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International Law

No focus on India on UN Genocide Day

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Each year, on the ninth day of December, the United Nations observes the UN Day of Commemoration and Dignity of the Victims and Crimes of Genocide. The day is also remembered as anniversary of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention). As usual, the Day came and passed by quietly with a few perfunctory functions.

Definition

The word “genocide” was first coined by Polish lawyer Raphäel Lemkin in 1944 in his book Axis Rule in Occupied Europe. It consists of the Greek prefix genos, meaning race or tribe, and the Latin suffix cide, meaning killing. Lemkin developed the term partly in response to the Nazi policies of systematic murder of Jewish people during the Holocaust, but also in response to previous instances in history of targeted actions aimed at the destruction of particular groups of people. Later on, Raphäel Lemkin led the campaign to have genocide recognised and codified as an international crime.

Codification as a “crime”

Genocide was first recognised as a crime under international law in 1946 by the United Nations General Assembly (A/RES/96-I). It was codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The Convention has been ratified by 149 States (as of January 2018). The International Court of Justice (ICJ) has repeatedly stated that the Convention embodies principles that are part of general customary international law. This means that whether or not States have ratified the Genocide Convention, they are all bound as a matter of law by the principle that genocide is a crime prohibited under international law. The ICJ has also stated that the prohibition of genocide is a peremptory norm of international law (or ius cogens) and consequently, no derogation from it is allowed.

 Elements of“genocide”

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as:

Killing members of the group; Causing serious bodily or mental harm to members of the group;

Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group;

Forcibly transferring children of the group to another group.

Has India breached the Genocide Convention?

Though India ratified the convention in 1959, there is no legislation on the subject. India’s union minister of state for home affairs, Kiren Rijiju justified India’s lethargy in Rajya Sabha (March 2, 2016) on grounds that the 1948 Convention, by virtue of India’s accession, is an integral part of the Common Law of India. He further claimed that both substantive and procedural criminal law provides an appropriate legislative framework to deal with acts like genocide in India.

The fact however remains that  there is no provision in the Indian Penal Code to criminalise killing or causing serious bodily or mental harm to individuals of a particular national, ethnic, racial or religious group, with the intent to destroy such a community in whole or in part. In other words, mass murder by specifically targeting individuals of a particular group (RSS, VHP, etc) manifested on lynching, setting ablaze individuals and humiliating them in myriad ways is not recognised as crime beyond murder simplicities.

Sans appropriate legislation, India cannot prevent and punish the crime of genocide (Articles I and IV) and try perpetrators through ‘competent tribunals’ (Article VI).

The lack of an objective criterion to conclusively establish the commission of mass murders that constitute genocide precludes a judicial authority in India trying cases which amount to the crime, thereby breaching the country’s obligations under Article VI. By the same logic, no law enforcement agency is competent to investigate offences which may amount to genocide given the non-existence of such an offence in the Indian legal landscape.

Very often the hooligans commit mass murder of minorities in collusion and connivance with police. But, section 197 of the Code of Criminal Procedure, 1973 grants immunity to offender officials “in the discharge of their duty”. The section 197 shielded the guilty public servants involved in mass murder of people whether Kashmiris, Sikhs or other minorities.

In the absence of such a legislative framework, it is hard not to conclude that India is in breach of its legal obligations. If the Ontario assembly resolution at least triggers a broader debate on India’s commitment under international law to the Genocide Convention – and to the need for justice – some good would have come out of it.

History of the “mass murder” riots in India

There were anti-Muslim riots in 1707 after the death of Moghul emperor Aurangzeb. In Benares (1809), bloody anti-Muslim riots were due to a mosque allegedly having been built by Aurangzeb atop a temple (quasi-Babri-Masjid issue).  In 1714, anti-Muslim riots on issues of cow slaughter took place.  Rumours about attack on Hindu religious processions, passing through Muslim-majority area, or other flimsy excuses triggered anti-Muslim riots in Kashmir (1719), Delhi (1729), and Bombay (1786). Riots also took place at different places in Uttar Pradesh (Koil 1820, Moradabad 1833, Shahjahanpur 1837, and Alahabad 1837-52).

The riots in the 1990s were due to Advani’s Rath Yatra (chariot procession), resulting in death of over 200 people mostly Muslim.  In January 1993, over 3000 Muslim were killed in Bombay by Shiv Sena (lord Shiva’s army) in collusion with the police.

The major riots in modern times include the 1969 Gujarat riots, 1984 Bhiwandi riots (May 1984) 278, 1984 anti-Sikh riots (October 31, 1984 to November 3, 1984) 3,350-17,000,

1985 Gujarat riots, 275, 1986 Jammu and Kashmir Riots (February–March 1986) including 1986 Anantnag Riots, 1989 Kashmir violence, the 1989 Bhagalpur riots, 1992 (December 1992 to January 1993,   Mumbai riots 900 people died, Godhra train burning, 2002,  Gujarat riots, 2013 Muzaffarnagar riots and 2020 Delhi riots. In 2013, Muzaffarnagar (Uttar Pradesh) Hindu-Muslim riots (August to September) over 62 persons were killed including at least 42.  It left more than 50,000 Muslims displaced.

Memories  of the Babri masjid demolition

On 6 December 1992 the VHP and the BJP organised a rally at the site involving 150,000 volunteers, known as kar sevaks. The rally turned violent, and the crowd overwhelmed security forces and tore down the mosque. Advani and other BJP leaders were exonerated by the courts. –

Issues Triggering Riots.

 Cow slaughter (actually, if not politicized, it is a non-issue).  Hindus’ ancestors were carnivorous. Yet, several Muslims including Tabriz Ansari were either lynched alive or set ablaze on this non-issue. It is eerie that India’s Dua Corporation is itself the biggest exporter of beef, sometimes surpassed by Brazil.

Hindu extremists desire to enforce a uniform civil code ostensible under Articles 44 and 48 of the Indian Constitution, but actually in violation of Articles 14 (no religious discrimination), 16 (equal opportunities for minorities), 26 to 28 (minorities freedom to manage their own religious affairs), 30 (maintaining minorities educational institutions), 345, 347, 350, 350-A (rights of linguistic minorities). Loud music and Bhajan singing before mosques.Non-traditional routes of processions. Reservation of jobs, and seats in educational institutions. Elopement of Hindu girls with Muslim boys. Characterisation of one by the other community as Malichh and Kafir.  Routes of Religious processions. Conversions from one religion to another.  Singing or playing Vande Matram aloud before mosques.  The de facto status of Urdu especially in Uttar Pradesh.  Muslim Personal Law and Uniform Civil Code. Suspicions about Muslims loyalty to India.

Concluding remarks

India eminently qualifies to be an offender of “genocide”. The government abets mass murder of the terrified minorities in riots. The Muslim even join the Muslim Munch, a wing of the Rashtriya Swayem Sevaksangh to evade persecution.

For their survival, they should emulate Christian minority to withstand persecution. Today, Christians live all across particularly in South India and the southern shore, the Konkan Coast, and Northeast India. Through sheer hard work, Indian Christians developed niches in all walks of Indian national life. They include former and current chief ministers, governors and chief election commissioners. To ruling Bharatya Janata party’s chagrin, Christians are the second most educated religious group in India after Jains. Christian women outnumber men among the various religious communities.

Mr. Amjed Jaaved has been contributing free-lance for over five decades. His contributions stand published in the leading dailies at home and abroad (Nepal. Bangladesh, et. al.). He is author of seven e-books including Terrorism, Jihad, Nukes and other Issues in Focus (ISBN: 9781301505944). He holds degrees in economics, business administration, and law.

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International Law

Shaping a 21st-century world order amounts to a patchwork

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What do Moroccan arms sales to Ukraine, a transnational Russian Iranian transit corridor, and US assistance in developing a Saudi national strategy have in common?

Together with this week’s Russian-Iranian financial messaging agreement and Chinese President Xi Jinping’s December visit to Saudi Arabia, they are smaller and bigger fragments of a 21st-century world order in the making that is likely to be bi-polar and populated by multiple middle powers with significant agency and enhanced hedging capabilities.

So is the competition between rival US and Chinese technologies for which the jury is still out.

For the two likely dominant powers, the United States and China, the building blocks are efforts to line up their ducks in a bipolar world.

For Russia, they involve hanging on to its pre-Ukraine war status, in part by deploying its Wagner Group mercenaries to the Sahel; devising ways to circumvent sanctions; and hoping that time will work in its favour in what was supposed to be a blitzkrieg but has turned into a drawn-out slugging match.

For middle powers, the name of the game is carving out their own space, leveraging their enhanced influence, and seeking advantage where they can.

The result is that weaving the 21st century’s tapestry amounts to a patchwork in which some fragments will have long-term effects while others may not even register as a blip on the radar.

Take, for example, Morocco’s decision to give Ukraine some 20 refurbished Russian-made T-72B battle tanks. The deal made Morocco the first African, if not the first Global South nation, to militarily aid Ukraine.

The move, almost a year into the Ukraine war, is likely to have been motivated by short-term considerations, including Russia’s close ties to Morocco’s arch-rival Algeria and US recognition of Morocco’s claim to the formerly Spanish Western Sahara, rather than long-term 21st-century world order considerations.

Even so, Morocco’s breaking ranks with much of the Global South serves the US goal of sustaining the current world order in which it is the top dog, even if its power diminishes.

It doesn’t fundamentally affect China’s goal of rebalancing power in the existing order to ensure that it is bi- rather than unipolar.

The loser in the deal is Russia, which, like Iran, wants to see a new world order in which the United States is cut down to size.

The tank deal may not be a significant loss for Russia, but it does suggest that horse trading is a critical element in weaving the fabric of a new order.

So is mutual interest.

Like the arms sale, the agreement between Russia and Iran to create a financial messaging system that would allow their banks to transfer funds between one another and evade sanctions that block their access to the global SWIFT system is unlikely to have a major impact on the structure of the new world order.

Russian and Iranian efforts to link Europe with the Indian Ocean, centred on 3,000 kilometres of rail and sea and river shipping, are potentially far more significant.

The transport corridor would help reshape trade and supply networks in a world that seems set to divvy up into rival blocs. Moreover, it could shield Russia and Iran from US and European sanctions as they forge closer economic ties with fast-growing economies in Asia.

Russia and Iran are not just looking at India, which sits at one extreme of the corridor.

They also expect to capitalise on their links to China. All three are members of the Shanghai Cooperation Organisation (SCO), and China and Iran are close to becoming members of the Russia-dominated Eurasian Economic Union (EEU) free trade zone.

Of a similar potential impact on a future world order is US assistance in Saudi Arabia’s development of a first-time-ever long-term vision for the kingdom’s national security, an essential building block in Crown Prince Mohammed bin Salman’s effort to modernize his military.

Saudi Arabia expects to disclose its strategy later this year. It would codify “the kingdom’s strategic vision for national security and regional security,” according to Gen. Michael “Erik” Kurilla, the top commander of US forces in the Middle East, who is advising his Saudi counterparts.

Shaping Saudi strategy as well as military modernization may be the United States’ best bet to imbue at least some of its values and complicate the establishment of similar defense ties with China or Russia. Moreover, it would enhance the kingdom’s ability to absorb and utilize US weapons systems.

“The Saudis, under MBS’s (Mohammed bin Salman’s) leadership, now recognize (their) deficiencies and seem, for the first time, determined to address them in partnership with the United States and to a degree with the United Kingdom,” said political-military analyst and former Pentagon official Bilal Y. Saab.

That will undoubtedly register on the geopolitical chessboard, even if small moves also count for something.

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International Law

Undemocratic United Nations and Global Peace

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War is not the solution to any problem rather war is a problem itself. Many countries believe in diplomacy and peaceful means of problem-solving and conflict resolution. But, unfortunately, many nations still seek solutions of problems and continuity of politics in wars.

If we look at any newspaper, we find too many armed conflicts going on around the globe. To name a few would include a catastrophic war between Russian Federation and Ukraine which has caused tens of thousands of casualties, with millions displaced. Decades-long civil wars and subsequent US-led NATO intervention and withdrawal has brought Afghanistan to the brink of famine and hunger. The whole Middle Eastern region is unstable and striving with civil wars for long. The Arab -Israel conflict and Kashmir Dispute have been there for more than seven decades.

Above-mentioned and many others examples of armed conflicts prove that there is no durable peace in the world. Here one thing that needs to be noted is that conflict is always inevitable among individuals, societies and nations, because the interests of individuals, societies and nations do not always converge. When there is divergence of interests, conflict arises.

What is needed to be done is the resolution of these conflicts. There are two ways to resolve conflicts: one is violent way (use of force) and the other is peaceful way (diplomacy and negotiations). More than seven decades ago, after World War 2, nations realized that war is not solution to any problem and they established United Nations Organization (UNO). Primary objective of UN was and is the maintenance of peace and security in the world.

But, if we look at history, it seems the UN has failed to achieve international peace and security. UN may have had role in preventing the outbreak of another world war, but it could not stop a series of conflicts from Korea, Vietnam to Afghanistan (during Cold War), and from Africa, Middle East to ongoing Russian-Ukraine conflict.

This is a question mark on the credibility of UN, that why the UN despite being guardian of international peace and security cannot stop wars.

UN has six principal organs and many Specialized Agencies and Funds for different tasks.  Among them Security Council is the most powerful Organ and is mandated with enforcing international peace and security. UNSC uses two tools to enforce its decisions, one is applications of sanctions and the other is use of force (intervention).

However the concentration of power in the hands of five permanent states of Security Council, namely the United States, United Kingdom, France, China and Russia have been problematic. These five countries use veto power whenever they perceive any resolution to be against their national interest or against the interests of their allies. Throughout the Cold War, US and USSR had paralyzed UN by vetoing resolutions. Same happened with any other conflict including when US drafted a resolution to stop the war in Ukraine.

So, it is crystal clear that if UN (specifically Security Council) is not reformed, UN can not achieve its primary goal i.e. maintenance of peace and security. UN members and experts have talked about reform in Security Council. Experts have also given suggestions and proposals to make UN more democratic and representative. One of those proposals is abandoning veto and doubling the size of SC members. This can make UN more democratic and representative to some extent. But this is not an easy job. Firstly, because P5 are reluctant to abandon this privileged position (veto power). Secondly, countries hoping for permanent membership are opposed by other countries. For example, many European countries object Germany’s membership. Pakistan objects to India’s membership.

 Experts believe the solutions could be the democratization of UN system (particularly UNSC). This is done by involving General Assembly in the decision making regarding international peace and security. General Assembly is a symbol of democracy, representing almost all the states on the globe. Simple or two-third majority must be mandatory to make any decision regarding international peace and security. This could stop any powerful state to use UN as a tool for its own vested national interest , and the decision of majority will prevail. All the states, big and small, powerful and weak will have equal say in the UN. Otherwise the possibility of wars, violence, genocide and injustice will further increase.

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United States thinks it’s ‘the exception to the rules of war’

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The architects of those Nuremberg trials—representatives of the United States, the Soviet Union, the United Kingdom and France fully expected that the new United Nations would establish a permanent court where war criminals who couldn’t be tried in their home countries might be brought to justice. In the end, it took more than half a century to establish the International Criminal Court (ICC). Only in 1998 did 60 nations adopt the ICC’s founding document, the Rome Statute. Today, 123 countries have signed.

Guess what superpower has never signed the ICC? Here are a few hints? – writes Rebecca Gordon in an article at “The Nation”:

Its 2021 military budget dwarfed that of the next nine countries combined and was 1.5 times the size of what the world’s other 144 countries with such budgets spent on defense that year.

Its president has just signed a $1.7 trillion spending bill for 2023, more than half of which is devoted to “defense” (and that, in turn, is only part of that country’s full national security budget).

It operates roughly 750 publicly acknowledged military bases in at least 80 countries.

In 2003, it began an aggressive, unprovoked (and disastrous) war by invading a country 6,900 miles away.

Yes! The United States is that Great Exception to the rules of war.

While, in 2000, during the waning days of his presidency, Bill Clinton did sign the Rome Statute, the Senate never ratified it. Then, in 2002, as the Bush administration was ramping up its Global War on Terror, including its disastrous occupation of Afghanistan and an illegal CIA global torture program, the United States simply withdrew its signature entirely. Secretary of Defense Donald Rumsfeld (photo) then explained why this way:

“The ICC provisions claim the authority to detain and try American citizens — U.S. soldiers, sailors, airmen and Marines, as well as current and future officials — even though the United States has not given its consent to be bound by the treaty. When the ICC treaty enters into force, U.S. citizens will be exposed to the risk of prosecution by a court that is unaccountable to the American people, and that has no obligation to respect the Constitutional rights of our citizens.”

The assumption built into Rumsfeld’s explanation was that there was something special — even exceptional — about US citizens. Unlike the rest of the world, we have “Constitutional rights,” which apparently include the right to commit war crimes with impunity.

Even if a citizen is convicted of such a crime in a US court, he or she has a good chance of receiving a presidential pardon. And were such a person to turn out to be one of the “current and future officials” Rumsfeld mentioned, his or her chance of being hauled into court would be about the same as mine of someday being appointed secretary of defense.

The United States is not a member of the ICC, but, as it happens, Afghanistan is. In 2018, the court’s chief prosecutor, Fatou Bensouda, formally requested that a case be opened for war crimes committed in that country. ‘The New York Times’ reported that Bensouda’s “inquiry would mostly focus on large-scale crimes against civilians attributed to the Taliban and Afghan government forces.” However, it would also examine “alleged C.I.A. and American military abuse in detention centers in Afghanistan in 2003 and 2004, and at sites in Poland, Lithuania, and Romania, putting the court directly at odds with the United States.”

Bensouda planned an evidence-gathering trip to the United States, but in April 2019, the Trump administration revoked her visa, preventing her from interviewing any witnesses here. It then followed up with financial sanctions on Bensouda and another ICC prosecutor, Phakiso Mochochoko.

So where do those potential Afghan cases stand today? A new prosecutor, Karim Khan, took over as 2021 ended. He announced that the investigation would indeed go forward, but that acts of the United States and allies like the United Kingdom would not be examined. He would instead focus on actions of the Taliban and the Afghan offshoot of the Islamic State.

When it comes to potential war crimes, the United States remains the Great Exception. Wouldn’t it be wonderful if we were just a little less exceptional?

If, for instance, in this new year, we were to transfer some of those hundreds of billions of dollars Congress and the Biden administration have just committed to enriching corporate weapons makers, while propping up an ultimately unsustainable military apparatus, to the actual needs of Americans?

Wouldn’t it be wonderful if just a little of that money were put into a new child tax credit? – asks Rebecca Gordon.

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