Crimes against Humanity Missing from India’s Statute Books

Delhi High Court was hearing the case of State v. Sajjan Kumar which relates to the mass killing of Sikhs during the anti-Sikh riots in 1984 in Delhi and throughout the country.

Pronouncing the verdict in the case, the Delhi High Court has made the following observations on legal provisions related to crime against humanity or genocides:

• In India, neither ‘crimes against humanity’ nor ‘genocide’ have been defined in India’s criminal laws. This is a lacuna that needs to be addressed urgently.
• These mass crimes are engineered by political actors with the assistance of the law enforcement agencies. These crimes fit into the category of crimes against humanity.
• A familiar and similar 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. In all these instances the criminals have enjoyed political patronage and managed to evade prosecution.

Crimes against Humanity and the Rome Statute of the International Criminal Court

Internationally the Rome Statute of the International Criminal Court deals with the Crimes against Humanity. The statue defines Crimes against Humanity as offences 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”.

Since India is not a signatory to the Rome Statute. Hence it is not under any international obligation to enact separate legislation dealing with Crimes against Humanity. Further, India has failed to enact domestic legislation even after enacting the Genocide Convention (1948).

Why India is reluctant?

India is also reluctant to actively participate in the negotiation process for a separate Convention on Crimes against Humanity which could be the adoption of the same definition of Crimes against Humanity as provided in the Rome Statute.

India has categorically stated that the draft articles should not conflict with or duplicate the existing treaty regimes. India is objected to the definition due to the following reasons:

• India is not in favour of using ‘widespread or systematic’ as one of the conditions, preferring ‘widespread and systematic’, which would require a higher threshold of proof.
• India wanted a distinction to be made between international and internal armed conflicts since its internal conflicts with Naxals and other non-state actors in places like Kashmir and the Northeast could fall under the scope of Crimes against Humanity.
• The other objection is related to bringing the enforced disappearance of persons under the ambit of Crimes against Humanity. India is yet to ratify the UN International Convention for the Protection of All Persons from Enforced Disappearances as it would put the country under an obligation to criminalise it through domestic legislation.

Under the ambit of domestic compulsions, India cannot turn 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.  India must show the political will to address the shortcomings in the domestic criminal justice system.