India and the Court

In one line

On India and the International Criminal Court: India took part in the Rome Conference, stated five objections in the plenary on 17 July 1998, and said it would not be able to sign the Statute, and it has not become a party since.

The constitutional setting

Article 51, a Directive Principle. The State shall endeavour to promote international peace and security; to maintain just and honourable relations between nations; to foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and to encourage settlement of international disputes by arbitration.

That article is the constitutional argument for joining, and it is a Directive Principle rather than an enforceable right. Nothing in it obliges India to accede to any particular treaty, and clause (c) speaks of fostering respect for treaty obligations, which arise from treaties a State has accepted.

India at Rome

The record used here is the Conference's own: the Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June to 17 July 1998, Volume II, the summary records of the plenary meetings. The authorities folder carries the passages and the warning that the record is printed in two columns, so a careless reading splices India's paragraphs into another delegation's.

In the opening statement, India's representative said that the only durable basis for developing this cooperation was scrupulous regard for the fundamental principles of the Charter, notably the sovereign equality of States, non discrimination and non interference in internal affairs; that the Court must be entirely impartial and independent of political processes; and that its function was international criminal justice, not the maintenance of international peace and security. India also strongly supported the inclusion of terrorism in the Court's jurisdiction, which the Statute does not contain.

The Statute was then adopted by 120 votes to 7, with 21 abstentions. The record gives those totals and does not name how each State voted, so nothing is said here about how India voted. What the record does contain, immediately after the vote, is India's explanation.

The five objections

One. The Statute is too broad. India had in mind a court that would deal with truly exceptional situations, where the State machinery had collapsed, and the scope of the Statute had been so broadened that it could be misused for political purposes or to address situations for which the Court was not intended.

Two. The Security Council's power to refer. The Council had created the earlier tribunals because no appropriate judicial mechanism had existed, but once the Court existed States Parties could refer situations themselves. The Council therefore did not need to refer cases, unless its referrals would be more binding on the Court than other referrals, which would clearly be an attempt to influence justice. And members of the Council that did not plan to accede to the Court would have the privilege of referring cases to it.