Genocide And Crimes Against Humanity: Legal Framework And Notable Case Laws

LIST OF ABBREVIATIONS

CAH	Crime Against Humanity
UN	United Nation
UNGA	United Nation General Assembly
ICC	International Criminal Court, The Hague, Netherlands
ICJ	International Court of Justice
BNS	Bhartiya Nyaya Sanhita, 2023
CoI	Constitution of India
UNHRC	United Nation Human Rights Council
HC	High Court
UNSC	United Nation Security Council

INDEX OF AUTHORITIES

STATUTES:

S.NO.	NAME
1.	Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) or Genocide Convention 1948
2.	Rome Statute of the International Criminal Court, 1998
3.	Bhartiya Nyaya Sanhita, 2023
4.	Constitution of India
5.	UN Security Council Resolution 872, 1993

CASE LAWS:

S.NO.	NAME
1.	Rwandan genocide 1994
2.	Ukraine v. Russian Federation (2022)
3.	State vs Sajjan Kumar case
4.	Genocide in Gujrat 2002

ABSTRACT

Genocide and crime against humanity are among the most heinous offences characterized by widespread and systematic attacks and violence on specific groups and civilian population, in every criminal law and various steps are being taken both nationally and internationally to curb the same. The article defines and also emphasizes on the legal framework to curb it. It discusses the India’s stance on the issue and the absence of domestic framework in India which depicts the point of concern in order to deliver justice to the victims.

It mentioned the largescale genocide incidents and the stand of the judiciary. It calls for the comprehensive legal reform which can take place to incorporate such offences in Indian criminal law.

KEYWORDS

• Genocide- As per Article 2 of genocide Convention and Article 6 of Rome Statute of ICC, genocide is “any of five acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, which includes killing members of the group, causing them serious bodily or mental harm, imposing living conditions intended to destroy the group, preventing births, and forcibly transferring children out of the group”.[1] [2]
• Crime against humanity- As per Article 7 of the Rome Statute of ICC, CAH is the acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. [3]
• Crime- Illegal behavior or activities.
• Mass murder- The murder of a large number of people.

INTRODUCTION

The term ‘genocide’ refers to the intentional and systematic act of destruction of a particular group of people just because of them belonging to a particular background. And crimes against humanity are referred as the “serious crimes committed as part of a widespread or systematic attack directed against any civilian population.”

As defined in Article 2 of 1948 Genocide Convention, “genocide involves acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious groups”, while CAH are “serious crimes committed as part of a widespread or systematic attack against a civilian population”.[4]

Genocide and CAH are interconnected in their nature as genocide is a specific type of CAH being the deliberate destruction of a particular group and both involve widespread attacks on a particular part of the population. Therefore, it can be said that, CAH is a genus and genocide is its speciea and CAH includes genocide. Acts like mass murder, enforced disappearances or torture are considered as the CAH, but when it’s committed with intent to destroy a group, then these acts can be called as genocide.

However, CAH doesn’t always require intent to destroy a group and can be committed against any particular individual, but genocide, is intended to destroy a particular group because of their background.

LEGAL FRAMEWORK

1. International Legal Framework

Genocide and CAH, are both defined by the international treaties i.e. Rome Statute of ICC and the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) or Genocide Convention 1948, respectively, being the first human rights treaty unanimously adopted by the UNGA, is an international treaty that criminalizes and penalizes it and obligate the signatory countries to enact and enforce to prohibit the same.[5]

The Rome Statute of the ICC, 1998 laid down the foundation for the establishment of ICC. According to the statute, the four core international crimes are crime of genocide, CAH, war crimes and the crime of aggression. Article 5 of the convention establishes the jurisdiction of ICC over these crimes, aiming to address these most serious crimes of international concern.[6] The ICJ also exercise jurisdiction only over the state and, over the dispute between stated regarding the interpretation and application of the genocide convention, but cannot exercise jurisdiction over the individuals convicted of these crimes. The jurisdiction of prosecuting individuals for such crimes is exercised by ICC.

2. National Legal Framework

India is a signatory of UN Genocide convention and has also ratified it, but India is not a signatory of the Rome Statute of the ICC. But despite being its signatory, lacks a specific domestic law addressing genocide and continues to rely on the existing criminal laws such as BNS, 2023, etc. under murder, rape, assault and under section 197 of BNS, 2023 criminalizing and penalizing it under the head imputations, assertions prejudicial to national integration either through written or spoken words, or signs or by visual representations or through electronic communication.[7] Also, Indian criminal law lacks the specific provisions for CAH, therefore India’s domestic legislations does not address such CAH. However, incorporation of CAH into domestic legislation would align India with international standards and strengthen its commitment to human rights.[8]

Not being a signatory of the Rome Statute of the ICC India has maintained a reservation about the same and emphasized on the national jurisdiction for such crimes which indicates an urgent need of the attention and action by the legislator to fill this gap and take proactive steps in criminalizing and penalizing genocide under the domestic law.[9]

CASE LAWS

INTERNATIONAL CASE LAWS

1. Rwandan genocide 1994

The Rwandan genocide or genocide against the Tutsi, occurred between 7 April and 19 July 1994 during the Rwandan Civil war since 1990 which aggravated the genocide, for over a span of 100 days where members of Tutsi ethnic group, moderate Hutu and Twa were being systematically killed by Hutu militias, and over 1 million people were killed.

The UN Assistance Mission for Rwanda (UNAMIR) was established by the UNSC Resolution 872 in 1993 to assist the implementation of the Arusha Accords 1993 aiming to end the Rwandan Civil War, aiming to aid the peace process between the Hutu dominated Rwandese Government (HRG) and the Tutsi dominated Rwandan Patriotic Front (RPF). [10] However, all the international efforts including the UNAMIR was unable and ineffective in resolving the issue as to get an agreement between HRG and RPF and stopping the violence happening in the Rwandan Genocide. The UN, when became unsuccessful in resolving the issue, chose to withdraw the troops which has been the subject of significant criticism and blamed for their inaction as the reason for the genocide.[11]

Rwanda, since then, continues to bear those longlasting imprint of the genocide which compelled it to institute public holidays and pass laws criminalizing and penalizing genocide ideology. The International Criminal Tribunal for Rwanda (ICTR) prosecuted the individuals responsible for the genocide. ICC has broader mandate to address the issue but Rwanda is not a member of it.

2. Ukraine v. Russian Federation (2022)

The case was brought before the ICJ over the Allegations of Genocide under the Genocide Convention in 2022 by Ukraine against Russia subsequent to the Russia’s invasion of Ukraine. The Russian military had invaded Ukraine and committed war crimes such as intentionally attacks on the civilian, attacks on highly populated areas, abduction, murder, torture, sexual violence, etc. Both the countries are not the signatory of the Rome Statute. So, the ICC exercised its jurisdiction to investigate as the Ukraine signed two declarations consenting ICC to exercise jurisdiction over crimes committed in Ukraine from November 2013. ICC in 2023 issued arrest warrant against Russia’s political representatives over the allegations of committing genocide and CAH.

The court ruled that, there is an imminent risk that can be caused to Ukraine’s rights and the civilian population were extremely vulnerable here. While ICJ ruled against Russia and ordered it to immediately suspend the military operations in Ukraine and called ruled both the parties to withhold themselves from any actions which can lead to worsening of the situation. Various commission were established and mission were taking place on international platform to inquire and investigate on the issue and the other issues arising out of it such as human rights violation of the civilians residing and got stuck in Ukraine due to the Russian invasion and attack. The UNGA in response to the issues voted for the suspension of Russia from UNHRC over gross and systematic violations and abuses of human rights by it.[12]

NATIONAL CASE LAWS

1. State vs Sajjan Kumar case

In this case, the Delhi HC granted the accused Sajjan life imprisonment reversing the trial court’s judgement of acquittal, charging him with criminal conspiracy, abetment of murder, mass killing of Sikhs and other such offences during his role in anti-Sikh riots in 1984. Justice S. Murlidhar observed that India lacks a dedicated and specific law or legal provision and framework to criminalize and penalize the offence of genocide and CAH. India is a signatory the Genocide Convention but till the date no such specific legislation is enacted by the legislature in pursuance of the same.[13]

The court held that such crimes are being facilitated by political actors assisted by the law enforcement agencies, and these can be committed during peace or war. As India is not a signatory of Rome Statute, therefore there’s no obligation on the country to enact separate law. However, it can be said as becoming the need of the hour to look upon.[14]

2. Genocide in Gujrat 2002

In 2002, Sabarmati express, a train carrying pilgrims from Ayodhya to Gujrat, after the demolition of Babri Masjid was attacked and several people lost their lives because of the fire.  After which, retaliatory attacks begun by Hindus caused the massacre where many Muslim people lost their lives and many women including the pregnant women and girls were gang raped in front of the male members of the family, their houses were burned down and people were hacked to death.

The Gujrat government appointed Nanavati-Mehta Commission to determine the cause of the fire in the train, which concluded that the local Muslims were involved in causing the incidents, while the Union Government established the Justice Bannerjee Committee concluded that the fire was accidental. It was called as genocide because of the presence of killing members of the group, causing serious bodily or mental harm to members of a group, deliberately inflicting life threat and physical harm and preventing birth within a particular group.[15]

CONCLUSION

Genocide and CAH represents the heinous human rights violations and shows enmity towards a particular group of people by specifically targeting them. There are certain international and national legal frameworks to address the same. The international community continues to grapple with ensuring its responsibility and accountability.

But India even after being a signatory fails to incorporate these crimes into the domestic legal framework as to have a specific legislation, which limits the power to address such specific heinous issues giving leverage to the offenders in the country. It’s the need for the country now to incorporate, criminalize and penalize it as to provide justice to the victims and take action to ensure justice. Through legal reform and proactive enforcement, India can truly uphold its commitment to human rights.

The international cooperation, monitoring and victim centric justice like rehabilitation should be acknowledged to bridge the gap between international and domestic legal framework to ensure justice, accountability and reaffirming its commitment towards fundamental principles of human rights and dignity.

Reference(s):

[1] Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002), https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf

[2] Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951), https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf

[3] Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951), https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf

[4] U.N. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf

[5] Genocide Convention, Wikipedia https://en.wikipedia.org/wiki/Genocide_Convention

[6] Rome Statute, Wikipedia), https://en.wikipedia.org/wiki/Rome_Statute

[7] § 197, Bharatiya Nyaya Sanhita, 2023, Vakilsearch, https://vakilsearch.com/bns/sections/197

[8]Crimes Against Humanity, Next IAS (Dec. 27, 2024), https://www.nextias.com/ca/editorial-analysis/27-12-2024/crimes-against-humanity.

[9] Crimes Against Humanity Treaty, Drishti Judiciary, https://www.drishtijudiciary.com/editorial/crimes-against-humanity-treaty

[10] United Nations Assistance Mission for Rwanda, Wikipedia, https://en.wikipedia.org/wiki/United_Nations_Assistance_Mission_for_Rwanda.

[11] International Response to the Rwandan Genocide, Wikipedia, https://en.wikipedia.org/wiki/International_response_to_the_Rwandan_genocide#Rwandan_report_of_2008.

[12] Ukraine v. Russian Federation (Provisional Measures), Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Ukr. v. Russ.), Order, 2022 I.C.J. Rep. ___, https://en.wikipedia.org/wiki/Ukraine_v._Russian_Federation_(2022)

[13] State v. Sajjan Kumar, 2018 SCC OnLine Del 12930, https://indiankanoon.org/doc/4190613/

[14] Crime Against Humanity, Drishti IAS (Dec. 18, 2023), https://www.drishtiias.com/daily-news-editorials/crime-against-humanity.

[15] The 2002 Gujarat Genocidal Massacres, Genocide Watch (Nov. 10, 2020), https://www.genocidewatch.com/single-post/the-2002-gujarat-genocidal-massacres