A Lost Opportunity For "Civilization": India Shuns International Court
by Tara Ashtakala
A milestone in the history of human civilization was passed on the 1st of July this year, when the International Criminal Court (ICC) came into being. Yet one of the oldest and greatest civilizations in the world, India, was nowhere to be seen associated with this momentous occasion.
For a culture that proudly notes the thirst of the West for its philosophy of non-violence, for a country whose leaders constantly reaffirm its commitment to democracy for each of its one billion citizens and for a nation whose entrepreneurs, high-tech experts and nuclear scientists seek to make it a beacon in development, India's absence from participation, let alone leadership, in this most significant contribution of the international community towards the rights and dignity of human beings, is glaring.
The International Criminal Court will be the world's first permanent judicial body to prosecute persons responsible for the most egregious violations of human behaviour, namely: genocide, crimes against humanity and atrocities committed during war. In the past 50 years alone, more than 86 million civilians have died from these offences (1).
In spite of international human rights and humanitarian law treaties forbidding these acts, very few of the perpetrators have been brought to justice. This climate of impunity has only encouraged more people and countries to disregard the rule of international law. The genocides carried out in the Balkans and in Africa during the 1990s convinced the international community of the need to extend the laws of war beyond their traditional field of application (that is, nation-states and the violent disputes between them), to the investigation of war crimes committed in civil conflicts and the prosecution of the leaders, officials, army officers, soldiers or civilians responsible for them.
While the resulting International Criminal Tribunals for the former Yugoslavia and for Rwanda have marked a valuable step in seeking justice for the victims of crimes against humanity, their jurisdiction is limited to the times and places of those particular conflicts. The new International Criminal Court, which has the authority to prosecute any grave breach committed anywhere, overcomes this problem and many of the other weaknesses of the ad hoc tribunals and, due to its permanence, will serve as a more effective deterrent to future crimes.
When the negotiations for drafting the treaty for the Court took place in Rome in 1998 (hereinafter referred to as "the Rome Statute"), the Indian delegation started out by highlighting India's:
"deeply engrained civilisational values and commitment to pluralism and democracy based on rule of law and respect for human rights" (2).
However, the subsequent positions it took at the Conference and thereafter contradict that claim.
India joined many other countries in arguing that the Court should not supercede the authority of national governments in being able to try their own citizens. Indeed, the negotiations for the Court would not even have begun without the parties agreeing on the primacy of the principle of complementarity, that is, the ICC will only prosecute a suspected crime if the courts of the country, whose citizens are involved or where the act took place, are genuinely unable or unwilling to do so.
Even though individuals in some places might receive better treatment at the hands of an international court than in their own countries, the proponents of the Court felt that it should demonstrate respect for sovereign nations with an established legal tradition. It was widely accepted that India could be included among the Western legal systems in being expected to mete out fair justice, through its own courts, to any Indian who committed grievous crimes against humanity.
What concerned India in particular was the provision in the Rome Statute allowing the independent Prosecutor of the Court to act on his/her own initiative to launch an investigation or prosecution; the Indian Government feared that charges brought against Indians by some countries could be politically motivated.
However, there are more than adequate safeguards written into the Statute to protect against such bias: for example, a panel of three judges must give approval to the Prosecutor to proceed with such an investigation; these justices, like all the 15 others that will sit on the Court, will be independent, elected by the majority vote of the countries that have formally adhered to the ICC; and finally, any case brought by the Prosecutor can be directed only against the nationals of a country that has signed the Rome Statute, which India finally chose not to do.
In voicing this argument, India has allied itself, intentionally or not, with the Court's strongest opponent - the United States. From the beginning, the US has earned the ire of most of its allies, including Canada, in using every means at its disposal to ensure that no American will ever face justice before an international tribunal for war crimes; Jesse Helms and his fellow Senators have even gone so far as to draft an Act that would allow US armed forces to actually invade the headquarters of the Court in The Netherlands in order to "rescue" any American national being tried there (3).
Such resistance to the principled and rule-based scrutiny that the International Criminal Court stands for suggests that countries thus opposing the Court actually expect that they will have something to fear, ie that their own citizens are inclined to commit war crimes. As the fourth-largest contributor of troops to United Nations peacekeeping operations (4), India is sending the wrong message to the world.
India also stated that the International Criminal Court must not intervene in the internal affairs of States, thereby putting itself in the company of countries that have highly-criticized human rights records, like Israel, China and Pakistan. Such a position casts a shadow of doubt on the Indian Army's actions in Kashmir; if Indian soldiers, as the Vajpayee government has vehemently defended, are not committing war crimes in the Valley, then India should have nothing to worry about in being asked by the ICC to try an accused before India's own courts, with all their procedural guarantees of fairness.
By taking this stance, India is suggesting that crimes committed during a conflict within the borders of a nation are somehow lesser offences than those perpetrated in the course of war among other countries. The Court was conceived with the very purpose of prosecuting only the very worst acts of inhumanity that are repugnant to all "civilized" nations, including: killing members of a national, ethnic, racial or religious group, deportation of a civilian population from its occupied territory, torture, sexual violence (whether committed against a group during peacetime or against an individual during war) and attacks against peacekeeping or humanitarian personnel; human beings who commit such extreme crimes should therefore be called to account regardless of who or where they are.
While citing its respect for human rights and its contributions to the development of international criminal law since Independence, India paradoxically called for the Statute's definitions of crimes and rules of procedure to subscribe to as low a threshold as possible, in order to attract the participation of the majority of States. As a member of the organization Human Rights Watch commented on the Indian delegation's speech,
"We also hope that many states sign and ratify this treaty. But the price of wide participation should not be the quality of the Court. It's more important to have a good court, than to have a bad court with a lot of signatures on it" (5).
The argument on which India assumed leadership for the developing world concerned the role that the UN Security Council will play in the Court. The Council, which includes the five permanent members, namely: Britain, the United States, France, Russia and China, will be able to refer a situation to the ICC when it determines, under its traditional mandate in Chapter VII of the UN Charter, that any crime (as defined in the Rome Statute) committed by any person in any country represents a threat to or breach of the international community's peace and security.
At the Rome negotiations, India and many of the non-Council nations opposed the US proposal that all proceedings before the Court must first be approved by the Security Council; the fact that it would take only one veto by one member of the Permanent Five to block an ICC proceeding, would have defeated the whole purpose in creating the Court, and India vigorously opposed this potential denial of justice. A compromise was eventually reached in Article 16 of the Statute, that allows the Council to request a 12-month suspension of a trial before the ICC if it constitutes a threat to peace and security; a veto by one of the permanent members, then, would enable the Court to proceed on a case.
India raised a valid point in criticizing this further concentration of power in the hands of the exclusive clique of nuclear nations. The intended independence of the Court is surely compromised when a political body "gets to be the complainant, the policeman, the judge and the jury all rolled into one" (6). Fears of selective justice have already been validated, given the numerous resolutions by the other countries of the UN, calling for investigation of human rights and humanitarian abuses, that have been vetoed by permanent members with a personal interest or involvement in the situation.
In spite of the ICC, then, the sufferings of Palestinians, Tibetans, Chechens or Iraqis will therefore likely continue to be rated on a lower scale than those of other crimes against humanity. Furthermore, the fact that Court will only apply to offences committed after the date of its creation, that is, 1 July 2002, is another example of how the post-World War II international order seems to have forgotten the crimes of the colonial powers. Thus, the ICC will not be able to bring genuine justice and recognition, even posthumously, to the victims of General Dyer in Jalianwalla Bagh. The system is not perfect and some very big criminals may get way with murder.
However, a world that has over millenia learned helplessness in the face of abuses by the powerful, has to start somewhere to begin to change its mindset. When a culture of accountability slowly begins to replace a culture of impunity in the minds of ordinary citizens, there is a greater likelihood that one day, humanity will be fair enough to apply justice to the crimes committed by even the strongest armies.
The present wave of financial scandals in the US demonstrates that once one mighty entity is brought down, even the multinational American corporations which everyone thought were invincible, then the other equally powerful criminals start to fall, one after another . Once the public sees a bully put in his place, they gather the courage to demand that all the other bullies be brought down to size.
Many of the former colonies, which had suffered equally heinous atrocities at the hands of their imperial masters chose to give such hope the benefit of the doubt, and signed the Rome Statute anyway. India thus looked alone and isolated in its chastisement of crimes of the past. But what really and legitimately irked India about the Security Council exercising its influence over yet another international institution probably had more to do with what it saw as another attempt to maintain the post-Cold War power structure which so vehemently denied India access to the nuclear club.
If the impression came across that India merely resented not being counted among the big boys, its actions on the other hand suggested a genuine desire for nothing more than basic respect, given that the Indian delegation stood out in its objection to the failure of the Rome Statute to list the use of nuclear weapons as a war crime.
In the end, then, for at least one very valid reason, India decided not to sign the Rome Statute and to exclude itself from this history-making exercise in international cooperation. As per the principles of international law and out of basic respect for other States that have decided to abide by the ICC treaty, India should have limited its opposition to the Court to this non-participation.
Instead, India took the further step of supporting the Court's strongest opponent, the United States, in yet another flagrant display of the latter's disregard for international law (note that the US has repeatedly crippled recent attempts by the rest of the world at making the planet a kinder, gentler place, refusing to join, for example, the Kyoto Protocol to reduce industrial gas emissions, which contribute to global warming; the Convention to regulate deadly Biological Weapons; and the Treaty to ban the use, in war, of land mines, which kill and maim civilians long after conflict has ended).
President Bush had earlier this year already taken the uncommon step of retracting the signature that his predecessor Bill Clinton had put on the Rome Statute. Then, in June, just two weeks before the coming into force of the ICC, the Americans used their veto power at the Security Council, the very power that India criticized at the Rome Statute negotiations in 1998, to block the renewal of the UN peacekeeping mission to Bosnia-Herzegovina. The reason for this measure was not any criticism of the UNMIBH and NATO-led SFOR missions itself, but to use them as a bargaining chip for extorting immunity for US peacekeepers from charges of war crimes by any international tribunal.
International law experts at the United Nations berated this attempt to confer the right on the Security Council to amend by interpretation a treaty that was agreed upon in open discussion by over 100 countries. The European Union, the Latin American nations and a number of other States reacted with stringent criticism of the Bush administration's attempt to hold the stability of Bosnia and other countries, which have clearly benefitted from the Blue Berets' presence, to Washington's ideological opposition to the ICC. Even Canada, the United States' most devoted ally and trading partner, took the extraordinary step of publicly and vehemently condemning its friend and neighbour. The one country that saw no shame in crossing the floor and taking the side of the USA was India (7).
The contradictory positions and unexpected alliances taken by India during the entire ICC process suggest that it, like the US, seeks to undermine the Court, not because it wants to genuinely protect peacekeeping as a principle, nor because it raises important jurisdictional questions of international law, nor because the ICC looks like a tool of Western neo-colonialism; rather, India has presented itself to the rest of the world as opposing the whole concept of an international court of law simply because it does not want to be restrained by any external limitations on its actions.
Just like Washington, the Vajpayee government has painted India's "war against terrorism" in terms of a battle of justice versus injustice. Yet, rather than embrace a widely-supported effort by the international community to build a global system of legal cooperation in investigating, capturing, prosecuting and imprisoning international criminals, including those labelled terrorists, New Delhi has chosen to support the emasculation of such an institution.
Shahrukh Khan recently brought to life the story of a king who, at the height of military success, chose to lay down rules limiting the conduct of war to ensure civilized treatment for all those affected by it; the day that the land of Ashoka decides that universal rules for humane behaviour apply only to others, is a sad one indeed in the history of Indian "civilization".
NOTES:
1 FAQ on the International Criminal Court, World Federalists of Canada, http://www.worldfederalistscanada.org/.
2 Statement by Mr. Dilip Lahiri, Additional Secretary of the Government of India to the United Nations, 16 June 1998, http://www.indianembassy.org/policy.
3 American Servicemembers' Protection Act, Amendment to H.R.1646, offered by T. Delay of Texas, at .
http://www.house.gov/rules/delay_003.pdf. Update: President Bush signed the ASPA into law on 2 August, 2002.
4 UN Department of Peacekeeping Operations, data as of 30 June 2002, http://www.un.org/Depts/dpko/dpko/contributors/june02.htm.
5 "HRW Disappointed at India's Position on International Court", Human Rights Watch, Media Release, 17 June 1998, at http://www.hrw.org.
6 Statement by Anil Nauriya, Supreme Court lawyer and commentator on International Law, in "RIGHTS-ICC: Wary India Plans Clause-by-Clause Support", World News, June 1998, on www.oneworld.org.
7 A "compromise" was eventually agreed upon by the Security Council, which invoked Article 16 to direct the ICC to grant the US, India and other countries who are not party to the Rome Statute, a one-year grace period from prosecutions. The resolution also expresses the Council's intention to renew the suspension in one year. Canada called the deal an "abuse of power", which abrogates the original intent of the drafters of the Rome Statute. Update: Although they have this one-year reprieve, the Americans are taking no chances, and are busy putting pressure on other countries to sign bilateral agreements with it promising never to extradite to the ICC any American arrested for war crimes on their soil; so far, Israel and Romania have made such deals.
