Double standards of International Criminal Court

Sandeep Dikshit

Russian President Vladimir Putin’s slated arrival to New Delhi in July will not be a run-of-the-mill visit. In March, the International Criminal Court (ICC) in The Hague issued arrest warrants against Putin in order to make him stand on trial for alleged war crimes during the ongoing Ukraine conflict. The West led by the US and the EU, which were instrumental in getting the ICC to act against Putin, now doesn’t want any country to host him, especially ones that have signed the ICC covenant.

As India has not signed the ICC covenant, it can well argue that its pre-trial warrants against Putin are not applicable if he arrives here. India has scrupulously stayed away from signing the ICC statute. Though the ICC has a universal sounding ring to it much like the UN, in the past it has acted only against the Slavs (Serbia and Russia). And never against the razing of countries when the perpetrators were from the developed world. The first quarter of the 21st century is yet to be completed but there are already three glaring examples of Libya, Afghanistan and Iraq where the ICC turned a blind eye to the perpetrators of their barbarous and savage dismantling by military force. Their scars are yet to be healed by the legacy of violence left behind by the West in these ‘civilising missions’.

India was not a latter-day convert in opposing selective arraignments by international tribunals. The concept of sovereign jurisdiction within national territory is ingrained in the Indian national psyche. The earliest example of this Indian characteristic was on display as far back as in 1946 at ‘The International Military Tribunal for the Far East’, better known as the Tokyo Tribunal. The sole dissenting judge in a tribunal of 11 was the Indian Radha Binod Pal. He was a late addition to lend balance to what was ‘fundamentally a white man’s tribunal’, according to historian John Dower. In the closely argued 1,200-page dissent, Justice Pal rejected the legitimacy and authority of the Tribunal as an ‘instrument of victor’s justice’ and acquitted all Japanese leaders of all the charges.

The bias has continued to the present day. Beginning with the rarely-touched CIA-mentored monsters during the Cold War, who pulverised countries like Vietnam, Chile, Indonesia and East Pakistan, today there is ample video and documentary evidence to convict many times over US President George Bush and his Nobel Peace prize-winning successor Barack Obama for ordering the carpet bombing of cities in Afghanistan, Iraq and Libya and then following up with either ground forces or missile-tipped drones.

In fact, there is a considerable body of academic research called ‘Third World Approaches to International Law (TWAIL)’, which establishes that the western states are de facto immune from prosecution by the ICC. It also argues that this so-called international law contributes to the marginalisation and domination of the Third World states by the West. Though the ICC’s jurisdiction is supposedly universal, it has fought shy of prosecutions beyond the geographic scope of Africa, Yugoslavia and Russia. Or, to put it in racial terms, it has moved only against the Blacks and the Slavs.

India has always been a natural supporter of international cooperation to deter heinous crimes, as is evident from its active participation in the UN, Interpol and the Financial Action Task Force. But given the free passes given to Bush and Obama, it cannot be faulted for believing that ICC is a flawed instrument meant to perpetuate the global imbalance of power.

It also apprehends that the ICC could bite it later as it progresses the global ladder in military, technological and economic power. Not too far back, the UN and the UNSC were used as a pressure point against Indian security forces engaged in counter-insurgency operations in Jammu and Kashmir, the North-East and Punjab. Regardless of their ideological makeup, no Indian leader can can ever afford to give space to some politically-driven ICC prosecutor to indict its military commanders for alleged crimes committed while they were in active operations either in the country or on UN peacekeeping missions. There has been no lack of effort though. On May 31, 2013, the UN had urged India to set up a commission of inquiry. serving as a transnational justice mechanism, into alleged extra-judicial killings in the North-East.

The ICC’s proponents say that it is here to stay as an increasingly central institution in the international legal architecture to combat massive human rights violations which could affect peace and security. But there must be a deep flaw in its pillars which has dissuaded many major countries, including India, Russia and China, from even toying with the thought of acceding to its conventions. More so, when the US, the self-acknowledged guardian of global democratic values and the driving force behind ICC’s exertions, is not a member and had even voted against the ICC Convention.

After the Afghanistan invasion, the US diplomats had fanned out in the world signing Bilateral Immunity Agreements, including with India in 2002, to ensure its soldiers were not, on an off-chance, indicted by the ICC.

Two weeks back, India played host to Russian Defence Minister Sergei Shoigu, who along with his Chinese counterpart, Li Shangfu, are sanctioned by the US. Last week, Russian Foreign Minister Sergei Lavrov visited India. With two of his innermost circle having been tested out, Vladimir Putin should come to India in July for the SCO summit under India’s presidency. As South African Foreign Minister Naledi Pandor said, “While we are friends with many all over the world, we cannot become sudden enemies at the demand of others.”

South Africa in a soup

While Vladimir Putin is likely to come to India in July, South Africa is squarely in the sights of the pro-ICC camp. Having ratified the ICC statute, South Africa needs to walk out of the body to enable Putin to attend the Johannesburg BRICS Summit in August. The ruling African National Congress says ICC has an “unfair” attitude towards “certain countries”. The ANC should know. During Apartheid, West-backed white leaders perpetrated atrocities on ANC members as well as neighbouring countries. Even before the Ukraine conflict broke out, South Africa was alive to the possibility of misuse of the ICC warrant. In 2016, then President Jacob Zuma wanted to walk out of ICC. In 2019, it joined 55 nations in opposing the ICC’s arrest of then Sudan President Omar al-Bashir.

It had said the ICC was “acting as a neo-colonial force seeking to further empower western political and extractive interests in Africa”.

ICC’s Tardy record

Total persons publicly indicted: 52

Ongoing proceedings against        22

Not arrested so far                         16

Pre-trial phase                                 1

On trial                                             5

Proceedings completed against: 30

Serving sentences                            2

Finished sentences                           7

Acquitted                                           4

Charges dismissed                           7

Charges withdrawn                           3

Died before proceedings over           7

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