The Bush administration has enlisted India in its campaign against the newly formed International Criminal Court. On December 26th representatives of both governments signed an agreement, which provides that neither country will surrender persons of the other country to any international tribunal without the other country’s express consent. Of all the sixteen countries that have signed such bilateral agreements with the U.S.–most of them under pressure or threat–India is by far the most significant.
“As strong, vibrant democracies both India and the U.S. share concerns about the possible conflict between robust, national judicial processes and international tribunals as also the impact of such tribunals on national sovereignty,” India’s Foreign Office spokesperson said. He added that New Delhi’s concerns related to its army personnel involved in international peacekeeping operations. The U.S. Ambassador said, “We (U.S. and India) are concerned about the International Criminal Court treaty with respect to the inadequacy of checks and balances, the impact of the treaty on national sovereignty, and the potential for conflict with the UN Charter.” While the Bush administration can be credited with consistency–though not principles–in its position on the International Criminal Court, India can claim neither consistency nor principles in this exercise.
The Rome Treaty of July 17, 1998 by which 160 nations decided to establish a permanent International Criminal Court to try individuals for the most serious offences of international concern, such as genocide, war crimes, and crimes against humanity, officially came into force on July 1, 2002. A critical missing link in the international legal system was thus provided. The International Court of Justice at The Hague handles only cases between States, not individuals. Without an international criminal court for dealing with individual responsibility as an enforcement mechanism, acts of genocide and egregious violations of human rights have most often gone unpunished.
At the United Nations Diplomatic Conference, which made the Agreement, the main objections raised by India were not against what was in the agreement but what was left out. The Head of the Indian Delegation had of course raised the question of sovereignty and told the Conference, “the ICC should be based on the principles of complementarity of state sovereignty and non-intervention in the internal affairs of state.” This is well taken care of in the Statutes. According to the Statutes, the International Criminal Court will not supersede but complement national jurisdiction. Under the principle of complementarity, the International Criminal Court will act only when national courts are unable or unwilling to exercise jurisdiction. If a national court is willing and able to exercise jurisdiction, the International Criminal Court cannot intervene and no nationals of that State can be brought before it except in cases referred to it by the United Nations Security Council acting under Chapter VII of the UN Charter. The grounds for admitting a case to the Court are specified in the Statute and the circumstances that govern inability and unwillingness are carefully defined so as to avoid arbitrary decisions. In addition, the accused and interested States, whether or not parties to the Statute, may challenge the jurisdiction of the Court or admissibility of the case. They also have a right to appeal any related decision.
Since India takes such pride in the independence and efficiency of its criminal justice system, it contradicts itself when it states that its own judiciary will not seriously consider evidence of the quality necessary for a successful action before the Court.
The concern about peacekeepers also is unfounded. This issue was not raised by India at the Rome conference. The Court’s Statute provides special protection for peacekeepers by prohibiting intentional attacks against personnel, installations, material units, or vehicles involved in humanitarian assistance or peacekeeping missions. Such violations constitute war crimes and under certain circumstances also crimes against humanity. In addition, the Statute does not affect existing arrangements, for example, with respect to UN peacekeeping missions, since the troop-contributing countries continue to retain criminal jurisdiction over their members of such missions.
In fact India’s main objections at the last stage of the Conference related to the non-inclusion of terrorism and the first use of nuclear weapons in the list of crimes. The Indian delegate described terrorism as “the most condemnable form of international crime.” He said, “It is ironic that the Statute treats offenses such as murder as international crime, but refuses to treat the first use of nuclear weapons as international crimes.”
The definitions of the crimes in the Statute are precisely formulated to reflect existing international law and are crafted to meet the requirements of clarity in criminal justice. The Judges of the Court are required to construe the definitions strictly and are not to extend them by analogy. With regard to terrorism, States could not agree on a definition at the Rome Conference. Nor have they been able to agree on a definition in spite of renewed and vigorous attempts by the UN in the wake of the terrorist attacks of September 11, 2001. The Rome Conference has recommended that the Review Conference consider the inclusion of crimes like terrorism in the Court’s jurisdiction when they are precisely defined.
It is ironic that India, which had tabled an amendment in Rome to include the use of nuclear weapons as a crime, has signed an impunity agreement with the United States, which in its current strategic posture has stated that it will use nuclear weapons in the face of “surprising developments”–even against non-nuclear states.
At the time of voting on the Statutes of the International Criminal Court, the Indian “non-position” puzzled many diplomats, who saw a confusion of thought rather than a principled stance. In sharp contrast to the marshalling of cogent arguments at the end of the negotiations on the Comprehensive Test Ban Treaty, the Indian delegation at Rome appeared to lack conviction and abstained without explanation. On June 16, 1998 one month before the vote, the Indian delegate had told the Conference, “Despite the odds, this is a course worth pursuing for all those committed to the basic objections of establishing a universal international criminal court. My delegation assures you of our support in such an endeavor.”
On 3rd August U.S. President George W. Bush signed into law the American Service Members Protection Act of 2002, which is intended to intimidate countries that ratify the treaty for the ICC. The new law authorizes the use of military force to liberate any American or citizen of a U.S.-allied country being held by the Court, located in The Hague. The provision dubbed the “Hague Invasion Clause” caused a strong reaction from U.S. allies around the world.
The agreement on “impunity,” which shows that India has joined U.S. in its “Hague Invasion,” has to be seen against the Bush doctrine of war fighting and the new strategic alliance between the two countries.
The notion of international impunity is a key concept of the Bush doctrine of war fighting. “Changing the regime of an adversary state” and “occupying foreign territory” are important parts of the Bush doctrine evolved in the context of the War on Terror. Military strategists know full well that imperial conquest and occupation invariably involve crimes against civilians. Washington’s definitive rejection of the jurisdiction of the International Criminal Court over its imperial armies is in essence a license for crimes against humanity. The National Security Strategy of the USA declares, “The U.S. will never subject its citizens to the newly created International Criminal Court–whose jurisdiction does not extend to the Americans.”
India was one of the first countries to declare unequivocal support for the Bush administration’s War on Terror. From that time Washington has been assiduously promoting the Indian government, which is ideologically committed to a militaristic policy, as the most important “strategic partner” in the region. The current leadership in New Delhi has since been dismantling the entire rationale of non-alignment and the edifice of an independent foreign policy, thus subjugating India’s national interests to U.S. war plans.