In this blog post, Pramit Bhattacharya, Student, Damodaram Sanjivayya National Law University, Visakhapatnam, writes about the frauds that are taking place in the e-commerce sector and what measure can be taken to prevent them.

With the advent of the internet in almost all walks of life, many things have become semi-automated or fully automated. Carrying on a business transaction or shopping online is no different. You can buy a pen for 10 bucks or buy a mobile phone for 10,000 bucks with just a click. The ease and simplicity of e-commerce attract more people towards it. But there is a negative side to this. The most notable of that being e-frauds. Any person, who is intensively carrying on transactions over the internet and is not careful enough, is susceptible enough to get defrauded.

Remember the fear you always had that your credit cards will be stolen through the online purchase procedure?

It is fascinating to observe that most frauds over the internet are done through simple procedures.

 And talking about the portrayal of the fraudster, the extremely intelligent, 18-25-year-old hacker. Let us see, what kinds of fraudulent activities are faced by both the seller and the buyer.

Types of E-Commerce Fraud as Against the Consumers

• One of the most basic and simple forms of e-commerce fraud is overcharging by the seller. The seller will markup the price of his product by 75% and then provide a discount of 50%, leading the customer to think that he is getting the product at a bargain. But this is not true. What the consumer is paying is 50% more than the MRP. Some companies or sellers also charge multiple payments or a one-time payment without the consent of the consumer. Others add various additional charges over and beyond the MRP between the fine lines of the checkout statement.
• Phishing is also a very common form of internet fraud. Phishing is a fraud which is related to trusted sites. Many a time, a site looks like it is completely secure. It may also look like the site belongs to a well-known and reputed company. But click on the URL and you are gone. A lot of phishing websites are designed in such a way that they look shopping website and these sites later use the data fed by the customer for later use.
• With phishing comes theft of identity. Phishing is the process by which fraudsters try to gain sensitive information of the user like credit card/debit card number, email id, passwords, etc. often for malicious purposes. The information fed by a customer on an unknown site is not always secure. The fraudster uses this information to open up a new account or taking a loan in the name of the customer, stealing the consumer’s identity.
• Apart from the technological aspects, there is the physical aspect also. In the case of online shopping, a consumer cannot actually check the product himself. This leaves him vulnerable to fraud with regards to quantity and quantity of the product. For example, X buys a cup set from a shopping site. The site says that X will get a set of 6 glasses. But when the product arrives it has only 4 glasses. This was the quantitative aspect of the products. Coming to the qualitative aspect, it can be more damaging to the customer as many a time they may receive inferior or even fake or bootleg products. Suppose X orders a Nike T-shirt, whose actual cost is Rs 1,500. The actual product he receives is a copy of the actual product costing only Rs 200. This problem occurs when a third-party platform allows any seller to sell their products, which creates a market for fake products.
• One more thing related to e-commerce is the return and refund policy of the seller. Sometimes, a site may not have a return or refund policy and even if a consumer receives a damaged or a defective product, his money is not refunded. Therefore, it is very necessary for a customer to ensure that anything which he buys is backed by the site as well as the seller so that the buyer do not lose his money if the product turns out to be damaged or defective.
• Credit card theft is also one of the major frauds that have taken the IT industry by a storm. The most common aspect of this is when the swindler uses the stolen credit card’s identity to purchase things for his own use.

But there are schemes in which the fraudster is not the actual recipient of the product and wants to sell an expensive item. Then the problem becomes more complex. A very simple example of this can be given. Suppose a fraudster posts an advertisement on a site that he wants to sell his brand new computer (actual cost Rs 50,000) for only Rs 20,000 because he is in need of urgent money. A thrilled buyer is attracted towards the offer and replies to the advertisement. The conman tells the buyer that he’ll ship the computer to the buyer’s house and if the buyer likes the product he can send him the money. Here, the conman is very careful. He asks the buyer to send the money through a channel in which no money is required. The conman will then used the stolen credit card identity to buy a new computer and ship it to the buyer’s house and be gone with the buyer’s money. Eventually, when the fraud comes to light, the credit card owner disputes that the purchase was ever made by him, and the buyer of the product is left to deal with legal hassles.

Types of E-commerce Frauds as Against the Seller

• Gift Card Fraud- This type of frauds are committed by making free e-mail account with wrong information. Since the purchase of a gift card online requests only an email address in order to receive a confirmation code, this allows the fraudster to purchase many gift certificates on one [stolen] credit or debit card and send the gift card credits to multiple email addresses. Many sites also offer some discount to consumers when they register themselves for the first time on the site. Many people create multiple accounts to avail these discounts provided by the sites. This may not sound like a fraud, but legally it is.
• Denial of Receiving the Product/Chargeback- in this scheme of fraud, the cheat denies ever receiving the product. The modus operandi of this type of fraud is to deny, deny and just deny that you ever received the product. This method can be defined as the technological parallel of physically shoplifting a product.
• Bogus Returns- Just like customers receiving inferior or fake products, the sellers also face a very similar kind of problem many times. The buyer will buy a product online. After receiving the product, the seller will file a complaint with the buyer that the product he received is damaged or defective. The customer will ask for a refund, and while returning the product to the seller, the buyer will replace the actual product with something else. Sometimes a product may come with several components or items. The customer will send back only one item back to the seller, and the product is rendered useless for the seller to resell.
• Steps Buyers/ Consumers Can Take to Detect and Prevent Fraud
• Use Good Sense- This point goes without saying. The internet can be a wonderful place, but when dealing with strangers, the buyer should use common sense. If something seems too good to be true, then probably IT IS too good to be true. The buyer should start with buying small items, and get accustomed to how online transactions work.
• Check Different Sites- agreed that most of the sites are similar in nature, but a buyer should always check multiple sites before going through with a transaction. The buyer should compare prices, return and refund policies on different sites.
• Review Seller Feedback- many sellers, to improve their own business activities, provide an opportunity to buyers to review the seller and his products. A buyer should always go through a few of the reviews to know the views of other buyers and decide whether the transaction is worth taking the risk or not.
• Insist on a Safe Payment Method- As discussed above, one of the most common form of internet fraud that conmen use is to ask for money through wired transfer services where no identity is required. Once the money is wired, it is gone. They buyer should not enter into a transaction with any seller or service provider who insists on wired transfer system. The best option is to use the mode of payment, which is traceable so that even in the case of a fraud, a certain line of inquiry remains.
• Insist on a Traceable Delivery Method- The buyer should go for an established shipping and delivery method which is traceable, can be tracked online and require a signature when the product is delivered. If a shipment method is used which can’t be traced, the opposite party can always claim that the shipment was never received. Also, the buyer should preferably purchase those items which are backed and verified by the seller.
• Keep Records– The buyer should always keep the records of the transaction intact. Not only the tangible bills and receipts, but also the acknowledgement emails, order confirmation mail, and shipment mail sent by the seller.

Steps Retailers/ Sellers Can Take To Detect And Prevent Fraud

• Retailers Can Provide For Mandatory Data Fields- The retailer can make some fields compulsory like contact number of the buyer, his email address, his address, pin code, etc. which can be verified by the seller. For example, the seller can cross check the contact number code or pin to ensure that they are concurrent with the city and state address of the cardholder’s address.
• Verify Cardholder’s Information- using the email address and name of the cardholder, verify the information provided by him through a reliable data source using electronic identity verification services (eIDV) to ensure the highest confidence in the data provided by the buyer.
• Send Confirmation Mail- the seller should always send a confirmation mail, acknowledging the order. This will ensure that the email id is valid. If the confirmation mail bounce, it may indicate that it is a fraud account.
• Implement Transaction Controls- To manage the risk of frauds, an e-commerce business can implement a transaction control system in their setup. For new customers, the amount of transaction should be set to lower quantity of products and lower amount of money. As the customer builds a history with the business and becomes more reliable and established, the review amount of the truncations can be loosened.
• Creating an Internal Negative File Database- By creating a negative file database, retailers can prevent fraud. The file should contain vital information like email addresses, contact numbers, passwords, names, credit card numbers, etc. earlier used to commit any fraud.

Fraud is one of the biggest problems in the e-commerce industry. Fraudsters are getting better at conning people with better techniques and technology. To protect themselves, both the sellers and the buyers should use all the technology at their disposal. It is important to note that fraud cannot be totally eliminated. But they can be restricted to a certain level by using a layered security approach which is difficult for the fraudsters to penetrate.

In this blogpost, Divya Kathuria, Student of Raffles University, Neemrana, and the Diploma in Entrepreneurship Administration and Business Laws by NUJS, writes about, what is a subsidiary company, wholly owned subsidiary, foreign company, the difference between a subsidiary and wholly owned subsidiary and the incorporation procedure.

What is a subsidiary company?

As the nomenclature of the term itself suggests, it is a company subordinate to the holding or parent company. It is a company that may be partially or completely owned by any other company known as the parent company that holds control over the subsidiary company. It is also known as Daughter Company. The voting stock of the subsidiary has to be more than 50% being controlled by the holding company.

What is a wholly owned subsidiary?

A wholly owned subsidiary, again the name itself suggests, which is completely owned by the parent company or whose common stock is 100% held by the holding company. A company becomes wholly owned subsidiary of the parent company through an acquisition by it or spin-off from the parent company. For instance, if ABC Pvt. Ltd. owns 100 per cent shares of XYZ Pvt. Ltd. Then XYZ Pvt. Ltd. becomes a wholly owned subsidiary company of ABC Pvt. Ltd.

Difference between subsidiary and wholly owned subsidiary

A subsidiary is 51% to 99% owned by another company. For liability, tax and regulatory reasons, the subsidiary and parent companies remain separate legal entities. Usually, the parent company is a large business group controlling more than one subsidiary; the holding company might not be quite active concerning all their subsidiaries though they have a control to some extent, and the amount of control it chooses to exercise depends on the managing control that it grants to the subsidiary’s managerial staff. This is quite a common arrangement in high-tech companies which aim to retain complete control and ownership of their technology.

While wholly owned subsidiary’s common stock is 100% owned by the parent company. In simple words, a Wholly Owned Subsidiary company is an entity of which 100 per cent shares are held by another company. The subsidiary can continue to operate only with the permission of the parent company. It is not necessary that the parent company would put direct input into subsidiary operations and management of the subsidiary.

A company also has the option to continue the operations of a wholly owned subsidiary rather than just merge or integrate their operations together for a variety of reasons.  For example, the subsidiary may be located in a country different from that of the parent company.  Having a subsidiary may for a variety of reasons related to tax and tariff.  Other reasons like to preserve the brand and identity in of the wholly owned subsidiary may be important.

What is Foreign Company?

As per Section 2(42) of the Companies Act, 2013; a foreign company is any company or body corporate incorporated outside India which—

a)   has a place of business in India whether by itself or through an agent, physically or through electronic mode;

and

b)   conducts any business activity in India in any other manner.

Hence, a foreign entity to be considered as a foreign company has to fulfill both the criteria mentioned above, i.e., having a place of business in any manner specified above, and conducting any business activity in India.

Simply put, A company that is incorporated outside India or in a foreign country is called Foreign Company. For example ABC Inc. USA.

A foreign company planning to set up business operations in India may

• Incorporate a company under the Companies Act, 2013, as a Joint Venture or a Wholly Owned Subsidiary.
• Setting up a Liaison Office / Representative Office or a Project Office or a Branch Office of the foreign company which can undertake activities permitted under the Foreign Exchange Management (Establishment in India of Branch Office or Other Place of Business) Regulations, 2000.

What is Wholly Owned Subsidiary Company in India by Foreign Company?

When a foreign company makes 100 per cent Foreign Direct Investment in India through an automatic route, the Indian company becomes the Wholly Owned Subsidiary Company of that Foreign Company. Like, ABC Inc. USA owns 100 per cent shares in XYZ Pvt. Ltd. then XYZ Pvt. Ltd. becomes the Subsidiary Company. This is possible only when 100 per cent FDI is permitted and no prior approval of Reserve Bank of India is required.

A WOS can be defined as an entity whose entire share capital is held by foreign corporate bodies. A WOS can be:-

A private company, limited by shares or guarantee, or an unlimited liability company.

 Considering the various exemptions available to a private company limited by shares under India’s Companies Act, 2013, it is usually recommended that it be incorporated as a private company.

Minimum requirements to incorporate

1. Minimum two directors
2. Minimum two shareholders
3. Minimum paid up capital of Rs1 lakh

Incorporation procedure

1. Two directors have to apply for Digital Signature Certificate.
2. All the directors have to apply for DIN (Director’s Identification No.).
3. Applicant has to apply for name of the company in Form INC-1.
4. After obtaining name approval from ROC, an applicant is required to file form INC-7 (Application for Incorporation of Company), form DIR-12 (Particulars regarding appointment of directors, the key managerial personnel and any changes in them) and form INC-22 (Notice of location or change of address of the registered office of the company) along with Memorandum and Articles of Association of the Company.
5. After filing of the incorporation documents, you are required to pay online ROC fees and Stamp duty as per the authorized capital of the company.
6. After the payment of ROC fees and Stamp Duty, ROC verifies the filed documents. Form INC-22 and DIR-12 are approved through the Straight Through Process (STP) and verifies form INC-7 in detail. ROC may suggest some changes in the form or attachment. We will have to make changes accordingly.
7. Once ROC is satisfied, Certificate of Incorporation is sent through email.

Documents required

Office address

• Proof of address and latest electricity bill in case of rented accommodation.
  • For Indian National
• PAN Card is mandatory
• Address proof (electricity bill, telephone bill, bank statement or passbook or rent agreement and latest electricity bill in case of rented accommodation)
• Proof of photograph ID (passport, Driving license, voter ID or Aadhar card)
  • For Foreign National
• Passport is mandatory.
• Address Proof (electricity bill, telephone bill, bank statement or passbook or rent agreement and latest electricity bill in case of rented accommodation.)
• Photograph ID Proof (government license or document containing name in full, photo and date of birth.)
• Documents submitted must be certified by the Indian Consular or consulate.

Procedure in brief (Concluding)

1. 2 directors are required to file the DIN.
2. One of the directors has to apply for Digital Signature certificate.
3. The applicant will apply for the name in eform-1A with the companies Registrar which has the jurisdiction.
4. Once the approval of name is obtained from RoC, FORM 1 for incorporation of the company has to be submitted.
5. Form 18 for the notice of registration of location of registered office
6. Form 32 for the first directors along with MoA and AoA.
7. RoC fees and Stamp duty may be paid electronically once the application is filed online.
8. After such payment, documents have to be verified by the RoC. Form 18 and 32 are approved by Straight through process and Form 1 is checked thoroughly and can also suggest some changes if necessary to be made in the attachment or in the form.
9. After such necessary verifications and being fully satisfied, it can sell the soft copy of the certificate of incorporation to the company via email.

In this blogpost, Divya Kathuria, Student of Raffles University, Neemrana, and the Diploma in Entrepreneurship Administration and Business Laws by NUJS, writes about what is a private trust and the procedure for registration of  a private trust.

Introduction

A private trust is created and governed by the Indian trusts Act of 1882.  Under this Act,  a settler can create a trust with his own personal property. As per section 3 of Indian Trust Act 1882 “A Trust is an obligation annexed to the ownership of the property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner.”

 In other words, it is indirectly transferring property for the benefit of a third person to another person to allow him to hold that property but, not for himself. The settler of the trust can designate one or more person that is, trustees by laying down conditions and terms that would benefit the beneficiary identified by him who can be his own child as well. Any person who under the law is capable of holding property can be a trustee. One of the main advantages of forming a trust is that it has a simple process of registration with simple regulations.

What one must know before creating a private trust

A trust can be created by any person who is competent to contract under Indian Contracts Act. It can even be created when authorized by any competent Court with respect to any transferable property. It is not a contract of the agency because, in that case, the property is not transferred. However, in this case, the property is actually transferred to the trustee for the benefit of some other person, and it cannot be used by the trustee for his own personal benefit. And, that is where the main difference between a public and a private trust lies.

On whom the beneficial endowments will vest in an uncertain and fluctuating in nature as beneficiaries can be the public at large as well as a group of persons that might fall under a particular description. However, beneficiaries are certain for a private trust and are a closed group. Also, the Indian Trust Act extends only to the private trusts, not to the public trusts. Another important difference is that Public trusts that are usually religious and charitable in nature are exempted from tax under Section 10(23C) of the Income Tax Act, 1961. However, private trusts do not enjoy such exemption. It is also pertinent to keep in mind that it is a statutory obligation to get the trust registered u/s 12A of the Act with the Commissioner of income tax.

Why trust and not, will:-

It is usually asked question that why one must not create a will instead of starting a private trust. Trust in many instances might prove to be better than will as Will is sometimes, insufficient to distribute your assets. With that, it is more confidential, does not require probate and can be easily modified in future if needed. A Will is only executed after one’s death while, in a trust, during one’s lifetime when planning for succession will not lose control over the assets.

Taxation of Private Trusts

Income from private trusts is available to specified beneficiaries and not the public at large. Private trusts are of two basic types for Income tax purposes:

• Specific trusts– where the individual shares of the beneficiaries are known and ascertainable for e.g. Mr. X creates a trust for his 5 sons and the share of each son is mentioned in the deed as 20% each, then such trust is known as specific trust.
• Discretionary Trust: In this no individual shares of the beneficiaries are mentioned in the deed and income is distributed to them on the “discretion” of the trustee.[1] Rule 12 of the Income-tax Rules, 1962 mandates that an individual or Hindu undivided family, if his or its total income or the total income in respect of which he is or it is assessable under theAct, during the previous year, exceeds ten lakh rupees, shall furnish the return electronically for the assessment year 2012-13 and subsequent assessment years.[2]

Procedure to create private trust in Delhi

• Certain necessary steps need to be taken before registering a trust, which are as follows:-

1. Deciding the name of the trust
2. Proper address of the trust
3. The object of the trust (it is good to lay down long-term objectives so that changes can be accommodated easily afterwards).
4. One settler
5. At least 2 trustees (trustees decided must be skillful enough to handle the prescribed tasks of the trust, even the settler can himself be the trustee to exercise greater control over the property).
6. Beneficiaries (clearly identify who can be the beneficiaries to avoid hustle later).
7. Property of the trust whether moveable or immoveable (Practically, what is usually done is that only a small amount of property is shown as the trust property to save the registration fee or stamp duty).

• After all the above requisites are met, a trust deed is prepared on the stamp paper of requisite value (8% of the value of property is requisite stamp duty in Delhi. However, it varies from state to state). After this, Trust Deed is registered with the Local Registrar under the Indian Trusts Act, 1882 with the following requirements to be fulfilled:-

1. Trust deed[3] on stamp paper
2. One passport size photograph and copy of the identity proof of all the trustees
3. One passport size photograph and copy of the identity proof of the settler
4. One passport size photograph and copy of the identity proof of the witnesses (at least two)
5. Settler’s signature on all the pages of the deed
6. A copy of income-tax registration is also needed.

In doing all this, one would definitely need the help of a notary as some other formalities might also need to be performed depending upon the facts and circumstances.

• After compiling all these required documents, one just needs to go to the local registrar to submit the deed. Also, carrying a photocopy along is necessary signed by the settler on all the pages. When registration is being done, personal presence of the settler and witnesses is a must with their original identity proof.

Finally, registrar returns the original copy and retains the photocopy on the records.

Conclusion

Forming a private trust has proved itself to be a mode of effective succession and state planning in India. The Act provides enough to manage and administer a trust and even, to form one. It becomes quite feasible to manage properties through a trust as it creates a proper legal framework to protect the assets while keeping in mind the interests of family members or beneficiaries as well. It is also easier to transfer benefits of the trust to generations through the Act.

[1] http://taxguru.in/income-tax/creation-taxation-private-trusts.html#sthash.cii3OcL2.dpuf last accessed on 15^th January, 2015

[2] http://taxguru.in/income-tax/taxation-private-trust-tax-planning.html#sthash.denDBBmH.dpuf

Last accessed on 25^th January, 2015

[3] Trust deed signifies the intention of the author of the trust to create it, its purpose, objects and is a proof of transfer of property to the trustee.

In this blogpost,  Abhishek Khandelwal, Student, Institute Of Law, Nirma University, writes about, what is genocide, ingredients of the crime of genocide and the extent of crime of genocide and evolution of legal framework for the same – a short timeline.

Introduction

In the past centenary, tens of millions of men, women and children have lost their lives in Genocides or mass atrocities. That is a very significant swath of the population that has been raped, tortured or forced from their homes. In the present article, author has tried to give a comprehensive understanding of the underlying aspects of this horrendous crime by discussing the convention, institutions and case laws that helped in giving a legal framework aimed at obliterating this menace to humanity.

What is Genocide?

Ralphein Lemkin, a Polish-Jewish lawyer, coined the term ‘Genocide’ by combining Greek prefix geno (meaning tribe or race) and caedere ( the Latin equivalent for ‘killing’). When he was growing as a child in Poland, he was horrified beyond repair when he got to know the accounts of Turkish massacre of hundreds of thousands of Armenians during World War I. It was this harrowing impact of that ghastly slaughter in his childhood that prompted him to come up with a term to describe Nazi crimes against European jews during World War II . He was the one who facilitated the inclusion of this term into the world of International Law in the hopes of preventing and punishing such atrocious crime against innocent individuals. Though the term ‘genocide’ was coined in 1944 but acts of genocide have been committed throughout history. Arguably, the first modern genocide took place in the 13^th century, where heretics in medieval Europe were massacred during the Albigensian crusade.

The UN General Assembly described ‘genocide’ as “a denial of the right of existence of entire human groups, as homicide is the denial of the right to life of individual human beings”.

Article 6 of ICC (International Criminal Court) Statute defines genocide as:

Any of the following acts committed with intent to destroy, whole or in part, a national, ethical, racial or religious group, as such:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group.

Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) defines the crime of genocide as identical to Article 6 of the ICC statute, except the fact that Rome Statute expanded the definition given by CPPCG by applying it to times of both war and peace. An important characteristic of genocide is the targeting of a victim not as an individual or for any reason peculiar to him personally, but because he is a member of a national, ethnical, racial, or religious group.

The phrase “ in whole or in part” in the definition of Genocide has been subject to interpretation by the International Criminal Tribunal for the Former Yugoslavia in the case of Prosecutor v. Radislav Krstic. The tribunal in its judgment had held that “the part must be a substantial part of that group. The part targeted must be significant enough to have an impact on the group as a whole.”

It should be noted that ‘killing’ is not necessary to hold someone liable for ‘Genocide.’ According to R.J. Rummel ( who was professor emeritus of political science at the University of Hawaii), the acts of non-killings such as preventing births or forcibly transferring children out of the group to another group that eventually eliminate the group also comes under the ambit of the crime of Genocide.

Extent of crime of genocide and evolution of legal framework for the same – A short timeline

William Rubinstein in his book, Genocide : a history, gives an idea of the extent and origin of genocides of the 20^th century. He wrote in this acclaimed book that the ‘Age of Totalitarianism’ included nearly all of the ignominious examples of genocide in modern history, headed by the Jewish Holocaust, but also comprising mass murders and purges of the communist world, other mass killings carried out by Nazi Germany and its allies and also the Armenian genocide of 1915. He further stated that all these genocides had a common origin which was the collapse of the elite structure and normal modes of government of much of central , eastern and southern Europe as a result of First World War, without which surely neither communism nor fascism would have existed except in the minds of unknown agitators and crackpots.

After Lemkin coined the term ‘genocide’ in 1944, it was in 1946 that U.N. General Assembly passed a resolution making the crime of genocide punishable under international law. Soon after 2 years in 1948, the UN General Assembly adopted the Convention on the Prevention and Punishment of Crime of Genocide (CPPCG). It was this convention that provided us with the legal definition of Genocide.  The definition of genocide given by CPPCG was later on incorporated into the Rome Statute of International Criminal Court, which established the International Criminal Court (ICC).  Since the convention came into force in January 1951, about 80 nation United Nations member states including India have passed legislation that incorporates the provisions of CPPCG into their municipal law.

The Nuremberg Trials (1945-1946), was the first instance in modern history when for the first time 24 Nazi leaders were indicted for the deliberate and systematic genocide of a particular group. Thereafter, International Criminal Tribunal for the Former Yugoslavia (ICTY) (1993-present) was set up which indicted about 30 people for participating in genocide or complexity in genocide of Bosniak Muslims and Croatian civilians.

In 1994, members of Hutu majority in Rawanda murdered some 800,000 people, mostly of Tutsi minority, with terrorizing speed and viciousness. In order to bring justice to the victims, the International Criminal Tribunal For Rawanda (ICTR) (1994-present) was created on 8^th November,1994 by the Security Council of United Nations and had convicted 29 accused for the barbaric crimes that they committed. Subsequently on 6^th June, 2003, the Cambodian government and United Nations set up the Extraordinary Chambers in the Courts of Cambodia (ECCC) to focus exclusively on the mass killings (approx. 1.7 million) of ideologically suspect groups by the most senior Khmej Rouge (the followers of Communist Party of Kampuchea in Cambodia) officials in the period between 1975-1979. On 18^th July, 2007, the investigating judges indicted five possible suspects of genocide. Further, it should be noted that since 2002, the International Criminal Court (ICC) has got the jurisdiction for any international crime such as genocide if the national courts are unwilling or unable to investigate or prosecute genocide, thus being the ‘court of last resort.’ However, due to their personal concerns over the efficiency of ICC;  U.S.A , China and Russia are not a party to the Rome Statute and prefer International Tribunals for such investigations and possible prosecutions. After its establishment, ICC initiated trials against leaders in Congo and Sudan, when abominable acts committed by the janjawid militia against civilians in the western regions of Darfur were criticized by numerous international officials ( including former U.S. Secretary of State, Collin Powell ) as genocide.

Ingredients of crime of genocide

The offense of genocide is based on the particular mens rea of the perpetrator i.e. his intention must be to destroy in whole or in part a particular group. This element makes genocide a specific intent crime (dolus specialis) and differentiates it from other crimes of mass destruction. The judicial assessment of the dolus specialis by the ad hoc tribunals began by first examining the existence of a genocidal plan and the commission of genocide, then inquiring into the genocidal intent of the accused, which is distinct but yet interrelated to that of the underlying plan. Genocidal intent must be present at the moment the acts are committed, but does not have to be formed prior to committing the acts. The Appeal Chamber in Media judgment also held that an important characteristic of genocide is that the targeting of the victim is not as an individual or for any reason peculiar to him personally, but because he is a member of a national, ethnical, racial, or religious group.

So, in short, genocide is a crime with a double mental element, i.e. a general intent as to the underlying acts, and an ulterior intent with regard to the ultimate aim of the destruction of the group.

In Gacumbitsi Appeal judgment, the Chamber held that recognizing the specific intent may be difficult, if not impossible, to establish through direct evidence. The trial and appeal chamber of both ad hoc tribunals have concluded that genocidal intent may be inferred from the circumstances surrounding the commission of the alleged offense.^[1] Further, the Krstic Appeal Chamber held that ‘the inference that a particular atrocity was motivated by genocidal intent may be drawn….even where the individuals to whom the intent is attributable are not precisely identified’.

Conclusion

Although the establishment of ad hoc tribunals like ICTY, ICTR, ICC and organization of convention like CPPCG has established an awareness that the evils of genocide existed, its actual efficacy in stopping such crimes seems to be dubious because not one country invoked the convention during 1975 to 1979, when the Khmer Rouge officials killed some 1.7 million people in Cambodia (a country that had ratified the CPPCG in 1950).

Genocide often occurs in societies in which different national, racial, ethnic or religious groups become locked in identity-related conflicts i.e. the gross inequalities associated with those differences in terms of access to power and resources, development opportunities and the enjoyment of fundamental rights and freedoms. Given the fact that there are no perfectly homogenized societies, early prevention, therefore, becomes a challenge of good governance and equitable management of diversity, which can be met only by eliminating gross political and economic inequalities, and promoting a common sense of belonging on equal footing.

References

1. Convention on the Prevention and Punishment of Genocide, adopted December 9, 1948.
2. GA Res 96/1 UN Doc A/Res/96/1 (Dec 11, 1946).
3. Article 6, ICC Statute
4. Prosecutor v. Kambanda, Case No.ICTR-97-23-S, Judgment and Sentence, Sept 4, 1998, ¶ 16. G Verdirame,

5. The Genocide definition in the Jurisprudence of the Ad Hoc Tribunals’, 49 ICLQ (2000) ,.

6. Aloys Simba, Case No. ICTR-01-76-A, Appeal Judgment, Nov 27, 2007, ¶ 266.

7. Prosecutor v. Nahimana, Barayagwiza and Ngeze, (Media Appeal Judgment), Case

No.ITCR-99-52-A, Nov 28, 2007, ¶ 523.

8. Prosecutor v. Gacumbitsi, Appeal Judgment, ¶ 40.

9. Prosecutor v. Krstic, Appeal Judgment, ¶ 34.