In a landmark judgment delivered in May earlier this year, the Argentinian Federal Court of Appeals reversed a previous verdict and decided to pursue a case against Myanmar’s leader Aung San Suu Kyi and other senior officers for committing atrocities against the Rohingya in Myanmar.
In September 2020, a clarification was sought from the prosecutor of the International Criminal Court (ICC) on whether the universal jurisdiction would duplicate or disrupt the ICC’s investigation. Additionally, the matter is also pending in the International Court of Justice (ICJ).
The Rohingya refugee conflict began in 2012 in the Rakhine state in Myanmar where thousands of Rohingya were systematically killed and forced to flee to nearby countries which included India and Bangladesh. The admission of the claim in Argentina brings a sense of hope for justice for the persecuted community, which has been left homeless for years now.
While it is not clear how the court would go about gathering evidence and summoning Myanmar’s top leaders, the fact that a court located in the opposite part of the globe has been able to take cognisance of the case under the principle of universal jurisdiction is quite remarkable. And it begs the obvious question — what legal framework does India have to deal with serious international crimes in India? What is universal jurisdiction and how does India approach it?
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The use of universal jurisdiction globally
Universal jurisdiction is a unique concept which, in its broadest sense, allows states to exercise criminal jurisdiction against a person accused of grave international crimes regardless of the place in which the crime was committed or the nationality of the accused or the victim.
Certain countries have used this principle to try individuals in the past and as per a report published by Amnesty International in 2012, various states have incorporated different forms of universal jurisdiction for genocide, crimes against humanity and torture.
In certain countries, the constitution itself gives states the power. For instance, Section 118 of the Argentinean constitution allows for domestic jurisdiction over crimes committed outside Argentinean territory if the crime is incompatible with international law. Other countries have adopted different approaches to deal with universal jurisdiction. For instance, countries such as Switzerland, the Netherlands, France etc. have passed legislation to give effect to universal jurisdiction and provided procedural requirements to exercise it. A recent study by TRIAL International analyses the scope and extent of universal jurisdiction in some of these countries.
File Photo: Myanmar’s leader Aung San Suu Kyi speaks on the second day of hearings in a case filed by Gambia against Myanmar alleging genocide against the minority Muslim Rohingya population, at the International Court of Justice (ICJ) in The Hague, Netherlands December 11, 2019. Photo: Reuters/Yves Herman
International crimes and universal jurisdiction in India
India has so far failed to criminalise grave international crimes such as genocide and crimes against humanity. It ratified the Genocide Convention, 1951 in 1959. However, to date, there exists no domestic law on genocide. Also, India has not yet included the provision on crimes against humanity in its domestic criminal code. Although the Rome Statute of the International Criminal Court defines genocide, crimes against humanity and war crimes in 2002 (and the crime of aggression in 2010), India is not a state party to the statute.
One of the Acts that specifically deals with war crimes in India pertains to the Geneva Conventions Act, 1960 which was passed to give effect to the Geneva Conventions, 1949. Although the Act provides ground for the universal jurisdiction for the grave breaches of Geneva Conventions, the statute has rarely been used by courts and suffers from various infirmities. Lastly, while the Indian Penal Code, 1860 has a provision that provides for extra-territorial jurisdiction for crimes, the provision has a very limited scope, it is archaic, and does not specifically deal with the principle of universal jurisdiction.
Also read: The ICJ’s Ruling on the Rohingya and What It Means for India and the CAA
Universal jurisdiction as a symbol of hope?
Universal jurisdiction has various limitations and it is certainly not a magic wand that provides a one-for-all solution to the problems. Summoning the authorities from a different country and taking them to a trial is no easy task. However, it is worth noting that universal jurisdiction has the potential to strengthen justice in the international sphere.
One of the classic examples in the recent past pertains to the case filed in 2010 in an Argentinian court against the human rights abuses committed under the Franco dictatorship in Spain. Although specific individuals in Spain could not eventually be tried, the process triggered the exhumation of bodies of those who had been buried in mass graves during Franco’s dictatorship. Whatever may have been the political inclinations behind this case, the Argentinian court’s decision coupled with the historical and political connect between Argentina and Spain created an impact that reverberated across judicial circles. These instances provide a sense of hope for the victims and encouraged them in their fight for justice.
Likewise, Myanmar’s history is tied with that of India’s. Actions of neighbouring states have the potential to create an impact and although India has accepted many refugees, efforts must be taken to pressurise Myanmar to cease the violations. Rohingyas in India have been living in constant fear, surrounded by an environment of hatred and animosity.
Furthermore, there have been instances where India has deported some refugees back to Myanmar. To cease the deportation of refugees, an intervening application was filed in the Supreme Court in 2017 as these actions ran contrary to various international norms. The case is still pending in the Supreme Court and no concrete outcome has come from it so far.
Sadly, there exists no legal structure in India to exercise universal jurisdiction for serious international crimes. To make universal jurisdiction a reality, it would be necessary to legislate on serious international crimes such as genocide and crimes against humanity.
India has seen its fair share of mass violence in different parts of the country and the need to introduce these laws is therefore imminent. At the same time, states need to make a stronger commitment to the world community towards better prospects of peace and justice.
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Exercising universal jurisdiction can be one of the ways of furthering this commitment. Such an action would also be of symbolic significance for victims who can be assured that they are not alone in this fight and that the neighbouring states, in which they are seeking refuge, do share their quest for justice.
Arunav Kaul is a lawyer and currently pursuing his masters in Transitional Justice and Human Rights from Geneva Academy. Views are personal.