Genocide and Ethnic Cleansing: Menace of Global Annihilation

Profile of the Author: Dheerja is a 4th-year B.Com LL.B (Hons.) student of University Institute of Legal Studies, Panjab University, Chandigarh. She has a keen interest in the Constitution, Economics of Law, and Minority Rights.

Introduction

The atrocities of genocide and ethnic cleansing write the darkest pages in human history. Before undertaking the tragedies of the world, let's steer our thought towards the origin of these atrocities.

The term ‘Genocide’ was coined Post-World-War-II by Raphael Lemkin in response to the Holocaust, a gruesome crime of the Nazis. The term genocide is derived from the Greek prefix genos, meaning race or tribe, and the Latin suffix cide, meaning killing. [1] In simple terms, it refers to the deliberate decimation of a particular national, ethnic, racial, or religious group of people. Genocide was first recognised as a crime under international law by the United Nations General Assembly in 1946 which was subsequently codified as an independent crime in the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. The Genocide Convention has been ratified by 149 states, nevertheless, the International Court of Justice (ICJ) states that a country irrespective of its ratification status is legally bound by the norm that the crime of genocide is prohibited under international law [2] as it enjoys the status of jus cogens i.e. compelling law.

The term ‘Ethnic cleansing’ is the literal interpretation of the Serbo-Croatian phrase etnicko ciscenje [3], which means expulsion of ethnic groups from a geographic area by one particular ethnic group intending to create ethnically pure territories for members of their group by deploying coercive methods like murder, extrajudicial executions, rape, deportation, deliberate military attacks, etc. The phrase ethnic cleansing was initially employed during the Yugoslav Wars of Disintegration between 1991 and 1995. [4]

Ethnic cleansing is a war against humanity as acknowledged in the resolutions of the Security Council and General Assembly and the judgements of ICJ, nonetheless, it is not an independently recognized crime under international law. [5]

Analysis of Law through the Spectrum of Appalling Incidents against Mankind

The primary convention governing the crime of genocide is the Convention on the Prevention and Punishment of the Crime of Genocide where Article II explains genocide and Article III prescribes punishment for the same. The secondary statutes regulating the crime of genocide are Additional Protocols to the Geneva Conventions, 1977 and Rome Statute of the International Criminal Court. The inherent failures of these Conventions and Statutes are axiomatic in the Encyclopaedia of Genocide Report which asserts that in the 20th century, the death toll from genocide, massacres, expulsions, and other atrocities has exceeded 170 million. [6]

Moreover, the same is apodictic in the instances of genocide in Cambodia, 1975, Rwanda, 1994, the Democratic Republic of Congo, 1996, Darfur, 2004, Iraq and Syria, 2016, and Myanmar, 2016 to present.

In Cambodia, under Pol Pot's Red Khmer regime, 2.2 million people were killed in the state of Democratic Kampuchea. In Rwanda, out of a population of 7.3 million people, the number of genocide victims of the combat between the Hutu ethnic community and Tutsis is estimated at 11,74,000 in 100 days, thus one of the greatest disappointments of international peace-making efforts. [7] One ray of hope in this bleak world was International Criminal Tribunal for Rwanda, who issued the world’s first conviction for genocide. In Darfur, the government in Khartoum as a response to the rising non-Arab ethnic groups implemented a genocidal campaign. Consequently, 4,00,000 people died and more than 3 million people were displaced. [8] Most recently, in June 2019, the National Inquiry into Missing and Murdered Indigenous Women and Girls concluded that Canada committed genocide against Indigenous people. [9]

Since the 1990s, ethnic cleansing poses an imminent threat to mankind which has aggravated in the recent past as evident in the Annual Report on Political Rights and Civil Liberties by Freedom House, the number of countries employing some form of forced demographic change increased from 3 in 2005 to 11 in 2018. [10]

Predominantly, most ethnic cleansing methods are dealt under the Geneva Convention or its Additional Protocols. The UN Security Council expressed the term ethnic cleansing for the first time in Resolution 771 (1992) wherein it stated that ethnic cleansing violated International Humanitarian Law. The Statute of the International Criminal Court, 2002, provides precise definitions of crimes against humanity and war crimes, which incorporates the practice of ethnic cleansing in their ambit. In the World Summit Outcome Document, 2005, the UN Member States in paragraphs 139 and 139 have committed to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, thus extending the term atrocity crimes to include ethnic cleansing in it. [11]

The prominent cases of ethnic cleansing that portray the dismal picture of the law are Sudan, 2003, South Africa, 2008, Iraq, 2011, Central African Republic, 2012 to present, and Myanmar, 2017 to present. During the Iraq Civil War, entire neighbourhoods in Baghdad were ethnically cleansed by Shia and Sunni. [12] In Myanmar, the military engaged in an orgy of rape, murder, and arson in its ethnic cleansing campaign, thus 7,00,000 Rohingyas escaped the country. [13]

The international organisations were mute spectators in all the aforementioned macabre crimes.

Position of India

Article V of the Genocide Convention mandates the enactment of a law for the prevention and punishment of genocide to which India acceded in August 1959. Article 51(c) of the Indian Constitution directs the state ‘to foster respect for international law and treaty obligations’. Article 253 empowers the parliament ‘to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention’. The prohibition of genocide is jus cogens, thus, a peremptory norm. Article 53 of the Vienna Convention on the Law of Treaties, 1969, states, ‘A peremptory norm of general international law accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted’. However, India has made no efforts to enact national legislation to prevent or criminalise acts of genocide, resulting in the Nellie massacre, 1983, the Anti Sikh Riots, 1984, and the Gujarat massacre, 2002.  The need for such a law is accentuated in the wake of Article 14 and 21 of the Indian Constitution as they are the Fundamental Rights, thus, impose an obligation on the state to ensure their accessibility to all people irrespective of their caste, religion, race, etc.

Impact of Covid-19 Pandemic

As the pandemic of Covid-19 intensifies, the governments around the world are using exceptional measures under the color of their offices. This is apparent in the Global Health Security Index which provides the list of 15 countries that grant excessive power to their executive with no formal review. [14] The Philippines President Rodrigo Duterte has reportedly conferred police with the power to shoot and kill people violating the lockdown. [15] These raise serious concerns about the safety of ethnic communities and minorities because Pandemic will serve as an impeccable veil for committing atrocities against them.

Conclusion

In light of the aforementioned analysis, the need of the hour is the prevention of genocide and ethnic cleansing instead of punishment for the crimes committed. To quote Ban Ki-Moon ‘Prevention means acting early... Together with a commitment to accountability, we owe this to the millions of victims of the horrific international crimes of the past and those whose lives we may be able to save in the future’. [16]

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FAQs

Q. What does the related word "pogrom" mean?

Ans. The word pogrom comes from the early 20th-century Russian word ‘Gromit’, that literally translates as ‘devastation’. It is defined as “a mob attack, either approved or condoned by authorities, against the persons and property of a religious, racial, or national minority”. These acts are not spontaneous and state authorities look on as they are committed, if not actively encourage them. Perpetrators also usually harbour bloodthirst and vengeance. The goal is to not only destroy the target group but their material values too. 

References

[1] United Nations Office on Genocide Prevention and Responsibility to Protect, ‘Genocide’ (United Nations) <https://www.un.org/en/genocideprevention/genocide.shtml> accessed 23rd August 2020.

[2] Ibid.

[3] United Nations Office on Genocide Prevention and Responsibility to Protect, ‘Ethnic Cleansing’ (United Nations) <https://www.un.org/en/genocideprevention/ethnic-cleansing.shtml> accessed 23rd August 2020.

[4] George J. Andreopoulos, ‘Ethnic Cleansing: War Crime’ (Britannica 28 December 2018) <https://www.britannica.com/topic/ethnic-cleansing> accessed 23rd August 2020.

[5] Supra Note 3.

[6] Rony Blum, Gregory H. Stanton, Shira and Elihu, ‘Ethnic cleansing bleaches the atrocities of genocide’ (European Journal of Public Health 18 May 2007) <https://academic.oup.com/eurpub/article/18/2/204/449611> accessed 23rd August 2020.

[7] ‘Acts of Genocide Committed since the Adoption of the Convention on the Prevention and Punishment of the Crime of Genocide In 1951’ (Inter-Parliamentary Alliance for Human rights and Global Peace 2019) <http://www.ipahp.org/index.php?en_acts-of-genocide> accessed 23rd August 2020.

[8] Ibid.

[9] Lynn Gehl, ‘Seven Key Learnings from the MMIWG Legal Analysis on Genocide’ (Briarpatch 19 March 2020) <https://briarpatchmagazine.com/articles/view/seven-key-learnings-from-the-mmiwg-legal-analysis-on-genocide> accessed 23rd August 2020.

[10] Michael and Arch Puddington, ‘As Global Democracy Retreats, Ethnic Cleansing is on the Rise’ (The Diplomat 23 February 2019) <https://thediplomat.com/2019/02/as-global-democracy-retreats-ethnic-cleansing-is-on-the-rise/> accessed 24th August 2020.

[11] ‘Framework of Analysis for Atrocity Crimes: A Tool for Prevention’ (United Nations 2014) <https://www.un.org/en/genocideprevention/documents/about-us/Doc.3> accessed 24th August 2020.

[12] John Hagan, Joshua Kaiser and Anna Hanson, ‘Neighbourhood Sectarian Displacement and the Battle for Baghdad: A Self-Fulfilling Prophecy of Fear and Crimes against Humanity in Iraq’ (Research Gate March 2015) <https://www.researchgate.net/publication/274141055_Neighborhood_Sectarian_Displacement_and_the_Battle_for_Baghdad_A_Self-Fulfilling_Prophecy_of_Fear_and_Crimes_Against_Humanity_in_Iraq> accessed 24th August 2020.

[13] UNCHR ‘Myanmar military leaders must face genocide charges – UN report’ (United Nations 27 August 2018) <https://news.un.org/en/story/2018/08/1017802> accessed 24th August 2020.

[14] ‘Coronavirus: why the world must monitor response of countries that have had mass atrocities’ (The Conversation 22 April 2020) <https://theconversation.com/coronavirus-why-the-world-must-monitor-response-of-countries-that-have-had-mass-atrocities-136342> accessed 24th August 2020.

[15] ‘Philippines: President Duterte gives "shoot to kill" order amid pandemic response’ (Amnesty International 2 April 2020) <https://www.amnesty.org/en/latest/news/2020/04/philippines-president-duterte-shoot-to-kill-order-pandemic/> accessed 24th August 2020.

[16] ‘Framework of Analysis for Atrocity Crimes: A Tool for Prevention’ (United Nations 2014) <https://www.un.org/en/genocideprevention/documents/about-us/Doc.3> accessed 24th August 2020.