[Editorial] Preventing Genocide

About the Genocide Convention:

  • The Convention on the Prevention and Punishment of the Crime of Genocide or the Genocide Convention codified the crime of genocide for the first time. It was the 1st human rights treaty adopted by the UNGA.
  • The use of the term ‘genocide’ is credited to Raphael Lemkin. He was a Polish lawyer noted for initiating the Genocide Convention.
  • India, along with Panama and Cuba, sponsored the General Assembly Resolution 96(I) to affirm genocide as ‘a crime under international law’ in 1946.
  • The adoption of this resolution led to the drafting of a convention for the prohibition of genocide. This was passed by the UNGA in 1948. The Convention came into effect in 1951 and over 150 states are party to it.
  • The Convention seeks to prevent genocide and ensure that the crime is punished.

What legal obligations does it impose?

  • States that are party to the convention are required to:
    • Not commit genocide and also to prevent and punish the crime (Article I)
    • Legislate to give effect to the Convention’s provisions (Article V)
    • Provide for effective penalties for those guilty of genocide (Article V)
    • Try those charged with the crime in a competent tribunal (Article VI)

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How far has India fulfilled its obligations?

  • India was a key sponsor of the UNGA resolution to condemn genocide and label it as an international crime. However, despite signing and ratifying it, India hasn’t enacted a legislation in accordance with the Convention’s Article VI.
  • The country stands in violation of its obligations to criminalize genocide through its domestic law as required by Articles V, VI and VII. It hasn’t taken sufficient measures to ensure the prevention of this crime.
  • The domestic law has no comparable provisions for prosecution of any mass crime, let alone genocide.
  • The IPC provisions relating to unlawful assembly, rioting and ‘promoting enmity between different groups’ don’t embody the basic elements of genocide as a crime. Genocide is a crime against a collectivity, with the specific intention to destroy it.
  • The available provisions don’t pertain to another important aspect of the Convention- i.e. prevention. India must create conditions to prevent the growth of hate speech and associated acts that may facilitate a genocide.

How is noncompliance being treating on the world stage?

  • In the recent times, Gambia initiated proceedings, on the basis of the Genocide Convention, against Myanmar, before the International Court of Justice.
  • This case is still in early stages but a noteworthy point is the court, in its first ruling, taking note of Gambia’s argument that the Convention embodies such an important concern that even a state, that isn’t specially affected, can still raise a legal claim, on the basis of being a part of the community of states.
  • This legal development is expected to have significant implications for the future.
  • Relying on Belgium vs. Senegal case, the ICJ stated that “It follows that any State party to the Genocide Convention, and not only a specially affected State, may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end.”.
  • Previously, the question of violation of the Convention was addressed by the ICJ in the Bosnia and Herzegovina v. Serbia and Montenegro case. In 2007, in its final judgement, the court noted Serbia’s failure to prevent genocide. The breaches related to the state’s obligation to prevent the crime and its lack of cooperation, but not for the commission of the crime.

What is the way ahead?

  • Recently, incendiary speeches at a religious assembly calling for a genocide of Muslims in India have restarted discussions on hate speech and the limits of the legal system. Such incidents can be viewed as a part of a pattern targeting the minorities.
  • In this discussion, it is important to take note of India’s international legal obligations under the Genocide Convention.
  • It is more imperative than ever that India incorporates international legal protections against mass crimes in domestic legislation.
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