icc conversations with indian parliamentarians with cover page.pdf

8/11/2019 ICC Conversations with Indian Parliamentarians with Cover page.pdf

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Conversations with Indian Parliamentarians 3

CONTENTS

BACKGROUND 4

INTRODUCTIONS & OPENING REMARKS 6

SPEECH OF JUDGE PHILIPPE KIRSCH 8

INTERACTIONS WITH THE PARLIAMENTARIANS 15

VOTE OF THANKS 31

ANNEXURES

Annex A: A biography of Judge Philippe Kirsch 32

Annex B: Photographs 34Annex C: List of Participants 38

Annex D: List of Observers 42

Annex E: Office-Bearers of Parliamentary Forum 45on Human Rights

Annex F: Acknowledgments 46


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4 International Criminal Court

BACKGROUND

On 8 December 2005, Judge Philippe Kirsch President of theInternational Criminal Court (ICC) situated in The Hague, TheNetherlands - addressed Indian Parliamentarians on the issue of International Criminal Court and India, at the Parliament House in NewDelhi. This event was made possible through the joint efforts of theParliamentarian Forum on Human Rights, ICC-India: the Indian campaignon International Criminal Court as well as several individuals and partner

organizations of the campaign.To any constituency in India, the ICC is conceptually and

geographically distant; geographically because it is situated in The Hague;conceptually because it is born out of the legacy of the Nuremberg andTokyo tribunals and the consequent struggle to end impunity for crimesof the highest order. The Convenor of a recently-formed ParliamentarianForum on Human Rights, Mr. E.M. Sudarsana Natchiappan (RajyaSabha), invited the ICC-India campaign to address MPs on the issue asthey were curious and sought more information. The two hour meetingwas held in August 2005 which was attended by more than 45 MPs fromLok Sabha and Rajya Sabha, representing various political parties. Theendless stream of questions from the parliamentarians were respondedto in writing and has been published as a booklet, released at the secondconsultative meeting held on 8 December 2005 at the Parliament House,New Delhi. The present report documents the proceedings of this second

meeting with Parliamentarians.The second consultative meeting brought together about 50

Parliamentarians from both the Houses (Lok Sabha and Rajya Sabha),representing various political parties, hailing from varied states andconstituencies. These Parliamentarians were able to receive information,seek clarifications and freely discuss apprehensions and concerns on theissue of the ICC with the President of the court, Judge Philippe Kirsch.The objective of Judge Kirschs visit to India was to dispel apprehensionsand misconceptions about the ICC, to discuss frankly the achievementsand limitations of the court, and to generate an informed discussion onthe issue. It is in this context that Judge Kirschs interaction with theIndian Parliamentarians stands as an important event.

The experience of organizing this event has led to ICC-India


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campaigns engagement with the law-makers and the possibility of working in close association with the MPs on human rights issues,including those pertaining to international law and geo-politics such asthe ICC. It is hoped that the experiences of the campaign would contributeto a sustained dialogue on human rights issues with this importantconstituency.

ICC-India campaignICC-India campaignICC-India campaignICC-India campaignICC-India campaign

December 2005


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INTRODUCTIONS &

OPENING REMARKSShri. E.M. Sudarsana Natchiappan, M.P. (Rajya Sabha) and

President of the Parliamentary Forum on Human Rights, welcomedJudge Philippe Kirsch the President of the International CriminalCourt (ICC) and the participants to the third meeting of theParliamentary Forum on Human rights. He apologized to theHonble Judge as two members who accompanied him were not

permitted into the Parliament House. He promised to try andfacilitate their entry during the course of these proceedings.

Shri. Natchiappan introduced the subject of ICC as aninternational judicial institution that deals with prosecution of individuals for most serious crimes under international law. Hestated that this institution now has the support of a hundredcountries, and the recognition of the United Nations. Hehighlighted that however, India is not a signatory of the RomeStatute that created this court. He said that a consultative meetingon the ICC was being convened for the second time, with the intentto discuss the issue more and understand the details of itsfunctioning, its implications and relevance for India, and thepotential for Indias engagement with the issue in future. Heemphasized that when efforts to draft the statute creating the ICCwere commenced, India had participated in the process, but

subsequently abstained from voting on the same in 1998 at theRome Conference. He suggested that the members of Parliamentcould also discuss ways of facilitating India's participation in theReview Conference on the ICC Statute, scheduled for 2009.

Introduction of the participants and the office-bearers of Parliamentarian Forum on Human Rights followed. For detailsplease see Annex C and E respectively.

Shri. Natchiappan then invited Judge Kirsch to release abooklet authored by Saumya Uma and co-published by WomensResearch & Action Group and Peoples Watch Tamil Nadu,responding to queries raised by the parliamentarians in the previousmeeting on 3 rd August 2005. After the book release, Smt.Purandeswari, M.P. (Lok Sabha) and General Secretary of the


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Parliamentarian Forum on Human Rights, thanked theParliamentarians for taking time off their busy schedule toparticipate in the discussion on this issue, and introduced JudgeKirsch and invited him to address the parliamentarians. For abiographical note of Judge Kirsch, please see Annex A of thispublication.


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SPEECH OF

JUDGE PHILIPPE KIRSCHPRESIDENT OF

THE INTERNATIONAL CRIMINAL COURT

Thank you very much for your welcome. Thank you Mr.Chairman for your introductory remarks. Thank you GeneralSecretary for that introduction. I was also about to thank you sirfor the comments you made earlier about the absence of mycolleagues but as I was about to say this, I realize that my colleaguehas in fact been admitted. So I would like to introduce Mr. ValentinZellweger who is my Chef de Cabinet. So no harm done, and Ithink I can make my comments and remarks brief so that we haveas much time as possible for questions that might interest you.

It is important for the court to come to India. India is well-

known for its role in development of law and the development of international law and it is important for us to be able to speak toparliamentarians. We find it more and more useful and importantthat parliamentarians are well-acquainted with the court andunderstand it well, both because of their role in their own countriesand because they have external relations that are absolutely uniqueto members of the Parliament.

I would like essentially to deal with two issues this afternoon.One is the role of ICC and the second is what the ICC has done sofar and where is it going. The first basic point I would like to makeis why an ICC at all? Why was an ICC created? The idea is notnew. The idea goes way back and certainly gained momentumright after World War II after the trials took place at Nurembergand Tokyo. It was seen at that time already that it was not possibleto create ad hoc or special tribunals every time massive crimes

were committed and national systems could not function. We hadto have a permanent institution that would simplify this processconsiderably. But of course then, the Cold War took place. TheCold War paralyzed cooperation among major powers in manyareas, let alone the area of justice and international justice. Whenmassive crimes are committed such as those within the jurisdiction


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is inclined or is thinking of ordering the commission of such crimes,there is a signal that there is no guarantee that the leader will notface one day a court. Because of course, when massive crimes arecommitted, they are not committed in isolation. You have a numberof consequences that go with the commission of massive crimes,affecting very seriously regional stability, international peace andsecurity, starting with massive flows of refugees, which are of course very de-stabilizing for regions. I just wanted to put this incontext, as it is not only a tribunal that would punish certain people

of certain crimes but also one that would create an atmospherethat is conducive for better peace and security.

A fundamental difference between the ICC and any ad hoctribunals is that the ICC is the first and only international court tohave been created by treaty. All other international tribunals werecreated by a few states the victors in World War II created thosein Nuremberg and Tokyo, and the Security Council created thetribunals for Rwanda and former Yugoslavia. On the contrary, thetreaty creating the ICC took a number of years to develop, andwas eventually adopted in July 1998. The Rome Conferenceachieved a large degree of support 120 states voted for the Statuteat that time but it did not reach unanimity. In my view then, as aformer diplomat, and in my view now, as the President of the court,it is essential that one day, the ICC does reach universal support.It is essential that all states from all regions recognize themselves

in the ICC and take ownership of the ICC. The General Secretarymentioned that I had chaired the Preparatory Commission for 3 years. At that time, one of my main goals was to do somethingthat would facilitate that universal acceptance, and for the 3 years that the Commission sat, all decisions of the Commissionwere taken by general agreement involving all states thatparticipated in the Preparatory Commission. And the result, Ithought, was positive, because by the end of by 2001, 139 stateshad signed the statute as opposed to 120 states that voted in favourof the ICC three years before. Now we have a 100 states that arefull parties to the statute, the last one being Mexico which ratifiedin October, a couple of months ago. So a major difference betweenother tribunals and the ICC was the mode of creation.


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Another very fundamental difference is whats called theprinciple of complementarity. The tribunals created by the SecurityCouncil have the right to summon a state to bring an offender tothem, by virtue of the authority that the Security Council enjoysunder the Charter. This is not the case with the ICC. The ICC istruly a court of last resort. The ICC will intervene in very rareoccasions. It remains the responsibility of states to investigate andprosecute all offences. The Court can only act if a state is unableor unwilling to carry out genuine proceedings. Of course, I can

address this issue further, if it is of interest to the Honble members.One of the things that was very important to state when they

created the court in 1998 was to ensure that this court was actingpurely judicially, not politically, and that the ICC would respectfundamental standards of justice as recognized in all nationalsystems, starting for example, with the presumption of innocence.You will appreciate that when the court was created in 1998, ithad, for states, absolutely unpredictable jurisdiction. It wasimpossible for states to know what the court would deal with,nationals of which states would be tried or brought before the court.It is impossible for states to know what situations the court willdeal with. Therefore states took every precaution to circumscribethe scope of functioning of the ICC in a way that would guaranteethat it would be an absolutely judicial process and not at all apolitical process, and that the rights, not only of persons appearing

before the court but of the states whose nationals that might comebefore the court, would be absolutely guaranteed.

I think I am going to stop here with respect to the basicfeatures related to the court. One last point which is that contraryto what is often assumed, the ICC does not exercise universal

jurisdiction. That proposal was made at the Rome Conference butit was decided ultimately as the ICC was created, it was wiser tolimit its jurisdiction to the two grounds that were universallyrecognized in international criminal law - the state of the nationalityof the accused and the state of the territory where the crime wascommitted. So under normal circumstances, the ICC must receivethe consent from one of those two states before doing anything.The only exception to that is if the Security Council refers a


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situation to the court, then this requirement does not exist - whichis, of course, another argument in favour of the proposition thatthe ICC must ultimately reach universality. It is not only a questionof principle. It is a question of practice, because as long as notmany states have ratified the statute, you will always find situationswhere neither the state of the nationality of the accused nor thestate of the territory on which the crime was committed has ratifiedthe statute, and therefore the ICC should not and cannot intervene.

So where are we today? I think it is fair to say that the

development of the ICC has gone much more quickly than hadbeen anticipated. At the time of the Rome Conference, it was widelyexpected that the earliest the ICC statute might enter into forcewas fifteen years later. Four years after the Rome Conference, theStatute entered into force, which I think is an indication of theimportance that the states at that time attached to having thisinstrument available in case of need. Two years afterwards,Prosecutors and judges took office and the court is now in its

judicial phase of its operation. 3 states parties Uganda,Democratic Republic of Congo and the Central African Republic- have referred situations of commission of crimes on their ownterritory and the Security Council has brought the situation of Darfur, Sudan to the court. The prosecutors have commenced, outof the four situations, three investigations, and the prosecutor isalso monitoring eight other situations that are unknown and are

not public, by virtue of his power to receive communicationscontaining allegations of crimes under the statute from othersources than referrals. As I said, 4 entities have referred situationsto the court - 3 states and the Security Council - but the prosecutorcan also independently look at other information that is given tohim to determine whether there is a reasonable basis to undertakean investigation in such cases. The pre-trial chambers, which aremechanisms preceding the trial, have heard the first hearings andissued decisions though the decisions that are not confidential areon the website and are open for all to see.

In July, the court issued its first arrest warrants in Ugandaagainst 5 leaders of an organization called the Lords ResistanceArmy, who are accused of having committed crimes against


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humanity and war crimes, including sexual enslavement, rape,intentionally attacking civilians, forced enlistment of child soldiersand those crimes were allegedly committed mostly against children.It is alleged that 25000 children were kidnapped by thisorganization and that crimes were committed against them, andthey were also forced to commit crimes against one another. Thosearrest warrants were issued under seal for security reasons andonly in October were the warrants unsealed. The reason for this isthat the ICC operates under very different circumstances from the

ad hoc tribunals I mentioned earlier. In all other cases, ad hoctribunals were dealing with crimes that had been committed in thepast in the course of conflicts that were over. In the case of theICC, crimes continue to be committed in the course of conflictsthat are ongoing, and that creates an extremely dangerous situationfor the witnesses, victims and for ICC staff themselves. Thatexplains the higher degree of confidentiality currently maintainedover certain elements while normally, the ICC proceedings are allpublic and ultimately I think they will all be accessible.

I said earlier that states continue to have primaryresponsibility for punishment of crimes within their jurisdictionand even when the ICC is obliged to assume jurisdiction, statescontinue to have a very important role. The way states conceivedthe ICC when it was created was not to create a complete judicialapparatus as existing states including not only judicial systems

but also police and other elements of enforcing decisions. Stateswanted a court that would be strong judicially, as I explained earlier,but left the other elements of any justice system, including arrestof people, providing information and the like, to states. And so,now that the court exists and operates, it is absolutely essentialthat the cooperation that has been provided for under the statuteindeed does come in practice. This is clearly the case of statesexecuting arrest warrants, providing evidence, and in enforcingsentences, and it is also the case of international organizationsstarting with the United Nations with which the ICC concludedlast year a relationship agreement, which is now beingsupplemented by other agreements such as the agreement withpeacekeeping operations in Congo, because again, without that


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of the ICC. My point in coming to a state like India is not to say that theICC could deal with an Indian issue, but to seek India as a partner.

Shri S.K. Kharventhan: Suppose in the trial chamber of the ICC, a person is convicted. And in appeal, due to error of law or error of fact, the person gets an acquittal. Is that person entitled to claim any compensation? Or will the court itself award anycompensation? What is the maximum compensation that will be

paid to the affected person?

I think that question will have to be addressed through jurisprudence.Obviously you have informed yourself before and you know that there isa principle of compensation for those cases. But I think that will have tobe dealt with on a case-by-case basis. It is extremely difficult to define afigure in advance. The same way in another area which is comparable,the system provides for reparation for victims, which can take the formof rehabilitation, compensation and restitution, and in fact a Trust Fundhas been created for victims, which now has about a million Euros in it.Again, one of the major discussions that is taking place now is what kindor form of compensation will actually be done. And although you candevise certain principles in the beginning, it is clear that this will have tobe done on a case-by-case basis. I think the system is moving to aconclusion in the case of victims that it probably will be collective ratherthan individual. But again, we are all subject to judicial decisions toreally have a final answer. Thank you.

(Speaker unknown): If I may just mention. Of course, you havethe omnibus, non-interference kind of statement. But when acountry demolishes the entire judicial system of another country,and then there is no system to respond to, doesnt the ICC find itself a place to respond to that special scenario?

Well actually yes. I mentioned earlier that there are essentially twosituations where the ICC may be called upon to intervene. One is if thestate is unwilling to act and the other is when a state is unable to act. Andthis is defined in the statute as a situation where a judicial system hascollapsed, or wholly or partially unavailable, which sometimes happens,for example, after an internal conflict. So this is the kind of situation that


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was considered when the system was created.

(Speaker unknown): I was referring to a very specific situation,where, in the garb of weapons of mass destruction, another international community demolishes another nation. Where doesthe ICC fit in there?

Well, if you look at the list of crimes, and war crimes in particular I think you are talking about the situation of armed conflict - you will see that thiskind of situation is specifically provided indiscriminate attacks against

civilian population and so on are in a detailed list of crimes under the statute.And then of course, the ICC would have jurisdiction provided the statesconcerned one of the two states that I mentioned earlier the state of thenationality of the accused or the state of the territory where the crime wascommitted which is your hypothesis has ratified the statute. If of course,neither state has ratified the statute, then the ICC is prohibited by its statutefrom intervening and it is precisely to correct this kind of situation that I hopethe ratification will be as wide as possible.

Shri E.M.S. Natchiappan: They are not signatories of thestatute, thats why the ICC has no jurisdiction. As you said, it isnot universal jurisdiction but only jurisdiction according to theconsent of the nation state.

Shri M.M. Pallam Raju: Judge Kirsch, I am trying to get anunderstanding of what is the current recognition of the ICC. Hasit been recognized by the United Nations? Has it been formed bythe European Union? Thats my first question. The other question

I would like to ask is if we are to strengthen the ICC, is thereanything specific that legislatures of nations can do to get agreater recognition for the functioning and the working of the

ICC?

Thank you. These are two very pertinent questions also. The ICC wascreated by a UN Diplomatic Conference the United Nations (UN)organized the conference. But the ICC is not a part of the UN. And thatwas a deliberate decision on the part of states because there was aperception that total dominance of the Security Council over the courtwas not necessarily the best possible way of proceeding in the long term.


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States wanted a court that was truly independent. So the court has arelationship with the UN only to the extent that the statute provides, whichis in two ways. One is the Security Council which can refer cases to thecourt as it did in Darfur. The other is through a relationship agreementthat I signed with Mr. Kofi Annan, the Secretary General of the UN, alittle more than a year ago, which provides for cooperation between thetwo institutions, recognizing the judicial character of the court. Thisagreement for example, aims at exchanging information. If the UN hasinformation that could be relevant to a case, then the UN should provide

it. Or as I said earlier, in the context of the peacekeeping operations inCongo, if the UN can provide security or logistics or communications,then there is an arrangement for the UN to do this on a reimbursablebasis. So the ICC is independent, but the ICC has this kind of a co-operation with the UN.

Shri M.M. Pallam Raju: This agreement that you have signed with the Secretary General, is this what you do with every

succeeding Secretary General of the United Nations? Do youhave to sign an agreement each time there is a new SecretaryGeneral to the United Nations?

No. One day I will not be President of the court anymore and thisagreement will still be valid. And similarly when the Secretary Generalchanges, the agreement will still be valid. This is not a person to personagreement. It is two institutions concluding an agreement.

I have not forgotten your second question. The role of the legislatorscan take multiple forms. One is as I said earlier. Once the exchange of views, for example, with legislators of countries, is often from what I amtold I am not a legislator very useful and productive, by way of understanding, dispelling apprehensions about the ICC and disseminatingmore accurate information. But more technically, legislators in variouscountries have looked at their internal legislations in different ways. Thestates parties have looked at their legislations with a view to ensuring,for example, that all the crimes listed in the statute are reflected in theirnational legislations. Because of course no state will want to be caught ina situation where unwittingly it is deemed to be unwilling to cooperatewith the court while its intention is to cooperate with the court. So thestates parties review their legislations to ensure that those crimes are


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included. And also in their case, to ensure that they have given themselvesthe means to provide the cooperation that the court may be seeking forexample, by providing evidence, by surrendering individuals to the courtand things like that so as to be in accordance with their obligations. Non-states parties have often looked at their own legislations, simply becausethe ICC statute is the most recent update of customary international lawwith respect to the commission of genocide, war crimes and crimes againsthumanity. So it is interesting for states to look at this simply by way of updating legislations, whether their legislations is current.

Shri E. M. S. Natchiappan: In addition if you see the brochuresthat have been already circulated, this will show that 100countries have already become members. It is not restricted to

Europe alone. Other continents have accepted the statute and ratified it. But Asia Pacific is very low. That is a fact that the

Honble members have to recognize.

Shri Nikhil Kumar: I have two questions. I would like to knowwhat arrangement does the ICC have to screen out frivolouscomplaints. I agree that this is not an assault on nationalsovereignty and all that. But there would be a possibility of

frivolous complaints and the ICC could prosecute those cases incourt. Except to cause annoyance and a certain degree of affront to national honour, it would achieve nothing. So how does onescreen those? My second question is why beat around the bush?Why not directly say that use of weapons of mass destruction isactionable? Instead of explaining in a round about manner, that the consequences of use of weapons of mass destruction will beactionable?

On the question of frivolous complaints, of course your concern isabsolutely right. And the ICC is well aware of it. There is something Ihave not mentioned which might be interesting in that regard. I hadmentioned earlier that there are three ways of triggering the jurisdictionof the court the states, the Security Council or the prosecutor himself,although in that case, the prosecutor is subjected to more stringentrequirements which I can get into later. But the prosecutor, as a matter of


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English, it takes two to tango. But in the global power regimeand the multi-lateral regime, what has been acted upon is that there is one side which is guilty. I am not going into any specificcountries or zones of conflict. But the global information regimehas always assumed that one side is guilty. When you are workingunder that presumption that one side is guilty, how can you

prosecute or seek to prevent crimes against humanity?

Thank you. On the first point, the Kosovo situation may or may not havebeen communicated to the prosecutor. If it has been communicated tothe prosecutor, it is in one of those communications sent by private sourcesabout which the judiciary of the court is not aware. Thats a question thatbelongs to the prosecutor.

With respect to crimes against humanity, they are based on thecombined jurisprudence of the tribunals of Nuremberg, Tokyo, Rwandaand the former Yugoslavia. It starts with murder, continues withpersecution, extermination, torture and a variety of different crimes. To

constitute a crime against humanity, any of those crimes must meet acertain threshold which is that it has to be committed in a widespread orsystematic attack against a civilian population, and that attack has to beconducted pursuant to the policy of a state or an organization. So this isa very high threshold. With respect to conflicts, civil disturbances arespecifically excluded from the jurisdiction of the ICC because the levelis not sufficiently high. The tenor of your comment seems to beestablishing a link between a political dimension which is internationalorganizations generally and the ICC which is a court. That is why it is notpossible to make a link like that. Whatever comments you may make onhow international organizations or global systems behave is one thing,but the ICC is a court of law that has to conduct itself in accordance with

judicial principles and therefore, as in fact happened in one situation,when the prosecutor was asked if he would deal with both sides of thatsituation if crimes were committed on the other side, he said that he would.

Shri Manvendra Singh: Subsequent to what you answered inthe question, it means that hypothetically, since Britain and Germany are both signatories to the ICC, hypothetically aGerman citizen can take Britain to court for the bombing of

Dresden.


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No, because as I said in my presentation, the jurisdiction of the ICCbegins on 1 st of July 2002. No crimes committed before 1 st of July 2002can come within the jurisdiction of the ICC. Thats the principle of non-retroactivity that states decided to apply to the ICC when they created it.

Smt. Tejashwini Seeramesh: I have three questions. One isrelated to Iraq. Though the majority of the world opposed, theUS started an inhuman war against Iraq in the name of weaponsof mass destruction. It is a known factor that America will not support anything that is against their interest. So how far areall of us, including the ICC, able to do justice in such situationsbecause today even Saddam Hussein is questioning or refusingtrial in that court. Second question is that in Myanmar, in spiteof her tremendous victory, Madam Aung San Suu Kyi has beenillegally confined for the past so many decades. The world isreally helpless to do justice to that situation. Third is that in

India, the whole world knows how Indian democracy has been

attacked by terrorism. Until the so-called superpowers wereattacked by terrorism, they never agreed that Indias case is right.

And even though the world knows where the terrorism campswere located, which are the countries that are training, in spiteof our protests and objection, those countries were extending allsorts of help to our neighbouring countries. So in this situation,can we do something materially?

As I said earlier, I will not make comments on specific situations. But Ican make two general comments in the context of your question. I willrefer to one situation as it is factual. The ICC could not deal with theIraqi situation in any event because the crimes invoked were committedbefore 1 st July 2002. That is a constraint in the statute.

Shri Nikhil Kumar: The prosecution of Saddam began only last year well after the ICC was in position

Shri E.M.S. Natchiappan: Just a minute. Let me clarify oneaspect, that is the ICC can interfere only on three grounds. Oneis if the state concerned has already been a signatory, number two is if the prosecutor has initiated the case, and number three


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is when the Security Council has directed the court to do it. If we take the example of Iraq-USA, both are not signatories of the

Rome statute so ICC can no jurisdiction. In the case of Indiaand Pakistan, about the issue of helping terrorists, both are not signatories to the ICC therefore ICC cannot interfere.

Yes, I do apologize. I did misunderstand your question. But thechairman is right. In a case like this, the ICC has no jurisdiction becauseneither of the two states involved are parties to the statute. And thisreally addresses, madam, the question you were asking earlier. The ICCwill be able to do something if states ratify its statute. If states do notbother to ratify the statute, of course the ICC cannot do anything. Andthat is a clear message I can convey in this room.

With respect to terrorism as a crime, terrorism could not be includedin the statute, although there were efforts to include it on the part of statessuch as India, as terrorism could never be defined historically in the UNsystem. And because some states thought that terrorism lent itself more

as a crime to classical methods of international cooperation such asbilateral agreements or specialized organizations such as Interpol.However, if you look at the definition of crimes against humanity, and Iwill repeat, if I may, the terms, because I think they are important toregister. Lets take the crime of murder. Murder will be a crime againsthumanity if it is part of a widespread or systematic attack on a civilianpopulation pursuant to the policy of a state or an organization. As amatter of law, it is therefore highly likely that certain acts of terrorismcould in fact come before the ICC not as crimes of terrorism, as your eyewould see them, but as crimes against humanity.

Its the same problem here again with the Myanmar situation. If astate does not ratify the ICC, what can the ICC do?

Shri E.M.S. Natchiappan: As the judge mentioned, Myanmar has also not ratified the statute. Please refer to the list of countries that have ratified the ICC. Only for those countries,the ICC will be generally applicable. We want to explain to the

Honble members that if India is not a signatory to the ICC, weare losing the jurisdiction of the ICC.


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Shri R. Chandra Sekar Reddy: I have a small question. As I understand from the literature circulated to the members, that the ICC deals with individuals who are committing crimes against the society or violating international law. And at the same time,

you say that it will interfere only when national courts are unableor unwilling to act. Can you elaborate on this? If someorganization commits an offence, not an individual if fewindividuals form an organization and commit a crime - and thenational courts have taken up the matter for namesake and

protract the litigation, what happens in that case?The concept of unable or unwilling applies to a judicial system, whichnecessarily is the judicial system of a state, irrespective of whether theobjects or subjects are agents of the state or members of an organization.What does it mean? Unable is a situation where, as I have referred toearlier, where a civil / internal conflict has led to the collapse of thesystem in whole or in part, and when nothing else works, the ICC can

take over. Unwilling comes from the experience of all other situations of massive commission of crimes Rwanda, the former Yugoslavia,Cambodia, Nazi Germany and all those situations. In all those cases, thestate had a hand in the crimes that had been committed. It was proposedoriginally that the ICC should not exercise its jurisdiction if a stateexercised its jurisdiction. Period. But then, it became clear that statescould then very easily purport to exercise their jurisdiction but in a waythat was not consistent with a real intention to administer justice but withan intention to shield the perpetrators. In all the cases I have mentioned,you can see that the states have done nothing to punish the perpetrators.That is why it was felt necessary by states that created the ICC to allowthe ICC to be a mechanism that could at least look at whether nationalsystems and procedures were genuine or not. Again, as I mentionedearlier, in a situation where a state that has a strong judicial system thatworks, the question does not arise. But in some cases, it is not as clear

cut. So that was the intent behind that provision.

(speaker unknown): I just wanted to know whether this chart on page 23 of this booklet that you have given us InternationalCriminal Court & India it does not mention terrorism as far


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as India is concerned. Is it because terrorism hasnt beendefined? It says impunity for communal violence, atrocitiesagainst dalits and civilians in troubled areas but there is nomention of terrorism, and we are the greatest sufferers of terrorism.

Shri E.M.S. Natchiappan: It is one of the reasons for which India has not become a party to ICC.

(speaker unknown): True true, but that is a different thing. The fact is that we are one of the sufferers.

Shri E.M.S. Natchiappan: Yes, that we have to discuss and wehave to recommend to the government.

(speaker unknown): Yes, this has to be done.

Shri Deepender Singh: What are the processes or steps in placeto assure or guarantee the ratifying states that no governments,states or individuals would be dragged into ICC based on politicalmotivations? Second question that I have is in response to theanswer you gave to Nikhil Kumarjis question, about the pre-trial chamber. I would like to ask as to what would be thecomposition of the pre-trial chamber and who would have the

authority to constitute it?

I have given some examples of ways that were designed to preventpolitically motivated prosecutions the prosecutor having to submit hisown intention to prosecute to a pre-trial chamber, to have the statesintervene, to go back to the pre-trial chamber, to go to the appeals chamberif there is still a contest. I would invite you to really look at the statute if you are interested, because the statute is full of safeguards to ensure that

the proceedings have to be judicial and can be only judicial. The onlything which is an observation that I have made since my arrival in thecourt is that I have met no one in the court who is not purely interested inthe administration of justice. I have met no one who has made anycomment of a political nature with respect to the activity of the court.


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This is not only an empirical observation. It seems to me that the processof the selection of judges, the prosecutor and staff has in fact worked.

With respect to the Pre-trial Chamber there are now four pre-trialchambers that have been created. Seven judges in total compose the Pre-Trial Division. The first pre-trial chamber is on Congo, the second is onUganda, the third on Central African Republic and the fourth on Darfur.That is the way situations have been allocated.

Dr. R. Senthil: I am a medical doctor, and I dont understand these legal technicalities. I understand that this is not an appealcourt and that the court deals with massive crimes rather thansmaller crimes. Imagining a situation where there had been aconflict between the government and a mass of citizens, therehad been an enquiry later and the community is not happy withthat, is there a scope where they can appeal to the ICC in such asituation? In other words, will the ICC oversee the judicial

function of a country?

To have a case like that, you would have to have a system that is notconducting the proceedings genuinely. This is the only way the ICCcould be involved. The ICC has enough situations right now to keepitself absolutely busy all the time. It is not after business. In an idealworld, the ICC would be never used because no such crimes have beencommitted or because national systems are performing well. In a nationalsituation where the judicial system performs just normally and not

perfectly, the ICC will look the other way.

Smt. Vanga Geetha: All of us know that crimes against womenand children are increasing day by day all over the world. Everycountry has its own code, just as we have our Indian Penal Code.Comprehensively they cover all the crimes. What is the differencebetween international law and the ICC on one hand and the

Indian Penal Code on the other? Are there any other crimes

related to women and children that the Indian Penal Code doesnot cover, that the ICC statute covers?

All the crimes that are listed in the statute of the ICC are crimes underinternational customary law, either because they have been found in a


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variety of treaties, which is mostly in the case of war crimes, or becausethey have been found in the jurisprudence of tribunals. The ICC statutehas not invented any new crimes. The way it is linked to your question isthat although the ICC statute has not invented any new crimes, it hasspelt out a number of crimes particularly committed against women, whichexisted before but were subsumed under much more general definitions.For example, rape, forced pregnancy, enforced sterilization, enforcedprostitution. All these crimes are specifically spelt out in the ICC statuteas specific crimes as opposed to being identified in much more generic

terms as was the case, for example, with the Geneva Conventions. Thatis on the substantive side. With respect to children, we have the prohibitionof enlisting children under the age of fifteen in armed forces. We alsohave a number of generic crimes that also apply to women and children.So there has been a significant evolution in the ICC in the definitions of crimes compared with the definition of relevant crimes in otherinstruments.

Another aspect of the ICC statute, which is very novel, is that theICC is obliged to take particular care of women and children in practice.The court is obliged to have experts on women and children. The courthas to ensure their physical and psychological safety, to provide themguidance, to ensure, in other words, that a woman or a child who alreadyhas been traumatized by a crime will not be traumatized a second time byappearing in court. I think the little booklet that has just been distributedcontains quite a bit on this and you will find it interesting to have a look

at it.

Shri K. S. Rao: It was written here that the USA is not a state party under this treaty, and the eighteen judges who are elected by the ICC felt that they should not take any economic support

from the USA. And it is also written that the United States hasopposed the ICC through various means basically to keep itself above international justice. They dont want to be subjected to

international justice. Do you think that when ICC felt that USAneed not be a member of the treaty and when ICC felt it should not take financial help from it, should the United Nations alsothink in terms of not taking financial help from the United States?When the USA thinks that it doesnt want to come in the purview


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VOTE OF THANKS

Shri Robert KharshiingShri Robert KharshiingShri Robert KharshiingShri Robert KharshiingShri Robert Kharshiing

Member of Parliament, Rajya Sabha &Treasurer, Parliamentary Forum on Human Rights.

I thank the Honble chairman Mr. Natchiappan, for having sowonderfully arranged, not just this meeting but the earlier meeting alsoof the Parliamentarians Forum. May I thank the President of theInternational Criminal Court, Judge Philippe Kirsch from Canada, whohas spared his valuable time to come all the way here and into ourParliament, his esteemed colleague to whom we apologize for theinconvenience when you came in. I also thank all the members of Parliament, the office-bearers and there are MPs here from various parties.We operate in this Forum by consensus and on an all-party basis. Andmost of all, may I thank all the NGOs. They do all the work behind the

scenes and do not get enough thanks. So I will quickly read the names of NGOs, if you can kindly stand up, so that we can thank you. IndianSocial Institute, Partners for Law in Development, Justice and PeaceCommission, Peoples Watch Tamil Nadu, PWESCR, CISRS, AmnestyInternational - India, ICC-India and Commonwealth Human RightsInitiative. These are the organizing NGOs. The participating NGOs RARE from Orissa, BUILD from Mumbai, Lawyers for Human RightsInternational from Punjab, Martin Luther King Centre for Democracy &Human Rights from Orissa and SAFAR from Gujarat. Thank youeverybody. Hope to see you next time.


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ANNEX A

A BIOGRAPHY OFJUDGE PHILIPPE KIRSCH

Judge Philippe Kirsch is the President of the International Criminal Court.He has been elected for a 6 year period from the Western European andothers Group of States (WEOG, assigned to the Appeals Division.

Judge Kirsch is member of the Bar of the Province of Quebec and

was appointed Queens Counsel in 1988. He has extensive experiencein the establishment of the International Criminal Court, internationalhumanitarian law, international criminal law and public international law.

In 1998, Judge Kirsch served as Chairman of the Committee of theWhole of the United Nations Diplomatic Conference of Plenipotentiarieson the Establishment of an International Criminal Court (the RomeConference). He was also Chairman of the Preparatory Commission forthe International Criminal Court (1999 2002).

Judge Kirschs experience in international humanitarian lawincludes serving as Chairman of: the Drafting Committee of theInternational Conference on the Protection of War Victims (1993), theDrafting Committee at the 26 th and 27 th International Conferences of theRed Cross and the Red Crescent (1995, 1999) and related meetings. Healso chaired the Canadian National Committee on Humanitarian Law(1998 1999) and was a member of the Group of International Advisers

to the International Committee of the Red Cross (2000 2003). Judge Kirsch has extensive experience in the development of

international criminal law, with particular regard to issues related toterrorism. He served as Chairman of the United Nations Ad HocCommittee for the Suppression of Acts of Terrorism (1997-1999) and asChairman or President of international conferences addressing terrorism-related issues such as the suppression of unlawful acts in the contexts of international civil aviation and maritime navigation. He was alsoChairman of the United Nations Ad Hoc Committee that elaborated theInternational Convention on the Safety of United Nations and AssociatedPersonnel (1993-1994).


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Judge Kirsch appeared twice as an Agent before the InternationalCourt of Justice. He has also participated in international arbitrationsand was a Member of the Permanent Court of Arbitration (1995-1999).

He has written extensively on the International Criminal Court andother international legal issues.


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ANNEX E

LIST OF OBSERVERS(Name, Designation, Organization)

1. Amita Punj*Program Officer,Partners for Law in Development, New Delhi

2. Anthony Arulraj*

Advocacy Officer, Hotline Asia3. A.K.Singh

Advocate, Supreme Court of India

4. Ashok AgarwalAdvocate, Supreme Court of India

5. Asad Bin Saif CoordinatorCampaign, communication and Advocacy,BUILD, Mumbai

6. Ayesha Choudhury*Advocate, Delhi High Court

7. B.S.SodhiSenior Vice President

Lawyers for Human Rights International, Punjab8. Ghasiram Panda

Joint SecretaryResearch Academy for Rural Enrichment (RARE)Sonepur, Orissa

9. Henri TiphagneExecutive Director, Peoples Watch Tamil Nadu

Advisor, ICC-India

10. Kamal Bir KaurLecturer in Law,Lovel's Institute, Ludhiana Punjab


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11. Madhuri Xalxo*Student, NALSAR School of Law, Hyderabad

12. Dr. Mohanlal PandaExecutive ProgrammesFriedrich Naumann Stiftung, New Delhi

13. Monika Saroha*Project AssistantCommonwealth Human Rights Initiative, New Delhi

14. Pouruchisti Wadia*Asst. Coordinator,ICC-India, Mumbai

15. Pragya Vats*Campaigns CoordinatorThe Other Media, New Delhi

16. Preeti DarookaCoordinator,PWESCR, New Delhi

17. Sangeeta B. DasAdvocate

18. Saumya Uma*Coordinator, ICC-India &

Co-Director, Womens Research & Action Group (WRAG),Mumbai

19. Shanti Ranjan BeheraDirectorMartin Luther King Centre for Democracy &Human Rights, Bhubaneswar

20. Shewli Kumar*

Project OfficerPWESCR, New Delhi

21. Sophia KhanDirectorSAFAR, Ahmedabad


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21. Soumya Bhaumik*Consultant Human Rights EducationAmnesty International India, New Delhi

22. Supriya AeryAdvocate, Punjab High Court -

23. Dr. Subhram RajkhowaReader in LawGauhati University, Gauhati

24. Dr. Usha RamanathanLaw researcher &Advisor, ICC-India

25. Vahida NainarFounding trustee - WRAG &Advisor, ICC-India

26. Valentin ZellwegerChef-de-Cabinet, Office of the President,International Criminal Court, The Hague, The Netherlands

27. VindhyachalCoordinatorSahyog Trust, Pune

* Members of the NGO Organizing Committee formed for theevent.


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ANNEX F

ACKNOWLEDGMENTS

Judge Philippe Kirsch, President of International Criminal Court

Honble M.P. E.M.Sudarsana Natchiappan,Convenor of Parliamentary Forum on Human Rights

All the office-bearers of Parliamentary Forum on Human Rights

All Honble MPswho participated in the meeting

Mr. Valentin Zellweger,Chef de Cabinet, International Criminal Court,

for his logistical support

Ms. Lori Galway, External Relations Adviser,Office of the President, International Criminal Court,

for her logistical support

Ms. Saroj, personal secretary of Shri. Natchiappan for her logistical support

Ms. Sangeeta B. Das and Ms. Madhuri Xalxo for minuting the event

All the members of the NGO Organizing Committee for their logistical support

The human rights activists

who participated in this event as observers


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