CHAPTER IV

JURISDICTION UNDER
INTERNATIONAL CRIMINAL LAW
 CHAPTER IV
JURISDICTION UNDER INTERNATIONAL CRIMINAL LAW

Jurisdiction means the authority of an entity to exercise command and control over
the legal relationship of person and property within its dominion. Predominantly, ‘[it]
is a manifestation of state sovereignty…[and it is] the capacity of a state under
international law to prescribe or to enforce a rule of law’ (emphasis added; Bowett
1982: 1). Shaw is also of opinion that ‘[j]urisdiction is a vital and indeed central
feature of state sovereignty, for it is an exercise of authority which may alter or create
or terminate legal relationship and obligations. It may be achieved by means of
legislative, executive or judicial action’ (Shaw 2008: 645). Being a manifestation of
state sovereignty, how and who will exercise jurisdiction over international crimes is
an interesting question to be analysed for.
Criminal law and forum have always been closely associated with state
sovereignty and primarily emerged out of the concepts like oikonomos of Greek and
paterfamilias of Rome—that gave unlimited and exclusive authority to the male
family-head to discipline the members of the household. This family system had
evolved into state system whereby the exclusive power to punish and discipline had
been succeeded by the heads of sovereign states. On that account, no state is willing
to compromise or being counselled by any external sources in the administration of
criminal justice within its territory. However, over a period of time certain crimes,
like piracy, slavery, genocide, war crimes, crimes against humanity, torture, and
terrorism, have emerged as serious crimes over which the international community as
a whole having concern. The present study seeks to address the jurisdictional issues
on such serious crimes and not about the regular domestic crimes like theft, robbery,
murder or rape, even if they transcend the territorial boundaries of a state.
Declaring certain crimes as international in character is not to confer a special
status on such crimes or its perpetrators; rather to put an end to the impunity for
commission of such crimes on account of social, political or economic reasons. The
impunity could be avoided either by existing domestic courts or by establishing of
international tribunals. With regard to the latter it is direct enforcement of
international criminal law through prosecution and punishment; whereas for domestic
courts it is a two phase process. At first phase, international criminal law should be
incorporated into domestic legal system, known as prescriptive jurisdiction of states;

86
and at second phase, the courts should exercise jurisdiction to enforce the
incorporated criminal law, known as enforcement jurisdiction of states. Necessary
distinction needs to be made between prescriptive jurisdiction and enforcement
jurisdiction of states. ‘The former embraces those acts by a state, usually in legislative
form, whereby the state asserts the right to characterize conduct as delictual…The
later embraces acts designed to enforce the prescriptive jurisdiction…by way of
judicial action through courts’ (Bowett 1982: 1).
This chapter is divided into three parts: first part evaluates the existing
jurisdictional principles—like active personality, passive personality, territoriality,
universality and protective principles—conferring authority on domestic courts to
enforce international criminal law. Second part analyses the jurisdictional basis for
international courts and tribunal to enforce criminal law preventing serious crimes,
like the complementary principle, communitarian principle and the principle of
surrender. Part three addresses the prescriptive jurisdiction of states over international
criminal law with special reference to Indian state practice.

1. ENFORCEMENT JURISDICTION OF DOMESTIC COURTS

In ancient time it was only ‘common law for common enemies’ and there was no
specific law for different serious international crimes; they were prosecuted and
punished under the common umbrella of domestic criminal legal system. For instance,
the Lieber code or the Hague Conventions were applicable to all sort of international
crimes equally without any difference as to its nature. Separate conventions for
specific crimes were only of later developments, like Genocide Convention, 1948 to
prevent and punish the crime of genocide, Torture Convention, 1984 to prevent the
crime of torture and so on. Though the conventions dealt with serious crimes under
international law, jurisdiction for prosecution is still conferred on the domestic courts
of member states. The question of establishing international criminal tribunals occurs
only when domestic courts are unable or unwilling to prosecute the perpetrator of
serious crimes under international law.
Domestic courts seek to exercise jurisdiction over serious crimes under
international law through some legal nexus, like territoriality (the place of
occurrence), active personality (nationality of the perpetrator), passive personality
(nationality of the victims), protective principle (right of a state to protect the national
interests), or universal jurisdiction (authority of domestic courts without any direct

87
nexus). The first three are considered standard jurisdictional principles under
international law and the last two are only of recent developments. Some of these
jurisdictional principles could briefly be analysed as under.

1.1. Standard Jurisdictional Principles

Principle of Territoriality
Every crime—from international to local and serious to petty cases—had been
adjudicated predominantly through domestic courts having territorial nexus.
Adjudication through other nexus, like nationality of the accused, nationality of the
victims, universal jurisdiction or establishing international tribunals is only of recent
developments. As early as 1889, the Treaty of International Penal Law acknowledged
that, ‘crimes are tried by the courts and punished by the laws of the nation on whose
territory they are perpetrated, whatever may be the nationality of the actor, or the
injured’ (AJIL 1935: 638). The Permanent Court of International Justice (PCIJ) while
deciding the S.S. Lotus case held that ‘jurisdiction is certainly territorial; it cannot be
exercised by a State outside its territory except by virtue of a permissive rule derived
from international custom or from a convention’ (S.S. Lotus case 1927: 18-19). In HM
Advocate v. Hall (1881), Lord Young stated the general rule that criminal law is
strictly territorial so that a man is subject only to the criminal law of the country
where he is, and that his conduct there, whether by acting, speaking, or writing, shall
be judged of as criminal by that law and no other (Arnell 2001: 955).1
The principle of territoriality determines jurisdiction over a crime based on the
place of occurrence. Every state is sovereign independent and all sovereign states
prohibits intervention either by foreign courts or by international institutions. India
has witnessed numerous terrorist attacks within its territory against which only the
domestic courts should have primary jurisdictional authority. For instance, the
prosecution of Afzal Guru in parliament attack case or the prosecution of Ajmal
Kasab for 26/11 attack has been tried by the domestic courts in India based on the
territorial nexus; despite the fact that the subject matter of terrorism falls under
1
The criminal law is strictly domestic and not outside. Scottish Philosopher David Hume writes that ‘a
person domiciliated here, whether a Scotsman or a foreigner, for any crime he may have committed
abroad, is not liable to be tried before our courts. They are not instituted to administer justice over the
world but in our country, or a particular district of it only; and, therefore, if the crime charged has been
committed beyond those limits, they are neither called upon not entitled to step forward for its
correction’.

88
international law as a serious crime and perpetrators having Pakistani connection.2
Even in the Enrica Lexie case (i.e. Italian marines case), India claimed jurisdiction
based on the principle of territoriality on the ground that the cause of action occurred
within the contiguous zone of India.3 In this case, Italian marine officials killed two
Indian fishermen from Kerala at the contiguous zone of India.
Even the jurisdictional authority of International Criminal Court (ICC) is derived
from ratione loci i.e. the principle of territoriality. The member states waive their
jurisdictional authority towards the court.4 The territorial jurisdiction of the ICC not
only applies to state parties but also extended to non-party states if they surrender
their territorial sovereignty towards ICC.5 Only the principle of territoriality well sync
with the concept of territoriality. ‘[A] primary objection to the passive personality
principle, as well as to other types of extraterritorial jurisdiction, is that it infringes
upon the sovereignty of the country with territoriality jurisdiction’ (McCarthy 1989:
322-323). Similarly, Blakesley asserts that the concept of territoriality is the
jurisdiction in the highest priority. While the country with territorial jurisdiction has a
great interest in asserting jurisdiction in order to ensure peace in its territory, the state
whose citizens are targeted as victims has a greater interest because more likely than
not the perpetrators of the terrorist act are more concerned with the persons they
target than where the act happens (Blacksley, 1987: 909).
The Gacaca court is another example for the principle of territoriality. It is a
system of community justice inspired by Rwandan tradition where the Gacaca can be
translated as the ‘justice amongst the grasses’. These courts prosecute and punish the
crimes irrespective of its serious nature or international character. For instance, ICTR
was established by the UNSC Res. 955/1994 to prosecute and punish Rwandan

2
State v. Mohd. Afzal Guru and Others (2003), 107 DLT 385. Mohd. Ajmal Amir Kasab v. State of
Maharashtra (2012), 9 SCC 1. This case is popularly known as Ajmal Kasab case, the Bombay
Metropolitan Magistrate court dealt the issue against the Pakistani terrorist.
3
Republic of Italy v. Union of India (2012), Writ Petition No. 135 of 2012.
4
Article 12(2)(a) of the Rome Statute provides that ‘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
[i.e.]…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’.
5
Article 5 of the Rome Statute speaks about the Crimes within the Jurisdiction of the Court. It express
that ‘the jurisdiction of the Court shall be limited to the most serious crimes of concern to the
international community as a whole. The Court has jurisdiction in accordance with this Statute with
respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War
crimes; (d) The crime of aggression’.

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genocide, but it could prosecute and punish just 93 perpetrators. The tribunal was
closed officially on 31st December 2015. Most of the remaining perpetrators were
brought back justice only through the Gacaca courts.6 Judgements of Gacaca courts
are based on the principle of morality and encourage civil reparation rather than
physical punishment (Ingelaere 2008: 40-41).
However, the territoriality of criminal law is not an absolute principle of
international law. Over a period of time, domestic courts gradually asserted
extraterritorial jurisdiction under international law based on the principles of active
personality and passive personality.

Active Personality
Sovereign states have jurisdiction over their citizens for crimes committed by them
which are specified in their domestic criminal law. It is a sovereign right of states to
claim jurisdiction over illegal conduct of its nationals either committed within the
state or abroad. The principle was prevalent in civil law countries but later recognized
by common law countries as well. However, problems might arise when a person hold
dual nationality or having citizenship of two states simultaneously. Many of the
Lebanese living in West Africa have dual nationality. In such cases who will get
jurisdiction based on active personality? And how to resolve jurisdictional conflicts
between states? The ICJ have answered the questions in Nottebohm case7 that the
jurisdiction goes to the country where the person has genuine link and effective
nationality. The case was decided in the context of private international law to decide
property issues and how far it could be used in international criminal law is yet to be
analysed.
In Pinochet case though UK arrested Pinochet while he was in London for
medical treatment based on the principle of universal jurisdiction, he was prosecuted

6
Though the affected victims of Rwandan genocide got monetary benefit from the authors of Rwandan
genocide but they did not get proper punishment for their serious crimes of rape, torture, and other
crimes against humanity in Rwanda. Some of the sovereign states all around the world severely
criticized that the Gacaca courts merely conducted the proceedings for the sake of global community
and not for justice to the victims of Rwandan genocide.
7
Liechtenstein v. Guatemala (known as Nottebohm case) (1955), First Phase ICJ 1, and Second Phase
ICJ Rep. 4, Judgment of 6th April 1955, [Online: web] Accessed 11 December 2016, URL:
http://www.worldlii.org/int/cases/ICJ/1955/1.html.

90
only by the domestic court based on his nationality. 8 Spanish court issued an
international arrest warrant against Pinochet based on passive personality, since
victims include Spaniards along with Chileans. Spain requested UK for extradition
but it was opposed by Chile.9 On the other side, Pinochet’s attorney Pablo Rodriguez
Grezargued argued that he was entitled to immunity from prosecution as a former
head of state. Finally, he was sent back to home i.e. Chile for prosecution based on
10
active personality and territoriality. Active personality often compared with
extraterritorial authority of domestic courts. In Indian context, active nationality
principle is recognised both under Indian Penal Code, 1860 as well as under Criminal
Procedure Code, 1973.11 Therefore, any criminal activities committed by citizens of
the state, either within or abroad, the state of the offender will get jurisdiction based
on the principle of active personality irrespective of any territorial sovereignty.

8
It was the first time that several European judges applied the principle of universal jurisdiction and
declaring themselves competent to judge crimes committed by former heads of state.
9
Even the former UK PM Margret Thatcher and former US President George H.W. Bush requested to
grant immunity to the former Chilean President and they called upon the British government to release
Pinochet (These facts are available in CNN News on 12th April 1999 and BBC News on 6th October
1999 respectively).
10
This release was occurred because after Pinochet’s medical tests, the home secretary of UK Jack
Straw rules in January 2000; stated that he should not be extradited. This incident triggered the human
rights (NGOs including Amnesty International) activists at Belgium; therefore, the Belgian government
depose a complaint against Straw’s decision before the ICJ along with other six human rights groups.
There were some countries like: Belgium, Switzerland, and France were deposed extradition requests
in the wake of Spain’s demand. Due to heavy protest by legal as well as medical experts against Straw
finally ruled in March 2000, ‘to set-free Pinochet and authorize his free return to Chile’ (BBC News:
2nd March 2000).
11
Section 3 of the IPC 1860 states that ‘any person liable, by any [Indian law] to be tried for an offence
committed beyond [India] shall be dealt with according to the provisions of this Code for any act
committed beyond [India] in the same manner as if such act had been committed within [India]’.
Similarly, Section 4 of the IPC 1860 explains that ‘[t]he provisions of this Code apply also to any
offence committed by (1) any citizen of India in any place without and beyond India; (2) any person on
any ship or aircraft registered in India wherever it may be’. Explanation – In this section the word
‘offence’ includes every act committed outside India which, if committed in India, would be
punishable under this Code.
Illustration: ‘A’, who is a citizen of India, commits a murder in Uganda. He can be tried and
convicted of murder in any place in [India] in which he may be found. Section 12 of CRPC deals with
a situation that ‘when an offence is committed outside India – (a) by a citizen of India, whether on the
high seas or elsewhere; or (b) by a person, not being such citizen, on any ship or aircraft registered in
India, he may be dealt with in respect of such offence as if it had been committed at any place within
India at which he may be found: Provided that, notwithstanding anything in any of the preceding
sections of this Chapter, no such offence shall be inquired into or tried in India except with the
previous sanction of the Central Government’.

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Passive Personality
Passive personality allows a state to exercise jurisdiction over an act committed by an
individual outside its territory but the victims are the nationals of that state. In Yunis
case, the passive nationality principle recognized that each country has a legitimate
interest in protecting the safety of its citizens when they journey outside national
territories (United States v. Yunis 1988). Similarly, Lord Finlay in his dissenting
opinion in the S.S. Lotus case observed that:
The passing of such laws to affect aliens is defended on the ground that they are
necessary for the ‘protection’ of the national. Every country has the right and the
duty to protect its nationals when out of their own country. If crimes are
committed against them when abroad, it may insist on the offender being brought
to justice (S.S. Lotus case 1927: 55).
The principle is not a new concept and existed as early as 1886, when there was a
jurisdictional conflict between Mexico and United States in the Cutting’s case. 12
Many countries have countries implemented the principle of passive personality in
their penal codes.13 Though the passive personality principle became controversial in
practice but the international community largely recognized and increasingly accepted
over the last two decades. In 1972, Israel amended its criminal law and codified the
principle of passive personality; similarly in 1987, France amended its penal code by
adding the passive nationality principle to prosecute and punish the alien offenders. In
2012, a writ petition was filed before the supreme court of India to resolve the
question regarding whether the high court of Kerala has jurisdiction to try the Italian

12
Mr. Cutting, a US national, published an article in a Texas Newspaper criticizing a Mexican citizen
with whom Mr. Cutting had a disagreement. Mexican officials arrested Mr. Cutting when he was in
Mexico and charged him with criminal libel. Mexico’s assertion of passive personality jurisdiction
caused great friction between Mexico and the United States. But the United States protested Mexico’s
assertion of the above said jurisdiction over the crime. Finally, the conflict concluded, nevertheless,
without a decision on the validity of the passive nationality principle because each country dropped the
issue after Mr. Cutting was released for diplomatic reasons (Moore 1906: 228-229).
13
Article 3 of the Japanese Penal Code 1907 (i.e. Keiho Penal Code, Law No. 45 of 1907), Article 5 of
the Peruvian Penal Code 1924 (i.e. Codigo Penal Code 1924) and Article 6 of the Turkish Penal Code
1926 (i.e. Ceza Hukuku Code 1926) discusses about the concept of passive personality. Article 6 of the
Turkish Criminal Code stated that, any foreigner who commits an offence abroad to the prejudice of a
Turkish subject shall be punished in accordance with the Turkish Penal Code (Translated by Hudson in
World Court Reports 1934: 31-32). Similarly, Article 7 of the Uruguay Penal Code stated that its courts
have jurisdiction over, ‘offenses committed in foreign territory by an alien, to the injury of a citizen’
(Uruguay Penal Code translated in the Harvard Research Project 1906: 578).

92
Marines or not? The Apex court recognized the principle of passive personality and
held that the high court has jurisdiction to try two Italian marines.
There is always a conflict between active personality (nationality of the offender)
and passive personality (nationality of the victims) over jurisdictional claims. While
exercising active personality, the victim state blames the state of accused that it tries
to shield the offenders. Similarly, while exercising passive personality, the state of the
offender blames the victim state for over exaggeration of common crime into serious
crime. 14 For instance, in the Yunis case, the US court claimed jurisdiction over
Lebanese national, based on passive personality, who had hijacked Jordanian flight
and two victims are nationals of the United States. 15 Victim states try to claim
jurisdiction not only to punish the perpetrators but also to award compensation to the
victims. For instance, rights of victims have been strengthened by the European
Union with the council Framework Decision on the Standing of Victims in Criminal
Proceedings (15th March 2001).
However, difficulty might arise when victims are from multiple states or having
dual nationality. In Yunis case, the US claimed jurisdiction based on passive
personality on the ground that two of the victims are its nationals; if every other state
claims jurisdiction over the same person for same cause of action it would be
contravene the principle of double jeopardy. Hence, Judge Moore in his dissenting
opinion in the S.S. Lotus case rejects the idea of passive personality and encourages
the territoriality principle in the following words:
an inhabitant of a great commercial city, in which foreigners congregate, may in
the course of an hour unconsciously fall under the operation of a number of
foreign criminal codes. This is by no means a fanciful supposition; it is merely an

14
Though the laws grant equality, sometime state itself suppress and violates certain fundamental
rights of the citizens without any guiltiness. In this situation, the affected neglected victims expecting
and seeking the intervention of the international community through its courts and tribunals to try the
offenders irrespective of their official capacity and bring-back peace and security in the nation. Most of
the developed nations never respect the sovereignty of the developing nations and intervenes without
respecting the domestic laws as well as international law. Hence, the developing countries feel that the
international law itself in the hands of or in-favor to the powerful nations. Most of the eminent scholars
say that international law is a ‘watch dog’ and it do nothing against the powerful countries while they
involve in serious international crimes at third state (For instance, US intervention in Iraq, Russia’s
intervention in Ukraine, etc.); but at the same time, if the developing countries commit any crimes then
the watch dog (UNSC) become barking dog or biting dog.
15
United States v. Yunis (known as Yunis case), 859 F.2d 953, D.C. Cir. 1988.

93
 illustration of what is daily occurring, if the ‘protective’ principle is admissible.
(S.S. Lotus case 1927: 92).

1.2. Universality Principle

Universal jurisdiction means an authority of domestic courts to exercise jurisdiction
over serious crimes, without any jurisdictional bond, to serve the interest of humanity
as a whole. This is an exception to the principle extra territorium jus dicenti impune
non paretur which means ‘one who exercise jurisdiction out of his territory is not
obeyed with impunity’ (Black’s Law Dictionary 1979: 528). The principle authorises
domestic courts to try international crimes committed by anybody anywhere in the
world. The concept has evolved for two reasons: on the one hand, to punish the
crimes that are grave and harmful to the entire humanity; and on the other, to ensure
no safe haven is available to those who have committed serious crimes. Originally,
the concept of universal jurisdiction had evolved out of necessity to protect the
commercial interest of colonial powers from the menace of piracy on the high seas.16
Later, the concept was expanded to include slavery and slave trade practices.17 After
the Second World War, it had rapidly grown to punish war criminals who had
perpetrated genocide or crimes against humanity. Nowadays an attempt is made to
include even torture and terrorism as well.
Some international conventions and treaties specifically focus on the concept of
universal jurisdiction. For instance, the provisions of four Geneva Conventions and
two additional protocols—like, Article 49(2) of GC I, Article 50(2) of GC II, Article
129(2) of GC III, Article 146 of GC IV and Article 6 of the Additional Protocol II—
impliedly recognises universal jurisdiction against serious crimes, such as genocide,

16
The phenomenon of piracy is the base for the origin of the universality principle. Piracy is viewed as
an offence against the universal law of society. Piracy is often noted in international law that it
represents the earliest invocation of the concept of universal jurisdiction. The crime of piracy is
considered as a breach of jus cogens that states must uphold.
17
In sixteenth and seventeenth century the concept of slavery became a legal practice. The question is:
why the international community (especially developed countries like, Britain, France, Spain and
Portugal) announced piracy and slavery as international crimes at the end of 17th and early 18th
century? There may be two reasons for the inclusion of slavery as an international crime: first, there
were continuous protests in the colonial countries against slavery and slave trade practices; and second,
colonial powers became well developed and there was no need to bring slaves to their country and
(especially the food expenses) overburdened the colonial powers. Later, these two concepts were
adopted in 1958 High Seas Convention (Article 14-22) and 1982 UN Convention on Law of the Sea
(Article 100-110). Piracy and slave trade are ‘serious crime’ because these two are pursued for private
gain and those who are involving in piracy and slave trade are prosecuted under universal jurisdiction.

94
 18
war crimes, and crime against humanity. Further, two major international
conferences were held, one at Cairo in 2000 and another at Princeton in 2001, to
adopt the Princeton Principles on Universal Jurisdiction. The Principles define
international crimes to include: piracy, slavery, war crimes, crime against peace,
crime against humanity, genocide and torture. Principle 1(5) explains that ‘a State
shall exercise universal jurisdiction in good faith and in accordance with its rights and
obligations under international law’. Under customary norms like hostis humani
generis it was an option for states to exercise criminal jurisdiction over serious
crimes; however, under treaties and conventions the principles like aut dedre aut
judicare makes it an obligation for states to prosecute or extradite the perpetrator for
prosecution. Accordingly, the principle of universal jurisdiction has been changed
from ‘an option’ into ‘an obligation’.19
Belgium and Spain are the leading users of the concept of universal jurisdiction
in their domestic courts. Belgium adopted a domestic legislation called as Universal
Jurisdiction Act, 1993 to prosecute the perpetrators of serious international crimes re-
gardless of any jurisdictional link. Based on the Act, Belgium issued arrest warrant
against Yerodia Ndombasi, the Congolese Minister of Foreign Affairs in office. Pro-
testing the warrant Congo filed a case before the ICJ and consequently, the court can-
celled the warrant and held that the warrant ‘constituted violations of a legal obliga-
tion of the Kingdom of Belgium towards the Democratic Republic of Congo…under
international law’ (Arrest Warrant case 2000: 33). Later, Belgium amended its law on
universal jurisdiction in 2003 declaring that the ‘link’ is necessary for courts to exer-
cise jurisdiction, like affected parties from Belgium or alleged criminals from Bel-
gium or any other territorial connection. It was a ‘great blow’ to the concept of uni-
versal jurisdiction.

18
The four Geneva Conventions contain a common Article (Art. 49, 50, 129, and 146) relating to penal
sanctions. Paragraph 2 of these Article states that ‘Each High Contracting Party shall be under the
obligation to search for persons alleged to have committed, or to have ordered to be committed, such
grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It
may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons
over for trial to another High Contracting Party concerned, provided such High Contracting Party has
made out a prima facie case’.
19
Extradition is the official process whereby one nation or state surrenders a suspected or convicted
criminal to another nation or state. Between nation states, extradition is regulated by treaties. Where
extradition is compelled by laws, such as among sub-national jurisdictions, the concept may be known
more generally as rendition. It is an ancient mechanism, dating back to at least the thirteenth century,
when an Egyptian Pharaoh negotiated an extradition treaty with a Hittite King (Carter, 2007: 22).

95
 Spain earned its reputation of exercising universal jurisdiction after issuing arrest
warrant against Chilean General Augusto Pinochet, triggering his arrest in London
and setting of a justice cascade in Chile and throughout Latin America. Moreover,
Spanish courts have advanced investigations of alleged crimes in El Salvador and
Guatemala, issued warrants for top Rwandan leaders and convicted an Argentine
official for ‘dirty war’ killings. But after the Arrest Warrant case, Spain also repealed
and amended some provisions relating to the principle of universality under its
domestic legislation.
However, the possibility of abuse of universal jurisdiction cannot be ruled out.
For instance, the principle has never been used against developed countries but only
against the developing world, more specifically against the African countries.20 Post
WW II disturbances in the developing world have been used as chance to intervene
through universal jurisdictions. 21 Hence, the UNGA and UNSC passed several
resolutions to regulate the use and abuse of universal jurisdiction. 22 Kissinger
observes that the concept of universal jurisdiction plays out differently in different
parts of the world. Some powerful countries use the principle of universality against
the weaker state in the name of actio popularis but in reality, the conduct of
prosecution may be to take revenge against the political enemies of the weaker state,
rather than bringing universal justice (Kissinger, 2001: 86-96). Nevertheless, the state

20
African countries condemn the attitude of the developed countries because international arrest
warrant so far was issued mostly against African leaders in the name of universal jurisdiction. It proves
that the developed countries are misusing the concept of universal jurisdiction severally.
21
From 1960 to 2000 several internal wars killed millions of people. These sort of serious crimes
occurred due to various reasons, namely: poverty, ideological variations, lack of education, ignorance
of law, lack of laws, over population, etc. But in reality, it happens mainly because of the powerful
countries interference in the developing countries to secure economic interest; and because of some
developing countries leaders interest to protect their own race and to vanish the other races that often
led to ethnic cleansing (what we call it as ‘Hitlorism’).
22
UNGA Res. 67/98 (14/01/2013) mainly talks about the scope and application of the principle of
universal jurisdiction and recalls the previous Resolutions of 67/117 (16/12/2009), 65/33 (06/12/2010),
66/103 (09/12/2011). Similarly, UNSC Resolutions are also impliedly related to the concept of
universal jurisdiction, such as Res. 1265 (17/09/1999) relating to the protection of civilians during
armed conflict, 1296 (19/04/2000) relating to the steps to enhance the protection of civilians during
armed conflict, 1373 (28/09/2001) relating to the counter terrorism measure specifically passed after
the 9/11 terrorist attack of the twin towers, 1631 (17/10/2005) relating to the co-operation between the
United Nations and regional organisations in the maintenance of international peace and security, 1674
(28/04/2006) relating to the basis for humanitarian intervention in situations of armed conflict, 1973
(17/03/2011) formed the legal basis for military intervention in the Libyan civil war, demanding ‘an
immediate ceasefire’' and authorizing the international community to establish a no-fly zone and to use
all means necessary to protect civilians.

96
practice shows that the exercise of universal jurisdiction is not the monopoly of
developed countries alone.23
‘Although the legislation and implementation of universal jurisdiction by
Belgium and Spain cannot be deemed representative of the entire international
community, they have been among the most active states in exercising universal
jurisdiction’ (Pocar and Maystre 2010: 291). An effective implementation of universal
jurisdiction equally in all countries is missing. International law does not provide
precise guidelines for the enforcement of universal jurisdiction. Hence, its application
differs from country to country without any homogeneous practice (Philippe 2006:
379). Therefore, the principle of universal jurisdiction still remains more theoretical
than practical in many states.

1.3. Protective Principle

Protective principle is a rule of international law that recognises the sovereign
authority of states to exercise domestic jurisdiction over a conduct that threatens the

23
The cases relating to the concept of universal jurisdiction and the countries claimed the universality
are as follows: Dusko Cvjetkovic (1994) proceedings conducted by Austria and crimes occurred in
Former Yugoslavia (Bush et al. 2003); proceedings conducted by Belgium and crimes occurred in Iraq
(Castro et al. 2001-2003); proceedings conducted by Belgium and crimes occurred in Cuba (Tommy
Franks 2003-2004); proceedings conducted by Belgium and crimes occurred in Iraq (Pros. v.
Ntezimana et al. 2001); proceedings conducted by Belgium and crimes occurred in Rwanda (Ariel
Sharon 2001-2003); proceedings conducted by Belgium and crimes occurred in Lebanon (Ely Ould
Dah 2002-present); proceedings conducted by France and crimes occurred in Mauritania (Javor et al.
contre X 1995-1996); proceedings conducted by France and crimes occurred in Former Yugoslavia
(Rumsfeld et al. 2004-present); proceedings conducted by Germany, France, USA and crimes occurred
in Iraq (Maksim Sokolovic 1999-2001); proceedings conducted by Germany and crimes occurred in
Former Yugoslavia (Pros. v. Adolf Eichmann 1961-1962); proceedings conducted by Israel and crimes
occurred in World War II (Ricardo Cavallo 1999-2011); proceedings conducted by Argentina, Mexico,
Spain and crimes occurred in Argentina (Desire Bouterse 2000-2001); proceedings conducted by The
Netherlands and crimes occurred in Suriname (Hesamuddin Hesam 2005-2008); proceedings
conducted by The Netherlands and crimes occurred in Afghanistan (Habibulla Jalazoy 2005-2008);
proceedings conducted by The Netherlands and crimes occurred in Afghanistan, (Darko Knesevic
1996-1997); proceedings conducted by The Netherlands and crimes occurred in Former Yugoslavia
(Hissene Habre 2000-present); proceedings conducted by Belgium, Chad, Senegal and crimes occurred
in Chad (Jiang Zemin et al. 2005-present); proceedings conducted by Spain and crimes occurred in
China (Lia Oinglin 2004-2006; proceedings conducted by Spain and crimes occurred in Guatemala
(Adolfo Scilingo 1998-2007; Rigoberta Menchu et al. v. Rios Montt et al./Guatemala Genocide case
1999-present); proceedings conducted by Spain and crimes occurred in Argentina (Bush et al. 2003);
proceedings conducted by Switzerland and crimes occurred in Iraq (R. v. Sarwar Zardad 2003-2005);
proceedings conducted by United Kingdom and crimes occurred in Afghanistan (Dolly M. E. Filartiga
& Joel Filartiga v. Americo Norberto Peña-Irala 1980); proceedings conducted by United States and
crimes occurred in Paraguay (Tel-Oren v. Libyan Arab Republic 1984); proceedings conducted by
United States and crimes occurred in Libya (Khaled Nezzar 2011-present); proceedings conducted by
Switzerland and crimes occurred in Algeria (T. 2010-present); proceedings conducted by Denmark and
crimes occurred in Rwanda (Krasniqi (Naser), Krasniqi (Nexhmi), Limaj (Fatmir) and Shala (Naser)
(1999-present); proceedings conducted by Kosovo and crimes occurred in Kosovo (EULEX), etc.

97
national security, territorial integrity, political independence or other governmental
functions, irrespective of where and by whom the act is committed. The origin of
protective principle could be traced back to the Monroe Doctrine of the United States
in 1823 for regional protection, which declared that ‘any attempt [by European
power] to extend their system to any portion of this hemisphere’ will be seen as ‘the
manifestation of an unfriendly disposition toward the United States’. A similar claim
could be found in Article 12 of the 1926 Draft Convention of the American Institute
of International Law, in the context of seas, that ‘[t]he American Republics may
extend their jurisdiction beyond the territorial sea for a supplementary distance of
marine miles, for reasons of security and in order to ensure the enforcement of
sanitary and customs regulations’. During 1930s the protective principle was used to
limit the concept of freedom of the seas to ensure security for costal states. Once
again, through the Panama Declaration of 1939 twenty-one American Republics came
together and reiterated the Monroe Doctrine for regional protection as follows:
As a measure of continental self-protection, the American Republics, so long as
they maintain their neutrality, are as of inherent right entitled to have those
waters adjacent to the American continent, which they regard as of primary
concern direct utility in their relations, free from the commission of any hostile
act by any non-American belligerent nation, whether such hostile act be
attempted or made from land, sea or air.
The declaration put fresh agility to the doctrine of Monroe as a continental policy and
expanded its scope from protecting territorial sovereignty to authorise jurisdictional
extraterritoriality. As a result, the principle has gradually become an appeal to every
other fields of international law, including international criminal law, to claim
extraterritorial jurisdiction. It is conclusively proved that the principle of protective
jurisdiction has become firmly established in law and practice (Jessup 1927: 105;
Masterson 1929: 123-27).
Sometimes, exercise of protective jurisdiction is a necessary evil to protect the
vital interest of a state. For example, planning and preparations for counterfeiting
currencies, sabotaging government, or terrorist activities could occurs beyond
territorial boundaries of a state but that would have direct negative impact on the

98
state. 24 In those cases, domestic courts may claim jurisdiction over such conduct
based on the protective principle. However, in the absence of uniform state practice
protective jurisdiction should be exercised in a proper manner with due limits;
otherwise it would amount to intervention in the sovereign authority of a third state
(Cameron 1994: 32-34).
Under international law the protective principle recognizes the authority of
sovereign states to adopt laws to criminalise the conduct that occurs outside its
territorial borders but affects national security or vital state interests. Sometimes the
protective jurisdiction goes beyond mere state interest to serve the social, religious, or
ethnic interests as well. For instance, Mossad of Israel exercised extraterritorial
authority over Adolf Eichmann of Germany, violating Argentine sovereignty during
capture, for his retroactive offences against Jews during Second World War.
Protective principle is an inherent right of states derived from the concept of self-
defence; and basis for the concept of universal jurisdiction
Though the conduct under consideration for protective jurisdiction, like
counterfeiting currency, cross-border terrorism, or sabotaging government, may not
fall under the strict classification of serious crimes, yet they could well be classified
as crimes under international law. Though states are free to declare their individual
vital interest, possibility of misuse should be avoided. The concept is like a double
edged sword; on the one hand, it attempts to protect the vital interest of one state, but
without unnecessary intervention in the domestic affairs of a third state, on the other.

2. ENFORCEMENT JURISDICTION OF INTERNATIONAL TRIBUNALS

2.1. Principle of Complementarity
International criminal law always respects the jurisdiction of domestic courts on any
crime, irrespective of its serious nature. In fact, the ICL has always relied on the
domestic courts for enforcement. The necessity for international tribunals arise only
when the domestic courts are ‘unable to prosecute’ or ‘unwilling to prosecute’ or
conduct ‘sham prosecution to shield the perpetrator’. Existence of international

24
For instance, some terrorists were planning in Kashmir border area to attack India; in October 2016,
based on protective principle the Indian military intervened and crossed the line of control to destroy
the planning and execution of the attack; destroyed the terrorist base in the name of right of self-
defense (mentioned in Article 51 of the UN Charter); after the surgical strike India immediately
reported to the UNSC.

99
criminal law and criminal tribunals are not to replace but to supplement the domestic
criminal legal systems. However, once the international tribunals are established to
deal with specific crimes under international law, they were conferred with exclusive
jurisdiction denying the authority of domestic courts.
For instance, when the Peter von Hagenbach trial of 1474 was tried before an
international forum, for sack, pillage, rape, and burning the German city of Breisach,
it had absolute jurisdiction excluding the domestic jurisdiction of all states under the
Roman Empire. The same principle of exclusivity has been followed while
establishing Nuremberg tribunal and Tokyo tribunal to prosecute the major war
criminals of the Axis powers during Second World War. But this exclusivity has been
criticised as flagrant violation of the territorial sovereignty of states and non-
intervention principle; and was perceived as a forced victors’ justice. Therefore, the
future international criminal tribunals gradually conceded their authority towards
domestic courts.
When the International Criminal Tribunal for Former Yugoslavia (ICTY) and the
International Criminal Tribunal for Rwanda (ICTR) was established during 1990s,
they have accepted the concurrent jurisdiction of domestic courts. For instance,
Article 9(1) of the Statute of the ICTY provides that ‘[t]he International Tribunal and
national courts shall have concurrent jurisdiction to prosecute persons for serious
violations of international humanitarian law committed in the territory of the former
Yugoslavia since 1 January 1991’. A similar provision could also be found under
Article 8(1) of the Statute of the ICTR. However, the Statutes recognise the
jurisdiction primacy of international forums over domestic courts if it is required.
Article 9(2) of the Statute of the ICTY declares that ‘[t]he International Tribunal shall
have primacy over national courts. At any stage of the procedure, the International
Tribunal may formally request national courts to defer to the competence of the
International Tribunal in accordance with the present Statute’. A similar provision
could also be found under Article 8(2) of the Statute of the ICTR.
The next stage of evolution for jurisdictional claims under international criminal
law was hybrid tribunals. These forums were established with the mixture of domestic
as well as international authority; they are neither international nor domestic, rather a
mixture of both. The Khmer Rouge Tribunal of Cambodia was established under the
authority of the Royal Government of Cambodia and the United Nations to prosecute
the perpetrators of Cambodian genocide during 1970s; The Special Court for Sierra

100
Leone was established under the authority of the government of Sierra Leone and the
United Nations to punish the perpetrators of serious crimes during Sierra Leone civil
war during 1990s; Special Tribunal for Lebanon was supposed to be established under
the authority of the Lebanese government and the United Nations but due to certain
political impasse the tribunal was established under the authority of Chapter VII
measures of the UN Security Council, to prosecute those responsible for the
assassination of Rafic Hariri, the former Lebanese Prime Minister, and the connected
attacks from 2005 onwards; The International Crimes Tribunal (Bangladesh) is a
domestic war crimes tribunal established under the authority of Bangladesh
government to prosecute the perpetrators of genocide during 1970s. The jurisdictional
primacy of domestic or international law cannot be identified with these tribunals and
their authority is too much blended.
The principle of complementarity of international criminal law is only of recent
origin, specifically after the adoption of the Rome Statute of the International
Criminal Court (ICC) in 1998. Preamble to the Rome Statute of the ICC declares that
‘the International Criminal Court established under this Statute shall be
complementary to national criminal jurisdictions’. Further, Article 1 of the Statute
reiterates that the court ‘shall have the power to exercise its jurisdiction over persons
for the most serious crimes of international concern, as referred in this Statute, and
shall be complementary to national criminal jurisdictions’.25 The reason for ICL to
accept the principle of complementarity may be twofold: on the one hand, to attract
more states to become parties to the Rome Statute; and on the other, it is not a locus-
specific criminal tribunal like ICTR or ICTY.26 Norway signed the Rome Statute only
because the ICC jurisdiction is complementary to domestic criminal courts and
national courts have precedence to prosecute war crimes, crimes against humanity,
crimes of genocide and even the crime of aggression. Article 108 of the Norwegian

25
Article 13 of the Rome Statute speaks about the Exercise of Jurisdiction. In which, the court may
exercise its jurisdiction with respect to a crime referred to in Article 5 in accordance with the
provisions of this Statute if: ‘(a) A situation in which one or more of such crimes appears to have been
committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in
which one or more of such crimes appears to have been committed is referred to the Prosecutor by the
Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor
has initiated an investigation in respect of such a crime in accordance with article 15’.
26
Locus-specific criminal tribunal are those tribunals that are established to deal with specific conducts
occurred in specific place or during a specified period of time and whose function will come to an end
at the completion of its mandate.

101
Military Penal Code, 1902 provides for the prosecution of international crimes by
domestic penal law.27 (Oluwatoyin and Abegunde 2014: 73-74). Article 17 of the ICC
elaborates the principle of complementarity jurisdiction with domestic courts.28
The principle of complementarity and the primacy of domestic courts found
support from various scholars. It is argued that the international criminal forums along
with foreign judges and staffs cannot be a right place and right persons who
understand the people and their nations along with the socio-cultural background of
the society will majorly affects the feeling and sentiments in the name of bringing-out
the justice to the international community (Nkansah 2011: 11-15). There is a
possibility of misunderstanding the witnesses and perpetrators in their local languages
with new atmosphere. 29 Lydia argues that, ‘there is the lack of passion of foreign

27
Similarly, Norwegian criminal law is applicable to acts committed abroad by Norwegian national or
any other person domiciled in Norway when the act is a felony under the law of the country in which it
is committed. There is a general discretion to decline a prosecution, which occurred in a case brought
against former Israeli Prime Minister Ehud Olmert and former Foreign Minister Tzipi Livini along with
seven other Israeli military officials for ‘massive terror attacks primarily directed at the population in
Gaza’ (Reuters 2009 and JURIST News Archive 2009).
28
Article 17 of the Rome Statute provides the grounds for admissibility of crimes before ICC as fol-
lows: (1). Having regard to Paragraph 10 of the Preamble and Article 1, the court shall determine that a
case is inadmissible where: (a). the case is being investigated or prosecuted by a state which has juris-
diction over it, unless the state is unwilling or unable genuinely to carry out the investigation or prose-
cution, (b). the case has been investigated by a state which has jurisdiction over it and the state has de-
cided not to prosecute the person concerned, unless the decision resulted from the unwillingness or
inability of the state genuinely to prosecute, (c). the person concerned has already been tried for con-
duct which is the subject of the complaint, and a trial by the court is not permitted under Article 20,
Paragraph 3, (d). the case is not of sufficient gravity to justify further action by the court; (2). In order
to determine unwillingness in a particular case, the court shall consider, having regard to the principles
of due process recognized by international law, whether one or more of the following exist, as applica-
ble: (a). the proceedings were or are being undertaken or the national decision was made for the pur-
pose 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 pro-
ceedings 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; and (3). In order to determine inability in a particular case, the court shall consid-
er whether, due to a total or substantial collapse or unavailability of its national judicial system, the
state is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to
carry out its proceedings.
29
All the international criminal forums including ICC, ICTY, ICTR, SCSL, and other mixed tribunals
as well as special tribunals appoints even language experts to translate the facts and arguments of the
perpetrators as well as the witnesses to convey the details to the judges and the advocates. Some of
them might think that – why the facts and arguments have to be translated to foreign judges and
advocates which lead to time consuming and incurs huge expenses. On the other side, if it is not
translated then the victims or the accused may get biased decision in the international criminal forum.
Here, the judges and lawyers are not only the experts of regional/state laws but they are all experts in
international law as well. Therefore, the issue always looks into international law perspective to
preserve the global justice and peace rather than domestic perspective.

102
judges who are not in any way affected by the outcome of this trial to see that justice
is done. There is also the sense of betrayal that the accused persons feel when they
stand trial before foreigners’ (Lydia 2011: 14). Charles Taylor asserted before the
Special Court for Sierra Leone that ‘if I have offended my people, they should sit in
judgment over me and not hand me over to strangers’ (Bigi 2007: 303).30
According to Holmes, ‘justice as an ideal is localized rather than universalised
and thrives on emotion for its effectiveness. As the passion wanes, justice loses its
meaning and offenders get less punishment’ (Holmes 2002). Such opinion is also
strengthened by the former UN secretary General Kofi Annan that, ‘no rule of law
reform, justice construction, or transitional justice initiative imposed from outside can
hope to be successful or sustainable’ (Annan 2004).

2.2. Principle of Communitarianism

Principle of Communitarianism represents collective authority of states as opposed to
the individual authority of domestic courts exercising jurisdiction. Establishing
international criminal tribunal to punish the perpetrators of serious crimes is nothing
more than an expression of this collectiveness among states. Most of the criminal
tribunals, including the International Military Tribunals in Nuremberg and Tokyo,
have been established by the international community of states to prosecute and
punish the perpetrators of serious crimes to establish a sense of justice among the
humanity as a whole. The later international tribunals like ICTY, ICTR along with the
hybrid tribunals in Sierra-Leone, Cambodia and Lebanon have been established under
the authority of the UN Security Council. It implies that such tribunals derive their
jurisdictional authority directly from the community of states to maintain peace and
harmony within the meaning of Article 24 read with Article 29 and Chapter VII of the
UN Charter.
In resolution 955 of 1994, the Security Council declared that ‘genocide and other
systematic, widespread and flagrant violations of international humanitarian law have
been committed in Rwanda…constitute a threat to international peace and security’.
30
Other than the official from the weaker states there are many officials from the powerful states
accountable for heinous atrocities but the international criminal forums not able to take an effective
action against them due to lack of police force of their own; hence, those forums cannot compel to
apprehend suspect and difficult to collect evidence. Therefore, the activities of these criminal forums
seems to be a ‘quasi-victor’s justice’ or ‘power-oriented justice’ in the name of international peace and
security.

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A year earlier the Security Council had already established the ICTY on similar
reasoning. In resolution 808 of 1993, the Security Council declared that ‘widespread
violations of international humanitarian law occurring within the territory of the
former Yugoslavia, including…mass killings and the continuance of the practice of
‘ethnic cleansing’…constitutes a threat to international peace and security’. These
independent tribunals have been established primarily to protect the community
interest.
The adoption of the Rome Statute in 1998 and the successful establishment of
permanent International Criminal Court in 2002 is also an outcome of the sense of
communitarianism among states. Though the ICC is not an organ of the UN nor had
any direct link with the Security Council in its establishment; but the Rome statute
was negotiated within the UN system. Article 2 of the Statute requires that the court
shall be brought into relationship with the United Nations through an agreement.
Accordingly the UN General Assembly resolution 58/318 of 2004 authorized the
Relationship Agreement under which the ICC has to submit annual report to the
General Assembly. Further, Article 13(b) of the Statute provides that ‘[t]he Court may
exercise its jurisdiction…if [a] situation in which one or more of such crimes appears
to have been committed is referred to the Prosecutor by the Security Council acting
under Chapter VII of the Charter of the United Nations’.
Though many states are yet to become parties to the Rome Statute of the ICC, the
process of negotiation, establishment and the arrangements between ICC and the
United Nations clearly indicates that the court is established to safeguard community
interest. As a permanent forum the court has become a preventive as well as punitive
mechanism against serious violations of human rights and humanitarian principles.
The mere existence of the court sends a strong message to the potential perpetrators
that there exists a possibility for prosecution and punishment in case of committing
serious crimes; and the possibility for impunity is very much unlikely. It also provides
a sense of security to the people from violent dictators to authoritarian governments.

2.3. Principle of Surrender

The system of international law is built on the concept of ‘common consent’ or ‘auto-
limitation’ or ‘voluntary surrender’ by sovereign states. The legal maxim pacta tertis
nec nocent nec procent, which means a treaty binds the parties and only the parties,
explains the importance of consent in international law. Article 34 of the Vienna

104
Convention on Law of Treaties, 1969 further reiterates that ‘[a] treaty does not create
either obligations or rights for a third State without its consent’. However, all such
principles on consent clearly indicate that international law derives its authority
primarily from individual states through voluntary surrender of their authority
towards a common pool. Similarly, the authority of international courts and
tribunals, 31 institutions and organisations are also derived from sovereign states
through a system of voluntary surrender.
With regard to the exercise of jurisdiction over crime, whether serious or non-
serious, either under domestic or international law is always vested with the domestic
courts. However, when domestic courts surrender their authority towards international
forums, only then international tribunals could be established to prosecute the
perpetrators. Surrender could be made either through treaties or conventions, special
agreements, specified requests to the UN and so on. There are three possible ways in
which surrender of jurisdictional authority over serious crimes takes place, namely
voluntary surrender; forced surrender; and assumed surrender.

31
There are several international courts and tribunals established all around the world: PCIJ 1922-1946
replaced by the ICJ 1945-present resolves global categories of general disputes; Eastern Caribbean
Supreme Court (1967-present) and the Caribbean Court of Justice is a regional court to resolve the
general disputes among the Caribbean states; WTO Appellate Body (1995-present); International
Tribunal for Law of the Sea (1994-present); COMESA Court of Justice (1998-present); Court of
Justice of the Andean Community (1983-present); Benelux Court of Justice (1975-present); Economic
Court of the Commonwealth of Independent States (1994-present); all these courts resolve the disputes
in-related with trade and economy among the nations.
Similarly, African Court of Justice (2009-present) came for the purpose to interpret the African
Union Treaties; ECOWAS Community Court of Justice(1996-present); East African Court of Justice
(2001-present); SADC Tribunal (2005-2012); European Court of Justice (1952-present); European Free
Trade Association Court (1994-present) these courts established to interpret their respective laws.
There are certain human rights courts came into exist for the protection of neglected victims, namely:
African Court on Human and People Rights (2006-present); Inter-American Court on Human Rights
(1979-present); European Court of Human Rights (1959-present); but there is no human rights court in
the Asian region. It raises many issues, whether Asia is not violating human rights in the region? or
whether the national human rights courts in Asia is strong enough to protect human rights of domestic
as well as foreign nationals? or whether the Asian region is unable to establish the human rights court
in the region?
Several international criminal forums were established by the UNSC to prosecute the perpetrators
of serious crimes. This international criminal prosecution culture starts from 1945 onwards;
immediately after the conclusion of WW II; IMT, Nuremberg (1945-1946); IMTFE, Tokyo (1946-
1948); ICTY (1993-present); ICTR (1994-2015); ICC (2002-present); similarly, the special tribunals
were also brought for the criminal prosecution against the offenders of serious crimes; these hybrid
courts are Special Panels of the Dili District Court in East Timor (2000-2006); Special Court for Sierra
Leone (2002-present); Khmer Roue Tribunal (2006-present) which is popularly known as Cambodian
Tribunal; Special Tribunal for Lebanon (2009-present) and the Extraordinary Chambers in Senegal
(2013-present). These courts and tribunals get jurisdiction by surrender of the sovereign states or by
forceful surrender in-case of shielding an offender.

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Voluntary Surrender
A state may voluntarily surrender its jurisdictional authority towards international
tribunal when it is not able to take legal action against the perpetrators of serious
international crimes due to political or economic reasons. For instance, serious human
rights violations occurred in Rwanda following the political assassination of the then
president Juvenal Habyarimana on 6th April 1994. Riots started from Kigali the
capital of Rwanda between the majority Hutu and the minority Tutsi communities in
the state that was continued for hundred more days. The brutal conflict resulted in the
massacre of nearly eight lakh fellow human beings (Africa Recovery Report 1998:
4).32 By that time, the Rwandan government was not in a position to take legal action
against the perpetrators of genocide and was ready to surrender its jurisdiction to the
international forum. Consequently, the UN Security Council established the
International Criminal Tribunal for Rwanda (ICTR) as an ad hoc forum to deal with
the situation. Security Council Resolution 955 of 1994 acknowledges the request of
Rwandan government in this regard as follows:
[H]aving received the request of the Government of Rwanda (S/1994/1115), to
establish an international tribunal for the sole purpose of prosecuting persons re-
sponsible for genocide and other serious violations of international humanitarian
law committed in the territory of Rwanda and Rwandan citizens responsible for
genocide and other such violations committed in the territory of neighbouring
States, between 1 January 1994 and 31 December 1994 and to this end [the Secu-
rity Council decides] to adopt the Statute of the International Criminal Tribunal
for Rwanda (emphasis added; Para. 1).
The same is true with the establishment of the Special Court for Sierra-Leone.
Security Council Resolution 1315 of 2000 acknowledges the request made by the
Government of Sierra Leone as follows:
Taking note in this regard of the letter dated 12 June 2000 from the President of
Sierra Leone to the Secretary-General and the Suggested Framework attached to
it (S/2000/786, annex)…[and] the steps already taken by the Secretary-General in

32
In Rwandan riots, majority Hutu militia groups acted like butchers between 6th April 1994 to July
1994 and Rwanda became the house of human slaughter in those hundred days; literally the concept of
human rights in Rwanda was buried. During the period of Rwandan genocide the UN has withdrawn its
forces from the state of Rwanda. It is a major reason for Rwanda genocide.

106
 response to the request of the Government of Sierra Leone to assist it in
establishing a special Court (emphasis original).

Forced Surrender
Sometimes, international community may force a state to surrender its authority
towards international forum for exercising jurisdiction over serious crimes. Such
situation might arise when a state is unwilling to prosecute the perpetrator or initiates
domestic proceedings merely to shield the perpetrator. Generally, such issues are
handled by the Security Council through its authority under Chapter VII of the UN
Charter. For instance, the Prime Minister of Lebanon requested the UN Secretary-
General to establish a tribunal of an international character to try all those who are
responsible for the terrorist bombing that killed former Lebanese Prime Minister
Rafiq Hariri and other incidents connected there with. The UN Security Council
passed a resolution 1664 of 2006 requesting the Secretary General to take further
action in this regard. Accordingly, an agreement was signed between the United
Nations and the Lebanese Republic on the establishment of Special Tribunal for
Lebanon. But due to certain local political impasse the agreement was not ratified by
the government. However, the Security Council passed resolution 1757 of 2007 to
establish the tribunal under its chapter VII authority without waiting for the consent of
the state. The resolution declares that:
Acting under Chapter VII of the Charter of the United Nations, [the Security
Council decides] that: (a) The provisions of the annexed document including its
attachment, on the establishment of a Special Tribunal for Lebanon shall enter
into force on 10 June 2007, unless the Government of Lebanon has provided
notification…before that date.
The political stalemate could not be resolved before that date and hence the agreement
came into force on 10 June 2007 as specified.

Assumed Surrender
At times, it is impossible to expect a formal surrender from states, either voluntary or
forced, to transfer jurisdiction authority towards international forums. The situation
will arise in case of failed states or when a state is divided into multiple parts without
central control. In such cases the international community will assume the surrender
and proceed with the establishment of international tribunals. For instance, the ethnic

107
conflict in the former Yugoslavia split the country into different nations, namely,
Croatia, Serbia, Slovenia, Macedonia, Bosnia-Hercegovina, and Kosovo. There was
no central power to request for the establishment of international criminal tribunals to
punish the perpetrators of serious crimes during the conflict. Hence, the Security
Council adopted resolution 808 of 1993 establishing the International Criminal
Tribunal for Former Yugoslavia without any formal request from the erstwhile state.
The resolution declares that the Security Council is:
Determined to put an end to such crimes and to take effective measures to bring
to justice the persons who are responsible for them, [and convinced] that in the
particular circumstances of the former Yugoslavia the establishment of an
international tribunal would enable this aim to be achieved and would contribute
to the restoration and maintenance of peace (emphasis added).
However, the principle of jurisdiction by surrender in the ICC is slightly different
from other criminal tribunals. Under the Rome Statute national courts have primacy
over ICC in prosecuting the perpetrators of serious crimes and ICC will not get
jurisdiction unless otherwise the state party surrender its jurisdiction or the Security
Council refer the issue to the prosecutor.33 Despite that some African countries like
Gambia, South Africa, and Burundi, perceived ICC jurisdiction as intervention, neo-
colonialism, and African bias and hence, in January 2017 the African Union agreed to
go for ‘collective withdrawal’ from ICC. However, the former chief prosecutor of the
ICC Luis Moreno-Ocampo raised a counter-question that, ‘without the ICC, who will
protect the African victims when African governments attack them’ (Luis Moreno-
Ocampo 2010: 49).34 Further, he justifies the ICC jurisdiction over Africa as follows:

33
Article 13(a) and (b) of the Rome statute recalls the role of state party as well as the Security
Council. In this, the serious international crimes are referred to the Prosecutor of the ICC by the
sovereign member states or the Security Council acting under Chapter VII of the UN Charter.
34
But it raises several other questions that whether African national courts or African Court of Human
Rights do not have legal capacity to protect its victims? Does the ICC protect African victims or neo-
colonize Africa by punishing its political leaders? If the ICC really trying to protect the African victims
from the attacks of African governments then the whole global community may salute the effectiveness
of the ICC; but why does the ICC is not protecting the American Red Indians and American Negros
from the attack of American government? Whenever these sorts of issues raised then the ICC replies
that the American government has not ratified the Rome Statute yet; so, the ICC cannot get jurisdiction
over the non-state parties. If it is so, then how the ICC issued an international arrest warrant against the
Sudanese leader Omar Al-Bashir which is also a non-ratified state? Actually, the rule is equal for all
irrespective of their political or other powers.

108
 1. All the accused persons of the ICC are from Africa: Why? Because there are
five million African victims displaced, thousands of African victims were
raped and even more than forty thousand African victims were brutally killed;
similarly, thousands of African children were forcefully transformed into
rapists and killers. Hence, hundred percent of the victims are Africans
similarly hundred percent of the perpetrators are also from Africa. He recalls
the words of Nobel Laurette Desmond Tutu that: ‘choose your side. Do you
associate with the victims or the perpetrators? I am on the victims’ side. I will
not apologize for that’.
2. Ignoring Bigger Criminals from the North: Africans are tired of double
standards. Here the issue is, are we going to implement one standard? Or are
we going to reinforce the double standard? Luis was the prosecutor of the
State parties to the Rome statute and he is not the world prosecutor. Though
some of the States like Sri Lanka, Iraq, USA, Lebanon committed heinous
crimes of war crimes, crimes against humanity, genocide but they are not
States parties of the ICC’s Rome statute.
Under Article 12(3) ICC accepts cases from non-party states provided if they fulfil
two main conditions: (i) non-party state has lodge a declaration with the Registrar of
the ICC to accept the exercise jurisdiction by the court with respect to the crimes in
question; and (ii) shall cooperate with the court without any delay or exception. Even
part 9 of the Rome statute discusses the need of international cooperation and judicial
assistance from the jurisdictional accepting state irrespective of states parties as well
as non-state parties.

3. PRESCRIPTIVE JURISDICTION AND INDIAN STATE PRACTICE

For a domestic court to exercise jurisdiction over international crime, the state must
characterise the conduct as delictual within domestic legal system through incorpora-
tion. Incorporation is a process through which international treaties and other obliga-
tions of international law become part of municipal legal system of a sovereign state.
However, it is not an easy task and it is more so with respect to international criminal
law. The reason may be twofold: on the one hand, there is no uniformity of state prac-
tice in the incorporation process on account of varied theoretical understandings and
ideological differences in the absorption of international law principles; and on the

109
other, administration of criminal justice is claimed to be an exclusive authority of
sovereign states.
In Indian legal system legislature shall enact municipal laws to bring the princi-
ples of international law into domestic sphere. Mere being a signatory to an interna-
tional legal instrument does not bind the nation or its organs to enforce such laws
within its territory unless adopted through a ratification process. Ratification is the
formal expression of consent by states to be bound by treaty or agreement.35 Indian
Constitution lays down the procedure for expressing such a consent whereby the Par-
liament is empowered to enact domestic legislations to implement international trea-
ties, agreements or conventions. However, in case of a legal vacuum or non-liquet in
the domestic legal system courts and judges are free to refer the principles of interna-
tional treaties, conventions or customs without any prior approval from the Parlia-
ment. But such references shall not be in contravention to the basic structure of the
Indian Constitution or sovereignty of the state.
Though Indian constitution allocates legislative, executive and judicial functions
on three different organs it does not impose strict absorption of the doctrine of sepa-
ration of powers. The powers and functions of each organ may well overlap with one
another. For instance, high courts and supreme court of India exercise administrative
functions when they supervise their subordinate courts and frame rules for regulating
the practice and procedure of the court.36 This flexible nature enables Indian judiciary,
at times, to act as a quasi-legislative authority in bringing international law into do-
mestic. In many occasions the judiciary has played such an active role to protect hu-
man values and promote environmental standards.
In the era conflicting global issues like environment versus development, devel-
opment versus human rights, international versus domestic, and so on judiciary has to
play such a lead role in bringing international cooperation through innovative ap-
proaches and judicial activism. Proper functioning of an international treaty frame-

35
In Indian context ratification occurs either by adoption of municipal legislation domestically and
deposit of instrument of ratification internationally; or by exchange of instrument of ratification. Gen-
erally, the former is the mode of adoption for law-making treaties and the latter is the mode for adop-
tion of treaty-contracts.
36
Article 145 of the Indian Constitution authorises the Supreme Court to make rules for regulating the
practice and procedure of the court. Similarly, Article 229 authorises the High Courts to make rules
with regard to officers and servants and the expenses of the High Courts. In addition, Article 227 con-
fers supervisory power on High Courts over subordinate courts.

110
work is not possible in the absence of an effective support and co-operation from do-
mestic judicial systems; similarly, municipal courts cannot ensure justice by mere ref-
erence to national laws ignoring the principles of international law. For that reason,
authoritative nature of municipal law and dynamic nature of international law must
interact with each other for a better future world.

3.1. Domesticating International Criminal Law

Article 38 of the Statute of the International Court of Justice declares that the function
of the court is to decide disputes as are submitted to it in accordance with internation-
al law. The provision also lists out the sources from where the principles of interna-
tional law could be found, namely: international conventions, international customs,
general principles of law, and judicial decisions and juristic opinions.37 While bring-
ing international law domestic states do not or rarely adopt municipal legislations to
incorporate the principles of international customs, general principles, or judicial de-
cisions and juristic opinions. Whereas, incorporating international treaties and con-
ventions require different procedural formalities like, signature, accession, ratification
or adoption of domestic legislations. Since obligations under treaties are more precise
that should earnestly be carried out to avoid any issues of non-compliance, states pre-
fer to be more cautious while expressing their consent to be bound.38
Treaties and conventions may be classified into two types, namely, law-making
treaties and treaty contracts. Law-making treaties are those that attract the participa-
tion of numerous states establishing rules regulating international conduct of their
own and of others as well. United Nations Charter, Vienna Convention on the Law of
Treaties, and the Hague Conventions are good examples of law-making treaties.
Whereas, treaty-contracts are those that regulates the relation only between the parties

37
Article 38 of the ICJ Statute provides that, ‘[t]he Court, whose function is to decide in accordance
with international law such disputes as are submitted to it, shall apply: a. International conventions,
whether general or particular, establishing rules expressly recognized by the contesting States; b. Inter-
national customs, as evidence of general practice accepted as law; c. The general principles of law rec-
ognized by civilized nations; d. Subject to the provisions of Article 59, judicial decisions and the teach-
ings of the most highly qualified publicists of the various nations, as subsidiary means for the determi-
nation of rules of law’.
38
Article 2 of the Vienna Convention on Law of Treaties (VCLT) 1969 defines that ‘treaty’ means ‘an
international agreement concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments and whatever its partic-
ular designation’. Different designation of ‘treaty’ includes treaties, conventions, protocols, or agree-
ments.

111
with regard to specific or exclusive issues among them. Bilateral investment treaties,
double taxation avoidance agreements, and extradition treaties are good examples of
treaty contracts. Such treaties do not directly become the sources of international law
but may assist the formation of international customs. However, in both cases signing
and ratifying of treaties are essential to bring them domestic.
State practice in implementing international treaties is diverse among different
states and there is no uniform procedure to incorporate them into domestic legal sys-
tem. Theoretical difference between monism and dualism continues to be a relevant
factor for centuries in understanding and transforming international law into domestic
sphere. Monists argue that international law is the superior legal system that automat-
ically forms part of every domestic legal system; but to the contrary, dualists maintain
that rules of international law do not automatically apply in municipal sphere unless
incorporated through municipal legislations. Law, either domestic or international, is
made for human welfare and hence, the Vienna Convention on Law of Treaties
(VCLT), 1969 attempts to harmonize the conflicting approaches to meet the common
interests of the international community. Article 11 of the Convention upholds that
‘[t]he consent of a State to be bound by a treaty may be expressed by signature, ex-
change of instruments constituting a treaty, ratification, acceptance, approval or ac-
cession, or by any other means if so agreed’.39 The provision encompasses all forms
of transformation process to bring international law into domestic. This is a compro-
mise between the theoretical differences and ideological conflicts between states fol-
lowing monism and dualism.
In accordance with the provision there are three modes for expressing consent to
be bound by a treaty namely, (i) signature; (ii) exchange of instrument constituting
treaty; and (iii) ratification, acceptance, approval, or accession. While signing a treaty
the signature may be a definitive-signature or a simple-signature. Definitive-signature
implies the full power of the representative signing the treaty and it is an expression
of state’s consent to be bound by the treaty without any further requirement of ratifi-
cation, acceptance or approval by domestic parliament. Article 46 and 47 of the
39
Usage of different words in the provision indicates the varied process in which states express their
consent to be bound by a treaty. However, the significance of every such process in expressing consent
is equally valid. Article 2(1)(b) of the VCLT declares that ‘ratification’, ‘acceptance’, ‘approval’ and
‘accession’ mean in each case the international act so named whereby a State establishes on the interna-
tional plane its consent to be bound by a treaty. The procedural mechanism for expressing consents by
each of these ways is detailed in Article 12 to 16 of the Convention.

112
VCLT make it clear that once a definitive-signature is put on a treaty then the state
shall not be allowed to claim the defence that the consent is expressed in violation of
its internal laws; or against specific restrictions on the authority to express consent.40
To the contrary, simple-signatures are those that are subject to approval by state either
through exchange of instrument of ratification, adoption of domestic legislation, or
through ratification, approval or acceptance. In either case once, Article 27 makes it
clear that, once the state becomes a party to a treaty it ‘may not invoke the provisions
of its internal law as justification for its failure to perform a treaty’.
However, problems and conflicts occur only when states sign the treaty but fail to
ratify the same. Such states are mere signatories but not parties to the treaty. Article
2(1)(g) holds that ‘‘party’ means a State which has consented to be bound by the trea-
ty and for which the treaty is in force’. Further, Article 34 makes it clear that ‘[a] trea-
ty does not create either obligations or rights for a third States without its consent’.
Consent is a prerequisite for binding a state with legal commitments of the treaty;
mere signatories are not bound to carry out obligations under the treaty. However,
there are few exceptions to this general rule, namely, (i) jus cogens or peremptory
norm of general international law; and (ii) object and purpose rule. A state could be
required to be bound by a treaty despite being a non-party or even non-signatory if the
treaty codifies the principles of customary law or comprises the principle of peremp-
tory norm of general international law.41 Similarly, Article 18 of the VCLT provides
that a state could legally be compelled to refrain from defeating the object and pur-
pose of a treaty despite being a signatory without ratification if ‘it has signed the trea-
ty or has exchanged instruments constituting the treaty subject to ratification, ac-
ceptance or approval, until it shall have made its intention clear not to become a party
to the treaty’.

40
Article 46 of the VCLT provides that ‘[a] State may not invoke the fact that its consent to be bound
by a treaty has been expressed in violation of a provision of its internal law regarding competence to
conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of
its internal law of fundamental importance’. Similarly, Article 47 declares that ‘[i]f the authority of a
representative to express the consent of a State to be bound by a particular treaty has been made subject
to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the
consent expressed by him unless the restriction was notified to the other negotiating States prior to his
expressing such consent’.
41
Article 53 of the VCLT defines that ‘a peremptory norm of general international law is a norm ac-
cepted and recognized by the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of general international
law having the same character’.

113
 With regard to Indian position, international law binds the state only when it is
transformed into domestic legal system either through parliamentary incorporation or
through judicial incorporation. Otherwise, the principles of international law are not
directly enforceable in the country. In Jolly George Verghese and Another v. The
Bank of Cochin, supreme court of India made it clear that Article 51(c) of the Consti-
tution obligates the State to ‘foster respect for international law and treaty obligations
in the dealings of organised peoples with one another’. Even so, until the municipal
law is changed to accommodate [international law] what binds the court is the former,
not the latter’. However, even if the country signs and ratifies a treaty internationally,
it cannot be implemented domestically unless adopted through a municipal legisla-
tion. In such case, the country may be held accountable internationally for non-
compliance; nevertheless, organs of the state or its apparatus cannot be compelled to
implement the principles of the treaty so signed or ratified.

3.2. Parliamentary Incorporation

Implementing international treaties, conventions or agreements is a two-phase process
under Indian Constitutional framework: firstly, signing and ratifying treaty interna-
tionally (i.e. treaty-making power); and secondly, enacting legislation domestically
(i.e. law-making power). There is a difference between the formation and the perfor-
mance of obligations constituted by international treaties. The former is vested with
the executive-head and the latter is vested with the parliament. In accordance with
Article 53 read with Article 73, the executive power of the Union of India is vested in
the President and it extends to all matters with respect to which the Parliament has the
power to make laws.42 On the other hand, Article 253 lays down the procedure for
incorporation whereby it provides that ‘Parliament has power to make any law for the
whole or any part of the territory of India for implementing any treaty, agreement or
convention with any other country or countries or any decision made at any interna-
tional conference, association or other body’ (emphasis added). However, presidential
power extends only to those matters with respect to which Parliament can make laws.
42
Article 53 of the Indian Constitution provides that ‘[t]he executive power of the union shall be vest-
ed in the President and shall be exercised by him either directly or through officers subordinate to him
in accordance with [Indian] Constitution’. Further, Article 73 of the Indian Constitution provides that
‘the executive power of the Union shall extend: (a) to the matters with respect to which Parliament has
power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable
by the government of India by virtue of any treaty or agreement’.

114
On that account, whether parliamentary legislation a prerequisite for exercising presi-
dential power? In Union of India v. Manmul Jain and Others, the high court of Cal-
cutta answers the question in negative and makes clear the difference between the two
phases of incorporation as follows:
9. Making a treaty is an executive act and not a legislative act. Legislation may
be and is often required to give effect to the terms of a treaty. Thus if a treaty,
say, provides for payment of a sum of money to a foreign power, legislation may
be necessary before the money can be spent; but the treaty is complete without
the legislation … The President makes a treaty in exercise of his executive power
and no court of law in India can question its validity.
10. [W]hen the president, in whom Article 53 of the Constitution vests all the ex-
ecutive power of the Union, has entered into a treaty, the municipal courts cannot
question the validity of the treaty.
Similarly, in Maganbhai Ishwarbhai Patel v. Union of India and Another, the su-
preme court of India Observed that:
The executive is qua the State competent to represent the State in all matters in-
ternational and may by agreement, convention or treaties incur obligations which
in international law are binding upon the State. But the obligations arising under
the agreement or treaties are not by their own force binding upon Indian nation-
als. The power to legislate in respect of treaties lies with the Parliament under
Entries 10 and 14 of List I of the Seventh Schedule.
However, in the absence of a domestic legislation international law cannot be consid-
ered as part of the municipal legal system and its principles will not be implemented
in the territory of India. This implementing process is an exclusive authority of Par-
liament excluding the role of state legislatures. Under Seventh Schedule of the Consti-
tution ‘[p]articipation in international conferences, associations and other bodies and
implementing of decisions made thereat’ (emphasis added) as well as ‘[e]ntering into
treaties and agreements with foreign countries and implementing of treaties, agree-
ments and conventions with foreign countries’ (emphasis added) exclusively fall un-
der entry 13 and 14 of the Union List and no similar entries could be found under

115
State List or Concurrent List.43 The consequences of entries found under different lists
are well established under Article 246 that:
Parliament has exclusive power to make laws with respect to any of the matters
enumerated in List I [i.e. Union List] in the Seventh Schedule…. Parliament [and
State Legislatures] have power to make laws with respect to any matters enumer-
ated in List III [i.e. Concurrent List] in the Seventh Schedule…[and] the Legisla-
ture of any State has exclusive power to make laws for such State or any part
thereof with respect to any of the matters enumerated in List II [i.e. State List] in
the Seventh Schedule (emphasis added).
With this exclusive power Indian Parliament has enacted thousands of domestic legis-
lations to incorporate international treaties, conventions and agreements addressing
issues of economics, trade, environmental, human rights, humanitarian, labour stand-
ards, and so on. However, India’s response towards treaties addressing issues of crim-
inal law is very much selective and multiplex. Such treaties may be classified into the
following categories for a proper analysis of Indian state practice, namely: (i) treaty
conferring authority; (ii) treaty imposing responsibility; and (iv) treaty of complemen-
tarity. The first type of treaties is those that bequeath jurisdictional authority on do-
mestic courts and tribunals over newer crimes or expanding authority over existing
crimes. Generally, India become parties to such treaties and conventions and do not
show any reluctance in signing or ratifying the same. For instance, India is party to
Hijacking Convention,44 Sabotage Convention,45 Hostage Convention,46 Nuclear Ter-

43
Other issues relating to international law and international relations like, ‘[f]oreign affairs; all matters
which bring the Union into relation with any foreign country’ (entry 10); ‘[d]iplomatic, consular and
trade representation’ (entry 11); ‘United Nations Organisations’ (entry 12); ‘[w]ar and peace’ (entry
15); ‘[f]oreign jurisdiction’ (entry 16); and ‘[e]xtradition’ (entry 18) are also exclusively fall under the
Union List in the Seventh Schedule.
44
Convention for the Suppression of Unlawful Seizure of Aircraft 1970 is a multilateral treaty to pro-
hibit and punish hijacking of civilian aircraft. India signed the treaty on 14th July 1971 and enacted a
domestic legislation ‘The Anti-Hijacking Act 1982’ and deposited the instrument of ratification on 12th
September 1982.
45
Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971 is a mul-
tilateral treaty to prohibit and punish behaviour which may threaten the safety of civil aviation. India
signed the treaty on 11th December 1972 and enacted a domestic legislation ‘The Suppression of Un-
lawful Acts against Safety of Civil Aviation Act 1982’ and deposited the instrument of ratification on
12th November 1982. Similarly, India is also a party to the Convention for the Suppression of Unlawful
Acts against the Safety of Maritime Navigation 1988.
46
International Convention against the Taking of Hostages 1979 is a multilateral treaty to prohibit and
punish taking of hostage based on the principle of aut dedere aut judicare (i.e. extradite or prosecute)
the perpetrators. India’s accession and ratification to the treaty came on 7th September 1994.

116
rorism Convention,47 etc. Most of these multilateral treaties specialise and expand the
authority of domestic courts over certain crimes that originally could only be dealt
under domestic criminal law (i.e. Indian Penal Code, 1860) like any other normal
crimes.
The second type of treaties is those that hold states and state apparatus accounta-
ble for their repressive activities against individuals. Generally, India avoids ratifying
such kinds of treaties and reluctant to take any legal commitments that interferes in
their sovereign freedom either directly or indirectly. For instance, India signed the
Convention against Torture, 1984 on 14 October 1997 but it is yet to ratify the con-
vention even after two decades.48 The Convention primarily seeks to curtail sovereign
freedom to engage torture as a tool extract information or imposing punishment
against individuals for any wrong committed. Article 1 of the Convention defines that
‘torture’ means ‘any act by which severe pain or suffering, whether physical or men-
tal, is intentionally inflicted on a person…by or at the instigation of or with the con-
sent or acquiescence of a public official or other person acting in an official capacity’
(emphasis added). Under Article 4 the Convention requires the state parties to ensure
that all acts of torture are made as offences under their criminal law. In addition, Arti-
cle 13 and 14 confer rights on the victims of torture to complain and receive compen-
sation for their sufferings. However, unless and until the present condition of police
and prison system in the country, both before and after conviction, undergoes a vital
transformation India cannot afford to ratify the treaty.49 It is not that torture is the
common phenomenon of criminal legal system and states reluctant to ratify the treaty;
rather it is the belief that states have fundamental freedom and authority to engage

47
International Convention for the Suppression of Acts of Nuclear Terrorism 2005 is a treaty to crimi-
nalise the acts of nuclear terrorism and to promote police and judicial cooperation in prevention, inves-
tigation and punishment of those acts. India signed the treaty on 24th July 2006 and ratified on 1st De-
cember 2006. In addition to this, India is already a party to the other twelve international terrorism
conventions and protocols.
48
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984
is a United Nations treaty for prevention of torture and other cruel, inhuman or degrading treatment or
punishment against individuals by states or their officials in order to extract any information or while
imposing any punishments. India signed the treaty on 14th October 1997 but yet not ratified.
49
A 2015 Tamil-language movie ‘Visaranai’ (means ‘Interrogation’) is a good starting point to under-
stand the police brutality, corruption and loss of innocence in the face of injustice in India. The film
won the Amnesty International Italia Award in the 72nd Venice Film Festival and it is also an official
Indian nomination for the Best Foreign Language Film Category at the 89th Academy Awards.

117
torture in criminal administration and hence states reluctant to become party to the
treaty.50
Similarly, India signed the Convention on Enforced Disappearance on 06 Febru-
ary 2007 but even after a decade the country is yet to ratify the treaty.51 Primary ob-
ject of the Convention is to regulate the state practice of detaining individuals outside
the protection of law and makes the state answerable for such activities. Article 2 de-
fines that ‘enforced disappearance’ means ‘arrest, detention, abduction or any other
form of deprivation of liberty by agents of the State or by persons or groups of per-
sons acting with the authorization, support or acquiescence of the State… which
place such a person outside the protection of law’ (emphasis added). The provision
directly targets the state from engaging in any kind of illegal arrest or detention. Fur-
ther, Article 4 requires the state parties to ensure that all acts of enforced disappear-
ance shall be made as offences under their domestic criminal law. In addition, Article
24(4) requires that ‘[e]ach State Party shall ensure in its legal system that the victims
of enforced disappearance have the right to obtain reparation and prompt, fair and ad-
equate compensation’. However, considering the prevailing situation in Jammu and
Kashmir, Assam, Nagaland, Manipur as well as the menace of Naxalism in different
parts of the country, along with the practice of fake encounters and extra-judicial kill-
ings, it is very much unlikely that the county could soon ratify the convention.52
The third type of treaties is those that share the authority of domestic courts to-
wards international courts and tribunals over certain crimes. India is always reluctant
to sign or ratify such treaties that take away or share domestic authority towards in-
ternational. For instance, India has neither signed nor ratified the Rome Statute of the

50
Minister for Home Affairs introduced the Prevention of Torture Bill 2010 to enable India to ratify the
UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
1984. But it is yet to become an Act of the Parliament.
51
International Convention for the Protection of All Persons from Enforced Disappearance 2006 is a
multilateral treaty to prevent forced disappearance of individuals at the hands of states. India signed the
treaty on 6th February 2007 but yet not ratified.
52
India’s stand on Armed Forces (Special Powers) Act (AFSPA) 1958 is highly criticised by many
states and civil society organisations internationally. The Act grants special powers to security forces to
search without warrant, arrest persons, and use deadly force in disturbed area. But still Section 6 of the
Act provides that: ‘[n]o prosecution, suit or other legal proceeding shall be instituted, except with the
previous sanction of the Central Government, against any person in respect of anything done or pur-
ported to be done in exercise of the powers conferred by this Act’. Many people criticised that the Act
indirectly authorises and encourages enforced disappearance of individuals in the so called disturbed
areas.

118
International Criminal Court, 1998.53 Article 1 and Article 5 of the Statute makes it
clear that the court’s jurisdiction is only complimentary to national criminal courts
and only with regard to most serious crimes of international concern such as, geno-
cide, crimes against humanity, war crimes and crime of aggression.54 Despite that In-
dia has not even signed the treaty so far. However, parliamentary incorporation of in-
ternational criminal law in India is possible only with regard to those treaties that con-
fer authority on state’s criminal administration. With regard to the treaties imposing
responsibility, in most cases, India has signed the treaty but very much reluctant to
ratify or adopt a domestic legislation to incorporate into municipal legal system.
However, mere signing of the treaty serves two different purposes: on the one hand,
as a largest democracy India would like to project itself as country that supports the
promotion of human rights and fundamental freedoms; and on the other, yet the coun-
try will not be legally bound to implement the same domestically. This is a kind of
complicity in the garb of convenience.55 With regard to treaties of complementarity
India is not even ready to sign.

3.3. Judicial Incorporation

Indian judiciary is known for judicial activism and judicial creativity that has never
been restricted within the confines of black-letter laws. Whenever there is a scope for,
courts and tribunals in the country has made extensive reference to philosophical, ide-
ological, mythological, moral, social, and cultural principles to expand the meaning
and ambit of constitutional as well as other legal principles. Often they also make ref-
erence to judgments of foreign courts from Australia, Canada, South Africa, United
Kingdom, and United Sates as and when required. With regard to the implementation

53
Rome Statute of the International Criminal Court 1998 is a multilateral treaty to establish permanent
international criminal court to deal with certain serious crimes of international concern.
54
Article 1 of the Rome Statute provides that ‘[a]n International Criminal Court (‘the Court’) is hereby
established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over
persons for the most serious crimes of international concern, as referred to in this Statute, and shall be
complementary to national criminal jurisdiction (emphasis added)’. Article 5 of the Rome Statute pro-
vides that ‘jurisdiction of the Court shall be limited to the most serious crimes of concern to the inter-
national community as a whole. The Court has jurisdiction in accordance with this Statute with respect
to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d)
The crime of aggression’.
55
Article 17 of the Indian Contract Act 1872 declares that ‘a promise made without any intention of
performing it’ amounts to ‘fraud’. Applying the same principle internationally would make activities of
the State as fraudulent when it signs a treaty without any intention of ratifying it’.

119
of international law into municipal legal system the supreme court and the high courts
do not wait for the Parliament to makes laws; rather, they directly make reference to
the principles of international law. Common law doctrine of precedent and stare deci-
sis are very much applicable in the Indian context. For instance, Article 141 of the
Constitution provides that ‘[t]he law declared by Supreme Court shall be binding on
all courts within the territory of India’. However, there is no similar provision that
confers binding authority on the decisions of the high courts, but it could be inferred
from Article 215 read with Article 227 of the Constitution.56 In East India Commer-
cial Co. Ltd. Calcutta and Another v. The Collector of Customs Calcutta, the supreme
court observed that:
It would be anomalous to suggest that a tribunal over which the High Court has
superintendence can ignore the law declared by that court and start proceedings
in direct violation of it…[Though] there is no specific provision, just like in the
case of Supreme Court, making the law declared by the High Court binding on
subordinate courts…[it] is implicit in the power of supervision conferred on a su-
perior tribunal that all the tribunals subject to its supervision should conform to
the law laid down by it. Such obedience would also be conducive to their smooth
working: otherwise there would be confusion in the administration of law and re-
spect for law would irretrievably suffer.
With this freedom and authority on many occasions the judiciary has performed a
quasi-legislative function to bring international law into domestic. Direct reference to
the principles of international law is made, in most cases, either to protect human val-
ues or to preserve the ecology when there is a legal vacuum in municipal laws. For
instance, most of the international environmental law principles like sustainable de-
velopment, precautionary principle, polluter pays principle, and public trust doctrine
have been brought to domestic only through land mark judgements of the supreme
court and not by parliamentary legislations.57 In Vellore Citizens Welfare Forum v.
Union of India and Others, the supreme court held that:

56
Article 215 of the Indian Constitution provides that ‘[e]very High Court shall be a court of record
and shall have all the powers of such a court including the power to punish for contempt of itself’. Sim-
ilarly, Article 227 provides that ‘[e]very High Court shall have superintendence over all courts and
tribunals throughout the territories in relation to which it exercises jurisdiction’.
57
The Precautionary Principle is incorporated from Principle 18 of the Stockholm Conference on Hu-
man Environment 1972 and Rio Declaration 1992; the Polluter Pay Principle is incorporated from

120
 It is almost accepted proposition of law that the rule of Customary International
Law which are not contrary to the municipal law shall be deemed to have been
incorporated in the domestic law and shall be followed by the Courts of Law …
[and] we have no hesitation in holding that ‘Sustainable Development’ as a bal-
ancing concept between ecology and development has been accepted as a part of
the Customary International Law.
Some of the salient principles of ‘Sustainable Development’, as culled out from
Brundtland Report and other international documents, are inter-Generational Eq-
uity, Use and Conservation of Natural Resources, Environmental Protection, the
Precautionary Principle, Polluter Pays principle, Obligation to assist and cooper-
ate, Eradication of Poverty and Financial Assistance to the developing countries.
We are, however, of the view that ‘The Precautionary Principle’ and ‘The Pollut-
er Pays’ principle are essential features of ‘Sustainable Development’.
In addition, the court also directed the Central Government to establish an authority
under Section 3(3) of the Environmental (Protection) Act, 1986 to protect the degrad-
ing environment in the country. Similarly, in MC Mehta v. Kamal Nath and Others,
the supreme court made its observation on public trust doctrine that:
Our legal system - based on English Common Law - includes the public trust
doctrine as part of its jurisprudence. The State is the trustee of all natural re-
sources which are by nature meant for public use and enjoyment. Public at large
is the beneficiary of the sea- shore, running waters, airs, forests and ecologically
fragile lands. The State as a trustee is under a legal duty to protect the natural re-
sources. These resources meant for public use cannot be converted into private
ownership.
With regard to the protection of human rights and fundamental freedoms Indian judi-
ciary on many occasions have made direct references to the principles of international
human rights law. For instance, in Nilabati Behera v. State of Orissa, the supreme
court referred Article 9(5) of the International Covenant on Civil and Political Rights
(ICCPR), 1966 to provide compensation for unlawful arrest and detention as a public

Principle 16 of the Rio Declaration 1992 and Sustainable Development from the Report of the World
Commission on Environment and Development 1987 (also known as Brundtland Report).

121
law remedy under Article 32 of the Constitution.58 Similarly, in Vishaka and Others
v. State of Rajasthan and Others, the supreme court made a reference to Article 11
and 24 of the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW), 1979 to prevent sexual harassment at the workplace.59 On that
account, the court laid down number of guidelines and norms to be followed in all
workplaces and other institutions until legislation is enacted for the purpose; and em-
phasised that the guidelines and norms would be treated as the law declared by this
court under Article 141 of the Constitution. With regard to making direct references
to international law the court was opinion that:
In the absence of domestic law occupying the field, to formulate effective
measures to check the evil of sexual harassment of working women at all work
places, the contents of International Conventions and norms are significant for
the purpose of interpretation of the guarantee of gender equality, right to work
with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the
safeguards against sexual harassment implicit therein.
However, one major exception to this judicial freedom is that no reference could be
made if it contravenes: (i) basic structure of the Constitution; (ii) sovereignty of the
state; or (iii) express provision of law enacted by the Parliament. If any reference is
made in contravention to any of these principles, such judgements are not valid and
shall be considered as per incurium. For instance, in Gramaphone Company of India
Ltd. v. Birendra Bahadur Pandey and Others, the supreme court observed that:
The comity of Nations requires that Rules of International law may be accommo-
dated in the Municipal Law even without express legislative sanction provided
they do not run into conflict with Acts of Parliament. But when they do run into
such conflict, the sovereignty and the integrity of the Republic and the supremacy
of the constituted legislatures in making the laws may not be subjected to exter-

58
Article 9(5) of the ICCPR provides that ‘[a]nyone who has been the victim of unlawful arrest or
detention shall have an enforceable right to compensation’.
59
Article 11 of the CEDAW provides that ‘States Parties shall take all appropriate measures to elimi-
nate discrimination against women in the field of employment in order to ensure, on a basis of equality
of men and women, the same rights, in particular: (a) The right to work as an inalienable right of all
human beings; (f) The right to protection of health and to safety in working conditions, including the
safeguarding of the function of reproduction’. Article 24 of the Convention provides that ‘States Parties
undertake to adopt all necessary measures at the national level aimed at achieving the full realization of
the rights recognized in the present Convention’.

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 nal rules except to the extent legitimately accepted by the constituted legislatures
themselves.
Further, the court continued to make the following specific observation with regard to
judicial incorporation of international law that:
Comity of Nations or no, Municipal Law must prevail in case of conflict. Nation-
al Courts cannot say yes if Parliament has said no to a principle of international
law. National Courts will endorse international law but not if it conflicts with na-
tional law. National courts being organs of the National State and not organs of
international law must perforce apply national law if international law conflicts
with it. But the Courts are under an obligation within legitimate limits, to so in-
terpret the Municipal Statute as to avoid conformation with the comity of Nations
or the well established principles of international law. But if conflict is inevitable,
the latter must yield.60
Finally, with regard to interpretation of statutes the supreme court, in Tractor Export,
Mascow v. Tarapore & Company and Another, comprehended that ‘[i]f statutory en-
actments are clear in meaning, they must be construed according to their meaning
even though they are contrary to the comity of nations or international law’. Further,
in ADM Jabalpur v. Shivakant Shukla, Justice Khanna in his minority opinion made
the following comprehensive observation to resolve the conflict between municipal
law and international law that:
[It is a well-established rule of construction that] if there be a conflict between
the municipal law on one side and the international law or the provisions of any
treaty obligations on the other, the courts would give effect to municipal law. If,
however, two constructions of the municipal law are possible, the court should
lean in favour of adopting such construction as would make the provisions of the
municipal law to be in harmony with the international law or treaty obligations.

60
Hersch Lauterpacht also gave a similar opinion as follows: ‘While it is clear that international law
may and does act directly within the State, it is equally clear that as a rule that direct operation of inter-
national law is within the State subject to the overriding authority of municipal law. Courts must apply
statutes even if they conflict with international law. The supremacy of international law lasts, pro foro
interno, only so long as the State does not expressly and unequivocally derogate from it. When it thus
prescribes a departure from international law, conventional or customary, judges are confronted with a
conflict of international law and municipal law and, being organs appointed by the State, they are com-
pelled to apply the latter’ (Lauterpacht 1970: 227).

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With regard to incorporation of international criminal law into domestic legal system
Indian judiciary always reluctant to make a direct reference international treaties and
conventions. The reason is that criminal administration of a country is always closely
associated with the sovereignty of the state. Since independence, supreme court of
India have dealt with numerous cases involving issues of custodial torture, custodial
death, inhuman or degrading treatment or punishment, enforced disappearance, and so
on and categorically condemned the activities of the state;61 but in no occasion made
any attempt to derive criminal law principles from treaties or conventions to punish
the perpetrating public officials. In Kesavananda Bharati v. State of Kerala, Justice
SM Sikri speaking for the supreme court observed that:
[I]t seems to me that, in view of Article 51 of the directive principles, this Court
must interpret language of the Constitution, if not intractable, which is after all a
municipal law, in the light of the United Nations Charter and the solemn declara-
tion subscribed to by India.
It is easy for the supreme court to declare that the Constitution is after all a municipal
law and should be understood in the light of the UN Charter or other principles of in-
ternational law, as long as it is not in contravention to the administration of criminal
justice system. However, the opinion would not be same if it abridges or takes away
the sovereign authority over prevention or punishment of crime or if it attempts to
hold the state criminally responsible for any act or omission. Indian judiciary has
come across numerous opportunities—like, custodial death, custodial torture, en-
forced disappearance, fake encounters, abolishing death penalty, and so on—to incor-
porate the principles of international criminal law into domestic, the courts have made
not even an attempt.
Though scholars may argue that it is an era of globalization and man-made
boundaries are no longer a barrier for global governance with principles of universal
international law, like, UN Charter, Universal Declaration of Human Rights (UDHR),
international trade and investment regime, new-found concept of global

61
For instance, the cases include: Nandini Satpati v. P.L Dani, Sunil Batra v. Delhi Administration,
Raghbir Singh v. State of Haryana, Khatri v. State of Bihar, State of U.P v. Ram Sagar Yadav, D.K
Basu v. State of West Bengal, Joginder Kumar v. State of U.P, Secretary, Hailakandi Bar Association v.
State of Assam, Nelabati Behara v. State of Orissa, Extra Judicial Execution Victim Families Associa-
tion (EEVFAM) and Another v. Union of India and Another, etc.

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administrative law, and so on, states are yet to give-up their sovereignty over criminal
administration within their respective territorial boundaries.
Despite the existence of numerous jurisdictional principles under international
criminal law, a clear-cut jurisdictional demarcation between domestic courts and
international tribunals is still a difficult task. Considering the exponential growth of
ICL in terms of number of crimes and modes of perpetration, the traditional judicial
institutions are no more sufficient to deal with all possible situations. The
conventional understanding of serious crimes under international law is in constant
transformation to encompass new forms of crimes like torture, terrorism, enforced
disappearance, and transnationally organised crimes. Such developments have led to
the growth of new forms of adjudicatory mechanisms like hybrid tribunals and
Russell tribunals. The following chapter addresses some of these issues in detail.

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