Discourse: Jurisdictional Issues of the ICC and India's International Law Obligations
- Part 2 -

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.

Basis of India's International Obligations:

The dawn of the 21st century human society attempts to bring the congeniality for oneness of human community elevating human rights to the level of common international concern. The legitimacy of human rights regime, notwithstanding barriers of municipal laws, internal affairs and the arguments for domestic compulsion of the Member States of the United Nations, has obtained its recognized legitimacy being founded on a number of arrangements such as – the customary and general international laws, the charter of the United Nations, Jusyco gens, multilateral treaties, covenants and commonly accepted human rights instruments compounded by the informed state practices and values of the contemporary human societies.

In this respect the United Nations High Commissioner for Human Rights stipulated the responsibility of the states in the following words: a). The primary responsibility for the promotion and protection of human rights is with the Governments; b). The promotion and protection of all human rights is a legitimate concern of the international community; c). The international community should foster processes leading to a better implementation of human rights and strengthening of democracy and the rule of law, and should take all necessary measures to prevent human rights abuses and to eradicate the gravest human rights violation; and d). The international protection and promotion of human right is effective only if based on the principles of individuality and equal value of all human rights.

Jose Ayala – Lasso, the first UN High Commissioner for Human Rights while starting the treaty bodies based on six Human Rights Conventions, inter alia, monitor compliance by States with their human rights obligations, observes that it is paramount importance that the enactment of domestic laws are consistent with international standards. While re-affirming that all human rights are universal, individual, interrelated and interdependent. Mary Robinson the successor to Jose Ayala - Lasso, reiterates the relevance of the global human rights standards. By their own commitment and conviction, the member States of the United Nations have voluntarily undertaken the obligation to implement these mutually worked out standards.

The Vienna Declaration and Programme of Action, 1993 has stipulated succinctly the continuing States obligation for implementation of the common human rights standards. To benefit the individual in domestic legal order, contemporary international law has been applied; as complementary subject along with the States being the principal actors in international law through abdication of its classic role as inert object of international law.

In contemporary international law, the status of individual has been affirmed by the following: a). The Optional Protocol to the International Covenant on Civil and Political Rights 1966; b). The Economic and Social Council Resolution no 1503; c). The legal personality accorded to national liberation movements; d). The emerging status of the indigenous people and nations; and e). The Rome Treaty of July 1998 of the International Criminal Court and the development of international Criminal jurisdiction.

The above have a significant impact on the role and responsibility of the State with regard to protection of human rights and dignity. All the member States of the United Nations have a fundamental obligation to comply with the pledge as mandated in Article 56 of the Charter of United Nations of 1945. The States parties have the obligatory, accountability in setting up supervisory mechanisms including reporting system as is provided by Human Right Treaties.

According to the mandates of the Charter, States accept accountability and obligation to comply with their pledges and commitments. The UN Charter, as adopted in 1945, reads as – "we the people of the United Nations determined to save succeeding generations from scourge of war, which twice in our life time has brought untold sorrow to mankind and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and nations large and small and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained."

It is worthy to mention here the significant mandates as provided in Article 55 of the Charter which stands for "respect for the principles of equal rights and self determination of people." "universal respect for and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion"; read with Article 56 that requires "all members to pledge themselves to take joint and separate action in cooperation with the organisation for the achievement of the purposes set forth in Article 55."

However, Article 2(7) of the Charter an apparently contradictory provision, provides that "nothing contained in the present Charter shall authorize United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII."

The states are invariably obligated to the following organs of the United Nations: a). The UN General Assembly; b). The Economic and Social Council; c). The Security Council; d). The Trusteeship Council; e). The International Court of Justice and the Secretariat.

The two international covenants of 1966 viz. the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), have come into force in 1976. They constitute a " detailed codification of human rights" and have legal bindings upon the State parties to them.

The norms peremptory to jus cogens adumbrate various human rights viz. essential rights of the human person in time of peace and war, prohibition of genocide, slavery, racial discrimination and self-determination, among others. Ian Brownlie observes - "certain portions of jus cogens are the subject of general agreement, including rules relating to the use of force by states, self-determination and genocide.

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

The Indian national criminal justice system, in most of the cases, brings about certain major changes in contravention to Articles 6 to 8 of the Rome Statute, in the process of trial and prosecution in the court in its own system, which requires rejuvenation and radical change to be brought about in conformity to international legal order, to make the ICC a reality in safeguarding against the international crimes against humanity.

Observations by Dr. vijaylakshmi Brara: She says the distinction of 'Real India' and 'Statistical India' given by the author is very impressive. She also questions whether the UN is really sacrosanct as it should be considering how UN has shown enduring lethargy when superpower like USA is involved as the aggressor. Interventions of international organization has even led to the remodeling and designing of even the social structure in the region of Northeast India. Preference of customary laws over national law may discourage self critical analysis and may even led to regression. This is also area which needs to be critically pondered

Observations by Homen Thangjam: This should have been discussed long back. Whole discussion of Human rights is based on individualism. Today, we are living in a world where the commons are slowly disappearing. Discourse of Human Rights upto 1980 is wholly based on individualism. But from 80s onwards, articulations on group/community rights started disappearing. The discourse, subsequent to it, though talk about indigenous rights has to be based on individualism. If India doesn't want to sign or ratify a treaty, who will compel and make India to sign. We need to accept to some extent what earlier observers had asserted that it is the world of liberals.

With it proceeding was handed over to Prof. N. Joyjkumar and there was interaction for about 20 minutes.

Prof. Gohain in his response to various queries stated that UN process is democratic and no country irrespective of their status of being super power cannot go scot free with their whims as there is a mechanism of internal check. The notion that UN is not allowed to approach individually is a myth. Many rebel leaders have ventilated their issues in UN while their movement is ongoing. UN convention relating with women and child rights have already been ratified by India.

One may not be content with the UN process could always been considered as an alternative. So, simply because of not being content with the UN system, if everyone says good bye to UN system, then one could only imagine what could be the outcome of it. The whole world will be annihilated and doomed. There is two ways of resolving Conflict: symptomatic and diagnostic. Only diagnostic resolution drawing from the lived experience at grassroots, i.e. 'Real India' and not 'Statistical India'

Presidential Remarks:

Dr. RC Borpatra Gohain lecture is highly illuminating and insightful. The comment of both the observers which try to relate Law and its outcome to be socially relevant is very interesting. Such lecture is very encouraging as it sensitize the people of global international trends on the issue which is of significant concern to the region of Northeast.

The Vote of Thanks was proposed by Dr. Jiten Oinam, Faculty Member of Centre for Human rights Studies, Manipur University.

Concluded..