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India, The International Criminal Court, And Al-Bashir – Analysis

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By Anirudh Menon*

India’s stance on the International Criminal Court (ICC) has once again come to fore given that New Delhi is set to host Sudanese President Omar al-Bashir during the India Africa Summit from 26-29 October 2015, despite al-Bashir being declared a ‘war criminal’ by the ICC, which has issued two warrants for his arrest.

ICC in Context

The ICC is an independent international court with 123 member states, and is not part of the UN system. Unlike ad hoc tribunals, the ICC does not have primacy over national courts and will only step in to assert its jurisdiction if the State is unable or unwilling to investigate and prosecute crimes. But over a decade and billions of dollars since, the Chief Prosecutor of the ICC has brought only 23 cases involving nine situations – all of which concern African countries. Of these, only one has reached its natural conclusion.

Additionally, India, China, the US, and several other countries are not signatories to the 2002 Rome Statute of the International Criminal Court. This undermines the Court’s assertions of being a permanent criminal court with an international mandate. Moreover, the ICC’s sluggish legal proceedings and the Africa bias have sparked debates on the Court’s relevance and necessity.

India and the ICC

In al-Bashar’s case, section two under the related UNSC Resolution 1593 makes its non-obligatory for non-signatories of the ICC to comply with this resolution. India is not a signatory to the Rome Statute yet because it believes that the ICC threatens its sovereignty. New Delhi’s primary reasons for opposition are: the extraordinary privileges given to the UNSC to make referrals to the Court; the exclusion of cross-border terrorism from the ICC’s ambit; the refusal to enlist the use of nuclear weapons; and the power to initiate cases on his/her own volition given to the ICC Chief Prosecutor.

India is particularly conscious of the vulnerability of its troops defending its borders as well as its peacekeepers on UN missions, as they are susceptible to possible allegations of human rights violations. There have been regular reports of mass graves unearthed in Kashmir, and instances of extra-judicial killings in Northeast India. This explains India’s reluctance and hostility towards signing the Rome Statute to some extent.

Some of these reservations have been publicly addressed by the ICC, but India continues to not participate in discussions involving the Court. According to Ninan Koshy, a foreign policy commentator, the US, compelled India to campaign against the ICC in 2002, in exchange for being recognised as a “strategic partner” in Asia.

Furthermore, he indicates that India’s stance on the ICC was heavily influenced by the US’ passing of the American Service Members’ Protection Act, into law, in August 2002, as a broader supplement to the “war on terror.” This law authorises the US to use military force to liberate its citizens and allies held by the ICC.

Although incumbent US President Barack Obama’s has comparatively warm views towards the ICC, he has refused to repeal this obsolete law; and by doing so, has restricted the ability of the US’ allies such as India, to support the ICC.

India prides itself in having a comprehensive legal system and has frequently dismissed international scrutiny on national matters. However, the Indian Penal Code (IPC) does not explicitly include crimes such as genocide, torture, forced sterilisation, and extra-judicial killings. The IPC also does not recognise the distinction between mass crimes and crimes committed by individuals – making the investigation and prosecution process difficult. India can seek the expertise and support of the ICC towards strengthening its own legal system in this regard.

Simultaneously, India’s opposition to the extraordinary privileges granted to the UNSC is justifiable, given how the US, China and Russia – three of the five permanent members with veto powers – have not ratified the Rome Statute. This discrepancy makes the ICC vulnerable to political interference as these countries have great leverage over who is investigated, and more importantly, on who is not investigated. These nations have the powers to begin proceedings against individuals from other countries, while having ensured that their own citizens enjoy immunity. Additionally, these nations can protect their allies, as was seen when China and Russia vetoed multiple UN resolutions to refer Syrian President Bashar al-Assad to the ICC.

New Delhi has largely remained silent on matters of international justice and the functioning of the ICC, and it is unlikely that India under Prime Minister Narendra Modi will change its stance. However, the Court’s pro-activeness has begun a real debate on anti-impunity efforts in India, where the civil society and the legal fraternity are critically re-examining the criminal justice system.

The Way Forward

The ICC suffers from various structural weaknesses. It cannot prosecute crimes committed before 2002 and does not have the authority to make arrests. To garner international support in order to avoid an atrophy of court, it is crucial that the ICC be open to suggestions from non-members like India.

Even if India is reluctant to become a member, it should start participating in discourses on international criminal justice. India has already submitted itself to various dispute settlement bodies such as the World Trade Organisation and the International Court of Justice. Therefore, taking membership of the ICC will not compromise its sovereignty and instead will only strengthen its national legal system.

*Anirudh Menon
Risk Consulting Executive, KPMG

Views expressed are the author’s own and do not necessarily reflect those of the organisation/s he is affiliated to.


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IPCS

IPCS

IPCS (Institute for Peace and Conflict Studies) conducts independent research on conventional and non-conventional security issues in the region and shares its findings with policy makers and the public. It provides a forum for discussion with the strategic community on strategic issues and strives to explore alternatives. Moreover, it works towards building capacity among young scholars for greater refinement of their analyses of South Asian security.

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