22nd November 2014
Further thoughts on the jurisdiction of international courts re: Modi’s alleged genocide
A couple of months ago I had expressed a view that Modi – while without any doubt (in my mind) DIRECTLY INVOLVED in the Gujarat massacre of hundreds of innocent people – cannot be tried by any international jurisdiction for these crimes.
I wrote "let Indians fix this issue.They have the capacity and power to do so through the democratic and parliamentary process".
This raised a strong email discussion after which I have not had time to pursue further. In the meanwhile an Australian court has also taken cognizance of Modi's crimes.
I am reliably informed that I am wrong to object to international courts taking up the Modi crimes issue. Unfortunately, I have no time to review this material but to make sure I don't lose this info, let me post an email conversation I had, so others can join in, if they have the time.
Given the continuing destruction of justice in India (e.g. Nanavati's final report) and the TOTAL IMPOSSIBILITY of the victims of premeditated riots getting any justice in India, there may well be a case for considering international jurisdiction. India is not a Third World banana republic. It is far below that – in many ways worse than Chinese totalitarianism. The pretense of 'democratic' institutions probably doesn't cut much ice when your family /relatives have been massacred and the "justice" system absolves the main killers.
I've not finalised my view on this, and would appreciate your thoughts.
===EMAIL CORRESPONDENCE ON THIS TOPIC, TO DATE===
When he was summoned for his heinous acts committed against humanity you are saying the US court has no jurisdiction to do so When a state(INDIA) fails to prosecute him for his murderous crimes in the guise of defending a democratically elected leader it is quite natural that he will face music when he lands in a country(USA) where the people have freedom for nailing the criminals You know crime against humanity is punishable in all countries You cant raise the frivolous objection stating he committed in India not in the US Crime is crime Mr Sanjay You know the daughter of the unfortunate man who was cut into pieces is residing in Delaware Please put yourself in the situation of the cruel victim"s relative Then you will realize you cant shed tear for Modi
The only jurisdiction US might have in relation to crimes committed against its citizens is through treaties with other countries. Any aggrandizement by US to assume powers over incidents occurring in other countries is ultra-vires. That's pure colonisation.
It is up to Indians in India to fix Modi. Let India awake.
To me it is an over simplification of a grave issue Crime against humanity is punishable in every nook and corner of democratic world There is no aggrandizement or whatsoever as you inferred
The Supreme Law of the United States of America that is the US constitution is applicable to those who are in that land The summons is issued not by the political organ in the US Had the issue been irrelevant the court wouldnot have issued summons
Hypothetically you would condone Hitler in case he was caught in India stating India has no jurisdiction for the genocide happened in the cobcentration camps You would say India should extradite him to Germany Interpreting conventions in this way will defeat the very purpose of the law against criminals This is not a case of one country trespassing to other country's domain A person accused of genocide is to be indicted by the court irrespective of the nationality or geographical boundary India let him go scot free Just because he has people's mandate his crimes should be extenuated ? Sadly you experience a vicarious feeling wrongly assuming that embarrassment to Modi is an affront to all Indian Let us argue out our differences
India is a democracy. We ought to be able to fix our problems internally. It will be ridiculous if a court in India starts passing judgement on every "genocide" occurring in the world. For that there is the International Criminal Court at The Hague. Countries are sovereign. India's sovereignty is not available to question by USA.
Instead of depending on US court, fix India's systems.
Mr Sanjeev I cant disagree more Genocide is a crime against humanity All democratic countries" constitutions espouse the notion of penalising the perpetrators of the genocide.When any of those democratic institutions fails it is quite natural that others intervene to catch the transgressors When human rights are challenged in any country the onus of protecting the rights of the oppressed lies on other democratic countries Mr Sanjeev Why do you mix this cardinal principle with the notion of patriotism .Sadly Indian institutions failed in nailing Modi He put his feet in a country which people all over the world fathom as the citadel of the human rights Dont you agree the USA is the world"s oldest democratic country dating back to 1776 when the 13 states declared independence and eventually gave the British a mighty whoopin'.Since then, for 238 years, every leader has been elected and there have been no kings, no queens, no military juntas, no conquerors and no dictatorship
Our strength lies in finding just how far we can push the boundaries of Democracy. Hearing people like you it turns out it's pretty stretchy Mr Sanjeev
Please go read the laws re: genocide and how it is to be tried/ proven. It is not up to individual countries to do so. At least that's my understanding. Why don't you send me the relevant laws which authorise genocides to be dealt with by individual countries and I'll review.
Mr Sanjiv please throw light on the areas where you have not trotted before
Universal jurisdiction allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation with the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage.So please dont raise the frivolous objection stating that Modi can be tried only in India
The concept of universal jurisdiction is therefore closely linked to the idea that some international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens – that certain international law obligations are binding on all states.
The concept received a great deal of prominence with Belgium's 1993 law of universal jurisdiction, which was amended in 2003 in order to reduce its scope following a case before the International Court of Justice regarding an arrest warrant issued under the law, entitled Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium). The creation of the International Criminal Court (ICC) in 2002 reduced the perceived need to create universal jurisdiction laws, although the ICC is not entitled to judge crimes committed before 2002.
According to Amnesty International, a proponent of universal jurisdiction, certain crimes pose so serious a threat to the international community as a whole, that states have a logical and moral duty to prosecute an individual responsible for it; no place should be a safe haven for those who have committed genocide crimes against humanity, extrajudicial executions, war crimes, torture and forced disappearances.
The United Nations Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, "Reaffirm[ed] the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity" and commits the Security Council to action to protect civilians in armed conflicts
n 1993, Belgium's Parliament passed a "law of universal jurisdiction" (sometimes referred to as "Belgium's genocide law"), allowing it to judge people accused of war crimes, crimes against humanity or genocide. In 2001, four Rwandan citizens were convicted and given sentences from 12 to 20 years' imprisonment for their involvement in 1994 Rwandan genocide.An arrest warrant issued in 2000 under this law, against the then Minister of Foreign Affairs of the Democratic Republic of the Congo, was challenged before the International Court of Justice in the case entitled ICJ Arrest Warrant Case. The ICJ's decision issued on 14 February 2002 found that it did not have jurisdiction to consider the question of universal jurisdiction.
In September 2005, Chadian ex-President Hissène Habré (dubbed the "African Pinochet"). was indicted for crimes against humanity, torture, war crimes and other human rights violations by a Belgian court. Arrested in Senegal following requests from Senegalese courts, he is now under house arrest and waiting for (an improbable) extradition to Belgium.Neither Chadian citizens nor Rwandan citizens were up in the arms against this indictment citing colonisation or ultra vires
States can also in certain circumstances exercise jurisdiction over acts committed by foreign nationals on foreign territory. So the united states can exercise jurisdiction over acts committed by Modi on foreign territory
MY COMMENT (TO AN INTERNAL TEAM)
Does anyone know about this issue – universal jurisdiction? In my view Modi can't be tried by a US court, but looks like this gentleman thinks otherwise. Unfortunately, I don't have time to review the entire literature so will be glad to hear from anyone who knows.
The commentators are largely correct:
The ICC has universal jurisdiction for certain crimes, under certain conditions:
"The International Criminal Court (ICC or ICCt) is an intergovernmental organization andinternational tribunal that sits in The Hague in the Netherlands. The ICC has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, and war crimes and it may one day be able to exercise jurisdiction over the crime of aggression. The ICC is intended to complement existing national judicial systems and it may therefore only exercise its jurisdiction when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the United Nations Security Councilor individual states refer investigations to the Court. The ICC began functioning on 1 July 2002, the date that the Rome Statute entered into force. The Rome Statute is a multilateral treaty which serves as the ICC's foundational and governing document. States which become party to the Rome Statute, for example by ratifying it, become member states of the ICC. Currently, there are 122 states which are party to the Rome Statute and therefore members of the ICC."
Source: Wikipedia, emphasis mine
Following countries have either signed and not ratified or not signed at all:
- 3 Signatories which have not ratified
- 4 Non-party, non-signatory states
India keeps very good company, as you can see from the list above.
In Europe, Serb leaders have been prosecuted and jailed under the aegis of the ICC/ICJ. In Africa, Rwandan, Congolese, Sudanese and Libyan leaders have been tried at the ICC (both in-absentia and in-person). In Asia, the trials in Cambodia against the former Khmer Rouge leaders have been held under ICC aegis.
More recently, Bangladesh constituted its war crimes tribunal on the lines of the ICC procedures – although, it has been primarily a domestic affair, prosecuting the collaborators during the 1971 liberation war.
The United States, in some/many matters, behaves more like an empire rather than a single, sovereign country – on the basis of a couple of laws passed by US Congress/Senate, supported by US courts and actively prosecuted by its enforcement/spy agencies (primarily, FBI but supported by the CIA), the US has given itself absolute, extra-territorial jurisdiction, for crimes committed against US citizens, residents or interests.
Thus, the US can (under its laws) and does "abduct" people from other countries to face trial in its courts in criminal matters – rendition (legal or otherwise) is not a reason for an US courts to throw out a case.
Based on what I remember or what I have read, the US went down this route after the hijacking of an Italian cruise liner, Achille Lauro in 1985 by the terrorist wing of PLO – a wheelchair-bound American was shot in the head and thrown overboard by the terrorists, when they lost control of the situation. The US sent Navy seals to raid the ship, but by the time they arrived, the terrorists were on a plane to Libya. US fighter aircraft forced the plane down on an US base in Italy, but the Italians claimed jurisdiction and took custody of the terrorists. Later, an Italian court freed all the terrorists (forget the grounds) and they decamped to West Asia.
The US then came up with extra-territorial renditions as their preferred solution.