The recent brutal rape and killing of an eight year old girl child in Kathua- a village in Jammu and Kashmir, in the name of a religious and ethnic conflict critically spotlights India’s international obligation under the Convention on the Prevention and Punishment of the Crime of Genocide, 1948, (`the Genocide Convention’). Although the Genocidal tendencies in India are not new—the Sikh riots in 1984 and Gujarat carnage in 2001 being classic cases—the successive governments in India seems to have ignored the obligation to prevent a ‘Genocide’ from happening.
Ethnic Conflict and Kathua incident
‘Kathua’ incident throws light on the deep-rooted ethnic conflict between the Hindu majority and minority Muslim ‘Bakarwal' tribes in the Jammu region. Bakarwal tribes are the nomads who make their living by farming and gracing their cattle in the lands leased-out from the Hindu community. Lately, a few members of the Hindu religion led by one Sanji Ram started a hate campaign to drive away the Bakarwal nomads from the Hindu lands, which led to the conflict between the two communities for which, the eight year old child is an unfortunate
The victim girl child was abducted while she was grazing her cattle in the forest. She was kept captive in a temple for five days. The eight perpetrators including the temple head sedated her and brutally raped her, later on killing her heartlessly by hitting her head with stone and iron rod. The entire incident was plotted and orchestrated by the temple head to torment and inflict a fear among the Bakarwal community so that they are forced to leave the lands leased-out from the Hindu community.
The Genocide Convention 1948
The Genocide 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”.
Rape as an Act of Genocide
‘Rape’ is often considered as an offense against women until the International Criminal Tribunal for Rwanda (‘ICTR’) rendered its historic ruling in Prosecutor v. Jean-Paul Akayesu (Case No. ICTR-96-4-T-Judgment, September 2, 1998) in which the Tribunal held that systematic ‘Rape’ committed by the members of one community on the members of the rival community with a view to inflict fear in their minds amounts to an act of Genocide.
"Genocidal rape" during the Rwandan genocide were committed by Hutu men on Tutsi women and those Hutu women married to Tutsi men. This ‘Genocidal rape’ was committed systematically to inflict fear in the minds of the Tutsi minority and to inflict harm so that the Tutsi people will be forced to drive out of Rwanda. Thus the ‘rape’ can be an actus reus of genocide, and the Rwandan Tribunal acknowledged the fact that ‘rape’ not as sexual in nature but as a tool of ‘torture’ and a violent act perpetrated against a member of a group with the intent of destroying that group.
The rape and killing of the Kathua girl in an organized way cannot be just brushed aside as an act against women but it has a larger intent and is meant to eliminate Bakarwal community. Further, the members of the majority community including the ministers of BJP government and lawyers from the state taking out a procession in support of the accused gives an impression to the international community that the act of Genocide against the Bakarwal community in the form of Rape and killing of its child member is nothing but an act sponsored by the ‘State’.
India’s obligation under Geneva Convention
India became a party to the Genocide Convention in 1959, committing to the international community the resolve to prevent any kind of Genocidal tendencies be it ethnic, political, religious, social and political.
However, India has not implemented the Geneva Convention by enacting an enabling legislation to enforce the provisions of the Geneva Convention. India follows ‘dualistic’ system whereby any treaty/international convention to which India is a signatory will not automatically become part of its domestic laws for the courts to enforce. Any treaty/international convention will take effect only when the parliament enacts an enabling legislation under Article 253 of the Constitution of India which mandates Parliament to make any law "for implementing any treaty, agreement or convention”. Though the International Court of Justice have in number of cases held that principles of Genocide Convention forms part of ‘Customary’ International law that forms part of the common law of the country, Indian courts cannot strictly enforce the provisions for want of enabling legislation due to its inherent dualistic legal character.
Ethnic and caste conflicts are not new in multi-ethnic India—they range from the ‘Sikh’ riots to the ‘Gujarat’ carnage. India’s human rights credentials have been questioned not only at the national level but at the international level as well. By being a party to Geneva Convention, India has committed to the international community that it will maintain human rights at par with the international standards, thus scoring highly on its international human rights diplomacy. However, India’s failure to implement the Geneva Convention casts serious doubts on the Indian executive and legislature which represent the people, its resolve to fight against ‘Genocide’ as a crime. If the Genocide Convention is implemented, people no matter who and how high they are, they will not be spared as there will not be any immunity for ‘Constitutionally responsible rulers’ or ‘public officials’ which will equally apply to cases like that of Kathua.
Puhazh Gandhi P is a lawyer practicing at Madras High Court. He was earlier a visiting expert for Justice H.E Rene Blattmann at the International Criminal Court (‘ICC’) at The Hague.
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