Genocide: The Crime against Humanity

This article was written Maahi Mayuri, a student of New Law College, Bharati Vidyapeeth Deemed University, Pune.

Genocide refers to the mass killing of people belonging to a specific nation, race, culture, religion etc.  Raphael Lemkin first coined the term in 1944 in his book “Axis Rule in Occupied Europe”. Before that, several other terms such as “crimes against humanity”, “extermination” and “massacre” were used instead of the term. His book described the policies of the Nazis regarding the destruction of ethnic and national groups.

Definition

According to Raphael Lemkin, the polish jewish jurist, the destruction of an ethnic group is genocide[1]. Except when it is due to the reason of mass killing of people, immediate destruction of a nation may not be necessarily meant by it. Genocide should also be regarded as a conspiracy which aims to completely destroy a particular section of people.

According to United Nations General Assembly Resolution 96 (I), 1946, genocide is against morality as well as law and thereby denies the right to exist of an entire human group. Thereby, the existence of mankind is shocked by it. Further, by the General Assembly, it is affirmed as a crime whether committed on racial, religious, political or any other ground.

The adoption of the “Convention on the Prevention and Punishment of the Crime of Genocide(CPPCG)” by the UN Assembly turned out to be a landmark event in 1948. Article 2 defines genocide as the complete or partial destruction of a group of people belonging to a particular nationality, religion, ethnicity or race. The same may include acts of killing, physical or mental hurt to that grout, intentional infliction of such conditions on the group so as to destroy it completely or partially, hindering the birth of children of and within the group, and forcibly or coercively transferring or converting the children of that group to some other group. The CPPCG was bought into – 12 January 1951 by (Resolution 260 (III)). It was adopted in the light of horrific Holocaust.

Recently in 2016, John Cox, a historian gave a defined Genocide as elimination of the individual member by a concerted effort as well as eliminating the ability to maintain cultural and social cohesion by the group.[2]

Various incident of Genocide have come to light, both before and after the adoption of CPPCG by the UN. But, its development could be examined when divided into two periods. The first period being from when the term was coined in 1944 to its acceptance as a convention in 1948 while the second being to its enforcement as to when criminal tribunals came into picture to investigate and deal with the crime of genocide.

The History of Events

In 1933, The Nazi party took control of Germany and Adolf Hitler was its chancellor. There was a withdrawal of the Nazi Party from the League of Nations and German delegates withdrew from disarmament talks in Geneva. The World War II commenced in 1939 and Poland was invaded Germany. The same lead to Anglo-French declaration of war against Germany. Later, Poland (eastern half) was occupied by the Soviet army.

Then, in 1941, the Soviet Union was invaded by the Germans. As they further expanded into east, the torture and atrocities by them increased. The British Prime Minister, Winston Churchill, in August 1941, said, “We are in the presence of a crime without a name” [3]

The Nazi policies aimed at restructuring the population of Europe through mass murders. They wanted to change the ethnic composition of the population residing in the area. The policies were divided and aimed at numerous small areas, their weapon being mass murder. Later in 1944, the term, “genocide” was coined.

In Nuremberg, around 1945-1946, an International Military Tribunal tried Nazi German leaders for crimes against humanity and peace, war as well as the conspiracy to commit these crimes.

In 1948, the Convention on the Prevention and Punishment of the Crime of Genocide(CPPCG) was adopted unanimously by the UN Assembly. This was a result of efforts by Raphael Lemkin and a series of debates by delegates from all around the world.

Between 1950 to 1987, there were many incidents of genocide throughout the coldwr. Whether these incidents amounted to Genocide was scarcely considered by the countries who signed the GPPCG.

In 1988,UN Convention on the Prevention and Punishment of Genocide was signed by the United States.

In 1993, Resolution 827 was issued by the United Nations Security Council as a result of the Bosnia atrocities. The International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague was established by the same.

The Position in India

There is no recognition of genocide as a crime under Indian laws. Though, the UN Convention has been ratified by India, and thus, it becomes an obligation to abide by the same under Art. 51(c) of the Indian Constitution. Further, Article 253 vests power on the Parliament to make laws for giving effect to international conventions. Thus, there is an urgent need of the hour to make legislations.

Apart from the above view, there are some provisions in India which do provide for genocide, which we would be looking further later in this article. In 2016, a question was raised as to why the Genocide Convention, despite of being ratified, was not successfully implemented. The Home Minister of the State, Kiran Rijiju justified the same by saying that India has already recognized genocide as an international crime by ratifying theConvention on the Prevention and Punishment of the Crime of Genocide. The principles of the convention being a part of the international law go on to be a part of the common law in India. Further both IPC and CrPC by their provisions provide for genocide and take cognizance of it.

On the contrary though, even after the ratification of the Convention, there were major incidents of genocide such as the as the Anti-Sikh riots in 1984, the Bhagalpur riots in 1989 and the Godhra, Gujarat riots in 2002.  A similar incident was the ethnic cleansing f Kashmiri Pandits which resulted in the migration of Kashmiri Pandits from the state of Kashmir and since 1990, around 250,000 to 300,000 Kashmiri Pandits have migrated from the area. A popular example of such example is the renowned actor Anupam Kher and his family. In October 2008, a similar situation was experienced by Orissa where Christian groups were targeted.

The conditions which amount to a genocide under the 1948 convention were fulfilled by these events. Though, India has ratified the convention, the current laws and provisions fall back when trying to provide a remedy for genocide.

Conclusion

Thus, we can say that it has become the need of the hour for the Indian Judicial System to create a new legislation for genocide so that the crime no longer takes place. Genocide is evil and a crime against humanity which should be urgently provided for. There should be a clear definition in the new legislation as well so that instances do not get away merely due to technicalities, as it is not against one person but hundreds of people.

[1]Oxford English Dictionary “Genocide” citing Raphael Lemkin Axis Rule in Occupied Europe ix. 79

[2]Cox, John (2016), To Kill a People: Genocide in the Twentieth Century, New York: Oxford University Press, p. 17

[3]James T. Fussell, A crime without a name, Prevent Genocide International , http://www.preventgenocide.org/genocide/crimewithoutaname.htm (last visited on 22.03.2014).