The Delhi High Court verdict on December 17, 2018, relating to the pogrom against Sikhs in 1984 is historic for more than one reason. This is a significant judgment of a court in India inquiring into the legal framework relating to mass atrocity crimes, which include crimes against humanity, war crimes and genocide. The importance of this legal analysis is clear in the words of justices S Muralidhar and Goel, who emphasise the “larger context” and state that such cases “…are indeed extraordinary and require a different approach”. Part of this difference relates to the organisation and planning by political actors, the targeting of specific communities, along with the connivance of law enforcement agencies.
The court traces the development of the concept of crimes against humanity, from the Nuremberg trials after the second world war, to international tribunals such as those for the former Yugoslavia and Rwanda, and the approach of the Supreme Court of Bangladesh regarding crimes committed in 1971. Crimes against humanity are also defined in Article 7 of the Rome Statute (establishing the International Criminal Court) and consist of a “widespread or systematic attack directed against any civilian population” and include murder, extermination, persecution, torture, rape and other crimes within its fold. While the court does not delve into the definition and elements of the crimes, and apply them directly to the case at hand, it finds that the that the crimes committed against Sikhs fit within this pattern and should be considered crimes against humanity. The court has honed in on the key components of crimes against humanity — that these crimes are not committed in a ‘normal context’, and that there is an underlying plan and intention in the commission of these offences. Previously, there was a requirement that crimes against humanity apply in the cases of armed conflict — but due to international legal developments, this is no longer the case, and such crimes are equally applicable in non-conflict contexts. In an unsparing verdict, the court also states, “There has been a familiar pattern of mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha in 2008, in Muzaffarnagar in UP in 2013 to name a few.” As the International Law Commission (a body of international law experts) is drafting a treaty on crimes against humanity, the court wryly observes that “India, in view of her experience with the issue, should be able to contribute usefully to the process”.
However, in India, neither crimes against humanity nor the crime of genocide are detailed within the domestic criminal law, meaning that individuals cannot be prosecuted for these international crimes. The collective nature of these crimes, as well as the particular elements of these crimes, are not reflected in any domestic law provisions. While the offences under the Indian Penal Code such as murder, assault, arson, rape, and others are used, they are not the same and do not capture what crimes against humanity and genocide encapsulate — the planning, the targeting, and the totality of the crimes committed and the context in which they are committed. The court highlights this absence in domestic law as a loophole that must be “addressed urgently”. And herein lies the crux of the matter. For years, civil society and legal experts have urged the ‘incorporation’ of these international law crimes into domestic law. In fact, India has signed and ratified the Genocide Convention, which places a legal obligation on the state to ensure the ability to prosecute this crime. However, on the floor of Parliament in 2002, the official response was that the domestic law is sufficient for such crimes. This is legally incorrect. Signing up to the obligations of the International Criminal Court and including the definitions of these international crimes into domestic law is another way that such mass atrocity crimes could become part of the fabric of domestic law — but there is a palpable resistance to adhere to this international treaty, which is meant to ensure individual accountability by means of an international court.
For too long, there has been impunity for the commission of such mass crimes in the Indian context, whether by apathetic or non-existent investigation, or laws that shield perpetrators requiring sanction for prosecution, or simply the non-implementation of international legal obligations into domestic law. While there is no magic wand which would ensure accountability in the event of adoption of these international crimes, the ability to frame these atrocities as crimes within the domestic legal system is a necessary and essential component — and an attempt to begin to redress the terrible losses of survivors.