Kapil Sibal’s push for an ICC probe is misplaced, but still matters

On April 22, 2025, a coordinated terror attack in Pahalgam, Jammu & Kashmir, claimed the lives of over twenty-six civilians and left many others seriously injured. In response, Senior Advocate and Rajya Sabha MP Kapil Sibal issued a scathing condemnation and urged that the matter be referred to the International Criminal Court (ICC) in The Hague.

This is not the first time the ICC has featured in regional political discourse. The Court was recently invoked in the context of the arrest of former Philippine President Rodrigo Duterte. Closer to home, there have also been calls to investigate Bangladesh’s Prime Minister Sheikh Hasina for her alleged role in the mass uprisings of July–August 2024.

It’s an intriguing proposition that Mr. Sibal is putting forth. A lawyer of his stature understands neither India nor Pakistan is a party to the Rome Statute — the treaty that established and governs the ICC. This fact will prevent the ICC from intervening combined with India’s own reluctance to engage with the Court making the ICC an unlikely venue for pursuing justice in the Pahalgam case.

So why suggest it? Perhaps Sibal is hinting at a broader strategic shift — that India might, in time, consider acceding to the Rome Statute as a way of signaling its commitment to international justice, reinforcing multilateral alliances, and asserting its leadership in the Global South. Or perhaps he’s advocating for a response grounded in the rule of law and due process, as a counterpoint to more reactionary impulses.

Still, before we can begin to assign any motivation, it is essential to understand what the ICC is — and how it works.

Not to be confused with the International Cricket Council or the International Court of Justice, the ICC is a permanent, treaty-based judicial institution that investigates and, where warranted, tries individuals accused of the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC was established by the Rome Statute, which entered into force on July 1, 2002. As of now, 125 countries are States Parties to the Rome Statute. These include 33 African States, 19 from the Asia-Pacific region, 20 from Eastern Europe, 28 from Latin America and the Caribbean, and 25 from Western Europe and other regions. Notably, some major global powers — including India, China, the United States, Russia, and Israel — have not joined the Court.

The ICC’s jurisdiction rests on three pillars. First, it has subject-matter jurisdiction over four core crimes: genocide, crimes against humanity, war crimes, and — under a special regime— the crime of aggression. Second, it has temporal jurisdiction, meaning it may only prosecute crimes committed on or after July 1, 2002. Third, it requires a territorial or personal link to a State Party, unless a situation is referred by the United Nations Security Council under Chapter VII of the UN Charter.

It is also important to understand how a case can come under the ICC’s scrutiny. The first is a referral by a State Party. This occurs when a country that has ratified the Rome Statute requests the ICC to investigate crimes committed on its own territory. Ongoing investigations in the Democratic Republic of Congo, the Central African Republic, Uganda, and Palestine, for example, were all initiated through self-referrals. Notably, non-member states may engage the Court’s jurisdiction by making a special declaration accepting it. Ukraine, though not initially a State Party, exercised this option twice before formally ratifying the Rome Statute in 2024.

The second route is through referral by the UN Security Council. This mechanism allows the Council to bring situations in non-State Parties under the ICC’s jurisdiction, as it did with Libya in 2011 and Sudan’s Darfur region in 2005.

The third pathway is through a proprio motu investigation (on its own motion), in which the ICC Prosecutor may, with judicial authorization, initiate an investigation without a State or UN referral. This option is available only for crimes committed in the territory of or by nationals of a State Party — unless the Security Council intervenes. Philippines is a notable example, where the Court authorized the Prosecutor to begin investigating alleged crimes committed between November 1, 2011, and March 16, 2019, in connection with the country’s so-called "war on drugs."

It is imperative to remember that the ICC is the Court of ‘Last Resort’. It is intended to complement, not replace, national criminal systems. The ICC’s design rests on complementarity, a cornerstone where it acts only when national courts are “unable or unwilling” genuinely to investigate or prosecute these crimes. Furthermore, as a judicial institution, the ICC does not have its own police force or enforcement body; thus, it relies on cooperation with countries worldwide for support, particularly for making arrests, transferring arrested persons to the ICC detention centre in The Hague, freezing suspects’ assets, and enforcing sentences.

Neither India nor Pakistan has ratified the Rome Statute. While it has often been suggested that major global powers hesitate to join the ICC due to concerns over sovereignty and the potential for prosecution, India’s position is rooted in a more detailed set of objections. A former Indian diplomat, writing for the Observer Research Foundation, outlined several of India’s key concerns with the Rome Statute which included ICC’s subordination to the UN Security Council, the Court’s ability to bind non-member states, and for granting excessive powers to the ICC Prosecutor. Finally, India was also dissatisfied with the exclusion of nuclear weapons and terrorism from the list of crimes under the ICC’s jurisdiction.

In the current geopolitical context, a United Nations Security Council resolution referring the Pahalgam attack to the ICC is out of the question. In any case, India’s domestic legal framework is, at least in theory, equipped with comprehensive tools to investigate, prosecute, and punish acts of terrorism, including those involving cross-border elements. These mechanisms are grounded in constitutional guarantees and due process protections. Consequently, any attempt to bring the perpetrators of the Pahalgam attack before the ICC is a nonstarter.

Yet while the ICC may not be the appropriate forum for addressing this particular incident, there is a broader strategic question worth asking: should India consider joining the Court? The answer, at least from a long-term diplomatic and normative perspective, is arguably yes.

The international order is undergoing a seismic shift. The United States, long regarded as the leader of the free world, is increasingly retreating from its traditional role. Recent executive orders by the U.S. President—signals withdrawal from the World Health Organization (WHO), shutting down the U.S. Agency for International Development (USAID), and imposing sanctions against ICC—underscore this trend. Simultaneously, the European Union is preoccupied with its own internal struggles, marked by the rise of far-right movements in Germany, France, and the Netherlands. In this landscape of uncertainty, the world finds itself at a crossroads. A leadership and policy vacuum has emerged, and it is imperative that countries from the Global South step up to fill this void.

However, not all nations are suited for this responsibility. China, with its growing economic and geopolitical influence, is well positioned but it should not be allowed to take up this mandate. The leadership vacuum must be filled by a country that upholds democratic values, international law, and global cooperation. India, unlike China, upholds a vibrant, albeit imperfect, democratic system with free elections, independent institutions, and a strong civil society. Its historical commitment to non-alignment, peacekeeping, and multilateralism makes it a natural candidate to step into the space left by the U.S. And its rapidly growing economy, strategic geo-political clout, and diplomatic credibility further strengthen its case for global leadership.

However, leadership is not inherited, it is exerted. For India to truly assume this role, it must take decisive action. This requires bold policymaking, international engagement, and a commitment to upholding human rights and global justice. The first step in this direction should be ratifying the Rome Statute, thereby joining the ICC and reinforcing its commitment to international justice. Its accession will also lend the ICC greater legitimacy in Africa, Asia, and Latin America, reinforcing the idea that international justice is a truly global concern—not just a Western project.

There is also a practical case to be made. Membership would grant India a seat at the ICC’s Assembly of States Parties, giving it influence over the Court’s governance and future direction. India could use this platform to advocate for procedural improvements, and greater efficiency in investigations and prosecutions. Domestically, ratification could catalyze a much-needed update of India's legal architecture. Bringing domestic law in line with international norms would involve formally codifying crimes such as genocide, war crimes, and crimes against humanity, thus reinforcing India’s own legal safeguards while strengthening the broader rule-of-law framework.

Kapil Sibal’s call for ICC prosecution in the aftermath of Pahalgam does not pass legal muster, but it captures a deeper and more resonant truth, the need for credible accountability. And it offers India something more consequential—a chance to lead. The path forward will require courage, clarity, and a willingness to engage with multilateralism not as a constraint, but as a platform for principled action. If India is serious about its global ambitions, then it must also be serious about the institutions that will shape the international order of the future.

Accession to the ICC would not only underscore India’s enduring commitment to justice and the rule of law but would also affirm its readiness to help shape the global norms it seeks to uphold. It is a signal that India is not content to remain on the sidelines of the international legal order but is prepared to help define it—on its own terms, and with the weight of democratic legitimacy behind it.

𝘋𝘦𝘷𝘺𝘢𝘯𝘪 𝘒𝘢𝘤𝘬𝘦𝘳 𝘪𝘴 𝘢 𝘩𝘶𝘮𝘢𝘯 𝘳𝘪𝘨𝘩𝘵𝘴 𝘭𝘢𝘸𝘺𝘦𝘳. 𝘚𝘩𝘦 𝘩𝘢𝘴 𝘱𝘳𝘦𝘷𝘪𝘰𝘶𝘴𝘭𝘺 𝘸𝘰𝘳𝘬𝘦𝘥 𝘸𝘪𝘵𝘩 𝘵𝘩𝘦 𝘛𝘩𝘰𝘮𝘴𝘰𝘯 𝘙𝘦𝘶𝘵𝘦𝘳𝘴 𝘍𝘰𝘶𝘯𝘥𝘢𝘵𝘪𝘰𝘯, 𝘵𝘩𝘦 𝘐𝘯𝘵𝘦𝘳𝘯𝘢𝘵𝘪𝘰𝘯𝘢𝘭 𝘊𝘳𝘪𝘮𝘪𝘯𝘢𝘭 𝘊𝘰𝘶𝘳𝘵, 𝘢𝘯𝘥 𝘵𝘩𝘦 𝘜𝘯𝘪𝘵𝘦𝘥 𝘕𝘢𝘵𝘪𝘰𝘯𝘴.