7/31/2021 Dispute Resolution in International Space Law: A Dearth of Relief for Non-State ActorsRead NowThis article is authored by Garima Khanna and Priankita Das, currently fourth year students at Dr. Ram Manohar Lohia National Law University, Lucknow, pursuing the B.A.LL.B. (Hons.) course.
INTRODUCTION When international space law emerged as a distinct field of study, there were only a few players in the spacefaring league and hence, scope of disputes among them was minimal. However recently, the whole ball game has transitioned with big names like Jeff Bezos, Elon Musk and Richard Branson eyeing the bounds of space, which is a territory that offers bountiful opportunities that can be availed only by some. There additionally are entities like Blue Origin and SpaceX which seem like the biggest stakeholders yet. Despite this, the United Nations (“UN”) and the Space Conventions (“Conventions”) fail to recognize or even acknowledge the presence of Non-State Actors in their dispute resolution mechanisms. ‘State sovereignty’ has always been put up on a higher pedestal, thus causing hesitation in providing private players with an appropriate legal channel. Thus, an international dispute resolution mechanism which is binding and comprehensive enough to make “space” for non-state entities is the need of the hour. LACK OF RECOURSE TO DISPUTE RESOLUTION CHANNELS None of the Conventions on outer space provides a binding framework for dispute resolution, and this gap seems intentional. Though activities in outer space became a reality half a century ago, the risks pertaining to it were colossal, and thus, states were reluctant to accept the compulsory jurisdiction of an international tribunal. Even though State actors have a recourse by means of Article 2(3) of the UN Charter which obligates parties to settle disputes in a peaceful and amicable manner, parties are often torn apart between this duty and the absence of adequate framework. As for Non-State Actors, there is an altogether lack of recourse available in international law. This gap has even been addressed in the UN wherein Hon’ble Judge Pocar had expressed concerns regarding the existing dispute resolution procedure in the fifty-first session of the UN Committee on the Peaceful Uses of Outer Space (“UNCOPUOS”). He observed, “international space law showed a number of lacunae due to limitations in their personal or material scope which made them unavailable to private parties or only available for restricted ranges of disputes.” As it exists today, the Outer Space Treaty, being the magna carta of space law, goes no further than demanding co-operation and consultations between State Parties, which is a traditional resolution mechanism running parallel to the one provided by the UN Charter. This typically aids only in the avoidance of tensions between the parties instead of solving them with concrete tangible solutions. Only the Liability Convention provides for State Parties to engage in diplomatic negotiations in case of a dispute; and if the parties fail to reach a settlement, they shall have to establish a Claims Commission that is empowered to decide on the merits of the case. Thus, even the handful of provisions under the Conventions that touched upon dispute resolution solely called for consultation proceedings, which are not obligatory for third party dispute resolution. In addition to this, while States have the flexibility to declare themselves subject to the compulsory jurisdiction of the International Court of Justice (“ICJ”) on a case-to-case basis or by unilateral declarations, a non-state entity cannot be heard before the ICJ. Thus, the only ray of hope for the Non-State Actors remains national jurisdiction, which further complicates things. Owing to reasons such as the courts in the host state being less-equipped to deal with cross-boundary disputes; situations favouring the host state, and parties being dissatisfied with the decision due to the decision not being in line with their goals, there seems to exist numerous other factors that needs consideration before resorting to this mode. In the authors’ view, these methods are neither sustainable nor practical. Thus, an exhaustive regime in the form of an elaborate legal instrument is required to facilitate all conflicts, whether between States; between Non-State Actors, or between the two arising in the space sector. RECOMMENDATIONS Keeping all the aforesaid considerations in mind and taking into account the increasing participation of Non-State Actors in outer space activities, it is imperative to decipher their place in the dispute resolution mechanism of international space law. For this, the authors have come up with a two-pronged approach - firstly, the Non-State Actors could be represented by the States Parties to the Conventions before the ICJ; and secondly, if the parties so desire, they could utilize the Alternative Dispute Resolution (“ADR”) mechanisms available to them under national and international law. State Representation on behalf of Non-State Actors Traditionally, only States are permitted to be parties to a dispute before the ICJ. However, there have been instances where the States have represented individuals or corporate entities before the ICJ while dealing with issues involving their rights and obligations. This indicates that representation of Non-State Actors before the ICJ by way of State involvement is not a new phenomenon, and thus, can be employed by private players in the present day and age. To further support this, reliance shall be placed on certain Conventions to exhibit a link between the State Parties and Non-State Actors. The Outer Space Treaty permits States Parties to use and explore outer space in accordance with international law. Further, it states that State Parties shall bear international responsibility for activities conducted by non-governmental entities, and shall be required to authorize and continually supervise such activities. In addition to this, the Registration Convention requires State Parties to maintain a national registry of all objects (whether private or government) launched into outer space from their territory, over which they shall retain jurisdiction and control. Thus, it is implied that all outer space activities, whether by State or Non-State Actors, are under the jurisdiction and supervision of the State Parties to the Conventions. However, issues persist with the aforementioned mechanism firstly, States may not deem it politically favourable to represent Non-State Actors before the ICJ; secondly, the decision of the Claims Commission is non-binding unless the parties agree otherwise; thirdly, it is limited to disputes arising out of the Liability Convention; and finally, it lacks precedence. The only claim that ever arose under the Liability Convention was that of the Cosmos 954 case, but that too was later settled between the USSR and Canada by the signing of a protocol that had no mention of the Liability Convention. Thus, it can be stated that State representation is not the best solution for Non-State Actors looking to settle their disputes. In lieu of this, the authors suggest a second mechanism for conflict settlement, which is - utilisation of ADR mechanisms by Non-State Actors. Utilisation of ADR Mechanisms The use of ADR in contemporary times has been widely encouraged due to its flexible, confidential and speedy process. Many commercial and investment disputes have been settled with the help of these measures. Thus, it is natural to discuss their applicability to space disputes as well. In 2011, the Permanent Court of Arbitration, which is predominantly reserved for settlement of disputes between States, came up with its “Optional Rules for Arbitration of Disputes Relating to Outer Space Activities,” (“Rules”) based on the 2010 UNCITRAL Arbitration Rules, and envisages dispute settlement through arbitration between State, as well as Non-State, actors. The Rules also provide for a broad scope of application, which would address all space-related disputes, and with the issue of technicalities of space activities. This can be done by creating a provision that would enable parties to submit a document to the arbitrators, summarizing the technical aspects of the case. Apart from this, the International Law Association (“ILA”) has adopted an “ILA Draft Convention on the Settlement of Space Law Disputes,” which puts States at par with Non-State Actors for the employment of their dispute settlement mechanisms, thus providing them with more options for the utilization of ADR methods. In addition to this, the usage of Investor-State Arbitration has also been tested and approved in the space sector, with three cases already having arisen in the existing framework of Investor-State Dispute Settlement. Thus, the use of ADR Mechanisms seems to be a favourable solution for Non-State Actors looking to settle their space disputes without the involvement of their States. Furthermore, an arbitral award or any other decision coming from a tribunal would rather have an effect of a binding decree, unlike the recommendatory decisions under the Liability Convention that seems to be hanging by a thread. CONCLUSION With the rise of activities and competing parties in the space arena, it is important to take note of the reliefs available to both State and Non-State Actors in international space law for dispute settlement. The present Conventions were formulated in an era where these activities could not be conceived, thus the drafters of these Conventions did not deem it necessary to address the issues of dispute settlement between Non-State Actors. However, we have come light-years ahead in terms of scientific and technological advancements, and thus, these Conventions have become outdated, and there arises a necessity to address the lacunae present therein and deal with the ever-changing times and circumstances. Certain scholars have suggested the establishment of a separate international tribunal catering only to space law disputes, but the authors are of the view that the feasibility of the existing mechanisms, i.e., State representation and ADR mechanisms, should be tested first. If a system of ADR were to be developed wherein the principles of the Conventions were imbibed and the settlements were made binding upon the parties, it would be the ideal forum for all space related disputes. Moreover, the use of ADR would encourage more investors to step into the arena of space activities, and thus, lead to further technological and scientific advancements. Therefore, the authors advocate for the use of ADR for settlement of disputes between both State and Non-State Actors in international space law.
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7/26/2021 Facebook Evidence & International Criminal Court: Is It Finally the Hour to Rule on its Admissibility?Read NowThis article is authored by Astha Bhattacharya, currently a second year student at National Law University Odisha, Cuttack, pursuing the B.A.LL.B. (Hons.) course. Introduction
The Nuremberg trials paved the way for the first international criminal trial, marking the dawn of a new beginning for international criminal jurisprudence. But even after seventy-five years, the struggle against impunity still continues. In the recent years, there has been a surge in evidences derived from open sources, especially through platforms like YouTube, Instagram, and Twitter which has massively transformed the way criminal prosecutors and investigators acquire, examine and produce evidence in a court of law. It is the prosecutor's responsibility to produce a substantial level of proof for backing their legal arguments, and to clarify the conflict's backdrop and the primary components of offences along with the modalities for accountability. Social media proof, under this paradigm, can provide significantly more information than just about any other type of source. However, its dark reality shows us the convenience with which the offenders can distort social networking sites, the paucity of requirements and regulations to establish the ownership of the Facebook pages, groups, posts and online communications, and the vast quantity of such testimonies. By making a comparison between the Bemba et al. case and the recent Yekatom and Ngaïssona case, this article explores the domain of admissibility of facebook evidence in the International Criminal Court. Facebook proof is the only social media evidence which imposes a unique obstacle of determining ownership and veracity, despite the fact that it is by far the most frequently utilized social media platform. Additionally, the forthcoming ICC trials, such as Al-Werfalli, Said, and Gicheru, are anticipated to pose identical troubles, given that almost all the concerned events had occurred post 2012, when Facebook had already established itself as a prominent social networking site. As a result, the moment has arrived for the International Criminal Court's Chambers to decide on the admissibility and appropriate significance of Facebook evidences in its cases. The evolution from the Bemba et al. case to Yekatom and Ngaïssona The admissibility of Facebook evidence in the ICC was first addressed through the Bemba et al. case. In this case, on the receipt of an anonymous mail, which warned the investigator of the practice of witness bribing, the prosecutors had charged the defendants for violations under Article 70 of the Rome Statute of the International Criminal Court. In Bemba, the suspect was acquitted of all charges of command responsibility in the Central African Republic's 2002-2003 military war, which featured the government, aided by the MLC group and headed by Bemba on one side, against the insurgents led by General Bozizé on the other. It was through four images acquired from Facebook that the prosecutor tried to connect witnesses and verify additional proof. As a response the defendant stated that the pictures were not prima facie genuine or dependable as setting up of a Facebook account does not demand a legitimate and traceable identification. As a result, it was impossible to determine whether a Facebook profile with a certain username belonged to that individual. The prosecution disagreed with this argument. However, the court did not ponder upon and resolve this issue in its final judgment, presumably because many other types of proof, such as eyewitness accounts supported what the images were supposed to illustrate. On the contrary, in the case of Yekatom and Ngaïssona, the accused were suspected of crimes against humanity and war crimes towards citizens of Islamic Heritage in the Central African Republic between December 2013-2014. The prosecution's strong dependence on Facebook data is explained by the conflict's temporal span. The prosecution in this case heavily relied on Facebook evidence to prove the suspect’s intention and motive to confirm that the crimes against humanity and war crimes were undertaken by the defendant, subsequently trying to assert their case theory. In its opening arguments, the Ngaïssona counsel contended that Facebook conversation does not meet the highest factual level required by the Court, and that they will hence, contest such proof. The ICC's options for handling Facebook proof and the future ahead The Rome Statute and Rule 69 of the ICC Rules of Procedure and Evidence defines the admission of evidence in the ICC. According to it, evidence would be accepted if it passes a three-part test namely (i) relevance, (ii) probative value and (iii) absence of prejudicial effect. Despite the fact that the ICC Court has traditionally given more weight to witness evidence, they now urge parties to submit any tangible evidence, including digital proof, to establish that the material presented at trials is complete. Following the admission, ICC judges assess the probative value and "appropriate weight" of the accepted proof in compliance with Rule 63(2) of the Regulations. This happens at the completion of a trial, when all the evidences are being evaluated thoroughly. After deeming the evidence trustworthy, the court assigns it a weightage depending on its usefulness in furthering the court’s investigation. As indicated in the introduction of this article, the ICC Chamber prefers to encourage parties to present material that validates their case theory. In addition, the Chamber will, in essence, accept proofs that fulfill the Court's social media evidence admissibility criteria, as outlined in the ICC's e-Court Protocol. Ultimately the final weight that the Trial Chamber V will give towards such a proof is the major determinant. Conferring Facebook evidence with a high probative value will indeed indicate that it would eventually suffice to substantiate several aspects of the prosecution’s arguments. Nonetheless, it raises grave reservations regarding fair trial, especially if the evidence is assembled in such a manner that it makes a case conclusive and further trying to edit it would only deter the Court from finding the truth. Furthermore, as open-source investigations are contemporary and challenging, use of technology which the defense counsel and the Chamber might not have expertise and skills in would lead to a compromise in questioning of the suspects. Moreover, the large amount of proof which the defense has to handle and possibly contest at the advanced stage of the trial might pose a challenge. On the other hand, if accorded with low probative value and not backed by additional proof, the evidence will not be enough to prove a substantial fact and much of the case theory of the prosecutor will remain unsubstantiated. Allowing Facebook and other social media communications to have a low probative value in this as well as subsequent cases might thus weaken the Court's truth-finding purpose in the future. Conclusion In international criminal law, obtaining sufficient and exact proof about the occurrence of core crimes continues to pose a significant problem. However, to narrow this issue, the role of open sources like Instagram, Twitter, YouTube and Facebook is crucial as they have become part and parcel of our daily existence. Even though the value which open source digital evidence adds to a particular trial is immaculate which can prove to be beneficial in the long run for investigatory deadlocks in a number of cases (like Syria and Myanmar), we should not turn oblivious to the threats posed by it. The acceptance of open source evidence raises concerns on the grounds of credibility, authenticity, impartiality, and ability to add more insights and its consequent impact on fair trial rights. The application of the Berkeley Protocol on digital open source investigations becomes important to counteract risks posed by open source evidences. However, there is a need to expand the scope of the Berkeley Protocol and vigilantly assess such evidences even during its pre-trial and trial phases to ensure that the defendant’s interests as well as the integrities of the proceedings are protected. As it is imminent that new cases will emerge during this era when every second individual operates a social media account, we cannot turn Nelson’s eye towards the fact that there is a need to include more social media and facebook specialists, having knowledge of the most recent as well as the older programming languages and software in the prosecution and the defense investigations. The involvement of the defense in investigation and acquiring proof earlier than their anticipation will also provide the ICC with more leeway in assessing this type of evidence in the forthcoming trials and also provide a small window to the defense to assess and prepare their arguments against the large quantity of evidences. The admissibility of Facebook evidence in the International Criminal Court would indeed be a crucial facet in the forthcoming trials of the ICC. However, at the same time, its admissibility should be reviewed on judicial grounds so that any disadvantages attached to it do not hamper the impartial trial of a case. 7/23/2021 Danish asylum law’s relationship with refugee human rights is hanging by the threadRead NowThis article is authored by Swetha Somu, currently a second year student of the Gujarat National Law University, Gandhinagar, pursuing the BBA. L.LB (Hons.) Course.
On June 3rd, the Danish parliament accepted the amendments to the Danish Aliens Act which intends to transfer refugees seeking asylum to a non-EU host country until their application is reviewed. However, the accepted applicants will not be brought back to Denmark but will be offered protection in the host country itself. This implies that asylum-seekers won’t be granted protection within the territory of Denmark, hence violating the guaranteed human rights under various regional and international laws on refugees seeking asylum and protection of life. Brief background Denmark’s asylum seekers figures peaked in 2015 with 21,316 applicants but in the subsequent years, this figure decreased. From the 4,16,600 asylum seekers across EU member states in the year 2020, only 1,515 people sought refuge in Denmark, out of which merely 601 individuals were accepted. In contrast, Sweden and Germany are generous in the acceptance of refugees. For example, in Sweden, refugees are given money for accommodation, medicine and leisure activities. They are given work permits after receiving refugee status. This not only benefits the refugees but provides them support and sustenance to live a satisfactory and peaceful life. The basic right to have a peaceful and secure life is ingrained under Article 3 of the Universal Declaration of Human Rights (UDHR). Deprivation of this right is unfair, unjust and inhuman. Thus, Denmark should acknowledge the impacts of itsnew amendment on the refugees and strive to achieve collective welfare of the global citizens. How does it affect the refugees? The idea of “zero asylum seekers” was once again brought up by Danish’s Social Democratic Prime Minister Mette Frederiksen. The incumbent social democrats based this ideology of bringing up a new asylum system in which the Danes’ territory doesn’t play any role in hosting or protecting vulnerable refugees. The reason given for this is that it will stop the refugees from undertaking a difficult and dangerous journey through the Mediterranean Sea to reach Denmark. This vision is justified to as it stops the refugees from jeopardizing their lives to seek asylum in Denmark. Hence Denmark has drawn up a plan to “outsource” the asylum to third-world countries to host the refugees on behalf of Denmark. In accordance to the plan, Denmark recently signed a Memorandum of Understanding with Rwanda to outsource Denmark’s asylum system and provide protection to refugees in Rwanda’s territory. Additionally, Denmark is in talks with Ethiopia, Egypt and other countries in hosting its refugees. What is observed from this “outsourced” asylum procedure is that most of them resort to illegal means like the migrant smuggling network to traverse across borders to eventually to end up in European countries. Migrant smuggling is a recognized crime under Interpol. “Hazardous routes, overcrowded boats, abandonment, and forced criminality are just some of the dangers faced by migrants once they set off.” Hence the illegal means of travel might be even riskier for the persecuted refugees than the sea route thereby countering the Social Democrats’ arguments. Moreover, it’s worrisome that although the refugees are being sent to third world countries for seeking asylum in Denmark, they still have to reach Denmark for an asylum application. Therefore, the risky journey in search of protection has not stopped either way. Additionally, another cause of concern is that the refugees would now be creating an influx in neighboring countries of Germany, Sweden, France and Italy for which they have to come via the dangerous sea route again thus, defeating Denmark’s justification for amendment. The influx in immigrants will reduce the probability of acquiring the refugee status there hence putting them into more turmoil in search for shelter and security. An important point to note is when Henrik Nordentoft, the UNHRC representative of the Nordic and Baltic countries, expressed his concern on the implementation of the new amendments creating a “domino effect” whereby the other European countries could also search for different options to mitigate their human rights obligation. They could get inspired by Denmark’s move and tighten their anti-refugee law stating self-interest reasons. This will only add up to the difficulties which the refugees face while seeking refuge, as many doors to seek protection and livelihood are shut. Thus, the international spirit of humanitarianism is lost as the vulnerable are left to suffer. In the end, it all comes down to the refugees being let down by a potential safe haven like Denmark thus making it hard to enjoy their basic right to life and right to security as an ordinary human. Denmark’s violation of international and regional law To start, Article 14 of the (UDHR) states that an individual has the basic right to seek asylum from persecution in any country. Further, Vienna Declaration and Programme of Action 1993 reiterates the right to seek asylum. The Asylum Procedures Directive, which Denmark is not a part of, provides the right for the asylum applicants to stay in the destination territory of an EU member state till the decision on the application is taken. Even though the UDHR and Vienna Declaration are legally non-binding, the 1951 Refugee Convention, to which Denmark is a signatory, is legally binding. Article 33(1) of this convention provides for the non-refoulment of vulnerable refugees. The amendments whereby Denmark is sending the refugees back from their territory to another third-world country thus waiving off their international obligation therefore go against this provision of the convention, causing concern to the United Nations and European Commission. As mentioned in the Preamble of the 1951 Refugee Convention, granting asylum is a financially burdensome procedure. However, the signatories should striveto give their maximum contribution for this humanitarian cause. It is very upsetting to seean economically well-off country like Denmark avoiding humanitarian responsibilities by strengthening anti-refugee laws. In addition to these laws, Denmark is legally-bound by the Charter of Fundamental Rights of the European Union which guarantees the right to asylum as per the rules of the Refugee Convention 1951 and its subsequent protocol in 1967(Article 18).Another Convention to be looked into is the European Convention on Human Rights (ECHR)which, although doesn’t explicitly provide the right to asylum, provides for the absolute right to life (Article 2) and the right against torture, inhuman treatment or degrading punishment (Article 3).The court in Gebremedhin v. France stated that these two articles can come into play to stop the refoulement of refugees and instead, they should be able to apply for asylum in that country. Further, under Articles 3 and 4 of the Schengen Borders Code, the border force is obliged to respect refugees’ rights and request for international protection. Thus, Denmark is obliged to provide capable support and protection to refugees at the borders. They should not waive off their rights by transferring the refugees to some other third country in the name of providing protection through that third country, thereby shifting the burden and responsibility away from Denmark. Conclusion In sum, Denmark’s move to eliminate refugees on its soil will be the start of the degradation in international commitment to provide protection and asylum to vulnerable refugees. Denmark should be held liable under the 1951 Refugee Convention for the refoulement of refugees; Charter of Fundamental Rights of the European Union for the failure to grant asylum in its territory; the ECHR for the deprivation of the right to enjoy one’s life and the right for seeking security and lastly, for the breach of the Schengen Borders Code. If Denmark is let loose with the repulsion of its refugees, the international commitment to collectively safeguard the rights and provide adequate protection to the asylum-seeking refugees will deteriorate. Many more countries will bring in newer justifications to protect self-interests and avoid international obligations which will only damage the collective welfare of humanity. Thus, powerful international actors like the EU and the UN must proactively step in and engage in talks with Denmark so that refugees’ human rights are protected and that the international commitment and cooperation remain unhindered. The future steps taken by these actors should send a strong message across the world that the refugees rights are respected and are not forgone at any cost. This article is authored by Ishi Rohatgi & Sanya Sethi, currently, third year students of the Jindal Global Law School, pursuing, the B.A. LL.B course.
Introduction International Humanitarian Law (IHL) gained traction in the 19th century, however, the principles of this law were rooted in the ancient civilizations. Ancient India is regarded as a harbinger of such principles which perceived war as undesirable and advocated for peaceful negotiation before use of force. These principles were codified in the Rig Vedas, Manusmriti and through customs.[1] An important turning point in Ancient India took place with the Kalinga War in 256 BC. The war, described as a deadly war, entailed suffering and violence on the battlefield. On witnessing the suffering that it caused, Ashoka renounced war and promulgated his rock edicts to encompass his policy of Dhamma. [2] This policy of Dhamma was secular in nature, and focused on the moral teachings including non-violence, equality of law and non-discrimination. While he rejected aggressive warfare, Ashoka was comfortable with conquest through the policy of dhamma. However, this had to be accompanied with light punishments, and no torture. He preached this policy not only in his empire, but also to his neighbors and maintained friendly relations with them. The significance of this war and the policy of Dhamma can be seen through the modern-day efforts to humanize armed-conflicts.[3] Human rights and IHL aim to ensure that the world does not have to witness a modern-day Kalinga. This paper focuses on how the policy of Dhamma has been incorporated in IHL, and its present-day implications on armed-conflicts. International Humanitarian Law and Dhamma Geneva convention is one of the earliest attempts by modern states to acknowledge and improve humanitarian conditions during wartime. The Geneva Convention came into force in 1863 but has undergone major improvements after World Wars I & II, which were instrumental in identifying areas where the convention lacked.[4] The widespread suffering caused in the wars prompted the states to improve the humanitarian conditions of the war, similar to what Ashoka went through. The International Committee of Red Cross (ICRC) which is given the right to assist the wounded, the sick, captured civilians,[5] bears resemblance to the office of Mahamatras who attended to the needs of Ashoka’s empire.[6] The most important aspect of both the Geneva Convention and the Policy of Dhamma was the treatment of the prisoners of war. This includes humane treatment, access to sufficient food, clothing, medical care and housing. They can be tried by the laws of the captor country, but the process must be impartial and without discrimination.[7] Ashoka believed that if the war is necessary, it has to be accompanied with light, reformatory punishments, and there must be equality of law. [8] Article 35 of Protocol I bans the use of weapons which cause unnecessary suffering and damage to the natural environment and aims to prohibit aggressive warfare. At present, most armed-conflicts arise due to internal conflicts. In pursuance of this, Common Article 3 extends its applicability to such conflicts as well. Similarly, while Ashoka had largely envisaged war with enemies and neighbors, he was cognizant of the conflict existing within his own empire owing to the hierarchies of the caste system. [9] With the progression of such internal conflicts, this was a necessary element added to the Geneva convention. Furthermore, Article 5 of the Rome Statute, the treaty that established the International Criminal Court (ICC) enumerates some of the most serious crimes in International Law, which include genocide, war crimes, crimes against humanity and the crime of aggression. Additionally, under Article 8 of the Rome Statute, a grave violation of the Geneva Conventions is considered to constitute a war crime.[10] It can be argued that Ashoka’s policy of Dhamma resonates in the preamble to the Rome Statute of the ICC. It acknowledges that such grave crimes threaten the peace, security and well-being of the world, similar to what Ashoka promulgated in his 13th rock edict[11] which emphasised on conquest through peace and non-violence, and not war. The preamble also acknowledges that different cultures are pieced together in a shared heritage and this delicate mosaic may be shattered at any time due to which it becomes important to tolerate differences in opinions as they are not conducive to happy relationships, something which was also propounded by Ashoka through his 12th rock edict.[12] Moreover, he was in favour of distributing the task of implementation of dhamma to selected officials (Mahamatras) who would act as intermediaries between him and his people, different from the usual functionaries of bureaucracy[13] which is similar to the role of the independent permanent ICC which acts as an intermediary between the party states and the international community as a whole. Moreover, the Office of the Prosecutor[14] (OTP) which acts as an independent organ of the ICC acts as an intermediary between the Court and the parties to a particular matter. Lastly, enslavement is prohibited as it is considered a crime against humanity,[15] and even Ashoka was particularly concerned about the relationship between the servants and masters, as well as the treatment of prisoners[16] because he believed that these should be the subjects of general concern in any society. Present-Day Implications and Challenges While IHL echoes the principles laid down by Ashoka, their real value comes from their effectiveness during the armed-conflicts. During the Eritrea & Ethiopia war, ICRC visited over 1,000 Ethiopian Prisoners of War and 4,300 Civilian internees. They were also successful in exchange of messages between the prisoners and their families. ICRC played a similar role in Iraq in 2003-2004, in the Russian & Georgia War in 2008, and many others.[17] However, the violations of the Geneva Convention are much more prevalent than its benefits. Inhumane treatment of prisoners, murder, torture, and the suffering of civilians is part of every armed-conflict. [18] Moreover, Geneva has failed to keep up with the pace of the changing nature of war. The ambiguities that exist within Common Article 3 has provided states with a loophole to evade this provision altogether.[19] Moreover, the growing use of private military, security companies, and other non-state actors, who have made civilians as their soft target are just some of the ways that the Geneva convention falls short. [20] The Syrian conflict, which has lasted for over 10 years has been one of the worst violators of the provisions of the Geneva convention. While the ICRC is able to deliver some medical care, and relief supplies,[21] the reality of the conflict is marked by the use of weapons of mass destruction, bombing of hospitals, schools, along with arbitrary detention of people.[22] The conflict in Sudan was marked by similar violations, including burning people alive, killing people with disabilities and so on. Syria and Sudan have made rampant use of chemical weapons, cluster munitions and landmines, weapons which have been expressly prohibited by the Geneva convention.[23] While the Geneva convention has been ratified by most countries, it is mostly neglected. For instance, in 2015, in Kunduz, Afghanistan, Taliban attacked the only functional hospital of the city. Soon after, the US conducted an air strike, which caused widespread suffering and injury.[24] After the bombing, the US claimed that the bombing was a mistake. [25] This incident shows the ease with which the states can evade responsibility in absence of any sanction mechanisms. The humanitarian violations and the suffering caused in these conflicts not only represent a repetition of the Kalinga war, but have also worsened with the modern-day developments. Therefore, in order for the importance of the Geneva Convention to not get diminished, it is required for it to adapt itself with the changing warfare. Furthermore, although the ICC has been helpful in filing the gaps that existed in the international legal system previously by acting as a deterrent and increasing the possibility of bringing a conflict to an end, it is perceived by many states as a failure despite the glimmer of hope that it appeared to be. A major reason for the disappointment was its inactivity till the year 2009 when the first case was opened. Luis Moreno-Ocampois, the first Chief Prosecutor has been generally critiqued for his continuous failure which added to the reluctance of the states to be a part of the Rome Statute. [26] As many countries have still not ratified the Rome Statute due to which they do not fall under the Court’s jurisdiction, this becomes another factor causing problems in administering justice across the board. Besides achieving success as well as failures, the ICC, just like any other international body has been facing challenges with respect to dealing with war crimes. Since its inception, enforcement has been a major problem hampering the success of the ICC. For instance, in the conflict in Darfur, Sudan where certain ministers were issued arrest warrants for committing crimes against humanity and war crimes, the Sudanese government claimed that it does not need to execute the warrant as Sudan is not a party to the Rome Statute.[27] A commission was ordered by the United Nations Security Council (UNSC) to probe into the matter and a resolution was passed by the UNSC in 2005 which provided the ICC with jurisdiction to indict for the crimes committed in the region. [28] Consequently, charges against Omar-al-Basheer were filed by the ICC for committing war crimes and crimes against humanity in the year 2008. [29] However, wide condemnation of the warrant by the African Union and the Arab League [30] as well as the lack of cooperation on Sudan’s part proved to be a serious challenge to the ICC in Darfur. Furthermore, criticisms were raised with respect to the Court’s investigations of war crimes in Uganda on the claims that it did not reflect a true picture and the approach jeopardised citizens and the state in war-affected areas.[31] Therefore, it is important to develop an independent mechanism for enforcement in order to surmount these problems and to enable the ICC to achieve its mission for dispensing justice. Is History Repeating Itself? After witnessing the suffering that ensued during the conquest of Kalinga, Ashoka renounced war and turned to Buddhism and non-violence. 32 Similarly, the Geneva Conventions and ICC developed in the aftermath of two major wars in world history, World War II and the Cold War’s respectively. They aimed to make the world a better place by attempting to avoid conflicts among nations and reduce suffering during conflicts. However, given the challenges that they currently face, they are not in a position to counter situations similar to the Kalinga War. Therefore, it becomes extremely important to find viable solutions to avoid such future conflicts. Endnotes: [1] Manoj Kumar Sinha, Hinduism and International Humanitarian Law, 87 Int’l Rev. Red Cross 285 (2005). [2] Romila Thapar, Ashoka and the Decline of the Mauryas, Proquest, 28 (2017). [3] Id. [4] Niki Clark, The Geneva Conventions Remain As Relevant As Ever, ICRC (August 12, 2012), https://intercrossblog.icrc.org/blog/the-geneva-conventions-remain-as-relevant-as-ever. [5] The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 6 U.S.T 3114 ; The Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, 6 U.S.T 3217. [6] Thapar, supra note 3, at 173. [7] The Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T 3316. [8] Thapar, supra note 3, at 172. [9] Thapar, supra note 3, at 174, 225. [10] Andrew Lovy, The ICC, Israel and International Humanitarian Law, THE JERUSALEM POST (Feb. 2, 2020,11:33 AM), https://www.jpost.com/Middle-East/The-ICC-Israel-and-international-humanitarian-law-616172. [11] Sinha, supra note 1, at 289. [12] Thapar, supra note 3, at 190. [13] Id. at 182. [14] Rome Statute of the International Criminal Court, art. 42. [15] Rome Statute of the International Criminal Court, art. 7. [16] Thapar, supra note 3, at 171. [17] Knut Dörmann, Head of the Legal Division, ICRC, The Geneva Conventions Today, (July 9, 2009), https://www.icrc.org/en/doc/resources/documents/statement/geneva-conventions-statement-090709.htm. [18] Id. [19] Id. [20] UNSC, 8596th mtg., UN Doc. SC/13917 (August 13, 2019), https://www.un.org/press/en/2019/sc13917.doc.htm. [21] Niki Clark, The Geneva Conventions Remain As Relevant As Ever, Part Two, ICRC (August 18, 2016), https://intercrossblog.icrc.org/blog/the-geneva-conventions-remain-as-relevant-as-ever-part-two. [22] Supra note 20. [23] UN: Catastrophic Failure as Civilians Ravaged by War Violations 70 Years After Geneva Conventions, AMNESTY INTERNATIONAL (May 22, 2019, 12:21 UTC), https://www.amnesty.org/en/latest/news/2019/05/un-catastrophic-failure-as-civilians-ravaged-by-war-violations-70-years-after-geneva-conventions/. [24] Sune Engel Rasmussen, Death Toll Rises in Suspected US Airstrike on Afghan Hospital, THE GUARDIAN (October 3, 2015, 10:53 BST), https://www.theguardian.com/world/2015/oct/03/three-medecins-sans-frontieres-staff-killed-in-afghanistan-hospital-bombing. [25] Imogen Foulkes, Geneva Convention Laws of War ‘Need Fixing’, BBC (December 8, 2015), https://www.bbc.com/news/world-europe-35023029. [26] Minhas Majeed Khan & Abbas Majeed, International Criminal Court (ICC): An Analysis of its Successes and Failures and Challenges Faced by the ICC Tribunals for War Crimes, 11(3) The Dialogue 242,246 (2016). [27] Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir& Immunities, 7(2) Jour. of Int. Cri. Justice 333,352 (2009). [28] Id. at 248. [29] International Criminal Court, Al Bashir's warrant of arrest, ICC press conference-Youtube, (2009). [30] British Broadcasting Corporation, Arab leaders back 'wanted' Bashir, (2009). [31] Lucy Hovil, Challenging international justice: the initial years of the International Criminal Court’s intervention in Uganda, 2(1) Stability: Int. Jour. of Security and Development, (2013). [32] Gerald Draper, The contribution of the Emperor Asoka Maurya to the development of the humanitarian ideal in warfare, Int’l Rev. Red Cross 192,206 (1995). 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