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Immunity for the citizen

INDIA AND THE U.S. have reasserted their rejection of the International Criminal Court's jurisdiction over their nationals by signing an agreement under which neither country would surrender citizens of the other to any international tribunal without the consent of that person's national government. Since India was not a signatory to the Rome Statute that established the Court and since the U.S. had renounced its obligations to the Statute, both countries were already free from any compulsion to extradite those wanted by the Court to a territory where its jurisdiction applies. Under its founding charter the Court, in most instances, will have jurisdiction only in respect of crimes committed within the territory of the countries that have ratified the Statute or by citizens of the ratifying countries. But several of the countries that have ratified the Statute have endured strife of an order that necessitated international peacekeeping efforts. If an international peacekeeping force was to be called upon to operate in territories that fall within the jurisdiction of the Court then the personnel of that force, accused of crimes of the nature specified in the Statute, could be prosecuted in the Court. Even if such persons managed to slip out of the Court's jurisdiction in the first instance they might yet be brought within this tribunal's ambit were they to transit through countries that have ratified the Statute. The latest India-U.S. agreement therefore reinforces the immunity, from the Court's jurisdiction, that the citizens of each will enjoy while they are within the territory of the other.

However, an equally important question is whether India, the U. S. and other countries that have not accepted the jurisdiction of the Court are justified in their approach. The Court is empowered to try individuals accused of perpetrating the most serious crimes of international concern — specifically acts that fall within the categories of genocide, war crimes, crimes against humanity and aggression. While the countries that have ratified the Statute will have to draw up a definition of the crime of aggression, the crime of genocide will replicate the definition that was provided in the Genocide Convention of 1948. India's reservations with respect to the Statute basically pertain to the definitions that the Statute accords to crimes against humanity and to war crimes. As codified in the Statute, the Court will have jurisdiction over crimes against humanity whether such were committed in the course of armed conflict between nations or otherwise. It will also have jurisdiction against state and non-state actors. Similarly, the Court will have jurisdiction over war crimes committed in the course of conflict between states or in the course of conflict within states. As New Delhi has pointed out, the definition accorded to these two categories of criminal behaviour in the Statute does indeed go beyond customary law and previous multilateral treaties. Some elements of New Delhi's reservations are traceable to a context where the Indian state is pitted against certain ethnic minorities and where certain political forces are pitted against religious minorities. But New Delhi can also be seen as having reasonable concerns about a Statute that provides wider opportunities for hostile elements to level essentially baseless charges that war crimes or crimes against humanity have been committed within India or by official agents of the Indian state outside its territory.

A redeeming feature of the Statute is that it has made the Court complementary to national courts. The Court will exercise jurisdiction only when the national judiciary concerned is genuinely unwilling or unable to prosecute crimes that fall within the four categories provided in the Statute. But while the national criminal law should, and usually does, provide for the prosecution of those who commit crimes on a minor or mass scale, the domestic criminal jurisprudence might not define large scale atrocity as a separate and additional category of crime as does the Statute. Whether Indian criminal jurisprudence should take on board these definitions, whether through accession to the Statute or otherwise, has to be debated.

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