This article is written by Kinjal Sharma.
Table of Contents
Genocide has been an issue of global-historical occurrence due to which the world has witnessed many gruesome episodes of mass killings, from The Holodomor in 1932 where 1.8 million Ukrainians were killed, to The Polish Operation of NKVD in 1937 where 22% population of Poland was sentenced to death, to The Holocaust in 1941 where the Nazis killed 6 million European Jews, to our very own National Anti-Sikh Riots in 1984 where an estimate of 8000 – 17000 Sikhs were murdered across India, to Rwandan Genocide against Tutsi in 1994 where 0.8 million people i.e. 20% population of Rwanda was slaughtered. Post multiple killings of millions of people till the mid-20th century, the crime was termed as Genocide in 1944 during the Holocaust by Raphael Lemkin who was a Polish-Jewish jurist. Later the crime was declared as an international crime in 1948 upon the adoption of Convention on the Prevention and Punishment of the Crime of Genocide by the United Nations General Assembly.
The Convention described genocide as the commission of acts to vanish away a mass of people of a particular nation, their ethnicity, race or religious group. The act may include the mass killing of people, causing grave injuries to the people of a particular group, deliberately causing physical destruction, undertaking activities to avert childbirth within the group or aggressively transfer children from one group to the another. Genocide is an atrocious act that deliberately and systematically targets the destruction of the lives of a community, leaving behind a deserted nation with untenanted memories and shattered health of the survivors. The occurrence of antecedent genocides in the 20th century has only brought incalculable misery, distress and hardship to the survivors and relatives of the victims. Genocides have had a long-term effect on the survivors and potentially the successors, leaving forever lasting scars on them even after the killings are over. Various studies have concluded that genocide has a long-lasting mental health repercussion such as anxiety, schizophrenia, depression, suicide, post-traumatic stress and it even impedes the personal growth and development of a person.
Brief timeline of international framework on Genocide
The following timeline detects the evolution of the expression “genocide” and its codification in international law:
1945−46 – Issuance of Legal Sanctions
The allied powers decided to codify the standards of “Crime Against Humanity” into an enforceable law and penalize the Nazi war offenders for committing atrocities during the Holocaust against the European Jews. The only drawback of this law was that it was only applicable to the atrocities committed during international warfare.
1948 – The United Nations General Assembly adopted the United Nations Convention on Prevention and Punishment of the Crime of Genocide on 9th December 1948. the Convention, later came into force in 1951 when more than 20 countries across the world approved it and promised to prevent the occurrence of genocide and punish the offenders committing such barbarous acts. Since 1951 the Convention has been ratified by over 150 nations.
The 1950s − 1990s
The promises made in 1948 were not fulfilled. The colossal destructions of millions of lives occurred following the Holocaust even after ratification of the Convention and promise of punishing the offenders, proving the convention to have ineffective enforcement system. In Cambodia, when Khmer Rouge, the ruler at that point in time murdered 1.7 million civilians in 1975-79, not even a single nation invoked the convention. The nations that ratified the Genocide Convention were not able to conclude whether these acts of barbarity were constituting genocide or not.
1988 – The United States being one of the original signatories, ratified the UN Genocide Convention by President Ronald Reagen in 1988, before that they did not approve of the convention. Even in 1988, Reagen had to face strong opposition by the political leaders who thought that the convention would restrict the sovereignty of the US.
1998 – Establishment of a Perpetual Court and First Conviction for Genocide
On 17th July 1998, upon ratification of an international treaty, the International Criminal Court was established to punish crimes against humanity, genocide and war crimes. The treaty reiterated the definition of genocide as mentioned in 1948 UNCPPCG, extending it to the crimes against humanity, taking genocide in its ambit and applying it to the times of war and peace. The treaty also focused on prohibiting and penalizing the offenders for committing such atrocities against the citizens.
Another major achievement of 1998 included the first conviction for committing genocide. On 2nd September 1998, Jean-Paul Akayesu was held guilty for his engagement in the Rwandan Genocide occurred in 1994 against Tutsi and was convicted by the International Criminal Tribunal of Rwanda.
Genocide and crime against humanity
Mob violence, torment, infringement of basic human rights and ill-treatment of civilians to safeguard the interest of a particular group is not a way to maintain humanity. It is time to develop a significant understanding of political, societal and cultural roots of crimes against humanity.
Crimes against humanity (CAH) is an umbrella term which takes war crimes and genocide within its ambit. Crimes against Humanity as defined by the Charter of the International Military Tribunal (Nürnberg Charter) in 1945. It constitutes the wicked acts against citizens such as extermination, murder, deportation, rape, enslavement, forced prostitution, forced pregnancy, other bodily, mental or physical suffering or persecution based on racial, religious or political groups before or during a war. Crimes against humanity are substantially about the infringement of fundamental human rights and values. They do not consider the laws of the nation where the crime was committed and the case has to be tackled by the Tribunal if the nation comes under its jurisdiction.
On the other hand, genocide always welcomes mass murders with an intent of destruction of lives of the people belonging to certain groups based on diversification in religion, race, political view or any other criteria. It is distinguished from CAH based on the brutal intention to destroy the lives of people belonging to a certain group whereas CAH does not require this particular intent for the destruction. In Prosecutor v. Kambanda, a Trial Chamber of the International Criminal Tribunal for Rwanda elucidated that commission of genocide constitutes special intent to destruct the lives of people from certain groups and it only composes crime of crimes, whereas crimes against humanity may constitute confiscation of property, deportation or forced labour which may be the inception of genocide but may not necessarily lead to genocide. But genocide is always a crime against humanity because its objective is to obliterate a part of humanity, eradicate a certain category of people and negates the human status of the victims.
Globally, crimes against humanity come under the Rome Statute of the International Criminal Court, but India is not a part of the Rome Statute. Even after approving the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide, India has not ratified it in the national statute and hence, it has no duty to ratify a discrete national statute dealing with crimes against humanity.
Genocide – an Indian Perspective
India is known for its diverse culture representing almost all the religions such as Hinduism, Jainism, Buddhism, Sikhism, Christianity and Islam. Other than that, India recognizes regional tribe’s diversity too under its Constitution. Due to this diversity and the ubiquitous Indian caste system, the people of this nation have polarised views on race, religion, caste, region and economic background.
Regrettably, India has observed mob violence influenced by political and religious factors since its independence. The 1966 Anti-Cow Slaughter Protests, 1984 Anti-Sikh Riots, 1987 Hasmipura Massacre, 1992 Babri Masjid Riots, 1993 Sopore Massacre, 2002 Gujarat Riots, 2008 Odisha Kandhamal Violence and 2013 Muzzafarnagar Riots raised questions on cultural impunity and inadequate policies for crimes committed against mass in India. In all these instances of mob violence, India has witnessed a high level of impunity and crimes targeting minorities, headed by a dominant political figure.
Politics have taken precedence over all other factors in the violence cases, specifically in 1984 Anti-Sikh Riots in which the survivors and victims’ families were not provided justice for three decades and questions were raised the on the judicial system, law enforcement and criminal prosecution. A debate has been existing whether the mass destruction of lives of Sikhs due to the assassination of Indira Gandhi, completely based on the religious identity was the genocide of Sikhs or not.
1984 Anti-Sikh riots – a planned genocide?
The assassination of Indira Gandhi led to mob killings of a large number of Sikh all across India, especially Delhi. The official report indicated that the assassination was carried out by her Sikh bodyguards, that is why the riots broke out were only against Sikh and an estimate of 2773 Sikhs was killed in Delhi. During the riots, various gurudwaras were vandalized and Sikhs were dragged out of their homes and burnt alive on the roads.
It created a very horrific picture for not only Sikhs but other people too living in the vicinity. The Nanavati Commission Report, 2005 in its investigation in the riots mention about witnesses against the Congress leaders like Sajjan Kumar, Jagdish Tytler and Kamal Nath, who were later toppled and turned hostile. Most of the cases were not filed in the courts and some that were filed were disposed of because of lack of evidence against the offenders. The commencing outburst of riots could be defined as the spontaneous response of people on the assassination of the then Prime Minister Indira Gandhi but the Nanavati Commission concluded that the following happenings appeared to be the planned attacks on people of Sikh community and their settlements.
The offenders who carried out the violence against Sikhs were contacted to carry out such atrocities, briefed on how to identify their homes and loot them, and were supplied necessary weapons and fuels to the mass to eradicate the Sikh population from Delhi. The violence followed a similar pattern of dragging out the male Sikh members from their homes, beating them and burning them alive with the mob shouting anti-Sikh slogans. Tyres were placed over their heads and were burnt with either kerosene or petrol. The organization, planning, preparation and extermination wherein the Sikhs were specifically targeted amounted to a few of the stages out of eight stages of genocide.
The bodies of Sikhs were mutilated by burning to eliminate Sikhs in a very deliberate, structural and systematical manner with an object of leading to extermination. Based on the evidence, the Commission referred to the participation of Congress Leaders in the riots but was unable to find out any evidence to prove the participation of the political leaders. The Commission suggested actions against Sajjan Kumar and Jagdish Tytler, two political leaders of Congress against whom accusing proofs were found of organizing and inciting the mob violence against Sikhs, but due to lack of enough pieces of evidence, Jagdish Tytler was given clean chit in 2009. Although, the Delhi High Court instructed the Central Bureau of Investigation to re-investigate the case of Sajjan Kumar because few pieces of shreds of evidence were left unexamined. After re-investigation, he was charged with the instigation of hatred against Sikhs leading to their mob killing and was sentenced to life imprisonment.
Need for laws against Genocide and Crimes against Humanity
The conviction of Sajjan Kumar for his conspiracy in anti-Sikh riots drew the attention of the law-making bodies to the drawbacks of Indian Criminal Law which made it tough to prosecute the offender for mass killings. While making the whole scenario transparent, it was observed that no law punishes killing or causing the physical or mental injury of a particular community of people to destroy the whole community. In other words, the essence of genocide i.e. mass killings or targeting people from a particular group is not recognized as a crime beyond murder in India. In-State through CBI v. Sajjan Kumar & Ors., the Delhi High Court observed that India has no law related to genocide and crimes against humanity which would suit the crime in question and this loophole weakens the legal system and should be tackled shrewdly and urgently.
This loophole allows the accused accountable for mob violence to escape prosecution and punishment. The term “Genocide” finds no place in Indian Criminal Law because India has not defined it, even though India has ratified the 1948 UN Convention. The Genocide Convention obliges the nations that have ratified it to enact a law for prevention and punishment of genocide and oblige to have a competent tribunal to try the accused, but India has failed to perform the obligation of enacting national legislation and establishing a tribunal for the same. Also, the Constitution, essentially need India to have respect for the international laws and treaty obligations, however, no considerable steps have been taken to enact a law against genocide making it punishable.
The 1984 riots against Sikhs consisted of mass killings and aimed at partial destruction of the community of people belonging to an identifiable group. While dealing with that crime, Delhi High Court stated that it is high time for India to enact national legislation dealing with crimes against humanity and genocide and expressed their desirability of filling this loophole and establishing proper tribunals to try the accused. Enactment of such legislation will help our nation to protect its civilians, minorities, vulnerable groups along with preserving the identifiable social groups and prevent mass killings that have been happening since time immemorial because of cultural and religious diversification. The new law will help the nation in punishing the offenders of such atrocities and their inhumane intention will not go unpunished.
Genocide is one of the horrific crimes against humankind. It is a conspiracy requiring a proper plan of action and specificity arises from the intention to destruct the group. It is a crime of more grave in nature than any other crimes against humanity and insinuates toward an intent to completely eradicate a particular category of people. It delineated how cruel and inhuman mankind has become. It forgets that everyone has the right to life and every racial, religious or regional group have a natural right to exist. Attempt to eradicate such group infringes their rights. Hence, stringent laws should be made against genocide and crime against humanity to create deterrence and punish the perpetrators. Especially, India desperately needs to enact laws, various policies and strategies against crime against humanity and genocide because it has failed to term various mass killings as genocide or crime against humanity and the offenders evaded unpunished with no justice being served to the victims and their families.
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