With the recent revelations by Tehelka alleging high-level State complicity in the pogrom in Gujarat in 2002, the need of the hour is an effective law that will tackle the impunity of perpetrators and the horrors of genocidal hatred. We need to examine India’s international legal obligations. International law proscribes the commission of genocide in the Convention on the Prevention and Punishment of the Crime of Genocide, 1948 (Genocide Convention), which India signed as early as in 1959. As per this international treaty, which has been signed by 137 States, there is a positive obligation on States to prevent the commission of genocide, as well as to punish the perpetrators of any such acts. Surely, this make it incumbent on the Indian-State to formulate an appropriate legislation?
The Genocide Convention, in Article II, defines genocide as “any of the acts with intent to destroy, in whole or in part, a national, ethnic, racial or religious group”. it goes on to define the acts which include, among others, killing or causing serious bodily or mental harm to group members, deliberately inflicting conditions of life and the imposition of measures intended to prevent births within the group.
Among the obligations the Convention places on countries is the enactment of legislation to not only prevent and punish genocide, but also designate a tribunal for the trial of those charged. More significantly, the Convention includes in its list of punishable individuals “constitutionally responsible rulers” and “public officials”. This clearly means those involved in State-sponsored genocide.
Genocide is one of those international crimes that has been recognised as a jus cogens norm. This means that derogation from it is not permitted under any circumstance, even if the State is not a signatory. The State is still obliged to prevent and punish genocide.
Recently, the International Court of Justice (ICJ) rendered its judgment on February 26, 2007, in the case on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina vs Serbia and Montenegro). Elaborating on the onus on the State, the ICJ held that the “serious risk of genocide” was to be taken into account when assessing State responsibility, which would involve assessing knowledge or awareness of acts of genocide that were about to take place. In this case, the ICJ held that Serbia neglected to prevent genocide. The court held that for the purposes of the obligation to punish genocide, there needs to be a territorial link, i.e. the acts are committed on the territory of the State. Clearly, when there is such a link, as there is in the case of India, there exists State liability for the lack of punishment for genocide.
In such a situation, it is troubling that successive governments have never bothered to legislate this criminal behaviour into domestic law, even after 50 years from the time of signing the treaty. Article 51(c) of the Constitution of India emphasises the respect for international treaties, and Article 253 places the onus on Parliament to legislate in respect of any international treaty or agreement. Clearly, in this case, there has been a failure to comply with the constitutional mandate as well as with provisions of an international treaty.
This failure to comply with international legal norms, while clearly signalling the intention and the willingness to do so, is of grave concern. This is especially so in the case of mass crimes, where the ability of the Indian criminal justice system to dispense justice is in grave doubt.
Further, the ability of a domestic system to conceptualise and legislate on mass crimes is limited. There is, thus, a need to look to comparative and international jurisprudence, so that Indian law can meet the need of the times. In keeping with these international obligations, as many as 83 countries have enacted domestic legislations for the punishment of genocide. However, in the Indian scenario, there is no legal definition of the crime of genocide, despite occurrences that can be categorised as such.
It is time to look at meaningful legal redress for victims of mass crimes. An important step in that process is for India to fulfil its international obligations to safeguard the human rights of its own citizens, at the national level.
Priya Pillai is a lawyer and has worked at the United Nations International Criminal Tribunal on war crimes and genocide issues.