Powerful countries like India must sign up to the International Criminal Court if it is to continue its fight against impunity for mass crimes

On July 17, 1998, the Rome Statute for establishing a permanent International Criminal Court (ICC) was adopted: 120 countries voted it in, the United States, Iraq, China, Israel, Qatar, Yemen and Libya voted against, and 21 countries abstained, India among them. It was a dramatic moment, when governments spanning continents and political cultures acknowledged that the criminal laws of states were not bringing the perpetrators of mass crimes to justice. The word “impunity” had acquired a significance that was no longer possible to ignore. Where states are “unable or unwilling” to investigate and prosecute perpetrators of mass crimes, the ICC could step in, breaching the structures of impunity that had set in over the years. The Court would try individuals and not states.

On July 1, 2002, the Statute came into force. By now, 122 countries have signed and ratified the Rome Statute, testimony to the anxiety over the escalation and pervasiveness of large-scale atrocities across the world. Thirty-one countries have signed up but not yet ratified it. Of these, the U.S., Israel and Sudan have withdrawn as signatories to the Statute — a process not known to international law — intending to communicate that they will not be moving towards its adoption, and may even now act in ways contrary to its “object and purpose.”

India’s stance

The ICC challenges impunity. It is striking that when the issue of impunity was raised in discussions on the Rome Statute in India during 1997-98, there were very few who were acquainted with the term. Half-a-decade later, the word had entered common parlance. The events in Gujarat helped. When discussions were held with civil liberties groups, there was little interest in the ICC which was, in 1997, seen as irrelevant for India; in 2002, this changed.

India has been hostile to the idea of internationalising criminal justice and is not a party to the ICC. What’s more, in December 2002, India inked a Bilateral Immunity Agreement with the U.S. — which has signed over a 100 such agreements to nullify the ICC’s impact as far as U.S. personnel are concerned — with an eagerness that was embarrassing. The stodgy silence that India has maintained on the role and functioning of international criminal tribunals investigating mass crimes in Rwanda and Yugoslavia, and the cases before the ICC itself, belies the Indian claim for a permanent seat on the Security Council.

The Indian position, that India does not need the ICC because it is perfectly capable of dealing with mass crimes, is misleading. The ICC only steps in when the state does not act, or acts in ways that shield perpetrators. In line with its founding principle of “complementarity” between national courts and international tribunals, the ICC defers to the former’s role in the domestic criminal justice system. But the responsibility for developing criminal jurisprudence in relation to mass crimes rests with the ICC, and the role of the states parties, the prosecutor, the judges and the states that cooperate with the court is not negligible; India has abdicated this space altogether.

Specific

When the Rome Statute was adopted in 1998, it defined and detailed three crimes — genocide, crimes against humanity, and war crimes. The specific crimes, reflecting historical precedent, include murder, enslavement, extermination, torture, enforced disappearances, the crime of apartheid, persecution against any identifiable group or collectivity on grounds including political, national, religion and gender, rape, sexual slavery, enforced prostitution, forced pregnancy and forced sterilisation when they are “committed as part of a widespread or systematic attack.” The importance of not allowing impunity to become the practice of states when such crimes occur needs no debate.

Most cases from Africa

A fourth, the crime of “aggression,” was listed in the Statute, but was defined only later, in June 2010. It is the “use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations.” Planning, preparation, initiation or execution by a person in a leadership position of an act of aggression falls within this category. These represent strides in international accountability for the crime of aggression, but where it is committed by citizens belonging to, or in the territory of, a state that is not a party to the Statute, there can be no prosecution — even if the victims of this crime belong to a state that is a state party to the Rome Statute. So, U.S. nationals cannot be tried, even if they are apprehended outside the U.S., because the U.S. is not a state party.

Right from the start, getting powerful nations on board the ICC’s mandate was a matter of concern, and that concern has not vanished. It is also asked, with more than a dash of irony, whether this is an international court of justice for Africa. The cases currently before the court are from Uganda, the Democratic Republic of Congo, the Central African Republic, Darfur in Sudan, Kenya, Libya, Cote d’Ivoire and Mali. The fact, however, is that Africa has been at the forefront of establishing the court, and has a demonstrable interest in working through an international court. There are complexities, for sure: two prominent Kenyan politicians, Uhuru Kenyatta and William Ruto who face crimes against humanity charges before the ICC for their role in the 2007-2008 post-election violence, joined hands as coalition allies in the 2013 election, winning the polls to become, respectively, the President and Deputy President of Kenya. Protecting witnesses, especially, is proving a problem. But that is not unique to international tribunals, and does little to diminish the relevance of the court.

Large-scale violence has become endemic around the world, and in many instances, criminal justice systems seem to fail victims.

Standing testimony to this sobering fact are 30 truth commissions in countries as varied as Argentina, Nigeria, Morocco, Chad, Nepal, Indonesia, Sri Lanka, South Korea and Uruguay; two international criminal tribunals set up by the U.N. Security Council for erstwhile Yugoslavia and Rwanda, and a national criminal tribunal to deal with mass crimes in times of transition, as in Bangladesh.

The ICC’s relevance is heightened in this context. As it slowly gathers both history and jurisprudence, this much can be said: that the cover has been blown on impunity. Equality before the law remains a dream for many, but given that the ICC itself seemed an impossibility when the Rome Statute was adopted 15 years ago, there is no telling what may happen next.

(Usha Ramanathan is an independent law researcher. She was a non-governmental delegate at the Preparatory Commission and the Diplomatic Conference on the Rome Statute in 1997-98.)

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