Terrorism and the International Criminal Court

In these uncertain times, the Chief Justice KG Balakrishnan reminds us that ‘substantive due process is an essential part of our collective response to terrorism.’ Don’t think either of them will like the comparison, but Arundhati Roy makes a similar, if more eloquent, call: “Anti-terrorism laws are not meant for terrorists; they’re for people that governments don’t like. That’s why they have a conviction rate of less than 2%…Terrorists like those who attacked Mumbai are hardly likely to be deterred by the prospect of being refused bail or being sentenced to death. It’s what they want…We’re standing at a fork in the road. One sign says Justice, the other Civil War. There’s no third sign and there’s no going back. Choose.”

The reminders are timely, given that the government appears to have tabled an amendment to the Unlawful Activities Prevention Act today in Parliament. I am sure our bloggers will discuss the amendments as soon as further details emerge, including their impact on civil liberties, if any.

I am particularly interested in one small portion of the CJI’s piece:
“Another suggestion that has been made in this regard is that of treating terrorist attacks as offences recognised under International Criminal Law, such as ‘crimes against humanity,’ which can then be tried before a supranational tribunal such as the International Criminal Court (ICC). However, the obvious practical problem with this suggestion is that prosecutions before this Court need to be initiated by the United Nations Security Council (UNSC) and the latter body may be reluctant to do so in instances of one-off terrorist attacks as opposed to continuing conflicts.”

This, although true, is not the only course of action available. In this article, I aruged (with Neha Jain) that India has a strategic interest in signing up to the Rome Statute of the International Criminal Court:
“The ICC has jurisdiction over a case if either the suspects are nationals of a member state or if the crimes are committed on the territory of a member state. In a case like this one, because the crimes were committed on Indian soil, India could have referred the case to the ICC if it was its member at the time when the crimes are committed. It does not matter whether the foreign state whose nationals or residents are alleged to have committed the crimes is a member or not. The ICC can assume jurisdiction and require all member states to co-operate with the prosecution irrespective of the consent of the state whose nationals are being prosecuted. For instance, if the suspects were to seek refuge in a foreign state which is party to the statute, that state would be obliged to surrender the suspects to the ICC and assist in its investigative efforts. If the foreign state is not a member of the ICC, it will not have any obligation to co-operate with the ICC. But the international attention that an ICC trial will inevitably bring to the case may shame it into prosecuting or extraditing the suspects.”

This blog has discussed the ICC previously, here and here.

Written by
Tarunabh Khaitan
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  • I am not quite sure of scope of ICC; but the fact that citizens of UK and US have also been killed will give a right to those countries to take the matter to ICC?

    (I am not quite certain if US/UK have agreed to be bound by ICC)

  • Tarun,

    With all due respect, who gives a damn about ICC? What exact mechanism has it to punish people unless Americans or British want them punished. In case you forget, Americans did not know even care about terrorism in India before 9/11 happened. Or British were giving shelter to those accused of crimes in Punjab in name of preserving human rights. It was only after they got hit, terror became an issues. I am surprised at the extreme naivety displayed on this post when it comes giving up our right to prosecute and punish those who attack us.

    And with all due respect to CJI, to pontificate on things like Hot Pursuit is above his pay grade.

  • Dear Anonymous, UK has signed the Statute, US has not. It has jurisdiction only when the crimes are committed either by a citizen/resident of a member state or on the territory of the member state. So states of the victims have no jurisdiction.

    Dear Rohit, please allow me to clarify a few things about the ICC. First, it is not a US-driven body – in fact the US has opposed it tooth and nail. Secondly, its jurisdiction is complimentary – i.e. it kicks in ONLY when the concerned state is ‘unable or unwilling’ to prosecute. So, no sovereignty is ceded, unless you think that India will ever be in a situation to be unable or unwilling to prosecute people who have committed ghastly crimes. Thirdly, I know that international law is often made fun of. However, it has its uses. As soft law instruments, national courts can draw upon treaties a country has signed. But even so, the ISS is a different animal – it is a relatively powerful criminal court (by international law standards). Plus, international law and international diplomacy often go hand in hand. An ICC summon to Pakistan to hand over Dawood wil certainly put pressure on Pakistan. It will then have the option of prosecuting him itself, or extraditing him to India for prosecution or hand him over to the ICC. Of course, it can choose to do nothing – but not without some political costs. The ICC is having its first big evaluatory conference next year. India’s can at least try to bargain its membership by encouraging the ICC to finally define ‘terrorism’ (it is likely to happen anyway, with or without India).

    Finally, these arguments in favour of India joining the ICC are only strategic. There is a far stronger moral case on the basis of which India should have signed it long ago.

    Will it solve the problem or terrorism? Of course not. Will it be a humane and principled, if small, response to the problem? Certainly. Perhaps my argument is still naive. In that case, please suffer my optimism 🙂

  • I am not so optimistic.When the question of genocide arose the African nations (OAU) took a stand that what had happened in Sudan was not genocide.ICC can be used for political purposes against India to divert the attention from the real issue of Pakistan and cross-border terrorism.
    ‘ An ICC summon to Pakistan to hand over Dawood wil certainly put pressure on Pakistan. It will then have the option of prosecuting him itself, or extraditing him to India for prosecution or hand him over to the ICC. ‘
    What happens if ICC declines
    to issue a summon or is not satisfied with the case against
    him.? I wonder whether ICC is the right forum for cases against Dawood. I think it is not.Taking his case to ICC will complicate the matters.

  • “When the question of genocide arose the African nations (OAU) took a stand that what had happened in Sudan was not genocide”

    In fact there are extremely strong arguments that the Sudan events were not genocide. And this is a view taken by a UN Expert group too, not just the OAU. The issue turns on the legal question of the dolus specialis requirement for the mens rea in genocide.

  • We often forget that genocide is not the only crime within the ambit of the ICC – ‘crimes against humanity’ is (relatively) easier to prove, and carries similar moral and punitive force.