Concerned Citizens Tribunal-Gujarat 2002

Nothing but Genocide

Over the past three decades, a disturbing trend in mass crimes has been the single-handed targeting of vulnerable sections of the population. This includes caste massacres against Dalits or lower castes and violence against the country's minorities. On several occasions, responsible people and organisations have termed massacres, such as the recent one in Gujarat, the one in Delhi in 1984 and those in Hashimpura (Meerut) in May 1987, when PAC personnel killed more than 40 Muslim youth, as genocide killings.

After World War II, an international convention [the Convention on the Prevention and Punishment of the Crime of Genocide] was brought into existence worldwide on Dec. 9, 1948, to prevent and punish the crime of genocide. In all, it has 19 articles of which Article 2 and 3 are particularly important. Article 2 defines the crime of genocide as "any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:

• killing members of the group;
• causing serious bodily or mental harm to the 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 one group to another group.

The convention has also enumerated the offences that are punishable, and they are:

• genocide;
• conspiracy to commit genocide;
• direct and public incitement to commit genocide;
• attempt to commit genocide; 
• complicity in genocide."

Under the convention, the acts that are punishable are genocide, conspiracy to commit genocide, the direct and public incitement to commit genocide, the attempt to commit genocide and complicity in genocide. The people who can be punished for these crimes are any of the people committing any of the above acts, even if they are constitutionally responsible rulers, public officials or private individuals.

Under the convention, it is a responsibility of member States to make legislation to give effect to the provisions of the present legislation and to provide penalties to people responsible to be tried by a competent tribunal of the State or such international penal tribunals whose jurisdiction the contracting party may have accepted.

To prove the crime of genocide, there has to be evidence of the physical destruction of a section, community, racial or ethnic group as well as the evidence of mental harm. At the crux of it all, the evidence needs to point to an "intention" to destroy and harm; it is a crime not computed in numbers of dead or harmed but in the intention and desire to commit it-the sheer planning, premeditation, extent and thoroughness of the killings.

The Gujarat carnage was especially coloured by state complicity in the violence, in premeditation and planning behind the attacks on the lives, dignity, livelihoods, businesses and properties of a section of the population-Muslims-and a selective assault on their religious and cultural places of worship. Muslim women were targeted as objects of their community and similarly abused with an inhuman level of violence and sexual crimes. An economic and social boycott of the community was openly encouraged and continues in many parts of Gujarat to date. Agricultural land holdings of Muslims, small and large, have been taken over by dominant community and caste groups. A livelihood for Muslims has been snatched away, and there is a clear-cut and ongoing design to economically cripple the community.

The chief minister of Gujarat, Shri Narendra Modi, has been held by this tribunal to be directly responsible, along with cabinet colleagues and organisations that he leads and patronises-the BJP [Bharatiya Janata Party or Indian People's Party], RSS [Rashtriya Swayamsevak Sangh], VHP [Vishva Hindu Parishad] and BD [Bajrang Dal]. For all these reasons together, there is no way that the post-Godhra carnage in Gujarat can escape being called squarely what it was-crimes against humanity and genocide.

The case for genocide against the VHP and the Bajrang Dal as well as Shri Narendra Modi and members of his cabinet is being made for the following reasons:

• There have been a number of statements and pamphlets from the VHP and the BD and its leaders in the
  past which establish that they have been consistently against the Muslim community, making them the target of verbal and physical attacks and provoking people to economically and physically attack Muslims and, thereafter, subject them to an economic and social boycott.
• There is sufficient evidence to show that the carnage in Gujarat, post-Feb. 27, was led by the VHP and the Bajrang Dal.
• The carnage was at six levels: physical destruction of a part of the community, economic destruction, sexual violence and rape of a large number of Muslim women , cultural and religious destruction, resistance to rehabilitation and a publicly declared desire to physically and morally destroy the Muslim community of Gujarat.
• The offences that were committed in the first flush of organised violence continue at a lower intensity under the same political dispensation even today.

The chief minister is equally liable for prosecution for genocide for the following reasons:

• refusal to take any preventive measures and protect the lives and properties of Muslims;
• connivance in and facilitation of the carnage;
• transfer of good police officers;
• no action against erring police officers or party functionaries who were named by victims;
• persistent threats to close down privately run relief camps;
• abusive comments against the affected and victimised community that qualify as hate speech;
• refusal to comply with the NHRC [National Human Rights Commission] recommendations;
• total failure in the provision of relief and rehabilitation;
• absence of punitive action against a provocative press and other organisations;
• influencing criminal investigation-the omission of the names of VHP/ RSS/ BJP functionaries from charge
  sheets although their names appear in FIRs [first instance reports];
• the case for the Gujarat carnage being nothing short of genocide is clinched by the fact that Muslim journalists, Muslim police officers, Muslim bureaucrats and Muslim teachers have had to function only after concealing or changing their identities, and this continues to be a trend even now.

Considering these facts and the distinct tendency and trends that mass crimes committed against marginalised groups have taken in past years, it is a grave lapse on the part of the government of India, which has to date not enacted any law in compliance with Article 5 of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. India signed the Genocide Convention in 1948 and ratified it in 1958. Under the convention, a State that is a signatory is bound to effectively act upon and legislate upon the intents of the legislation. Thus far, India has not enacted any law in compliance with the convention.

Note on the International Criminal Court

The International Criminal Court (ICC) came into existence on July 1, 2002. India has, however, refused to ratify the treaty. Under the treaty, any person can be tried and punished for crimes against humanity, acts of genocide, etc., before the ICC, irrespective of where the crime is committed. India, not being a ratifying party, cannot be forced to hand over any person charged or convicted to this court.

The genocide in Gujarat could not have been taken up at the ICC since the court came into being only on July 1, 2002. However, since it is not the first time that mass crimes of this kind have been allowed and condoned internally, it is vital, as a safeguard for the future, that India ratifies the ICC treaty and subjects itself to international scrutiny, especially in respect of heinous crimes committed by government functionaries. If the carnage in Gujarat had taken place post-July 2002 and India had still not ratified the ICC treaty and acceded to the court, the issue could come up through the U. N. Security Council reference.

 

AHRC Establishes Victims Fund Oftentimes staff members of the Asian Human Rights Commission (AHRC) encounter victims of human rights violations who need support, at least temporarily, in situations of extreme need. While fighting for their rights, it is also necessary to help them, even in a small way, in such times of distress. For this purpose, AHRC has set up a Victims Fund. Your help may assist a person and their family who have suffered from a violation of their human rights. You can make your contributions to this fund by sending a cheque in U. S. dollars made out to the Asian Legal Resource Centre Ltd. to the following address: Unit D, 7/ F Mongkok Commercial Centre 16 Argyle Street Kowloon Hong Kong