Crimes that India’s statute books have failed to define

jyoti
By jyoti July 8, 2019 17:14

Article

Varsha Singh, a Senior research fellow at the Centre for International Legal Studies, Jawaharlal Nehru University

Important Analysis

  •       Justice S. Muralidhar of the Delhi High Court, while pronouncing the judgment in State v. Sajjan Kumar (2018) stated that ‘crimes against humanity’ and ‘genocide’ has been made part of India’s criminal law urgently.

o   The case concerned the mass killing of Sikhs during the anti-Sikh riots in 1984 in Delhi — and throughout the country.

  •       The court categorically stated that these kinds of mass crimes “engineered by political actors with the assistance of the law enforcement agencies” fit into the category of crimes against humanity (CAH).

o   In State v. Sajjan Kumar, the Delhi High Court also said that “a familiar pattern of mass killings” was seen “in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha in 2008, and Muzaffarnagar in Uttar Pradesh in 2013”, where the criminals “have enjoyed political patronage and managed to evade prosecution”.

Crimes Against Humanity (CAH)

  •       Internationally, CAH is dealt with under the Rome Statute of the International Criminal Court (ICC).

o   They are defined as offenses such as murder, extermination, enslavement, deportation, torture, imprisonment and rape committed as a part of “widespread or systematic attack directed against any civilian population, with knowledge of the attack”.

  •       India is not a party to the Rome Statute, which means that it is under no obligation at present to enact separate legislation dealing with CAH.

o   Even after the ratification of the Genocide Convention (1948), India has not enacted it in domestic legislation.

Reasons for reluctance

  •       The most probable reason for India’s reluctance to actively participate in the negotiation process on a separate Convention on CAH, which started in 2014, could be the adoption of the same definition of CAH as provided in the Rome Statute.

o   The Indian representatives at the International Law Commission (ILC) have stated that the draft articles should not conflict with or duplicate the existing treaty regimes.

  •       India had objected to the definition of CAH during negotiations of the Rome Statute on three grounds.
  1.       India was not in favor of using ‘widespread or systematic’ as one of the conditions, preferring ‘widespread and systematic’, which would require a higher threshold of proof.
  2.       India wanted a distinction to be made between international and internal armed conflicts.
  •       This was probably because its internal conflicts with Naxals and other non-state actors in places like Kashmir and the Northeast could fall under the scope of CAH.
  1.       The third objection related to the inclusion of the enforced disappearance of persons under CAH.
  •       It is pertinent here that India has signed but not yet ratified the UN International Convention for the Protection of All Persons from Enforced Disappearances as it would put the country under an obligation to criminalize it through domestic legislation.

Conclusion

  •       India’s missing voice at the ILC does not go well with its claim of respect for an international rules-based order.
  •       Turning a blind eye to the mass crimes taking place in its territory and shielding the perpetrators reflect poorly on India’s status as a democracy.
  •       It would be advisable for India to show political will and constructively engage with the ILC, which would also, in the process, address the shortcomings in the domestic criminal justice system.

Rome Statute of the International Criminal Court

  •       The Rome Statute of the International Criminal Court (often referred to as the International Criminal Court Statute or the Rome Statute) is the treaty that established the International Criminal Court (ICC).
  •       It was adopted at a diplomatic conference in Rome, Italy on 17 July 1998 and it entered into force on 1 July 2002.
  •       As of March 2019, 122 states are a party to the statute.
  •       Among other things, the statute establishes the court’s functions, jurisdiction, and structure.

·       The Rome Statute established four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. Those crimes “shall not be subject to any statute of limitations”.

source: https://www.thehindu.com/opinion/op-ed/crimes-that-indias-statute-books-have-failed-to-define/article28312905.ece

jyoti
By jyoti July 8, 2019 17:14