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WAR CRIME - AN ANALYSIS OF INDIA'S STAKE ON ROME STATUTE
INTRODUCTION
War Crime refers to the violation of laws of war which leads to the rise of individual criminal
responsibility;i it also includes the failures to adhere to norms of procedure and rules of
battle.ii The rules of war, also known as the Law of Armed Conflict, license combatants to
participate in the battle. War Crimes occur when some pointless injury or superfluous attack is
dispensed upon an adversary.iii
According to the United Nations Office on Genocide Prevention and the Responsibility to
protect,iv
“War crimes are those violations of international humanitarian law (treaty or customary
law), in the context of an armed conflict, that incurs individual criminal responsibility
under international law”
Rome Statute is a multilateral treaty which is the founding and governing document of the
International Criminal Court (hereinafter ICC). The statute was adopted at a conference in
Rome in the year 1998 and came into force on 1st July 2002. ICC is an international tribunal
that has the jurisdiction to prosecute individuals for the international crimes of genocide,
crimes against humanity, War Crimes and crime of aggression.v The ICC has jurisdiction
jurisdiction only if the crimes are committed on the territory of a State Party;vi if they were
committed by a citizen of a State Party; if the crimes were referred to the Prosecutor by the
UN Security Council.vii It deals with only those crimes that took place after its
establishment.viii It was established in 2002 through the Rome Statute and is located at Hague,
Netherlands. Even citizens of non-member states can also be prosecuted if the UNSC
commands ICC to do so.ix
In the recent times, however, several states have pulled out from the membership of the ICC.
It poses some pressing questions regarding the ability of the ICC to fulfill its objectives.
This research work analyses the reasoning of many states behind pulling out of the ICC and
further, looks at India’s relationship with the ICC and devises the prospects for India to
become a state party of this international justice forum.
WITHDRAWAL OF SIGNATORIES
As of March 2020, 123 countries have ratified the treaty and there are additional 31 countries
which have only signed the treaty but have not ratified it.x There are major countries like the
USA, Israel, China, Russia and India which are not a party to the treaty. Different reasoning
has been given by different countries, some of which are mentioned below.
Russia never ratified the treaty but it had signed the treaty in the beginning. It completely
detached itself from ICC in 2016 when it withdrew its intention to become a member of ICC.
Russia was accused of war crimes during their military intervention in Syria and this triggered
their decision to no longer be part of the court. Russia accused the ICC of being ‘one-sided
and inefficient’.xi
Israel also never ratified the treaty. Reason being that there have been diplomatic problems
between Israel and Palestine. Israel never considered Palestine to be a sovereign. When it
came to the application of Humanitarian Law in Palestine, ICC intervened which triggered
Israel. Israel accused that ICC has been impartial in resolving the issue between Israel and
Palestine. It is violating the sovereignty of Israel.xii Thus Israel decided not to become a party
to the Rome Statute.
The United States of America initially signed the treaty but withdrew because it realized the
absence of jury trials; and allegations of no right to a speedy trial. The USA felt that statute
needed reasonable shields against political control. It damages national power by
guaranteeing ward over the nationals and military work force of non-party states in certain
conditions.xiii The Heritage Foundation,xiv an American think tank, claimed that United States
participation in the ICC treaty regime would also be unconstitutional because it would allow
the trial of American citizens for crimes committed on American soil.
China did not ratify the treaty since it was hesitant to make a universal body that could
supplant or abrogate the national criminal purview. China was additionally worried about the
ICC's jurisdiction over the crime of aggression, which is naturally connected to the job of the
United Nations Security Council in discovering whether an act of aggression has been
committed by a state.xv
INDIA AND ICC
India has constantly upheld universal participation for the development and codification of
international criminal law and ought to have been required to be a characteristic supporter of
such worldwide collaboration to smother and discourage terrible wrongdoings and heinous
crimes of international concern through the ICC. In this case, India not exclusively didn't
endorse the treaty yet additionally decided to keep away from the vote on the Statutes and has
been a quiet spectator in the Conferences of Parties and other ICC gatherings since 1998.
During the conference for Rome Statute in 1998, India ardently argued against the form that
the ICC was taking under the proposed Statutes. While every country was putting its proposal
before the conference, India proposed to include the use of nuclear weapons as an ICC crime
through a procedural no action resolutionxvi, but the Rome Conference evaded the vote on this
Indian proposal.
Indian delegates and jurists have regularly mentioned India’s reasoning behind not ratifying
the treaty. Major objections that India has are as follows:
Rome Statute made ICC subordinate to the UNSC, and thus in effect to its permanent
members, by providing it the power to refer cases to the ICC and the power to block
ICC proceedings. India alleged that excessive power has been given to UNSC to bind
non-states parties to the ICC.
By exercising its jurisdiction over non-member states, rome statute violates the
fundamental principle established in the Vienna Convention on Law of Treaties that
no state can be forced to accede to a treaty or be bound by the provisions of a treaty it
has not accepted.
India also alleged that the Rome Statute inappropriately vested wide competence and
powers in the hands of an individual prosecutor by giving him/her the power to
initiate investigations and trigger the jurisdiction of the ICC.
India strenuously opposed the Rome Statute’s refusal of India’s proposal to designate
the use of nuclear weapons and terrorism among crimes within the purview of the
ICC.
India has not accepted Common Article 3 of the Geneva Conventions which relate to
war crimes during conflicts not of an international character, the reason being that
India has a lot of internal conflicts in the Northern part of its territory and it does not
want to an international body to intervene in that. If India ratifies the treaty, ICC could
intervene in that matter which would cause trouble to the nation and could lead to
India’s condemnation at the international platform. So, India was dreadful that ICC
might use its jurisdiction in the internal matters of India which are long untouched
especially in the matters of Jammu & Kashmir and North-eastern states affected by
the Imposition of Armed force (special powers) act, 1958 (AFSPA).
India’s stand at present is not to become a signatory of Rome Statute. But Indian delegates
must take the option of becoming a member into cognizance. There are multiple advantages
to India if it joins this international forum. Some of the advantages and reasons are listed
below:
After the conclusion of the Review Conference of the Rome Statutes in Kampala,
Uganda in June 2010, an ‘opt-out’ provision has been added, permitting State Parties
to be exempted from the exercise of jurisdiction by the Court concerning the new
crime of aggression.
ICC’s jurisdiction is founded on the principle of complementarity, with absolute
priority on the exercise of national jurisdiction. The principles of complementarity
gives that the ICC can't take up a case on the off chance that it is as of now being
examined by the concerned State except if the State is plainly reluctant or unfit to do
the examination or arraignment. So as long as Indian diplomatic and legal machinery
is alert, ICC cannot intervene in Indian matters thus it prevents the ICC from
breaching India’s sovereignty without its permission. Also, it makes direct ICC
prosecution of Indian officials virtually impossible to conceive.
Although the ICC Prosecutor has been given exceptional forces to utilize his
jurisdiction over the member states yet India's choice to stay as a non-signatory
doesn't imply that Indian nationals can altogether get away from the ICC's compass.
The UN Security Council has been given the authority under the ICC Statutes to bring
non-members of ICC under its jurisdiction. Hence, avoiding the ICC, in this way,
doesn't forestall indictment by the ICC.
CONCLUSION AND SUGGESTIONS
The ICC is there to remain as an undeniably central organization in the universal legal
architecture to battle gigantic human rights infringement which could influence harmony and
security. Avoiding ICC for an uncertain period will barely improve India's ethical notoriety
and worldwide profile with its general record on the human rights issue.
India’s tactic of not joining the ICC so that the international organization does not intervene
in its matters is futile as UNSC could still make the ICC exercise its jurisdiction over India.
Also, India’s reasoning behind avoiding the intervention of ICC in its Kashmir issue shows
the failure of Indian Democracy in controlling the situation of Kashmir Valley from past 70
years. India should refrain itself from hiding its lack of success in Kashmir Valley. There is a
need for some international organization to interfere and stop the serious violations of human
rights in Kashmir and restore the peace in the Valley. Ratifying the treaty would reflect
bravery and honesty on the part of Indian Government towards promoting the principles of
Humanitarian Law.
Also, if India joins ICC then it will be beneficial for it as it could then propose changes in the
Rome Statute as a member state which would be a more influential and powerful tactic. Even
for the problem of the UNSC as being the depository, India can appeal with the world
majority to lessen the powers given in the hands of the UNSC and its permanent members.
India can also appeal for the inclusion of Terrorism and the use of nuclear weapons in the
ICC’s purview. It would be beneficial from the aspect of availability of Human Rights in
India and thus overall an advantageous step for India to join ICC.
i David M. Crowe, War Crimes, Genocide, and Justice: A Global History (2013).
ii ibid.
iii Gerry Simpson, Law, War and Crime: War Crimes, Trials and the Reinvention of International Law (2007).
iv United Nations, ‘War Crimes’ (United Nations Office on Genocide Prevention and the Responsibility to Protect)
<https;//www.un.o rg/en/genocideprevention/war-crimes.shtml> accessed 2 May 2020.
v Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS
90 (Rome Statute) part 2.
vi Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS
90 (Rome Statute) art 4.
vii Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS
90 (Rome Statute) art 13.
viii Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187
UNTS 90 (Rome Statute) art 11(1).
ix Fact Sheet: The International Criminal Court, U.S. Department of State Office of War Crimes Issues (6 May 2002)
x United Nations, ‘Rome Statute of the International Criminal Court’ (United Nations Treaty Collection, 16 May 2020)
<https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_10&chapter=18&clang=_en> accessed 17 May
2020.
xi BBC News, ‘Russia withdraws from International Criminal Court treaty’ (World: Europe, 16 November 2016)
<https://www.bbc.com/news/world-europe-38005282> accessed 14 May 2020.
xii BBC News, ‘Will ICC membership help or hinder the Palestinians' cause?’ (World: Middle East, 1 April 2015)
<https://www.bbc.com/news/world-middle-east-30744701> accessed 12 May 2020.
xiii ‘Q&A: The International Criminal Court and the United States’ (Human Rights Watch, 23 March 2020)
<https://www.hrw.org/news/2020/03/23/qa-international-criminal-court-and-united-states> accessed 16 May 2020.
xiv Lee A. Casey and David B. Rivkin, Jr., ‘The ICC vs. The American People’ (The Heritage Foundation, 5
February 1999) <https://www.heritage.org/report/the-international-criminal-court-vs-the-american-people> accessed 14
May 2020.
xv Dan Zhu, ‘China, The International Criminal Court, And Global Governance’ (Australian Outlook, 10 January 2020)
<http://www.internationalaffairs.org.au/australianoutlook/china-the-international-criminal-court-and-global-
governance/> accessed 8 May 2020.
xvi A no-action motion is a procedure that prevents member states at the UN from even debating a particular resolution
and the resolution is passed impliedly.