Panditocide and India’s Ironic Role in Criminalising Genocide

Remembering 27 August 1959: India’s Genocide Convention Ratification Day, in the light of MHA’s recent official ‘violation’ of obligations to the ratification.

India and the UN Genocide Convention 1948
Polish Jew lawyer Dr Raphael Lemkin coined the word ‘Genocide’ which first appeared in his book ‘Axis Rule in Occupied Europe’ in 1944. It began a new era for international law and justice in the case of the ‘crime of crimes’ – genocide. He later drafted the historic United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) 1948. After the Genocide Convention 1948 was held, Dr Lemkin in an interview to Quincy Howe for a TV broadcast in New York in December 1946 said, “Crimes should not be punished by the victims, but should be punished by court, by international law”. In his own statements he also said that during his early works on ‘genocide’ as an advisor to an American prosecutor in the case of Nuremberg indictment, he had included the word ‘genocide’. The court, however, had restrained from including genocide as a crime and only punished the crimes committed in wartime. Dr Raphael Lemkin was tirelessly fighting for criminalising the crime of genocide, committed both in wartime and in peacetime.

After many disappointments from the rest of the word, Dr Lemkin finally met with a delegation of three nations that came together to support him in proposing a resolution on genocide crime and eventually sponsor the ‘UN Genocide Convention of 1948’. These three nations were Cuba, Panama, and India. This was the first step in bringing together a world consensus on an international law on genocide crime. India did not only play a leadership role in the convention but also showed its resolve as a nation that would come forward for such a cause even when it was struggling as a nation for its political survival in its second year of independence. The Genocide Convention became the first human rights treaty to be passed unanimously by the vote of 55-0 during the third session of the United Nations General Assembly in Paris on the 9th of December 1948. It needed 20 nations to ratify for it to become an international law. It later came into effect on 12th of January, 1951. India became a signatory to the convention in November 1949 and ratified the convention on 27th August, 1959. Dr Lemkin died of a heart attack in New York on 28th August 1959, a day after India ratified the convention. United States of America, the nation that wanted to be looked upon as a world power and the torch bearer for human rights ratified the Genocide Convention in 1988, becoming the 98th country to ratify the convention. The Genocide Convention has been ratified or acceded to by 152 States (as of July 2019). Other 42 United Nations Member States have yet to do so. From those, 19 are from Africa, 17 from Asia and 6 from America. 

This way, India not only took an initiative in 1948 to co-sponsor and propose the Genocide Convention but also reflected its resolve for criminalisation of the crime of genocide by ratifying it in 1959. This ratification made it a contractual obligation upon the state of India to enact a law to punish and prevent the crime of genocide in India. 

India’s escape from obligations of Genocide Convention.
Ratification to the convention came with certain obligations for the ratifying parties towards punishment and prevention of the crime of genocide in their respective states.

States’ obligations under the Genocide Convention (source: un.org)

  • Obligation not to commit genocide (Article I as interpreted by the ICJ)
  • Obligation to prevent genocide (Article I) which, according to the ICJ, has an extraterritorial scope;
  • Obligation to punish genocide (Article I);
  • Obligation to enact the necessary legislation to give effect to the provisions of the Convention (Article V);
  • Obligation to ensure that effective penalties are provided for persons found guilty of criminal conduct according to the Convention (Article V);
  • Obligation to try persons charged with genocide in a competent tribunal of the State in the territory of which the act was committed, or by an international penal tribunal with accepted jurisdiction (Article VI);
  • Obligation to grant extradition when genocide charges are involved, in accordance with laws and treaties in force (Article VII), particularly related to protection granted by international human rights law prohibiting refoulment where there is a real risk of flagrant human rights violations in the receiving State.

After ratification, it had become the Indian state’s contractual obligation towards the convention and towards its own citizens to enact a law that punishes and prevents the crime of genocide in India. Since 1959, India has not tabled a single bill in this direction. By failing to not legislate on the crime, India state has been in violation of not only the Genocide Convention but also its own commitment to criminalise genocide crime in India.

Panditocide & India’s Denial through Meaningless Recognition.
Panditocide or Kashmiri Pandit genocide, is a continual genocide of the indigenous, aboriginal community of Kashmir by Islamic invaders, expansionists and fundamentalists with an active support of the members of the Muslim community in Kashmir, with an intent to destroy all signs of Kashmiri Pandits from Kashmir. This genocide has a recorded history of over 600 years. Pandit Jonaraja in his Rajatarangini, a chronological book of Kashmir, recorded genocide of indigenous Pandit community of Kashmir and also analysed various aspects of it. His sanskrit shlokas in Rajatangini mention a word ‘Jati-Vidhvans’, literally translation to ‘genocide’ the word coined by Dr Raphael Lemkin almost 600 years later. (Find more on this on this in the source article: http://epilogue.in/2022/04/02/jonaraja-father-of-genocide-studies/)

Amidst killings of prominent members of the community, death threats, cases of rape, loot, house torching, temple desecrations and more, 1990 saw a genocidal extermination of Kashmiri Pandits from Kashmir. This was the 7th major mass extermination of Kashmiri Pandits in the past 700 years which had reduced them a few lakhs in 1989 before they fled in 1990. Thousands of families of these victims and survivors of genocide were made to dwell in the worst inhumane conditions in make shift camps in deserted areas in the outskirts of Jammu, isolated from the populated areas and deprived of basic necessities like adequate drinking water, electricity and sanitation for two decades. In these camps, thousands died of ailments caused by the extreme conditions, heat strokes, heart attacks, snake bites, scorpion bites, PTSD ailments, depression caused ailments etc. Many lost their mental balance too. After almost twenty years, concrete camps were built to accommodate these victims. Indian state officially recognises these victims and survivors of genocide as ‘migrants’ which is a blatant denial of their genocide. The camps are officially called Migrant Camps or even ‘townships’. There are several ways through which the Indian state, irrespective of the ruling party, has practised Denial and Inaction towards Panditocide (ref.: http://swatantramag.com/the-kashmiri-panditocide-an-ongoing-genocide-in-india/).

As far as records of the recognition of Kashmiri Pandit genocide are concerned, various organs and representatives of the Indian state have in the past made a mention of the same. In 2019, while putting a ban on Jammu Kashmir Liberation Front (JKLF), a separatist-Jihadi-terror outfit, the then Home Sec. Rajiv Gauba said in his official press briefing that JKLF was responsible for genocide of Kashmiri Pandits. In 2022, India’s Finance Minister Nirmala Sitharaman made a mention to genocide of Kashmiri Pandits while accusing the opposition party of its denial during a debate on the budget allocation to Jammu & Kashmir. In the same year, Sr. PP of the NIA in the NIA court admitted that the convict Yasin Malik (in terror funding case) was responsible for genocide of Kashmiri Pandits. There are many occasions where the representatives of the ruling party Bharatiya Janata Party, have recognised the genocide of Kashmiri Pandits. However, the government of India has shown absolutely no will to address this genocide as a genoicde. Instead, they have only maintained the India’s state policy of ‘denial of genocide’ in letter and spirit. After a series of genocidal killings in Kashmir right from the killing of Ajay Bharti in 2020 to the most recent killing of Sunil Bhat from Shopian on 17th of August 2022, Indian state has not taken a single initiative to recognise the ongoing genocide of Kashmiri Pandits in Kashmir. The recognition of this genocide only seems to have been done indirectly without any sign of intent to punish or prevent it. Had there been an intent or a will in the Indian state to do so, it would have lived by its own moral commitment and contractual obligation under the Genocide Convention. Instead of recognising the genocide in letter and spirit, the Indian state has failed to even address the current situation in Kashmir where thousands of Kashmiri Pandits who are working under the PM’s Employment Package, have fled the valley and have crossed 100 days in protest at Relief Commissioner’s office in Jammu as on 21st of August 2022 demanding their immediate relocation from Kashmir and attachment to govt. offices in Jammu or other states. The PM Package employees under their union – ‘All Migrant (Displaced) Employees Association Kashmir’ or AMEAK, have also registered their protests earlier in Kashmir after the killing of Rahul Bhat at his work desk in a Tehsildar’s Office in Budgam, Kashmir; before they fled to Jammu to continue their agitation. These employees have given many testimonies of day-to-day harassment and threat in Kashmir in the past 12 years since the employment package was put to implementation. They also went for a one-day protest to New Delhi’s popular protest site- Jantar Mantar to make their voice be heard by the central govt. In Delhi, they submitted a memorandum to the office of the President of India, Prime Minister and the Home Minister and later to all Members of Parliament, for their concerns of genocidal assault and their demand for safe relocation from Kashmir until the genocide was addressed.

In addition to this, even those Kashmiri Pandits who did not leave Kashmir in the 1990 mass extermination are beginning to flee from Kashmir in August 2022. Kashmiri Pandit Sangharsh Samiti (KPSS) is an organisation of 808 Kashmiri Pandit families who had stayed back in Kashmir in 1990. In his latest media interactions, KPSS President Sanjay Tickoo said that the situation in Kashmir was not conducive for Kashmiri Pandits to live. He said that there is no trust even on the closest of muslim friends and colleagues. He released a letter making an appeal to the handful of Kashmiri Pandits who live in the valley to make safe arrangements to leave Kashmir for their safety and survival. He had previously approached the J&K high court to seek help for safe relocation of Kashmiri Pandits residing in Kashmir. 

On 27th of July, 2022, MoS Nityanand Rai of the Ministry of Home Affairs in the Indian Parliament said that no Kashmiri Pandit had left Kashmir in 2022, in an answer to a question asked by MP Javed Ali Khan of the Samajwadi Party. In contradiction, most Kashmiri Pandit employees under the PM’s employment package had started fleeing Kashmir by the end of May 2022 after the shocking killing of Rahul Bhat and their protests which were initially held at various places in Kashmir, later continued in Jammu from 13th of June 2022 onwards in the premises of the Relief Commission’s office. The number of Kashmiri Pandit employees who have fled Kashmir is estimated to be 2000 or more out of around 3700 total as per their union. Their protests have been widely documented by the local as well as national media. So the statement from Nityanand Rai, MoS for the MHA, Govt. of India is, therefore, not just incorrect but also denies the genocide and the existence of its victims and survivors. To their defence, the MHA may be hiding behind the government to validate their statistics. The fact that no cognisance was taken about their mass absence in offices in Kashmir is also not surprising. In that case the statistics would have suggested an inconvenient reality and that would mean that the govt. would have had to address it as well. That is something they would try best to avoid, given India’s state policy pattern in case of addressing Panditocide in Kashmir ever since 1990.

A Shameful Climax: India Refuses to Bring Genocide Law.
The number of convicted persons for the genocide crimes against Kashmiri Pandits is zero. Right from India’s pioneering role in co-sponsoring the United Nations Genocide Convention of 1948 to signing it on 29th November 1949 and ratifying it on 27th August 1959, Indian state has only moved away from its moral and contractual obligations. Not only that. MoS for the Ministry of Home Affairs has gone ahead and officially ‘dismissed’ the idea to bring any special legislation on genocide crime in India, by giving a misleading argument on the floor of Rajya Sabha, the upper house of the Parliament of India, on 9th February 2022.

First ever draft bill on the punishment and prevention of the crime of genocide was proposed by Panun Kashmir –  the frontline political resilience organisation of Kashmiri Pandits founded in 1991 after their extermination. Panun Kashmir is also the name given to the separate, centrally administered homeland with union territory status that the community demands for their return as per ‘Margdarshan Resolution 1991’. A draft bill by the title – ‘Panun Kashmir Genocide & Atrocities Prevention Bill-2020’, also referred to as the ‘Genocide Bill’ was proposed by Panun Kashmir to the various concerned ministries of the Govt of India in early 2020 to provide a legal framework for the enactment of a genocide law (ref. www.pkrehinge.com) in India. This bill was drafted by a Kashmiri Pandit lawyer Tito Ganju – an expert and an educator on subjects like Genocide Studies, International Law, Constitution of India and Criminology. Activists from the community have been pushing for the proposed Genocide Bill through various activities and campaigns.

Incidentally, on 9th of February, 2022, Abdul Wahab, a Member of Parliament from the Rajya Sabha from Malappuram, Kerala asked a question (Unstarred Question No. 871), to the MHA about genocide laws in India (ref. https://www.mha.gov.in/MHA1/Par2017/pdfs/par2022-pdfs/RS09022022/871.pdf)  The question asked was as below:

“Will the Minister of HOME AFFAIRS be pleased to state:

(a) whether it is a fact that India ratified the Genocide Convention (1948) passed by the UN General Assembly (UNGA);

(b) if so, whether Government have enacted any laws regarding Genocide;

(c) if so, the details thereof;

(d) if not, the reason for not legislating any such law; and

(e) whether Government is committed to bring a legislation regarding Genocide Convention of 1948?”

The MoS of the Ministry of Home Affairs, Nityanad Rai answered as below:

“(a) to (e): Yes Sir. India signed the Convention on the Prevention and Punishment of the Crime of Genocide, 1948 on 29th November, 1949 and ratified the Convention on 27th August, 1959 and thereby recognised genocide as an international crime. The principles embodied in the Convention are part of general international law and therefore already part of common law of India. The provisions of Indian Penal Code including the procedural law (Criminal Procedure Code) provide effective penalties for persons guilty of such category of crime and take cognisance of the acts which may otherwise be taken to be in the nature of genocide, as culpable offences.”

Yes! Culpable offences! That’s what he said. It’s not only misleading but also revealing of Indian state’s current policy of refusal to bring a law to criminalise genocide. It looks like the state that gave breath to a great step towards creation of deterrent laws in the world to give constitutional guarantee to the people against the ‘crime of crimes’, has ironically pulled back from the commitment of enacting such a law. 

It is to be understand that the provisions for culpable offences in the IPC like section 299 and section 300 only deal with homicide and murder. In such crimes, a person is killed by another person(s). By no means do such laws deal with the crime that is defined as ‘genocide’ under the Genocide Convention, where destruction of one collective is done by another on the basis of their national, religious, ethnical or racial identity. 

Speaking on the point of “effective penalties for persons guilty of such category of crime and take cognisance of the acts which may otherwise be taken to be in the nature of genocide” in Nityanad Rai’s answer, it is a matter of great contradiction that Indian state has taken absolutely no measure to set up trials for any such crime even after repeated cognisance taken by many of its representatives. Nobody has been ever tried for the crime of genocide of Kashmiri Pandits. Nobody has been punished.

Reflections.
No victim has been given the official status of ‘victim of genocide’. So does half-recognition even mean recognition? Or does it mean a clever denial? Did no one commit the genocide? Can there be a genocide without its perpetrator group or even victim group for that matter? Govt of India banned JKLF saying that they were responsible for the genocide of Kashmiri Pandits. But, they just banned them. Nobody was arrested, tried, convicted or brought to justice for having committed a ‘genocide’. The victim groups of Kashmiri Pandits continue to be officially labelled as ‘migrants’ not as ‘victims of genocide’. So what did MoS Nityanand Rai really mean? Does he even know what genocide means? Or does he know, and that is precisely why he gave such a escapist and misleading answer? Does this mean that the Indian state has closed the chapter on the question of protecting its citizens against the genocide crimes? Will India never punish the perpetrators of Panditocide? Will the victims of Panditocide never get due rights and protection as they fear their cultural extinction in exile in their own country? As of today, India sees the killings of Kashmiri Pandits in Kashmir as a law and order issue or terrorist violence or at the max an attempt to sabotage the development process by Pakistan. It does not see these killings as continuation of a genocide. It has been spreading narratives about return of ‘normalcy’ in Kashmir when the return of Kashmiri Pandits to Kashmir is a bigger impossibility today than ever. The Indian state has created an image for a brand new Kashmir which it calls ‘Naya Kashmir’. Is Naya Kashmir the one without Kashmiri Pandits?

In the time of ongoing genocide and no recognition or addressal from the Indian state, the only hope that the victims of Panditocide have to hold tight is the proposed Panun Kashmir’s Genocide & Atrocities Prevention Bill-2020. They await a miracle that could save them from getting consumed by the genocide. For them, genocide is not just the statistics of number of people killed. The need for enactment of the proposed genocide bill was also stressed upon in the memorandum submitted to the President of India, PMO, MHA and all the MPs by AMEAK, the employees union of Kashmiri Pandits serving in Kashmir who have fled the valley and are on an indefinite protest for their relocation.

It seems that there is a strange fight. The fight is between the policy that ultimately facilitates extinction and the victims’ struggle for survival. The fight is between MHA’s implied ‘dismissal’ on bringing explicit genocide laws in India on 9th February 2022, and India’s commitment to enact the law in its ratification in the same parliament on 27th August 1959. The fight is between politics of genocide and reparation of genocide. The fight is between ratification and violation. The fight is between the mighty reluctance of the Indian state and the unshaken resilience of the victims of Panditocide.

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