Context

Incendiary speeches at a religious assembly include calls for the genocide of Muslims in India and can be seen as part of an ongoing pattern of targeting minorities.

Background of the convention against genocide

• India’s role: India has signed and ratified the Convention on the Prevention and Punishment of the Crime of Genocide of 1948.
• In 1946, Cuba, India and Panama co-sponsored General Assembly Resolution 96(I), which affirmed genocide as a ‘crime under international law’.
• As a result of this resolution, a convention on the prohibition of genocide was drafted, which was passed by the General Assembly in 1948 and came into effect in 1951, with more than 150 states party to the convention presently.
• Legal obligation: Legal obligations on states that are party to the convention include:
• the obligation not to commit genocide,
• to prevent genocide, and to punish genocide(Article I),
• to enact legislation to give effect to the provisions of the convention (Article V);
• to provide for effective penalties for those found guilty of criminal conduct (Article V); and
• the obligation to try those charged with genocide in a competent tribunal (Article VI).

No legislation enacted by India

• Since signing the Genocide Convention and ratifying it, to date India has not enacted any legislation in accordance with Article VI of the Genocide Convention.
• At the outset, India is in violation of its international obligation to criminalise genocide within its domestic law per Articles V, VI and VII, and to take all means to ensure the prevention of genocide.
•  Indian domestic law shows that there are no comparable provisions for the prosecution of any mass crimes, least of all genocide.
• Indian Penal Code provisions relating to rioting, unlawful assembly and ‘promoting enmity between different groups’ do not embody the basic elements of the crime of genocide, which is against a collectivity or a group, with the specific intent to cause its destruction.
• These also do not pertain to another key aspect of the Genocide Convention – that of prevention, and creating the conditions in which such hate speech and other associated acts are not allowed to flourish.

Significance of the Gambia’s proceedings before the ICJ against Myanmar

•  The Gambia has initiated proceedings before the International Court of Justice (ICJ) against Myanmar on the basis of the Convention.
• The ICJ, relying on a previous case of Belgium v. Senegal, stated, “It follows that any State party to the Genocide Convention, and not only a specially affected State, may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end.”

Conclusion

It is more imperative than ever that international legal protections against genocide are incorporated in domestic legislation. Furthermore, the fact that India has international legal obligations under the Genocide Convention which it is not adhering to must be rectified.

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