1. INTRODUCTION

“Peace will not come out of a clash of arms but out of justice lived and done.” - Gandhi

The history of the world has been one of the commission of grave atrocities bringing untold miseries to masses of humanity, coupled with absolute impunity for the perpetrators manning the state apparatus. Even the serious questioning of the ‘right’ of the state to arrange mass-killings is of relatively recent origins. However, even though the State has always enjoyed immunity, the sheer power that the State has come to enjoy in all spheres of human life with the advent of modernity, hence increasing its ability to inflict suffering manifold, makes the need to challenge this impunity all the more pressing.

Most international crimes are committed with impunity and justice is always bartered away for peace. Prosecutions of the offenders become victims of realpolitik, and rarely take place.1 Concepts like sovereignty of states are used to claim impunity for the most serious violations of human rights. Even to this day, despite all the development in international law that have taken place, the rule remains impunity and not accountability.

However, the realisation of the need to end this impunity really dawned on the world after the horrors of the Nazi experiment in Germany which pitted the might of the State against communities of defenceless people. Though after the Nuremberg trials, a number of serious human rights violations went unpunished, like the ones committed by the Pol Pot regime or the Iraqi regime, the international consensus on the legitimacy of Nuremberg principles, the applicability of universal jurisdiction to international crimes and the need to punish the offenders slowly solidified. Still, the concept of State sovereignty remained paramount and any attempt to dilute it by having credible means of enforcing these principles was frustrated due to the big power rivalry. After the end of Cold War, however, the political climate became conducive to greater consensus on the issue, leading to the establishment of the International Tribunals on Rwanda and Yugoslavia, finally culminating in the adoption of the International Criminal Code.2

The establishment of the ICC has raised great hopes for those clamouring for accountability in case of violations of human rights. As a permanent court, it has the semblance of a rule of law institution. A commentator has suggested that only with the establishment of the ICC can international law enforcement escape the criticisms of unevenness (some crimes go unprosecuted), inequality ("victor's justice") and politicization (high level wrongdoers escape prosecution) that have been leveled at the ad hoc tribunals created to prosecute war crimes since World War II.3

1 M. Cherif Bassiouni, “The need for international accountability” in International Criminal Law: Volume III: Enforcement (M. Cherif Bassiouni ed., 2nd edn., New York: Transnational Publishers Inc., 1999) at 3, 5-6. 2 Theodor Meron, “International criminalization of internal atrocities”, 89 AJIL 554 (1995).3 Mark A. Summers, “A Fresh Look At The Jurisdictional Provisions Of The Statute Of The International Criminal Court: The Case For Scrapping The Treaty”, Wisconsin International Law Journal, 57, 64-65

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Of course the path towards the establishment of the ICC was not easy. Compromises made all along to accommodate various interests leave much to be desired in the Rome Statute for an effective court. However, a strong court required not only strong legal powers but also wide ranging political and financial support, which made compromises essential.4

However, the compromises notwithstanding, the ICC failed to muster the support of important states like the U.S., India, Israel and China, and therefore big question marks stare at the face of its future.

While the Court was just being born, Gujarat, a State in western part of India witnessed large-scale human rights violations with mass killings, rapes and tortures of the local Muslim population, allegedly with State complicity. On February 27, 2002, a train carrying activists of the Vishwa Hindu Parishad (VHP), a Hindu right wing organisation, was allegedly torched by a Muslim mob when it reached the town of Godhra, a high Muslim density town in Gujarat. Fifty-eight people, including many women and children were killed in the incident. The activists were returning form Ayodhya, Uttar Pradesh, where they supported a campaign led by the VHP to construct a temple of the Hindu God Ram on the site of a sixteenth century mosque destroyed by Hindu militants in 1992. 5

The incident was followed by a three-day retaliatory killing spree by Hindu mobs between February 28 and March 2, 2002, which left about two thousand dead, and tens of thousands raped, homeless and dispossessed.6

In this backdrop, an important question is to analyse whether the ICC would serve as an effective institution in such situations. Therefore, the object of this paper is to critique the ICC in the context of a country like India by taking a real example of the crimes committed in Gujarat, as well as analyse the crimes committed in Gujarat under international law. So, even though India is not a party to the treaty, this paper attempts to hold the trial for the crimes committed in Gujarat before the ICC.

(Winter, 2001).4 Philippe Kirsch & John T. Holmes, “Developments in international criminal law”, 93 AJIL 2 (1999) at 10.5 “‘We have no orders to save you’: State Participation and Complicity in Communal Violence in Gujarat”, Vol. 14 No. 3(C) Human Rights Watch, April 2002 at http://www.hrw.org/reports/2002/india/index.htm (visited on 05.05.2003) at 4.6 Id.

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2. RESEARCH METHODOLOGY

Aims and objectives:The aims and objectives of this paper are two-fold: first, to analyse whether the incidents that took place in Gujarat qualify for international crimes, and second to locate Gujarat in the context of the International Criminal Court and probe the efficacy of the latter. Essentially, it is an attempt to hold a hypothetical trial for the crimes that took place in Gujarat before the ICC.

Research Questions:The following research questions have been probed into in this paper:

1. Whether the incidents in Gujarat amount to genocide?2. Whether they amount to crimes against humanity?3. Whether the ICC has jurisdiction over the incidents that took place in Gujarat?4. Assuming that it does have jurisdiction, whether the case of these crimes would

be admissible before the ICC?

Chapterization:Though logically, the chapter on jurisdiction and admissibility should have preceded the one that characterises the crimes committed in Gujarat in terms of international law, their sequences here has been reversed. This has been done essentially because due to constraints of space, the researcher thought it unwise to narrate all the facts of the crimes in Gujarat in a separate chapter, but let them be told while determining whether they amounted to crimes under international law. So, the chapter on genocide and crimes against humanity occur first, and also give a factual account of what happened n Gujarat; followed by the chapter on the issues concerning the jurisdiction and admissibility of the ICC.

Sources of data:Though there has been enormous media coverage of the incidents, the reportage of highly political incidents like this one often eludes journalistic objectivity. Even if individual reports have been highly objective in reporting what actually happened on the ground, allegations of bias are difficult to avoid. Therefore, most of the facts have been largely drawn from the reports prepared by the following government bodies:

The National Human Rights Commission, India.7

The National Commission for Women, India.8

The Election Commission of India.9

However, due to their limited scope, the report by the Human Rights Watch10, an international NGO has also been relied upon.

7 “Gujarat Orders”, National Human Rights Commission <http://www.nhrc.nic.in/Gujarat.htm> (visited on 04.05.2003).8 “Report of the National Commission for Women on Gujarat” <http://www.ncw-india.org/publications/report/page1.htm> (visited on 04.05.2003).9 “Order of the Election Commission of India on the general election in Gujarat”, 16 th August 2002, <http://www.eci.gov.in/press/current/PN_16082002.pdf> (visited on 04.05.2003).10 Supra note 5.

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3. CHARACTERISING GUJARAT INCIDENT

3.1. WAS IT GENOCIDE?

This section is an inquiry into the events of Gujarat to see whether they qualify for the international crime of ‘genocide’. The definition of genocide in Article 611 of the Rome Statute is essentially a copy of the definition in Article II of the Genocide Convention, 1948.

The most important fact the Prosecution needs to establish in the case of genocide is the ‘specific intent’ of the perpetrator to destroy a protected group. The group has to be a national, racial, ethnic or religious group. The quantitative dimension of genocide involving the intentional destruction of a group in whole or in part also belongs to the mental element and not the material element of the crime of genocide.12 Besides this, Article 30 imposes a separate obligation to prove ‘knowledge’ and ‘intent’ to establish mens rea in all cases. Further, the actus reus (the physical element) for the crime of Genocide is any of the five acts in sub-clauses (a) to (e) of Article 6 of the Rome Statute. All of these elements that constitute genocide are being taken up separately and examined in the context of Gujarat.

A. Group:This is the least controversial points in this inquiry. The target group in Gujarat was clearly the Muslims, who belonging to a particular religion are clearly a protected group under the definition of genocide.

B. Actus Reus:(a) Killing Members of the group- According to official estimates, more than 850 people were killed in the communal violence that took place in Gujarat from 27 th February 2002, most of them being Muslims. Unofficial figures put the toll to over 2000.13 There is no minimum numerical requirement for the number of people actually killed for genocide to be established. A 1982 resolution of the United Nations General Assembly declared the massacre of a few hundred victims in the Palestinian refugee camps of Sabra and Shatila an ‘act of

11 Article 6 – Genocide:For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:(a) Killing members of the group;(b) Causing serious bodily or mental harm to members of the group;(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;(d) Imposing measures intended to prevent births within the group;(e) Forcibly transferring children of the group to another group.12 William A. Schabas, Genocide in International Law: The crime of Crimes (Cambridge: Cambridge University Press, 2000) at 158.13 Supra note 5 at 4.

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genocide.’14 This aspect has been further clarified under the Elements of Crimes under the Rome Statute, which, while enumerating the elements under Article 6(a) says that the perpetrator should have killed ‘one or more persons’ belonging to that group. The Elements also insist that ‘killing’ is interchangeable with ‘causing death’. This phrase as understood in the Elements connotes intentional omission that leads to death of the victim.15

(b) Causing serious bodily or mental harm to members of the group - Causing serious bodily harm means serious acts of physical violence falling short of actual killing.16 In Prosecutor v. Kayishema and Ruzindana17 the Rwandan Tribunal defined the phrase as ‘harm that seriously injures the health, causes disfigurement or causes any serious injury to the external, internal organs or senses’.Rape and sexual violence has now been clearly established to constitute ‘serious bodily or mental harm’ after the ICTY in Akayesu judgment said: “Indeed, rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims and are even, according to the Chamber, one of the worst ways of inflict [sic] harm on the victim as he or she suffers both bodily and mental harm. In light of all the evidence before it, the Chamber is satisfied that the acts of rape and sexual violence described above, were committed solely against Tutsi women, many of whom were subjected to the worst pubic humiliation, mutilation, and raped several times, often in public………and often by more than one assailant………”18

This view has been incorporated in the Rome Statute, Elements of Crimes under Article 6(b), the footnote to Element 1, which reads that causing serious bodily or mental harm ‘may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment.’

In the case of Gujarat, almost all the reports, whether by government agencies like the National Human Rights Commission19 or the National Commission for Women20, or by NGOs21, speak about rape of Muslim women as an extensively used weapon of assault on the Muslim community. A senior officer of the government of India who had spent 20 years in the Indian Administrative Service and resigned from his job after the Gujarat incident said: “I have never known a riot which has used the sexual subjugation of women so widely as an instrument of violence as in the recent mass barbarity in Gujarat. There are reports everywhere of gang-rape, of young girls and women, often in the presence of members of their families, followed by their murder by burning alive, or by 14 GA Res. 37/123 D.15 Kriangsak Kittichaisaree, International Criminal Law (Oxford: Oxford University Press, 2001) at 78.16 Supra note 12 at 159.17 Case No. ICTR-96-4-T, Judgment, para. 109.18 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, para. 731.19 “Report on the visit of NHRC team headed by Chairperson, NHRC to Ahmedabad, Vadodara and Godhra from 19-22 March, 2002”, National Human Rights Commission, New Delhi. In one of the incidents that happened in Naroda Patia, the report points out (at p. 6): ‘Men and women were segregated; young girls were stripped, gang raped, lynched and thrown into the burning fire. No man was spared.’20 Supra note 8: “Women have complained of extreme violence including some cases of sexual assault and rape. Many have lost their lives also. Several pathetic cries and pleas came before the Committee.” 21 Supra note 5 at 16-18, 27-29.

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bludgeoning with a hammer and in one case with a screw driver. Women in the Aman Chowk shelter told appalling stories about how armed men disrobed themselves in front of a group of terrified women to cower them down further.”22

Thus, that rape was perpetrated in Gujarat as the chief crime along with murder is beyond doubt. Though the acts of rape and sexual violence significantly contribute to the destruction of a group in whole or in part, the law does not insist on the proof of this causal link.23 All that the prosecution needs to prove is that one or more victims actually suffered physical or mental harm, which is amply done by the above evidence.

C. MENS REA:Article 30 of the Rome Statute declares that mens rea of the crimes within the jurisdiction of the court has two elements: knowledge and intent.

(a) Knowledge - Article 30(3) defines knowledge as ‘awareness that a circumstance exists or a consequence will occur in the ordinary course of events’. The International Law Commission considered the question of knowledge in the commentary on its draft Code of Crimes Against the Peace and Security of Mankind thus: ‘The definition of the crime of genocide requires a degree of knowledge of the ultimate objective of the criminal conduct rather than knowledge of every detail of a comprehensive plan or policy of genocide’.24

The threshold requirement of knowledge is very low, as is discernible from the debates in the Preparatory Commission for the ICC.25 It also includes cases of ‘willful blindness’, where an individual deliberately fails to inquire into the consequences of certain behaviour, and where the person knows that such inquiry should be undertaken.26

In Tadic, the ICTY considered the accused’s knowledge of policies of ethnic cleansing, an element necessary for conviction of crimes against humanity. The court accepted the evidence that Tadic was an ‘earnest SDS [Serb Democratic Party] member and an enthusiastic supporter of the idea of creating Republika Srpska’, both of which embraced the notion of an ethnically pure Serbian territory.27 This principle may be employed in the prosecution of the members of the VHP, RSS and the BJP who participated in the violence.28 In their case, Again, in Akayesu, the ICTR held that the killings in Taba were openly committed and so widespread that, as bourgmestre [an official in charge of a region], Akayesu must have known about them.29 So, the officials, ministers and the police cannot claim that they did not know of the mass killings. Given the low threshold

22 Harsh Mander, “Cry, the Beloved Country: Reflections on the Gujarat massacre,” South Asia Citizens’ Web, March 13, 2002, http://www.mnet.fr/aiindex/Harshmandar2002.html (visited on 15.04.2002). 23 Supra note 12 at 164-65.24 Supra note 12 at 210.25 Supra note 12 at 212-13.26 Supra note 12 at 212-213.27 Supra note 12 at 210-211.28 On their political doctrine, see pp. 8-9, infra.29 Supra note 18 at para 12.

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requirement, this much should suffice in establishing knowledge on the part of the accused. Knowledge of the genocidal plan or policy, or the wider context in which the act occurs should not be confused with knowledge that these amount to genocide as a question of law.30

(b) Specific Intent – Intent, as required to be proved generally for all crimes, is defined in Article 30(2) to mean:(a) In relation to conduct, that person means to engage in the conduct;(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

However, in the case of genocide, establishing ‘intent’ according to the above definition is not enough. A ‘specific intent’ or a dolus specialis needs to be proven.31 This is derived from the chapeau of Article II of the Genocide Convention, which insists on the proof of an ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. This is easily the most important element of genocide – the most difficult to prove as well as the element which genocide apart from all other crimes. So, the general intent to commit one of the enumerated acts combined with a general awareness of the probable consequence of such an act with respect to the immediate victim or victims is not sufficient for the crime of genocide.32

In Akayesu, this specific intent was defined as ‘the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged. Thus, the special intent in the crime of genocide lies in ‘the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’.33

Proving a genocidal intent requires the satisfaction of a very high threshold. It was only with the establishment of the ICTR and the ICTY that actual convictions for genocide took place, and therefore the law relating to the manner of proving such intent has only recently been articulated by the two tribunals. In Akayesu, the ICTR held that ‘in the absence of a confession from the accused, his [special] intent can be inferred from a certain number of presumptions of fact. The Chamber considers that it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender of by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on

30 Supra note 12 at 211.31 Supra note 12 at 214.32 Supra note 12 at 219.33 Supra note 18 at para. 497.

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account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act.’34

In Gujarat, soon after the train-burning incident in Godhra, a reign of terror was let loose on the Muslim population in almost the whole of the State. The violence left over 2000 dead, thousands raped, tortured, maimed and homeless. One witness claimed that ‘the VHP elements supported by the police were given freedom of loot and plunder for 72 hours to finish the Muslim population.’ It is believed by many that deployment of Army to control violence was deliberately delayed.35 It took months for the violence to finally come to an end. So, in this part, I undertake an inquiry of this circumstantial evidence available in the case of Gujarat to determine whether such genocidal intent can be said to have been present.

Firstly, the Trial Chamber of ICTY, in its Rule 61 hearing in Prosecutor v. Karadzic and Mladic36, noted that genocidal intent may be implied by the general political doctrine giving rise to the criminal acts, or the repetition of destructive and discriminatory acts. It further said in the context of the Serbian Democratic Party in Bosnia and Herzegovina that ‘the project of an ethnically homogenous State formulated against the backdrop of mixed populations necessarily envisages the exclusion of any group not identified with the Serbian one………The project does not exclude use of force against civilian populations…”37

Analyzing the above judgment in the context of the history and the political philosophy of the groups responsible for the Gujarat violence gives stark parallels. The groups most directly responsible for violence against Muslims in Gujarat include the Vishwa Hindu Parishad (World Hindu Council, VHP) and the Bajrang Dal, sister organizations of the party ruling both at the Centre and the State of Gujarat, all belonging to the umbrella organization the Rashtriya Swayamsevak Sangh (National Volunteer Corps, RSS). All these organizations collectively form the sangh parivar (or “family” of Hindu nationalist groups). These organizations, although different in many respects, have all promoted the argument (and with differing degrees of militancy) that because Hindus constitute the majority of Indians, India should be a Hindu State.38

The RSS was founded in the city of Nagpur in 1925 by Keshav Baliram Hedgewar with the mission of creating a Hindu state. Since its founding, it has propagated a militant form of Hindu cultural nationalism which it promotes as the sole basis for national identity in India. According to the RSS, the leaders of India’s nationalist movement and those of post-independence India failed to create a nation based on Hindu culture. Western thought and civilization are perceived as enemies of Hindu culture. Religions such as Islam and Christianity are depicted as alien to India, as they are seen as the

34 Supra note 18 at para. 523.35 Supra note 19 at 5.36 Case No. IT-95-5-R61, IT-95-18-R61, para 84.37 Ibid at para. 94.38 Supra note 5 at 4.

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religions of foreign invaders - the Mughals39 and the British.40 The exact nature of its philosophy emerges with icy clarity in an extract in which Golwalker, the founding member of the RSS refers to Nazi Germany, "To keep up the purity of the race and its culture, Germany shocked the world by her purging the country of the Semitic races — the Jews. Race pride at its highest has been manifested here. Germany has also shown how well nigh impossible for races and cultures, having differences going to the root, to be assimilated into one united whole, a good lesson for us in Hindustan [India] to learn and profit by."41

Golwalkar further expanded on these lessons by noting that, ‘The foreign races in Hindustan must either adopt the Hindu culture and language, must learn to respect and hold in reverence Hindu religion, must entertain no ideas but those of glorification of the Hindu race and culture ……… or may stay in the country, wholly subordinated to the Hindu nation, claiming nothing, deserving no privileges, far less any preferential treatment, not even citizen’s rights.’42

As far as the question of justification of use of violence for perpetuating political goals are concerned, the RSS website declares that ‘[m]ilitancy and intolerance become good traits when they are put to use for helping the innocent and the weak in the society ’.43

Though mentioned in a different context, it clearly satisfies the requirement of the ICTY laid down in Prosecutor v. Karadzic and Mladic44 as noted above that its political philosophy does not exclude the use of force.

Grounded in the language of hatred towards the ‘foreigners’ and on the victimhood of the Hindus, the political philosophy of the Sangh Parivar in the ultimate analysis may amount to being a homogenizing project in an ethnically diverse geographical setting, and thus satisfy the ‘intent’ requirements; especially in light of the comparison with the Nazi Germany. However, it must be acknowledged that these words of Golwalker read along with other policy statements of the RSS may be interpreted to convey an ‘intent’ of only the cultural destruction of the group, with the denial of any rights more than mere existence and not their physical and material destruction. Whether such an interpretation will satisfy the requirement of the intent ‘to destroy’ a group is an unsettled area of law having far-reaching legal implications.

Given a broad interpretation, if actual killings incidentally accompany an intent to destroy a group by eliminating its political structures, economy and culture, but not by killing it, it will amount to genocide. There is nothing in the text of the definition which disallows this interpretation. But the travaux preparatoires of the Genocide convention seem to indicate that such broad construction was not the intent of the drafters. Even the

39 Muslim Rulers in medieval India.40 Supra note 5 at 39.41 M.S. Golwalkar, “We, Or our nationhood defined” as cited in Christophe  Jaffrelot, The Hindu Nationalist Movement and Indian Politics (New Delhi: Penguin, 1996) at 55.42 Ibid at 56.43 “Antidote to self-oblivion”, <http://www.rss.org/New_RSS/Mission_Vision/Why_RSS.jsp> (visited on 11.05.2003).44 Supra note 36 at para. 94.

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International Law Commission is of the opinion that the word ‘destruction’ is to be used only in its material, i.e. physical and biological sense.45 However, nothing prevents an activist court from adopting this broader interpretation by relying on the text.46

Secondly, genocidal intent to wipe out the group can be established even on the basis of statements made by the leaders, songs and slogans used etc. when the violence was taking place, as was done in the Akayesu case.47

The NHRC documents the popular slogans raised during the violence were all directed against Muslims as a group. The mobs raised slogans like “Bandiao, Pakistan jao” [Muslims go away to Pakistan] and “Babar ki Aulado Hindustan chod do” [Children of Babar48, leave India].49 In the incident at Ehsaan Jaffrey’s home, “[t]hey began shouting, ‘Maro, kato’ [‘Kill them, cut them’] and ‘Mian ko maro’ [‘Kill the Muslims’].50

Thirdly, in Akayesu, a proverb calling for killing even the foetus of a pregnant Tutsi woman was used further to establish the intention of destroying the group as such.51

Certainly the incident documented by the NHRC where the foetus of a pregnant woman was pulled out and burnt after slitting open her belly52 only shows the intent to destroy even the future generation of the group.

Fourthly, the act of separating and killing the Tutsi in itself along with the propaganda campaign on the radio that established the specific intent find their parallels in Gujarat.53

The propaganda inciting the genocide by identifying the group with the enemy was done ‘by branding the RPF fighters and Tutsi civilians together, through dissemination via the media the idea that every Tutsi was allegedly an accomplice of the Inkotanyi’.54 Its connection with every Indian Muslim owing allegiance to Pakistan, and therefore a threat to Indian nationhood could not have been clearer.

On February 28, the Vadodara edition one Sandesh, a local Gujarati language paper headline read: “Avenge blood for blood”. Muslim survivors of the attacks repeatedly told Human Rights Watch that they were told to “Go back to Pakistan”. Anti-Pakistan and anti- Muslim sentiments had been building up in Gujarat long before the revival of the Ayodhya Ram temple campaign.55

These events have been followed by speech, which legitimizes what happened and in fact makes a case for a similar cleansing in other parts of the country. The VHP international 45 Supra note 12 at 229.46 Supra note 12 at 230.47 Supra note 18 at para. 118.48 Muslim ruler who established the Mughal Rule in India in the 15th century.49 Supra note 19 at 10.50 Supra note 5 at 3.51 Supra note 18 at para. 121.52 Supra note 19 at 6-7.53 Supra note 18 at para. 123.54 Supra note 18 at para. 127.55 Supra note 5 at 5.

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working president Ashok Singhal termed Gujarat as a "successful experiment" and warned that it would be repeated all over India. He also said how whole villages had been "emptied of Islam", and how whole communities of Muslims had been dispatched to refugee camps.56

Fifthly, the ICTR points out that one of the chief facts that require proof to show such intent is to establish that the victims were members of a particular group and were chosen for the reason only of belonging to that group: “…it was indeed a particular group, the Tutsi ethnic group, which was targeted. Clearly, the victims were not chosen as individuals but, indeed they belonged to said group; and hence the victims were members of this group selected as such. According to Alison Desforges’s testimony, the Tutsi were killed solely on account of having been born a Tutsi.”57

The NHRC report points out just one incident at Naroda Patia that took place on 28 th

February 2002 that clearly establishes this fact:“A 5000 strong mob armed with swords, daggers, sticks and petrol bombs attacked the area at around 9 AM. They damaged a mosque and burnt copies of Islamic religious texts including the Quran, and hoisted a saffron flag. Terrorized mobs went to local police station where their request for a safe passage was turned down. They were then surrounded by the mob. ‘Men and women were segregated; young girls were stripped, gang raped, lynched and thrown into the burning fire. No man was spared. A young woman, Quasar, in advance-stage of pregnancy, pleaded for her life. Her abdomen was slit open, the foetus was taken out and thrown into the fire. They picked up the woman and threw her into the same fire………In village Naroda, the entire Muslim locality was wiped out. This incident was confirmed by a number of eye-witnesses.”58

This of course is a typical incident which was repeated on the Muslim populations in scores of villages. It also shows that just like in Rwanda where ‘Tutsi women were subjected to sexual violence because they were Tutsi’59, women in Gujarat suffered sexual violence only because they were Muslims. Without exception, the Hindu-owned establishments neighboring the destroyed structures were unscathed.60 The mobs “…were seen carrying lists with full details of Muslim houses and establishments which were to be targeted”.61 The NHRC report also talks about how even Muslim Judges even of the High Court, members of legislative assembly and Parliament, police officers etc. were also targeted.62 It is undoubtedly clear that the only basis for choosing the victims was their belonging to a particular protected group, in this case Muslim.

Sixthly, although the Genocide Convention does not recognize cultural genocide as a criminal act falling within its scope, proof of attacks directed against cultural institutions

56 “We’ll repeat our Gujarat Experiment”, The Indian Express, 4 September 2002 at <http//:www.indianexpress.com/archive_frame.php> (visited on 10.05.2003).57 Supra note 18 at para. 124.58 Supra note 19 at 6-7.59 Supra note 18 at para. 731.60 Supra note 5 at 22.61 Supra note 19 at 4.62 Supra note 19 at 5.

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or monuments, committed in association with killing, may prove important in establishing the existence of a genocidal rather than merely a homicidal intent.63 As was noted by the ICTY, ‘…the destruction of mosques or Catholic churches is designed to annihilate the centuries-long presence of the group or groups…”64

The NHRC notes that over 100 mosques and dargahs were desecrated and damaged in Ahmedabad and about 500 in other parts of Gujarat65, evidencing the intent was genocidal and not homicidal.

The final requirement to establish genocidal intent is to show that the destruction of the group was intended to be ‘in whole or in part’. Obviously, the greater the number of victims, easier will it be for the prosecution to establish genocide. If the number of victims is smaller, the prosecutor will have to look for other evidence to establish that the intent was to destroy the group, in whole or in part.66 It is important here to emphasize that the actual destruction can be miniscule in terms of the number of victims and it is still possible that the intent was to destroy the group in whole or in part. The degree of the success of the intent, sadly, is what is what makes it easier for the Prosecutor to establish genocide.

It was held by the ICTY that the existence of a plan was not a legal ingredient of the crime of genocide but could be of evidential assistance to prove the intent of the authors of the criminal act(s).67 Again, in Kristic, ‘[e]vidence presented in this case has shown that the killings were planned: the number and nature of the forces involved, the standardised coded language used by the units in communicating information about the killings, the scale of the executions, the invariability of the killing methods applied, indicate that a decision was made to kill all the Bosnian Muslim military aged men’.68

The policy aspect behind the crimes committed in Gujarat have been analyzed in details in the subsequent section dealing with ‘crimes against humanity’ while determining whether the attacks in Gujarat were ‘systematic’.69

There is a great debate on whether the intent must be to destroy a substantial part of the group, and how substantial should that part be. The law on this point is unsettled.70 The intent to destroy a multitude of persons because of their membership in a particular group constitutes genocide even if these persons constitute only part of a group either within a country or within a region or within a single community. In the Akayesu Judgement71

which found the accused guilty of genocide for acts he committed within a single commune and the Nikolic Decision72 taken pursuant to Rule 61, which upheld the

63 Supra note 12 at 223.64 Supra note 36 at para. 94.65 Supra note 19 at 5.66 Supra note 12 at 234.67 Prosecutor v. Goran Jelisic, Case No. IT-95-10-A, Appeal Judgement, para. 48.68 Prosecutor v. Krstic, IT-98-33-T, para. 572.69 See pp. 16-19, infra.70 Supra note 12 at 230-239.71 Supra note 18.72 Prosecutor v. Dragan Nikolic, Case No. IT-94-2-R61.

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characterization of genocide for acts committed within a single region of Bosnia-Herzegovina, in that case, the region of Vlasenica. The Jelisic Judgement held that genocide could target a limited geographic zone.73

In a Judgement against Novislav Djajie on 23 May 1997, the Bavarian Appeals Chamber in Germany similarly found that acts of genocide were committed in June 1992 though confined within the administrative district of Foga.74

In the case of Gujarat, even if it may be difficult to prove that the intent was to destroy all the Muslims of Gujarat, there certainly exists the strong case of such intent in still smaller geographical areas; manifested in the numerous clusters of villages which have been entirely emptied of their Muslim populations. So, a case for genocide certainly exists in Gujarat.

3.2. WERE CRIMES AGAINST HUMANITY COMMITTED?

A crime against humanity is a crime against ‘humaneness’ that become the concern of the international community.75 Article 7 of the ICC defines crimes against humanity. Its chapeau reads “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. The definition then goes on to list certain offences like murder, extermination, enslavement, rape, sexual slavery, persecution, apartheid etc. which need to be proved along with the criteria laid down in the chapeau for the crime to be proved. Four important features of the chapeau are76:

1. the absence of a requirement of a nexus to armed conflict,2. the absence of a requirement of a discriminatory motive,3. the ‘widespread or systematic attack’ criterion, and4. the element of mens rea.

The absence of the requirement of an armed conflict is a development in international law which makes the Rome Statute applicable even during times of peace or civil strife, e.g. in cases like Gujarat.

A. Actus Reus & Mens Rea:The major way in which this crime differs from that of genocide is the absence of the requirement of a specific intent to destroy a group, proving which is the most difficult tasks in any trial for genocide. An exception to this general rule, of course, is the requirement of proof of a discriminatory motive for the specific crime of persecution.77

The crime of persecution is defined by Article 7(2)(g) as ‘the intentional and severe 73 Supra note 67 at para. 83.74 Novislav Djajie case, Bavarian Appeals Court 23 May 1997, 3 St 20/96, section VI, p. 24 of the English translation as cited in Supra note 68 at para. 589.75 Supra note 15 at 85.76 Darryl Robinson, “Defining ‘Crimes Against Humanity’ at the Rome Conference”, 93 AJIL 43, 45 (1999).77 Ibid at 46.

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deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’. Of course, even in this case, the threshold level of proof of the intent seems to be lower than that in the case of genocide, with the International Law Commission saying that even where specific intent of genocide cannot be established, the crime may still meet the conditions of the crime against humanity of ‘persecution’.78 So, in case of persecution, the perpetrator selects her victims because of their membership in a specific community bit does not necessarily seek to destroy the community as such.79

For this reason, all that has been said in the previous chapter while trying to establish the proof for the specific intent of genocide is equally valid here, and what suffices for genocide certainly does so with a lower threshold crime like persecution.

Equally applicable is the descriptions given previously about the murders, torture and sexual violence that was perpetrated in Gujarat to establish the actus reus of the crimes against humanity, and is therefore not repeated here. In this Chapter, the attempt is only to see whether the incidents in Gujarat satisfy the requirement of the chapeau of Article 7.

The definition also has an element of mens rea inasmuch as the accused, beyond having the mens rea to commit the specified acts, and while not necessarily responsible for the overarching attack against the civilian population, must at least have knowledge of the attack.80 However, given the inescapable notoriety of any widespread or systematic attack against a civilian population, it is difficult to imagine a situation where a person could commit a murder as part of such an attack while credibly claiming to have been completely unaware of that attack.81

B. ‘Widespread or systematic attack directed against any civilian population’ “This is a stringent threshold requirement test. The concept of ‘widespread’ may be defined as massive, frequent, large-scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims. The concept of ‘systematic’ may be defined as thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources.”82 So, it requires a high degree of orchestration and methodical planning. These qualifiers are disjunctive, i.e. any one of them needs to be proved.83 In practice, however, it is difficult to separate the widespread and the systematic nature of the attack since the widespread attack aimed at a large number of victims is generally carried out with some kind of planning or organization.84 As a compromise to having a disjunctive requirement of widespread and systematic during the negotiating process, a safety net has been incorporated in the definition of ‘attack directed against any civilian population’ in Article 7(2)(a) as being ‘a course of

78 ‘Report of the International Law Commission on the Work of its Forty-Eighth Session’, 6 May-26 July 1996, UN Doc. A/51/10, at 87.79 Supra note 68 at para. 553.80 Supra note 76 at 51.81 Supra note 76 at 52.82 Supra note 18 at para. 6.4. 83 Supra note 76 at 47.84 Prosecution v. Blaskic, <http//:www.un.org/icty/blaskic/trialc1/judgement/index.htm>, para 207.

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conduct involving the multiple commission of acts [enumerated as crimes against humanity] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack’. This qualification requires some degree of scale as well as a policy element. This is a conjunctive but low threshold test.85

By use of the phrase ‘course of conduct’, it rules out a singular act as amounting to a crime against humanity. Firstly, this is not a reintroduction of the ‘widespread’ attack requirement, having a much lower threshold than the latter. Secondly, it need not be proven that the accused personally committed multiple offences, her acts, even if singular, must have been committed as part of the broader attack.86 The use of the word ‘directed’ implies an element of planning and organization.87 Again, this is not the reintroduction of the ‘systematic’ attack requirement but has a much lower threshold level.88 Secondly, it does not require an official or State policy. The Tadic opinion and judgment acknowledges that the entity behind the policy could be an organization with de facto control over the territory, and leaves open the possibility that other organizations might meet the test as well.89

I will first start by looking at the criteria of a widespread attack as well as the one requiring a course of conduct in the context of Gujarat and see whether each of them are satisfied. To begin with, the Election Commission of India notes that 20 out of 25 districts of Gujarat state were affected.90 Over 2000 people were killed91, with thousands more tortured, raped, maimed and homeless. More than 1,200 villages saw attacks on minority communities leading to mass exodus.92 All the tribal villages around Vadodara have been entirely evacuated by their Muslim residents.93 Government figures indicate that more than 98,000 people were residing in over one hundred newly created relief camps throughout the state, an overwhelming majority of them Muslim.94 About 90 percent of the commercial establishments including small shops, godowns and factories were wiped out on national highway No. 8.95 The NHRC further notes that [t]he size of the marauding crowds involved in the major incidents was found to be between five and fifteen thousand and the scale of violence and brutality of methods of killing and looting indicated long planning and indoctrination.96 The pattern of murder, rape, arson and looting was followed throughout the state. While this certainly establishes that the attacks formed a course of conduct and were not isolated events, whether these facts also satisfy the higher threshold requirement of the attacks being ‘widespread’ or not is debatable. This is especially in light of the ambiguity surrounding the concept of ‘widespread’ which has not received enough judicial attention, given its recent history. Were the 85 Supra note 76 at 51.86 Supra note 76 at 48.87 Supra note 76 at 48.88 Supra note 76 at 50.89 Prosecutor v. Tadic, Opinion and Judgment, Case No. IT-94-I-T, paras. 654-55. 90 Supra note 9.91 Supra note 5 at 4.92 Supra note 19 at 5.93 Supra note 19 at 8.94 Supra note 5 at 6.95 Supra note 19 at 4.96 Supra note 19 at 3.

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attacks massive, frequent, large-scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims? The problem with this definition is that all the terms used by it are relative in nature, and leaves the question open as to how widespread is widespread? It therefore becomes very difficult to predict the reaction of a tribunal judging the issue.

However, the answer to the above question is crucial, because if the attacks are also proved to be widespread, all that is left to be proved is the existence of a state or organizational policy behind these attacks to establish that crimes against humanity were committed in Gujarat. On the other hand, if this requirement is not satisfied, the more stringent requirement of the attacks being systematic will also need proof. However, leaving this question here itself, I shall proceed to examine the systematic and policy aspects of the attacks.

Authorities have held that the policy can be gathered from the acts themselves; for example, the widespread or systematic nature of the acts may itself evince a policy. In Tadic, the ICTY noted that to prove this policy requirement, the policy need not be formalized.97 This is despite the fact that the connection between the act and the policy concerned may be denied by the relevant authorities or apparatus of that policy.98 Also, systematic has been held to mean thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources .99 So, by definition, the policy element will stand proved once the systematic nature of the attacks is established.

The NHRC notes that in Gujarat, “…the mobs were led by the VHP, Bajrang Dal and BJP activists some of whom carried mobile phones to contact others and coordinate operations. These mobs were equipped with items like gas cylinders, kerosene oil, petrol bombs for burning people and torching people and houses, shops and business establishments. They were seen carrying lists with full details of Muslim houses and establishments which were to be targeted…”.100 To conduct the operations in such manner over a large geographical area will certainly require a thorough organisation.

According to a report in Outlook magazine, attempts to pinpoint the exact location of Muslim businesses began months before the attacks: In Ahmedabad… one official recalled how for the last few months, there had been concerted attempts to get lists of Muslim business establishments from the Ahmedabad municipal corporation…. VHP volunteers have also been making the rounds of professional institutions and universities, seeking the names and addresses of Muslim students. Some government sources say VHP members have drawn up lists of government departments (for example, the Food Corporation of India) and their allied agencies, and identified “undesirables” and their addresses.101

97 Supra note 89 at para. 653. 98 Prosecutor v. Zoran Kupreskic and others, Case No. IT-95-16-T, ICTY T.Ch. II, paras. 551-5.99 Supra note 18 at para. 6.4. 100 Supra note 19 at 4.101 Ranjit Bhushan, “Thy Hand, Great Anarch: The overriding theme of the riots: surprisingly systematic targeting, little state intervention,” Outlook, March 18, 2002. District administrations in Gujarat, Delhi, and

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The existence of a political agenda or ideology to destroy, persecute or weaken a particular community coupled with institutions to implement that policy, the involvement of political or military authorities at high level are among the factors that may evince the systematic character of an attack.102 For proof of the political philosophy behind these attacks, reference may again be made to the section on genocide where this aspect has been dealt with in detail under the discussion on specific intent of genocide.103

The involvement of high ranking Ministers and government officials in the attacks only further substantiate the case that the attacks followed a state/organisational policy and used public resources for their commission. The NHRC report mentions that people gave testimonies saying ‘…every wing of the State Government was used to ascertain full or partial ownership of assets by the minority community’.104 It further goes on to say that “[a] number of persons holding responsible positions in public life alleged involvement of some Ministers [in the government of Gujarat] and [Members of the Gujarat Legislative Assembly] in these riots. They mentioned that ……[the] Home Minister and ……[the] Health Minister were monitoring the progress of riots from the City Police control room. ……[The] Urban Development Minister was accused of controlling things at Police Bhavan, Gandhi Nagar. Someone stated that he had seen the Home Minister moving about in the riot affected areas openly displaying the “V” signal. [Ms. X], an MLA and former Deputy Mayor, Ahmedabad and Dr. [Y], VHP leader, were named by a number of victim families of Naroda Patia who appeared before the team at Shah-e-Alam Relief Camp. [An] MLA alleged that the Home Minister ……was directly monitoring the progress of attacks on Muslim localities from the room of ……[the] Home Secretary.105

The indications of an organizational policy are further strengthened by the statements made in the aftermath of the attacks. The VHP international working president Ashok Singhal termed Gujarat as a "successful experiment" and warned that it would be repeated all over India. He also said how whole villages had been "emptied of Islam", and how whole communities of Muslims had been dispatched to refugee camps.106

Further, as noted in a footnote to Element 3 under the Elements of Crimes against Humanity, in exceptional circumstances, the policy may be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. However, this should not be the sole basis to prove the policy. In Gujarat case, many witnesses testified to Human Rights Watch that their calls of help to the police either went unanswered or that they were met with responses such as: “We don’t have any orders to save you”; “We cannot help you, we have orders from above”; “If you wish to live in Hindustan, learn to protect yourself”; “How come you are alive?

Orissa were also conducting surveys to assess the activities and whereabouts of minority community members and leaders.102 Supra note 67 at para. 53; Supra note 84 at para 203.103 See pp. 8-9, Supra.104 Supra note 19 at 5.105 Supra note 19 at 3. 106 Supra note 56.

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You should have died too”; “Whose house is on fire? Hindus’ or Muslims’?”107 The NHRC substantiates this allegation by recording the following incident:

Shri Amar Sinh Chaudhary, former Chief Minister, Gujarat, narrated to the team his futile efforts in seeking police help for Shri Ehsan Jaffrey, former [Member of Indian Parliament]. He claimed to have personally contacted the Police Commissioner……… at 10.30 AM on 28 February and apprised him of the imminent danger to the life of Shri Jaffrey. The Police Commissioner assured him that police assistance will be despatched rapidly. He reminded him again after receiving another frantic call from Ahsan Jaffrey that no police reinforcement had reached his place and that a few policemen present were ineffective and unwilling to control the violent mob. Shri Chaudhary said that he also spoke to the [Chief Minister] and found him well informed about the presence of a violent crowd outside Shri Jaffrey’s house. He also spoke to the Chief Secretary and Home Secretary between 12.30 and 2 PM. Shri Jaffrey was burnt alive along with him family and 39 others (total killed – 50).108

Further, though the army arrived in Gujarat soon after the Godhra carnage to control the situation, the state government refused to deploy the soldiers until twenty-fours hours after they arrived and only once the worst violence had ended.109

The policy may be evinced from the general historical contexts and the entire political context in which the criminal acts take place, media propaganda, administrative or other discriminatory measures, destruction of non-military property, especially religious edifice etc.110 The NHRC reports that about 90 percent of the commercial establishments including small shops, godowns and factories were wiped out on national highway No. 8.111 Over 100 mosques and dargahs were desecrated and damaged in Ahmedabad and about 500 in other parts of Gujarat.112 The discriminatory administrative decision is proved by the State Government initially deciding to apply the draconian and controversial Prevention of Terrorism Act only to the accused in the Godhra incident (mainly Muslims) but not in the subsequent violence (where accused were mainly Hindus) is also testimony of the same.113

So, even though it might be difficult to establish that the attacks were widespread, a much stronger case exists for saying that they were ‘systematic’ in nature, thus qualifying for being crimes against humanity.

107 Supra note 5 at 5-6.108 Supra note 19 at 4.109 Supra note 5 at 21-22.110 Supra note 84 at para. 204.111 Supra note 19 at 4.112 Supra note 19 at 5.113 Supra note at 2.

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4. GUJARAT’S TRIAL BEFORE THE ICC: ENFORCING INTERNATIONAL LAW

4.1. JURISDICTION OF THE ICC OVER THE CRIMES IN GUJARATIndia is not a party to the Rome Statute, and therefore not bound by its provisions. In this chapter, I intend to examine the issue of the ICC’s jurisdiction over nationals of non-state parties and the limitations of such argument. The importance of such argument lies in a probing the potential development of the jurisprudence of universal jurisdiction on international crimes to make unwilling states accountable.

A. Jurisdiction of the ICC under the Rome Statute:The jurisdiction of the ICC is dealt with in Article 11 (which lays down that the ICC has jurisdiction with respect to crimes committed only after the entry into force of the Statute. Also, for a non-party state on becoming a party after the statute’s coming into force, its jurisdiction is only to crimes committed after entry into force of the statute for that state) and Article 12114 (jurisdiction based on territoriality or nationality of the member-state and ad hoc consent by a non-member State) of the Rome Statute.

The initial Draft Statute prepared by the International Law Commission had a differential basis of jurisdiction depending on the crime in question. For genocide, which was the most non-controversial crime, the jurisdiction provided in (Articles 22 & 25) was inherent and universal and it did not matter whether the crime was committed in a member state or a non-member state.115 The commentary indicated that the ‘inherent jurisdiction’ envisaged for the court was based on the Genocide Convention116 which does not confer jurisdiction over genocide on other states on extradite or prosecute basis, but expressly contemplates its conferral on an international criminal court to be created in future.117 However, in the negotiation stage, this provision, along with the German

114 Article 12, Rome Statute: Preconditions to the exercise of jurisdiction:1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national.3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.115 Julio Barboza, “International Criminal Law” 278 Recueil des Cours 13, 140 (Hague Academy of International Law, 1999). 116 Article VI, Genocide Convention: Persons charged with genocide or any of the other acts enumerated in article 3 shall be tried by………such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.117 Michael P. Scharf, “The Draft Statute for an International Criminal Court” in International Criminal Law: Volume III: Enforcement (M. Cherif Bassiouni ed., 2nd edn., New York: Transnational Publishers Inc.,

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proposal of endowing the ICC with universal jurisdiction for all crimes and the Korean proposal suggesting inclusion of state of victim’s nationality and state with custody of the accused also as state parties which would give the ICC jurisdiction were too controversial to be finally adopted.118 Had either of these universal or quasi-universal jurisdiction formulations been adopted, the ICC would have been a much stronger court with much wider jurisdiction. However, the legality of such formulations would have come into serious questioning, since they would impose obligations even on states which are not parties to the Statute. This argument is raised even in the present formulation of the ICC because a national of State A who commits a crime on the territory of State B is still liable for prosecution by the ICC even if State A is not a party to it. Certainly, it is an accepted principle of international law that a treaty is only binding on the countries that have ratified that treaty. No treaty of international law is able to bind a state that has not signed the treaty because of the recognition of its sovereignty.119 However, the universality principle, according to which each and every state has jurisdiction to try heinous international crimes, is equally well established in international customary law.120

Many other international instruments also allow prosecution of nationals of non-party states for international crimes, e.g. Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment, 1984; the International Convention against Taking of Hostages, 1979 etc.121 The question then arises that if an individual state has universal jurisdiction, why can’t a multitude of states grant it to an international court?122 Also, the sovereignty argument does not hold too well here because there are no consequences for the non-party State by treaty, these consequences are only for individuals.123 So, prosecuting a state's nationals in an international tribunal does not create any obligations for the state under the treaty that established the tribunal.124 But political compulsions forced into being a court with very limited jurisdiction.

The trigger for this jurisdiction (Article 13) is either a complaint by a member-state (Article 14), or a referral by the Security Council exercising its Chapter VII jurisdiction or the Prosecutor acting proprio motu (Article 15). There was a lot of controversy over this overreaching power of the Prosecutor and met strong American resistance, but the argument in favour of an independent and powerful Prosecutor prevailed and the provision finally managed to make its way to the Statute. Individuals and NGOs, though cannot file a complaint, can certainly give information to the Prosecutor.125 Prosecutor

1999) at 637, 645-646.118 Supra note 4 at 8-9.119 David Stoelting & Pieter H. F. Bekker, “The ICC Prosecutor V. President Medema: Simulated Proceedings Before The International Criminal Court”, Pepperdine Dispute Resolution Law Journal 1, 9 (2002).120 Malcolm N. Shaw, International Law (4th edn., Cambridge: Cambridge University Press, 1997) at 470.121 Jonathan D. Charney, “Progress in International Criminal Law?”, 93 AJIL 452, 456 (1999).122 Y.S.R. Murthy, “A giant step forward or delusion – an evaluation of the Rome Statute of the International Criminal Court”, 40 IJIL 507, 525 (2000).123 Supra note 119 at 17.124 Supra note 3 at 70.125 Leila Sadat Wexler, “A First look at the 1998 Rome Statute for a Permanent International Criminal Court: Jurisdiction, Definition of Crimes, Structure and Referrals to the Court” in International Criminal Law: Volume III: Enforcement (M. Cherif Bassiouni ed., 2nd edn., New York: Transnational Publishers Inc., 1999) at 655, 673.

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and pre-trial chamber have to be convinced of a ‘reasonable basis’ [Article 15(3)] to initiate investigation, which has elements as suggested by Article 53(1):

- A reasonable basis to believe that crime was or is being committed within the jurisdiction of the court;

- The case is or would be admissible under Article 17; and- Investigation serves the interests of justice, taking into account the gravity of the

crime and interest of the victims.

B. Effect of India’s non-party status on the ICC’s jurisdiction over the Gujarat incidents:Ignoring for a while the bar on jurisdiction of the ICC under Article 11 by saying that the incidents of violence in Gujarat took place before the ICC came into existence126, in what circumstances can the ICC have jurisdiction over Indian nationals? The pogrom in Gujarat took place on Indian soil and was perpetrated by Indian nationals. So, India being a non-party to the ICC, any possibility of deriving the jurisdiction from Article 12 (2) is ruled out.

A possible way in which the Court may derive jurisdiction is under Article 12(3), which allows a State to submit to its ad hoc jurisdiction. Also, the court has potentially universal jurisdiction under Article 13(b) inasmuch as it can also exercise Chapter VII jurisdiction on any person on a referral by the Security Council. However, the likelihood of either India giving the ICC ad hoc jurisdiction over Gujarat case or the Security Council, a largely political body often endowed with judicial functions, making such referral in the case of Gujarat is negligible. So the justification for this jurisdiction is difficult to find within the bounds of the Rome Statute and one must look elsewhere to find an argument.

Lets assume that a state party to the ICC, State X, apprehends an accused of the crime committed in Gujarat. On the basis of universality principle, certainly it could have tried the accused itself legitimately under international law. What then prevents State X to transfer its jurisdiction to the ICC?127

The weakness of the above argument lies in the fact that here we are not dealing with the jurisdiction of State X but that of the ICC. Though the initial basis of the jurisdiction of the ICC may have been derived from the jurisdiction of all member-states put together, its jurisdiction is no longer dependent on that of its member-states once it has already come into being. Its constituting instrument is now the sole determinant of this jurisdiction. State X could have certainly transferred its universal jurisdiction to the ICC if the Rome Statute empowered the Court with universal jurisdiction. Since this was not the case, the ICC cannot have jurisdiction over the incidents of Gujarat, unless of course if India accepts its ad hoc jurisdiction or the situation is referred to it by the Security Council. Thus, especially when dealing with internal conflicts, the ICC's ability to prosecute despots will depend on exactly the same political equation that today

126 The ICC Statute came into force on the 1st of July, 2002 while the incidents in Gujarat took place mainly in March 2002.127 Supra note 119 at 9.

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determines whether a war criminal will be brought to justice - the consensus, or lack thereof, among the permanent members that determines whether the Security Council will exercise its Chapter VII powers.128 However, the jurisdiction of all other States in the world to prosecute the perpetrators on the basis of universal jurisdiction principle continues to exist.

In the next section, I would presume the jurisdiction of the ICC over the incidents of Gujarat in order to conduct an enquiry to determine how the prosecution of the perpetrators of the atrocities in Gujarat would have proceeded, the probable defences that would have been taken and the probable outcome of such trial in the event that the ICC did have jurisdiction over these crimes.

4.2. WILL THE CASE BE ADMISSIBLE IN THE ICC?

A. Admissibility of a case before the ICC:The Rome Statute has invoked the concept of admissibility in Article 17 to accommodate the principle of complementarity (paragraph 10 of the preamble as well as Article 1 lay down complementarity as one of the characteristics of the ICC) between the national legal systems and the ICC. This concept is as opposed to the principle of primacy on which the Tribunals of former Yugoslavia and Rwanda were based, where the international tribunal possessed jurisdiction as of right and was not required to demonstrate the inadequacy of the domestic system.129 On the other hand, the principle of complementarity gives preference to the domestic jurisdiction to bring the perpetrators to justice, with the ICC stepping in only on the failure of the former to do so.

Article 17 lays down that inadmissibility of a particular case arises in 4 cases:

The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

The person concerned has already been tried for conduct which is the subject of the complaint; unless the trial was for the purpose of shielding the person from the jurisdiction of the crime, or it was not conducted independently or impartially and was conducted in a manner inconsistent with an intent to bring the accused to justice;

The case is not of sufficient gravity to justify further action by the Court.

The first ambiguity in the above provision is whether ‘the case’ being investigated and/or prosecuted by the State should deal with the same offences as in the ICC, for e.g.

128 Supra note 3 at 75.129 William Schabas, An introduction to the International Criminal Court (Cambridge: Cambridge

University Press, 2001) at 67.

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genocide or mere prosecution of the accused for murder will suffice? The question is actually a reflection on the divergence between an actual acts committed by the accused and their varying legal meanings given to the same acts. If we take the view that the prosecution should also mirror the crimes listed in the Rome Statute, possibly the absence of a law on genocide or crimes against humanity within a domestic jurisdiction should suffice to make the case admissible in the ICC. However, this does not seem to be the plausible view. Firstly, the Statute uses the word ‘case’ and not ‘crime’, which connotes that all that is required is an investigation and prosecution of the events that make up the case, and it need not be for the specific crimes mentioned. Secondly, Article 17(1)(c) further strengthens this interpretation by saying that a case is inadmissible if the accused has already been tried for the ‘conduct’ which is subject of the complaint. So, inadequate though it might be to capture the heinousness of the crimes committed and express the moral outrage against it, the national jurisdiction can get away with prosecuting the accused for crimes of much lesser magnitude.

Secondly, the use of the term unable or unwilling ‘genuinely’ to prosecute is very ambiguous. What is meant by ‘genuinely’? Does it mean that state’s motives are not genuine (i.e. are duplicitous or disingenuous) or does it refer to situations where the state is ‘really’ unable or unwilling to prosecute?130 Assessing the genuineness of a state’s investigation or prosecution or its decision not to prosecute will be an extremely difficult question of fact.131 Certainly, merely alleging a lack of impartiality in the requesting state's court cannot meet the "lack of genuineness" standard since that claim could be made with regard to any state's offer to prosecute.132

Article 17(2) defines the unwillingness of the State to investigate or prosecute as being manifested in one of the following three circumstances:(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in Article 5;(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

Inability seems like a relatively simpler inquiry. It is defined in Article 17(3) as ‘a total or substantial collapse or unavailability of its national judicial system’ which renders the State ‘unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings’.

What will constitute sufficient ‘gravity’ so as to make any action by the ICC unwarranted is not defined. War crimes refer to ‘large-scale’ basis, crimes against humanity to ‘widespread or systematic’ and the idea of a ‘group’ in genocide suggest that scale, i.e.

130 Supra note 125 at 677.131 Supra note 3 at 76.132 Supra note 3 at 83.

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magnitude, is one element of gravity. Second element of gravity is heinousness of the offence and third is the need to try only major as opposed to minor offenders.133

Again, what exactly will constitute an ‘unjustified delay in the proceedings’, ‘intent to bring the person concerned to justice’ etc. is not clarified in the Statute. Probably, answers to these questions can be given only after the court has worked for a while and developed a jurisprudence of its own.

Finally, it is not clear if admissibility is a waivable procedural requirement or a substantive jurisdictional question. Proof of gravity is essential, so at least it is quasi-jurisdictional. Others requirements relating to investigation and prosecution should be, however, waivable.134

B. Will the Gujarat case be admissible in the ICC?:The primary, and possibly the strongest, defences that may be taken in this case is questioning the admissibility under Article 17(1)(a), saying that ‘the case is being investigated or prosecuted’ by India, which has jurisdiction over it. The accused can cite the numerous complaints/First Information Reports (FIRs) filed with the police, the arrests made and the charge-sheets filed in some cases as evidence that the State is investigating and prosecuting the case. Also, an inquiry commission constituted by the State government under the Commissions of Inquiry Act, 1952, of two judges of the High Court and the Supreme Court (the Justices Shah and Nanavati Commission) has been asked to make an inquiry into the crimes perpetrated in Gujarat during the Godhra train-burning incident and its aftermath. So, to make the case admissible, the prosecution will have to prove that India is unwilling or unable genuinely to investigate or prosecute the case.

The question of inability to investigate or prosecute the case by India is easily dismissible, given the presence of a fairly stable, working and competent prosecution and judicial system in India. It certainly does not meet the requirement of Article 17(3) of the ‘total or substantial collapse or unavailability of its national judicial system’. The only way it could have been shown that India is unable to prosecute is by saying that the specific crimes covered by the Rome Statute, e.g. genocide and crimes against humanity are not specific crimes within the Indian legal system.135 However, as has been argued above, in the view of the author, this argument is not quite tenable.136 So, to prove that India is unable to prosecute or investigate the Gujarat case is almost impossible.

The more difficult question, however, is to determine whether the Indian State (through the State of Gujarat) is unwilling to do so. Article 17(2)(a) is not applicable in case of India since it is not a party to the Rome Statute, and therefore the proceedings could not

133 Supra note 125 at 677.134 Supra note 125 at 678.135 This argument of course presumes that the test of inability given in Article 17(3) is not exhaustive, and

there can be other ways in which inability may arise. This interpretation is strengthened by the language of Article 17(3), which only asks the ICC to consider whether there is a total or substantial collapse or unavailability of the national judicial system.

136 See p. 23, Supra.

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have been taken ‘for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court’.

Under Article 17(2)(b), the prosecution has to prove that there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice. Human Rights Watch claims that even one year after the beginning of communal violence in Gujarat that claimed over 2,000 lives, there have been no convictions of those responsible. It noted that “[a]lthough the Indian government initially boasted of thousands of arrests following the attacks, most of those arrested have since been released on bail, acquitted or simply let go. According to local activists, those who remain in jail largely belong to Dalit (so-called untouchable), Muslim or tribal communities. Due to manipulations in the filing of charge sheets, the instigators and ringleaders of the attacks may escape prosecution altogether.”137

Much, however, will depend on the meaning of proceedings in this provision. In the opinion of the researcher, mere absence of any conviction for over a period of a year, especially in a country like India where delay is the hallmark of the judicial system even in normal circumstances, may not be enough. Further, proceedings in all probability will include investigation as well, which at least theoretically began soon after the crimes were committed.

Under Article 17(2)(c), to show unwillingness, the impartiality or independence of the proceedings have to be questioned, along with proving that they were being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. There are a number of factors in this case which may satisfy this requirement.

Firstly, partiality in the manner the government of Gujarat conducted itself was manifest in a number of ways. As has been noted by the National Human Rights Commission (NHRC) of India, the government initially decided to frame charges under the draconian and controversial Prevention of Terrorism Act, 2002 only against those accused in the Godhra train-burning incident (who were all Muslims) and not to invoke its provisions in case of the events that followed, where most of the accused were Hindus.138

Secondly, the role played by the police, the force almost exclusively responsible for criminal investigation and playing a substantial role in criminal prosecution, both during and after the incidents, casts into serious doubt any claim of impartiality and independence of the proceedings that may be made. The Commissioner of Police for Ahmedabad admitted to the NHRC the bias of the police force by saying that ‘the police force being drawn from the same society cannot remain totally insulated and immune to external influences’.139 As has been pointed out in greater details in subsequent Chapters, the police was criminally involved in the perpetration of the violence itself. Even in cases

137 “India: Carnage in Gujarat Unpunished” <http://www.hrw.org/press/2003/02/india022703.htm> (visited on 02.05.2003).138 Supra note 19 at 2.139 Supra note 19 at 2.

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it did not itself participate, it refused to save the victims by saying they have orders not to save them.140 Even after the crimes were committed, the police resorted to destruction of evidence. As the forty-five-year-old man named Yousuf Bhai told Human Rights Watch, ‘[a]fter the police brought people here [the camp] then all night they set bodies on fire, so there could be no cases against them, so there could be no evidence. Without police support, none of this could have happened.’141

The NHRC report further documents that FIRs are either not being recorded or not recorded honestly by mentioning the accused persons named by the complainants. There was a general demand for investigation of these cases by an outside independent agency like [Central Bureau of Investigation].142 A senior Indian Police Service official admitted, “While most of the policemen have consciously avoided naming any BJP, VHP or Bajrang Dal activist in the FIRs, some conscientious police officials have done so. Now they are under severe pressure to make amends.”143 So much the National Human Rights Commission distrusted the police investigation that it recommended to the Government to hand over the investigation of certain important cases to the Central Bureau of Investigation (CBI).144 Of course, both the State Government as well as the Central Government rejected the recommendation, and the investigation is still largely being conducted the police, itself culpable in a number of instances.By its own admission to the Election Commission of India, the State Government said that out of 4,208 FIRs filed as on 31 July 2002 a total of only 1,360 cases had been charge-sheeted.145 To Quote from this report of the Election Commission, “[e]verywhere there were complaints of culprits of the violence still moving around scot-free including some prominent political persons and those on bail. These persons threaten the displaced affected persons to withdraw cases against them, failing which they would not be allowed to return to their homes. In Dakor (Kheda District), the team was told by a delegation, in the presence of senior police officers and the district administration authorities, that the culprits had been identified before the police but no arrests had taken place and the main culprits continued to threaten the villagers to withdraw their FIRs. The team has cited many other such cases from almost all the 12 districts covered by them.”146

Thirdly, coming to the Commission of Inquiry set up to investigate the incidents, to begin with, the official bias is reflected in the terms of reference in the case of the Shah and Nanavati Commission itself, which hinted at the official prejudice since it was defined centrally in terms of the "Godhra incident", the singular incident of train-burning allegedly by a Muslim mob, and its ‘aftermath’, which was a spate of violence that engulfed the state for over a month, as consequential.147

140 Supra note 5 at 5-6.141 Supra note 5 at 20.142 Supra note 19 at 6.143 Supra note 5 at 48.144 Supra note 7. 145 Supra note 9.146 Supra note 9.147 Manas DasGupta, “Former Supreme Court Judge joins Judicial Probe”, The Hindu, 23 May 2002 at

<http//:www.hinduonnet.com/thehindu/2002/05/23/stories/2002052301541200.htm> (visited on 21.04.2003).

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The Justice Shah commission was appointed in March, after an intense campaign in the media and international pressure "that something be done". Originally the Commission was a single member one consisting of Justice Shah alone. However this led to intense opposition as it was felt a "centrally appointed commission" consisting of a Supreme Court judge would be more effective and impartial than the a single judge of the High Court. Questions were also raised about Justice Shah's history as a somewhat controversial judge, especially in light of one of his judgments sentencing to death five people involved in communal riots in 1985, which was overruled by the Supreme Court for lack of evidence.148 Also, Justice Shah’s close association with the BJP government, including his participation on a panel of lawyers representing the state government before the Supreme Court, raised questions about his ability to conduct an impartial investigation.149 In early May announcing the appointment of Justice G. T. Nanavati, a retired judge of the Supreme Court, to the commission, the State Government said the commission had been ``reconstituted'' to remove any doubts about the Government's “intentions” behind the inquiry into the violence.

However, this commission of inquiry has to be judged in its historical perspective. With time, appointment of Commissions of Inquiry has become something of a tradition in India whenever events occur that disrupt our public lives. The Justice Shah and Nanavati Commission in Gujarat is the latest in a long series of such state constituted commissions of inquiry, which have emerged in response to civil society's demands for investigation and redressal. Historically such state appointed commissions have been criticized for their failure to provide justice in any substantive sense, and even when individual commissions have come up with brave and honest indictments of the government in power, no serious follow-up action was taken, since the government is not bound to accept the recommendations of such commission of inquiry. This commission follows the trail of other commissions of inquiry appointed by the state in the wake of communal riots in 1969 and 1985 — whose recommendations have yet to be implemented150. Baxi makes this point when he says that ‘momentarily distressed regimes have used this mechanism, with some success in order to provide the appearance of a short term rule of law oriented state action, which in the long term divests victims of any semblance of effective redress’.151 Rightly, therefore, he describes judicial inquiries as an important democratic resource whereby national and international legitimacy of the ruling forces are refabricated.152

However, the above scepticism about commissions of inquiry in general, drawing from their past histories, may not be sufficient to prove unwillingness in a court of law. An issue which arises with the appointment of Justice Nanavati (since no allegation of bias has been made against him and a possible argument can be made out that this inquiry is impartial and independent) also to the commission is whether partiality and lack of 148 Id.149 Supra note 5 at 35.150 Supra note 5 at 6.151 Upendra Baxi, "The Second Gujarat Catastrophe", May 27, 2002,

<www.mnet.fr/aiindex/2ndGujaratCatastrophe.pdf>.152 Id.

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independence, once established, are sufficient to prove unwillingness; or whether the proceedings should demonstrably continue to be partial etc. when the question of admissibility is being decided by the ICC? Logically, once unwillingness, being a state of mind, is established at any point of time after the crimes took place, and there are no reasons to believe that there has been a change in such state of mind (say, effected due to a change of the regime), it should suffice for the ICC to admit the case. So, a subsequent act, ostensibly to conduct impartial proceedings, may not make the case inadmissible only for that reason. This reasoning is supported by the language employed in Article 17(2)(c), which says ‘[t]he proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. However, an opposite argument will be that Article 19(10) allows the Prosecutor to request the Court to review its decision holding a case to be admissible if she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17. So, if a subsequent impartial proceeding can be the basis of reversal of the finding of admissibility, then certainly such proceeding at the time the finding is being made itself should make the case inadmissible. The use of the past tense in the language of Article 17(2)(c) can be explained by saying that it is possible that at the time when the case is being heard by the ICC, the proceedings might have been stopped and may therefore not be in existence at all. This second interpretation sounds more plausible because if a State has mend its ways and is now sincerely investigating/prosecuting the case, the principle of complementarity shall require the court to defer to its jurisdiction.

So, much will depend on how the Court views the subsequent appointment of Justice Nanavati to the commission, especially in light of the facts that the police remains the chief investigating authority and that the recommendations of the commission do not bind the government.

Fourthly, in Article 17(2)(b) & (c), it remains unclear as to what circumstances exactly will be inconsistent with ‘intent to bring the person concerned to justice’. What is the level and quality of proof required for this? Is the fact that the Chief Minister of Gujarat who is alleged to have largely ‘allowed’ the crimes to be committed is still continuing in office an indicator of this inconsistency? Does the fact that the sister organisation (Vishwa Hindu Parishad) of the party in power both in the state of Gujarat and at the Central Government in India was indicted by most media and other reports as responsible for the crimes satisfy this threshold? Or the fact that most of the alleged perpetrators/ tolerators/ overseers continue to serve as officials and ministers with impunity? Probably, the answer will depend on whether the inquiry is under clause (b) or (c) of the provision. Under Article 17(2)(b), the answer may be clearly positive, provided of course that the first part of the provision, i.e. the requirement of proving the unjustified delay is satisfied. However, under Article 17(2)(c), the inconsistency in the intent must be manifested in the manner in which the proceedings were being conducted. Merely stating that the alleged perpetrators continue to man the centres of power may not be enough. Possibly, then, what can meet the criteria imposed by the provision is the fact of refusal to register or improper registration by the Police of the First Information Reports filed by the victims,

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pressure to amend the FIRs where perpetrators have been named etc. These facts clearly point out that the circumstances prevailing under the current Government of Gujarat are certainly inconsistent with bringing the persons concerned to justice.

Another possible defence that can be raised is under Article 17(1)(d) by saying that the case is not of sufficient gravity to justify further action by the Court. Since gravity is not defined anywhere in the Statute, it is a potential loophole in specially cases like Gujarat where the number of casualties, though significant, were not extremely high; especially because, as seen above, scale or magnitude is a possible element of gravity. So, a very likely defence shall be that the case is not of sufficient gravity to justify further action.

This, however, is not a very strong defence, especially in light of the heinousness of the crimes committed. Also, scale need not necessarily be judged by the number of victims alone, but other indicators e.g. geographical extent of the crimes, its heinousness etc. may also be relevant.

In light of the above arguments, it is rather difficult to determine whether the inadmissibility challenge will survive in the Court or not. This ambiguity is specially due to the fact that no trial has yet taken place before the Court. It might take some time before the court evolves its own jurisprudence and pronounces on such matters. Certainly the court will find it difficult to ward off the inadmissibility challenge easily given India’s largely democratic structure with separation of powers between the executive and the judiciary, and a functioning judiciary. But even in the eventuality that the case is declared admissible, it might never be actually taken up by the court because of the mandatory procedure under Article 18 that the Prosecutor will have to follow. In all likelihood, on intimation from the Prosecutor, the Indian State will claim that it is investigating or has investigated the crimes and require the deferral of the investigation by the Prosecutor and subsequently to persuade her to request the Court under Article 19(10) to review its decision on inadmissibility in light of new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17 . So, even though the international trial might not take place, it would succeed in pressurizing the domestic jurisdiction to punish the guilty and thus achieve the ends of justice.

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5. CONCLUSION

As far as the characterisation of the incidents in Gujarat goes, it is clear that a strong case can be made out that genocide and crimes against humanity were committed there. However, international law is still to develop credible enforcement mechanism that uphold the rule of law. Certainly, the ICC is a step towards that direction, but it is a reluctant and small step. This is evident from the fact that even though the worst forms of internationals crimes have been probably perpetrated in Gujarat, the ICC is not really slated to bring about a movement from impunity to accountability, at least in the case of Gujarat. The lack of universal jurisdiction with the ICC and stringent provisions for admissibility of a case ensure that the ICC remains a weak court.

And yet, it would not be fair to dismiss the ICC as a useless institution. Like most other aspects of international law and institutions, the primary role that can be played by the ICC is through the legitimation and encouragement of national trials.153 As was seen in the section dealing with accountability, domestic impunity may be questioned, only if to ward off an international trial. Not doing so will suggest the inadequacy of the domestic system; and the stigma such a conclusion carries can be ascertained by the valiant reaction of the Supreme Court to the Bhopal Gas tragedy case after the Government of India swore on affidavit before an American court that the Indian judiciary is ill-equipped to handle the case. Further, international law carries that moral force which pressurises the domestic as well as the international civil society to jump into action. So, a conviction before the ICC may not be the only positive outcome possible. A mere trial or a possibility of a trial is a chink in the armour of impunity. The point is further strengthened by the fact that howsoever strong the international criminal justice system may become, it cannot substitute the domestic one, at least in the near future, and therefore the need for a strong domestic judicial system.154 So, the ICC becoming a monitoring and supporting institution is perhaps the best outcome of establishing ICC.155

Hopefully, this may lead to the internalisation of aversion to impunity in domestic jurisdiction.156

Of course, it then becomes essential that the ICC, even though it is not the best the world deserved, receives full support of all nations committed to rule of law and respect of individual human rights. The attempt of certain countries to undermine the efficacy of the Court must end. A case in point is the signing of the bilateral agreement between India and the United States, two biggest democracies in the world, against handing over each other's nationals to a third country or to any international tribunal.157 Obviously, the goal is to frustrate the purposes of the ICC. Sooner the long-term interests of humanity find favour with states over their myopic and ostensible self-interest, the better.

153 Jonathan Charney, “International Criminal Law and Role of Domestic Court”, 95 AJIL 120, 122 (2001).154 Supra note 2 at 555. 155 Supra note 153 at 123.156 Supra note 153 at 124.157 “India, U.S. sign non-extradition pact”, <http://www.washtimes.com/upi-breaking/20021226-031101-1118r.htm> (visited on 03.05.2003).

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6. BIBLIOGRAPHY

BOOKS

Christophe  Jaffrelot, The Hindu Nationalist Movement and Indian Politics (New Delhi: Penguin, 1996).

International Criminal Law: Volume III: Enforcement (M. Cherif Bassiouni ed., 2nd edn., New York: Transnational Publishers Inc., 1999).

Kriangsak Kittichaisaree, International Criminal Law (Oxford: Oxford University Press, 2001).

Malcolm N. Shaw, International Law (4th edn., Cambridge: Cambridge University Press, 1997).

William A. Schabas, Genocide in International Law: The crime of Crimes (Cambridge: Cambridge university Press, 2000).

William Schabas, An introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2001).

JOURNAL ARTICLES

Darryl Robinson, “Defining ‘Crimes Against Humanity’ at the Rome Conference”, 93 AJIL 43 (1999).

David Stoelting & Pieter H. F. Bekker, “The ICC Prosecutor v. President Medema: Simulated Proceedings Before The International Criminal Court”, Pepperdine Dispute Resolution Law Journal 1 (2002).

Jonathan Charney, “International Criminal Law and Role of Domestic Court”, 95 AJIL 120 (2001).

Jonathan D. Charney, “Progress in International Criminal Law?”, 93 AJIL 452 (1999).

Julio Barboza, “International Criminal Law” 278 Recueil des Cours 13 (Hague Academy of International Law, 1999).

Mahnoush H. Arsanjani, “The Rome Statute of the International Criminal Court”, 93 AJIL 22 (1999).

Mark A. Summers, “A Fresh Look At The Jurisdictional Provisions Of The Statute Of The International Criminal Court: The Case For Scrapping The Treaty”, Wisconsin International Law Journal, 57 (Winter, 2001).

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Payam Akhavan, “Beyond Impunity: Can International Criminal Justice prevent future atrocities?”, 95 AJIL 7 (2001).

Philippe Kirsch & John T. Holmes, “Developments in international criminal law”, 93 AJIL 2 (1999).

Theodor Meron, “International criminalization of internal atrocities”, 89 AJIL 554 (1995).

Y.S.R. Murthy, “A giant step forward or delusion – an evaluation of the Rome Statute of the International Criminal Court”, 40 IJIL 507 (2000).

OTHER ARTICLES

“Antidote to self-oblivion”,<http://www.rss.org/New_RSS/Mission_Vision/Why_RSS.jsp> (visited on 11.05.2003).

“India, U.S. sign non-extradition pact”, http://www.washtimes.com/upi-breaking/20021226-031101-1118r.htm (visited on 03.05.2003).

“India: Carnage in Gujarat Unpunished”<http://www.hrw.org/press/2003/02/india022703.htm> (visited on 02.05.2003).

“We’ll repeat our Gujarat Experiment”, The Indian Express, 4 September 2002 at <http//:www.indianexpress.com/archive_frame.php> (visited on 10.05.2003).

Harsh Mander, “Cry, the Beloved Country: Reflections on the Gujarat massacre,” South Asia Citizens’ Web, March 13, 2002, http://www.mnet.fr/aiindex/Harshmandar2002.html (visited on 15.04.2002).

Manas DasGupta, “Former Supreme Court Judge joins Judicial Probe”, The Hindu, 23 May 2002 at<http//:www.hinduonnet.com/thehindu/2002/05/23/stories/2002052301541200.htm> (visited on 21.04.2003).

Ranjit Bhushan, “Thy Hand, Great Anarch: The overriding theme of the riots: surprisingly systematic targeting, little state intervention,” Outlook, March 18, 2002.

Upendra Baxi, "The Second Gujarat Catastrophe", May 27, 2002, <www.mnet.fr/aiindex/2ndGujaratCatastrophe.pdf>.

REPORTS

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“Report of the International Law Commission on the Work of its Forty-Eighth Session”, 6 May-26 July 1996, UN Doc. A/51/10, at 87.“‘We have no orders to save you’: State Participation and Complicity in Communal Violence in Gujarat”, Vol. 14 No. 3(C) Human Rights Watch, April 2002 at <http://www.hrw.org/reports/2002/india/index.htm> (visited on 05.05.2003).

“Gujarat Orders”, National Human Rights Commission <http://www.nhrc.nic.in/Gujarat.htm> (visited on 04.05.2003).

“Order of the Election Commission of India on the general election in Gujarat”, 16th

August 2002, <http://www.eci.gov.in/press/current/PN_16082002.pdf> (visited on 04.05.2003).

“Report of the National Commission for Women on Gujarat” <http://www.ncw-india.org/publications/report/page1.htm> (visited on 04.05.2003).

“Report on the visit of NHRC team headed by Chairperson, NHRC to Ahmedabad, Vadodara and Godhra from 19-22 March, 2002”, National Human Rights Commission, New Delhi.

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