India and the ICC

Abstract

The Statute of the International Criminal Court (ICC Statute) would have been more acceptable to India if it had contained an opt-in provision whereby a state could accept the jurisdiction of the ICC by declaration (possibly for a specified period), and this might be limited to particular conduct or to conduct committed during a particular period of time. The lack of such a provision, and the inherent jurisdiction which replaced it, are perceived as representing a violation of the consent of states, and thus a threat to sovereignty. India’s resistance to accepting the inherent jurisdiction of the ICC is explained, in part, by anxieties about how investigation, prosecution and criminal proceedings in the Indian system may be judged by an international court. The inclusion of ‘armed conflict not of an international character’ in defining ‘war crimes’ in Article 8 ICCSt. constitutes another reason for India’s concern (that the conflicts that persist in Kashmir, the North-East and as was experienced in Punjab, as well as the violence of more recent vintage in Gujarat, could be referred to the ICC). Further elements giving rise to India’s misgivings are the fear that the Court might be used with political motives, the power conferred on the Prosecutor to initiate investigations proprio motu and the role allotted to the Security Council. 1. The Reasons for India’s Abstention on the Statute in Rome When the Statute for an International Criminal Court was voted on in Rome in July 1998, India abstained. There was a sense of disbelief among the Indian delegation as the overwhelming support for the Statute moved through improbability, and possibility, to fact. It continues to be difficult for the Indian establishment to reorient reality to account for an international community that willingly hands over a mandate for justicing to an institution * The author is an independent writer on issues of law; she may be contacted at uramanathan@