[op-ed snap] A duty great and grave

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Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From the UPSC perspective, the following things are important:

Prelims level: Convention on the Prevention and Punishment of the Crime of Genocide

Mains level: Rising instances of communal violence in India and the absence of an anti-genocide law leading to poor convictions


Context

Need for an anti-genocide law

  1. What distinguishes the learned judgment delivered by Justices S Muralidhar and Vinod Goel is not just the meticulous finding of criminality and award of punishment in the Sajjan Kumar case but the urging that “Neither ‘crimes against humanity’ nor ‘genocide’ is part of our domestic law of crime
  2. This loophole needs to be addressed urgently
  3. The court refers to the “mass killings in Punjab, Delhi and elsewhere during the country’s Partition”, a “familiar pattern of mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha in 2008, in Muzaffarnagar in UP in 2013, to name a few
  4. All these “mass crimes were the targeting of minorities and the attacks spearheaded by the dominant political actors being facilitated by the law enforcement agencies” and the “criminals responsible for the mass crimes have enjoyed political patronage and managed to evade prosecution and punishment”
  5. The court’s suggestion for an end to impunity is meant to promote constitutional good governance

India under treaty obligations

  1. India signed the Convention on the Prevention and Punishment of the Crime of Genocide on December 8, 1949 (ratified on August 27, 1959)
  2. Article V of the Convention obligates all contracting parties “to enact, in accordance with their respective constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III”
  3. And by Article 1 the “Contracting parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish”
  4. Article 51 [C] of the Indian Constitution casts a duty to “foster respect for international law and treaty obligations in the dealings of organised peoples with one another”
  5. The duties to prevent and punish acts of genocide, reiterated by the ICJ, are binding on India, both as an aspect of conventional and customary international law; they are also an integral aspect of Article 21, the rights to life and liberty as interpreted and innovated by the apex court

State involvement in genocides and ICJ verdict

  1. Genocide cannot be a lone wolf crime; it has to be the work of many hands and minds working in concert and with a clear and specific intention to physically annihilate a whole group of people
  2. Yet, howsoever much human rights activists may wish for it, cultural genocide is not yet a category of the law of genocide
  3. International Court of Justice ruling (in 2007) maintained that states may also commit genocide
  4. The ICJ does not merely interpret the Convention to say that states have a duty to do their best that such acts do not occur; but that in order to incur responsibility “it is enough that the State was aware or should normally have been aware, of the serious danger that acts of genocide would be committed”

Way forward

  1. The Delhi High Court also pointedly refers to the work of the International Law Commission towards a Convention on Crimes against Humanity
  2. Its draft articles already submitted to the UN General Assembly are expected to receive governmental and non-governmental comments for likely adoption of the final text by the UN General Assembly in 2019 or 2020
  3. Ethnic cleansing may not be the same, in technical law, as genocide, but the state duty to prevent and punish crimes against humanity remains as great and grave
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