Historically, India has endeavored to muster international solidarity to codify IHL and was naturally expected to vote for the accession of the Rome Statute but the Indian delegation pointed out some procedural and statutory flaws in the Statute because of which it abstained from voting and has consequently been an observer in subsequent meetings since 1998. Many jurists have argued that if India has its eyes on the permanent membership of UNSC then it ought not to shy away from a positive step in the arena of IHL.
The Indian delegation furthered many reasons to abstain from voting to accede to the Rome Statute. The most important of them being that the ICC was sculpted in a way that it was rendered subordinate to the UNSC wherein the P5 have the power to trigger the jurisdiction of ICC, by virtue of Chapter VII of the UN Charter, against even the Non-State Parties in blatant disregard of the VCLT which prohibits forcing a State to accede to a treaty or to enforce a provision of a treaty they have not accepted. Another major concern was that the distinction between Normative and Customary treaty law which was disturbed by adding to the definition of Crimes against humanity in the Rome Statute and by its application in Internal Armed Conflicts which in essence amounted to forcing non-state parties to acquiesce to provisions of International Treaty which they have not accepted without any opt-out provisions to protect their interests in certain situations. Lastly, the most vocal reasons for not acceding were non-inclusion of terrorism and the use of nuclear weapons as a crime within the jurisdiction of the ICC.
But at the heart of these reasons lies the fear of the prosecution of Indian civilian and military commanders for performing their duties at the behest of various national and international NGOs who have repeatedly alleged blatant human rights violations by the Indian armed personnel in guise of collateral damage during combat with terrorist groups and militia in Jammu and Kashmir, North-East and previously in Punjab which is further escalated in the recent times with various non-state actors speaking vehemently against the A.F.S.P.A. The arrest warrant issued by the ICC against the sitting President of South Africa, Al-Bashir, is an example of this fear. This has led to another dimension of Treaty Interpretation as the States of the African Union respecting Diplomatic Immunity have denied executing the arrest warrant issued by the ICC. The States, having two conflicting obligations decided to respect the Regional Treaty above the International Treaty.
The Americans have been reluctant from embracing the Rome Statute due to the fear of politically motivated persecution of their armed personnel for atrocities perpetrated during unpopular wars in Afghanistan and Iraq et al. But if we look closely, America has repositioned itself from “outright opposition to constructive engagement”.
Shying away from the ICC will limit India’s influence in the evolutionary process of the ICC and thwart the chances of having Indian judges on the bench. Also not embracing the ICC Statute does not protect India from prosecution in-case of Chapter VII referral of the UNSC to the ICC like the Sudanese case.
Further, the P5 nations who have not embraced the ICC Statute (USA, China, and Russia) may not be referred by the UNSC for prosecution given the veto power enjoyed by them or prosecuted at the behest of the Prosecutor for he can only prosecute for such violations on the territory of a State party but in-case either three of them perpetrate crimes within the jurisdiction of the ICC on the territory of state-party then they are susceptible to the jurisdiction of the ICC.
Though the advantageous position of the P5 is evident but it would not cause much prejudice to India in-case it accedes to the Rome Statute. For even if the prosecutor based on reports of various national/international NGO’s deems that there are good grounds for prosecution for the situation in say Jammu and Kashmir, then too the prosecutor will notify India wherein India will have the chance to initiate proceedings in India per the complimentarity principle.
The Rome Statute can be used to national prosecution in-case of non-international armed conflict in India as Indian criminal justice system lacks legislation for the successful prosecution of crimes against humanity, war crimes, and genocide despite the fact that we are a party to the Genocide Convention of 1948. Our Constitution casts a fundamental duty to respect international treaties and obligations vide Art. 51(c) Constitution of India (COI) and empowers the legislature to make law in that effect vide Art. 253 COI. Needless to say the jus cogens obligation to outlaw the genocide and war crimes are binding on India and are deemed to be incorporated in the domestic law.
Though India has no specific law dealing with crimes against humanity, most of the specific acts therein are punishable in India like that of murder, rape, extermination, torture, sexual harassment, enforced disappearance, extermination, etc.
The Indian Dilemma
Though theoretically possible that even though India is not a party to the Rome Statute still, the UNSC may make a referral to trigger the jurisdiction of the ICC but given the diplomatic channels of India this is very unlikely to happen. Similar is the case with India acceding to the Rome Statute since the Prosecutor cannot initiate proceedings as long as India is willing to prosecute those accused in India by virtue of the Principle of Complementarity. Thus the Indian fear of the risk of having their civilian and military commanders prosecuted is overstated. Accordingly, India should at least begin to actively participate in ICC proceedings as an observer and help shape its future, this way we are at least in some control of the future of the ICC.