Adil Saifudheen
India’s continuous denial to submit jurisdiction to the Rome Statute of International Criminal Court is not a debate or question of political sovereignty, rather it is a question of deep organized state policy to evade and deflect accountability to India’s ongoing genocide and mass violence pogroms and campaigns against Muslim, Sikhs, Kashmiri and Dalit.
Introduction
On May 4, 2017, Bilkis Bano has single handedly fought 15 years long legal battle to secure justice against the perpetrators who committed gang raped and left naked and unconsciousness by men of her village and moreover, her three years old child were brutally killed and smashed in the ground in front of Bilkis Bano during the mass violence in the wake of Gujarat Riot, 2002. In that single incident alone, 13 members of her family were inhumanely murdered by the right wing rioters facilitated by the State Government ruled by the BJP. After 15 years of long enduring fight against systematic hurdles, the Bombay High Court upheld the life imprisonment 11 men for raping her and killing members of her family. The Bilkis Bano legal fight was not only limited to the perpetrators responsible for such heinous crime, but ensured that the policemen and doctors, who were actively trying to protect the perpetrators, were also punished by the established law.
Recently, the Delhi High Court convicted Sajjan Kumar a former Member of Parliament for his role in the 1984 Sikh massacre in the background of Indira Gandhi’s assassination committed by the personal Sikh bodyguard. Although both the judgments are hailed as crusaders of criminal justice system inflicting punishment on the perpetrators of mass violence, however these judgments were extremely exceptional in regards to obtaining justice or criminal accountability for the mass violence. More importantly, a deep analysis to the Gujarat Muslim massacre in 2002 and Sikh massacres in 1984 reveals systematic pattern of impunity and political patronage enjoyed by the perpetrators in the legal normative paradigm of India.
This article endeavor to establish the existence of legal vacuum to address the mass violence and genocide against the religious minorities in India. In the Part I, the article briefly discuss the legacy of mass violence in the modern Indian State framework. In the Part II, the article also attempts to ascertain that the absence of specific legal regime to bring criminal accountability to mass violence and genocide has a direct nexus to the increasing hateful organized political violence against religious minorities in India. In the part III, the author briefly discusses the deep culture of de-facto impunity to politically organized and State supported genocide against Muslim in Gujarat. In the Part IV, the author argues that the India needs to ratify the Rome Statute to ICC and domestically incorporate the Genocide Convention into the domestic law in order to effectively prevent and protect the religious minorities in India.
The Legacy and Anatomy of Mass Crimes and Genocide against Muslims in India
The mass crimes or communal riot on the basis of religion, specifically between Hindus and Muslim has been a powerful political tool to shape the electoral politics of the country. Since the bloodbath of partition, India had witnessed hundreds of low-violence riots and large-scale organized violence against the religious minorities, predominantly against the Muslims. Some of the few examples of the large-scale organized and systematic politically orchestrated mass violence against the religious minorities include Gujarat genocide, Nellie massacre, Bombay mass riot etc. The legal discourse as to the discussion as to be careful for not limiting these large-scale organized and systematic violence as merely ‘communal riots’, the term of communal riot creates perception that the both the religious community is equally responsible for the eruption and incitement of communal riots, it also establishes the dominant narrative that the members of the one religious group had provoked or initiated the communal riot and other religious group merely retaliate the attack in self-defence and thereby morally justifies the large-scale of political organized violence against the Muslim Minorities. Thus, this legal discourse severely reduces these mass violence as spontaneous and created at the spur of the moment as opposed to the large-scale organized nature of political violence inflicted on the religious minorities for the specific purposes.
The pattern or anatomy of mass violence in Gujarat, Nellie and Bhaglapur clearly indicate the absence of structural means and measures to prevent or specific state policy to protect the minority from the mass violence orchestrated -during the communal riots.
The Hindu majoritarian movement implicated violence in the Gujarat in 2002. On Feb 2002, the ferrying members of RSS and Bajrang Dal (Sangh Parivar) committed widespread and systematic mass violence include mass killings, women were raped and subjected to worst forms of sexual violence, mutilation, looting, destruction of the Muslim property. The Gujarat genocide alone comprise of 2000 Muslims killed by Sangh Parivar group and 1,50,000 persons were internally displaced. In Nellie massacre in 1983 too, 1800 Bengali Muslims were murdered over the course of few hours on 18 Feb 1983, while the Muslims have been the brunt bearer of mass violence in India, the Nellie massacre episode depicts concentrated slaughter of Bengali Muslims and becomes worst incidents of Muslim massacre episodes in the post independence period. The Bhaglapur anti-muslim mass violence had also resulted in approx killing of 1000 people, predominantly Muslims and 50,000 people were subjected to internal displacement in Bihar.
These few examples of unending list of mass violence against religious minorities evidently indicate that there is absence of any specific legal and policy frameworks to prevent or provide remedial measures against the mass violence perpetrated against the religious minorities.
The Absence of Domestic Legal System or Measures to Prevent or Bring Criminal Accountability to Genocide and Mass Crimes in India
Although, India has ratified the core international human rights instruments and incorporated effective fundamental rights jurisprudence in the Indian Constitution, the Indian State has been consistently refusing to abide by the international instruments addressing the mass violence or mass crimes including genocide in India. The India has ratified and adopted the Convention on the Prevention and Punishment of Genocide on August 27, 1959. Despite of 50 years of ratification of the Genocide Convention, India has not yet any made any commitment or political will to create any law or build any state mechanism to address the genocide in India. In addition, India has not signed or ratified the Rome Statute of International Criminal Court for bringing accountability to international mass crimes such as Genocide (Article 6), Crimes Against Humanity,(Article 7) & War Crime (Article 8) within the jurisdiction of International Criminal Court. The primary reasons for India’s refusal were premised upon the compulsory jurisdiction of the International Criminal Court over the subject matter without the consent of the States and the independent powers of the Prosecutor to initiate the investigation into the mass violence in India. India argued that both of these provision are potentially can be used for political purposes and therefore refused to international abide by the normative system of ICC. However, the effects of denial to recognize Genocide and other separate criminal provision for the mass violence against the minorities has huge adverse implications in providing justice to victims of the mass crimes in India. In the absence of specific criminal code for Genocide or other types of mass violence results in the failure in the legal system to respond to such nature of large-scale organized and systematic violence against particular national ,ethnic, racial, or religious groups. The failure to create domestic law on genocide or create separate criminal mechanism to deal with mass violence has placed the victims at the marginalized position unable to secure criminal justice to the mass killings, worst forms rapes, destruction of property etc. The effect of denial to recognize the genocide or other mass violence places violence inflicted in the large-scale within the individual scope of culpability provided under S.302 of the IPC and Indian Evidence Act. The ordinary criminal provision like I.P.C is unable to effectively and fairly respond to the mass violence perpetrated during the communal riots, there are multiple levels of actus reus, including people who might not be actively carried out the crime, but has planned, incited and coordinated the systematic process of large scale violence against the religious minorities. These high level perpetrators responsible for ‘incitement’ of the genocide or mass violence will be never able to be prosecuted and punished due to the difficulty in showing culpability and due to the lack of evidence. Since, the Genocide Convention and Rome Statute have provided alternative mechanism to adjudicate the high level perpetrators without compromising the human rights of the accused. However, Indian State is still lives in the illusion of “Emperor new Clothes” believing that mass violence and genocide can be addressed and justice can be provided by the existing legal framework.
The Deep culture of de-facto impunity to the political organized violence against Muslim minorities
The deep culture of de-facto impunity has been attributed to the political organized mass violence against Muslim minorities. The impunity means impossibility de jure or de facto bringing the perpetrators of human rights or mass crimes into the criminal justice. The deep culture of de-facto impunity was evident and common pattern in all the political organized communal riots against minorities in India. The State agents are either complicit in the perpetration of the mass violence or facilitates through omission to take any active steps to prevent and protect the victims of mass violence. The Gujarat police and State administration deliberately refused to take any active steps to prevent or reduce the escalation of the violence perpetrated against Muslims in Gujarat. Furthermore, in the post riot situation, the police authorities refused to conduct effective investigation and police systematically dilute the cases by failing to conform to procedural and evidentiary standards to secure conviction of the accused in the mass violence and crimes against Muslims in Gujarat. The FIR and testimonies collected were recorded in extremely vague and non-specific in order to assure the acquittal of the accused due to the lack of evidence in the criminal trial.
Therefore, the absence of specific comprehensive domestic legislation the State is still reluctant to address the deep culture of de-facto impunity operating in the modus operandi of the securing criminal justice to the victims of mass violence or genocide in India.
Why India’s needs to ratify the Rome Statute of ICC and Create Domestic Legal Redress Mechanism to address the mass violence and genocide perpetrated against Minorities in India
India’s continuous denial to submit jurisdiction to the Rome Statute of International Criminal Court is not a debate or question of political sovereignty, rather it is a question of deep organized state policy to evade and deflect accountability to India’s ongoing genocide and mass violence pogroms and campaigns against Muslim, Sikhs, Kashmiri and Dalit.
India’s submission of jurisdiction to the Rome Statute of ICC will have two positive impacts in preventing and protecting the religious minorities from the mass violence and genocide. Firstly, Indian State will start to acknowledge that the mass crimes cannot be dealt by the ordinary criminal code and procedures. Therefore, the Indian State will incorporate the genocide and other forms of mass crimes into the domestic law and envisage new mechanisms to bring criminal accountability to perpetrators of mass violence against minorities. Secondly, the domestic definition and separate offence for ‘genocide’ and ‘mass violence’ shall create new layers of culpability for high key perpetrators responsible for inciting genocide or mass crimes in India. Thirdly, in case, if the domestic legal system completely fails including the apex court to investigate or bring the perpetrators before the criminal justice systems, the Prosecutor can initiate investigation into the culpability and bring the High level State actors and State agents for committing or inciting the mass violence or genocide targeted against the minorities in India.
Adil Saifudheen is a student in Law in Jamia Millia Islamia, New Delhi. Adil is an award winning law student who participated in many national and international competitions including the 9th Nelson Mandela World Human Rights Moot Court Competition, Geneva , United Nations. He writes on Law and state policies.
