Mr. President,

At the outset, I would like to congratulate you on your unanimous election as the President of this important Conference. We have no doubt that your long experience and knowledge in the legal profession and government qualify you eminently for this high office.

We would also like to extend our congratulations to Mr. Phillipe Kirsch of Canada upon his election as the Chairman of the Committee of the Whole and to Professor Cheriff Bassiouni of Egypt on his election as the Chairman of the Drafting Committee We would like to place on record our appreciation to Mr. Adrian Bos of the Netherlands, earlier endorsed as the Chairman of the Committee of the Whole, and who, in his capacity as the Chairman of the Ad Hoc Committee and the Preparatory Committee, has exerted a decisive impact on the preparatory process leading to this Diplomatic Conference. We would like to convey our best wishes for his early recovery.

Mr. President, this Conference, convened in the historic city of Rome, entrusted with the preparation of the Statutes of an International Criminal Court, is engaged in an unprecedented exercise in the development of international criminal law, and in innovating new forms of international cooperation for the protection of human rights in the post-war era. The inspiring statement made by the President of Italy yesterday in the inaugural session of the Conference has set out the tasks expected from us and brought out their complexity. -My delegation thanks the Government of Italy for its generous hospitality and the arrangements made for the holding of the Conference.

Mr. President, with its deeply ingrained civilisational values and commitment to pluralism and democracy based on rule of law and respect for human rights, India has always supported international cooperation for the promotion and protection of human rights. It is in this spirit that we have participated constructively in the efforts since 1948 for the progressive development and codification of international criminal law directed at suppressing and deterring the most heinous crimes of international concern. It is widely recognised that the only durable basis for the development of such international cooperation is scrupulous regard for the fundamental principles of the UN Charter, notably the sovereign equality of States, non discrimination and non interference in internal affairs. These beliefs and principles have guided India's participation in the discussions on the establishment of an international criminal court in the meetings of the Ad hoc Committee and PREPCOM, and we approach the Plenipotentiary and Diplomatic Conference at Rome with the same constructive spirit.

Mr. President, India fully endorses the agreed view of the Non Aligned Movement at the ministerial level held in New Delhi, the declaration agreed by the NAM group in New York, and the resolution of the Asian Affican Legal Consultative Committee which stressed that the ICC should be based on the principles of complementarity, State sovereignty, and non-intervention in internal affairs of States, and that its Statute should be such as to attract the widest acceptability of States, with State consent as the cornerstone of the ICC jurisdiction.

It is of crucial importance that in such an innovative and path breaking international endeavour, the broad based support of the international community is ensured at every stage. if this is not achieved, and if we succumb to haste, or the blandishments of ideological purity we shall deliver a still-born baby. An ICC which is unable to attract the willing support of substantial sections of the international community will inevitably become an instrument for the pursuit of narrow agendas, and foment discord and disputes among states. This will not be the ICC which fulfills the central objective which has provided the unifijing thread to our deliberations over several years - effective international cooperation to suppress and deter the most heinous crimes of international concern.

Mr. President, it is not realistic to conceive of inherent jurisdiction for the ICC in the face of the wide divergences that still continue to exist on the specific elements of certain crimes, the proposed inclusion of elements from multilateral instruments to which several states are not party, and the absence of consensus on the current status of customary international law with respect to several of these crimes. We accordingly favor the approach of the optional jurisdiction of ICC adopted by the International Law Commission in its draft Statute. We do not favour any inherent or compulsory jurisdiction for ICC which dispenses with such an essential. sovereign attribute. This will not result in an ICC which attracts universal international support.

Mr. President, there is now general agreement on the principle that ICC jurisdiction should be complementary or supplementary to the primary jurisdiction of nation states. ICC can step in only when a national judicial system is nonexistent or unable to deal with the particular crimes covered by the Statute. In other words, once a case is before the national courts, or decided upon, or the accused has been convicted or acquitted, ICC should not assume jurisdiction in the same matter. This is in conformity with the principle of territorial jurisdiction well accepted by all legal systems and States as also with the principle of sovereignty of States. We can understand the need for the ICC to step in when confronted by situations. slich as in former Yugoslavia or Rwanda, where national judicial structures had completely brokgn down. But the correct response to such exceptional situations is riot that all nations must.constantly prove the viability of their judicial structures or find these overridden by the ICC. Certainly, it is inconceivable to India, as it is to. many other countries, that States with well established and functioning judicial and investigative systems should be subjected to a Star Chamber procedure. This would be a travesty of the concept of complementarity.

Mr. President, the corollary of recognition of complementarity as the basic foundation for ICC jurisdiction. is that the competence and authority to initiate the jurisdiction of ICC rests with States, particularly those with direct interest in a given matter. My delegation, like many others, considers it inappropriate to vest such a competence, which pertains to States, in the hands of an individual prosecutor to initiate investigations suo motto and thus trigger the jurisdiction of the Court. The distinction between the sovereign authority of the States on the one hand, and the professional role of a prosecutor on the other should be maintained . These two should be clearly distinguished and not confused. It is the professional responsibility of a prostcutor to gather evidence and conduct impartial investigations, once he has been authorized to do so, and to conduct the prosecution. The approach of Ad hoc tribunals cannot constitute a precedent or be considered automatically applicable or advisable for the establishment of a permanent international criminal court on a sound basis.

Mr. President, India strongly believes that the impartiality and independence of a judicial institution such as the international criminal court should be respected fully. Any court that becomes a part of political processes would naturally yield political results at the expense of justice. In matters of criminal law, the old adage goes that justice should not only be done but be seen to be done. Any role for the Security Council before the ICC would necessarily entail legal and political implications. Legally, the ICC is meant to have only a criminal justice function, i.e. to prosecute and punish serious international crimes. Maintenance of international peace and security is not its responsibility. There is no legal basis for the Security Council to either refer the matters of peace and security to the ICC or to veto the cases from Coming before the ICC. The powers of the Security Council under the Charter are not at issue here. Any preeminent role for the Security Council in triggering ICC jurisdiction constitutes a violation of sovereign equality, as well as equality before law, because it contains an assumption that the five veto-wielding States do not by definition commit the crimes covered by the ICC Statute, or in case they so commit, that they are above the law and thus possess de jure impunity from prosecution, while individuals in all others States are presumed to be prone to committing such international crimes. The argument that the Security Council would continue to create ad-hoc tribunals, as it did in the case of Yugoslavia, followed later for Rwanda, unless the Security Council is satisfied with the statute even after the establishment of ICC, does not carry the strength of reason or. basis in law. It was never the understanding that Yugoslavian tribunal would constitute a precedent. Also, the very need for creation of ad-hoc tribunal arose because there was no permanent international criminal court in place. Obviously, with a permanent ICC, the need for the Security Council to continue to establish a d-hoc tribunals vanishes. Politically, Mr. President, the composition of the Security Council and the veto vested in five permanent members is an anomaly. This anomaly cannot be reproduced and recognised in an ICC. There cannot be one rule for some countries for the exercise of ICC jurisdiction and another rule for others.

Mr. President, turning now to the substance of crimes within the- jurisdiction of ICC, we share the view point held by numerous delegations that the crimes should be defined precisely in the Statute. Specific components of crimes should be such as to reflect the wide acceptance by States as a matter of opinio juris. Clearly, this is an institution-setting conference ~nd not one meant to progressively develop and codify substantive parts of international law. It is only prudent that the Conference should not get involved in such elements over which there are clear differences among delegations. In this connection specific mention may be made of the contentious issues relating to certain elements in war crimes under draft Article 5 (a & b) and the whole issue of inclusion of non-intemational armed conflict Clarity and precision of the specifics of the crime against humanity are equally important to examine their inclusion under customary law. There is a generally accepted definition of genocide. But, as we have seen from the numerous brackets, there is no such general agreement either regarding war crimes or crimes against humanity. There is also no agreement about whether or not conflicts not of an international nature could be covered under the definition of such crimes under customary international law. There are similar differences on categories of weapons and on establishing an appropriate high threshold for such crimes to be dealt with by the ICC. In accordance with the fundamental requirement of trying to ensure universal support for the ICC, efforts to push beyond the highest common factor currently acceptable to the broad majority of nation States are likely to be counter productive.

The scourge of externally inspired terrorism represents a gross violation of human rights of innocent civilians - men, women and children -, and is also a direct threat to the territorial integrity and political independence of States, and a breach of international peace and security. We are all aware that the menace of terrorism has struck all continents and does not respect any region or religion. The discussions on the dangers of terrorism combined with drug trafficking and narco-terrorism, held only last week in the UN General Assembly Special Session are still fresh in the minds of the delegations. Cross border terrorism, and terrorism externally inspired, aided and abetted, is a war by proxy, and is the root cause of many conflict situations. My delegation, along with other delegations committed to combat terrorism, strongly supports the proposal made by Algeria in the PREPCOM for its inclusion in the jurisdiction of the international criminal court.

Mr. President, on procedural issues of the Statute, my delegation is flexible. In our view, the objective of the statute here should be to reflect the criminal law principles and procedures commonly accepted by different legal systems including the common law and civil law systems. The basic consideration should be that all individual before the Court shall be accorded necessary guarantees and protection of their individual human rights commonly recognized by all civilized legal systems and international human rights instruments.

Mr. President, the Conference must address all these matters of substance which are critical to the establishment of the International Criminal Court. A purist approach reflecting a particular group position alone would not be adequate. The international community does not have to repeat the past mistakes as seen in the attempts to pursue narrow national agendas on human rights matters in various UN human rights fora. Instead, the best way to find solutions to these problems lies in recognising genuine diversity, and striving for a broad based Statute capable of wide acceptance and participation by States. Despite the odds, this is a course worth pursuing for all those committed to the basic objectives of establishing an universal international criminal court. My delegation assures you of our support in such an endeavour.

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