WAR CRIME - AN ANALYSIS OF INDIA'S STAKE ON ROME STATUTE

The Author of this blog is Mr.  Rounak Doshi, a student of NLIU, Bhopal.

INTRODUCTION

War Crime refers to the violation of laws of war which leads to the rise of individual criminal responsibility;[1] it also includes the failures to adhere to norms of procedure and rules of battle.[2]

Rome The statute is a multilateral treaty which is the founding and governing document of the International Criminal Court (hereinafter ICC). The statute came into force on 1^st July 2002. ICC is an international tribunal that has the jurisdiction to prosecute individuals for War Crimes.^[3] The ICC has jurisdiction only if the crimes are committed on the territory of a State Party.[4] It deals with only those crimes that took place after its establishment.[5] Even citizens of non-member states can also be prosecuted if the UNSC commands ICC to do so.[6]

In the recent times, however, several states have pulled out from the membership of the ICC. It poses some pressing questions regarding the ability of the ICC to fulfill its objectives.

This research work analyses the reasoning of many states behind pulling out of the ICC and a further look at India’s relationship with the ICC and devises the prospects for India to become a state party of this international justice forum.  

WITHDRAWAL OF SIGNATORIES

As of March 2020, 123 countries have ratified the treaty and there are additional 31 countries which have only signed the treaty but have not ratified it.[7]  There are major countries like the USA, Israel, China, Russia and India which are not a party to the treaty. Different reasoning has been given by different countries, some of which are mentioned below.

Russia never ratified the treaty but it had signed the treaty in the beginning. It completely detached itself from ICC in 2016 when it withdrew its intention to become a member of ICC. Russia was accused of war crimes during their military intervention in Syria and this triggered their decision to no longer be part of the court. Russia accused the ICC of being ‘one-sided and inefficient’.[8]

Israel also never ratified the treaty. Reason being that there have been diplomatic problems between Israel and Palestine. Israel never considered Palestine to be a sovereign. When it came to the application of Humanitarian Law in Palestine, ICC intervened which triggered Israel. Israel accused that ICC has been impartial in resolving the issue between Israel and Palestine. It is violating the sovereignty of Israel.[9]

The United States of America initially signed the treaty but withdrew because it realized the absence of jury trials. The USA felt that statute needed reasonable shields against political control. It damages national power by guaranteeing ward over the nationals and military workforce of non-party states in certain conditions.[10] The Heritage Foundation,[11] an American think tank, claimed that United States participation in the ICC treaty regime would also be unconstitutional because it would allow the trial of American citizens for crimes committed on American soil.

China did not ratify the treaty since it was hesitant to make a universal body that could supplant or abrogate the national criminal purview. China was additionally worried about the ICC's jurisdiction over the crime of aggression, which is naturally connected to the job of the United Nations Security Council in discovering whether an act of aggression has been committed by a state.[12]

INDIA AND ICC

India has constantly participated in the codification of international criminal law and was expected to be a supporter of such worldwide collaboration to discourage heinous crimes of international concern through the ICC. In this case, India not exclusively didn't endorse the treaty yet additionally decided to keep away from the vote on the Statutes and has been a quiet spectator in the Conferences of Parties and other ICC gatherings since 1998.

During the conference for Rome Statute in 1998, India proposed to include the use of nuclear weapons as an ICC crime through a procedural no action resolution[13], but the Rome Conference evaded the vote on this Indian proposal.

Indian delegates and jurists have regularly mentioned India’s reasoning behind not ratifying the treaty. Major objections that India has been as follows:

·         Rome Statute made ICC subordinate to the UNSC, and thus in effect to its permanent members, by providing it the power to refer cases to the ICC and the power to block ICC proceedings. India alleged that excessive power has been given to UNSC.

·         By exercising its jurisdiction over non-member states, the Rome statute violates the fundamental principle established in the Vienna Convention on 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.

·         India also alleged that the Rome Statute inappropriately vested wide competence and powers in the hands of an individual prosecutor by giving him/her the power to initiate investigations and trigger the jurisdiction of the ICC. 

·         India strenuously opposed the Rome Statute’s refusal of India’s proposal to designate the use of nuclear weapons and terrorism among crimes within the purview of the ICC.

·         India has not accepted Common Article 3 of the Geneva Conventions which relate to war crimes during conflicts not of an international character, the reason being that India has a lot of internal conflicts in The northern part of its territory and it does not want to an international body to intervene in that. If India ratifies the treaty, ICC could intervene in that the matter which would cause trouble to the nation and could lead to India’s condemnation at the international platform. So, India was dreadful that ICC might use its jurisdiction in the internal matters of India which are long untouched especially in the matters of Jammu & Kashmir and North-eastern states affected by the Imposition of Armed force (special powers) act, 1958 (AFSPA).

India’s stand at present is not to become a signatory of Rome Statute. Nevertheless, there are multiple advantages to India if it joins this international forum. Some of the advantages and reasons are listed below:

·         After the conclusion of the Review Conference of the Rome Statutes in Kampala, Uganda in June 2010, an ‘opt-out’ provision has been added, permitting State Parties to be exempted from the exercise of jurisdiction by the Court concerning the new crime of aggression.

·         ICC’s jurisdiction is founded on the principle of complementarity, with absolute priority on the exercise of national jurisdiction. The principles of complementarity give that the ICC can't take up a case on the off chance that it is as of now being examined by the concerned State except if the State is plainly reluctant or unfit to do the examination or arraignment. So as long as Indian diplomatic and legal machinery is alert, ICC cannot intervene in Indian matters thus it prevents the ICC from breaching India’s sovereignty without its permission. Also, it makes direct ICC prosecution of Indian officials virtually impossible to conceive.

·         Although the ICC Prosecutor has been given exceptional forces to utilize his jurisdiction over the member states yet India's choice to stay as a non-signatory doesn't imply that Indian nationals can altogether get away from the ICC's compass. The UN Security Council has been given the authority under the ICC Statutes to bring non-members of ICC under its jurisdiction.

CONCLUSION AND SUGGESTIONS

The ICC is there to remain as an undeniably central organization in the universal legal architecture to battle gigantic human rights infringement which could influence harmony and security. Avoiding ICC for an uncertain period will barely improve India's ethical notoriety and worldwide profile with its general record on the human rights issue.

India’s tactic of not joining the ICC so that the international organization does not intervene in its matters is futile as UNSC could still make the ICC exercise its jurisdiction over India. Also, India’s reasoning behind avoiding the intervention of ICC in its Kashmir issue shows the failure of Indian Democracy in controlling the situation of Kashmir Valley from the past 70 years. India should refrain itself from hiding its lack of success in Kashmir Valley. There is a need for some international organizations to interfere and stop the serious violations of human rights in Kashmir and restore peace in the Valley.  Ratifying the treaty would reflect bravery and honesty on the part of the Indian Government towards promoting the principles of Humanitarian Law.

Also, if India joins ICC then it will be beneficial for it as it could then propose changes in the Rome Statute as a member state which would be a more influential and powerful tactic. Even for the problem of the UNSC as being the depository, India can appeal with the world majority to lessen the powers given in the hands of the UNSC and its permanent members. India can also appeal for the inclusion of Terrorism and the use of nuclear weapons in the ICC’s purview. It would be beneficial from the aspect of availability of Human Rights in India and thus overall an advantageous step for India to join ICC.  

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[1] David M. Crowe, War Crimes, Genocide, and Justice: A Global History (2013).

[2] id.

[3] Rome Statute of the International Criminal Court, Part 2 (2002), 2187 U.N.T.S. 90.

[4] Rome Statute of the International Criminal Court, Art. 4 (2002), 2187 U.N.T.S. 90.

[5] Rome Statute of the International Criminal Court, Art. 11(1) (2002), 2187 U.N.T.S. 90.

[6] Fact Sheet: The International Criminal Court, U.S. Department of State Office of War Crimes Issues (2002).

[7] United Nations, Rome Statute of the International Criminal Court, United Nations Treaty Collectio (May 16 2020), https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_10&chapter=18&clang=_en.

[8] BBC News, Russia withdraws from International Criminal Court treaty, World: Europe (November 16, 2016), https://www.bbc.com/news/world-europe-38005282.

[9] BBC News, Will ICC membership help or hinder the Palestinians' cause?, World: Middle East (April 1, 2015),

 https://www.bbc.com/news/world-middle-east-30744701.

[10] Q&A: The International Criminal Court and the United States, Human Rights Watch (March 23, 2020),

https://www.hrw.org/news/2020/03/23/qa-international-criminal-court-and-united-states.

[11] Lee A. Casey and David B. Rivkin, Jr., The ICC vs. The American People, The Heritage Foundation (February 5, 1999), https://www.heritage.org/report/the-international-criminal-court-vs-the-american-people.

[12] Dan Zhu, China, The International Criminal Court, And Global Governance, Australian Outlook (January 10 2020), http://www.internationalaffairs.org.au/australianoutlook/china-the-international-criminal-court-and-global-governance/.

[13] A no-action motion is a procedure that prevents member states at the UN from even debating a particular resolution and the resolution is passed impliedly.