Rome Statute and India: An Analysis of India?s Attitude towards the International Criminal Court

Author:Rishav Banerjee
Position:Fifth Year Student at Gujarat National Law University. B.A./LL.B. (Hons. Gujarat Nat?l Law Univ.)
Pages:457-476
SUMMARY

The International Criminal Court is the first permanent world judicial institution with nearly universal jurisdiction to try individuals accused of war crimes, crimes against humanity, genocide and possible aggression. Curiously, India voted against the Court’s founding instrument, the Rome Statute. The Indian Government has chosen to adopt a‘non-position’on the most important step taken towards... (see full summary)

 
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Rome Statute and India:
An Analysis of Indias
Attitude towards the
International Criminal
Court
Rishav Banerjee
The International Criminal Court is the first permanent world judicial institution
with nearly universal jurisdiction to try individuals accused of war crimes, crimes
against humanity, genocide and possible aggression. Curiously, India voted against
the Courts founding instrument, the Rome Statute. The Indian Government has
chosen to adopt anon-positionon the most important step taken towards
establishing genuine accountability for unthinkable atrocities, which reflects a deep
seated confusion of thought rather than a principled stance. Even worse, the stated
position of the Government has been to find common ground between Indian and
Americanapprehensionsof
possible conflict between robust, national judicial
processes and international tribunals as also the impact of such tribunals on national
sovereignty.
Against this background, this paper presents a critical review of the
Indian position on the ICC, considering familiar accusations and criticisms directed
against it. It also explores policy options available to the government in tackling core
international crimes and finally underlines the need for reforms in the national
criminal justice system. It is the thesis of this paper that India has seriously
misjudged the legal, political and social repercussions of opposing the Rome Statute,
and risks a further erosion of credibility if it altogether repudiates the Statute, and
with it, its sizable practical advantages for protecting the dual interests of its
nationals as individuals serving their country abroad, and of its national security.
These points are not based on sentimental devotion to a vague and ill-defined
KFBJM3)3122* SpnfTubuvuf'Joejb 457
* Fifth Year Student at Gujarat National Law University. B.A./LL.B. (Hons. Gujarat Natl Law Univ.) The author may
be contacted at rishavban@gmail.com/Address: Students Hostel, GNLU, Gandhinagar Sector-24, Gujarat, INDIA.
The author would like to thank Mr. Bimal N. Patel, Director, Gujarat National Law University for his constant
support and encouragement for this research.
internationalism, but on a pragmatic analysis of the interplay between the ICC and
customary international law.
Keywords
ICC, Jurisdiction, State Sovereignty, Security Council, International
Crimes.
I believe an International Criminal Court is very much to be desired.Harold Pinter
1
I. Introduction
In human history, thousand of wars have been fought and millions of lives and limbs
have been lost. This inevitably has been punctuated by many egregious instances of
crimes against humanityfor which few or no individuals have been held accountable.
At the end of the twentieth century the international community finally summoned its
will to establish a permanent international criminal court. In 1998, determined to put an
end to impunity for the perpetrators of atrocities and to prevent grave international
crimes, a diplomatic conference in Rome adopted the Statute of the International
Criminal Court (ICC).
2
The Rome Statute was approved by an overwhelming
majority vote.
3
The ICC Statute has received the sixty ratifications necessary for its entry
into force.
4
The new Statute promises to impact universal jurisdiction in particular and
the enforcement of international criminal law in general. While it is too soon to assess
the ICCs impact on the latter,
5
we could recognize at the outset that the ICC and
universal jurisdiction pursue similar goals. Both systems grant jurisdiction, albeit to a
different extent, over offenses such as: war crimes, crimes against humanity, and
genocide. Further, they attempt to punish crimes that domestic courts would otherwise
be unable to prosecute under ordinary heads of jurisdiction. This overlap raises
458 S/Cbofskff
1
See
Brainy Quote,
available at
http://www.brainyquote.com/quotes/quotes/h/haroldpint366865.html (last visited on
July 4, 2010).
2U.N. Doc. A/CONF.183/9 (1998), reprinted in 37 I.L.M. 999 (1998) (hereinafter Rome Statute).
3120 participants in the Rome Conference voted in favor of the Rome Statute and 7 voted against it. 21 states
abstained.
See
U.N. Press Release, U.N. Diplomatic Conference Concludes in Rome with Decision to Establish
Permanent International Criminal Court, July 17, 1998 (L/ROM/22),
available at
http://www.un.org/icc/pressrel/
lrom22.htm (last visited on July 4, 2010).
4Rome Statute art. 126.1.
5Antonio Cassese,
The Statute of the International Criminal Court: Some Preliminary Reflections
, 10 E
UR
. J. I
NT
L
L.
144-145 (1999).

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