January 15, 2003 | The Hindustan Times
By Ravi Nair
The recent signing of a bilateral agreement between the US and India — not to surrender each other’s nationals to the jurisdiction of the International Criminal Court (ICC) — once again emphasises the lack of informed Indian foreign policy thinking, if any, on such issues. The South Block’s readiness to sign on the dotted line at Washington’s foggy bottom diktats once again underlines how isolated the present Indian government’s foreign policy is.
The fact is that the European Union has collectively rejected such immunity agreements. With all its arm-twisting, Washington has only been able to enlist 16 acolytes to offer it absolution.
The US has reportedly sent to more than a hundred countries an ‘offer’ of agreement not to surrender its nationals to the ICC or to cooperate with the court, purportedly under Article 98 of the ICC statute. In recent weeks, the Bush administration has approached dozens of governments seeking Article 98 agreements against sending any US suspect to the ICC. To pressure them to agree, Washington is citing newly passed legislation — the American Servicemembers’ Protection Act (ASPA). It authorises the barring of various forms of US military assistance to governments, other than NATO members and specified allies, that refuse to sign Article 98 agreements.
At issue is Article 98 of the ICC’s treaty, which was designed to allow governments to devise orderly procedures to implement the treaty’s preference for prosecutions by national authorities. This provision was premised on the ICC’s ability to take jurisdiction of a case should it find that an investigation or prosecution was not conducted in good faith.
The ICC statute begins by stating that the ICC will be complementary to national criminal jurisdictions. The actual mechanisms of complementarity within the statute are complicated. The operation of the statute is interrelated with the capacity of the States to conduct national prosecutions through their domestic legal systems. In the end, the ICC will only deal with a limited number of cases. The focus will inevitably turn, at various stages, to the national level. Governments need to ensure that their legislation and judicial processes actually enable the executive and the judiciary to genuinely carry out these national prosecutions under the terms of the ICC statute and in conformity with international human rights law.
This is the principal reason why the Indian government has gone along with the Americans. India is one of the few democratic countries which allow a large measure of impunity to all perpetrators of human rights violations. Little does India realise that international law is moving inexorably towards international accountability for all human rights and humanitarian law violations. A case in point is the adoption of the ‘Optional Protocol On Torture’ in the UN General Assembly earlier this month, despite dogged opposition by the US and India. India eventually abstained in the final vote.
Since early 2002, American tactics have included threats of economic sanctions to convince governments to give US nationals exemption from the ICC. Legal experts have expressed outrage at what they consider another US attempt to use its economic power to obtain exemption from a court designed to ensure that crimes as serious as genocide, crimes against humanity or war crimes do not go unpunished. According to many governments, the US is misinterpreting Article 98 of the Rome statute, the provision of the ICC’s governing treaty being invoked to justify seeking such agreements, and resorting to bullying tactics to get signatures.
The threat to cut off military aid, coercive actions undertaken recently in the Security Council to get exemption for peacekeepers, are part of a multi-pronged effort by the US to undermine international justice. US spokespersons say these agreements are allowed under the statute that creates the ICC, but legal experts from leading NGOs and from other governments disagree.
The US is now trying to bully governments into signing these agreements, just as it coerced them to agree to exempt US peacekeepers from the ICC in the Security Council despite consensus that this would be in violation of international law, the UN charter and the Rome statute.
Despite the Indian government’s known hostility to the ICC Rome statute, what stampeded it into signing this agreement, without a parliamentary or national debate, is the explicit US threat to withdraw military assistance from countries that refuse to sign the agreements. Dubbed “impunity agreements” by ICC advocates, they are based on a provision in the American Servicemembers Protection Act, passed in the US Congress and signed by President Bush on August 2, 2002. The ASPA authorises the US government to cut off military aid to countries that support the ICC, with the exception of key allies.
The ASPA bill, however, includes broad presidential waivers that, if used, would overrule such provisions. Even before the passage of ASPA, the US declared the unprecedented “nullification” of its signature of the Rome statute in May 2002, and began aggressive efforts in the Security Council in the months following to obtain exemption for US peacekeepers from the jurisdiction of the ICC.
The jurisdiction of the ICC was established when its treaty entered into force on July 1, 2002. This court will be the first permanent, independent judicial body capable of trying individuals accused of genocide, war crimes and crimes against humanity. An advance team of the ICC is already operating in the Hague and the court is expected to begin hearing cases by mid-2003.
Indeed, the ICC is being set up and paid for by countries that ratify the Rome statute — 87 to date, while 138 States have signed the statute.
The writer is Director, South Asian Human Rights Documentation Centre