Answer: The International Criminal Court (ICC) is a permanent court to prosecute serious international crimes committed by individuals. It was established in 2002 under the Rome Statute and has jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes and crimes of aggression. The court has played a critical role in the international legal architecture to combat massive human rights violations which affect peace and security. Some of its investigations, trials and remarkable rulings include:

• In 2011, the court had issued arrest warrants against Muammar Gaddafi in connection with civilian killings during the Arab Spring protests.
• Similarly, ICC had issued arrest warrants in 2009 and 2010 against former Sudanese Head of State Omar Al Bashir for alleged war crimes.
• In November 2021, the ICC decided to open an investigation into alleged crimes against humanity committed during Venezuela’s clampdown on anti-government protesters in 2017.
• In 2019, the ICC opened an investigation into alleged persecution of the Rohingya population across the borders of Myanmar and Bangladesh.
• Investigation is also going on into alleged war crimes committed in Afghanistan since 2003, which is when it became an ICC member.
• Based on ICC rulings, convictions have been made in cases from the Democratic Republic of Congo, Uganda and Mali.

Despite its noble aspirations, the ICC comes up against continued scrutiny and criticism over its operational activities such as:

• Jurisdiction: ICC has automatic jurisdiction only for crimes committed on the territory of a state which has ratified the treaty; or by a citizen of such a state; or when the United Nations Security Council refers a case to it.
• Also, the court has no retrospective jurisdiction as it can deal only with crimes committed after 1 July 2002 when the 1998 Rome Statute came into force.
• Dependent on state cooperation: It does not have its own police force or enforcement body and thus relies on cooperation with countries for support.
• Lack of participation: Countries like the US and Russia, have historically and fundamentally opposed ICC and hence weakened the court on a fundamental moral basis.

India opted to remain out of it is based on the following principal objections:

• By providing extraordinary power to the UN Security Council to refer cases and bind on-States Parties to the ICC, it violates Vienna Convention on the Law of Treaties and undermines state sovereignty.
• It refused to designate the use of nuclear weapons and terrorism among crimes within the purview of the ICC, as proposed by India.
• It vested wide powers to initiate investigations and trigger jurisdiction of the ICC in the hands of an individual prosecutor.
• It blurred the legal distinction between normative customary law and treaty obligations and in turn placed countries in a position of being forced to comply with provisions of international treaties they have not yet accepted, through the Rome Statute.

Justice contributes to long-term peace, stability and equitable development in post-conflict societies. Thus, states should encourage cooperation with ICC towards the fulfilment of ICC’s mandate. Even if India is not ready to join, it should move towards a posture of constructive engagement with the ICC as an observer.