Tuesday, December 16, 2008

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.
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