Kushagr Bakshi*

In August 2019, as directed by the Supreme Court,[1] the Government of India published its National Register of Citizens for the state of Assam.[2] In one fell swoop, around 1.9 million people, many of whom had generational roots in Assam were declared foreign.[3] Given the migration arising from the Bangladesh Liberation War of 1971 and notoriously porous borders between India and Bangladesh,[4] they were presumed to be of Bangladeshi origin. However, Bangladesh refused to acknowledge them as citizens, thereby ensuring that, these people, declared ‘foreign’, were also made stateless.[5]

These individuals were then given a one-hundred-and-twenty-day period to file challenges or appeals to this register at tribunals set up specially for this purpose, the Foreigner Tribunals.[6] In the meantime, the central government passed the Citizenship Amendment Act, 2019,[7] declaring all individuals of specific religious identities who migrated into India from specific neighboring countries prior to 2014 to be residents of India, irrespective of their immigration status and simplifying their route to citizenship.[8] Therefore, all individuals who had been excluded from the register but belonged to any of these religions were exempt from pleading their cases and made citizens. Perhaps unsurprisingly, a substantial chunk of the people not included, and therefore still ‘stateless’, are Muslims. Foreseeing (causing) the precarious situation of the ‘foreigners’ who lost the appeal at the Foreigners Tribunals, the state considered its options, namely deportation, detention or the presence of foreign inhabitants. With deportation being unviable (for where would you deport stateless people to?) and since these laws stigmatize the continued presence of ‘foreign inhabitants’,[9] the state started construction on separate detention centers. Now while India may have renamed these centers for delicate sensibilities,[10] the central government has admitted that as of 2020, there were six operational centers in Assam with over three thousand individuals imprisoned, many having been imprisoned for more than three years.[11]

Article 15 of the Universal Declaration of Human Rights prohibits the arbitrary denial of nationality.[12] Further, The Refugee Convention of 1951 prevents member states from detaining, expelling or returning immigrants even if they have entered sans permission.[13] However, India is not a party to the Convention and there are limited enforcement actions under the Declaration.[14] Therefore, this paper proposes a novel approach, that is to investigate whether the imprisonment of people, declared foreign, can be prosecuted under international criminal law as a crime against humanity. We begin by examining the development of the concept of crimes against humanity in international criminal law. Then we investigate the situation of these imprisoned people to determine whether the actions of the Indian government qualify as a crime against humanity. Finally, we conclude by considering the International Criminal Court as a possible venue of recourse, the jurisdictional challenges involved, and the expressive value that a shift to an international criminal law lens might serve.

I. From War to Peace: The Development of Crimes Against Humanity

The classical Westphalian approach to international criminal law favours a conception of criminal justice as a crucial building block of the collective security regime, which is to say that the purpose of international criminal law is the prevention and prosecution of war crimes.[15] Consider for instance that the first reference to crimes against humanity,[16] can be found in a declaration issued by France to Turkey during World War I.[17] The First World War also led to attempts to set up a tribunal to prosecute ‘crimes against humanity’, which was halted by a Memorandum of Reservations submitted by the United State of America.[18] It was the horrors of the Holocaust during the Second World War which led to the codification of standards and definitions of crimes against humanity.[19] The London Charter of the International Military Tribunal first defined crimes against humanity,[20] and Allied laws established in Germany after occupation included imprisonment within the definition of crimes against humanity.[21] Given the obvious context of concentration camps, the Allies never found it necessary to include any detailed definition of imprisonment. Further development of the jurisprudence regarding imprisonment as a crime against humanity has mostly come from ad hoc international tribunals set up to adjudicate conflict situations.

The statutes for the ad hoc international criminal tribunals set up to adjudicate the atrocities in Yugoslavia and Rwanda recognized imprisonment as a crime against humanity.[22] The statute for the International Criminal Tribunal for Rwanda offered a qualified definition, where imprisonment would only constitute a crime against humanity when committed against a civilian population on the grounds of a shared group identity such as religion, nationality, ethnicity et al. The judgement of the International Criminal Tribunal for the former Yugoslavia in the Kordic and Cerkez case helped further illuminate the key constitutive elements of the definition.[23] Finding the defendants guilty, the Trial Chamber held that Bosnian Muslims had been systematically subjected to arbitrary imprisonment without justification. In addition to emphasizing the group identity of the victims, the Chamber’s decision highlights the lack of due process leading to the imprisonment as being a constitutive element in defining imprisonment as a crime against humanity.

This test for defining imprisonment was further elaborated upon by the Cambodian Tribunal. Set up as a hybrid tribunal under an international agreement, having a broad legal basis including Cambodian penal law, international humanitarian law and custom as well as the conventions entered into by Cambodia,[24] the trial chamber adopted a principled test for deciding when imprisonment becomes a crime against humanity.[25] The three prongs of the test enumerated by the court were: (i) a legal basis to justify the imprisonment which must be consistent with international law; (ii) the legal basis must continue to exist for the entire duration of imprisonment; and (iii) knowledge or intent of the perpetrator. Here, the court distanced itself away from the requirement of a group identity for those who were imprisoned. Further, recognizing how domestic legal systems often provide a formal guarantee of due process, the court added a substantive due process norm, requiring the domestic process of law to be compliant with international standards. Finally, stressing the gravity of crimes against humanity, the court upheld a mens rea standard, evidenced by intent of systematic or widespread practices, as required by customary international law.[26]

As of late, the focus of contemporary international criminal law has shifted from war crimes to ‘atrocity crimes’.[27] Philosophically considered, this evolution is linked to the changing notion of international peace and security as justice, which is to say that the modern justice-oriented peace and security ethos has resulted in a shift from the interstate dimension of crimes to look at individual human rights and harm.[28] The shift from humanitarian law towards the protection of human rights outside of interstate conflict,[29] does not however mean that the statutes and principles adopted previously have to be viewed in a confined manner or abandoned.[30] In fact, international bodies and scholars now look at codified war statutes and the human rights regime, for an amalgamated principled standard to apply to current situations. The key declarations and covenants of the human rights regime provide these broader principled notions, specifically regarding the liberty of people and they have been interpreted and applied by various international bodies in a manner consistent with the principles developed in the above cases.[31] The Human Rights Council adopted a comment which read the liberty guarantee of Article 9 of the 1966 International Covenant on Civil and Political Rights, as applicable to all deprivations of liberty, including cases of immigration control, emphasizing a notion of court protected substantive due process as a fundamental component of that right.[32] The U.N. General Assembly, in resolutions on religious tolerance[33] and protection of human rights and fundamental freedoms,[34] voiced opposition to detention outside the ambit of the law and urged States to respect international legal standards, including human rights and humanitarian law. Finally, the Rome Statute also recognizes imprisonment and other forms of severe deprivation of physical liberty as a crime against humanity.[35] The elements of crimes addendum, adopted at Kampala, lists criteria which draws substantially from the human rights framework.[36] Thus, international criminal law, removed from the specter of armed conflict, has developed an understanding of imprisonment as a crime against humanity which is not tied to group identity or particular standard of atrocity. The legal standard that can be distilled from a composite understanding of the decisions and principles above is: (i) Whether the imprisonment is in accordance with due process of law, where any such domestic law must comply with the standards of international human rights law (including affording the opportunity of adequate legal recourse to the prisoner); and (ii) the intent on the part of perpetrator, demonstrable by showing that the acts follow a systematic practice.

II. Between Scylla and Charybdis: Detention and Statelessness in India

Detailing the history of migration into Assam and understanding the various motivations undergirding the actions of those who oppose the settlement of migrants is well beyond the scope of this article.[37] Suffice it to say that the sociological notion of closure[38] vis-à-vis retaining a particular ethnic and religious composition of the polity coupled with the notion of economic protectionism[39] are insidious factors driving the opposition to migrants. But it is crucial to understand the legal framework through which this opposition is expressed, that is the National Register of Citizens and the Foreigner Tribunals.

During independence and partition in 1947, Assam saw a huge surge of migrants from Bangladesh (then East Pakistan) into India which was religiously driven. This migration led to the establishment of the National Register of Citizens in 1951, specifically to map the migration into the state of Assam.[40] The regularization of these immigrants was governed by the Foreigners Act, 1946 and special administrative tribunals (Foreigners Tribunals) were created under this Act to aid the process of regularization.[41] The aim was for the register and the tribunals to regularize the immigrants to enable them to participate in the transformative project of the Indian Constitution. However, in 1971 with the war in Bangladesh, a second wave of immigration began. Unlike 1947, there was fierce opposition to these immigrants with the local political parties of Assam organizing protests and demonstrations which resulted in waves of violence and what is now called the Nellie massacre.[42] The crucial difference, religion. While the immigrants in 1947 had mostly been Hindu’s escaping into India to avoid the sectarian violence of partition, the immigrants of 1971 were Muslim, albeit they too were escaping into India for fear of violence engulfing Bangladesh.[43] The protests and violence finally stopped with the Assam Accords and the setting up of new tribunals, which unlike the Foreigner Tribunals were intended to identify illegal immigrants for the purpose of deportation.[44] However, in 2005, the Supreme Court of India held the act setting up these new tribunals to be unconstitutional thereby shifting the burden back to the Foreigner Tribunals.[45] This was followed by the process described initially, namely that of updating the Register, appeals at the Foreigner Tribunals, followed by imprisoning those excluded.[46]

The process of updating the Register itself was filled with irregularities which eventually led to the exclusion of individuals who had enjoyed the full privileges and immunities of citizenship such as, serving in the armed forces and even being elected to the state legislative assembly.[47] However, such irregularities would be under the ambit of refugee law as this process leads to statelessness and refugee status. Instead, in this article I intend to focus on the functioning of foreigner tribunals and the imprisonment that follows. As established in the previous section, for any imprisonment to qualify as a crime against humanity, two crucial elements ought to be fulfilled, namely, that the imprisonment be without due process of law and that the perpetrator show intent through systematic practice.

A. The Due Process of Law

The due process standard has evolved considerably in international law. The ICCPR and UDHR lay down the standard for due process which includes, a fair public hearing and an independent and impartial tribunal which determines the rights and obligations of the accused and any criminal charges against the accused.[48] Additional international instruments,[49] resolutions[50] and decisions of international tribunals have led to an interpretation of the due process requirements which emphasize time given for defence,[51] fairness to both parties[52] and the right to appeal.[53] The customarily accepted definition of the due process of law, consists of two components: (a) the right to a fair trial which includes a determination of the quality of administration of justice based on the principles of independence, impartiality and competence; a determination of the quality of protection of rights of the parties based on the principles of a fair hearing, the equality of arms,[54] assumption of innocence and public hearings, and finally, the efficiency of administration based on completion of hearings within reasonable time; and (b) the right to an effective remedy, including the effectiveness of administration of justice, a qualitative determination of the standard of the remedy which includes appeals processes and scope of appeals and finally, the supervision afforded to ensure no miscarriage of justice. This international due process requirement has to be read in conjunction with the domestic standard. Indian constitutional jurisprudence lays down a three-pronged approach for evaluating the due process of law in cases of detention, including a test of reasonableness, substantive notions of fairness in the procedure and a balancing exercise.[55]

In this respect, the foreigner tribunals display a fundamental flaw, namely shifting the burden of proving innocence. Substantive notions of due process and a fair trial require that individuals be presumed innocent until proven guilty.[56] While the Foreigners Tribunals are not adjudicating crimes per se, the method of punishment, that is imprisonment, is usually a criminal consequence. Therefore, the process of imprisonment and shifting the burden upon individuals to prove their citizenship (innocence) is a violation of this fundamental tenet.[57] The second major due process violation in Foreigners Tribunals arises from the method of appointment of the judges. The Central Government is given executive fiat when it comes to appointment of the judges.[58] While government notifications prescribe certain qualifications for the prospective judges, the final appointment orders show that only two of the appointees hold the prescribed qualifications.[59] Additionally, in 2017, upon an evaluation of the tenure of the appointed individuals, the government declined to renew the contracts of nineteen appointees. An evaluation of the renewals shows that judges who, on an average declared individuals to be foreigners in less than ten percent of their disposed cases were deemed to perform in an unsatisfactory manner, and thus terminated.[60]  Domestic and international legal jurisprudence on due process has highlighted the importance of an independent judiciary.[61] The role of the executive then, in the composition of these quasi-judicial tribunals and the chilling effect of non-renewal of contracts meant as an inducement towards particular types of verdicts ensures that the trials are not impartial and therefore not following the due process standard.

Further, the tribunals are allowed discretion to determine the procedural rules which govern their functioning.[62] The courts have also held that these tribunals, being quasi-judicial in nature are not even required to apply the standards prescribed for other civil courts in India.[63] Additionally, the common law principle of res judicata, intended to protect an individual from double jeopardy is not applicable to decisions made by the Foreigner Tribunals.[64] Finally, due to the discretion afforded, different tribunals have adopted different procedural codes which deny litigants any chance of equality or predictability in their trials. The combined effect of these procedural lapses is immense. As per the central government itself, the tribunals have issued ex parte orders in around sixty-four thousand cases, rendering people stateless without giving them a chance to be heard.[65] The differing evidentiary standards adopted have also had a particularly discriminatory gendered impact with many women and children not being able to produce the evidence required to prove citizenship.[66]

Finally, an important element of the due process standard is the right to appeal. In context of citizenship proceedings, states are obligated to ensure that adequate substantive and procedural safeguards guaranteeing judicial review exist.[67] Unlike the standard court system in India, Foreigner Tribunals exercise original jurisdiction in matters of nationality due to which the only appeal process available is to High Courts or the Supreme Court.[68] However, the appellate courts have themselves severely limited their scope of review. The courts have deemed fact finding errors beyond the scope of their jurisdiction, limiting review only to cases of jurisdictional error or facial violations of justice.[69] Further, the courts have also given the executive wide fiat by upholding their power to summarily inquire into the citizenship of any person, without following a due process standard in the investigation.[70] On two fronts then, the limited forums of appeal and the limited standards of review, the courts in India have failed to uphold a substantive right of appeal or remedy.[71]

B. Systematic Intent of State

Recently, scholars have noticed the global rise of detention as a method of preventing immigration.[72] For some time now, Australia has been transferring ‘illegal’ immigrants to offshore detention centres in the Nauru and the Manus islands and detaining them there in inhuman conditions. Taking note of the rising incidents, Andrew Wilkie, an independent member of the Australian Parliament, wrote to the Office of the Prosecutor of the International Criminal Court alleging that by imprisoning these individuals the Australian Government had been committing a ‘crime against humanity’.[73] In their response, the Office of the Prosecutor found substantial evidence to indicate that the nature of the imprisonment satisfied the contextual requirements of the definition of crimes against humanity in the Rome Statute. However, the office could not establish concerted state action or evidence of systematic intent and hence declined to prosecute.[74] The key distinction the office noted was that while the policy of imprisonment was aimed at immigration detention, the elements of cruel, inhuman and degrading treatment were not a specific aim of this policy.

This standard that the office imposed is well outside the confines of international law. For decades, comparative and international jurisprudence has found that if the effects of a policy are discriminatory and inhuman, the state is responsible irrespective of whether that was a direct intent or not.[75] But even if we are to hold to the Prosecutor’s standard, the detention camps in Assam fit the bill. Essentially there are two elements which evidence the systematic intent. First, the denial of citizenship, combined with the rhetoric of ‘us’ versus ‘them’ is utilized to dehumanize the ‘foreigners’ and then legal norms and detention practices are utilized to impose indefinite imprisonment upon the ‘foreigners’. The specific construction and legal framework regulating these camps displays the systematic intent of the government to indefinitely detain people. Consider also the conditions of the camps which show the cruel, inhuman and degrading treatment that the ‘foreigners’ are subjected to. Detainees are neither provided with beds nor pillows. Medical facilities available are inadequate and the food is barely edible. Only family members are allowed to visit and the detainees are not allowed to leave, even in case of a death in the family.[76] All of this has led to various reports of detainees suffering from mental health issues,[77] physical sicknesses[78] and very often death.[79] It is therefore evident that the cruel, inhuman and degrading treatment meted out to the ‘foreigners’ is in fact what the state intends and has ensured such treatment through systematic design.[80]

III. Coda: Jurisdiction and the International Criminal Court

While I have argued above that the standards of international criminal jurisprudence have evolved to include imprisonment as a crime against humanity, I suspect opposition to this notion derives from the rhetoric surrounding crimes against humanity as radically evil acts.[81] Instead, borrowing from Hannah Arendt, I believe that acts of banal evil do lead to the infliction of terrible violence.[82] Therefore I have made a concerted effort to not highlight stories of pain and suffering in the narrative above, as it is important to realise how seemingly harmless laws and bureaucratic actions can lead to horrific situations. From the analysis above, it should be evident that the functioning of Foreigner Tribunals and the subsequent imprisonment of ‘foreigners’ is a crime against humanity.[83] Further, given that the situation does not entail the prevention of entry but rather active state acts intended to expel settled families and peoples, it’s important to evaluate what recourse, if any, the International Criminal Court can provide.

India is not a State Party to the Rome Statute and is unlikely to accept jurisdiction of the court for this matter.[84] While Bangladesh is a State Party to the Statute, the individuals who are incarcerated are ‘stateless’ under international law and if Bangladesh were to claim them to be Bangladeshi nationals for the purposes of filing a referral or granting the Court jurisdiction, they would be obligated under international refugee law to accept the individuals who would undoubtedly be deported by the Indian state. Further, any Bangladeshi referral would only grant the court jurisdiction if the crimes were committed by Bangladeshi nationals, which is not the case. Hence, it is unlikely that a Bangladeshi referral can serve as a route to conferring the Court jurisdiction. Therefore, the only way in which the Court can exercise jurisdiction over the matter is a Security Council referral.[85]

And this is not unheard of. The Security Council has previously referred situations to the Court, most notably the situation in Sudan which led to the investigation against Omar al-Bashir of Sudan.[86] Despite the political controversy surrounding the case, legally, scholars have argued that the binding nature of Security Council resolutions could also translate into obligations upon states to co-operate with investigations of the Prosecutor.[87] Theoretically then, it is possible that a resolution by the Security Council could trigger the Court’s jurisdiction over this situation. There has been sufficient criticism over the extent of the Security Council’s powers and the situation in Sudan, and it is not my intent to rehash that here.[88]  Instead, I wish to focus on the political nature of Security Council Referrals. Crucially, immigration detention is not a method solely employed by India. In fact, the situation has become a prevalent response to immigration, employed by the United States and various European countries.[89] Given that the language and politics of mass incarceration[90] are being increasingly deployed against immigrants by many nations (including permanent members of the Security Council), it is unlikely that such nations would encourage a Security Council resolution as a test case against detention centres in India, being aware of the hypocrisy and potential of such a referral being used against them in the future.[91]

What then is the purpose of this paper in classifying this detention as a crime against humanity? It is the moral expressivism that such a classification brings to the fore. The role of international criminal norms is not mere punishment but an attempt by the global community to disavow particular forms of conduct thereby symbolically indicating their refusal to acquiesce to crimes which shock our shared norms of morality.[92] And this norm expression also engenders accountability through the various relationships and interactions in the international criminal process. Through thematic investigations, prosecutions and legal practice, international criminal legal agents can use rhetorical techniques, performance and representation to enamour new audiences and reformulate relationships between the legal practice and society, thereby also reformulating the premise of underlying bodies of law.[93] Essentially, norm expression can sometimes lead to norm entrepreneurship.

Previously I argued that these norms must look beyond ‘atrocities’ to recognize the banal nature of evil. Hence, it’s important to understand how these facially harmless laws have led to terrible conditions in these detention camps. Generally, Indian prisons are rife with evidence of widespread torture, custodial rape, overcrowding and massively underfunded health and medical care.[94] Harsh Mander, the special monitor for the National Human Rights Commission, found that the detention camps in Assam were filled with grave and extensive human distress and suffering.[95] Since these detention centres are created as sub-parts of normal jails, the incarcerated ‘foreigners’ are treated differently (and worse) that the ‘civilian prisoners’. Given that there are no guidelines or laws which regulate the rights of the incarcerated, they are subject to arbitrary conditions decided by the wardens and authorities in charge of each centre. Most are not allowed work, denied any recreational activities or visits from family or parole. Additionally, children above the age of six are separated from their families.[96] It is precisely because of the lack legal protections highlighted previously, that their situation can now be characterized as cruel and inhuman.

In the face of this cruelty, moral expressivism can help kindle alternative means of recourse. The value of this expressivism is that it focuses attention on the evaluation of state action vis-à-vis shared international human rights norms. Consider that growing human rights violations and the moral outrage surrounding them led to the United Nations High Commissioner for Refugees concluding that detention did not deter irregular migration, or discourage persons from seeking asylum.[97] Further, the growing focus and outrage regarding such situations has led to a shift in the underlying notions of immigration with growing recognition of the wrong of imposing criminal liability upon individuals moving ‘irregularly’.[98] Therefore, the expressive impact of this classification can lead to international advocacy and resolutions, which condemn immigration detention in a general sense and the Indian situation specifically. Further, such expressivism should lead to national and international efforts aimed at encouraging immediate solutions such as bail bonds, community release and better reporting conditions amongst others. For, if the Modi government can undo six decades in six years,[99] surely, we can put some of it back.

[*] S.J.D Student, University of Michigan Law School. I’m grateful to Amb. (retd) Susan D. Page, Prof. Steven Ratner, Bojan Perovic, Jayee Malwankar as well as the participants in the seminar on African Countries and the International Criminal Court conducted at the University of Michigan Law School in 2022 for their feedback. All errors are, of course, my own.

[1] Assam Public Works v. Union of India, (2018) 9 SCC 231.

[2] NRC Final List, IndiaToday (Aug. 31, 2019) https://www.indiatoday.in/india/story/nrc-final-list-how-and-where-to-check-your-name-on-assam-national-register-of-citizens-1593695-2019-08-31.

[3] Salah Punathil, Precarious Citizenship: Detection, Detention and Deportability in India, 26 Citizenship Studies 55 (2022).

[4] See generally, Gary Bass, The Blood Telegram (2013).

[5] Nayanima Basu, Bangladesh wants ‘written’ assurance from India that it won’t send immigrants after CAA, ThePrint (Dec. 30, 2019 5:10PM) https://theprint.in/diplomacy/bangladesh-wants-written-assurance-from-india-that-it-wont-send-immigrants-after-caa/342579/.

[6] Talha Abdul Rahman, Identifying the Outsider: An Assessment of Foreigner Tribunals in the Indian State of Assam, 2 Statelessness and Citizenship Rev. (2020).

[7] Citizenship (Amendment) Act, 2019.

[8] Under the act, Buddhists, Christians, Hindus, Jains, Parsis, and Sikhs who have migrated from Afghanistan, Bangladesh, or Pakistan to India prior to 2014 are no longer considered illegal immigrants and can more readily achieve citizenship. Left out of the six religions granted special privileges are Jews and Muslims, thereby making official a discriminatory policy against Islam and Judaism in India. See, Anupama Roy, The Citizenship (Amendment) Bill and the Aporia of Citizenship, 54 Econ. Pol. Weekly 49 (2019).

[9] There’s an interesting anthropological and historical comparison to be made. Consider how the United States has used various laws over the course of history to designate ‘undesirables’ as foreign, both at local and federal levels. As such the aim of the Indian Government here is not a depoliticized move to restrict illegal immigration (as depoliticized as that can ever be), but rather changes designed specifically to exclude Muslims from the polity and more importantly the electorate. See, Kunal Parker, Making Foreigners: Immigration and Citizenship Law in America, 1600-200 (2015); Anupama Roy, Citizenship in India (2017).

[10] It’s reported that these centers are now called transit camps, in an attempt to humanize the camps. Assam’s Detention Centre’s for ‘Foreigners’ to now be called Transit Camps, Scroll (Aug. 19, 2021). https://scroll.in/latest/1003251/assams-detention-centres-for-foreigners-to-now-be-called-transit-camps.

[11] The government has admitted that there is no centrally maintained database and hence exact numbers are impossible to come by. See, Six detention centres in Assam with capacity of 3,331 persons: Home Ministry tells Lok Sabha, TheIndianExpress (March 17, 2020 6:23PM).

[12] U.N. General Assembly, Universal Declaration of Human Rights, A/RES/217(III) (Dec. 10, 1948).

[13] U.N. General Assembly, Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (entered into force April 22, 1954).

[14] Dipankar De Sarkar, Why India Won’t Sign Refugee Treaty, Mint (Sept. 11, 2012 01:12AM) https://www.livemint.com/Opinion/bePZQScFIq1wEWv9Tqt4QO/Why-India-wont-sign-Refugee-Treaty.html; Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 Ga. J. Int’l & Comp. L 287 (1996).

[15] Consider how Kelsen distinguished between international and internal peace and reminded his readers that the former is the ‘purpose’ of the United Nations. Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems with Supplement 1964 19 (1950).

[16] U.S. Dept of State, Telegram to U.S. Embassy in Constantinople (May 29, 1915) https://www.armenian-genocide.org/popup/affirmation_window.html?Affirmation=160 (Due to the genocide of the Armenian population in Armenia by the Kurdish and Turkish population of Armenia with the connivance and authority of the Ottoman Empire, the French, British and Soviet governments issued a joint communique delivered by the Americans to the Turkish. Outlining the murders and offenses, the Allied governments announced to the Sublime Porte, that they would hold all members of the Ottoman Government and their agents, personally responsible for any participation in these crimes, setting off the notion of individual criminal responsibility. Its perhaps curious to note the religious origins though. The initial draft of the declaration by the Allied Powers read ‘crimes against Christianity’. However, the then French Foreign Minister Theophile Delcasse thought the usage of Christianity would antagonize the Muslim populations of the colonies of France and Britain and hence the word humanity was used.) See, Christopher Andrew, Theophile Delcasse and the Making of the Entente Cordiale (1968). See also, Michelle Tusan, “Crimes Against Humanity”: Human Rights, The British Empire, and the Origins of the Response to the Armenian Genocide, 119 Am. Hist. Rev. 47 (2014).

[17] However, some scholars think the concept predates World War I. They point to the usage of term (similar in intent) in declarations and letters in the late 1800s and early 1900s in context of slavery born from the European colonization of Africa, specifically George Washington Williams’ open letter to King Leopold II of Belgium, protesting the atrocities of colonization in the then Independent State of Congo. See, George Washington Williams, Open Letter to King Leopold on the Congo (1890), Blackpast (Aug. 20, 2009) https://www.blackpast.org/global-african-history/primary-documents-global-african-history/george-washington-williams-open-letter-king-leopold-congo-1890/. See also, Hunt Hawkins, Conrad and Congolese Exploitation, 13 Conradiana 94 (1981); Robin Kelley, “But a Local Phase of a World Problem”: Black History’s Global Vision, 1883-1950, 86 J Am. His. 1045 (1999).

[18] Antonio Cassese, International Criminal Law 81 (2003). See also, Article 227, Treaty of Versailles (July 28, 1919) https://avalon.law.yale.edu/imt/partvii.asp.

[19] Kevin Jon Heller, The Nuremburg Military Tribunals and the Origins of International Criminal Law (2011).

[20] Article 6, U.N., Charter of the International Military Tribunal- Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis, Aug. 8, 1945, 58 Stat. 1544, 82 U.N.T.S. 280.

[21] Article II (1)(c), Control Council Law No. 10 on the Punishment of Persons Guilty of War Crimes, Crimes against Peace and Crimes against Humanity, Dec. 20, 1945. https://avalon.law.yale.edu/imt/imt10.asp.

[22] Article 5, U.N. Security Council, Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on May 17, 2002), May 25, 1993; Article 3, Statute of the International Criminal Tribunal for Rwanda (as amended on Oct. 13, 2006), Nov. 08, 1994.

[23] Prosecutor v. Dario Kordic and Mario Cerkez, Case No.  IT-95-14/2-T ¶ 800 (Feb. 26, 2001).

[24] John Ciorciari & Anna Heindel, Hybrid Justice: The Extraordinary Chambers in the Court of Cambodia 14, 69 (2014).

[25] Prosecutor v. Kaing Guek Avi (Duch), Case No. 001/18-07-2007-ECCC/SC ¶ 347-350 (Feb. 3, 2012). The trial chamber was looking at the confinement of Cambodians in S-21 (Tuol Sleng). Having recently visited Cambodia, I was able to meet Chum Mey, one of the seven adults to have survived the prison. While he described to me the horrors of the prison, my mind turned to the various photographs displayed in the prison museum, specifically the grinning, defiant faces of individuals (who I can only identify as a female prisoner bearing the number 381 and the date 21/3/78 and a male prisoner bearing the number 399) and the words inscribed there, “May this be a symbol to the world of what happens to humanity when it is overcome by hate.”

[26] Antonio Cassese, International Criminal Law 81 (2003).

[27] This is not to say that atrocity crimes were not included or considered within international criminal law, previously. Instead, this is to signal a change in the underlying premise of the raison d’être of international criminal law, from a focus on the prevention of war through humanitarian law to human rights protection. See, Theodor Meron, The Humanization of Humanitarian Law, 94 Am. J. Int’l L. 239 (2000).

[28] Jeff McMahan, The Morality of War and the Law of War, in Just and Unjust Warriors: The Moral and Legal Status of Soldiers 19 (D. Rodin and H. Shue eds., 2008).

[29]Andrew Clapham, Human Rights and International Criminal Law in The Cambridge Companion to International Criminal Law (William Schabas eds., 2016).

[30] There’s an interesting interpretative methodology to this process. Ronald Dworkin explained it best when he envisioned the development of domestic legal systems as various authors adding chapters to a chain novel. The new author here has to be constrained by the previous chapters, which is the pre-existing material, therefore having to articulate the new law/chapter such that it best fits the political morality of the previous materials. International law can be read in the same form. The Hague Conventions dealing with the law of conflict and war refer to broader notions of laws being based in collective principles of humanity or an ius gentium. Recognizing the possibility of future developments and moving beyond the war and peace dichotomy, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, categorize crimes against humanity into both war and peace times. This is all to say that this shift and the ensuing refashioning of exiting statues and doctrine is not unfounded or a mere attempt to manipulate existing material to best fit the current problems. See, Ronald Dworkin, Taking Rights Seriously 229 (1978). See also, Robert Miller, The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 65 Am. J. Int’l L. 476 (1971); Theodor Meron, The Geneva Conventions as Customary Law, 81 Am. J. Int’l L. 348 (1987).

[31] International Convention on Civil and Political Rights, Dec. 16, 1988, 999 U.N.T.S 171 (hereinafter ICCPR); Universal Declaration of Human Rights, Dec. 8, 1948, U.N.G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948) (hereinafter UDHR).

[32] UN Human Rights Committee, CCPR General Comment No. 8: Article 9 (Right to Liberty and Security of Persons), 30 June 1982, No. 8, https://www.refworld.org/docid/4538840110.html.

[33] UN General Assembly, Elimination of all forms of intolerance and discrimination based on religion or belief, Dec. 19, 2006, A/RES/61/16.

[34] UN General Assembly, Protection of Human Rights and Fundamental Freedoms when countering terrorism, Dec. 18, 2007, A/RES/62/159.

[35] Article 7(1)(e), Rome Statute of the International Criminal Court, Jul. 17, 1998, 2187 U.N.T.S. 3.

[36] International Criminal Court, Elements of Crimes 5 (2011).

[37] See, Komol Singha, Migration, Ethnicity-based Movements and State’s Response: A Study of Assam, 55 Int’l Stud. 41 (2018); Udayon Mishra, Immigration and Identity Transformation in Assam, 34 Econ. Pol. Weekly 1264 (1999); Sanjib Baruah, India Against Itself: Assam and the Politics of Nationality (1999).

[38] Closure is defined as social collectives seeking to maximize rewards by restricting accesses to resources and opportunity to a limited circle of the eligible. This is easily identifiable in the political rhetoric of ‘loss of culture’, which is essentially the reduction of cultural and social capital of the privileged by the arrival of an often-industrious new worker class which has different tastes and tendencies than them. This tends to develop tones of distinction based on the identity of the migrants, most often race and religion. See, Frank Parkin, Strategies of Social Closure in Class Formation in The Social Analysis of Class Structure 1, 18 (Frank Parkin ed., 1974).

[39] Protectionism here is evidenced by a global tendency to move towards protection of domestic labour, which is identifiable through the political rhetoric of keeping jobs at home. I suspect these two factors drive opposition towards immigrants globally. You will notice that rhetorical arguments against immigrants are based in two essential constructs, the theft of jobs and the destruction of culture. See, Jagdish Bhagwati, A Stream of Windows: Unsettling Reflections on Trade, Immigration and Democracy (1998).

[40] Anil Roychoudhury, National Register of Citizens, 1951, 16 Econ. Pol. Weekly 267 (1981).

[41] Foreigners (Tribunal) Order, 1964.

[42] See, Makiko Kimura, The Nellie Massacre of 1983: Agency of Rioters (2013); Myron Weiner, The Political Demography of Assam’s Anti-Immigration Movement, 9 Population & Dev. Rev. 279 (1983).

[43] Rudabeh Shahid & Joe Turner, Deprivation of Citizenship as Colonial Violence: Deracination and Dispossession in Assam, 1 Int’l Pol. Soc. 1 (2022).

[44] Assam Accord, 1985; Illegal Migrants (Determination by Tribunals) Act, 1985.

[45] Sarbananda Sonorwal v. Union of India, AIR 2005 SC 2920. This is a particularly pernicious judgement of the Court as they also thought that illegal immigration was akin to external aggression against the state. There were various arguments regarding the constitutionality of the new tribunals, including their discriminatory nature since the act authorising these tribunals limited jurisdiction to Assam, while the Foreigner Tribunals technically had jurisdiction over India, as a whole. But primarily, the act authorising the new tribunals required the state to prove that the charged individual was not a citizen of India, whereas Section 9 of the Foreigner’s Act, 1946 (which authorises the Foreigners Tribunals) places the burden on the charged individual. The Court, agreeing that the new tribunals made the process of chaffing out ‘illegal immigrants’ arduous, held them to be unconstitutional.

[46] The Supreme Court of India has previously held that foreigners ought to be detained pending their deportation/repatriation. The government of Assam declared their intention to detain such foreigners and the Gauhati High Court required the state to set up detention centers for those declared foreigners in Assam. However, since their presumed state of origin, Bangladesh, maintains that they are not its nationals, there is no real option of deportation. This detention has, therefore, become indefinite. Bhim Singh v. Union of India, (2012) 13 SCC 471; Santanu Borthakar v. Union of India and Ors., W.P.  (Crl) 2/2020 Gau H.C. See also, Government of Assam, White Paper on Foreigners’ Issue (2012). See generally, Centre for Public Interest Law, Securing Citizenship 98 (2020).

[47] Monish Bhatia, State Violence in India: From Border Killings to the National Register of Citizens and the Citizenship Amendment Act in Stealing Time: Migration, Temporalities and State Violence 171 (Victoria Canning & Monish Bhatia eds. 2021).

[48] Art 9, 14, 15, ICCPR; Art. 8, 9, 10 UDHR. Supra note 31.

[49] See, Art. 8, American Convention on Human Rights “Pact of San Jose, Costa Rica”, Nov. 22, 1969, 1144 U.N.T.S. 123; Art.7, 26, African Charter on Human and Peoples’ Rights, June 27, 1981, 1520 U.N.T.S. 217. Art. 6, Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocol No. 11) Rome, 4.Xi. 1950.

[50] U.N. General Assembly, Human Rights in the Administration of Justice, Dec. 13, 1985, A/RES/40/146; U.N. General Assembly, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Nov. 29, 1985, A/RES/40/34; U.N. General Assembly, Basic Principles on the Role of Lawyers and the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Dec. 16, 2005, A/RES/60/147.

[51] Lawrence Chan v. Guyana, Communication No. 913/2000, U.N. Doc. CCPR/C/85/D/913/2000 (2006).

[52] Dudko v. Australia, Communication No. 1347/2005, U.N. Doc. CCPR/C/90/D/1347/2005 (2005).

[53] Terron v Spain, Communication No. 1073/2002, U.N. Doc. CCPR/C/82/D/1073/2002 (2002).

[54] Stefania Negri, The Principle of ‘Equality of Arms’ and the Evolving Law of International Criminal Procedure, 5 Int’l Crim. L. Rev. 513 (2005).

[55] Initially, the Supreme Court interpreted the Constitution to not require courts to impose a due process of law standard. A.K. Gopalan v. State of Madras, AIR 1950 SC 27. However, this decision was overruled in favour of the three-pronged approach in Maneka Gandhi v. Union of India, AIR 1978 SC 597 and R.C. Cooper v Union of India, AIR 1970 SC 564.

[56] Kenneth Pennington, Innocent Until Proven Guilty: The Origins of a Legal Maxim, 63 Jurist 106 (2003).

[57] Amnesty International, Designed to Exclude: How India’s Courts are Allowing Foreigners Tribunals To Render People Stateless in Assam (2019).

[58] Rule 2(2), Foreigners (Tribunals) Order, 1964 (allows the government to determine the specific qualifications and criteria they deem fit and appoint judges based on that criteria. As a matter of practice, the government issues notifications through the Gauhati High Court for recruitment which contain the qualification criteria).

[59] Government of Assam, Order by the Governor, No. PLB.143/2014/210 (July 29, 2015). To understand how severely underqualified the judges being appointed are, consider this statement by Sanjay Hegde, a Senior Advocate of the Supreme Court of India: “If the conditions for hiring the Foreigner Tribunal members were applied for example to the Debt Recovery Tribunal, people would have yelled that injustice was being done to them. Clearly, we seem to place a lesser premium on human citizenship than on human debt.”  Supra note 64.

[60] Supra note 64 at 5.

[61] U.N. Special Rapporteur on the Independence of Judges and Lawyers, Report on the essential role that the Basic Principles on the Independence of the Judiciary have played as guarantors of judicial independence, A/74/176 (July 16, 2020).

[62] Rule 2(2), Foreigners (Tribunals) Order, 1964.

[63] Shariful Islam v. Union of India, (2019) 8 Gau. LR 322.

[64] Amina Khatun v. Union of India, (2018) 4 Gau. LR 643.

[65] Unstarred Question No. 1724, Answered on 2 July 2019, Government of India, Ministry of Home Affairs, Analysing the situation of these people, Amnesty found that despite selling their meagre possessions, most individuals are unable to appear in the Tribunals after the first or second hearing due to the financial constraints leading to the rise in orders passed ex-parte. This is despite the requirement for the state providing legal counsel. Supra note 64.

[66] Most tribunals are asking for documentary evidence of land ownership as a mark of proving citizenship. Given the class and gender hierarchies prevalent in India which prevent women, children and financially disadvantaged people from owning land, they have no method of proving citizenship. Additionally, some tribunals use stringent evidentiary standards including not permitting minor variations in spellings and ages in identity documents. In the Indian subcontinent, with English not being the first language and with various dialects leading to variations in spelling, such a standard has led to a considerable number of people being declared foreigners on flimsy grounds. Abdur Rahim v. Union of India, (1992) 1 Gau. LR 29. See, Sagar, Case Closed: How Assam’s Foreigners Tribunals, aided by the high court, function like kangaroo courts and persecute its minorities, Caravan (Nov. 5, 2019) https://caravanmagazine.in/law/assam-foreigners-tribunals-function-like-kangaroo-courts-persecute-minorities.

[67] Report of the Secretary General, Human Rights and Arbitrary Deprivation of Nationality, A/HRC/25/28 (Dec. 19, 2013).

[68] Writ or appellate jurisdiction of the High Courts and Supreme Court. Art. 32 & 226, Constitution of India, 1950.

[69] State of Assam v. Moslem Mandal & Ors., 2013 (1) GLT 809.

[70] The Supreme Court held that the Border Police Force had the powers to summarily inquire into the citizenship of any individual and then the burden of proof shifts upon the individual to prove citizenship in the Foreigners Tribunal. Idrish Ali v. Union of India, SC: WP(C)/7349/2021. It is illuminating to compare the foreigner’s tribunals to other quasi-judicial tribunals in India. Consider the Securities and Exchange Board of India, where inquiries or fact-finding missions are conducted by an officer or member of the board and then by an Appellate Authority before it reaches the final stage of adjudication, the Securities Appellate Tribunal. Alternatively, even the income tax authorities use a multi-tiered system, where inquiries are first conducted by an Income Tax Officer and the Appellate Authority before it reaches the Income Tax Appellate Tribunal. While, notionally the tribunals remain the first judicial authority in these cases, effectively a two-tiered review is conducted before the matter reaches the tribunal. Contrastingly, the Border Police Force is not required to assess citizenship, merely file references with evidence (adequate or inadequate) before the Foreigners Tribunals. Thus, the first adjudication is conducted by the Tribunal, where the burden of proof is shifted upon the defendant. Then, restricting the re-evaluation of evidence on appeal severely limits the remedies available to the defendants.

[71] There is a remarkable degree of similarity between the Foreigner’s Tribunals and immigration courts in the U.S system which reside within the executive branch, and have similar problems in terms of political control, lack of stability for judges and tenuous standards of review. See, Judge Mimi Tsankov, Human Rights at Risk: The Immigration Courts are in Need of an Overhaul, 61(1) Judges’ J. 19 (2022); Catherine Kim & Amy Semet, An Empirical Study of Political Control over Immigration Adjudication, 108 Geo. L. J. 579 (2020); Asad L. Asad, Deportation Decisions: Judicial Decision-Making in an American Immigration Court, 63(9) Am. Behav. Sci. 1221 (2019). See generally, Banks Miller, Linda Keith & Jennifer Holmes, Immigration Judges and U.S. Asylum Policy (2015).

[72] Smita Ghosh, Border Games, 1 Mich. J. L. Soc. 113 (2022).

[73] Letter to the Office of Andrew Wilkie MP, Office of the Prosecutor (Feb. 12, 2020) OTP-CR-322/14/001.

[74] Kevin Jon Heller, The OTP lets Australia off the Hook, OpinioJuris (Feb. 17, 2020) http://opiniojuris.org/2020/02/17/the-otp-lets-australia-off-the-hook/.

[75] Look no further than the indirect effects test in anti-discrimination law. See, Mark Tushnet, The Issue of State Action/Horizontal Effect in Comparative Constitutional Law, 1 Int’l J. Con. L. 79 (2003); Stephen Gardbaum, The Horizontal Effect of Constitutional Rights, 102 Mich. L. Rev.387 (2003); Austen Parrish, The Effects Test: Extraterritoriality’s Fifth Business, 61 Vand. L. Rev. 1455 (2008).

[76] Angana Chatterjee, Mihir Desai, Harsh Mander and Abdul Kalam Azad, Detention, Criminalisation and Statelessness: The Aftermath of Assam’s Statelessness, The Wire https://thewire.in/rights/detention-criminalisation-statelessness-the-aftermath-of-assams-nrc.

[77] Dulap Chandra Paul’s mental health deteriorated after having been imprisoned since 2017 and he finally passed in 2019. Nazimuddin Siddique, India’s Assam Detention Camps, 55 Econ. Pol. Weekly (2020).

[78] Ratan Chandra Biswas, who spent two and a half years in a detention camp, fell seriously ill in the camp and was admitted to the Goalpara hospital, where he remained handcuffed to a hospital bed despite his health. Id.

[79] As of 2020, there are at least thirty documented cases where the detainees have died. Sadqi Naqvi, 50-yr-old Man Lodged in Assam Detention Centre Dies, 29th Death in 3 Years, Hindustan Times (Jan. 5, 2020).

[80] Gregory Stanton, Genocide Watch for Assam India-Renewed, Genocide Watch (Aug. 18, 2019) https://www.genocidewatch.com/single-post/2019/08/18/genocide-watch-for-assam-india-renewed.

[81] Sharon Anderson-Gold, Kant, radical evil and crimes against humanity in Kant’s Anatomy of Evil 195 (Sharon Anderson-Gold & Pablo Muchik eds., 2010).

[82] See generally, Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1963).

[83] Supra note 35.

[84] Usha Ramanathan, India and the ICC, 3 J. Int’l Crim. Just. 627 (2005).

[85] Shabtai Rosenne, The Jurisdiction of the International Criminal Court, 2 Yearbook of Int’l Humanitarian L. 119 (1999). Eva La Haye, The Jurisdiction of the International Criminal Court: Controversies over the Preconditions for Exercising its Jurisdiction, 46 Netherlands Int’l L. Rev. 1 (1999).

[86] U.N. Security Council, Resolution on Sudan Referral, S/RES/1593/2005.

[87] Zhu Wenqi, On Co-operation by States not Party to the International Criminal Court, 88 Int’l Rev. Red Cross 87 (2006).

[88] See generally, Alexandre Skander Galand, UN Security Council Referrals to the International Criminal Court: Legal Nature, Effects and Limits (2018); Tom Dannenbaum, Legitimacy in War and Punishment: The Security Council and the ICC in The Oxford Handbook of International Criminal Law 130 (Frederic Merget et al eds., 2020); Frederick Cowell, Inherent Imperialism: Understanding the Legal Roots of Anti-imperialist Criticism of the International Criminal Court, 15 J. Int’l Crim. Just. 667 (2018).

[89] See generally, Beyond Detention, A Global Strategy to support Governments to end the detention of asylum seekers and refugees, UNHCR (2014); A Last Resort? National Inquiry into Children in Immigration Detention, Australian Human Rights and Equal Opportunity Commission113 (2004); Judith Greene, Bethany Carson & Andrea Black, Indefensible: A Decade of Mass Incarceration of Migrants Prosecuted for Crossing the Border, Grassroots Leadership 45 (2016).

[90] Ruth Sangree, The Language of Mass Incarceration is being deployed against Immigrants, Brennan Center for Justice (Nov. 2, 2018) https://www.brennancenter.org/our-work/analysis-opinion/language-mass-incarceration-being-deployed-against-immigrants.

[91] As international criminal prosecutions target individuals responsible for crimes against humanity, an interesting final question to consider would be, whom should the law attribute responsibility upon, within the Indian government, for these crimes against humanity? Would it be the Prime Minister as representative of the executive branch, or bureaucrats facilitating this imprisonment, or individuals working in the Border Police Force or as guards at these camps? The impossibility of a Security Council referral and therefore any prosecution before the International Criminal Court is why this essay does not consider individual accountability, and therefore does not take up this question. See, Gerhard Werle, Individual Criminal Responsibility in Article 25 ICC Statute, 5(4) J. Int’l Crim. Just. 953 (2007); Nina Jorgenson, The Responsibility of States for International Crimes139 (2000).

[92] See, Robert D Sloane, The Expressive Capacity of International Punishment, (2007) Stanford J. of Int’l L. 39(2007); Joel Feinberg, The Expressive Function of Punishment, 49 Monist 397 (1965).

[93] Carsen Stahn, Justice as Message: Expressivist Foundations of International Criminal Justice 396 (2020). See, Barrie Sander, The Expressive Turn of International Criminal Justice: A Field in Search of Meaning, 32(4) Leiden J. Int’l L. 851 (2019).

[94] Human Rights Watch, Prison Conditions in India (1991).

[95] Harsh Mander, The dark side of humanity and legality: A glimpse inside Assam’s detention centres for ‘foreigners’, Scroll (Jun. 26, 2018 06:30AM) https://scroll.in/article/883936/assam-citizens-register-detention-centres-for-foreigners-offer-a-glimpse-of-the-looming-tragedy.

[96] Supra note 64.

[97] U.N. High Commissioner for Refugees, Global Roundtable on Alternatives to Detention of Asylum-Seekers, Refugees, Migrants and Stateless Persons (July 2011).

[98] Another example of the effect of expressivism was international outrage and the end of apartheid. See, Louise Bethlehem, Cultural Solidarities: Itineraries of Anti-Apartheid Expressive Culture, 20 J. of South African & American Stud. 143 (2020). For a generic argument of the expressive effect of the ICC, see, Errol Mendes, Peace and Justice at the International Criminal Court 170 (2010).

[99] Amit Shah, Undoing Six Decades in Six Years, NarendraModi.in (May 30, 2020, 03:11PM) https://www.narendramodi.in/ma/undoing-6-decades-in-6-years-modi-has-turned-india-into-a-self-reliant-country-brimming-with-self-confidence-551895.

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