In the last few weeks, incendiary speeches by Yati Narsinghanand at a religious assembly have reignited discussion regarding hate speech, and the limits of the law. The speeches made include calls for the genocide of Muslims in India and can be seen as part of an ongoing pattern of targeting minorities. In discussions regarding the applicable law, a fundamental point must not be missed – the international legal obligations that are incumbent upon India, by virtue of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, which India has signed and ratified.
Objective of the Convention
Raphael Lemkin is credited with the use of the term ‘genocide’ and campaigned relentlessly for it to become an international treaty. In 1946, Cuba, India and Panama co-sponsored General Assembly Resolution 96(I), which affirmed 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 party to the convention presently. The Genocide Convention has as its objective the prevention of genocide as well as the punishment of the crime. Legal obligations on states that are party to the convention include the obligation not to commit genocide, to prevent genocide, and to punish genocide(Article I), to enact legislation to give effect to the provisions of the convention (Article V); to provide for effective penalties for those found guilty of criminal conduct (Article V); and the obligation to try those charged with genocide in a competent tribunal (Article VI).
It is no small irony that India was an early and key sponsor of the General Assembly resolution condemning genocide and confirming its status as an international crime. However, since signing the Genocide Convention and ratifying it, to date India has not enacted any legislation in accordance with Article VI of the Genocide Convention. At the outset, India is in violation of its international obligation to criminalise genocide within its domestic law per Articles V, VI and VII, and to take all means to ensure the prevention of genocide.
An examination of Indian domestic law shows that there are no comparable provisions for the prosecution of any mass crimes, least of all genocide. Indian Penal Code provisions relating to rioting, unlawful assembly and ‘promoting enmity between different groups’ do not embody the basic elements of the crime of genocide, which is against a collectivity or a group, with the specific intent to cause its destruction. These also do not pertain to another key aspect of the Genocide Convention – that of prevention, and creating the conditions in which such hate speech and other associated acts are not allowed to flourish, which may facilitate the commission of genocide.
Significant legal development
It is also worth noting a significant and recent international legal development relating to the Genocide Convention. The Gambia has initiated proceedings before the International Court of Justice (ICJ) against Myanmar on the basis of the Convention. While the case is still in the early stages, it is noteworthy for a key point – that the court seems to have, in its first ruling, taken note of a key argument of The Gambia – that the Genocide Convention embodies such a key concern that even a state that may not be specially affected can still raise a legal claim on the basis of being part of the community of states. This is a significant legal development and will have implications for the future. The ICJ, relying on a previous case of Belgiumv. Senegal , stated, “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.”
The ICJ previously addressed the question of violation of the Genocide Convention in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide ( Bosnia and Herzegovina v. Serbia and Montenegro ). In its final judgment in 2007 the court found a failure to prevent genocide by Serbia. The breaches of the Genocide Convention related to the obligations to prevent and the lack of cooperation, but not for the commission of genocide.
In the overall analysis, it is more imperative than ever that international legal protections against genocide are incorporated in domestic legislation. Furthermore, the fact that India has international legal obligations under the Genocide Convention which it is not adhering to must be rectified.
Priya Pillai is an international lawyer, who previously worked at the UN International Criminal Tribunal for the Former Yugoslavia, The Hague