Dr Syed Nazir Gilani :
I am writing this column at 5.21am Geneva time and two days after its publication on Wednesday 14 March 2012 International Criminal Court (ICC) will issue in a public hearing at 10am a decision on the innocence or guilt of Thomas Lubanga Dyilo for War Crimes of enlisting child soldiers in Lturi. Mr. Lubanga is the former President of the Union des patriots congolais (UPC) and commander-in-chief of the forces patriotiques pour la liberation du Congo (FPLC). He has been charged with war crimes relating to the enlistment and conscription of children under the age of 15 years and using children to participate actively in hostilities. On January 26, 2009 Mr. Lubanga became the first accused to stand trial at the ICC.
The case is likely to have its ripple impact in Pakistan, AJK, Jammu and Kashmir and some other places if it is contested and argued that Kashmiri children under the age of 15 have been encouraged and allowed to participate in the militant struggle in Kashmir. There could be two different arguments on the justness of the militant struggle but there would be only one argument if we have used children under the age of 15 years of age. It can be robustly argued that taking a military action against Indian security forces, should have been left to the decision of 194 member countries of the United Nations. The authors of militancy may further be blamed for having caused a situation which has killed a generation in Kashmir and with it has killed the right of self-determination.
It has been very often raised in public debates that we should take Indian soldiers to ICC. It may have been a general statement at one point but after March 14, 2012 many in India, Pakistan and Kashmiri leaders (Political and Militant) may need to consult their Counsel.
It is a settled argument that no State can treat its people as it pleases. However, it is agreed that all States should have substantial and important powers within the scope of their right to political self-determination. The State itself has to be a legitimate State, that is, it must be a democracy, because only a democratic government is consistent with a state’s right to govern its territory, and impose duties of compliance on insiders and of non-interference on outsiders. Again the right to political self-determination is an irreducibly collective moral right held by legitimate states and groups that are willing and able to become legitimate states. Jill’s coup against Jack’s democracy can’t work. No matter how enlightened and effective a monarch Jill is, her political rule violates Jack’s autonomy.
In addition to this a Global Social Democracy movement of responsibility towards each other (developed towards developing) and how to meet this responsibility is under way. It has started creating a Global Civic Friendship. A progress towards future global civic friendship is the prerequisite for secure, informed and responsible love of country. The principle of Kindness and its limits have been recognised. The Principle of Sympathy has been grounded in Respect. It has started establishing a habitat of Globalizing Justice.
International Criminal Court is an important means to seek redress under International Justice.
The judicial ladder for a redress comprises of I. Domestic Fora, II. Coalition Fora , III. International Tribunals and IV. The International Criminal Court.
I. Domestic Fora - Any country’s domestic courts will have jurisdiction to prosecute perpetrators who have committed acts of terrorism against its nationals or on its territory. II. Coalition Fora - Coalitions of different international players can create a tribunal by treaty as an alternative to national courts. The parties to such a treaty may be a country and the United Nations, as is the case with the Independent Special Court for Sierra Leone. They may also be various states, as was the case with the Nuremberg and Tokyo tribunals. III. International Tribunals - Shifting one’s focus from coalition fora, one looks to existing international tribunals. Principal among these is the International Court of Justice (“ICJ”). The ICJ, however, has jurisdiction only with respect to disputes between states. The criminal acts of individuals are beyond its purview. Acts of terrorism, unless sponsored by a government, would not fall within the ICJ’s competence.
A second kind of international tribunal of great significance is the ad hoc variety established by the Security Council of the United Nations. Under Chapter VII of the United Nations Charter, the Security Council has the power to take measures to protect international peace and security. It was under its Chapter VII authority that the Security Council established the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”) in order to adjudicate the atrocities committed in those countries.
Most serious crimes of international law—war crimes, crimes against humanity, and genocide fall within the jurisdiction of ICC. The responsibility for investigating and prosecuting perpetrators of crimes within the ICC’s jurisdiction remains first with domestic courts. Principle of complementarity - grants jurisdiction to the ICC only when a country with primary competency is unwilling or unable to investigate or prosecute the crime at issue.
The threat of the Principle of Complementarity has various consequences for a country. First, it allays fears that the ICC may encroach upon the sovereignty of nations. Second, the mere existence of the ICC’s potential jurisdiction over certain crimes can act as an incentive for nations to incorporate those crimes into their domestic laws and so become vigilant in investigating alleged violations. Third, in the event that domestic courts do not adjudicate a matter within the ICC’s jurisdiction, the ICC itself will be able to, thereby both ensuring that serious crimes do not go unpunished and that a measure of retribution sanctioned by the international community is meted out against the perpetrators of heinous acts.
The ICC rules of evidence, witness protection, testimony, and trial have been specially tailored to fit the crimes within the Court’s jurisdiction. Additionally, the ICC’s punitive guidelines make provision for both restorative and compensatory measures, and institutional support will be further provided through the Victims and Witnesses Unit. These schemes are expected to yield positive results for law enforcement, victims, and the communities in which crimes are perpetrated.
ICC prosecutor has the mandate to investigate and prosecute the most serious crimes, namely war crimes, crimes against humanity, and genocide So far The Prosecutor has decided to open investigations in four situations (the Democratic Republic of the Congo; Northern Uganda; Darfur, the Sudan; and the Central African Republic). The situation in Darfur, the Sudan, was referred by the United Nations Security Council. "The Office of the Prosecutor (OTP) is also analysing situations on three continents including in countries such as Colombia and Afghanistan.
Indian Government seems to have got around the question of complementarity by allowing 304 cases to be registered against its security forces in Kashmir. Out of these 230 cases have already been moved in different courts in the State. Kashmiris may argue that it is not enough and much more needs to be done. It may be justifiably argued that many others in Pakistan, AJK, J & K and some other parts of the world may have a case to answer under the jurisdiction of ICC. After 14 March 2012 when ICC pronounces innocence or guilt of Mr. Lubanga every citizen around the world will wake up to his duty to Global Civic Friendship to work to enhance the constituency of ICC and will seek to put universality of justice high on the agenda.
(Author is London based Secretary General of JKCHR – NGO in Special Consultative Status with the United Nations. He can be mailed at dr-nazirgilani@jkchr.com)
The case is likely to have its ripple impact in Pakistan, AJK, Jammu and Kashmir and some other places if it is contested and argued that Kashmiri children under the age of 15 have been encouraged and allowed to participate in the militant struggle in Kashmir. There could be two different arguments on the justness of the militant struggle but there would be only one argument if we have used children under the age of 15 years of age. It can be robustly argued that taking a military action against Indian security forces, should have been left to the decision of 194 member countries of the United Nations. The authors of militancy may further be blamed for having caused a situation which has killed a generation in Kashmir and with it has killed the right of self-determination.
It has been very often raised in public debates that we should take Indian soldiers to ICC. It may have been a general statement at one point but after March 14, 2012 many in India, Pakistan and Kashmiri leaders (Political and Militant) may need to consult their Counsel.
It is a settled argument that no State can treat its people as it pleases. However, it is agreed that all States should have substantial and important powers within the scope of their right to political self-determination. The State itself has to be a legitimate State, that is, it must be a democracy, because only a democratic government is consistent with a state’s right to govern its territory, and impose duties of compliance on insiders and of non-interference on outsiders. Again the right to political self-determination is an irreducibly collective moral right held by legitimate states and groups that are willing and able to become legitimate states. Jill’s coup against Jack’s democracy can’t work. No matter how enlightened and effective a monarch Jill is, her political rule violates Jack’s autonomy.
In addition to this a Global Social Democracy movement of responsibility towards each other (developed towards developing) and how to meet this responsibility is under way. It has started creating a Global Civic Friendship. A progress towards future global civic friendship is the prerequisite for secure, informed and responsible love of country. The principle of Kindness and its limits have been recognised. The Principle of Sympathy has been grounded in Respect. It has started establishing a habitat of Globalizing Justice.
International Criminal Court is an important means to seek redress under International Justice.
The judicial ladder for a redress comprises of I. Domestic Fora, II. Coalition Fora , III. International Tribunals and IV. The International Criminal Court.
I. Domestic Fora - Any country’s domestic courts will have jurisdiction to prosecute perpetrators who have committed acts of terrorism against its nationals or on its territory. II. Coalition Fora - Coalitions of different international players can create a tribunal by treaty as an alternative to national courts. The parties to such a treaty may be a country and the United Nations, as is the case with the Independent Special Court for Sierra Leone. They may also be various states, as was the case with the Nuremberg and Tokyo tribunals. III. International Tribunals - Shifting one’s focus from coalition fora, one looks to existing international tribunals. Principal among these is the International Court of Justice (“ICJ”). The ICJ, however, has jurisdiction only with respect to disputes between states. The criminal acts of individuals are beyond its purview. Acts of terrorism, unless sponsored by a government, would not fall within the ICJ’s competence.
A second kind of international tribunal of great significance is the ad hoc variety established by the Security Council of the United Nations. Under Chapter VII of the United Nations Charter, the Security Council has the power to take measures to protect international peace and security. It was under its Chapter VII authority that the Security Council established the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”) in order to adjudicate the atrocities committed in those countries.
Most serious crimes of international law—war crimes, crimes against humanity, and genocide fall within the jurisdiction of ICC. The responsibility for investigating and prosecuting perpetrators of crimes within the ICC’s jurisdiction remains first with domestic courts. Principle of complementarity - grants jurisdiction to the ICC only when a country with primary competency is unwilling or unable to investigate or prosecute the crime at issue.
The threat of the Principle of Complementarity has various consequences for a country. First, it allays fears that the ICC may encroach upon the sovereignty of nations. Second, the mere existence of the ICC’s potential jurisdiction over certain crimes can act as an incentive for nations to incorporate those crimes into their domestic laws and so become vigilant in investigating alleged violations. Third, in the event that domestic courts do not adjudicate a matter within the ICC’s jurisdiction, the ICC itself will be able to, thereby both ensuring that serious crimes do not go unpunished and that a measure of retribution sanctioned by the international community is meted out against the perpetrators of heinous acts.
The ICC rules of evidence, witness protection, testimony, and trial have been specially tailored to fit the crimes within the Court’s jurisdiction. Additionally, the ICC’s punitive guidelines make provision for both restorative and compensatory measures, and institutional support will be further provided through the Victims and Witnesses Unit. These schemes are expected to yield positive results for law enforcement, victims, and the communities in which crimes are perpetrated.
ICC prosecutor has the mandate to investigate and prosecute the most serious crimes, namely war crimes, crimes against humanity, and genocide So far The Prosecutor has decided to open investigations in four situations (the Democratic Republic of the Congo; Northern Uganda; Darfur, the Sudan; and the Central African Republic). The situation in Darfur, the Sudan, was referred by the United Nations Security Council. "The Office of the Prosecutor (OTP) is also analysing situations on three continents including in countries such as Colombia and Afghanistan.
Indian Government seems to have got around the question of complementarity by allowing 304 cases to be registered against its security forces in Kashmir. Out of these 230 cases have already been moved in different courts in the State. Kashmiris may argue that it is not enough and much more needs to be done. It may be justifiably argued that many others in Pakistan, AJK, J & K and some other parts of the world may have a case to answer under the jurisdiction of ICC. After 14 March 2012 when ICC pronounces innocence or guilt of Mr. Lubanga every citizen around the world will wake up to his duty to Global Civic Friendship to work to enhance the constituency of ICC and will seek to put universality of justice high on the agenda.
(Author is London based Secretary General of JKCHR – NGO in Special Consultative Status with the United Nations. He can be mailed at dr-nazirgilani@jkchr.com)
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