On April 6, Canadian provincial legislator Harinder Malhi successfully presented a motion in the Ontario assembly terming the 1984 anti-Sikh violence as “genocide”. This motion was promptly criticised by the Indian government with external affairs ministry spokesperson Gopal Baglay terming the motion “misguided” – and based on a limited understanding of India, its constitution, society, ethos, rule of law and judicial values. Defence minister Arun Jaitley, too, opposed the use of the term ‘genocide’ during his interaction with Canadian counterpart, Harjit Singh Sajjan.
While the debate surrounding the Ontario assembly motion has centred on the politics behind the classification of the violence as “genocide”, what is often forgotten is India’s obligations under the Genocide Convention – a treaty it voluntarily ratified in 1959.
Genocide and international law
International law considers the prohibition of genocide as a ‘jus cogens’ norm – a norm of fundamental importance from which states cannot deviate. They are also known as peremptory norms. Article 53 of the Vienna Convention on the Law of Treaties, 1969, states, “a peremptory norm of general international law accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”. In addition, every state owes an obligation to the international community (obligation ‘erga omnes’) to ensure that genocide is prevented and punished.
The prohibition against genocide is an integral part of both customary international law (CIL) and treaty law. The International Criminal Tribunal for the former Yugoslavia (ICTY) in the Krstic case was of the opinion that given the extent of state practice and opinio juris, the prohibition against genocide is an independent principle of customary international law. As regards treaty law, General Assembly resolution 96 (I), sponsored jointly by India, Panama and Canada in 1946, expressed the criminal nature of genocide under international law. This resolution is believed to have been the force behind the General Assembly adopting the Genocide Convention on December 9, 1948. Additionally, the Rome Statute, establishing the International Criminal Court (ICC) has specifically defined genocide as an international crime mandating individual criminal responsibility for its commission. Thus there exists both state responsibility and individual responsibility for the crime of genocide.
Obligations under the Genocide Convention, 1948
A reading of the treaty text points to three obligations that a state party assumes under the Genocide Convention, 1948.
Firstly, the obligation to prevent and punish the crime of genocide whether committed during wartime or peacetime (Article 1). Punishments are to be awarded to guilty persons irrespective of their official positions and to both public and private individuals. (Article 4)
Secondly, the obligation to enact appropriate legislation giving effect to the provisions of the Genocide Convention and in particular, providing appropriate penalties for persons guilty of genocide. (Article 5)
Thirdly, the obligation to try individuals charged with genocide through a competent tribunal. (Article 6)
Lack of appropriate legislation
Though India ratified the convention in 1959, there is no legislation on the subject. The absence of legislation on the subject was justified by union minister of state for home affairs, Kiren Rijiju, in Rajya Sabha (March 2, 2016) on grounds that the 1948 Convention, by virtue of India’s accession, is an integral part of the Common Law of India. Further, it was claimed that both substantive and procedural criminal law provide an appropriate legislative framework to deal with acts like genocide in India.
However, there is no provision in the Indian Penal Code that criminalises killing or causing serious bodily or mental harm to individuals of a particular national, ethnic, racial or religious group, with the intent to destroy such a community in whole or in part. In other words, mass murder by specifically targeting individuals of a particular group – which is the essence of the crime of genocide – is not recognised as crime beyond murder simpliciter, and other associated crimes against the human body.
The obligation to prevent and punish the crime of genocide (Articles I and IV) and the obligation to try perpetrators through ‘competent tribunals’ (Article VI) can be effectively realised only if the obligation under Article V – namely the duty to legislate giving effect to the Convention – is first undertaken.
While murder is neither a necessary nor a sufficient condition to establish the crime of genocide, the 1984 anti-Sikh violence (as in most other cases of genocide) involved a mass murder of individuals belonging to an identifiable protected group. It demands to be interpreted as killings aimed at partial destruction of such groups (if not the entire group). Such an interpretation ought to protect and preserve group identity from efforts directed at its destruction and must necessarily factor in the ‘group’ as the beneficiary and repository of legal rights and protection. Efforts by Polish-American lawyer Raphael Lemkin to sensitise the international community about the plight of Jews in Nazi Germany – which finally led to the international acceptance of the term ‘genocide’ in 1944 – was based on this logic of safeguarding identifiable social groups from being targeted in mass extermination pogroms.
The lack of an objective criterion to conclusively establish the commission of mass murders that constitute genocide precludes a judicial authority in India trying cases which amount to the crime, thereby breaching the country’s obligations under Article VI. By the same logic, no law enforcement agency is competent to investigate offences which may amount to genocide given the non-existence of such an offence in the Indian legal landscape.
Since the Genocide Convention is not self-executory in nature, it necessarily requires an enabling legislative framework to give effect to the obligations in the convention, even though the commitments undertaken may be part of the “common law” of India. In addition, the need for sanction to prosecute public servants – as stipulated by section 197 of the Code of Criminal Procedure, 1973 – is a definitive roadblock to the effective realisation of the obligations under Article IV which requires the punishment of guilty persons irrespective of their official positions. As is well known, section 197 has been used as a shield to protect guilty public servants from prosecution and its existence is inconsistent with the objectives of the convention.
India’s denial of the 1984 pogrom as genocide is problematic on the same account, given the non-existence of prescribed domestic standards to test such a claim. Claims of the 1984 pogrom being a genocide on certain occasions and a denial of the characterisation on certain other occasions reflect the casual and non-serious approach of the Indian political class to the human tragedy accompanying mass crimes in India. This problem is aggravated by the absence of a law laying down the contours of the offence like its essential elements, requirements and punishments.
In the absence of such a legislative framework, it is hard not to conclude that India is in breach of its legal obligations. If the Ontario assembly resolution at least triggers a broader debate on India’s commitment under international law to the Genocide Convention – and to the need for justice – some good would have come out of it.
Abraham Joseph is a PhD candidate in International Criminal Law from NLSIU, Bangalore and Assistant Professor, School of Law, Ansal University, Gurgaon.