Statement by Ambassador Narinder Singh

I would like to commend Professor Morten Bergsmo and his team for their dedicated and untiring efforts in planning the two seminars on “Historical Origins of International Criminal Law” and for bringing together the papers presented at the seminars held in Hong Kong (March 2014) and in New Delhi (November 2014) in Volumes 1-4 of the publication. I also commend the Centre for International Law Research and Policy (CILRAP) for supporting this very useful project.

The contributors are from different parts of the world covering all continents and come from various backgrounds and experiences and include:  Judges and prosecutors of international and regional courts and tribunals; human rights experts; officials of intergovernmental organisations; ICRC experts; academics, including senior professors and research scholars.

The papers presented at these seminars provide a rich source of information from a wide variety of sources of the manner in which international criminal law has developed and been shaped in the past. In this regard, I would like to briefly recall the contribution of the International Law Commission (‘ILC’) to the development of international criminal law. 

International Criminal Court

It may be recalled that the Rome Statute of the International Criminal Court (‘ICC’) is based on the Draft Statute finalised by the ILC in 1994. As early as its second session in 1950, the ILC, in response to a request by the United Nations General Assembly made in the context of the Genocide Convention, concluded that the establishment of an international judicial organ for the trial of persons charged with genocide or other crimes was both desirable and possible.

At its forty-fourth session in 1992, the ILC had proposed that the court to be established would be a facility for States Parties to its statute, which could be called into operation whenever and as soon as required, and which at least in the first phase of its operation should not have compulsory jurisdiction and would not be a standing full time body. At the General Assembly, my country, India, emphasized that in order for the court and its judges to be truly independent in their functioning, the court must be a permanent full time body.

At the time of speaking (November 2015), the ILC had on its agenda, two topics related to international criminal law: (1) Immunity of State Officials from Foreign Criminal Jurisdiction, and (2) Crimes against Humanity.

Immunity of State Officials from Foreign Criminal Jurisdiction

The ILC considered that there was a real and immediate need for codification on this topic given the attempts by States to exercise universal jurisdiction and other types of domestic criminal jurisdiction, including extra-territorial jurisdiction, in the context of efforts to combat gross human rights violations, acts of terrorism, transnational crimes and money laundering.  

It may be noted that while there are a number of international conventions which deal with the immunities of certain specified categories of State officials from foreign national criminal jurisdiction, such as those dealing with diplomats and representatives of member States or officials of international organisations, the principal source of international law in relation to the immunity of State officials from foreign criminal jurisdiction is international custom and was therefore considered a topic suitable for codification.

It may also be noted that the topic under the ILC’s consideration relates to the immunity of State officials from the criminal jurisdiction of another State, and does not in any manner affect the jurisdiction that any international court or tribunal may exercise over such officials. 

Crimes against Humanity

The ILC started work on this topic at it’s 2015 session. It was considered that a global convention on crimes against humanity appears to be a key missing piece in the current framework of international humanitarian law, international criminal law and international human rights law.

Such a convention would: promote general co-operation among States in the investigation, prosecution and punishment of persons who commit crimes against humanity, as the ICC only regulates relations between the ICC and the States Parties, but not among States Parties themselves; enhance the principle of complementarity as it would promote active co-operation among States in prevention and prosecution of such crimes; and it would help fill a gap in the current legal regime as the Convention would require enactment of national laws that prohibit and punish crimes against humanity which many States have not done so far.

Other topics in the area of international criminal law considered by the ILC include:

• Formulation of the Nuremberg Principles;
• Draft Code of Offences against the Peace and Security of Mankind;
• The question of defining Aggression;
• Prevention and Punishment of crimes against Diplomatic Agents and other Internationally Protected Persons; and
• Obligation to Extradite or Prosecute.

This demonstrates the valuable contribution that the ILC has made to the development of international criminal law.

Before I conclude, I once again would like to congratulate Professor Bergsmo and his team for the excellent work done in organizing the two seminars and for bringing together the papers presented at the seminars, and also thank him for giving me the opportunity to be present here today on this important occasion of the launch of Volumes 3 and 4 of the publication.