It is imperative that domestic law incorporate international legal protection against genocide
In the past few weeks, Yeti Narasimhananda’s provocative speeches at a religious gathering have rekindled hate speech and discussions about the limits of the law. The speeches given include calls for genocide of Muslims in India and can be seen as part of an ongoing pattern of targeting minorities. In the discussion with regard to applicable law, a fundamental point should not be missed – an international legal obligation on India based on the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which India has signed and ratified.
Objective of the Convention
Rafael Lemkin is credited with using the term ‘genocide’ and campaigned tirelessly for it to become an international treaty. In 1946, Cuba, India and Panama co-sponsored General Assembly Resolution 96(I), which ratified the genocide as a ‘crime under international law’. As a result of this resolution, a Convention on the Prohibition of Genocide was drafted, which was passed by the General Assembly in 1948 and came into effect in 1951, with more than 150 states currently party to the convention. The purpose of the Genocide Convention is the prevention of genocide as well as the punishment of a crime. The legal obligations on States Parties to the Convention include the obligation not to commit genocide, to prevent genocide, and to punish genocide (Article I), to make laws to give effect to the provisions of the Convention (Article V); (Article V) to provide for effective punishment for those found guilty of criminal conduct; and the obligation to prosecute those accused of genocide in a competent tribunal (Article VI).
It is no small irony that India was an early and major sponsor of the General Assembly resolution condemning genocide and affirming its status as an international crime. However, since signing and ratifying the Genocide Convention, India has not enacted any law as per Article VI of the Genocide Convention till date. Initially, India is violating its international obligation to declare genocide a crime under Articles V, VI and VII of its domestic law and to take all possible measures to ensure the prevention of genocide.
An examination of Indian domestic law reveals that there are no comparable provisions for the prosecution of any mass crime, least of all genocide. The provisions of the Indian Penal Code relating to rioting, unlawful assembly and ‘promoting enmity between different groups’ do not cover the basic elements of the crime of genocide, that is against the collectivity or group, with the specific intention of destroying Is. These also do not relate to another key aspect of the Genocide Convention – prevention, and creating conditions in which hate speech and other associated acts are allowed to flourish that may facilitate the commission of genocide.
significant legal development
It is also worth noting an important and recent international legal development related to the Genocide Convention. The Gambia has initiated proceedings against Myanmar on the basis of the Convention before the International Court of Justice (ICJ). While the case is still in its early stages, it is notable for an important point – the court seems to have taken note of a key argument of The Gambia, in its first ruling – that the genocide convention marks such an important concern. that even a state that may not be specifically affected can still make a legal claim by virtue of being part of the community of states. This is an important legal development and will have implications for the future. ICJ, depending on the previous case Belgium v. Senegal, said, “It follows that any State Party to the Genocide Convention, and not just a particularly affected State, invokes the responsibility of any other State Party to ascertain the alleged failure to comply with its obligations.” can. put an end to that failure.”
The ICJ had earlier addressed the question of violation of the Genocide Convention in a matter relating to the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina vs Serbia and Montenegro) In its final ruling in 2007, the court found Serbia’s failure to stop the genocide. Genocide pertains to the obligations to prevent violations of the Convention and the lack of cooperation, but not to the commission of genocide.
In the overall analysis, it is more imperative than ever that domestic law includes international legal protection against genocide. Furthermore, the fact that India has international legal obligations under the Convention on Genocide which it is not complying with must be rectified.
Priya Pillai is an international lawyer who worked at the United Nations International Criminal Tribunal for the former Yugoslavia, The Hague.