Tag: international law

INTRODUCTION

The Rome Statute of the International Criminal Court (“the Rome Statute”), which was ratified by 120 nations on July 17, 1998, led to the creation of the International Criminal Court. Following the Rome Statute’s entry into force on July 1, 2002, governments made the first-ever decision in human history to agree to a permanent international criminal court’s jurisdiction over the prosecution of those responsible for the most heinous crimes committed on their soil or by their citizens. The International Criminal Court does not substitute for domestic courts.

The Rome Statute mandates that each State exercise its criminal jurisdiction over those who commit transnational crimes. Only in cases where a State is unable or unwilling to conduct an honest investigation and impose just punishments on the criminals may the International Criminal Court step in. The main goal of the International Criminal Court is to contribute to the prevention of such crimes by helping to end impunity for those who commit the most heinous crimes that have an impact on the entire international community. In the long run, a knowledgeable public may contribute to ensuring that international justice is upheld and applied.

HISTORICAL PERSPECTIVE

Some of the most heinous crimes were committed throughout the wars of the twentieth century. Sadly, many of these violations of international law have gone unpunished. The Nuremberg and Tokyo tribunals were established after World War II. The UN General Assembly understood the necessity for a permanent international court to handle the kinds of atrocities that had recently happened when it established the Convention on the Prevention and Punishment of the Crime of Genocide in 1948.

After the end of the Cold War, the idea of a global criminal justice system reappeared. However, the world saw atrocious crimes being committed on the soil of the former Yugoslavia and Rwanda while the United Nations was considering the ICC Statute. The United Nations Security Council established ad hoc tribunals in each of these situations as a response to these atrocities. These events unquestionably had an impact on the choice to hold the Rome-based conference that established the ICC in the summer of 1998. On July 17, 1998, a meeting of 160 nations established the first treaty-based permanent international criminal court. The Rome Statute of the International Criminal Court is the agreement that was adopted during that conference.

The Assembly of State Parties, which convenes at least once a year, defines general guidelines for the Court’s management and performs an annual assessment of its activities. The state parties review the activities of the working groups they established, as well as any other issues relating to the ICC, at these sessions. They also discuss new initiatives and approve the ICC’s annual budget. All of the regions are represented by the over 120 state parties to the Rome Statute, including Western Europe, North America, Asia Pacific, Latin America, Eastern Europe, and Africa.

FUNDING

The Court accepts voluntary donations from governments, international organizations, people, businesses, and other entities in addition to the majority of state parties that pay its costs.

VOTING POWER & COMPOSITION

• The Assembly of state parties is the administrative, oversight, and legislative body of the Court, and it is made up of one delegate from each state party.
• Every attempt must be taken to reach a consensus on all issues, and each state party has one vote. Decisions are voted on if consensus cannot be obtained.
• The president and two vice-presidents of the Assembly are chosen by the members to serve three-year terms.

WORKING OF ICC

• Every state party to the Rome Statute has the right to ask the prosecutor’s office to conduct an investigation. An investigation into crimes committed on its territory or by one of its residents may likewise be requested by a State that is not a party to the Statute and agreed to. Additionally, the UN Security Council has the authority to send this case to the Court.
• When a Public Prosecutor’s Office receives pertinent information about the defendant and determines that there is cause to pursue an investigation, and the crime involves residents of a State Party or State that has acknowledged ICC jurisdiction or the crime is committed on the territory of any such State, the Prosecutor may launch an independent investigation. Such information may be provided by people, intergovernmental and non-governmental organizations, or other reliable sources. However, the prosecution must get the go-ahead from the Pre-Trial Chamber judges before an investigation under certain circumstances may start.
• After carefully examining the information at hand, the Public Prosecution determines whether an inquiry is adequately substantiated. Therefore, it must establish if war crimes, crimes against humanity, or genocide has been committed, as well as whether they occurred after July 1, 2002. The prosecution must confirm whether a legitimate investigation or trial of the crime’s perpetrators is being carried out by any national entity.
• The prosecutor’s office dispatches its detectives to areas where crimes are alleged to have occurred, to gather evidence. Researchers must take precautions to ensure that witnesses and victims are not in danger. The prosecutor’s office often requests assistance from governments and international organizations. The goal of the investigators is to establish a subject’s guilt or innocence.
• If there are good grounds to believe that a crime has been committed within the ICC’s jurisdiction, only a pre-trial chamber may, upon the start of an inquiry, issue an arrest warrant or summons to appear.
• Upon the issuance of an arrest warrant, the Registrar is required to communicate applications for cooperation requesting the detention and rendition of the suspect to the State concerned or other States, depending on the ruling of the judges in each case. After the individual has been detained and the tribunal has been informed of this, the court assures that the person will be given a copy of their arrest warrant.
• The suspect makes his initial court appearance not long after arriving in The Hague. The first hearing confirms that the suspect was correctly identified in the Pre-Trial Chamber, ensures that the suspect is aware of the charges against him or her, confirms the language in which the hearing should be conducted, and specifies the day on which the hearing of charges will start.
• Before the trial begins, the judges of the Court consider any procedural issues that the parties might raise. They also schedule sessions to address these issues in advance of the trial so that it can proceed fairly and quickly.
• Throughout the trial, both the prosecution and the defence counsel have the opportunity to present their cases. The prosecution is required to present evidence to the court in order to prove the accused’s guilt beyond a reasonable doubt. Documents, other tangible objects, or witness declarations may serve as proof. The prosecutor must also be informed of any evidence indicating the defendant is innocent. Initial case presentation and witness testimony are requested by the prosecutor. After each witness has been questioned by the prosecution, the defence attorney has the opportunity to question the witness as well. After the prosecutor has presented all of the evidence, it is the accused’s chance to present a defence with the assistance of the counsel of their attorney.
• The judges determine the defendant’s guilt after hearing from the witnesses and the victims and having their testimonies reviewed by the prosecution and the defence. The sentence should be made public and wherever it is appropriate if the defendants, victims, or their legal representatives have taken part in the proceedings.

INTERNATIONAL CRIMINAL COURT RESTRICTIONS

The International Criminal Court’s operation is subject to the following restrictions and conditions:

• As there is no specialized police force or authority in place for the ICC, the organization depends on several nations to arrest and transfer guilty parties to prison facilities.
• The ICC selects its cases with great care.
• The legitimacy of the judges and ICC prosecutor is not routinely checked.
• The International Criminal Court has previously been charged with favouring powerful nations.
• With ICC, there is a lack of both people and financial resources.
• It has been charged with serving as a vehicle for western imperialism.
• For the ICC to be functional, state cooperation is required. This makes it less effective since criminals can seize power and escape being brought to justice by the ICC.

INDIA’S RELATION WITH ICC

• India declined to ratify the Rome Statute for the reasons listed below:
• Nationwide objectives
• State Authority
• Finding unbiased prosecutors is difficult
• The collection of evidence is difficult.
• Crime explanation

PROMINENT CASES

• Muammar al-Gaddafi: In 2011, the Security Council submitted the Libyan situation to the ICC on the basis of claims that the Libyan leader was responsible for the deaths of unarmed civilians during the Arab Spring protests. In June 2011, the court issued arrest warrants for Qaddafi, his brother-in-law, and his son. But he fled, and before he could be found, he was slain. The son of Qaddafi, Saif al-Islam, is still at large.

• Uhuru Kenyatta: The 2010 violence that claimed more than 1000 lives was the subject of an inquiry by the ICC. Five other prominent political figures, including Kenyatta, were identified as suspects in crimes against humanity and war. As Kenyatta won the presidency in 2013 with William Ruto, another ICC suspect, as his running partner, the inquiry went on. In 2014, the ICC dismissed its allegations against Kenyatta, and in 2016, it dropped its charges against Ruto. The prosecutor’s office also asserted that the Kenyan government was unhelpful and that the case collapsed as a result of witness manipulation.

CONCLUSION

To end clemency for the most egregious crimes of concern to the international community and to aid in their prevention, the International Criminal Court (ICC) was founded. The court’s role as a protector of individual rights in the new humanitarian international order, however, is in jeopardy due to a severe enforcement issue. The increasing relegation of the political issues of the affected populations in the post-conflict zones to the background of international criminal proceedings, in addition to the ICC’s enforcement issues, threatens to make the entire organization obsolete.

Achieving the important objectives of international criminal law requires the existence of effective democratic institutions at the national level because the vast majority of contemporary conflicts are likely to be internal wars that break out in opposition to authoritarian rule or response to repressive and undemocratic governments. Justice for atrocity victims and nation-building may appear to be at odds, but a practical approach to international criminal justice administration can accomplish the former while also ensuring the required democratic framework for the latter.

This article is written by Aditi Jangid, 1^st year law student pursuing bachelor’s degree from Delhi Metropolitan Education (Affiliated to GGSIPU).

INTRODUCTION

As already had been mentioned under the abstract, the article deals with the “principle of non-refoulement”. Guy S. Goodwin-Gill, in one of his books[1], defined what “refouler” actually means. He said, “refoulment means to drive back or to repel as of an enemy who fails to breach ones’ defenses”[2].
The “principle of refoulement” had been introduced primarily to safeguard the interests and rights of the refugees. This principle states that an individual would not be asked to go back to a country where they face threat to their lives in any way. This principle had also been accepted by India. The act became popular mainly after 1930. During the 2nd world war, this principle had been undertaken officially under “Article 33” of the “Refugee Convention of 1951”. When talked about the same in the context of human rights law, “Article 22(8)” of the “American Convention on Human Rights”, 1969. “Article 14” of the UDHR, 1948 also discusses the same. While talking about this principle from the perspective of humanitarian law, “Article 45(4)” of the “Fourth Geneva Convention” can be referred to[3]. It is also an important concept recognized in customary law.

SCOPE OF THE “NON-REFOULEMENT PRINCIPLE”

This principle gets interpreted in different ways in different international laws. The interpretation of “who gets to exercise the non-refoulment principle” varies. For instance, in the case of refugee law, this principle can be applied to both asylum seekers and refugees. They will directly receive refugee status and hence, would also enjoy a lot of rights. In the case of human rights law, the individuals would not be granted refugee status. Although they would not be returned to their country as well.

IMPORTANCE OF THE “PRINCIPLE OF NON-REFOULEMENT” OF REFUGEES

“Non-refoulement” is an important principle that is recognized by refugee law, as well as human rights law. “Human rights law” recognizes this law as it protects individuals from torture, harassment, humiliating treatment, etc. This principle guarantees a ‘no-return of the refugees to any place where they might be in danger. “Non-refoulement principle” is considered as the “part of customary international law”[4]. It is a very important fragment of international law. This norm had proven to be extremely important to millions of people who had to leave their country to keep themselves safe.

FACTORS TO CONSIDER BEFORE APPLICATION OF “NON-REFOULEMENT PRINCIPLE”

This is an important principle, so it needs thorough examination before asylum is granted. In the recent era of industrialization and globalization, most countries attempt to restrain irregular immigration. Migrants who arrive through irregular immigration tend to face a lot of challenges including discrimination and get exploited also. Irregular immigration also impacts the demographics of a country very much. Hence, the examination for granting asylum should be done well, and the seriousness has to be checked properly. In the case of “Seid Morteza Aemei v. Switzerland”[5], it was held that if the author was forced to return to his country, he would get exposed to immediate risks (of torture, arrest, etc.). This establishes the fact that the foreseeability of the risks is an important factor. An individual also has to prove that he is under immediate personal risk. At the initial stages, the burden of proof lies with the complainant.

Hence, these factors need to be discussed and checked by a committee before granting asylum.

The main issue happened when tension arose between the “non- refoulement principle” and diplomatic assurances. These assurances tend to lack efficacy in lots of cases.

CRITICAL ANALYSIS

This principle cannot be negotiated at any cost. There had been many cases where the non-refoulement principle had been violated. Some examples have been mentioned below:

• In the year 1994, the Tanzanian government closed its borders when refuge activities had seen an extreme rise due to the Rwandan genocide. Thousands of Rwandans were forced to go back to their country.
• In 2014, the Australian government was alleged of violating the non-refoulement principle. The government had forced around 41 Tamil and Sinhalese refugees to go back to Sri Lankan Navy, where they had life risks. 

These examples show how important this concept can be. It is important to safeguard the interests of people during any armed conflict. The citizens of a nation, form the most affected class during any ongoing war. States should be more cautious and should take proper measures to protect the basic human rights of the refugees. There are some objectives and goals of this principle. These goals include: 

“Save lives and establish coordinated international efforts on missing migrants”, “Manage borders in an integrated, secure, and coordinated manner”, “Cooperate in facilitating safe and dignified return and readmission, as well as sustainable reintegration”[6].

“Article 33(2)” of the “1951 Convention” talks about two exceptions of the “non-refoulement principle”.

As had been talked about, India has not signed the 1951 Convention. Hence, it is not legally obligated to follow the concept of “non-refoulement”. Recently, the “Citizenship Amendment Act Case”[7] had raised a lot of questions. The government claimed that it does not recognize this principle as a “customary international law”. The court, on the other hand, had also reminded[8] that the government cannot just blatantly ignore the condition of the refugees.

It is true that “non-refoulement” is considered a very important principle from the perspective of human rights law. But there are certain cases when this well-known principle can prove to be harmful. “Article 33(2)” of the “1951 Convention” lists the exceptions to the principle. If a refugee seems to appear as a threat to the country, it might lead to a refusal of asylum. Therefore, “national security” is an important factor in the approval of asylum. The second reason is if any criminal record of the individual is proved that can be detrimental for the country, then they might get refouled to their own country.

Hence, overall, it is an important concept. But as mentioned above the factors should be checked carefully to ensure that the concept is not being misused.

CONCLUSION

It can be concluded from this article that the concept of the “non-refoulement principle” is a very important factor of international law. The human rights of the refugees should be protected at all costs. Countries and governments should be more responsive to such issues.
It has also been accomplished through this article how numerous countries have violated this principle in various situations.
Lately, during the COVID-19 pandemic, this principle had been affected a lot. For instance, the Belgian government had closed its borders for “asylum-seekers” or refugees, due to the ongoing pandemic.
The condition of this principle has changed dynamically since the day it was first introduced officially. It has seen a long way since then. There are chances of further improvements in this field still, and these improvements will happen with time.

ENDNOTES

1. Guy S. Goodwin-Gill, “The Refugee in International Law” 117 (Clarendon Press, Oxford, 2nd ed., 1996)
2. Megha Purohit and Mayank Purohit, “An Analysis of Non-Refoulement in Indian Legal Framework”, [Jamia Law Journal], [2017], https://docs.manupatra.in/newsline/articles/Upload/45325657-78F6-45C2-90B5-BB0D35BA56BC.%20Megha%20Purohit%20&%20Mayank%20Purohit_Civil.pdf.
3. Emanuela-Chiara Gillard, “There’s no place like home: states’ obligations in relation to transfers of persons”, [International Review of the Red Cross], [September 2008].
4. Shirley Llain Arenilla, “Violations to the Principle of Non-Refoulement Under the Asylum Policy of the United States”, [“Anuario Mexicano de Derecho Internacional”], [2015].
5. Seid Mortesa Aemei v. Switzerland, [CAT/C/18/D/34/1995].
6. “The principle of non-refoulement under international human rights law”, https://www.ohchr.org/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf.
7. Indian Union Muslim League v. Union of India, [WP (C) 1470/2019].
8. Snehal Dhote, “Right to Life Encompasses Non-refoulement: Indian High Court Advances Refugee Policy”, [June 30, 2021], https://www.jurist.org/commentary/2021/06/indian-high-court-advances-refugee-policy/.

This article is written by Aaratrika Bal student at National Law University Odisha.