The author is a retired air marshal of the Indian air force
The coming into force of the International Criminal Court on July 1 this year drew hardly any comment or debate in the Indian media. This is perhaps because the issue is far removed from our other immediate national security and political preoccupations. One can even venture to guess that in 1998 when a government decision not to sign the Rome statute must have been taken, the matter would hardly have evoked public debate.
It was in 1948 that the United Nations general assembly adopted a convention on the prevention and punishment of the crime of genocide. While doing so it “recognized that at all periods of history, genocide has inflicted great losses on humanity and that in order to liberate mankind from such an odious scourge, international co-operation was required”. In furtherance of the convention, it invited the international law commission to study the desirability and possibility of establishing an appropriate international judicial organ. Following a positive response from this commission, the general assembly established a committee to prepare proposals relating to the establishment of an international court. The draft statute submitted by this committee in 1953 then went into cold storage pending definition of the word aggression.
In the intervening years the issue was periodically resurrected. It was however only in 1989, in response to a request from Trinidad and Tobago, that the general assembly asked the international law commission to resume work on an international criminal court with jurisdiction to include drug trafficking. Subsequent conflict in former Yugoslavia involving war crimes, crimes against humanity and genocide in the form of ethnic cleansing, focussed international attention on this subject and added an impetus. In 1994, the international law commission submitted a draft statute to the general assembly, which then instituted the preparatory committee on the establishment of an international criminal court to prepare a draft text for submission to a diplomatic conference. This was completed in 1998.
At its fifty-second session, the general assembly decided to convene the UN diplomatic conference of plenipotentiaries on the establishment of an international criminal court. This was held in Rome during June-July 1998, “to finalize and adopt a convention on the establishment of an international criminal court”. The 1998 Rome statute of the international criminal court to which 139 countries became signatories, finally came into force on July 1 2002 with 77 of the signatory countries having ratified it.
While the United States of America, the United Kingdom, France and Germany are all signatories to the Rome statute, countries like China, Turkey, India, Indonesia, Pakistan and Sri Lanka are not. The UK, France, Canada and Germany, among others, have subsequently ratified the statute, while other signatories, notably the US, Russian Federation, Israel, Iran and Egypt, have yet to express their intent to do so.
Unlike the International Court of Justice which rules on disputes between nations, the ICC, which can try even individuals, will have universal jurisdiction to prosecute genocide, crimes against humanity and war crimes committed anywhere in the world. It will be a court of last resort intervening only when national authorities cannot or will not prosecute and it can only deal with crimes committed after July 1, 2002. Automatic jurisdiction is limited to crimes committed on the territory of a state which has ratified the treaty, or by a citizen of such a state or when the UN security council refers a case to it.
Although it is a signatory, the US has never been happy with the treaty. During initial negotiations it had argued that its military men would become subjects of politically-motivated or frivolous prosecutions to alleviate which various safeguards were introduced. Arguing a case against the treaty, Gary Dempsey, a foreign policy analyst at the Cato Institute, had written: “Specifically, the court threatens to diminish America’s sovereignty, produce arbitrary and highly politicized ‘justice’, and grow into a jurisdictional leviathan. Already some supporters of the proposed court want to give it the authority to prosecute drug trafficking as well as such vague offences as ‘serious threats to the environment’ and ‘committing outrages on personal dignity’. Even if such expansive authority is not given to the ICC initially, the potential for jurisdictional creep is considerable and worrisome. Moreover, it appears that many of the legal safeguards American citizens enjoy under the US Constitution would be suspended if they were brought before the court.” While such reservations have not formally been voiced by the US administration, there is little doubt that similar reservations are shared not by the US alone, but many other nations.
Expectedly, in May this year, the US informed the UN secretary general that it did not intend to become party to the treaty. With the coming into force of the ICC the US also threatened to pull its troops out of the UN force in Bosnia unless they were given immunity from prosecution under its provisions. Consequently, the security council voted on a controversial compromise that gives American troops a 12-month exemption from prosecution — to be renewed annually. Such exceptions hardly contribute to the basic foundations on which the whole concept has been developed. They further add strength to scepticism among those non-believers like India who must feel that in areas of human rights violations, war crimes and allied issues, not only is there a wide schism between developed nations themselves and between developed and developing nations, but different yardsticks are also routinely applied.
While the UK is still supportive of the ICC, recent press reports indicate that there are serious reservations in important quarters. It is reported that the early retirement of Admiral Sir Michael Boyce, the UK chief of defence staff, announced by the defence secretary in July this year had its genesis in serious differences that the CDS had with his government over its policy on the war on terrorism and the ICC, among other issues. With such strong reservations among the armed forces, it is possible that the last word on this has not yet been heard in the UK.
Amongst the wider international community, Jordan is the only Arab state to have joined while the majority of Asian countries are not signatories to the Rome statute. Not unnaturally, commentators have reflected that the ICC may get the imprint of a Western dominated and geographically unrepresentative court, a perception that will surely undermine the lofty ideals of the ICC.
India faces serious internal and external security challenges including terrorism and insurgency within its national borders, much of it externally supported. Not only are our security forces deeply involved, but occasionally they are also made targets of motivated accusations. On the other hand, India has been a significant and regular contributor to international security peacekeeping operations. With such wide exposure, it is vital that we ensure immunity to our service personnel from what was earlier termed as “arbitrary and politicized justice”. India’s keeping out of the ICC would therefore appear well-intentioned and logical.
On an important international issue such as this, one wishes that the government had shared its concerns, reservations and logic with the people of the country and left it for open public debate. Not only would this approach have conveyed our reservations and fears to the international community in a transparent manner, but it would also have been in keeping with the responsibility and dignity of a country that demands its rightful place as a permanent member of the security council.