The Hindu : Indo-U.S. non-extradition pact

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Thursday, Jan 09, 2003

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Indo-U.S. non-extradition pact

By V. S. Mani

India has no moral justification to support such non-extradition devices... when it is unwilling to put in place an effective domestic criminal justice system to try persons committing international crimes.

ON DECEMBER 26, 2002, an "Agreement between the Government of India and the United States of America regarding the Surrender of Persons to International Tribunals" was signed. It seeks to impose two kinds of obligations on the parties: First, it restrains either party from making available or subjecting to the jurisdiction of any international tribunal, nationals of the other party, without the consent of the other party. (2) It also prohibits extradition or otherwise surrender of Indian nationals by U.S. or of U.S. nationals by India to a third country for the purpose of subjecting them to the jurisdiction of any international tribunal. The agreement will come into effect upon an exchange of notes confirming that each party has completed the necessary domestic legal requirements in bringing it into force. It can be terminated with a year's notice.

The U.S. has already signed such agreements with at least 14 other countries, but India is a significant `catch' as most of the U.S.' other partners are small countries or closely identified as its allies.

The U.S. initiative in evolving a network of such treaties of non-extradition stems from its attitude towards the newly established International Criminal Ccourt. Even as the former President, Bill Clinton, affixed the U.S. signature on the Rome Statute in July 1998, America had already warned that it would not ratify it unless its apprehensions about the possible misuse of the Court for trial of its citizens were adequately dispelled. The Bush administration has adopted a more hardened attitude. Speaking at the Washington Center for Strategic and International Studies on May 6, 2002, Marc Grossman, U.S. Under-Secretary for Political Affairs, explained the American objections to the Rome Statute of the ICC, 1998. The U.S. believes that (1) "The ICC undermines the role of the United Nations Security Council in maintaining international peace and security." (2) "The Rome Statute creates a prosecutorial system that is an unchecked power." (3) "The ICC asserts jurisdiction over citizens of states that have not ratified the treaty. This threatens U.S. sovereignty." (4) "The ICC Statute being a treaty cannot apply to states that are not parties to it, but its provisions have implications for them." (5) Finally, "the ICC is built on a flawed foundation. These flaws leave it open for exploitation and politically motivated prosecutions." Mr. Grossman said, "President Bush has come to the conclusion that the U.S. can no longer be a party to this process".

On the other hand, India's initial objection to the ICC Statute was that it did not extend the Court's jurisdiction to include the use of nuclear and other weapons of mass destruction as an international crime. The External Affairs Ministry spokesperson, on December 26, 2002, pointed to the other Indian reservations. "For instance international terrorism was not one of the crimes covered and also the statute failed to provide flexibility in the nature of jurisdiction that it defined for itself, it blurred the distinction between customary law and treaty obligations in respect of definition of internal conflicts and crimes against humanity. It fails to respect the sacrosanct principle of consent of state and the principle of territoriality in exercise of criminal jurisdiction and priority of national criminal jurisdiction over international criminal jurisdiction. The ICC when it was envisioned was seen as a court which will handle exceptional circumstances. It will handle situations where there were failed states where the national judicial processes had collapsed but it was not seen as an instrument by which an international court could supersede national judicial systems." India is also concerned that it is "one of the major contributors to the international peace keeping missions. And our soldiers are required to perform duty for the U.N. in very difficult circumstances in uncertain situation in places where law and order have, by definition, failed. So, to provide justice and protection to Indian soldiers participating in peace keeping missions it is essential to ensure that national judicial systems retain priority." The last three objections, however, appear to have moved India closer to the U.S. facilitating the present non-extradition agreement.

The ICC has the jurisdiction to prosecute individuals accused of having committed a crime of genocide, a crime against humanity, a war crime or the crime of aggression, only if the state where the crimes were committed or the state of the nationality of the accused is a party to its Statute. The Statute, however, contemplates the possibility of the Court requesting any state, whether or not a party to the Statute, to surrender to the Court any accused person found within its jurisdiction, to facilitate his international trial. If the requested state is a party to the Statute, its obligation to comply with the Court's request for surrender is likely to be stronger (Articles 89 and 90 of the Statute).

The Bush administration had made it clear when the issue of extension of the mandate of the U.N. peace-keepers came up early this year that it would not allow U.S. nationals participating in such peacekeeping operations to be subject to the ICC's jurisdiction and that they would be tried under American law in American jurisdiction. Following this, the U.N. Security Council adopted Resolution 1422 (2002) on July 12, 2002, to grant immunity to persons drawn from non-parties to the ICC Statute, participating in U.N. peacekeeping operations from the possible application of the ICC jurisdiction for a period of one year, subject to annual renewals. The Rome Statute recognises the Security Council's authority to prevent a case from coming before the ICC or to stop the proceedings in a case pending before the ICC (Article 16). But the Security Council decision amounts to a wholesale foreclosure of the ICC's jurisdiction with respect to any future case involving "current or former officials or personnel from a contributing state not a party to the Rome Statute over acts or omissions relating to a U.N. established or authorised operation." A situation not specifically envisaged when the ICC Statute was being drafted. It is in fact a subversion of the Statute and the ICC.

The Indo-U.S. treaty thus probably reflects the convergence of objectives which both India and the U.S. share. It is a logical next step to the Security Council decision. While this kind of prohibition of transfer of persons to an international tribunal or to a third country is rather unusual, there is nothing per se or illegal about such a treaty.

The treaty glosses over two weak links in India's domestic criminal justice system — investigation and trial of persons accused of international crimes. The first two preambular paragraphs of the Indo-U.S. treaty (1) reaffirm "the importance of bringing to justice those who commit genocide, crimes against humanity and war crimes", and (2) recall that "parties have each expressed their intention, where appropriate, to investigate and prosecute war crimes, crimes against humanity, and genocide alleged to have been committed" by their respective nationals. India is yet to enact a domestic law to formally establish the crimes of genocide and crimes against humanity as crimes under its penal law, although it became a party to the Genocide Convention in 1959 and the International Covenant on Civil and Political Rights (which prohibits offences relating to torture) in 1979. The Geneva Conventions Act of 1960 (which incorporates war crimes into Indian domestic law) remains largely inoperable, according to the Supreme Court of India (AIR 1970 SC 329), against the members of the Indian armed forces or other Indian officials (without the consent of the Government).

India has no moral justification to support such non-extradition devices aimed at undermining the evolving, even if imperfect, framework of international criminal justice it has itself helped establish, and thereby encourage impunity, when it is unwilling to put in place an effective domestic criminal justice system to try persons committing international crimes. It is all the more deplorable, because the treaty was never put to public debate.

(The writer teaches International Law at JNU, New Delhi.)

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