1 the origin of the International Criminal Court The origin of the International Criminal Court (ICC) date back to the world war II, when international military tribunals were established (Nuremberg and Tokyo). Their competences were limited to war crimes, but their contribution had been fundamental to the extension of the crimes treated to crimes against humanity and peace.
The first attempt to form an International Criminal Court has been in the 1950s, but the concomitance with the Cold War made the effort unattainable.The idea revived in the 1990s thanks to the initiative of the ONU and General Assembly to draft a statute for the ICC. During the draft of the statute, the international community established two ad hoc tribunals for crimes in the former Yugoslavia and Rwanda, underlying the increasing need for a permanent international criminal court. On 17 July 1998, an International Criminal Court was finally born. 120 states adopted its statute, whereas 7 voted against it (21 abstained). The Statute legally came into force on 1 July 2002, and the ICC can only prosecute crimes committed after that date. 1.
2 India and the International Criminal CourtIndian government claims that is always been engaged in the promotion and protection of human rights at the international level. Its concern in the matter has a confirmation in the active participation of India to the progressive development of the criminal law since 1948, with the aim of eradicating the most brutal crimes committed by the humankind. In spite of its presumed commitment in the fight against any violation of human right, India consistently opposed the court. Together with United States, China and Russia, it is one of the critical States that have not joined the International Criminal Court.India supports the ICC as institution and actively participated to the conference on the establishment of the International Criminal Court in Rome (1998). During the debate, India showed a proactive spirit and interest in achieving a common position that could suit all the States involved and thus could give a durable basis for the development of such international cooperation.
The basic principles that guided India’s participation in the discussions on the establishment of the Court were, as mister Dilip Lahiri said, “the sovereign equality of States, non discrimination and non interference in the internal affairs”.However, India strongly objects some crucial points of its statute: 1. Broad definition adopted of crimes against humanity: It is a shared view of States that crimes should be well defined in the statue of ICC. India laments that there is a generally accepted definition of genocide, but not a clear one for crimes against humanity.
If specific contents of crimes do not reflect the acceptance by States, this could be counterproductive and might constitute a threat. 2. The role of the Security Council:According to India the powers given to the Security Council (to refer cases, delay investigations and bind non-states parties), are too broad. Actually Indian Government believes that any role of the Security Council before the ICC will results in legal and political implication, which will in turn undermine the “impartiality and interdependence of a judicial institution, said Lahiri, such as the International Criminal Court, which should be respected fully”. Furthermore the role of the ICC is tightly to prosecute and punish international crimes, and not to preserve the peace among States, nor security.
Thus there is no reason for the Security Council to interfere with ICC, on the contrary “any preeminent role for the Security Council in triggering ICC jurisdiction constitute a violation of sovereign equality”. 3. The refusal to introduce nuclear weapons or other weapons of mass destruction: Many States asked during the debate on the establishment of the ICC to include terrorism and drug trafficking in the list of crimes persecuted by the court, but States finally couldn’t agree on a definition, and the crimes were not listed.India particularly lobbied to add nuclear weapons and other weapons of mass destruction as war crime, but without success. This especially outraged Indian delegation that expressed its concern out loud toward the words of mister Lahiri: “the Statute of the ICC lays down, by clear implication, that the use of weapons of mass destruction is not a war crime. This is an extraordinary message to send to the international community”. 4. The complementarity principleIn the ICC statute national jurisdictions are the first entitled in investigating and prosecuting over every crimes, including those listed in the ICC statute (thus those one under the jurisdiction of the court).
Indian concerns rise because even if the ICC is presented as complementary to national jurisdictions, this is not totally exact. In fact the statute say that the ICC can take over a trial whenever States are “unwilling or genuinely unable to prosecute”, but “the power to decide the unwillingness or inability of a state has been laid at the door of the ICC”. 5.The inclusion of non-international conflicts India is concerned that the inclusion of ‘armed conflict not of an international character’ in defining ‘war crimes’ in Article 8 of the ICC statute could include some of the conflicts going on in the area of India, as the one in Kashmir, or in Punjab, or the violence in Gujarat, could be referred to the ICC. 6. The power of prosecutor to initiate prosecutions Indian government found inappropriate to give the competence of initiating a prosecution to an individual prosecutor, which usually is a prerogative of States, and let him investigate suo moto. The distinction between the sovereign authority of the States on one hand, said mister Lahiri, and the professional role of a prosecutor on the other hand should be maintained clearly”.
In his vision is exclusive “responsibility of a professional prosecutor to gather evidence and conduct impartial investigations, once he has been authorized to do so, and to conduct the prosecution”. India would have might accepted to join the International Criminal court if it had included an opt-in provision that allow a State to accept the jurisdiction of the ICC for a particular conduct or to conduct committed during a particular period of time.Instead the current jurisdiction is perceived as a violation of the principle of sovereignty of States.
Another concern that prevented India to join is a merely internal question: how an international court may judge investigation, prosecution and criminal proceedings in the Indian system. For example, even if India signed the convention on torture in the 1997, they didn’t ratify it until 2010. Ratifying the convention is the only way to enforce the law and make appropriate changes happening.
Until present, local governments allowed the police use of torture and in most cases, the police are involved thanks to the complicity of the state. Corruption is a widely spread problem that affects India towards the all governmental decision-making chain (India is ranked 72nd out of 91 countries in the Corruption Perception Index, 2001, prepared by Transparency International (TI)). This is not only an internal problem that affects the quality of governance, but it also constitutes a threaten to the international trust and belief in the Indian government and its institution.India’s experience with corruption has shown that laws, rules, regulations, procedures and methods of transaction of government business, however sound and excellent they are, cannot by themselves ensure effective and transparent administration if the political and administrative leadership that is entrusted with their enforcement fails to do so and abuses its powers for personal gain. These are those kind of “dirty clothes” that a State want to wash internally, and definitely doesn’t want to respond in front of an International court.
Finally another problem could be constituted by the death penalty.India still has the death penalty for serious crimes (even if is rarely applied), while the International Criminal Court doesn’t include it in its statute. The absence of the death penalty might have influenced the decision of India to stay out of the statute, but there is no literature about it. Statement by Mr. Dilip Lahiri, Additional Secretary (UN) on June 16,1998, in the Conference on the International Criminal Court, Rome   Statute of ICC  usa Ramanathan, Frontline, August 14 1998  Sunil Sondhi, 2000