even if India stays out of ICC . [xix] India should immediately ensure substantive and effective participation in ICC deliberative and negotiating bodies which it is entitled to attend as an observer. [xx] Most of the objections and concerns seem to have waned over the years. Moreover, heightened activities on the ICC in India in the past year have generated greater participation and interest from diverse constituencies including parliamentarians, academia, media and various civil society groups.[xxi]

India has been subject to international dispute settlement bodies, such as the Dispute Settlement Body of the World Trade Organization and the International Court of Justice, amongst others. State sovereignty is not compromised merely because a nation-state agrees to subject itself to an international court that can exercise jurisdiction over its officials. [xxii]Several legal provisions found in the Indian Constitution and the criminal laws of India are antecedents to many of the principles found in the Rome Statute – the presumption of innocence, principle of legality, proof of guilt beyond reasonable doubt, fair trial, legal aid and the right to remain silent, amongst others.[xxiii] Thus, India might have seriously misjudged the legal, political and social repercussions of opposing the Rome Statute, and risks further erosion of credibility if it altogether repudiates the Statute, and with it, its sizable practical advantages for protecting the dual interests of its nationals as individuals serving their country abroad, and of its national security.[xxiv]

Till India signs the Rome Statute it must be stated that the standards set by the Rome Statute could be of use in the region regardless of its poor record of ratification. For instance, the Rome standards have been used to promote law reform at the national level in India, as well as to provide redress to victims before national Courts in Sri Lanka. Thus, as mentioned in the ICC Outreach, although the importance of the Court in fighting impunity worldwide is undisputable, the ICC also exists as a tool to strengthen national legal systems and provide redress to victim. [xxv]

 

[i] India and the ICC, Usha Ramanathan, available at http://www.ielrc.org/content/a0505.pdf

[ii] Judgment of Justice Radhabino Pal at the Tokyo War Crimes Trial, 1946-48, A. F. M. Shamsur Rahman available at http://www.asiaticsociety.org.bd/journals/June_2010/contents/04_AFMShamsuRahman.htm

[iii] R. John Pritchard & Sonia M. Zaide (eds.), “The Dissenting Opinion of the Member for India R.B. al” inThe Tokyo War Crimes Trial, (New York & London: Garland, 1981), Vol. I. p. 21

[iv] Supra n.2

[v] Dilip Lahiri, Should India continue to stay out of ICC? (published on 24 November 2010) Available at http://www.orfonline.org/research/should-india-continue-to-stay-out-of-icc/

[vi] Ibid

[vii] http://www.kashmirprocess.org/reports/graves/BuriedEvidenceKashmir.pdf

[viii] India’s Secret Army in Kashmir, New Patterns of Abuse Emerge in the Conflict http://www.hrw.org/reports/1996/India2.htm#P211_52287

[ix] Roderic Alley, “Internal Conflict and the International Community: Wars without end?”, Aldershot: Ashgate Publishing Company, 2004, p 120.

[x] Common Article 3 states: ‘The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

[xi] The Armed Forces (Special Powers) Act  1958 available at http://mha.nic.in/pdfs/armed_forces_special_powers_act1958.pdf

[xii] Sanjoy Hazarika, An Abomination Called AFSPA,Febryary 12, 2013, The Hindu available at http://www.thehindu.com/opinion/lead/an-abomination-called-afspa/article4404804.ece

[xiii] Ibid

[xiv] Sanajaoba, Armed Forces Special Power Act, 1958- A Law for Extra judicial Execution in Perpetuity, at http://openspace.org.in/node/461

[xv] Ibid

[xvi] Supra n. 5

[xvii] Supra n. 1

[xviii] Jane Boulden,Thomas G. Weiss, Terrorism and the UN: Before and After September 11, Indiana University press, (2004) p. 65-66

[xix] Supra n 5 ( refer conclusions)

[xx] http://www.frontline.in/navigation/?type=static&page=flonnet&rdurl=fl1807/18070670.htm; http://www.sikhsangat.com/index.php?/topic/38139-why-india-rejects-the-international-criminal-court/

[xxi] Coalition of International Criminal Court,India, at http://www.iccnow.org/?mod=country&iduct=77

[xxii] Abraham, What Are we Scared of? Available at http://www.boloji.com/index.cfm?md=Content&sd=Articles&ArticleID=5471

[xxiii] Ibid

[xxiv] Rishav Banerjee, Rome Statute and India: An Analysis of India?s Attitude towards the International Criminal Court, Journal of East Asia & International Law › Nbr. 4-2, October 2011

[xxv] The ICC can wait, Justice Cannot , available at http://www.un.int/india/2011/ind1953.pdf