On December 16th, 2012, a 23year old physiotherapy intern known as Nirbhaya was gang-raped and heinously murdered in a moving bus in Delhi, she died subsequently in a hospital in Singapore. The aftermath of the Nirbhaya incident witnessed widespread public outcry, which resulted in the amendments to various provisions of the Indian criminal law both substantive and procedural. Despite the radical reform in the criminal law jurisprudence, the convicts remain defiant and have recently moved the International Court of Justice (ICJ) seeking a stay.
On 16th March2020, the Supreme Court of India (SCI) rejected the plea of one of the convicts in the Nirbhaya gang-rape and murder case. The convicts were slated to be hanged on 20th March 2020, following which the convicts have written a letter to the ICJ seeking an urgent hearing to prevent “unlawful execution”. The letter reads as:
“I write to you to request your support and help, in whatever form, to prevent this barbaric and inhumane punishment from being inflicted upon convicts, the death penalty has no relevance in a progressive and modern International era. Inflicting it upon prisoners, who belong to the economically most vulnerable section of society will only serve to take out international forum several steps back.”
Notwithstanding this plea to the ICJ, the convicts were hanged on 20th March. This brief write-up intends to unravel the position of individuals in the ICJ and the progressive mechanism of individual complaint mechanism under international human rights law against the State.
Access to Individual under ICJ
The ICJ is the principal judicial organ of the United Nations(UN) that resolves disputes between States. The issue in the Nirbhaya case with regard to the ICJ is whether individuals can approach the ICJ claiming remedies against the State, the subject matter of which is purely domestic or in short does the ICJ have jurisdiction to entertain the claim made by the convicts. According to the former Supreme Court judge of India BN Srikrishna, the ICJ has no jurisdiction to order a stay; his point is the ICJ cannot act as a court of appeal, this is true because the jurisdiction of the ICJ is based on the consent between States and not individual, this is also reflected in Article 34 of the Statute of the ICJ (ICJ Statute). Further, the entire judicial process in the Nirbhaya case was proper, ie. hearing from the trial court to the Supreme Court; the convicts were provided several opportunities to file review and curative petitions. The larger question that needs to be addressed is the relationship between individuals in the ICJ. Firstly, over the years several judges and scholars of international law have argued for amending Article 34 of ICJ Statute to include individuals; moreover ,the Advisory Committee of Jurist, who drafted the PCIJ Statute ( Predecessor to the ICJ Statute) deliberated in detail the issue of locus standi; unfortunately, lack of support from majority saw the idea being dropped. Secondly, the famous dictums in the PCIJ and ICJ refer to the fact that injury to the individual constitutes an injury to the States, as asserted in the 2007 Diallo (preliminary Objection) diplomatic protection of the aliens extends to the protection of human rights; however, the extent and scope of these human rights are very much limited. Thirdly, according to Hersch Lauterpacht, the original purpose of the ICJ was to be a court of International Law, rather than a human rights court; thus individuals approaching the ICJ demanding Justice would require to circumvent the original intention of the drafters. Fourthly, post world war 1 witnessed the formulation several multilateral treaties to safeguard the rights of minorities, the PCIJ and ICJ through its advisory opinions had touched upon these treaties in the context of individual rights; however, the PCIJ and ICJ consistently refrained from invoking presumption against individuals rights and duties. Fifthly, the sole decision in the ICJ that has some proximity to the Nirbhaya case is the LaGrand case, in which the ICJ affirmed that individual might possess direct rights under treaties, however, in the La Grand case, the ICJ did not equate the right of consular access as human rights and thus adopting a strict state-centric interpretation. Moreover, the Judgement acknowledges the fact that the individuals approaching the ICJ could invoke rights through the national State.
Sixthly, in international law, the concept of state immunity has trumped human rights or individual rights, in the Arrest warrant case and the Jurisdictional immunities case the ICJ firmly establishes the fact that immunity overrides international crimes, although the backdrop of these cases significantly differs from Nirbhaya, the undisputed fact that remains is State is protected under the ambit of immunity. Taking all these factors into account, it was on the expected lines that the convicts in the Nirbhaya case would be unsuccessful in espousing their point of view in the ICJ via a letter; moreover, the jurisprudence of ICJ in terms of cases akin Nirbhaya are none; therefore the ICJ will continue its trend of ‘State-Only’ conception of international legal personality.
Individual Complaint Mechanism under International Human Rights Law
The Nirbhaya convicts rather than taking recourse to the ICJ could have sought remedies under individual complaint mechanism of Individual Covenant on Civil and Political Rights (ICCPR), however this would also be a futile exercise considering the fact that, India is not a signatory to the Optional Protocol of ICCPR.The ICCPR under Article 28 provides for the establishment of the Human Rights Committee (HRC) consisting of 18 members. The committee meets three times per year; the State party must submit a report to the HRC dealing with the implementation of the ICCPR’s provisions, after the initial report a State has to submit periodic reports, based on which the committee prepares its concluding observations. Further, the HRC is competent to entertain an individual complaint for alleged violation of an individual’s rights under ICCPR. The HRC also provides general comments to clarify the contents of ICCPR’S provisions. Assuming that India is a signatory to the optional protocol of ICCPR,TheNirbhaya convicts hypothetically speaking could have approached the HRC by taking recourse to Article 6(2) of ICCPR which reads:
“In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes by the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out according to a final judgement rendered by a competent court”.
Assuming that the convicts approached the HRC, literal interpretation of the above provision points out that, the crime of rape and murder falls under the ambit of ‘most serious crimes’, however, India does not have codified list of crimes which constitutes ‘most serious crimes’, it is upon the courts in India to determine the same on a case to case basis, in short, it is a matter of pure judicial discretion. The general comment no.36 on Article 6 of ICCPR on the right to life in paragraph 16 implicitly recognise that countries which have not abolished the death penalty, to lay out clear and stringent criteria for retaining capital punishment; moreover the HRC in August 2019 identified the list of issues before submission of the fourth periodic report of India, one of the issue being the elaboration on any comprehensive review of the relevant legislation to ensure that the death penalty may be imposed only for the most severe crime and indicate whether the imposition of the death penalty is mandatory for certain crimes. The legislature in India requires to framean enumerative list of ‘most serious crimes’, which fits the death penalty template, instead of passing the buck to the judiciary. Despite the cacophony surrounding the Nirbhaya verdict, justice was meted out to the victim on 20th March with the hanging of the convicts.