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Genocide – A Crime against Humanity
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With the recent Delhi High Court judgment about the perpetrators of genocide of the Sikhs in Delhi in 1984 awarding life imprisonment to Sajjan Kumar till the rest of his natural life on this earth after a long protracted legal battle, a whole host of issues regarding the Indian Judicial system, the genuineness or otherwise of the present day Indian State and its failure to safeguard the fundamental human rights of its citizens have cropped up. This landmark judgement delivered by two member bench of Justices S Muralidhar and Vinod Goel, besides sentencing Sajjan Kumar to life imprisonment and his co-conspirators to different jail terms and death sentence to one of them in proportion to their culpability has also pointed to the serious lacuna in the existing Indian Justice system and the urgent need to address this loophole. "This calls for strengthening the legal system. "Neither Crimes against humanity nor genocide is part of our domestic law of crime. This loophole needs to be addressed urgently", the learned judges pointed out in their judgment. Demanding a stronger legal system to checkmate the recurrence of such 'Crimes against humanity" the judges came down heavily on the perpetrators of the genocide of the Sikhs in 1984 placing these killings at par with some of the worst crimes against humanity before and after 1984 in India and in some other parts of the globe in the past.
They wrote ""There has been a familiar pattern of mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal in Odisha in 2008, in Muzaffarnagar in UP in 2013 to name a few… The criminals responsible for the mass crimes have enjoyed political patronage and managed to evade prosecution and punishment," the bench said. "The mass killings of Sikhs between 1st and 4th November 1984 in Delhi and the rest of the country, engineered by political actors with the assistance of the law enforcement agencies, answer the description of 'crimes against humanity' that was acknowledged for the first time in a joint declaration by the governments of Britain, Russia and France on 28th May 1915 against the government of Turkey following the large-scale killing of Armenians by the Kurds and Turks with the active assistance and connivance of the Ottoman empire administration," it said.
The bench recalled the Charter which established the International Military Tribunal, Nuremberg in 1945-46, to try Nazi war criminals after World War II. It used the term 'crimes against humanity', and it was the first time that prosecutions were made under it.
The Charter described crimes against humanity as "murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or prosecutions on political, racial or religious grounds in execution or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated".
After the Nuremberg trials, the International Criminal Tribunal for (former) Yugoslavia and the International Criminal Tribunal for Rwanda, also held trials for offences including genocide, war crimes and crimes against humanity.
The judges explained their decision to "digress" into a discussion on crimes against humanity: "…cases like the present are to be viewed in the larger context of mass crimes that require a different approach and much can be learnt from similar experiences elsewhere."
The convention on the prevention and punishment of the crime of genocide adopted in 1948 signed and ratified by a majority of the countries (149) is aimed at both prevention and punishment of genocidal crimes, despite its noblest intent and aims, has made a limited progress. "This definition of genocide in the 1948 convention" according to Prof Pritam Singh "includes reference to acts committed with 'intent to destroy, in whole or in part, a national, ethnical, racial or religious group'. This definition, though admiringly precise, is not sufficiently comprehensive in capturing all instances of mass murder." (The Tribune, December 17, 2018)
This convention charter was drawn after the occurrence of the periodic incidences of genocide in different parts of the world, all in the twentieth century. It included the premeditated genocide of one and a half million Armenians by Turks and Kurds aided and abetted by the Turkish Ottoman empire authorities between 1915-17; the Stalinist purges of one million political opponents and Russian peasantry in Russia in 1930s; the mass killings of six million Jews by Adolf Hitler's Nazi Party in Germany between 1941-44, leading to the conduct of Nuremburg trials in 1945-46 against Nazi perpetrators; and mass murders of one and a half million Cambodians by the notorious Stalinist Pol Pot's Khmer Rouge regime in Cambodia between 1975-79 by uprooting the city population for agricultural collectivization following which two Khmer Rouge leaders were convicted of genocide in November 2018. It also includes the genocide of half a million people of Tutsi minority by a Hutu politician Jean Paul Akayesu in Rwanda in 1994, who had been convicted of genocide by the International Tribunal for Rwanda in 1998 and a similar genocide of minorities in Serbia in 1992-95 following which the then Serbia's President Solobodan Milosevic was accused of genocide in 1999 and who died in police custody.
It would be of some interest to our readers that word 'Genocide' was first coined by a lawyer of Polish - Jewish lineage Raphael Lemkin in 1943 and drafted in the genocide convention passed by UN on December 9, 1948 soon after which the universal declaration of Human Rights was adopted on December 10, 1948.
The common link between all these occurrences of religious ethnic, ideological cleansing and mass killings has been the human hubris of a few self-centred individuals and the mass hysteria generated by their overcharged extremist streak. The incidents of similar genocide have occurred in India as well though on a lesser scale on similar pattern in 1984 in Delhi, in 1993 in Mumbai, in 2002 in Gujrat, in 2008 in Kandhamal in Odisha and in 2008 and in 2013 in Muzzafarnagar. The mob lynching incidents of Muslims and Dalits by cow vigilantes in different parts of India under the present regime have the potential of assuming dangerous proportions of mass killings if the same ideological dispensation continues in power for a few more years in India.
Delhi High Court's conviction of Sajjan Kumar and some of his collaborators on December 18, 2018 in the case of 1984 genocide of Sikhs poses some unavoidable questions both to the Indian nation and the Indian State that it must address if it aspires to be counted among the comity of civilized nations. First, it must strengthen its legal system as pointed by the learned judges of the Honourable High Court in the Sajjan Kumar case as hinted at in this piece earlier.
Second, it is incumbent upon the Indian Nation State to make a public confession of its advertent or inadvertent, involvement in these acts of genocide which have occurred in the past and give a proof of its being a mature and civilized nation like Canadian Nation's confession and public apology for its ban imposed on the entry of Kamagata Maru Indian pilgrims in 1914 in Canada and Australian nation's apology to its Aborigines' population for the atrocities committed against them.
It is ironical that the first principal convict in the 1984 genocide happens to bear the name Sajjan Kumar like the well-known malcontent "Sajjan Thug' mentioned in the Sikh classic the Puratan Janamsakhi, whom Guru Nanak had encountered and reformed by stirring his conscience through his soul stirring verse. May the life imprisonment awarded to Sajjan Kumar enable him to atone for his sins and be a lesson for those having proclivity towards similar crimes against humanity. Sardar H S Phulka deserves credit for relentlessly pursuing these cases of genocide of Sikhs in 1984. The Sikh Panth must express its sense of gratitude to him for his firm commitment and devotion to the Sikh cause. The Sikh Panth must acknowledge his selfless service and honour him in a suitable manner.
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