COMBATING IMPUNITY

The twentieth century has earned itself the distinction of being the bloodiest in all of human history. The two world wars were semi-colons in a period punctuated by incessant bloodshed and campaigns of violence. The capacity for destruction, and decimation of populations, stand demonstrated. The strides in arms production and the birth of the nuclear age have done much to make a myth out of peace.   The rise of fascism most graphically witnessed in the second world war, and the increasing evidence of identity, and hate, politics has done much to destroy the potential for human co-existence.

The years since the second world war have been witness to attempts at preventing abuse of power, less centrally in providing for the lives of peoples, and, in a relatively recent manifestation, in recognising and respecting communities of peoples. The language of human rights has developed most significantly to act as a bulwark against those wielding the power of the state, and in this it has given an altered meaning to sovereignty. None of this appears to have been able to curb the practice of violence and violations, even in genocidal dimensions as has been seen in Bosnia and Rwanda; nor did it prevent the declared state policy of apartheid as in South Africa; nor the aggression unleashed on Afghanistan in the post-twin tower attacks on September 11, 2002; nor the large scale attacks on the people of a state by its own government as in Cambodia or Argentina, for instance.

The Tokyo War Crimes Tribunal and the Nuremberg Tribunal, which sent leaders of the losing Axis powers to the gallows and to serve spells in incarceration, were the first successful attempts at bringing perpetrators to justice. But the proceedings were tainted by the retrospective definition of crimes and the uneasy reflection that the trial and its consequences were an illustration of `victor’s justice’. Since then, there have been only two occasions when the world community has acted to bring to trial mass violators – when the Security Council set up the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia. Both these are ad hoc tribunals, with an after-the-fact listing of crimes that could be tried.

The statute for the establishment of an International Criminal Court constitutes a departure from this ad hoc, retrospective, victor’s justice experience of trial and accountability. Voted in July 1998 at the Diplomatic Conference in Rome, the overwhelming support for the statute was a surprise even to the optimists among those present. There were 120 votes in favour of the statute, 22 abstained from the vote -- India is known to have kept company among the abstentions - and only 7 rejected the statute – the US prominent among the detractors. On April 11, 2002, in a remarkably short time for a multilateral document, the requirement of 60 ratifications was crossed, clearing the decks for establishing the court. The statute will now come into effect on July 1, 2002, although it may be another year before the court may begin to function.

Defining crime

There are four sets of crimes that are covered by the ICC statute: genocide, war crimes, crimes against humanity and aggression.

The crime of genocide is not new to international criminal law, and is set out in the Convention on the Prevention and Punishment of the Crime of Genocide 1948, to which India too is a party. Genocide, by definition, is acts specified in the Convention “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”, and includes

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part….”  

The Genocide Convention is specific that “attempt to commit genocide” and “complicity in genocide” are also punishable offences.   What the Genocide Convention does not do is to provide a tribunal to try these offences. Instead, it leaves it to a competent tribunal in the country where the act was committed to try the offence or to an international penal tribunal whose jurisdiction the contracting states have accepted. This is where the ICC now steps in.

The ICC statute, drawing upon experience, elaborates on what constitutes war crime and crimes against humanity. For instance, `crimes against humanity’ includes extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, enforced disappearance of persons … And it includes “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”.

The crime of aggression is still being beaten into shape, and will not be triable for a good while yet.

The definition of crimes has universal application. That is, when an act defined as a crime in the ICC statute is committed, it would be a crime in the eyes of the court whether or not any state so defines, or whether or not a state is a party to the statute. It is, at this point, important to recognise that it is not states but individuals who will be tried by the court. States are only required to cooperate with the court in matters such as producing the accused, gathering evidence, protecting witnesses, imprisoning convicts and such. The question of acquiescing in the trial of accused is also therefore irrelevant.

The ICC is a court that will complement the jurisdiction of national systems; it will not replace or supersede national courts and systems of trial. It is only where a state is unable or unwilling to try offences that are within the jurisdiction of the ICC that the ICC will get into the act. The ICC would, however, have inherent jurisdiction to decide whether a state is unable or unwilling to act. Where the proceedings in the state are being taken to shield the perpetrators, for instance, or there is unjustified delay, or the proceedings are not being conducted independently or impartially, and are inconsistent with an intent to bring the person concerned to justice, the ICC may find that the state was unable or unwilling to act.

The Indian government, for one, has reacted with horrification at the possibility of being tried without its consent. International judicial institutions have, so far, been dependent on states giving their consent before adjudicating on any issue before them. This is true, for instance, with the International Court of Justice. The ICC, however, does not depend on such consent. If it did, it is unlikely that it would make even a tiny dent on the regimes of impunity that have developed over the past century.

It must be clarified that the ICC does not deal with all acts that may constitute crime in law. In dealing with war crimes, for instance, the ICC will have jurisdiction only where the act is committed “as part of a plan or policy or as part of a large-scale commission of such crimes”. The ICC may try crimes against humanity where it is committed “as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. The thresholds are rather high. And where the court is confronted with “armed conflicts (which are) not of an international character”, it will not try crimes arising out of “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature”.

Trigger mechanisms

The ICC may be activated by a state that is a party to the ICC. A case may also be referred to trial by the ICC by the Security Council acting under Chapter VII of the United Nations Charter. This could have the effect of doing away with the setting up of ad hoc tribunals, as became necessary in the cases of Rwanda and Yugoslavia. The prosecutor appointed under the ICC statute may also commit a case to trial where an investigation has been initiated by the prosecutor, either suo motu or on information received. So, the prosecutor may investigate a complaint received from any source, including any governmental or non-governmental person, body or organisation. Any investigation by the prosecutor on the basis of information received is, however, to be preceded by a presentation of the information, as scrutinised, to a Pre-Trial Chamber of the court, which will decide whether the information ought to be pursued.

If either the state on which the crime was committed, or the state of which the accused is a national is party to the ICC statute, the court would have jurisdiction. This would, of course, mean that even a state that has canvassed against the statute and the court, and which has boycotted the court may find its national being brought to trial before the court. The US, with its self-appointed role as a policeman of the world, has reacted like the archetypal bully. The US Congress has authorised the President to use all force necessary (a phrase of which the US is particularly fond) to wrest back from the ICC any US national who may be held by the court in proceedings before it. The Bush administration has also endorsed the American Service members' Protection Act, calling for sanctions against countries that support the ICC. This `unsigning’ of the ICC is unprecedented, but is clearly indicative of the restraints that bully states believe could be imposed on them if they breach standards of conduct in, or out of, warfare.

It is significant that states that have a problem with genocide, crimes against humanity and war crimes being tried by an international tribunal are even now demanding that terrorism be internationalised, and that years of standard setting in the arena of human rights be reduced to a rump in the name of fighting terrorism. In India, this is especially ironic when Ayodhya and Gujarat stand as symbols of how terrorism does not get defined, and when new standards are being set for impunity.