War crimes are considered among the most heinous and serious offenses that can be committed during any conflict. The Indian legal system has recognized this and has enacted several provisions to address war crimes and other international crimes. India is a signatory to several international conventions and treaties that relate to war crimes and crimes against humanity. In addition, the Indian Penal Code (IPC) contains provisions related to these offenses. Today, let’s take a look at the current state of war crime laws in India, including the domestic laws that criminalize such offenses, the international treaties and conventions that India has signed, and the recent cases of human rights violations in India.
What is War Crime?
War crimes are those transgressions of customary international humanitarian law that are subject to individual criminal liability. Since one is not supposed to conduct war crimes even on orders from one's superiors, war crimes involve individual accountability, therefore the perpetrator cannot claim that he was only carrying out orders from above. Torture, rape, destruction of property, the deliberate slaughter of civilians and prisoners of war, failure to provide the necessities for the life of the captured, hostage-taking, etc. are all examples of war crimes.
International humanitarian law is related to the idea of a war crime. According to the Rome Statute of the International Criminal Court, a war crime is a flagrant infraction of international humanitarian law. The mistreatment of people, particularly during times of conflict, served as the inspiration for the creation of these laws. No matter what nation, religion, or sexual orientation a person belongs to, there must be limits on how they are treated, especially in times of conflict.
Overview of the International Humanitarian Laws
When the war between France and Austria broke out, Henry Dunant was in Italy. He watched the atrocities the soldiers committed during the entire conflict. He published a book titled "The Memory of Solferino" in which he discussed the Solferino War and the concept of a group that looks after injured troops. Subsequently, he founded the Red Cross organization.
This book generated a global discussion regarding humanitarian law and war crimes. When word of the concept spread throughout the European countries, numerous leaders gathered to work on the Geneva Convention. He received the first Nobel peace prize in recognition of his contributions to humanitarian law.
There are four treaties and three protocols that make up the Geneva Convention. These are the guiding principles for treating combatants with compassion. There used to be no restrictions on how humans were treated during wartime until the Geneva Convention came into effect. Here is a timeline of how these golden laws have developed:
- The 1864 first Geneva Convention established rules for the treatment and defense of injured soldiers on land.
- The second Geneva Convention, which took place in 1906, established rules for the safety and care of soldiers at sea.
- Laws governing the treatment of prisoners of war were established at the third Geneva Convention, held in 1929.
- Laws governing the protection of civilians during times of war were established in the 1949 Fourth Geneva Convention. It covers all medical personnel working in relief efforts.
After World War II, the Geneva Convention entered into force in 1949. The vast majority of countries approved it. The international community saw the need to add a few protocols to the Geneva Conventions because, as we all know, the law is a constantly changing idea. The timetable for adding new protocols is as follows:
- Protocol I, which established legislation relating to victims of international conflict, was added in 1977.
- Protocol II, which established provisions for the protection of non-international armed conflicts, was also introduced in 1977.
- In 2005, Protocol III was expanded, and this created the groundwork for the Red Crystal organization.
Domestic Laws on War Crimes in India
The Indian Penal Code (IPC) contains several provisions related to war crimes and crimes against humanity. These provisions criminalize offenses such as waging or attempting to wage war or abetting waging of war against the Government of India, punishment for murder, and punishment for repeat offenders of rape. Additionally, India has enacted several other laws to investigate and prosecute war crimes and other international crimes.
The Prevention of Money Laundering Act, of 2002, is a crucial law that allows for the seizure and confiscation of the proceeds of crime, including war crimes and terrorism. This law provides for the establishment of a Special Court to deal with offenses related to money laundering. The Central Bureau of Investigation (CBI) is the primary investigative agency for international crimes in India. It has the power to investigate offenses related to corruption, economic crimes, and other serious offenses, including war crimes.
The Armed Forces (Special Powers) Act offers the military forces broad authority to kill with impunity, make arrests under dubious pretenses, search without a warrant, and destroy buildings in the name of "aiding civil power." Armed with these unique abilities, soldiers have killed and tortured Indian citizens for fifty years without fear of being held accountable. The Act infringes on several international human rights laws, including the right to life, the right to be free from torture and cruel, inhuman, or degrading treatment, and the right to be protected against arbitrary arrest and imprisonment. Additionally, it violates the victims' entitlement to compensation.
Cases of War Crimes in India
When the British came over, war crimes occurred in India, but the sad fact is that they persisted long after the country gained its independence. Let's quickly go over the war crimes that were committed in India following its independence.
Genocide of Sikhs in (1984)
In several regions of India, there has been widespread violence against the Sikh population since the third prime minister of India, Indira Gandhi, was slain by her Sikh bodyguards. Sikh community members were unfairly targeted and brutally murdered. The government authorities offered no protection. According to certain sources, the time's ruling government had planned to commit genocide. The first conviction, in this case, occurred in 2018.
Exodus of Kashmiri Pandits (1990)
Overnight in 1990, loudspeakers in mosques issued a warning to all Kashmiri Pandits urging them to either convert to Islam or leave Kashmir. All of the Kashmiri Pandits' possessions, including their mandirs and retail outlets, were targeted. There were a lot of fatalities. Individuals were compelled to abandon their houses and means of support. The folks are still residing in substandard housing. Except for repealing Article 370 of the Indian Constitution, no victims have received compensation or justice to date.
Gujarat Riots (2002)
On February 27, 2002, the pilgrims were traveling by rail from Godhra back to their homes. Muslims set fire to the train. Following this occurrence, the Hindus retaliated. Due to the conflict between the two aforementioned villages, there was a riot that lasted for a few days. In all, 23 persons were found guilty in this incident by the Gujarat High Court.
Delhi Riots (2020)
An Aam Aadmi Party (AAP) elected MLA named Tahir Hussain is allegedly the architect of these riots, according to the charge sheet submitted by the Delhi police. For this, he was also given funding of a few crores. It came about as a result of the anti-CAA demonstrations in Delhi, which subsequently became violent. Ankit Sharma, an officer, was slain after being naked to determine his religion. The case is still pending.
Bengaluru Riots (2020)
A crowd of thousands of people destroyed Hindus' homes, including that of a local Legislator, after one of their relatives shared a poster of Mohammad on social media.
There are plenty of such examples that may be recounted, but the fundamental issue is how crimes with such high casualty rates keep happening. Is there not a law to prevent such incidents? Why doesn't India have a domestic law for this although there is international law pertaining to genocide and India is also a party to it?
India is delaying passing legislation against genocide, even though it is urgently needed. How long can we allow a significant number of deaths while maintaining our denial that there is a serious issue? India must uphold its duties under international law and treaties, according to Article 51(c) of its Constitution. Parliament must enact laws to carry out any treaty, convention, or agreement, according to Article 253.
Challenges in the enforcement of war crime laws in India
The Communal Violence (Prevention, Control, and Rehabilitation of Victims) Bill, 2005 was introduced by the government in 2005. Unfortunately, the administration is unwilling to turn the bill into an act, therefore it is still only a bill. The primary issue with this bill is that it believes that only the religion that is in the majority can start riots and that only the majority can be held accountable for war crimes. The riots previously described demonstrate that riots can be started by any religion or social group. This bill has to be changed to remove any mention of religion. Some of the main clauses of the bill include the following:
- Both the state and federal governments are accountable for maintaining peace.
- Quick legal action and victim recompense.
- Police have the particular authority to search any residence for weapons and ammunition.
- There will be special courts established to hear cases involving intergroup violence.
- The witness must be offered protection.
- Public officials should be disciplined for performing their duties improperly.
- The Central government has the authority to send out military forces only at the State government's request.
War crimes include offenses done not just in times of conflict but also in times of peace. It is a far larger definition, and any harm done to people at any time, including in times of peace, is regarded as a war crime. War crimes are the umbrella term for any form of human rights violation.
For several centuries, the suffering of Indians was overlooked by the rest of the world, but it is now unacceptable that the Indian government is following suit. On August 27, 1959, India accepted the Genocide Convention; nonetheless, genocide is still not specifically covered by Indian law. Indian lawmakers assert that the current laws have all the provisions needed to address the genocide, but history demonstrates that this is untrue.
The 2005 legislation known as "The Communal Violence (Prevention, Control, and Rehabilitation of Victims) Bill, 2005" is still pending in the legislature. The bill contains all the necessary provisions to address the issue of genocide and intergroup violence.