The International Criminal Court: The Last Stand For The Displaced Indigenous Tribes Of India

The interdependence of the realms of the International Environmental Law and International Criminal Law has been strengthened by the recent policy document announced by the International Criminal Court (ICC)’s Chief Prosecutor Fatou Bensouda. The ICC, through the document has proclaimed that crimes such as “destruction of the environment”, “exploitation of natural resources” and “illegal dispossession of land” would now come under their mandate. This announcement has been seen as a response by the ICC to criticisms of insufficient scrutiny towards cultural and environmental crimes.

This policy document marks a shift in the international legal paradigm, especially in the realm of environment protection as it follows the decision given in the South China Sea dispute in 2016 by the International Tribunal of the Permanent Court of Arbitration (PCA). The first out of the two rulings, in the case held that China had violated its obligations under the United Nations Convention on the Law of the Sea (UNCLOS) by building various artificial islands causing severe environmental damage to the coral reefs. In this broader context of attempts being made to impose liability on environmental destruction, the policy document has brought an additional dimension. While the PCA articulated environmental liability as an obligation of State parties, the policy document has brought out the possibility of attributing environmental destruction to individuals. The new emphasis on environment based crimes, indicates that the ICC has broadened its mandate from the previous cases where it primarily focused on widespread acts of violence. This essay will explore how the policy document could be an instrument for the empowerment of India’s tribal communities, also known as the Adivasis, as it proposes to criminalise land grabbing. It will examine the normative importance of the policy document in the context of the Adivasis, focussing on the element of land grabbing that the policy document proposes, and will argue that the ICC is structurally better suited to prosecute illegal dispossession of the Adivasis, compared to the existing municipal institutions.

The Agenda of Development in India: The Oppression and Vulnerability of Land Dependent Tribes

Development has been the professed objective behind much of India’s recent economic and foreign policies. There have been important structural reforms such as tax concessions and single window clearances, to bring in foreign capital, and to encourage private sector participation in large-scale development projects. These reforms and the consequent private sector entry are the means to larger ends such as increase in output in the energy sector and infrastructure projects such as highways and dams.

However, this march towards development has had its own costs. The strain created on land resources and the consequent forcible acquisition of scheduled areas and other lands inhabited by tribal communities has displaced several thousand of these communities from their homes. These acquisitions have largely been made without prior, informed and free consent, a standard which has been accorded recognition in International Law. The standard is premised on the right to self-determination, as contained in Article 1 of the International Covenant on Civil and Political Rights. It is specifically articulated in the United Nations Declaration on the Rights of Indigenous Peoples, by which, consent of indigenous communities must be obtained by States before embarking on projects that may require their relocation.

The Adivasis are one of the most vulnerable and marginalized communities of India. They are victims of a cycle of oppression by the State dating back to Colonial rule. During British rule, the forest lands, which housed several of these communities were perceived to be a ‘State Asset’. The forests were indiscriminately used as a source of resources, by displacing these communities. Traversing the harsh environment within the forests would have been near impossible without a good survival machete to help cut through the foliage. Independence, however has not brought any respite for these communities, but has brought with it an internal colonialism. To this day, albeit for different reasons, there has been a consistent disregard for the rights of these communities, in the form of forcible displacements and poor administration of resettlement and rehabilitation policies.

Apart from being oppressed by the State, these communities are demonized, by people from upper castes as they belong to a lower caste group. They are discriminated against in various spheres of opportunity. Due to these barriers, they cannot find alternate livelihoods, and lack a voice in the political sphere. Consequently, they are increasingly dependent on their land. Apart from material dependence, these communities are emotionally attached to their land and in certain cases, worship their land. Forcible land acquisition, thus is an infringement of both land and cultural rights.

Flaws in the Municipal Legal System: The Problematics of the Law and the Implementation

Before a case is made for intervention of the ICC, the deficiencies of the municipal legal system must be examined.

Unlike the earlier legal regime, which was premised on pre-eminent domain where the State could forcibly acquire land under the guise of a “public purpose“, the current legal framework has provided for informed consent before acquisition, and further has required acquisition of tribal lands to be undertaken as a demonstrable last resort. Although this is prima facie progressive, the municipal law continues to suffer from certain shortcomings. The applicability of laws which provide for free, prior and informed consent such as the Land Acquisition, Rehabilitation and Resettlement 2013 is restricted to the Schedule Areas; this has resulted in the exclusion of almost 60 percent of Adivasi tribes from being consulted, because they do not live in these areas. This has made these communities more vulnerable to forcible dispossession.

The lack of effective sanctions for non-compliance has further complicated the situation. A suitable illustration is the Environmental Protection Act, which levies a nominal penalty on the local administrative bodies for non-compliance with public consultation requirements.

There have been shortcomings with implementation as well. Despite most legislations having requirements such as a public consultation, hearing and consent before the acquisition of land for development projects, these requirements have either been watered down or have not been complied with at all.

The Way Ahead

There is an impending need for a mechanism which not only provides a new legal framework that fights illegal dispossession, but also one that contributes to effective prosecution of the parties that violate the law. The need for an effective legal framework, to prosecute forcible dispossession is not one that is merely restricted to India but other jurisdictions such as Cambodia and Mozambique.

The scale and speed of forcible dispossession in the African continent has rapidly increased causing the civilians, who depend on these lands for their livelihoods and access to food, to suffer. Governments have been selling off large plots of lands to private companies which house the citizens of that country. In West Kenya, the Government went so far ahead that they torched thousands of homes to evict the indigenous people from their ancestral homes in the Embobut forest and the Cherangany Hills. In Mozambique, an investment company which had bought a piece of land was shocked to find an entire village on what had been described as vacant land.

Similarly, in Cambodia, reports show that over 22 percent of its land resources have been confiscated with over 777,000 Cambodian citizens falling victim to forcible dispossession. There is very little opportunity for any action against these individuals due to Cambodia’s political and judicial climate as the victims or NGOs that brought complaints against these individuals have faced criminal charges for doing so. Due to such circumstances a case has been filed with the ICC alleging the ruling elite, government officials and military for mass human rights violations. With preliminary examinations already going on in the country the policy document appears to be a remedy that could be easily put into practice and a step in the right direction towards dealing with the human rights challenges in Cambodia, and the world.

As such the ICC seems to be the legal institution suitable for this issue as citizens of any country can be tried in front of the Court even if the country has not ratified the Rome Statute. Under Article 13(b) of the Rome Statute, read along with Chapter VII of the UN Charter, the United Nations Security Council (UNSC) may refer any situation to the ICC, and this can involve any individual from any State even if it has not ratified the Rome Statute. Chapter VII is binding on all States party to the UN Charter and hence the ICC can exercise its jurisdiction on States which have not signed the Rome Statute.

Alternatively, under Article 15 of the Rome Statute, the Prosecutor can initiate a preliminary investigation proprio motu on the basis of information on crimes within the jurisdiction of the ICC. The Prosecutor has used this power a number of times to conduct investigations in countries, which also includes countries which are not a part of the Rome Statute.

Apart from these wide-ranging powers, the ICC is structurally better suited to deliver justice to the Adivasis, as it can prosecute individuals irrespective of their power or wealth, caste or class. Due to this feature, it becomes a more suitable institution to handle the cases of leading businessmen and other higher officials who otherwise would not have been prosecuted by the domestic courts. While the ICC has no jurisdiction to prosecute companies and organizations, it can hold the individual company executives liable. In cases of environmental destruction or illegal dispossession of land, such as the present issue, which amounts to a crime against humanity as now stated by the Policy Document, the corporate veil would be lifted and the CEO or the owner of the company would be held liable for their crimes. In addition to holding the individual criminally liable compensation should be provided to the victims. Compensation-based models of liability would be more beneficial for the victims as well as the environment, while also acting as more of a deterrent to the perpetrators.

The ICC has in the past ordered convicts to help in redressing the victims. A benefit of the compensation based model is that it provides relief to the affected community and helps them in rebuilding their lives. Furthermore, the Rome Statute has mandated a Trust Fund for Victims which supports and implements programmes that address harms resulting from ICC crimes.

A drawback with the ICC is that it continues to be largely dependent on State parties for certain aspects of investigation and prosecution, such as arrests and enforcement of its orders. In the Indian context, this can significantly hamper the effective administration of justice. As previously indicated, India’s track record with implementation of the land acquisition laws has been very poor, with authorities being extremely lax, especially while prosecuting powerful players. Therefore, the optimal level of cooperation required for the success of ICC intervention may not be present.

The focus on environmental destruction may serve a symbolic purpose for the ICC and its development in the 21st century. However, the success of this approach depends on the impact it will have on the lives of people living in the communities affected by environmental destruction.