Author: Aakash Rastogi, Symbiosis Law School, Nagpur
Abstract
The motivation for researching and writing an article about public laws on genocide stems from the recent developments of the Citizenship Amendment Act, 2019 (CAA), when it is viewed in combination with the all-India National Register of Citizens (NRC), in which there was a heavy speculation of disproportionate exclusion of Muslims of India for full citizenship, while the non-Muslims of the excluded countries will have the opportunity to regain citizenship. We dive into how India defines genocide compared to other countries, noting significant changes and key judicial decisions over the years. We look at the history and development of these laws in India and compare them with global treaties and conventions so as to examine the influence of international human rights organizations on India’s legal framework. This legal article also explores how public policy, civil society, and cultural norms shape genocide laws in India, the USA, and France. It looks at how perpetrators are held accountable in India and its comparative analysis, this with international practices, considering the role of international courts and tribunals in the context of jurisdictional comparison across the world. Later on, education about genocide, support for victims, and rehabilitation efforts after genocide are also discussed, comparing India’s efforts with those of France and the USA. This legal article deals with the lack of targeted legislation in India for genocide laws in comparison with that of France and the USA.
Keywords: Jurisdictional Comparison, Legal Framework, Comparative Analysis, Human Rights, India
Introduction
Sir Winston Churchill: “The cruel and unrelenting truth is that there are certain evils which cannot be eliminated without violence.”
When we look at this concept of Genocide Prima facie, mostly everyone around the Globe relates this concept with mass obliteration and along the lines of the examples of Rawanda and Holocoust. In the global setup it was ever present, Russians were trying to obliterate the demographic and cultural element in Alsace-Lorraine, same was done to the Jews and Gypsies in Europe. Even after such commonality of this act, there was no proper name and definition for it. Until 1946, when Raphael Lemkin, a Polish-Jewish lawyer, coined the term genocide. The term Genocide is made of Greek words Genos (race or tribe) and Latin word Cide (killing)
Genocide laws are supposed to be enacted and effectively implemented in all states. The state parties are obligated to provide full cooperation with other states in the prevention of acts of genocide. The execution of the responsibilities under the Genocide Convention requires the effective working of the genocidal laws. The countries of the world shall play their role effectively for the prevention of such hideous crimes. And he defined it as: “Genocide is the crime of destroying national, racial, or religious groups, which can be of both national and international nature.” This definition by Raphael Lemkin became the base for the definition given by the United Nations in the year 1948 in the UN Convention on the Prevention and Punishment of the Crime of Genocide (1948).
Background and Rationale
Genocide is one of the most heinous crime which has been continuing for a very long period of time, from the historical Rawanda Genocide to the infamous Holocaust. Thankfully, societal attitudes towards genocide have evolved, and the international community now arrogates upon itself not just the ability and method but also the obligation to prevent and punish genocide. In furtherance of this, many international human rights laws related to genocide in the form of conventions and international customary law have been put in place. India too has passed a law criminalizing genocide. Research such as this would help to analyze the law in light of our emerging jurisprudence relating to international human rights law; a comparative study would also show the nature of our laws in light of international statutes.
Rationale of the Study In view of the wide-ranging proliferation of laws in a globalized world order, understanding the nodal points in them is essential. One of these nodal points pertains to the study of laws of genocide. The occasion and timing of the study assume further significance as recent international events call for an immediate analysis of laws relating to genocide and crimes against humanity. For instance, the post-Cold War era has witnessed violence on a large scale in the form of ethnic cleansing from Kosovo to Timor. Beyond mere violence, such crimes take the overt form of crimes of genocide and crimes against humanity. A mere study of the laws once they have taken the form of international custom and treaties instead of national laws would be an exercise in appreciating the legal position in a limited sense. Thus, a study is required at various levels—national, sub-national, regional, and international—giving details and revealing deep structural flaws stopping effective enforcement of laws against genocide and prevention of such crimes.
Understanding Genocide
Genocide, in layman’s terms, is a condition where any act is committed with intent to obliterate in whole or in part any national, ethnic, or religious group. This is the definition that has been adopted internationally with its four different criteria: actus reus, mens rea, partim alia, and protected groups. It must be noted here that this word was created during World War II. It is formed from three different words in Greek: genos, meaning race or family; -cidium, meaning killing; and -ide. As a standard usage in the scientific literature, it was developed by a Polish Jew, a lawyer and professor. But there are many components of the definition of genocide. First of all, it is a quantitative judgment, based on the size of each national group, and not on an absolute number. Second, genocide is not necessarily immediate destruction but may also include:
a) resulting dehumanizing conditions that could cause biological destruction of the nation; or
b) destroying the economic existence of a nation.
The first step in defining and understanding genocide is through defining foremost what genocide entails according to the international community. Genocide includes specific acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.
In approaching the issue of defining genocide, there are a number of salient discussions that should be addressed before dealing with the legal category. The first point of departure is to note the legal characterization of genocide that presumes the presence of “mens rea.” For the Prosecutor to succeed, he must show that a wrongful act was undertaken with a specific intent. The discussion of whether it is possible for a legal category to have a specific intent is argued by people, if a crime is normally associated with knowledge. The above-mentioned aspects are challenges not only for national law but for international law as well, the need to carefully delineate the causes around a situation where a member of certain communities is being targeted because of how they manifest the respective conflicts. However, this is also on the same token that genocide’s definition, with its operationality encouraging cautious language both in international legal frameworks and in national processes, can bring to the nexus of legal ambiguities.
Historical Developments:
For most of the time, genocide was not considered a separate crime because it was a part of a war. However, wiping away a nation or religious or ethnic group with common intent did not go unnoticed and unpunished. The Vietnam War only proved a blind faith in war and peace. To criminalize acts of ethnic cleansing and religious and national cleansing, the world took a lead from the Armenian genocide, which was more systematically planned and thoroughly executed during World War I, where almost 6.5 million Armenians, Assyrians, and Greeks were exterminated. The act of genocide is of concern to the world because the consequences of one genocide affect all of humanity. The deniers never seem to learn from the mistakes of the perpetrators.
Timeline of growth of Genoide’s legal framework:
Timeline of Key UN Treaties and Conventions on Genocide:
1946 UN General Assembly’s first resolution on Genocide
1948: Convention on the prevention and punishment of the crime of genocide
1993: International Criminal Tribunal
1994: International Criminal Tribunal for Rawanda
1998: Rome Statute of the International Criminal Court
2005: UN Responsibility to protect doctrine (R2P)
International Legal Framework on Genocide:
The international community has established many forums, legal and institutional mechanisms to be utilized for the prevention, punishment, and reparation of millions who were killed, raped, maimed, or suffered maltreatment on a large scale, though using different terminology, throughout the history of mankind. The principles and norms developed so far reflect the global consensus, which was formally enshrined in the United Nations. The principles and norms have become very important not only for the separate nations but also for the world as a whole. The global society has realized their importance and urged all states to fulfill the commitments made jointly by them for the whole world. During the meeting of the General Assembly, all members of the world body agreed that they have to take responsibility as states; otherwise, we will not be able to defend our civilization against the massive violence that happened, as seen in various historical events.
A major step was taken by the world body when, at the fifty-second session of the General Assembly, the United Nations promulgated Resolution 96 of 1946, undertaking measures to define the crime of genocide and to prosecute and punish the head of any state or public or private individual for the commission of acts involved in crimes against humanity. There was an urgent need to put a curb on and prevent these violations of human rights, wherever and whenever they occur.
Unlike the treaties of the League of Nations, this convention is of a penal character purely intended at reinforcing the defense of the social order of inter-state solidarity, according to which the human person as such has rights that the authorities of each member state are bound to respect. The Genocide Convention has been criticized because of the paradox of a universal condemnation of crimes that actually shocked the universal conscience only where the actions had given them the spotlight of the Nuremberg Trials. It has been under the exogenous influence of a reaction to those mass exterminations that the Genocide Convention was adopted on December 9, 1948.
Case Studies
Case studies and examples of what counts as genocide are an important part of the study of genocide laws, as they can help understand how a situation can be eligible for such a title and provide an analysis of how laws worked in real life. First came a document on Auschwitz and a study on the technique and operation of the gas chambers, both of which were taken into account at the International Military Tribunal. Following the trials, the UN Convention on the Prevention and Punishment of the Crime of Genocide was signed in 1948 and was adopted and opened for signature, ratification, and accession by General Assembly resolution. The strong influence of World War II was reflected in the elements of the Genocide Convention’s negotiating history.
Conclusion
Given the unprecedented scale and intensity of the problem of genocide, it is critical for every country to have an effective mechanism for detecting and punishing these crimes. This analysis presents a comparative overview of the Indian legal framework in comparison to the legal frameworks of two other countries regarding the public laws on genocide. It has been found that, on one hand, the term ‘genocide’ is clearly defined under the Indian legal framework; however, when trying to understand the crime of genocide and its constituent elements, it is challenging. This is due to the vast number of elements and the lack of any clear provision in the law for holding individuals criminally responsible for genocide. In comparison, in the unified legal frameworks of the other countries, it was found that the crime of genocide and its constituent elements are well defined under the law. Even these jurisdictions have separate punishments for the crime.
In addition, it has been found that no country clearly states that its law applies extraterritorially to any foreign individual. The study also found that the judicial use of this framework in India is quite low. The same can be said in relation to the other countries, where such cases in court are also not that high. Based on the findings, it can be argued that progress towards prosecutions for genocide surely depends on the establishment of mechanisms that will leave suspects with no place to hide. The laws of other countries that consider the violation of their national peace during the commission of genocide are also applicable to India after a shell is violated at the instance of another republic. We need legal regulation so that the courts have jurisdiction to try persons accused of the crime of genocide, even when they are foreigners. From whatever area or place the culprit may be committing it, it is the residual right to do so.
FAQS
What is the purpose of the article?
It compares India’s genocide laws with those of the USA and France, analyzing legal definitions, enforcement, and human rights influences.
Why discuss the CAA and NRC?
The article discusses concerns about their discriminatory impact and alignment with international genocide laws.
How does India’s legal framework differ?
Unlike France and the USA, India lacks a specific genocide law, relying on general criminal provisions.
What is the role of international courts?
Courts such as the ICC prosecute genocide, set legal precedents, and enforce international laws. Prevention and rehabilitation through article Comparative analysis of legal measures, policies, and victim support in India, France, and the USA.
