This article is written by Ghanisht Bagaria who is pursuing a Certificate course in Advanced Criminal Litigation and Trial Advocacy from Lawsikho.

Introduction

A law student asked the teacher in an International Law class – “Sir, when thousands of Indians were brutally killed by Britishers, why were there no meetings held by international leaders and international communities? Why was there no one discussing the human rights of Indians? Why were there no Geneva conventions taken place?”

The teacher replied – “The fault is in the colour of your skin.”

In earlier days the easiest way to solve a dispute was to overpower the other. Whoever overpowers the other, gets to enforce his terms and conditions. The similar condition is faced by India where China is trying to overpower India on the northern borders. It was considered a successful process though a brutal one. In those times there was no need of courts, arbitration, conciliations, and mediations.

There are numerous examples of wars where two or more nations fought over petty issues which could have been solved by simple talks between the leaders. Millions of lives could have been saved but in those times there was no concept of war crimes and human rights. 

The after effects of these wars were that thousands of soldiers were injured and thousands died. The soldiers who survived were also kept as prisoners of war who were later killed or sentenced to imprisonment for life. Both the civilians and armed forces were targeted. Millions of civilians were raped, murdered, used for human experiments, etc. 

What is the fault of the civilian who never wished for the war? What is the fault of the civilians who wished to lead a normal life and have a family of their own but the war was started by their leaders? What is the fault of the doctors who are put in dangerous war zones just to treat the injured people?

What is a War Crime?

War crimes are those violations of International Humanitarian Law (treaty or customary law) that incur individual criminal responsibility under International law. War crimes carry an individual liability i.e. the person who has committed a war crime cannot take the defence that he was following the orders of his seniors, one is supposed to not indulge in war crimes even on the orders of their superiors. War crimes include torture, rape, destroying property, intentional killing of civilians and prisoner of war, not providing necessary items for the survival of captured people, taking hostages, etc.

The concept of a War Crime is related to international humanitarian laws. War Crime is a gross violation of international humanitarian laws as defined in Rome Statute of the International Criminal Court. The basis of the development of these laws is the maltreatment of human beings especially during the war times. There have to be some boundaries on the treatment of a human being no matter to which religion or which nation or to which sex one belongs to, even during the war times.

Who Started The Concept of Humanitarian Laws?

Henry Dunant was present in Italy when the war started between France and Austria. He witnessed the whole war and saw the brutalities committed by the soldiers. He wrote the book named ‘The Memory of Solferino’ in which he described the war of solferino and about the idea of an organization that takes care of the wounded soldiers. Later he started the organization called Red cross.

This book sparked the debate about humanitarian laws and war crimes all over the world. The idea spread all around the European nations and many leaders came together to work on the Geneva Convention. He was awarded the first Nobel peace prize for his work on humanitarian laws.

The Geneva convention is a set of four treaties and three protocols. These are the golden laws of humanitarian treatment of soldiers in war. Before the Geneva Convention came into place there used be no limits on the treatment of humans in the war. The timeline of the progress of these golden laws is:

• The first Geneva convention held in 1864 laid laws on the care and protection of the affected soldiers on land.
• The second Geneva convention held in 1906 laid laws on the care and protection of soldiers at sea.
• The third Geneva convention held in 1929 laid laws on the treatment of prisoners of war.
• The fourth Geneva convention held in 1949 laid laws on the protection of civilians during wartime. It includes all the relief workers including doctors. 

The Geneva Convention came into force in 1949 after World war II. It was accepted by most of the nations. As we know, the law is a forever evolving concept therefore with the evolving world, the international community felt the need to add a few protocols to the Geneva Conventions. The timeline of incorporating additional protocols are-

• Additional protocol I was added in 1977 which laid laws related to the victims of international war.
• Additional protocol II was also added in 1977 which laid laws related to the protection of non-international armed conflicts.
• Additional protocol III was added in 2005 which laid the foundation of an organization named red crystal.

Genocide

After the whole world saw the atrocities committed by humans on humans in the world war II, the general assembly came with ‘CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE-1948.’ 

The important articles under this convention are-

• Article I states that genocide whether committed in peace or in war time. It is an international crime. The nations must prevent it or punish the culprit.
• Article II defines the term genocide. Any act done to destroy or with an intention to destroy a national, ethnical, racial or religious group, as such:

• Killing members of any group.
• Causing serious bodily injury or any mental harm to members of the group.
• Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
• Imposing measures intended to prevent births within the group.
• Forcibly transferring children of the group to another group.
• Article III provides the list of the acts that shall be punishable are-
  • Genocide;
  • Conspiracy to commit genocide;
  • Direct and public incitement to commit genocide;
  • Complicity in genocide;
  • Attempt to commit genocide.
• Article IV of the convention states that any person committing the genocide will be punishable.
• Article V of the convention states that the contracting parties will enact the laws in their nation to punish the guilty people.
• Article VI states that people who commit the act of genocide will be tried by the competent tribunal of the respective state or by the international tribunal.

War Crimes And World Wars

There were efforts made after world war I when countries came together and signed a treaty of Versailles in 1919 for the prevalence of peace but it was not enough to check the nations from entering into another world war. This time the world was more advanced with better technology and greater weapons for the destruction. 

There were many casualties across the world. Nations lost their soldiers and civilians were dragged into the war. There were a mass number of rapes and genocide all over the world. Particular religions were targeted and they were killed in the most inhumane way. 

There were no international laws to prevent or to stop a world war. The world was not a mature community at that time. They were not far-sighted enough to make laws to encounter a situation like this. Actually the human race is never adequately prepared for the future. They suffer and then learn.

Nuclear weapons were dropped in Japan to win the war by the USA. This was the most inhumane act which targeted civilians and they still suffer the aftereffects of the nuclear attack. World war-II ended in 1945. The nations came together after the war to form and agree on the terms of Geneva Conventions. 

What followed was highly immoral as “conquerors came together for punishing the conquered” as said by Judge Radhabinod Pal. The ‘Convention on the prevention and punishment of the crime of genocide-1948’ was made a retrospective law. According to this law, the leaders of the nations who lost the world war were to be punished for the acts they committed which are now made war crimes. 

The unfamous trials that took place after world war II were the Nuremberg trial and the Tokyo trial.

In the Nuremberg trial, the German forces and leaders were punished for their acts by the judges who were called from different nations. Many were given a death sentence and others were given imprisonment. There was no dissenting judgement in this trial.

In the Tokyo trial, the trial was conducted against the leaders of Japan. There were a total of thirteen judges from thirteen different countries including India. After this trail all the leaders were punished. There was only one judge who had the courage to stand against the conquerors. 

Radhabinod Pal was the only judge with dissenting judgement and he held every accused not guilty in the Tokyo trial. He said that the laws were made after the acts were done and it is not fair to punish a person who has committed an act knowing that it is legal, if he would have known that the act was illegal he might have never done it. The laws were made retrospective specially to punish the countries who lost the war. He said it was an act of revenge by the nations who won the war.

War Crimes in India

War crimes have been happening in India since Britishers took over but the sad part is that it continued even after independence. Let’s briefly discuss the war crimes committed in India after independence.

• Genocide of Sikhs in (1984)– After the 3rd prime minister of India Indira Gandhi was killed by her Sikh bodyguards, there was wide spread violence against Sikh community in many parts of India. People belonging to Sikh community were targeted and killed in an inhumane way. There was no protection given by the government authorities. Some sources say it was a planned genocide by ruling government at that time. First conviction in this case took place in 2018, the case is discussed in the later part of this article. 

• Exodus of Kashmiri Pandits (1990)- In 1990 all the Kashmiri Pandits were given a warnings from the loudspeakers of the mosques overnight to either convert to Islam or leave Kashmir. All the belongings of Kashmiri Pandits were targeted such as shops, mandirs, etc. People were killed in large numbers. People were forced to leave their homes and their livelihood. Those people are still living in poor conditions. Till date there is no compensation  and no justice has been given to the victims except abrogation of Article 370 of the Constitution of India
• Gujarat riots (2002)- On 27 February 2002, the pilgrims were returning home by train from Godhra. The train was set on fire by Muslims. The Hindus retaliated at this incident. This clash between the said communities resulted in a riot which lasted for a couple of days. Total of twenty three people were convicted in this incident by the High Court of Gujarat
• Delhi riots (2020)- According to the charge sheet filed by the Delhi police, the mastermind of these riots is an Aam Aadmi Party (AAP) elected MLA Tahir Hussain. He also received a funding of a couple of crores for this. It was a result of the anti-CAA protests in Delhi which later resulted in riots. An officer named Ankit Sharma was killed after he was undressed to check his religion. The matter is sub judice
• Bengaluru riots (2020)- Mob of thousands of people attacked at the houses of Hindus including the house of a local MLA because his relative shared a poster of Mohammad on social media. 

There are many more incidents which can be discussed but the real question is how can crimes of such high casualty happen again and again. Isn’t there a law to put a check on such incidents. When we have international law related to genocide and India is also a party to it, then why don’t India have a domestic law for this.

India is procrastinating from making a law on genocide and it is need of the hour. How long can we let people die in large numbers and pretend like it is not a substantial problem? Article-51(c) of the Constitution of India says India shall respect international law and treaty obligations. Article-253 states that parliament should make laws to implement any treaty, convention or agreement.

Law Related to War Crimes in India

Unfortunately, currently there are no laws related to war crimes in India. There is no provision in Indian laws which define ‘genocide’ and ‘war crime against humanity’. So, how did the High Court of Delhi convicted a man in Sikh riots case? In the latest judgement of Delhi High court, State through CBI v. Sajjan Kumar & ors, the judges : JUSTICE S. MURALIDHAR  and JUSTICE VINOD GOEL pressed charges under various sections of the Indian Penal Code, 1860 to convict the accused. Those sections are:-

• Section 120A and 120B of IPC,1860 says that when two or more people commit a conspiracy to do an illegal act.
• Section 300 of IPC, 1860 defines murder and section-302  have the provision of imprisonment for life or death sentence.
• Section 436 IPC, 1860 states that any person who tries to destroy or destroys the property such as house or religious place shall be punished with imprisonment for life.
• Section 153A IPC, 1860  penalises any person who promotes enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and acts prejudicial to maintenance of harmony. It can be done by writing, oral words, gestures or any visual representation.
• Section 295 IPC, 1860 penalises any person who destroys, damages or difiles any religious place with the intention of insulting the religion.

In 2005, the government introduced “The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005. Unfortunately it is still a bill and the government is not willing to make it an act. The major problem in this bill is that according to this bill only the majority can be punished for war crimes and it assumes that only the religion which is in majority can cause riots. According to the riots explained above proves that any religion or any section of the society can cause riots. This bill must be amended and made religion neutral. The important provisions of this bill are:

• The responsibility to maintain peace is of both State and Central government.
• Speedy trial and compensation to the victims.
• Police have special powers to search any house for the arms and ammunition. 
• Special courts shall be made for the trial of matters related to communal violence.
• Protection to be given to the witness. 
• Public officers to be punished for not doing their duty properly.
• Power to the Central government to deploy armed forces only on the request of the State government.

Conclusion

War crimes are not only related to crimes committed during war but even during the peacetime. It is a broader concept and if any harm is caused to humanity even during the peace time is considered a war crime. Any kind of violation to human rights comes under the shadow of war crimes.

Suffering of Indians was ignored by the world for a couple of centuries but what is not acceptable is Indian government is doing the same. India ratified the Genocide Convention on 27 August, 1959 but still there is no concrete law on genocide in India. Indian legislators say that the current laws have all the necessary laws required to deal with the genocide but history proves otherwise.

The Bill “The Communal Violence (Prevention, Control and Rehabilitation ofVictims) Bill, 2005, which was introduced in 2005 is still pending in the parliament. The bill has all what is required to deal with the problem of genocide and communal violence. Only change required is to make it religion neutral.

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