External Affairs

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 Bangalore air show earlier this year. Credit: IAI

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.

  • Andrew Pereira

    To begin with, a Human Rights Council which which consistently keeps giving membership to a notorious violator of human rights like Saudi Arabia, which recently awarded 1000+ lashes and the death penalty to Raif Badawi (a blogger who had the audacity to challenge the monarchy), has no legitimacy.

    Recently the UNHRC gave Iran a seat on the board of UN women. A country which still practices medieval and draconian rituals like genital mutilation is given a seat on the board of Women. Also, the bias of the UNHRC is not hidden behind any veil, it is clear for all to see.

    It has condemned Israel in more than 60 of its resolutions but failed pass a single resolution condemning human rights violations in Yemen, Ukraine, Oman for its violations against migrant worker’s rights and South Sudan where it was recently uncovered that small girls had been burnt alive and buried. Nor has it passed a resolution against Hamas, which was indicted by Amnesty International for torturing citizens during the 2014 Gaza offensive and also for killing Gazans by its own rockets launched at Israel.

    The author, in this article, expediently criticizes the Israeli state for defending itself against a barrage of rockets fired against its civilian population while ignoring the fact that Hamas uses civilians as shields and fires rockets from UN schools. India’s abstention from the UNHRC resolution, in my opinion, was the moral thing to do. As far as vested interests being labelled behind Modi’s upcoming visit to Israel, Modi is scheduled to visit Saudi Arabia and other Persian Gulf countries before visiting Israel.

    • Laughterhouse

      None of the arguments you’ve made above – some of them pointed and true – excuses India’s abstention.

      First, an abstention is considered a cop-out, even in the balance-fixated world of the UN. This is why only five members of the 47 in the UNHRC abstained: four minor nations, Kenya, Paraguay, Ethiopia and Macedonia, and a single major nation, India. That the Indian government didn’t have the courage of its convictions to vote against the motion doesn’t speak greatly for its geoeconomic self-confidence or its geopolitical ethics.

      Second, if you insist upon viewing the Israel-Palestine crisis as one of competitive brutalities, I’m afraid Israel wins the stakes hands down. Comparing the victim headcount of the IDF’s serial infractions in the West Bank and Gaza and of Hamās’s lobbing vaguely-aimed rockets from Beit Hanoun into Śderot in the Negev is aimless: The differential in the numbers of victims is so large and daunting that there exists no statistical basis for a comparison.

      Third, it is self-defeating to use propaganda cranked out by Israeli hasbarā – or ‘public relations’ – to strengthen a weak argument. As any number of publicly-accessible investigations – including by RAND – will inform you, Hamās neither used human shields nor fired rockets “from UN schools”. (Not that there seems to be any certainty in what you mean by “UN schools”: In the West Bank, the UNRWA operates fewer than 100 preparatory schools, most of them one-room affairs and none of which were subsequently found to have housed Hamās rocketry. On the other hand, the IDF razed schools that housed refugees – school complexes around the world are designated as secondary housing for refugees in times of crisis – killing schoolchildren in their dozens.)

      In effect, going by data, what Varadarajan wrote is pretty much indisputable: that the abstention “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”.

  • naraharijavaji

    Pragmatism or realism or idealism whatever may be in theory but in practical international relations guided by its national interests
    India since Gandhi period(here Mahatma made mistakes by involving political issues like khelaphat,Palestrina mixing with religion) we are supporting Palestrina.In return what we got from Arab countries,iran ,they voted against India in all resolutions in UN(Kashmir).energy security,indian diaspora in gulf countries are major factors in dealing with middle east.we have to maintain key balance here comes which outweigh others
    In my opinion Hamas and Israel both are wrong in killing and using civilians as shields.it is the correct decision to abstaining from vote Human rights issue become a political issue than moral issue especially in these UNHRC resolutions.
    we have to deal with future diplomatic consequences as it is a significant departure from our traditional policy towards palestena

  • Professor V. S. Mani

    I agree with Siddharth in his analysis of the change in India’s stand vis-a-vis Palestine. India’s abstention amounts to an abandonment of the cause of Palestine by India. Very similar to the about-turn India did in 1998-99 in the case of Western Sahara – In order to accommodate phosphate trade with Morocco in support of prominent private interests in India, India suddenly asked the Western Saharan Ambassador at New Delhi, to pack up his bag and leave. He was given 24 hours’ notice! This India did after all the talk supporting the Western Saharan independence.

  • Laughterhouse

    “…can also…”? This is standout whatiffery, my good man. Here’s where Israeli help stands in momento: i) water – zip; ii) agriculture – zip; iii) aerospace technology – you must be joking, or ignorant.

  • Laughterhouse

    @si91 None of the statements you’ve made above has any basis in documented fact. Not. One.

  • Laughterhouse

    Much of what you write is wishful thinking. While India’s import of Israeli military technology is an old, old fact – indeed, India’s import of military tech through South Africa precedes the establishing of India-Israel diplomatic relations in 1992 – India still PLANS to set-up a $40-million India-Israel Cooperation Fund to promote innovations through joint scientific and technological collaborations.

    Despite making repeated promises to visit Israel in 2015, Prime Minister Narendra Modi never quite made it last year, preferring to send President Pranab Mukherjee in his place (after Rajnath Singh in 2014). It was only on January 2016 that Sushma Swaraj made it there, in the backwash of the first ministerial meeting of the India-Arab League Cooperation Forum in Bahrain.

    There’s a reason for this: Israel’s increasing unwillingness to let go of the massive arms market it sees in China (and Reuven Rivlin’s consequent overtures to Xi Jinping). If there is one thing that the Indian government will absolutely not countenance, it is sharing weapons platforms with China, whatever their provenance.

    Yes, there were – repeat were – signs of a ratcheting-up of coöperation in drip irrigation, horticulture mechanisation, protected cultivation, orchard/canopy/nursery management, microirrigation, and postharvest management between India and Israel. But this coöperation has remained limited to eight states, where it has more or less plateaued at techfeeds worth ₹159.90 crore – which is a pimply sum, especially given that the number of these “centres of excellence” was supposed to have exceeded 30 by end-2015. Which never happened.

    Israel’s signal intervention in Indian agriculture remains the disastrous Indira Gandhi Canal.

    “Israeli aerospace”, meanwhile, is short for the IAI, or Israeli Aerospace Industries, which sells military defence and civilian-use flight equipment. The IAI helped the Israeli Space Agency build LEO (low-Earth orbit) satellites, which India’s own capabilities have far exceeded.