Nainar: Crimes Against Humanity in India

Vahida Nainar has posted Crimes Against Humanity in India. Here's the abstract:

There is a history of mass crimes in independent India beginning from the horrific violence during the partition of the country in 1947 to the more recent ones in Gujarat in 2002, in Nandigram, West Bengal in 2007, in Kandhamal, Orissa in 2008 and the on-going violence in Jammu and Kashmir, in the North-East part of India or by Salwa Judum in Chattisgarh among others. The legal and judicial process has largely failed to address these situations of mass crimes and hold those responsible to account, thereby encouraging and perpetuating a culture of impunity. The reasons for such failure range from the inadequacy of existing laws and provisions in the Indian criminal laws, to the inability of the investigative and legal machinery to deal with crimes of mass scale; and the unwillingness of the authorities to address these crimes when they are state-sponsored or supported.

This article aims to characterize what is recently understood as mass crimes in India, as the international jus cogens crime of Crimes Against Humanity. Using some of the documented cases of mass crimes in India, the paper will demonstrate that while each of these cases are different in their details of causes, facts and responsibility, they, nevertheless, share common elements which meets the definition of Crimes Against Humanity. The paper will demonstrate that existing Indian laws do not have scope to treat mass crimes as anything other than common crimes and therefore cannot even begin to do justice to address situations of mass crimes. The article argues for the need for a better and accurate conceptual understanding of mass crimes in Indian laws and therefore the need for introducing a law on Crimes Against Humanity. The paper also discusses the relevance of including the crime of persecution as one of the crimes against humanity and its importance in the Indian context. While introduction of such a law will equip the Indian judicial system to accurately understand and prosecute cases of mass crimes, it will also provide an opportunity to bring Indian laws at par with recent developments in international human rights standards and international criminal law.