Three and a half years after the Rome Statute of the International Criminal Court (ICC) became effective, India has shown no indication of becoming a State Party to the Statute.
It is on the basis of the Rome Statute that the ICC has been set up. Adopted on July 17, 1998 at the UN Diplomatic Conference on Plenipotentiaries, the Statute saw 120 countries voting in favor, seven voting against and 21 abstaining from voting on it. India had abstained. By the spring of 2002, 60 States had ratified the Statute. Having received the minimum number of ratifications required for entry into force, the Rome Statute finally became effective on July 1, 2002 and the ICC - the world's first global court - became functional.
Negotiations amongst countries of both common law (derived from judicial decisions) and civil law (based on written codes) jurisdictions yielded a system that is a hybrid of these legal traditions. As a result, the procedure is both adversarial (where parties present their case) and inquisitorial (where the court makes its own investigation). The jurisdiction of the ICC applies only to the crimes of genocide, crimes against humanity, war crimes and aggression.
Several legal provisions found in the Indian Constitution and the criminal laws of India are antecedents to many of the principles found in the Rome Statute - the presumption of innocence, principle of legality, proof of guilt beyond reasonable doubt, fair trial, legal aid and the right to remain silent, amongst others. While some of the more progressive measures, such as protection for victims and witnesses, have yet to be incorporated into criminal procedures in India, the adversarial procedure that governs many areas in the functioning of a criminal trial in the ICC is not new to the Indian State.
It would be useful to examine the role of the Indian government during negotiations at the Rome Conference in 1998. Prior to the adoption of the Rome Statute in 1998, the Indian government proposed an amendment to the draft Statute before its final adoption - that the terms "nuclear, chemical and biological" weapons be inserted into the provision that lists the weapons that constitute war crimes. This issue had already been dealt with prior to the proposed amendment, and had ended in a compromise that these terms would not be included at that stage. A provision was, therefore, added to the Statute by which weapons could later be added by amendment. The second proposed amendment related to the powers conferred on the UN Security Council to refer situations to the ICC. India proposed that this power of referral be deleted.
Both the amendments that India proposed were perceived as an attempt to throw spokes into the final adoption of the Rome Statute and were defeated by a "no-action" motion - supported by 114 States - proposed by Norway.
In December 2002, the Indian government signed a bilateral non-extradition treaty with the US. Aligning with the US against the ICC indicates that India will protect not only its own nationals when they have committed mass crimes but that even when US nationals commit offences punishable by an international tribunal, they may be protected by the Indian State.
The Indian State has till date enacted no legislation to cover the crimes of genocide, crimes against humanity or war crimes. The Rome Statute attributes "individual criminal responsibility" to persons accused of a crime under its jurisdiction, including superiors and commanders. The Statute expressly denies the claim of sovereign immunity to accused persons who are officials of the State. The provisions are similar to that in the Statute of the International Criminal Tribunal for the former Yugoslavia under which former Serbian President Slobodan Milosevic is currently undergoing trial.
The lack of express legislation on mass crimes in India has lead to a situation in which there is little or no recognition of the role of State officials vis-'-vis mass crimes. As a result, very often, officials of State responsible for mass crimes in the country have an easy claim to sovereign immunity that is available in current criminal legislation, which does not envisage mass crimes.
Civil society organizations have also been advocating the cause of India ratifying the Statute. Mumbai-based Women's Research and Action Group, for example, has been conducting workshops and other activities to create awareness about the ICC and also how to integrate some of the provisions of the Statute within the Indian legal system.
The Indian government, however, has given no explicit reasons for not ratifying the Rome Statute since the ICC came into force. One reason for this could be the internal conflict situations in many parts of the country, such as Kashmir and the Northeast. In these areas, the State may have to accept responsibility for the commission of acts that may amount to crimes listed under the Statute. Another possible reason is that India is not a permanent member of the Security Council, and hence has no veto power of referral to the ICC. India, in fact, abstained from voting on the Statute saying that it did not agree with the power of the Security Council to block and bind non-State parties through the ICC.
In the first case, since the jurisdiction of the ICC is complementary to national criminal jurisdictions, becoming a State Party would strengthen the judicial process within the country. It would increase pressure upon Indian courts to ensure that justice is meted out to victims of mass crimes, thus deeming it unnecessary to be subject to the jurisdiction of the ICC. And in the second situation, if the Indian government were to become a party to the Rome Statute, the question of a non-State party being bound by the powers of the Security Council becomes an academic one.
The Indian State has been subject to international dispute settlement bodies, such as the Dispute Settlement Body of the World Trade Organization and the International Court of Justice, amongst others. State sovereignty is not compromised merely because a nation-state agrees to subject itself to an international court that can exercise jurisdiction over its officials.
In essence, the ICC is a global court of last resort. The absence of the Indian State as a party to this court - set up to try the most serious crimes of international concern - is a continuing nullification of the country's expression and projection as a nation that desires to protect its citizens from genocide, war crimes, crimes against humanity and aggression.