Netanyahu's Phone Call to Modi, Not ICC Reference, Changed India's Israel Vote

India has backed resolutions referring to the International Criminal Court before, contrary to what the MEA claims

Israeli Defence Minister Moshe Ya'alon and Prime Minister Narendra Modi at the Israel Aerospace Industries pavilion during the Aero India exhibition in Bangalore earlier this year. Credit: IAI

The Ministry of External Affairs was being economical with the truth when it said India's decision to abstain in a crucial UN vote on Israeli violations of international law was because the resolution had a reference to the International Criminal Court, which India is not a member of.

The resolution was supported by 41 of the 47 countries on the UNHRC, including its European Union members, Russia and China. The United States was the only country to oppose it, while Kenya, Paraguay, Ethiopia and Macedonia joined India in abstaining.

''There is no change in India’s long standing position on support to the Palestinian cause," the MEA said in a short statement explaining Friday's unusual vote at the UN Human Rights Council (UNHRC) in Geneva. "The issue in this particular Resolution was the reference to the International Criminal Court (ICC). India is not a signatory to the Rome Statute establishing the ICC.  In the past also, whenever a Human Rights Council resolution had made a direct reference to the ICC, as had happened in the Resolutions on Syria and North Korea, our general approach had been to abstain. We have followed the same principle in our voting on today’s Resolution. ''

What the MEA conveniently ignored was the fact that India has actually voted in favour of a major resolution which made a "reference to the International Criminal Court" - on Libya - and done so in the UN Security Council, a forum where votes are far more crucial because the UNSC has the authority to refer countries to the ICC even if they have not accepted the court's jurisdiction. It has also voted twice for resolutions on Syria at the UNHRC which made a reference to the ICC.

Dial M for Modi

The MEA also omitted to mention the fact that Israel's Prime Minister, Benjamin Netanyahu, had telephoned Prime Minister Narendra Modi in the run-up to the UNHRC meeting to push for a change in India's traditional stand of backing the Palestinians in all matters involving Israel's illegal occupation of Gaza and the West Bank.

Ha'aretz reports that "Officials at the [Israeli] Prime Minister's Office ... added that in recent days Prime Minister Benjamin Netanyahu spoke with the Indian premier, the Kenyan president and the prime minister of Ethiopia and asked them to abstain." The fact that India abstained, the paper said, "reflects a significant policy change by Delhi; traditionally, India voted in favour of all anti-Israel resolutions in UN institutions. Friday's abstention is another sign of warming ties between India and Israel since the election of Prime Minister Narendra Modi in 2014."

Tel Aviv has been on edge the past week following the UN Commission of Inquiry report indicting the Israeli military for killing 1,462 Palestinian civilians during the 2014 Gaza war. Palestine is a party to the ICC and the UN report had urged the court's prosecutors to investigate possible war crimes committed on its territory by the combatants, mainly Israeli soldiers and officers.

Palestine a party to ICC

Friday's resolution on which India abstained had six operative parts: (1) It welcomed the UN report on the Gaza war; (2) It called for the report's recommendations to be implemented; (3) It noted the importance of the report's findings in identifying "alleged perpetrators of violations of international law"; (4) It emphasised the need to hold such violators accountable through domestic or international legal mechanisms; (5) It called upon the parties concerned [i.e. Israel and Palestine] to cooperate with the International Criminal Court; and (6) it called for all parties to respect the Fourth Geneva Convention, which deals with the rights of people living under foreign occupation.

Based on this text, and the fact that Palestine - the country whose territory and people were ravaged by the Israeli military - has acceded to the International Criminal Court, India had no reason to be squeamish about the reference to the ICC. Israel is not a party to the ICC but the court's statute - like India's laws - covers crimes committed on a state-party's territory regardless of the nationality of the perpetrator.

India, Libya and the ICC

In any case, the explanation the MEA has offered doesn't add up considering India went much further in 2012 when it voted to refer Libya - a country that had not at the time accepted the court's jurisdiction - to the ICC.

India's votes on resolutions involving the ICC were cast in 2011-12, when the country was a non-permanent member of the UN Security Council. On February 26, 2011, India voted for Resolution 1970 which, besides, other things referred Libya to the ICC and made demands on the Libyan authorities that far exceeded those envisaged by the resolution on Israel that Prime Minister Modi instructed India's ambassador to abstain on:

4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;

5. Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;

6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in theLibyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;

While India backed the above-mentioned resolution, it abstained a month later on Resolution 1973 which authorised a no-fly-zone over Libya. In its explanation of vote, however, India made no mention of any objection it might have developed by then towards the ICC's role.

Mali resolutions

India voted again for two resolutions involving the ICC on October 17, 2012 and December 20, 2012, this time on Mali. Resolution 2071 and 2085 said the Security Council would support Mali in bringing to justice those responsible for war crimes and crimes against humanity "taking into account the referral by the transitional authorities of Mali of the situation in their country since January 2012 to the International Criminal Court."

The Mali case is of special relevance because its government, like that of the Palestinians, had voluntarily accepted the jurisdiction of the ICC. In neither case would India have been justified in opposing the resolution merely because it was not a party to the Rome Statute which set up the ICC.

As is clear from the Indian government's voting record on the Iranian nuclear issue, the fact that India is not a party to a treaty like the NPT has not prevented it from demanding that countries which have signed it, like Iran, must then abide by it.

Just as India abstains from or votes against UN disarmament resolutions that make a reference to the need for universal adherence to the NPT, abstaining on a resolution that demands all countries abide by the ICC would be consistent with the Indian approach to international law. But the UNHRC resolution on Palestine made no such demand on India, nor did it make any sweeping assertion about the ICC having been "established to help to end impunity for such crimes where the State is unwilling or unable to genuinely carry out investigations or prosecutions" - language that led India to abstain from a resolution in March on Syria.

Why India matters

The fact that Netanyahu's phone call to Modi might have been decisive becomes apparent when one looks at India's voting pattern in the UNHRC this year.

In the 28th session of the Human Rights Council which ended in March 2015, resolutions were passed on the human rights situation in the Occupied Palestinian Territory, including East Jerusalem; Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan; and the right of the Palestinian people to self-determination. In all three cases, India voted in favour of these resolutions and against Israel. Based on this record, Netanyahu had every reason to believe New Delhi was likely to vote for the July 3 resolution on the UN's report on the Gaza war. While the earlier resolutions didn't really matter, Tel Aviv was worried about the manner in which the demand for an ICC investigation and eventual prosecution of Israeli war crimes had been gathering momentum. With the European Union making it clear that it would be voting against Israel and only the United States willing to cast a negative vote, Netanyahu tried hard to turn at least one major country in his favour.

His strategy paid off, but it has left Indian diplomats floundering for a credible explanation for their volte face. It has also weakened the country's international credentials at a time when Modi is keen to make a renewed push for a permanent Indian seat on the UN Security Council. The world does not want or need another permanent member that is incapable of behaving consistently and honourably on major questions of international peace and security. Those slots are already occupied.

Note: The article has been edited (i) to add the break-up of the UNHRC vote, (ii) correct the years India was on the UN Security Council to 2011-12, (iii) correct the number of the Mali resolution India that India had voted on at the UNSC from 2100 to 2071 and 2085, and (iv) to add a reference to India voting for two resolutions on Syria at the UNHRC in 2012.

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