Fonte:The Hindu, April 10, 2002

'Needed, a law on genocide '

By V. S. Mani.

The legislation should be such that all perpetrators of genocide, be they individuals, groups or the constitutional rulers, can without exception be readily punished.

THE RECENT carnage in Gujarat appears to qualify as genocide under the Convention on the Prevention and Punishment of the Crime of Genocide, 1948, (`the Genocide Convention'). Indeed, the genocidal tendencies of the fanatical groups will need to be urgently tackled at various levels - social, political, legal, and even religious. This highlights the need for enactment of a special law on genocide.
Four principal reasons were advanced in support of a special enactment on Prevention of Terrorism. One, India as a member of the United Nations has a legal obligation to put in place a specific law on terrorism, flowing as it does from the resolutions of the U.N. Security Council adopted since September 28, 2001, in response to the September 11 attack on New York's World Trade Center. Two, terrorism is a special category of crime that requires a special law to deal with. Three, only a special law can have a deterrent effect on terrorism. Four, such a law is necessary to protect the territorial integrity and moral fabric of the country. The same reasons now most urgently demand that a special law be put in place for the prevention and punishment of genocide.
The principle of prohibition of genocide has become an intrinsic aspect of modern civilised behaviour of international society. In 1946, the U.N. General Assembly unanimously affirmed that "genocide is a crime under international law which the civilised world condemns, and for the commission of which principals and accomplices - whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds - are punishable". (Resolution 96 (I), December 11, 1946). This resolution paved the way for the eventual adoption in 1948 of the Genocide Convention.
The International Court of Justice too has time and again emphasised the principle of prohibition of genocide as part of general international law. In one case, the Court said: "By their very nature, the outlawing of genocide, aggression, slavery and racial discrimination are the concerns of all states. In view of the importance of the rights involved, all states can be held to have a legal interest in their protection, they are obligations erga omnes (against whole world)" (Barcelona Traction case, 1970). As early as 1951, it had already ruled in the context of the Genocide Convention that "the principles underlying the Convention are principles which are recognised by civilised nations as binding on states, even without any conventional (i.e. treaty) obligation" (Reservations to the Genocide Convention case, 1951).
India, like every other country, is bound by the general international law obligations to prevent and punish acts of genocide. India's obligations are further strengthened by its participation in the 1948 Genocide Convention in the drafting of which it had made a worthwhile contribution. India became a party to the Convention on August 27, 1959.
The Convention defines genocide to mean "any of the following acts with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (and) (e) Forcibly transferring children of the group to another group" (Article II). The Convention renders punishable not only acts of genocide, but also other related acts, namely, conspiracy to commit genocide; direct and public incitement to commit genocide; attempt to commit genocide; and complicity in genocide (Article III).
The Convention also proclaims that "persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals" (Article IV). Evidently, no immunity from prosecution applies to "constitutionally responsible rulers" or "public officials".
The Genocide Convention imposes three principal sets of obligations on India. First, India has recognised genocide as an international crime which it has "undertaken to prevent and punish" (Article I). Second, it has undertaken to enact "the necessary legislation to give effect to the provisions" of the Convention, "and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts" related to genocide (Article V). Third, it has a duty to try persons charged with genocide or any of the related acts, through "a competent tribunal" (Article VI). This duty clearly casts a further obligation to put in place or designate tribunals competent to try such persons.
Since it acceded to the Convention in 1959, India has taken no steps to comply with the Convention obligations by effecting necessary changes in its internal law. Article 51 (c) of the Indian Constitution requires the state to endeavour to "foster respect for international law and treaty obligations". Keeping this in view, Article 253 mandates Parliament to make any law "for implementing any treaty, agreement or convention". Prudence would demand that India should enact the necessary enabling legislation before it becomes party to a treaty, so that there is no time lag between undertaking of international treaty obligations and their domestic implementation where called for.
The Genocide Convention is one of the glaring cases where this rule of prudence has been totally ignored. Indeed, this is not a rare instance of India failing to implement international treaty obligations by introducing the necessary changes in the domestic law - an issue that calls for a separate debate, involving the Law Commission, the Ministry of External Affairs and the various `nodal' Ministries responsible for matters covered by various treaties to which India is a party. Although the principles embodied in the Convention are part of general international law and therefore, part of the "common law of India", they are not self-executory in the sense that they can be readily made operational within the criminal justice system of the country. The penalties for genocide and acts associated with it need to be prescribed and the "competent tribunal" to try these offences need to be designated or established.
Since a good number of countries (including Bangladesh in 1973) have enacted domestic legislation either specifically on genocide or on international crimes in general, there is no dearth of legislative models and techniques for the Government of India to choose from. Care should, however, be taken to avoid the pitfalls of our own Geneva Conventions Act, 1960, which were in fact judicially noted at least once. The legislation should be such that all perpetrators of genocide, be they individuals, groups or the constitutional rulers, can without exception be readily punished.The legislation should be such that all perpetrators of genocide, be they individuals, groups or the constitutional rulers, can without exception be readily punished. The prosecution should not rest exclusively at the discretion of the Government or a Government official, as is currently the case with the Geneva Conventions Act, 1960.

(The writer teaches International Law at the School of International Studies, JNU.)