Discourse: Jurisdictional Issues of the ICC and India's International Law Obligations
- Part 1 -

Aheibam Koireng *

Discourse: Jurisdictional Issues of the ICC and India's International Law Obligations on 30th October, 2014

Proceedings of the Interactive Discourse on
Jurisdictional Issues of the ICC and India's International Law Obligations:
An Appraisal with Prof. RC Borpatra Gohain, Dean and Head, Dept. of Law, GU;
Presided by Prof. N. Joykumar, Director, CMS, MU;
organized jointly by the Advanced Legal ForumManipur (ALFM) & Center for Manipur Studies (CMS), Manipur University (MU), Canchipur,
on Thursday, the 30th October, 2014 at 1.30 p.m.;
at the Venue of New Social Science Bloc II, Manipur University
with Dr. N. Vijaylakshmi Brara, Asoc. Prof., CMS, MU & Dr. Homen Thangjam, Assistant Prof., Pol. Sc. Dept., Mharaja Bodhchandra College as Observers. Dr. Aheibam Koireng, Assistant Prof., CMS, MU, delivered the welcome address followed with a presentation by the main speaker.

The text of the Lecture delivered by the main speaker is hereby reproduced as follows:

Jurisdictional Issues of International Criminal Court and India's International Law Obligations : An Appraisal
Professor Dr. R. C. Borpatragohain
Dept of Law, Gauhati University.

Background:

The 21st century marks the beginning of the international perception of conferring on an individual, a status as subject of international law, in the domain of ever developing human rights. The global commitment of the present century moves towards fixing accountability and individual criminal responsibility upon those persons, irrespective of their disposition, who commit serious international crimes. (Prof .N. Sanajaoba, in his article on ICC and individual criminal responsibility in 21st century–select Article on international Humanitarian Laws, 2003. p1). Heinous international crime are committed by these persons in different capacities-as rulers, as army chief, as ordinary soldiers and also as guerilla-leaders of non-state entities. Due to absence of suitable legal instrumental mechanism, in the present day international legal order, it becomes difficult to fix individual criminal responsibility, upon such wrong doers and to make them accountable for those crimes against humanity.

The humanity element of human society, right from its inception, has been demanding, in perpetuity, for a suitably established and workable legal/moral mechanism to contain the heinous crimes against humanity, inflecting appropriate punishment to the guilty persons. It has a long evolutionary history, covering many centuries. In the middle of the last century, Nuremberg and Tokyo Tribunals Trials, though temporary and set up for specific purposes, opened a new vista fro formulation and consolidation of principles and rules of war crimes. It encouraged the United Nations and International Committee of Red Cross to launch appropriate initiatives to bring about codification of war crimes and the respective trials.

On December 11, 1946, the General Assembly of the United Nations adopted the resolution No 95(I) affirming "the principles of International Law recognized by the Charters of Nuremberg Tribunal …………." as forming a part of International law. The Convention on Prevention and Punishment of the Crimes of Genocide, 1948 - commonly known as Genocide Convention, re-enforced the jurisprudence of international individual criminal responsibility. In 1950, the International Law Commission formulated certain principles which paved the way for the formulation of the international law on crimes fixing individual criminal responsibility.

In 1990's, the principles of individual criminal responsibility has been developed through the significant contribution made by the two ad-hoc Tribunals for prosecution of individual criminals in the former Yugoslavia and in Rwanda, established by the UN Security Council.

These two tribunals-ICTY and ICTR, were having concurrent jurisdiction with the national municipal courts in trying serious violations of International Humanitarian Law committed in the respective nation states; but these were not of universal nature.

On July 17, 1998, with initiative of UN, the Rome Treaty for the establishment of a permanent International Criminal Court, has been adopted and after getting the minimum required number of rectification by member States, the court has been established at Hague in Netherland.

Jurisdictions of ICC:

The International Criminal Court is established with a view to fixing individual criminal responsibility and to prosecute, try and impose sentence for committing heinous international crimes. However, it does not exclude the state responsibility. In the sphere of deterrence to international crimes and enforcement of international rules of criminal law, the ICC is second epoch-making breakthrough at dawn of 21st century.

Under the Rome Statute, the ICC has a rather "modest, residual, treaty- based jurisdiction to try and punish individual."

The ICC has a limited jurisdiction confined to the most serious crimes of heinous nature such as genocide, war crimes, crime against humanity and aggression (yet to be unanimously defined). The compulsory and universal jurisdiction of the ICC as proposed in the German draft has been diluted in hammering out a via media on the subject of jurisdiction.

The jurisdiction of the ICC was the main focus and it gave rise to disputes and became the center of the profound controversies, throughout the process of creation of the court. The debate over the jurisdiction was mainly due to the fact that the traditional international legal system, the international jurisdiction, whether it be administrative, judicial or legislative, has always been created through voluntary relinquishment of portion of domestic jurisdiction by the sovereign state which are involved therein.

There are five components in the jurisdiction of ICC which are: 1. Subject matter jurisdiction; 2. Temporal jurisdiction; 3. Personal jurisdiction; 4 Territorial jurisdiction; and 5. Complementary jurisdiction,

Discourse: Jurisdictional Issues of the ICC and India's International Law Obligations on 30th October, 2014

1. Subject matter jurisdiction or ratione materiae

Rome statute declares that the jurisdiction ratione materiae of the ICC confined to four core international crimes – genocide, crime against humanity, war crimes and aggression (not unanimously defined as yet). There are proposals for bringing terrorism and drug trafficking within the scope of the ICC. The crime of aggression will become a crime, triable by the ICC once its definition has been voted into the statute. There must be a definition which shall have to be consistent with relevant provisions of the Charter of the United Nations, which enables the ICC to exercise its jurisdiction. The attempt made by the Indian representative to Rome Conference, proposing for inclusion of 1st use of nuclear weapons in the jurisdiction of ICC, failed for no support.

Genocide:
The Rome Statute defines the crime of genocide as any of the acts committed with the intent to destroy, in whole or in part, a national, ethical, and racial or religious group, as such. The United Nations declared the crime of genocide as an international crime which is punishable under international law. The Convention on Genocide, 1948, reflects on customary international law or jus cogens.

Crime against humanity:
The crimes against humanity are the most heinous crimes among the crimes defined in the Rome Statute of ICC. Crimes against humanity are committed both during war time and in peace time. The Statute defines the crimes against humanity to mean any of the acts when committed as a part of a widespread or systematic attack directed against any civilian population with knowledge of the attack.

The Rome Statute has remarkably expanded the definition of the crimes against humanity to include certain crimes specifically against women which were earlier out of the purview of the definition. The crimes against women have been acknowledged as crimes against humanity.

War Crimes:
In respect of war crimes in particular, the ICC shall have jurisdiction, when such crimes are committed as a part of a plan or policy or as part of large scale commission of such crimes. War crimes for the purpose of the Rome Statute, means primary serious violation of the laws and customs applicable in international armed conflict, within the established frame work of international law.

2. Temporal jurisdiction or jurisdiction ratione temporis of the ICC

The Rome Statute came into force with effect from 1st July, 2002. The Statute will not apply retroactively, so far as jurisdiction ratione temporis of the ICC is concerned. Unlike that of ICTY or ICTR, which had temporary jurisdiction over the crimes committed in former Yugoslavia since 1991 and Rwanda from January 1 to December 31, 1994, the ICC is a permanent and independent criminal court.

The ICC may exercise jurisdiction only with respect to crimes committed after coming into being of the Statute, in a member state, which becomes a party to the Rome Statute, after 1st July, 2002. A non-member state may also, by declaration lodged to the Registrar, accept the exercise of jurisdiction by the ICC with respect to the crime in question.

A State, on becoming a party to the Statute, may declare that it does not accept the jurisdiction of the court with respect to the category of crimes referred to in Article-8, for a period of 7 years after the entry into force of the Statute, for the State concern, when a crime is alleged to have been committed by its nationals, or on its territory. Such a declaration may, at any time, be withdrawn. The provisions for declaration under this Article shall be reviewed at the Review Conference convened in accordance with the provisions of the Statute.

3. Personal Jurisdiction:

As per the provisions of Rome Statute, Personal jurisdiction or rationae personae jurisdiction refers to court's power over a particular defendant (in personam jurisdiction) or an item of property (in rem) or in limited cases quasi in rem. However, in case of quasi in rem jurisdiction the court has the power to determine whether particular individuals own specific property within the court's control. In cases, where a court does not have personal jurisdiction over a defendant or property, the court can't bind the defendant to an obligation or adjudicate any rights over the property.

The application of ratione personam jurisdiction could be difficult in practical terms, in regard to dissolving states or contested territories and disputed boundaries. Fifty percent of contemporary international boundaries are apparently disputed. The issue could also be compounded whenever the custodial states are involved.

4. Territorial Jurisdiction or jurisdiction ratione territorism:

The ICC will exercise its jurisdiction over the States which have become parties to the Rome Statute and thereby they had accepted the jurisdiction of the court with respect to the crimes referred to in Article-5, and also the States, on the territory of which the conduct in question occurred or, if the crime was committed on board of vessel or aircraft, the State of registration of the vessel of aircraft, regardless of the nationality of the accused person.

The court can also exercise its jurisdiction, on the basis of reference of a State party, on a situation in which one or more of the crimes appears to have been committed, made to the Prosecutor. The Prosecutor may also start investigation of the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. The Court may also exercise its jurisdiction, on the basis of a reference made by the Security Council, acting on the provisions of the Charter of the United Nations. No investigation or prosecution may be commenced or proceeded with under the Statue, for a period of twelve months, after the Security Council in a resolution, has requested the court to that effect. The Council may renew that request under the same conditions.

5. Complementary jurisdiction:

One of the most significant features of the Rome Statute is the complementary jurisdiction of the ICC to the national criminal jurisdiction. The principle of complementary jurisdiction of the court means that the national criminal judicial system will be primacy of jurisdiction to prosecute and penalize the criminals and the jurisdiction of the ICC will be complementary to the jurisdiction of national judicial institutions in bringing the criminal to trial and justice.

According to Prof. Hisishi Owada, the principle of complementarity can be described as an attempt to solve the problems of the conflict between national jurisdictions over some crimes in pragmatic way. The principle of complementary jurisdiction has balanced the jurisdictional aspect of the ICC and the national judicial system. This principle of complementarity was absent in the jurisdiction of ICTY and ICTR, which had concurrent jurisdiction, with a primacy clause. These Tribunals could claim primacy over national investigation and proceedings, at any stage, if this proves to be in the interest of international justice.

The ICC will presume its jurisdiction over the national courts, under the situations where a state is not willing to investigate and prosecute even after having due jurisdiction or where the case has been investigated by a state which has jurisdiction over it but results into the unwillingness or inability of the State, genuinely to prosecute.

The unwillingness can be determined on the basis of certain situation wherein there is attempt of shielding a person from criminal responsibility, there is absence of impartial or independent proceedings which is to be carried out in accordance with the norms of due process recognized by the international law and further, if the proceedings is conducted in a manner inconsistent with idea bringing the accused person to justice system or there is unjustified delay which is likely to defeat the purpose of bringing the criminal to the justice process.

The principle of complementary jurisdiction of the ICC is not beyond criticism. There are arguments made by some countries that the complementarity principle is a threat to State sovereignty. However, the Statute has created a new mechanism in effectively holding an individual accountable for a crime within the ambit of the ICC. The complementary jurisdiction has an advantage in the sense that the existence of it, encourages the performance of national courts and in any case of their failure, the ICC will assume jurisdiction.

The apprehension of a couple of States that national security and national sovereignty will be eroded by the ICC jurisdiction, apparently highlights the petty national considerations in this age of globalism. Modernizing domestic penal system depends upon classifying international crimes and reinforcing independence of judiciary, but not by shielding individuals irrespective of their official or military status, from fixing their individual criminal responsibility. Rome Statute shall not intrude into national action, in spite of its universal jurisdiction.

To be continued..