India Take Heed, Lynchings are Crimes Against Humanity Under International Law

The systematic nature of the offences and alleged support by government functionaries for many of the killers all point to these brutalities reaching the level of international crimes.

In yet another gruesome murder a few days ago, a Muslim man was beaten to death in Jharkhand, while being forced to chant religious slogans. The spate of lynchings in the country seems to be on the rise, with new cases surfacing frequently.

Data indicate that the numbers have indeed been steadily rising, from one incident in 2012 to 31 in 2018. A majority of those lynched are Muslim. The names of Mohammad Akhlaq, Pehlu Khan and the most recent case of Tabrez Ansari are synonymous with these crimes.  

Despite having an obligation to do so, Indian law does not capture the legal elements of crimes against humanity. In December 2018, in a first-of-its-kind judgment, the Delhi high court acknowledged the deficiencies in Indian law in its capacity to address mass atrocities and international crimes. However, this does not make it impossible to classify such crimes into the most legally appropriate category. 

I believe that this pattern of lynching amounts to ‘crimes against humanity’, according to the definition of the phrase in international law. The systematic nature of the offences, the pattern, as well as the alleged support by government functionaries for many of the killers, all point to these atrocities amounting to international crimes. 

Also read: Congress Is a Silent Witness to Pehlu Khan’s Lynching

The definition of ‘crimes against humanity’ has evolved over the past few decades, and is codified in the Rome Statute, the treaty that established the International Criminal Court. Trials at Nuremberg, the International Military Tribunal for the Far East, the UN tribunals for Rwanda and what was once Yugoslavia, the hybrid tribunals for Sierra Leone and Cambodia, and now the International Criminal Court, all contribute to the legal interpretation of this concept. I base my interpretation on case law from these international courts. Per the Rome Statute,

“…‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack…”.

The 11 listed acts include murder, extermination, deportation, torture, rape, persecution, apartheid, each of which are defined as well. However, these specific crimes have to be first situated in the chapeau or overarching requirements that are critical to the determination of what constitutes crimes against humanity. 

I believe that the lynchings are a systematic attack against a civilian population, thereby meeting the basic requirements of crimes against humanity. Case law points out that an ‘attack’ does not necessarily mean a military attack but may instead be a course of conduct such as apartheid, or an effort to make a population behave in a particular manner.

‘Population’ in this context means a group that is not ‘random’, and here it is amply clear that minorities are the overwhelming victims of these crimes and are targeted specifically. 

Protesters hold placards during the ‘Not in My Name’ roadshow against targeted lynching of Dalits and Muslims, at Jantar Mantar in New Delhi. Representational image. Photo: PTI

Crimes may either be ‘widespread or systematic’. These are disjunctive terms. While ‘widespread’ refers to a specific geographic area or a large number of those targeted, the more apt formulation here is the systematic nature of the attack, which is interpreted to mean organised acts of violence.

The meaning of organisation in this context is that the violence is meted out either by means of a ‘state or organisational policy’. The interpretation does not mean a specific policy directing such lynchings.

Rather, the lack of action of the government – no statements against this violence, lack of data, as well as the implicit and explicit support by state functionaries such as felicitating the accused – add to the articulation of policy.

Compound this with the inaction by the police, and few prosecutions, as well as the fact that no action has been taken in situations where officials have been present at the site. Furthermore, actions of local or regional organs of state should also be taken into consideration, we must not limit ourselves to the national level.

According to case law, such a policy does not need to be formalised. 

Also read: The Hole in Our Collective Psyche

These are the fundamentals of crimes against humanity; particular crimes within this fabric would include murder, torture, rape, and persecution.

And as an aside, for those inevitable detractors who will point to the record of the US I would also argue that the historical lynching of African Americans in the US would fall within the purview of ‘crimes against humanity’ too. 

International crimes attract greater legal scrutiny today, with countries under a legal obligation to prosecute perpetrators as well as state officials complicit in such crimes. The exercise of universal jurisdiction, where prosecutors the world over are under the obligation to follow up cases of serious international crimes, is on the increase.

But more importantly, there should be an increasing sense of urgency in responding appropriately and decisively to these lynchings in India and to prevent more such appalling crimes – lest we reach a point of no return. 

Priya Pillai is an international lawyer, with expertise in international human rights law and mass atrocity crimes. She has worked at the UN tribunal for the former Yugoslavia and has a PhD in international law.