Adopting children has been considered a very noble cause, and people have been adopting children for a milieu of reasons, but the primary one has been to provide a better lifestyle to underprivileged children, while at the same time fulfilling the void of not being able to have children of one’s own.

Earlier adoptions used to be local in nature, including adopting children from within one’s own extended families, and adopting children from the same ethnic and social backgrounds. However, the trend has been changing, and nowadays it is commonplace to adopt children from outside one’s country.

This trend of adopting children from other countries has brought with it the risk of exploitation of minors by some prospective adoptive parents and agencies. This has caused governments all over the world to search for avenues to prevent such exploitation and to protect children from being adopted for satisfying an ulterior motive, and also from being abandoned by the adoptive parent(s) after the child reaches its adoptive home.

All over the world, cases of misuse of adoption by foreigners and agencies involved in the adoption process have been reported. This reached such alarming proportions that finally countries entered into a treaty called the Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoptions (hereinafter called the “Hague Convention”) (http://www.hcch.net).

The main goals of the Hague Convention are:

-          to protect the best interests of adopted children;

-          to standardize processes between countries; and

-          to prevent child abuse, such as trafficking in children.

Seventy-five countries are signatories of the Hague Convention, including Canada, United States of America, the People’s Republic of China and India. Canada has been a party to the Hague Convention since 1993.

In Canada adoption legislation is provincial in nature (i.e., the Provinces and the Territories have the power to create legislation relating to adoption of children). If the adoptive parents are residing in British Columbia, for example, then the Adoption Act of British Columbia will govern the adoption.

The Adoption Act (http://www.bclaws.ca) of British Columbia provides that any adoption that has been carried out under the law of another province or of another country will be recognized in British Columbia, as if it had been carried out under the Adoption Act of British Columbia.

Therefore, if a child has been adopted in India under the legislation there governing adoptions in India, it will be considered to be a valid adoption in British Columbia.

The Adoption Act of British Columbia also provides that the law relating to adoptions in British Columbia applies to adoptions under the Hague Convention; and if there is a conflict between the Adoption Act and the Hague Convention, then the Hague Convention will prevail.

Some people may assume the process of adopting a child from another country is simple. However this is far from the truth. The process of adopting a child from another country is not only complicated by uncertainty and excessive government regulations, but it has become even more confusing with the advent of the Hague Convention.

Two regimes are involved in an international adoption:

-the adoption process itself; and

-the immigration process.

Once the adoption has been approved, then the next step is to bring the adopted child to Canada. To do that one has to deal with the Canadian immigration authorities, and with the Immigration and Refugee Protection Act (http://laws.justice.gc.ca) that governs the immigration of a child adopted in another country.

So what is the procedure involved in adopting a child from India, which is a signatory to the Hague Convention?

Two considerations are very important. The first is whether the adoption is proceeding with the approval of the adoptive child’s parents (this is assuming the child is with his biological parents). The second is whether the child to be adopted is destitute, abandoned, and/or living in a social and child welfare centre.

ADOPTION PROCESS IN INDIA

Inter-country adoption in India has its roots in two judgments issued by the Supreme Court of India (http://www.supremecourtofindia.nic.in/): L.K. Pandey v. U.O.I. (AIR 1984 SC 469, AIR 1986 SC 272 and AIR 1987 SC 232), and Anokha v. State of Rajasthan (AIR 2004 SC 2820).

The aims and objectives of the Government of India are outlined in the guidelines issued by the government in 2006 and reproduced on the website of the Central Adoption Resource Agency (CARA) (http://www.adoptionindia.nic.in/), an autonomous agency under the Ministry of Women and Child Development. These guidelines clearly state that they are being issued to provide a sound basis for inter-country adoption within the framework of the norms and principles laid down by the Supreme Court of India in various pronouncements including L.K. Pandey v. UOI.

The relevant extract of the aims and objectives of the 2006 guidelines are reproduced below:

‘The objective of the Guidelines is to provide a sound basis for inter-country adoption within the framework of the norms and principles laid down by the Honourable Supreme Court of India in the series of judgments delivered in L.K. Pandey v. Union of India and others between 1984 and 1991 and various other court orders from time to time and to take all measures necessary for the promotion of in-country adoption of children as well as welfare of children in general.’

A review of the background of the L.K. Pandey Case is in order here to gain a better understanding of the roots of the guidelines on inter-country adoptions issued by the Government of India. The case centered on certain bad practices engaged in by social and other voluntary agencies offering services for inter-country adoptions, and on the lack of protection given to a child involved in an adoption. The relevant extract of the judgment of the Supreme Court of India in L.K. Pandey’s case is reproduced hereunder:

‘This writ-petition has been initiated on the basis of a letter addressed by one Laxmi Kant Pandey, an advocate practising in this Court, complaining of malpractices indulged in by social organisations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents. The letter referred to a press report based on “empirical investigation carried out by the staff of a reputed foreign magazine” called “The Mail” and alleged that not only Indian children of tender age are under the guise of adoption “exposed to the long horrendous journey to distant foreign countries at great risk to their lives but in cases where they survive and where these children are not placed in the Shelter and Relief Homes, they in course of time become beggars or prostitutes for want of proper care from their alleged foreign foster parents”. The petitioner accordingly sought relief restraining Indian based private agencies “from carrying out further activity of routing children for adoption abroad” and directing the Government of India, the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of adoption of Indian children by foreign parents.’

We will now briefly discuss the procedure for inter-country adoptions in India, and will strive to understand the applicability and modalities involved in such adoptions.

Brief Overview of the Procedure under the 2006 Guidelines for Inter-Country Adoptions

• The Foreign Prospective Adoptive Parents have to contact and register with an Enlisted Foreign Adoption Agency or Central Authority or the concerned Government department of the country in which they are residents. This agency/authority/department prepares a Home Study Report. It may be noted here that the Home Study Report is valid for two years. The applicants have to obtain permission of the competent authority of the country in which they are residents or the concerned Government department for adopting a child from India. If however, there is no such authority or department in the country of Foreign Prospective Adoptive Parents, then the Enlisted Foreign Adoption Agency has to forward a documentary proof with the application evidencing the permission to adopt in India.

• The adoption application dossier should contain all documents prescribed in Annexure-2 of the guidelines. The documents have to be notarized. Thereafter, the application of the Foreign Prospective Adoptive Parents, along with the necessary documents and copies of the Home Study Report, are forwarded to a Recognized Indian Placement Agency by the concerned agency/authority/department of the country of the Foreign Prospective Adoptive Parents.

• Upon receipt of the documents by a Recognized Indian Placement Agency, the agency will make efforts to match a child who is legally free for inter-country adoption with the applicant. However, before a Recognized Indian Placement Agency proposes to place a child for inter-country adoption, it has to apply to an Adoption Co-ordinating Agency for assistance in Indian placement. The Adoption Co-ordinating Agency must try to find suitable Indian prospective adoptive parents within a stipulated time frame, failing which it has to issue a clearance certificate certifying that the child can be put up for inter-country adoption. It may be noted here that Non Resident Indian parent(s) (at least one parent must hold an Indian passport) are exempt from Adoption Co-ordinating Agency clearance. The Recognized Indian Placement Agency then matches the Child Study Report with the Home Study Report, and forwards the complete dossier to the Central Adoption Resources Agency for a No Objection Certificate. On receipt of a No Objection Certificate from the Central Adoption Resources Agency, the Recognized Indian Placement Agency files a petition for adoption/guardianship in the competent court.

• Once the petition is granted, passport and visa formalities have to be taken care of and the adoptive parents have to come to India to accompany the child back to their country.

Applicability of the Guidelines

To better understand the applicability of the guidelines or procedures discussed above to different categories of foreign prospective adoptive parents, it is necessary to consider further here the principles and legal framework laid down in the L.K. Pandey Case, Smt. Anokha Case and in the guidelines themselves. One reason why is because the Supreme Court of India indicated in these cases that the governing principles and guidelines governing inter-country adoptions would not be applicable to children living with their biological parents. The relevant extract of the Supreme Court’s judgment in L.K. Pandey Case is reproduced below:

‘We may make it clear at the outset that we are not concerned here with cases of adoption of children living with their biological parents, for in such class of cases, the biological parents would be the best persons to decide whether to give their child in adoption to foreign parents. It is only in those cases where the children sought to be taken in adoption are destitute or abandoned and are living in social or child welfare centres that it is necessary to consider what normative and procedural safeguards should be forged for protecting their interest and promoting their welfare.’

The question of the applicability of the guidelines issued by the Government of India on inter-country adoption also came up for the consideration by the Indian Supreme Court in the case of Smt. Anokha vs. State of Rajasthan and others. While the case involved guidelines issued by the Government of India that are no longer in force, the principles laid down in the judgment still endure, as the present guidelines have also been formulated on the basis of the principles and legal framework considered by the Indian Supreme Court in the landmark L.K. Pandey case. Such a conclusion also flows from the observations of the Supreme Court of India in Smt. Anokha’s case, where the court held that the guidelines formulated in the various directives of the Supreme Court of India in various decisions do not apply to the adoption of children from their biological parents by a known couple. The relevant extracts taken from the judgment rendered by the highest court in Smt. Anokha’s case are reproduced hereunder:

‘Para 8 The decision has referred to three classes of children: (i) children who are orphaned and destitute or whose biological parents cannot be traced; (ii) children whose biological parents are traceable but have relinquished or surrendered them for adoption; and (iii) children living with their biological parents. The third category has been expressly excluded from consideration as far as the decision was concerned “for in such class of cases, the biological parents would be the best persons to decide whether to give their child in adoption to foreign parents”. The reason is obvious. Normally, no parent with whom the child is living would agree to give a child in adoption unless he or she was satisfied that it would be in the best interest of the child. That is the greatest safeguard.’

‘Para 12 The guidelines have formulated various directives as given by this Court in the several decisions and do not relate to regulation of the adoption procedure to be followed in respect of [the] third category of children, namely, children with their biological parents who are sought to be given in adoption to a known couple as is the situation in this case. It is only where there is the impersonalized attention of a placement authority that there is a need to closely monitor the process including obtaining of a No Objection Certificate from the Central Adoption Resource Agency (CARA), Ministry of Welfare, the sponsorship of the adoption by a recognised national agency and the scrutiny of the inter-country adoption by a recognised Voluntary Coordinating Agency (VCA). Indeed CARA has been set up under the Guidelines for the purpose of eliminating the malpractice indulged in by some unscrupulous placement agencies particularly the trafficking in children.’

The Supreme Court of India has dealt with adoption procedure involving the giving of a child in adoption to foreigners regarding children who are living with their biological parents. In Smt Anokha’s case the court held that the application must proceed under section 7 of the Guardians and Wards Act, 1890 (http://wcd.nic.in/gawaact.htm), and the court must approve the application after it is satisfied that it is in the best interests of the child, especially when the child is being given in adoption voluntarily, the biological parents are not induced to do so by any reasons other than concern about the child’s best interests, and the adoptive parents have produced evidence in support of their suitability. The court found as follows:

‘15. None of these provisions in the several decisions of this Court impinge upon the rights and choice of an individual to give his or her child in adoption to named persons, who may be of foreign origin. The Court in such cases has to deal with the application under Section 7 of the Guardians and Wards Act, 1890 and dispose of the same after being satisfied that the child is being given in adoption voluntarily after being aware of the implication of adoption viz. that the child would legally belong to the adoptive parents family, uninduced by any extraneous reasons such as the receipt of money etc.; that the adoptive parents have produced evidence in support of their suitability and finally that the arrangement would be in the best interest of the child.

16. In the case before us although the guidelines do not apply, the respondent Nos. 2 and 3 had produced evidence which fulfilled all the particulars required of a Home Study Report. The appellant has repeatedly affirmed her closeness to the respondent Nos. 2 and 3 and her conviction that they would nourish and care for baby Alka as if she was their own. The respondent Nos. 2 and 3 have produced sufficient evidence to justify their suitability to be adoptive parents. There was a judicially directed scrutiny by a local Governmental Agency in Venice. The enquiry report has resulted in a judgment passed by the Court at Venice, Italy. That judgment can be accepted by this Court under Section 13 of the Code of Civil Procedure, particularly when the respondents have filed the investigation report and other material on the basis of which the judgment was delivered.’

In conclusion, it can be said that the guidelines formulated by the Government of India cannot go beyond the principles enunciated by the Supreme Court of India in the leading cases mentioned above. The 2006 guidelines based on the same principles must therefore adhere to the directions of the Supreme Court, especially given the fact that there is no separate Indian legislation governing the specific issue of inter-country adoptions. Furthermore the highest court has held that the procedure to be followed in such cases must adhere to section 7 of the Guardians and Wards Act, 1890. It may also be noted here that in adoptions involving non-Hindus, the Guardians and Wards Act, 1890 is applicable, whereas in adoptions involving Hindus, including Sikhs, Jains and Buddhists, the governing legislation is the Hindu Minority and Guardianship Act, 1956 (http://punjabrevenue.nic.in/hminoract(1).htm) along with the Hindu Adoption and Maintenance Act, 1956 (http://punjabrevenue.nic.in/hadoptact(1).htm).

Now, coming to the guidelines issued by the Government of India in 2006, it may be noted that these guidelines are also based on the various pronouncements of the highest court. However, unfortunately, it seems that the judgment of the Supreme Court of India in Smt. Anokha’s case has not been taken into account, otherwise there would have been more clarity on the issue. The guidelines are silent on inter-country adoptions involving a child who is living with his/her biological parents. Or the oversight could be for the reason that, in the judgment in Smt. Anokha’s case, the Supreme Court of India has restricted the applicability of the guidelines to only two classes of children; and the guidelines have been framed keeping in mind the restriction imposed by the Supreme Court in Smt. Anokha’s case. In either case, the guidelines issued in 2006 cannot be said to be applicable to children living with their biological parents.

While it can be argued that the guidelines issued in 2006 are not applicable to children living with their biological parents, such a conclusion cannot be derived from a reading of the guidelines themselves. Although there is mention at various places of the guidelines of the applicability of the guidelines to all cases of inter-country adoptions, still a perusal of the guidelines as well as of the procedure prescribed for such adoptions makes it amply clear that this applies to only those cases where the biological parents are not known, such as in the case of orphans, destitute children, or where the biological parents have relinquished their rights and have surrendered the child for adoption. This is in concurrence with the judgments of the Supreme Court of India in L.K. Pandey and Smt. Anokha’s case. Moreover, the draft Guidelines issued by the Ministry of Women and Child Development, ‘Draft Guidelines on Adoption of Indian Children without Parental Care’ (http://wcd.nic.in/cara.pdf), which seeks to replace the existing Guidelines (i.e. ‘Guidelines for In-country adoption, 2004’ http://epragati.in/download/Guidelines%20for%20In-country%20adoption%20-2004.pdf and ‘Guidelines for Adoption from India, 2006’ http://csa.org.in/carainter.pdf), can also prove to be helpful in coming to the conclusion that 2006 Guidelines are not applicable to the children living with their biological parents. As the title of the draft Guidelines suggests, the Guidelines would be applicable to the adoption of children who are without parental care, and not to children who are living under the care of their biological parents. And as these guidelines seek to replace the 2006 Guidelines, it can therefore be inferred, albeit indirectly, that the 2006 guidelines are applicable to such children only, and not to children living under the care of their biological parents.

Therefore, it can be safely concluded that if a Canadian couple want to adopt an Indian child from his or her biological parents, then the biological parents have the primary right to decide whether to give the child for adoption or not, provided all the safeguards required for international adoption, such as provision of a home study report confirming the suitability of the foreign adoptive parents and a guardianship order obtained from a local court in India, are fulfilled.

FACTORS INVOLVED IN IMMIGRATION

Now we can consider the second leg of the inter-country adoption process involving a child from India, namely bringing the adopted child to Canada.

An essential requirement under the Immigration and Refugee Protection Act of Canada for bringing a foreign adoptive child to Canada is to prove to the immigration authorities that the adoption is ‘genuine’ under the Immigration and Refugee Protection Act. By ‘genuine’ it is meant that the adoption is not undertaken for the sole purpose of gaining entry into Canada. The courts in Canada have consistently held that a parent-child relationship is not automatically established once the requirements of a foreign adoption have been demonstrated. In other words, even if the adoption is valid under foreign law, Canadian immigration authorities will still examine whether the adoption has created a relationship between the parent and the child.

The Immigration and Refugee Protection Act also requires that an adoption of a foreign child under the age of 18 years shall not be considered a valid adoption for immigration purposes unless the adoption  was in the best interests of the child within the meaning of the Hague Convention. The adoption is considered to be in the best interests of the child in the following circumstances:

-          a competent authority has conducted or approved a home study of the adoptive parents;

-          before the adoption, the child’s parents gave their free and informed consent to the child’s adoption;

-          the adoption created a genuine parent-child relationship;

-          the adoption was in accordance with the laws of the place where the adoption took place;

-          the adoption was in accordance with the laws of the adoptive parent’s place of residence. That is, the competent authority of the adoptive parents’ place of residence has stated in writing that it does not object to the adoption;

-          if the adoption is an international adoption under the Hague Convention then the competent authority of both the country where the adoption took place and of the province of the adoptive parents have stated in writing that they approve the adoption as one conforming to the Hague Convention;

-          if the adoption is an international adoption and the country where the adoption took place is not party to the Hague Convention, there is no evidence that the adoption is for the purpose of child trafficking or undue gain with the meaning of the Hague Convention.

The Canadian immigration authorities also have a duty, once they find that the foreign legal requirements for adoption have been met, to determine whether the relationship of parent and child has been established between the adoptive parents and the child. This involves a two-step process in which a determination must be made, first, whether foreign adoption laws have been complied with, and second whether a relationship of parent and child has been created. Some of the factors considered by the Canadian immigration authorities are:

-     the motivation of the adopting parents;

-     to a lesser extent, the motivation and conditions of the natural parents;

-     the authority and persuasion of the adopting parents over the child;

-     the supplanting of the authority of the natural parents by that of the adoptive parents;

-     the relationship of the adopted child with the natural parents after the adoption;

-     the treatment by the adopting parents of the adoptive child as compared with that of a natural child;

-     the relationship between the adopted child and the adopting parents before the adoption;

-     the changes flowing from the new status of the adopted child such as records, entitlements, etc., including documentary evidence that the child is the son or daughter of the adoptive parents; and

-     the arrangements and action taken by the adoptive parents relating to the caring, providing, and planning for the adopted child.

THE IMMIGRATION PROCESS

There are two processes that can be followed once a child has been legally adopted in a foreign country:

a)                  The Citizenship Process,

b)                  The Immigration Process/Permanent Residency Process.

(i)         The Citizenship Process

As of December 23, 2007, anyone adopted by a Canadian citizen after February 14, 1977, can apply for a grant of Canadian citizenship without first becoming a permanent resident.

You can apply for Canadian citizenship of an adopted person if:

-          at least one adoptive parent is, or was, a Canadian citizen when the adoption took place;

-          the adoption severed all ties with the adopted person’s legal parents; and

-          the adoption was or will be completed outside Canada (note that this provision does not apply to adoptions involving residents of Quebec).

The adopted person does not meet the requirements for the citizenship process if:

-          neither parent was a Canadian citizen when the adoption took place;

-          the adoption took place before February 15, 1977;

-          the adoption did not fully sever all ties with the child’s biological parents;

-          the adoption will be completed in Canada; or

-          a probationary period is to be completed in Canada before a final adoption order is issued by authorities in the child’s country of birth.

If all the legal formalities of the adoption are completed in a foreign country, and the child legally becomes an adopted child before he or she even sets foot on Canadian soil, then the immigration process of seeking permanent residency and then applying for citizenship can be skipped, and the child can obtain citizenship under the Citizenship Act (http://laws.justice.gc.ca/en/C-29/index.html) before he or she enters Canada.

(ii)        The Permanent Residency Process

The Immigration process can be followed by parents adopting children from foreign countries. This will involve the parents sponsoring the child for permanent residency; and then, once the child is approved by the Immigration Authorities, bringing the child to Canada as a permanent resident. This option is always available to parents, and is usually exercised in cases where the adoption process is to be completed in Canada. In certain countries, foreigners are not allowed to adopt under the legal framework of that country, but a foreign adoptive parent is granted guardianship of the child by the court to enable the parent to bring the child to Canada and complete the adoption process in Canada. In such cases, the only remedy available to the parent is to bring the child to Canada as a permanent resident, and then when the adoption is approved in Canada to apply for citizenship for the child.

General Requirements

The following are general immigration requirements that need to be fulfilled before the Canadian authorities will issue a visa permitting the adoptive parents to bring the adopted child to Canada:

(a)            The adoptive parents must obtain a letter from the provincial or territorial authorities stating that they have no objection to the adoption. Citizenship and Immigration Canada will make the request for issuance of such a No Objection Letter directly to the appropriate provincial or territorial authorities at the time of the sponsorship approval;

(b)           The adoptive parents must provide to Canadian immigration authorities a written statement confirming that they have obtained information about the medical condition of the child whom they have adopted or are in the process of adopting outside Canada, or whom they intend to adopt inside Canada. As part of this process the adoptive parents must obtain actual medical information, must complete and sign a Medical Condition Statement, and must return the Medical Condition Statement to the visa office processing the permanent residence application that is being submitted on behalf of the adopted child.

In British Columbia, adoptions and home studies are supervised by the Ministry of Children and Family Development. There are agencies approved by the Ministry, which conduct the home study on behalf of the Ministry. The home study usually takes approximately three months to be completed, although the time period required can vary depending on the facts and circumstances of each case.

In India, the Central Adoption Resources Agency (CARA), situated in New Delhi, has been authorized by the Ministry of Women and Child Development to approve and supervise adoptions in India.

The law relating to adoptions in India involving foreign parents has been included by courtesy of Bahri and Rishi Advocates and Legal Advisors; New Delhi Office: Unit No. 4, 1^st Floor, DDA Market, Sainik Vihar, Pitampura, New Delhi – 110034,India; Phone : +91 (11) 45508747; Chandigarh Office: # 124, Sec. 16-A, Chandigarh – 160015, India; Phone : +91 (172) 2726659, 4636886; Fax : +91 (172) 2727747

By Larry W. O. Smeets

In a meeting of the General Assembly of the United Nations convened in Rome, on July 17, 1998, at the conclusion of five-week-long deliberations between representatives from over 150 countries, a coalition of 120 states (including Canada) gave approval in principle to the creation of a new international organization that is designed to prosecute those who commit the most serious crimes against others.  The new body, the International Criminal Court (hereafter the “ICC”), was formally established on July 1, 2002, when its founding treaty the Rome Statute of the International Criminal Court (hereafter the “Rome Statute”) came into force. The ICC is based at The Hague, Netherlands.

The ICC is comprised of eighteen judges chosen from around the world.   The first judges, elected in February 2003 by an Assembly of States Parties, were sworn in on March 1 later the same year.  The ICC includes an independent prosecutor who is vested with plenary authority to initiate investigations, proceed with charges, and bring to justice individuals who commit after July 1, 2002 genocide, war crimes, and crimes against humanity.  Once agreement is reached by States Parties on a definition of aggression and on how to proceed in such cases, the ICC prosecutor’s mandate will also convey individuals who commit crimes of aggression.

The ICC’s jurisdiction is not universal, but is limited to that of states that have formally ratified the Rome Statute. The courts of states ratifying the Rome Statute take precedence over the ICC in the prosecution of individuals for war crimes and other offences.  The ICC assumes jurisdiction over a prosecution only once it becomes evident that the legal system of the member state is unable or unwilling to investigate or prosecute the offenders covered by the ICC mandate.   The ICC is designed in essence as a backdrop to the legal system of ratifying states.

All indications are that the ICC is finally starting to build up a head of steam.  Its first arrest warrants were issued on July 8, 2005.  The warrants targeted individuals based in Africa, specifically in Uganda, the Democratic Republic of the Congo, the Central African Republic, and Sudan.  The ICC’s first trial, involving Thomas Lubanga of The Democratic Republic of Congo, a Congolese warlord accused of conscripting child soldiers, began on January 26, 2009.

Why did the world have to wait until the twenty-first century for the establishment of such a court? The need for an international judicial body able to prosecute individual offenders has been readily apparent for a long time: particularly since the end of World War Two, when the global community learned how the Germans under Adolph Hitler and the Japanese under Emperor Hirohito had organized on a vast scale the deliberate murder of millions of innocent people for reasons unrelated to military necessity.  And the commission of crimes against humanity and other atrocities has continued to occur in full public glare since then, with high points (or rather, low points) being reached in Democratic Kampuchea under Pol Pot in 1975-1978, when an estimated 1,000,000 Cambodians were either murdered or starved or worked to death; in Iraq under General Saddam Hussein particularly in 1988 – 1991, when Kurd minorities were killed en mass or subjected to brutal treatment; in Rwanda during a hundred-day period lasting from April 6 to July 15, 1994, when close to 1,000,000 Tutsis and their supporters were systematically rounded up and murdered by Hutu extremists; and in the former Yugoslavia under Slobodan Milosevic at various times in the 1990s, when Bosnia and Kosovo in particular were “ethnically cleansed” by Serbian paramilitary of non-Serbians.

It certainly cannot be said that the socio-political conditions giving rise to the need for creation of such a court have not been in existence since the end of World War Two, when the crimes committed during that conflict came to the light of day.  On the contrary, since then military conflict had been on ever-present feature of international life.  Between 1945 and 1992 there broke out some 24 wars between states, as a result of which an estimated 6,623,000 civilian and military lives were lost.  Among the more notable of those was the Iran-Iraq War (1980-1988), which resulted in an estimated 1,000,000 casualties.  To those interstate conflicts was added some additional 93 civil wars, wars of independence, and insurgencies, which resulted in an estimated loss of an additional 15,513,000 lives.  Among the more notable of those was the civil war in Afghanistan, which resulted in the estimated loss of 1,500,000 lives.

Nor can it be said that member-states of the international community lacked the legal tools to go after individuals who committed some of the crimes now covered by the Rome Statute. The Convention on the Prevention and Punishment of the Crime of Genocide (hereafter the “Genocide Convention”), which was approved by the United Nations General Assembly and proposed for signature and ratification by member states on December 9, 1948, expressly prohibited the crime of genocide.  Genocide involves intentional killing or causing of serious harm to a national, ethnical, racial, or religious group. The Genocide Convention stipulates that: “The Contracting Parties confirm that genocide, whether committed in the time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.” Article VI sets out that persons charged with genocide:

“… shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” [United Nations Treaty Series No. 1021, Vol. 78, p. 277; reproduced in Benjamin Mulamba Mbuyi, Refugees and International Law  (Scarborough, Ontario: Carswell, 1993), 501-507].

Yet after 1946, down to 1993-1994 with the establishment of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, no international organization was created to try anyone for genocide, war crimes, crimes against humanity, or crimes of aggression.  And when prosecutions for such offences did occur – as with those involving Adolf Eichmann and John Demjanjuk in Israel and Klaus Barbie in France – they tended to involve persons alleged to have committed crimes during World War Two, rather than since then.  Why?  What accounts for the hiatus between 1945, when the United Nations was formed and its General Assembly (in 1946) unanimously adopted Resolution 95(1) affirming “the principles of International Law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal,”  and May 1993 when the United Nations Security Council, through exercising its Chapter VII powers to adopt resolution 827 [United Nations Security  I.L.M. 1159 (1993)], finally took the next step of creating legal machinery capable of ensuring compliance with those principles?

The timing of the creation of the ICC raises several important questions about the effectiveness of the steps taken by the international community since the end of World War Two to prevent the commission of genocide, war crimes, crimes against humanity, and crimes of aggression.  To be fair, the creation of the ICC is by no means the only attempt made by the international community to deal with the profound problems that spawned the creation of the court.  The first attempt to establish such an international tribunal in fact pre-dated the establishment of the United Nations.  At the conclusion of the twentieth century’s first great bloodbath, World War One, during the Paris Place Conference in 1919, the signatories to the Treaty of Versailles established a Commission of Responsibilities charged with responsibility to investigate the creation of such a tribunal to prosecute German war criminals.  The subject came up again for consideration during a conference held in Geneva from November 1 to 16, 1937, under the authority of the League of Nations.   And at the end of World War Two the International Court of Justice (also known as the World Court) was created as the wing of the United Nations -     albeit responsible for adjudicating disputes only between states that voluntarily attorn to its jurisdiction.  There also was created at around the same time in Europe the International Military Tribunal of Nuremberg (also known as the Nuremberg Tribunal), which was charged with responsibility for prosecuting Nazi war criminals; and in Asia the International Military Tribunal – Far East (also known as the Tokyo War Crimes Tribunal), similarly charged with responsibility for prosecuting Japanese war criminals.  Both organizations can fairly be described as direct predecessors of the ICC.  Other similar organizations, notably the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, were created much later at the behest of the United Nations Security Council, in, respectively, May 1993 and November 1994.

So how are we to explain the apparent reluctance of the international community to create legal machinery the operation of which is premised on the assumption that individuals who commit the worst crimes imaginable are individually responsible, and hence accountable, for their deeds?  The ICC owes its inception directly to efforts of legal reformers in the United Nation’s International Law Commission, who since its inception had worked actively on an international basis for the establishment of a permanent international criminal court.  The ICC owes its immediate inception to the Prime Minister of Trinidad and Tobago A.N.R. Robinson, who in 1989 asked the United Nations General Assembly to consider establishing an international court to prosecute drug traffickers.  In 1990 the International Commission, acting in response to such plea, submitted to the United Nations General Assembly a report dealing with the issue.  The report was well-received. The International Law Commission then undertook the task of preparing a draft statute for an international criminal court.  By 1993 the draft statute was completed, and was submitted to the United Nations General Assembly.  Input was then solicited from member states.  On the basis of such input, a revised draft statute was prepared for consideration by an ad hoc committee of the General Assembly, and later by a Preparatory Committee for the Establishment of a Permanent International Criminal Tribunal. Such efforts bore fruit at the Rome Conference in 1998 discussed above, in the course of which the Rome Statute was negotiated and agreed upon in principle.

Yet it would be inaccurate to say that because the movement to establish the ICC emerged out of the ashes of World War Two, interest in the establishment of such legal machinery did not exist prior to then.  On the contrary, agitation for the establishment of an international criminal court predated even the onset of World War One.  A founder of the International Committee of the Red Cross, Gustav Moynier, called for the creation of an international court as early as 1872, in response to crimes committed during the Franco-Prussian War.  Agitation for the creation of such court intensified in late 1934, following the assassination in Marseilles in October, at the beginning of a state visit to France, of King Alexander of Yugoslavia and French Foreign Minister Louis Barthou.  The two officials were murdered by Croat separatists.  In 1937 the League of Nations adopted the Convention for the Prevention and Punishment of Terrorism, which provided for the creation of an international criminal court empowered to try contraventions of the convention.  The convention was ratified by only one state though, India, which was not fully independent, being a British colony at the time.  The convention’s fate was sealed by the collapse of the League of Nations after the onset of World War Two.

So why, I ask again, did the world have to wait until the very end of the twentieth century for the international community to take the next step of establishing such legal machinery? Certainly there arose at various times after 1948 episodes when the creation of a penal tribunal pursuant to Article VI of the Genocide Convention clearly was warranted.  Such occasions included in 1965 and in 1975, when Hutus were massacred by Tutsis in Burundi; in 1974, when Ache Indians were murdered in Paraguay; and in 1988-1991, when Kurds were killed en masse in Iraq.  At such times non-governmental organizations and others lobbied the international community to prosecute the perpetrators of the crimes.  Their efforts failed primarily as a result of the exertion of diplomatic pressure at the highest levels of state to prevent the creation of such legal machinery.

Why would states oppose the creation of an international adjudicative tribunal designed to check the occurrence of such offences?  Why have many counties, including the four largest counties in the world, India, the People’s Republic of China, Russia, and the United States, still have not yet submitted to jurisdiction of the ICC? There is no easy answer to this question.

The opposition of some opponents stemmed primarily from history, in particular from episodes in which opponent states have become embroiled in disputes with existing international institutions.  Such seems to have been the case with the People’s Republic of China, one of the seven countries that voted in the General Assembly in Rome in 1998 against the creation of the ICC (the other countries being Iraq, Israel, Libya, Qatar, the United States of America, and Yemen).  The citizenry of China were the target of some of the most horrendous war crimes and crimes against humanity perpetrated in modern times.  As early as December 1937, shortly after the Japanese invasion of China, the Japanese army occupied the then state capital Nanking and began a killing-spree.  According to the estimate later accepted by the Tokyo War Crimes Tribunal, the Japanese military killed more than 260,000 non-combatants in Nanking alone within the space of a few months’ time.  This experience did not galvanize China into leading the international community after the conclusion of World War Two in establishing an international criminal court responsible for the prosecution of the perpetrators of such atrocities though.  On the contrary, during the Korean War (1950-1954) China essentially went to war with the very international body created after the Second World War to ensure international peace and security, the United Nations.  Chinese diplomatic efforts in the years following the closure of the Korean War concentrated on the organization of an international united front of non-aligned countries independent of the United Nations and of the four countries that since that body’s inception have dominated its Security Council – France, the Soviet Union, the United Kingdom, and the United States.

At first glance one might assume that the opposition to the creation of the international penal tribunal stemmed from disagreements over the manner in which such a tribunal should be constituted and empowered.  Such appears to be the case with one of the two most notable opponents of the ICC, the People’s Republic of China (the other such state being the United States of America).  At one of the regularly scheduled Foreign Ministry news briefings held in Beijing on June 16 and 18, 1998, Chinese spokesperson Zhu Banzao left his listeners with the impression that the People’s Republic of China was one of the countries pressing for the creation of the ICC:  “The Chinese government has always supported the establishment of an international criminal court and has actively participated in the preparatory work.” [“Foreign Ministry News Briefings”, Beijing Review 41:27 (July 6-12, 1998) page 7]

The opposition to the creation of an international criminal court stemmed also from principled disagreements over such issues as the degree to which the emerging international rule of law should impinge on the domestic affairs of sovereign states, including on the jurisdiction of such states to prosecute (or else to exercise a discretion not to prosecute) those citizens who may have contravened international humanitarian law.  The practical effect of the operation of the doctrine of sovereignty is to raise barriers between states, as they have legal systems that are distinctive from those of other countries.  Countries are reluctant to surrender suspected criminal offenders up to other law enforcement agencies, or to assist such agencies with criminal investigations or prosecutions, if by doing so they lessen the scope for control of their own legal system over such criminal offenders.  States tend to adhere strictly to the notion that a hallmark of the assertion of sovereignty is the prosecution by the sovereign state of individuals for criminal activity.  Such seems to have been the case with both the People’s Republic of China and the United States.

It must be remembered that the United States was one of the four states participating (along with the Soviet Union, Great Britain, and France) at the end of the Second World War in the prosecution of Nazi war criminals in the precedent-setting Nuremberg Tribunal.  Given that country’s longstanding and principled support for the extension around the world of democracy and of the rule of law, one must not forget the significance of the shift in American global policy following the formation of the United Nations in understanding the reasons for American opposition the establishment of the ICC.  That shift was signified in statements such as that made by the Head of Policy Planning at the United States Department of State George Kennan in 1948:

“ … we have about 50 percent of the world’s wealth but only 6.3 percent of its population ….  Our real task in the coming period is to devise a pattern of relationships which will permit us to maintain this position of disparity without positive detriment to our national security.  To do so, we will have to dispense with all sentimentality and day-dreaming; and our attention will have to be concentrated everywhere on our immediate national objectives.  We need not deceive ourselves that we can afford the luxury of altruism and world benefaction ….

The peoples of Asia and of the Pacific are going to go ahead, whatever we do, with the development of their political forms and mutual interrelationships in their own way ….  This process of adaptation will also be long and violent.  It is not only possible, but probable, that in the course of this process many peoples will fall, for varying periods, under the influence of Moscow, whose ideology has a greater lure of such peoples, and probably greater reality, than anything we could oppose to it …. In the face of this situation we would be better off to dispense now with a number of the concepts which have underlined our thinking ….  We should cease to talk about vague and unreal objective such as human rights, the raising of living standards, and democratization.  The day is not far off when we are going to have to deal in straight power concepts.  The less we are hampered by idealistic slogans, the better.”  [P.P.S./23, February 24, 1948.  Excerpted in Containment, edited by Thomas H. Etzoid and John Lewis Gaddis (New York: Columbia University Press, 1978), pp.226-227]

Varied though the reasons are which account for how such dissimilar countries as the People’s Republic of China and the United States, along with such other countries as Iraq, Israel, and Libya, have ended up as allies supporting the continuance of a global order in which there exists no general international adjudicative body charged with responsibility for working to ensure that the Pol Pots, Saddam Husseins, and Slobadon Milosevics of this world are held in check, the potential long-term consequence of such opposition appears to be the same.  Such allies appear to disregard the fact that, if their opposition prevails, humanity continues to be confronted with a future in which war criminals and their ilk are allowed essentially to proceed with impunity to do what the vast majority of humankind agrees is not only contrary to the dictates of human conscience but contrary to international human rights norms as well. On the other hand the creation of the ICC in the face of such opposition may be indicative of a fundamental shift in international affairs, signalling the emergence of a new pattern of state relationships in which those states that choose to conduct their foreign relations on the basis of straight power concepts find themselves increasingly isolated at the international level.  If so, such a trend is to be applauded and to be supported further where appropriate.