India has questioned the competence of the UN Security Council to establish international criminal tribunals for prosecution of humanitarian law violations in former Yugoslavia and genocide in Rwanda.
The tribunals should have been set up by the UN General Assembly as the Security Council has not been assigned any judicial functions under the Charter, Ravi Shankar Prasad, the Indian delegate said during a debate on the reports of the two tribunals in the assembly on Monday.
Citing legal scholars, Prasad said that under Article 29, or under the concept of implied powers, it cannot set up a subsidiary body entrusting to it the functions that the Council itself does not possess.
In doing so, the Council did not take a legitimate peace-enforcement measure under any article or articles of Chapter VII, notably under article 41, he said, stressing the need for strengthening of national judicial systems to prosecute such crimes.
Instead, "it took, simply, a law-making (not to mention law-determining and law-enforcing) measure which fell outside its functions under Chapter VII or any other provision of the Charter or general international law", Prasad said.
The Indian delegate however noted that according to the reports of the two tribunals, the one in former Yugoslavia has developed a cooperative relationship with neighbouring states and regional institutions, while the one in Rwanda has worked on capacity-building by training Rwandan jurists, advocates and human rights practitioners.
"These are commendable efforts," Prasad said, describing the establishment of War Crimes Chamber of the State Court of Bosnia and transfer of cases by the Yugoslav Tribunal to this Chamber as "a further step in the right direction".
Reiterating that the tribunals should have been set up by the General Assembly, he hoped that both the tribunals would be able to complete their work within the time frames stipulated by the relevant Security Council resolutions.
Describing the creation of effective and lasting legal and judicial institutions that uphold the rule of law as essential for the maintenance of peace, the Indian delegate said the international community must continue to strengthen the national justice system by building local capacity of judicial personnel.
Further training and mentoring of the local judiciary, as well as a timetable to gradually introduce local judges and prosecutors into sensitive cases, he said, were essential to accomplish two goals of prosecution.
The first is to punish the guilty. The second is to promote a range of socially desirable results, including deterrence of future offences and fostering an overall respect for the rule of law.
In instances where the cases grow out of profound national traumas, such as civil war or a period of repression, the reassurance of the citizens, promotion of national/ethnic/political reconciliation, and fostering of national catharsis are also seen to be critical goals.
Although international prosecutions can perhaps achieve the first goal - punishing the guilty - they are often not equipped to deliver on the others, Prasad said.
There is a view that when such "international" prosecutions are undertaken by foreign judicial systems or tribunals, with little or no connection to the perpetrators, victims, or offences, they are invariably decoupled from the political, social and economic context of the affected country.
Given the challenges associated with investigating and prosecuting international crimes, the international tribunals cannot prosecute all perpetrators, he said.
"Therefore, strengthening of national judicial systems to prosecute these crimes is extremely essential," the Indian delegate concluded.