International Justice Day, 17 July 2008
- Global fight against Impunity -

By Professor Naorem Sanajaoba *

The global culture of impunity enjoyed by heinous criminals-be it a citizen, a soldier or, the Chief of the Defence Staff or, the head of Government whosoever or, leader of liberation movement - is gradually terminated by International Criminal Tribunals starting from the victors' Nurenberg tribunal' to the permanent ICC- the International Criminal Court, set up at the Hague in conformity with the Rome statute, 17 July, 1998.

Individuals, who have allegedly committed heinous crimes – crime against humanity, war crimes, genocide and crime of aggression [when it would be defined] shall be criminally responsible for the crime committed. Accountability terminates the culture of impunity. Human history, that witnesses a million dead, maimed, tortured, raped, molested and degraded in this epochal Armed Conflicts, is no longer the same and it would not be so anymore after the ICC starts functioning in 2002.

The International Community is celebrating 17 July as the 'International Justice Day', with a solemn pledge to terminate the wrongly established culture of impunity only to be replaced by a culture of accountability- individual criminal responsibility, to be more specific in terms of contemporary international rule of law.

139 countries have signed, and 102 countries have already ratified the 1998 Rome statute. In Asia, Bangladesh, Japan, Mauritius, among others, have become parties to the statute and Nepal, Indonesia, Phillipines are prepared to accede the treaty.

Leading democracies like India in Asia which enabled incipient mid-wifery of and facilitated the ICC birth in 1998 remain fence seaters - most of the MPs choosing to be silent on the accountability need. Certain NGOs in India hold one or two decadal, elitist enclaves inspite of educating and actively lobbying the sensible sections of the MPs and engaging with effective mass–based civil society organizations.

After the USA signed the Rome statute in December, 2000, it hastily backed out because apparently of its vital military commitments all over the world; she has adopted BIAs – Bilateral Immunity Aggreements in order to avoid the ICC net. However, a vast majority of the peace- loving Americans [ 60% as per one report of the CICC] favour their government to join the international community, without standing out as a pariah ,while fighting out the immunity, through the ICC mechanism.

After all, it was the USA to launch the international tribunals like the ICTY, ICTR in the 1990s, among others, and hook on Yugoslav president Milosevic, nearly all the top echelon, military commanders ,and the erstwhile prime minister of Rwanda, currently undergoing life term, as no capital punishment could be awarded by the international rule of law and justice.

The USA Administration desires to eat the cake and have it too in the province of international justice. The ICC jurisdiction gives primacy to national criminal and penal jurisdictions. Only when the national jurisdictions fail to roll back the immunity of heinous criminals due to inefficacy of the system or, lack of will on the part of the leadership to fix accountability of heinous crimes, the ICC could step in on the basis of its principle of complimentarity, which does not erode the primacy of national sovereignty.

In the event of democracies like India and the USA enacting National Penal Laws compatible with the elements of crimes and the corpa delicti of the Rome statute, the ICC lacks the opportunity to step in any penal law vacuum of the states. They lack the compatible penal laws even today and their legislators are indifferent to the dire need of terminating impunity even today.

The International Community does not desire that heinous criminals evade individual criminal responsibility and enjoy the culture of immunity, by way of escaping the ICC net or, jumping over no-net vacuum embedded in the national legal system. Indian leadership has sufficient sensibility to overcome the obvious shortcomings and join the ICC international fraternity before it is too late in the day. Indian concerns could be eloquently addressed in the ASP - Assembly of State Parties, once she becomes a state party to the Rome statute.

But for a misconceived foreign policy strategy engaged towards the ICC regime that led to Indian proposal for raising the ICC threshold in July, 1998 conference - which the international consensus was not prepared to compromise with at the cost of an historic international permanent tribunal , India long back could have been a state party to the ICC statute.

It was remarkable that India happens to be a few leading countries that originally conceptualized the ICC; but Indian bureaucracy failed India as well as the world community, by her sudden exit on the defining day and technically raising the ICC threshold contrary to the hard-won global consensus. A positive and imaginative rethinking is possible on the part of the Indian administration .

The first ICC trial of a charismatic Congo national liberation leader- Thomas Lubanga Dyilo had been fixed on 23 June, 2008, after the charges have been confirmed by the pre-trial chamber of the ICC. Dyilo,a national of the Democratic Republic of the Congo[DRC], the alleged founder of the UPC[ Union des Patriotes Congolais] and former commander-in-chief of the FPLC [Forces patriotiques pour la liberation du Congo] and president of the UPC has been charged by the PTC of the ICC on the basis of individual criminal responsibility [article 25(3) (a) of the Rome Statute with, among others, for committing' the war crime of enlisting children under the age of fifteen punishable under article 8(2)(b)(xxvi) or article 8(2)(e)(vii) of the Statute;the charges have been confirmed, hence the first ICC trial ..

When Ituri conflict started between Hema ethnic group to which the UPC and Dyilo belong and the Lendus ethnic group,UPC has forcibly conscripted child soldiers, allegedly committed large scale murder, rape and torture of civilians. Noine MONUC peacekeepers have been murdered on 25 March, 2005. In fulfilment of ICC's arrest warrant, Dyilo has been arrested on the charge of commiting war crime by" conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities".

In Northern Uganda,arrest warrants have been issued against Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo, Dominic Ongwen. In the DRC, as many as four offenders have been issued warrants. Dyilo and Germain Katanga have been arrested by the ICC. Third arrest warrant have been issued against Mathieu Ngudjolo Chui, who along with Germain Katanga of the Lendu ethnic group and their FNI [National Integrationst Front], and the FRPI[Patriotic Resistance Force in Ituri] have committed crimes in the village of Bogoro, Ituri. The fourth arrest warrant has been issued against Bosco Ntaganda - the current commander of the Mouvement Revolutionaire du Congo.

A third front of investigation is likely to be opened in the Kivu region by the OTP. On the basis of the UN security council referral in March, 2005 [USA has not exercised veto], in Darfur, Sudan, arrest warrants have been issued against Minister Ahmed Haroun and militia leader Ali Kushayb. Active investigations continue in the CAR[Central African Republic]. Unlike several other countries, the USA does not hesitate to take recourse at her chosen bidding to the UN security council referral to the ICC or, to the establishment of international criminal tribunals and ignore them at her convenience. The American people has not lost the opportunity to raise their government to a higher pedestal in international rule of law. Same is equally true for the Indian people who despise injustice.

The ICC has received complaints concerning the state parties viz. Burundi, Colombia, Gambia, Georgia, Iraq, South Africa and Venezuela , and complaints not concerning state parties- Bhutan, Cote d'Ivoire, Iran, Israel, Lebanon, Somalia, Sri Lanka, Thailand and Zimbabawe. By 2008, as many as 40 countries have enacted domestic penal laws recognizing the heinous crimes so defined by the Rome statute, 1998.

On the other hand, thanks largely to the US initiative, impunity termination has been the objective of setting up other tribunals like-Sierra Leone tribunal [ US funding 29.9 million dollars in 2004], ECCC of Cambodia[US funding 56.3 million dollars],Iraqi tribunal [ also known as Paul Bremer tribunal,US funding largely through the US financed Iraq budget] and, also the ICTY [US funding 272 million dollars in 2005 ], the ICTR[US funding 256 million dollars in 2005]. The USA is yet to contribute a modest funding to the ICC .

The unipolar world has provided sufficient political space to the USA to navigate the world order towards durable peace by strengthening the international rule of law and justice.The navigation might face disadvantages if the rule of law course, the ICC has already charted out is weakened,and the willofthe international community bent by unilateral action of the power that be.

By revisiting the international rule of law, we could appreciate that criminality of some of the heinous crimes have been recognized by the international law.Binding treaties as well as customary international criminal law and the non-derogable International Humanitarian Laws lay down jurisdiction over heinous crimes like genocide, war crimes and torture. As regards the crime against humanity, customary law provides for permissive universal jurisdiction; however, mandatory universal jurisdiction is yet to be evolved in the absence of codification and treaty laws.

The civil law countries provide for the universal jurisdictions in their ordinary penal codes, whereas the common law countries including India incorporate universal jursdictions in the vent of grave breach of Geneva conventions in their national legislations. The Rome statute paves way for harmonious application of civil law and common law.The long march of the permanent ICC– the odyssey of international justice has started with small steps.

The ICC consolidation has been initiated and the ICC jurisprudence is gradually taking shape with the ASP review conference in the offing in 2010, which may, in all likelihood review article 124 of the Rome statute,consider the inclusion of terrorism and drug crimes in the statutory corpa delicti . The agenda of defining aggression remains the active concern of the ASP. Among the suggestions advanced so far for the definition, the UN general assembly resolution no. 3314 of 1974 might be addressed.It could be painstaking, and sustained concern of the ICC community to hammer out the aggression definition.

Before we examine the progress of the arrest warrants, international cooperation and holding of trials, we could position ourselves to the strategies of the prosecutor and of the court. The OTP[ office of the prosecutor] lays down three prosecutorial strategies so far viz., positive complimentarity, focused investigations and prosecutions with a view to maximizing the OTP efforts to combat impunity and deterrence of heinous crimes.

Besides, the ICC strategises its threefold objectives viz., maintenance of high standards and quality of justice, strengthening the support base of the institution and, streamlining public administration by way of streamlining processes, maintaining flexibility and guaranteeing accountability. Two events are noteworthy-in situ Congo trial and the ICC permission to the victims to present actively in the trial. The first ICC president as well as the UN secretary general have recurrently sought active international cooperation in order to consolidate the ICC process.

17 July- the day the Rome statute had been adopted a decade ago in 1998 is celebrated as International Justice Day by the International Community, which had been waiting for impunity termination, for a along period of time. History happens once again subsequently after the emergence of the United Nations as a significant human event.

---

* Professor Naorem Sanajaoba, Law Department - Gauhati University, Assam (Past Dean, Law Faculty ) contributes regularly to e-pao.net . The writer can be reached at naorem06(at)yahoo(dot)co(dot)in . This article was webcasted on July 15, 2008.

---