After the World War II, the Allied powers (Britain, Russia, France, and the United States) launched its first international war crime tribunal, to prosecute the top Nazi officials, known as Nuremberg Trials. After 1990 many countries commix around the idea of a permanent court, where the world’s most heinous crimes are tried. To deal with the war crimes in Yugoslavia and Rwanda, United Nations expediently took a step to set up an international criminal tribunal. Later, this was considered as inefficient and inadequate by the many international law experts. In the year 1989 Trinidad and Tobago requested the UN commission look into the creation of a permanent court. In the following years, many efforts were put to make one single court for executing the criminal cases at one court. Finally in the year, 1998 on 17 July, 120 states adopted a statute in Rome-known as the Rome Statute of the International Criminal Court (‘’the Rome statute’’) to establish the International Criminal Court. The court was established to execute the most serious crimes committed in the territories of signatories or by their nationals. It came into force in the year 1st July 2002.
ICCJ is the independent body located in Hague, the Netherland. There are 122 countries as parties to the Rome Statute. Some forty countries never signed the treaty among which one was India. The Statute of the International Court of Justice does not contain a limitation or has particularized its limit of conduct and also the absence of opt-in provision made India not to sign the treaty. India also fears dilution of sovereignty threat from the powers. Signatories of the Rome Statute have to follow the inherent Jurisdiction of ICCJ which was not agreed by Indians. All the proceedings, investigation and judging in the Indian system may be judged by the ICCJ which leads to interference by the powers.
How does the court work?
International Court of Justice hosts many international institutions and has filed offices in several countries. It tries cases between countries, not an individual. The court has eighteen judges, each from a different country, elected by the signatories. The investigative works are carried through the prosecutor. The judges and prosecutors are elected by the member and from a different member country for a non-renewable time of nine years. The presidency consists of three judges selected from the eighteen judges among which one is president and the other is Vice President.
The court has jurisdiction over four categories of crime:-
1. Genocide or any act was done to destroy in whole or in part a national, ethnic, racial, or religious group.
2. War crimes or grave breaches of the laws of war (Geneva Conventions) torture and attacks on civilian targets, such as hospitals or schools.
3. Crime against humanity includes large scale attacks against civilian populations, which include murder, slavery, torture, rape, and imprisonment.
4. Violation of UN charter, the crime of aggression, use of force by a state against the territorial integrity, sovereignty or political independence of another state.
Any state party to the Rome Statute can request the office of the prosecutor to carry out an investigation. If the crime is carried out in the territory of its members and the state request the office of the prosecutor to investigate the crime then if the other state not being the party to the Statue can also accept the jurisdiction of the ICC. The United Nations Security Council may also refer a situation to the court.
The court exercises its jurisdiction on the crime falling within the above four mentioned categories, committee by a state party. The court has no jurisdiction over the cases of crime of aggression unless it is not referred by the UN Security Council. In fact, the court does not have jurisdiction on the cases of crime of aggression if the party decline to be the member of the statute of the party has not signed the statute.
Overview of the case of Kulbhushan Jhadav
It was one of the major legal and diplomatic victories with a judgment of 15:1. The dissenting judgment was from Pakistan Judge Gilani. The other major victory was China’s supported order in favor of India
i. On May 8, 2017, India filed an application instituting proceedings against Pakistan alleging the violation of the Vienna Convention on Consular Relation. Vienna Convention on consular state means an international treaty that defines the consul framework between two states. A consul is a representative of the government official of one state who represents the state or his citizens in another nation and maintains a friendly relation between the two countries.
ii. In this case under the Vienna Convention India filed an application that Pakistan is denying a consular officer’s access to Indian detained in Pakistan by name “Mr. Kulbhushan Sudhir Jadhav”. He was arrested by the Pakistani government from Baluchistan alleging that he is ‘Ali Hussain Mubarak Patel’, an Indian nationalist and a member of Research and Analysis Wing Intelligence Agency, over the charges of terrorism.
iii. Mr. Jhadav was detained by the Pakistanis personnel and also passed a death sentence by a military court in Pakistan in April 2017 without informing of his arrest and detention to the Indian government.
iv. Pakistan’s government violated Article 36 of the Vienna Convention that is communication with the consular officer, which could have arranged him a legal representative.
v. On the same day, India also filed a Request Application, wherein requesting the court to take provisional measures and direct Pakistan to stop the execution of Mr. Jhadhav.
vi. Accepting the request of the Indian government ICCJ ordered Pakistan to stop the order dated 8 May 2018 i.e., the execution of the death sentence of Mr. Khulbhushan Jhadhav. The Court also after viewing all the facts and circumstances of the case stated that Mr. Jhadav was denied his right of consul officer under Article 36 of the Vienna Convention and also failed to inform the Indian government about his detention and arrest. Later, the court order Pakistan to provide Mr. Jhadhav his legal representative and denied the request of the Indian Government to send back Jhadhav as he was alleged by the Pakistani government to be involved in espionage activities.
“The views of the authors are personal“
Frequently asked questions
What is ‘War Crime’?
According to the Roman statute, war crimes are the crimes that are part of a plan or policy and on a large scale. It includes murder, mutation, killing, torture, rape, attacking a civilian population, historical monuments, hospitals and etc.
What is a crime of aggression?
A crime of aggression means planning, preparation, initiation or execution of an act using armed force by a state against the sovereignty, territorial integrity or political independence of another state. International Court of Criminal Justice can only have jurisdiction over the crime of aggression if the state is a signatory to the policy or accepts the jurisdiction of the ICCJ.
How do cases come before the Court?
Any state party to the Rome statute can request the office of the Prosecutor to carry out an investigation.
A state not the party to the statute can accept the jurisdiction of the ICCJ with respect to the crime committed in its territory or by one of his nationals and can request the Prosecutor to carry out an investigation.
Is the verdict of ICCJ is binding?
Yes, the verdict of ICCJ is binding, final and without appeal but only on the states signatory to the statute.
Who can file complaints?
The complaint can be filed in ICCJ by the states not the individuals. Security Council can also file a complaint in ICCJ and the party not being the signatory if it accepts the jurisdiction of the ICCJ.
