The International Criminal (ICC) has issued an arrest warrant for Israeli Prime Minister Benjamin Netanyahu.
Netanyahu has been charged alongside his former defence chief Yoav Gallant as well as Hamas leader Ibrahim Al-Masri for alleged war crimes and crimes against humanity in the Gaza conflict.
In their decision, the ICC judges said there were reasonable grounds to believe Netanyahu and Yoav Gallant were criminally responsible for acts including murder, persecution and starvation as a weapon of war as part of a “widespread and systematic attack against the civilian population of Gaza.”
The ICC earlier issued an arrest warrant for Russian President Vladimir Putin for allegedly illegally deporting hundreds of children from Ukraine.
Kremlin called the arrest warrant, issued in March 2023, meaningless.
While Netanyahu has called the move ‘antisemitic’ and described the development as a dark day for humanity, some countries including Netherlands, Switzerland, Ireland, Italy, and Spain have said they would meet their commitments and obligations under the Rome Statute – which has been ratified by 124 countries and which governs the ICC.
However, India is not bound to do so as it has not ratified the Rome Statute and is not a member of the ICC.
This, despite India being a member of the International Court of Justice (ICJ).
But why is India a member of the ICJ and not the ICC?
Let’s take a closer look
A brief look at ICC
First, let’s briefly examine the ICC.
The ICC was established in 2002.
This was done to prosecute war crimes, crimes against humanity, genocide and the crime of aggression when member states are unwilling or unable to do so themselves.
The court can prosecute crimes committed by nationals of member states or on the territory of member states by other actors.
It has 124 member states.
Its budget for 2024 is about $196 million.
The ICC is conducting investigations, ranging from Ukraine and African states such as Uganda, Democratic Republic of Congo and Kenya to Venezuela in Latin America and Asian nations such as Myanmar and the Philippines, according to its website.
Its website says there have so far been 32 cases before the court, with some cases having more than one suspect. ICC judges have issued at least 56 arrest warrants.
However, the pace of justice is slow in the ICC.
Just 21 people have been held in the ICC detention centre and have appeared before the court.
At least 20 people remain at large. Charges have been dropped against seven people due to their deaths. The judges have issued 11 convictions and four acquittals.
Of those 11 convictions only six have been for the court’s core crimes of war crimes and crimes against humanity, the others were for crimes like witness tampering.
The six convicted men were all African militia leaders from Democratic Republic of Congo, Mali and Uganda.
Terms range from nine to 30 years in prison. The maximum possible term is life imprisonment.
A prominent fugitive is
Putin, accused of the war crime of illegally deporting hundreds of children from Ukraine.
Although the court is supported by many United Nations members and the European Union, other powers such as the United States, China and Russia are not members, arguing the ICC could be used for politically motivated prosecutions.
India, as mentioned previously, is not a member of the ICC and is thus under no obligation to arrest either Netanyahu or Putin.
The
International Court of Justice (ICJ), on the other hand, is the principal judicial organ of the United Nations (UN).
It is the United Nations’ highest court for resolving international disputes.
It was established in 1945 by the San Francisco Conference, which also created the UN.
All 193 members of the UN are party to the statute of the ICJ, and non-members may also become parties.
The court’s inaugural sitting was in 1946.
The ICJ’s precursor was the Permanent Court of International Justice, which fell into irrelevance owing to the inability to enforce its mandate, especially during the intervening war years.
The ICJ is a continuing and autonomous body that is permanently in session.
According to DrishtiIAS, the ICJ is not comprised by government representatives.
Instead, its members are independent judges whose duty, above all, is to use their powers impartially and conscientiously.
The ICJ comprises 15 judges — no two of whom may be nationals of the same state — who are elected to nine-year terms by majority votes in the UN General Assembly and the Security Council.
The judges, one-third of whom are elected every three years, are eligible for re-election. The judges elect their own president and vice-president, each of whom serves a three-year term, and can appoint administrative personnel as necessary.
The seat of the ICJ is at The Hague, Netherlands, but sessions may be held elsewhere when the court considers it desirable to do so.
The official languages of the court are French and English.
According to Drishti IAS, India has had four judges appointed to the ICJ – Sir Benegal Rau (1952-1953), Nagendra Singh (1973-1988), Raghunandan Swarup Pathak (1989-1991) and Judge Dalveer Bhandari (since 2012).
India has been party to the ICJ six time thus far.
This most recently occurred in the Kulbhushan Jadhav case in 2019, against Marshall Islands in 2016, against Pakistan in 1999, 1973 and 1972 and versus Portugal in 1960.
While the ICJ’s advisory opinions are not binding under international law, they are significant legally and politically.
How are the two different?
While they can be easily confused, and often are, there is a straightforward way to remember the difference.
The ICJ is an arena to litigate cases that concern countries.
The ICC, on the other hand, a
criminal court.
Here, cases are brought against certain individuals for war crimes or crimes against humanity.
The ICJ is also an arm of the UN, while the ICC is a legally independent body.
While not all 193 UN Member States are parties to the
ICC, it can launch investigations and open cases related to alleged crimes committed on the territory or by a national of a State party to the ICC or of a State that has accepted its jurisdiction.
Cases have been heard and decisions rendered on a range of violations, from using rape as a weapon of war to conscripting children as combatants.
Why is India party to one and not the other?
Some claim that countries – such as the United States, China, Russia and India – are not part of the
ICC because they are wary of being prosecuted for political reasons.
“There remains fear of actually being investigated by the court for the commission of atrocity crimes, given the military projection of both countries regionally or globally, and fear of being prosecuted for political, rather than evidence-based, reasons,” David Scheffer, a former US ambassador and a chief negotiator of the statute that established the court, told The New York Times.
Scheffer said that “no country’s leaders should, as a matter of policy and of law, enjoy impunity for intentionally committing genocide, war crimes or crimes against humanity.”
This theory, he added, “has been pursued with determination (and American support) in Ukraine, which shortly will become the 125th member of the ICC.”
But ex-diplomat Dilip Lahiri, writing for the Observer Researcher Foundation, laid out a number of objections India has to the Rome Statute.
These included
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Made the ICC subordinate to the UN Security Council, and thus in effect to its permanent members, and their political interference, by providing it the power to refer cases to the ICC and the power to block ICC proceedings.
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Provided the extraordinary power to the UN Security Council to bind non-States Parties to the ICC ; this violates a fundamental principle of the Vienna
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Convention on the Law of Treaties that no state can be forced to accede to a treaty or be bound by the provisions of a treaty it has not accepted.
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Blurred the legal distinction between normative customary law and treaty obligations, particularly in respect of the definitions of crimes against humanity and their applicability to internal conflicts, placing countries in a position of being forced to acquiesce through the Rome Statutes to provisions of international treaties they have not yet accepted.
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Permitted no reservations or opt-out provisions to enable countries to safeguard their interests if placed in the above situation
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Inappropriately vested wide competence and powers to initiate investigations and trigger jurisdiction of the ICC in the hands of an individual prosecutor
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Refused to designate of the use of nuclear weapons and terrorism among crimes within the purview of the ICC, as proposed by India
He also denied that fear of prosecution was the reason for New Delhi’s reluctance to join the ICC.
Lahiri argued that effective participation by India, even as an observer, could influence the evolution of the ICC.
“The specter of high ranking Indian civil and military officials being on the run to evade ICC arrest warrants if they travel abroad is farfetched. First of all, there are strict safeguards in place against a politically motivated Prosecutor running off with the bit between his teeth, and the Prosecutor has to obtain prior authorization to proceed with an investigation from a Pre-trial Chamber of judges of the ICC,” Lahiri wrote.
“Concerns about Indian leaders/military commanders being prosecuted by the ICC if India joined are highly exaggerated,” Lahiri argued.
“Even if India is not ready to join, it should move towards a posture of constructive engagement with the ICC.”
With inputs from agencies