Crimes against Humanity: Delhi HC imports Nuremberg in Sajjan Kumar; Laments 2002 Gujarat, 1993 Mumbai

Today is no ordinary day for the Constitutional courts of India. The Delhi High Court reversed the acquittal of a Congress politician and former Member of Parliament, Sajjan Kumar, and sentenced him to life imprisonment for his role in the Anti-Sikh pogrom of 1984.

It is not often that courts in India step up to convict politicians for their crimes. That it comes more than three decades later and that too by reversing a trial court verdict of acquittal is what makes it special.

The legal process is not over yet, and the option of appealing to the Supreme Court remains. But that does not diminish the significance of this verdict.

However, what stands out in its 207-page judgment is the import of certain foreign concepts into Indian jurisprudence.

Crimes against Humanity

Before getting into the merits of the case, the judgment has an untitled prelude to it from page 5 to page 6. And it is in page 6 that the term “Crimes against Humanity” finds its first mention.

“This Court is of the view that the mass killings of Sikhs in Delhi and elsewhere in November 1984 were in fact “crimes against humanity”. They will continue to shock the collective conscience of society for a long time to come.”

The topic is then addressed in detail under the head Crimes against Humanity, starting from page 191.

So what are crimes against humanity?

As noted in the judgment, the concept of Crimes against Humanity was acknowledged for the first time in a joint declaration by the governments of Britain, Russia, and France on 28^th May 1915 against the government of Turkey, following the large-scale killing of Armenians by the Kurds and Turks with the assistance and connivance of the Ottoman administration. The declaration termed the killings as “crimes against humanity and civilization for which all the members of the Turkish Government will be held responsible together with its agents implicated in the massacres.”

The 1984 massacres fit into the said description and require a different approach to be adopted by the courts, the High Court stated.

However, it was the Holocaust by the Nazi regime that gave impetus to Crimes Against humanity jurisprudence in the international arena.

Nuremberg Trials

The Charter that established the International Military Tribunal (IMT) at Nuremberg to try Nazi criminals accused of mass extermination of Jews defined “crimes against humanity‟ as follows:

“…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.”

Many of the accused were held guilty for the same by the tribunal, the High Court noted.

Evolving ambit of Crimes against Humanity

One constraint of this definition was the use of the phrase “before or during the war”. This limited the scope of such crimes to acts committed in connection with war. Thus, revolting acts committed by a nation against its civilian population unconnected with war could not be tried under the same.

Consequently, various international tribunals trying perpetrators evolved different definitions. So, crimes against humanity developed with the evolution of customary international law.

As noted in the High Court judgment, the International Criminal Tribunal for the former Yugoslavia (ICTY), as well as the International Criminal Tribunal for Rwanda (ICTR), held trials for a series of offences including genocide, war crimes and crimes against humanity.

The definition adopted of “crimes against humanity” in Article 3 of the ICTR Statute was that they were ‘inhumane acts’ that were part of a “systematic or widespread attack against any civilian population on national, political, ethnic, racial or religious grounds.”

Article 7 of the Rome Statute for the International Criminal Court defines “crimes against humanity” as meaning “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack…”

India – Partition, 1984, 2002, 2013

The High Court went on to note the various instances in India which could fall under the bracket of these definitions. Aside from 1984 Anti-Sikh riots, the Court court said that the partition riots, the mass killings in Mumbai in 1993, the 2002 Gujarat Riots and the 2013 Muzzaffarnagar Riots all had a familiar pattern.

“In India, the riots in early November 1984 in which in Delhi alone 2,733 Sikhs and nearly 3,350 all over the country were brutally murdered (these are official figures) was neither the first instance of a mass crime nor, tragically, the last. The mass killings in Punjab, Delhi and elsewhere during the country‟s partition remains a collective painful memory as is the killings of innocent Sikhs in November 1984. 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 U.P. in 2013 to name a few.”

Common to these mass crimes was the targeting of minorities and the attacks spearheaded by the dominant political actors being facilitated by the law enforcement agencies, the Court noted.

The Court also observed that the criminals responsible for the mass crimes have enjoyed political patronage and managed to evade prosecution and punishment, and decades pass before they are made answerable.

“Bringing such criminals to justice poses a serious challenge to our legal system. As these appeals themselves demonstrate, decades pass by before they can be made answerable.”

Amendments to Domestic Law?

The Court has called for strengthening the legal system by making crimes against humanity and genocide part of our domestic law of crime. This could, arguably, be the first time that a court in India is expressly calling for incorporating Crime Against Humanity jurisprudence into our domestic law.

“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.”

In this context, the Court has also discussed how legal systems elsewhere in the world are grappling with crimes against humanity and are delivering verdicts of “guilty” despite the enormous lapse of time.

The Court has stressed on the observations made Supreme Court of Bangladesh in Abdul Quader Molla wherein it was hearing the appeal of the government against the acquittal of those accused of mass killing of Bangladeshi citizens in 1971 by sympathisers of the Pakistani Army. The trial, in this case, had begun only in 2009, that is 38 years after the incident, and concluded in 2013.

A similar approach by Court of Appeal in United Kingdom in Anthony Sawoniuk while dealing with the issue of framing criminal proceedings 56 years after the alleged crime, has also been highlighted in the judgment.

Considering the sluggish and lethargic pace at which things are done in our country, particularly on the legislative side, the cry for reform might not necessarily translate into changes on the ground in the near future. However, the fact that such a call has come from one of the foremost judicial institutions is the highlight of the day.

Every single time a policeman stands and watches a man being mobbed and beaten – often to death – on account of his religion, caste, colour, language, dress or belief, the State is complicit in a crime against humanity.

And the track record of Indian State in that respect is not very appealing. There is blood on its hands and it keeps thickening.

Murali Krishnan is Associate Editor at Bar & Bench. He tweets @legaljournalist. 

Main Image taken from here.