1.1 the origin of the International Criminal Court
The origin of the International Criminal Court (ICC) date back to the world war II, when international military tribunals were established (Nuremberg and Tokyo).
Their competences were limited to war crimes, but their contribution had been fundamental to the extension of the crimes treated to crimes against humanity and peace.
The first attempt to form an International Criminal Court has been in the 1950s, but the concomitance with the Cold War made the effort unattainable. The idea revived in the 1990s thanks to the initiative of the ONU and General Assembly to draft a statute for the ICC.
During the draft of the statute, the international community established two ad hoc tribunals for crimes in the former Yugoslavia and Rwanda, underlying the increasing need for a permanent international criminal court.
On 17 July 1998, an International Criminal Court was finally born. 120 states adopted its statute, whereas 7 voted against it (21 abstained). The Statute legally came into force on 1 July 2002, and the ICC can only prosecute crimes committed after that date. 1.2 India and the International Criminal Court
Indian government claims that is always been engaged in the promotion and protection of human rights at the international level. Its concern in the matter has a confirmation in the active participation of India to the progressive development of the criminal law since 1948, with the aim of eradicating the most brutal crimes committed by the humankind.
In spite of its presumed commitment in the fight against any violation of human right, India consistently opposed the court. Together with United States, China and Russia, it is one of the critical States that have not joined the International Criminal Court.
India supports the ICC as institution and actively participated to the conference on the establishment of the International Criminal Court in Rome (1998). During the debate, India showed a proactive spirit and interest in achieving a common position that could suit all the States involved and thus could give a durable basis for the development of such international cooperation. The basic principles that guided India’s participation in the discussions on the establishment of the Court were, as mister Dilip Lahiri said, “the sovereign equality of States, non discrimination and non interference in the internal affairs”.
However, India strongly objects some crucial points of its statute:
1. Broad definition adopted of crimes against humanity:
It is a shared view of States that crimes should be well defined in the statue of ICC.
India laments that there is a generally accepted definition of genocide, but not a clear one for crimes against humanity. If specific contents of crimes do not reflect the acceptance by States, this could be counterproductive and might constitute a threat.
2. The role of the Security Council:
According to India the powers given to the Security Council (to refer cases, delay investigations and bind non-states parties), are too broad.
Actually Indian Government believes that any role of the Security Council before the ICC will results in legal and political implication, which will in turn undermine the “impartiality and interdependence of a judicial institution, said Lahiri, such as the International Criminal Court, which should be respected fully”.
Furthermore the role of the ICC is tightly to prosecute and punish international crimes, and not to preserve the peace among States, nor security. Thus there is no reason for the Security Council to interfere with ICC, on the contrary “any preeminent role for the Security Council in triggering ICC jurisdiction constitute a violation of sovereign equality”.
3. The refusal to introduce nuclear weapons or other weapons of mass destruction:
Many States asked...