Issue 28 Vol II, November 30, 2006

L A W  &  J U S T I C E

International Criminal Court, Sill Born

International criminal justice system has mostly weighed in the favour of the powerful. More recently the United States, not even a signatory to the U N convention for International Court of Justice has circumvented the will of the U.N and violated the real spirit for an international criminal justice system by either choosing to use it to punish former president of Yugoslavia or by not taking the case of former president of Iraq to the International Court. Senior lawyer and commentator Joginder Singh Toor traces the history discusses the merits of the system.

International Criminal Court was conceived after the assassination of Yugoslav king while on a visit at Marseilles in France in 1934. League of Nations and France decided to formulate two treaties in 1937; one on international terrorism and the other on international criminal court. These followed the 1928 Paris Treaty, outlawing war (which laid to the creation of the Nuremberg Tribunal). The treaty was not accepted by many nations and the concept of International Criminal Court could not materialize.

The atrocities on Jews committed by Nazis during 1930s, and during Second World War led to the creation of Nuremberg and Tokyo Tribunals, the later having been created by a whip of General Mc Arthur. It had an American bias. All accused were not tried because several amnesties had been given by Mc Arthur and those tried suffered stringent punishments. There was relentless worldwide criticism of the Tribunals. In Tokyo Trial Justice, Radha Vinod Paul, an Indian dissented and later published a significant 1200 page book “Crime in International Relations”.

The questions raised by Justice Paul and the developments in International law during the post war period gave rise to a demand for a permanent criminal court rather than ad hoc tribunals, created for the purpose by winning powers aimed at punishing the vanquished, with tilled mechanism and biased benches.

U.N. General Assembly’s adoption of a Declaration of Human Rights and the Genocide Convention, accepting in principle the need to punish the culprits of Genocide whether committed during war or during peace, with no amnesties whatsoever to any person may be an ex-king or ex-head of the Stat, strengthened the demand for a court of universal jurisdiction with an independent infrastructure.

The international law Commission ILC submitted its draft to the U.N. in 1994. The preparatory Committee submitted the finalized text for discussion and adoption in the Rome Conference in July, 1998. 120 countries adopted the treaty creating an International Criminal Court. Seven voted against it and 21 absented.  U.S.A. voted against it. India absented. The treaty after 60 ratifications came into force on April 11, 2002. The ICC with its headquarter at Hague has the jurisdiction to try cases involving i) Genocide ii) crime against humanity, iii) war crimes  iv) crime of aggression. As there could not be unanimity among nations on the definition of aggression so crime of aggression is not justice able for want of definition, presumably aggressor countries not agreeing.

The jurisdiction of the ICC can be invoked i) on the inability of a member country to try the crime, ii) unjustified delay in initiating criminal proceedings iii) the state shielding a person and causing unjustified delay in deciding the case.

The proceedings can’t be initiated directly by an aggrieved person. The complaint by an individual or a group of persons, or by the Member State itself has to go to the prosecutor appointed for the purpose under the provisions of the statute. The Prosecutor after investigation can move the ICC for trial. The proceedings in the court largely depend on the co-operation of the State to which the culprits belong, in facilitating the investigation, production of witness, and carrying out orders of the ICC.  Death penalty can not be awarded in any case, even if the Member State has not abolished death penalty.

The treaty has been ratified and adopted by 104 countries up to Nov., 2006.  India has not adopted as it does not contain an opt-in provision whereby a State could accept the jurisdiction of the ICC by declaration possibly for a specific period and the provisions as these can be a threat to sovereignty of India. It also stated the International Court cannot judge the adequacies of the Indian justice delivery system so as to invoke its own jurisdiction and inclusion of an armed conflict in the ICC jurisdiction can be interference in the internal affairs of India particularly in view of Jammu and Kashmir  and north  east. Also, Powers given to prosecutor and interference of Security Council in the affairs of ICC can for political reasons presently prevailing in the world to embarrass India.

Otherwise, Delhi riots of 1984 and Gujarat carnage are clear examples for invoking ICC jurisdiction for delaying criminal proceedings and for shielding the culprits.

U.S.A. said no at the  1998 Rome Conference.  Later on under public pressure President Bill Clinton signed the Rome statute on December 31, 2000.  After the Bush administration entered office on May 6, 2002 President George W. Bush nullified the Clinton signatures and not only under took a policy of active opposition to ICC but also persuaded other countries to sign a Bilateral Immunity Agreement (BIA) excluding its citizen and military personnel, U.S. employees including contractors and former Govt. officials from the jurisdiction of the court, what ever crime they might have committed.  101 countries reportedly signed such agreements and countries resisting signing such agreements are subjected to arm twisting by the U.S.A. by sanctions and economic penalties. Besides this 53 countries have publicly refused to sign BIAs, on the plea that the BIAs are against U.N. Conventions and against international law. The U.S.A. in order to legalise it, passed the “The American Service Members Protection Act” making U.S. support to ICC contingent on achieving impunity for U.S. personnel and even authorizing the U.S. President to “use any means necessary” to free U.S. citizens and allies from ICC custody in the Hague.

The Act is known as ‘Hague Invasion Act”.

The U.S. control on world politics because of unipolarity and India’s abstention from Rome Conference are instances of use of excessive power on the one side and non assertive, passive and evading policy of India a cause of concern of the world on one hand and of Indians on the other.

[jogindersingh_toor@yahoo.com  Mobile No.98151-33530 ]

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