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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2523

War Against Terror: ICJ Ruling on State's Role in Genocide

By Col R Hariharan (Retd.)

Does the State have a responsibility for genocide? If so, to what extent it is responsible for such crimes?

The International Court of Justice (ICJ) in a judgment delivered on February 26, 2007 has tried to answer these questions and delineate the extent of state's culpability in a case relating to genocide in Bosnia in 1995.

During the period from 1992 to 1995, ethnic Serbian forces in Bosnia led by Ratko Mladic carried out ethnic cleansing of non-Serb population (mainly Croats and Bosnian Muslims) from large areas of Bosnia. The Serbian President Slobodan Milosevic had backed this ethnic cleansing process and supported the Bosnian Serb forces logistically and financially. As result thousands of non-Serbs were slaughtered and most of them had to flee Bosnia. Milosevic was brought before the International Criminal Tribunal for Yugoslavia (ICTY), created by the UN to specifically try individuals involved in the killings in Bosnia. However, Milosevic died in UN custody before his trial on genocide charges could be completed.

In the case before the ICJ, Bosnia had demanded reparation from Serbia for the acts of genocide against Bosnian Muslims committed by Bosnian Serb forces at Srebrenica. Serbia had argued that the ICJ had no jurisdiction in the matter. Bosnia's case involved a critical examination of evidence on (1) deciding what is genocide as defined in the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, (2) Serbian State's intent and plan to carryout genocide and (3) Serbia's violation of the provisions of 1948 UN Convention. In a 15-1 landmark judgment the 16- member Court had ruled that:

* In principle, states can be held responsible for genocide. [This was the first time such an international ruling has been given. Till now individuals, rather than states, responsible for war crimes were prosecuted in International Criminal Tribunal created for the purpose like the ICTY. The ICTY has already found two Bosnian-Serb military officers guilty on charges of mass killings.]

* Genocide did occur at Srebrenica when the Bosnian Serb militia, aided and supported by Serbia, had massacred nearly 8000 Muslims in 1995.

* However, there was not enough evidence to prove the "necessary specific intent," or existence of any plan of Serbian leaders to carry out genocide. [Presumably, the death of Milosevic and the absence of Mladic and Radovan Karadzic among the accused made it difficult for Bosnia to prove the 'specific intent' and existence of a Serbian State's plan to carry out genocide in Bosnia.]
* Serbia had violated the 1948 UN Convention on by failing to handover individuals involved in Bosnian genocides, particularly Ratko Mladic and Radovan Karadzic.

The 1948 UN Convention holds that the acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, are genocide. Such acts carried out on the members of the group would include killings, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about group's physical destruction, imposing measures intended to prevent births and forcibly transferring children to another group. In this case, perhaps the definition of genocide in the UN Convention decided the jurisdiction of the ICJ.
The judgment has exposed the limitations of international judicial system, which has to go by the letter rather than the spirit of international conventions. It indirectly implies that as long as the states keep their books clear of documented plan or conspiracy to commit genocide, they could get away with promoting other organized violent acts against the target population. Judge Awn Shawkat Al-Khasawneh of Jordan in his dissenting judgment had criticized the ICJ for treating the evidence piecemeal, which had diluted the overwhelming evidence of Serbian support for ethnic cleansing and failed to prove specific intent or complicity to commit genocide.

Impact on war on terror

Genocide is only a highly charged physical manifestation of intense social divide overtaking civilized norms of conduct. In times of extreme social stress, existing differences, hatreds, grievances and disaffections in society gets exacerbated. Thus when a country is involved in counter terror or counter insurgency operations, it is important that the state ensures that it does not degenerate into a conflict against a distinct section of the population. Emergency laws, laws curtailing basic human rights, summary police powers, censorship, gagging public opinion and media, preventive detention laws, ignoring police brutality, denial of legal instruments of grievance handling etc. so useful in counter terror operations can also brutalize state machinery.

In a brutalized state, political irresponsibility and lack of accountability among the bureaucracy and security forces pave the way for perpetration of genocide. Thus there is an invisible continuum between the degeneration of insensitive counter-terrorism operations and genocide. Viewed in this setting, the ICJ judgment will impact not only on genocide trials under way, but also wars on terrorism and insurgency, where often both the state and the terrorists trade accusations of genocide. The states involved in the on going international war on terror, particularly in Afghanistan and Iraq, have recorded a number of cases of human rights violations. Even though they may not come under the ICJ definition of genocide, the judgments could be expected to cause ripple effect on cases of human rights violations and operational misconduct of troops against the population.

The judgment is also likely to influence the issue of jurisdiction of international bodies over member nations in a number of other aspects related to war on terror (i.e., hot pursuit, maritime security measures, abetting terrorism, money laundering).

The overall impact of the judgment on state and non-state actors involved in the war on terrorism is as follows:

* A positive fall out is that states have to own up responsibility for acts of genocide or ethnic cleansing carried out in their territory. This perhaps gives teeth to the convention and compels states to apprehend and handover individuals charged with genocide.

* It will impose caution on states carrying out counter terror operations as invariably victims of state action belong to specific religious, sectarian or ethnic groups. The states would be required to substantially eliminate incendiary rhetoric from policy pronouncements (i.e. terming countries or groups as "rogue elements").

* The judgment applies only to states recognized by other nations. However, non-state actors seeking international recognition would perhaps be encouraged to keep their slate clean of genocide.

Genocides in South Asia

South Asia's history is studded with inglorious events that vie to be branded as genocides. Apart from periodic media splashes these events make, somehow South Asian states and public appear to have become inured to such gross violations of human rights by both state and non-state actors. The Partition killings would not perhaps qualify to be called genocide if we go by the ICJ ruling. The killing of Sikhs after the assassination of Indira Gandhi, the Mumbai riots after Dawood Ibrahim engineered terrorism, or the more recent killings in Gujarat or Balochistan might be termed as borderline cases if we apply the same yardstick. But there are two pogroms - the organised massacre of Bengalis in East Pakistan in 1971 and the anti-Tamil riots in Sri Lanka in 1983 – that would probably fall under the ICJ categorisation of genocide. At least in the case of Sri Lanka, there had been some damage control action carried out in subsequent years. After the 1983 anti-Tamil riots' spawned a two-decade long conflict and destabilised the society, there had been a greater public understanding of the substantive issues related to the ethnic divide.

In the case of Pakistan, the handling of the perpetrators of genocide in East Pakistan in 1971 stands as a glaring example of "getting away with genocide". On February 22, 1971, Pakistan President and military dictator Yahya Khan supported by the Pakistan Army generals took a decision to crush the Awami League. The Awami League led by Sheikh Mujibur Rahman, with an elected majority in the Pakistan National Assembly, should have logically formed the government. However, the generals were not prepared to allow a civilian government under a Bengali leader to rule Pakistan. President Yahya Khan is reported to have thundered at the meeting of the Army generals: "kill three million of them and the rest will eat out of our hands."

On March 25, 1971, the Commander of Eastern Command in East Pakistan, Lt Gen Tikka Khan, let loose a reign of terror. His army attacked students writing their examinations in the University of Dacca. Major General Rao Farman Ali, who was in charge of Dacca operations, used tanks, mortars and artillery in the attack on the Dhaka University to kill hundreds of students! In a single night the death squads killed 7000 people. According to Robert Payne, who had documented the gory history, within one week at least 30,000 people were killed. In particular Bengali intellectuals, professionals and able-bodied youth, apart from Hindus, were targeted for killing. Thousands of women regardless of their age were raped.

According to an inquiry committee in all 1.247 million people were killed in the orgy of death enacted during nearly 10 months of Army rule. Local cadres of Razakars, Al Badr and Al Shams, all fundamentalist militias, aided and abetted the killings. Even as the Pakistan Army was preparing to surrender, Bengali intellectuals were rounded up and killed. Between December 14 and 16, 1971, the Army in a last sweep rounded up hundreds of intellectuals and professionals and shot them in cold blood. On December 17-18, 1971 when I entered Dhaka as part of the victorious Indian Army, I saw the bodies of genocide victims strewn in mass graves in Rayer Bazar, and Mirpur, two Dhaka suburbs. That sight still haunts me. Some of us had collected the evidence of genocide including the documentation, eyewitness accounts and identities of the victims, and passed them on to the Mukhti Bahini in the first few weeks after Bangladesh was born. Angered by the discovery of mass graves, the population hunted out and many collaborators of Pak Army in the days that followed.

The culprits who perpetrated the genocide were never brought to trial. The genocide trial issue perhaps became a bargaining chip in the triangular dealings of Pakistan-India-Bangladesh, as they came to terms with the complexities of carving out a new nation out of Pakistan. Despite identifying 35,000 collaborators and rounding them up, the successive governments in Bangladesh diluted laws to allow them to get away with all their heinous deeds. More than all that, Matiur Rahman Nizami and Ali Ahsan Mujahid, two Jamaat-e-Islami leaders who were directly involved in the floating Al Badar and Al Shams in 1971 and served jail sentences, became leading lights of Bangladesh politics. Both the Bangladesh National Party (BNP) and to a lesser extent by the Awami League had wooed these Taliban loving leaders for their political support to garner a few thousand votes! The two were senior cabinet members of the outgoing BNP coalition that ruled Bangladesh till recently, and they still flourish. This is a fine example of politicians' commitment to the Cause!

Pakistan under the iron grip of the Army fared no better in handling the genocide of 1971. Zulfiquar Ali Bhutto became the Prime Minister of a civilian government after Pakistan lost the eastern wing. His subsequent actions were more concerned with stabilizing his hold on power than bothering about genocide, which actually triggered the war that broke up Pakistan. In particular Lt Gen Tikka Khan, and Major General Rao Farman Ali, two officers directly responsible for the genocide were never brought to book. In fact, Rao Farman Ali later served as advisor to five governors! One can only hope Pakistan state will acquit itself better in Balochistan where its army is at present putting down Baloch insurgency.

This does not mean that India's record in handling cases of mass killings is lily white. However, the twin aspects – intent and conspiracy – required in terms of ICJ judgment to brand mass killings as genocides have remained the grey areas. Even in cases of mass killings, the inordinate administrative and judicial delays have often enabled the culprits to get away with mass murder.

Conclusion

In recent times there has been greater public awareness, media spotlight and international cooperation on issues of human rights violations, genocide and ethnic cleansing. In view of this, countries might take a re-look at the 1948 UN Convention to make it responsive to the global trend.

Another emerging trend had been the response of some nations to launch multinational military actions outside the pale of the UN. Invariably, such operations were launched when the UN was not amenable or when the states wanted to assert their status in the global power structure. The ICJ judgment is unlikely to have an impact on such operations. However, the judgment has defined state's responsibility, if not culpability in genocides. Thus in future it is going to be more difficult for states to plan and carry out pogroms without courting international criticism. Still public paranoia whipped up by zealots and state populism could result in carrying out such pogroms in utter disregard to niceties of international opinion. This is the real danger in tinderboxes of potential or actual conflicts that exist in countries like Sri Lanka, Pakistan, Sudan and Somalia. India with its complex internal problems would also remain another potential conflict zone.

The present phase of Eelam War in Sri Lanka has seen indiscriminate killing of civilian population by both the LTTE and the State. The frequent bombing of targets in Tamil areas has resulted in civilian casualties and internal displacement of large Tamil and Muslim populations from their homes due to military operations. This has caused insecurity and despondency among the Tamils. There had been unaccounted disappearances, killings and abductions where the victims are Tamils. These acts have resulted in gross violation of human rights and breakdown of administrative machinery. Among the Tamils many believe that the Sinhala-dominant State apparatus is targeting the Tamil population rather than LTTE in its war. The State's response to international human rights bodies and friendly countries on this issue had been tardy.

In order to win back the trust of Tamils, it is essential that the Sri Lanka State sets right its human rights record and use its emergency powers sparingly, only if and when necessary. Only this can consolidate Sri Lanka Security Forces' military gains during 2006, and pave way for coordinating it with a reconciliation process. The time is now for Government of Sri Lanka to apply immediate course corrections to its political, military and administrative measures, to regenerate the peace process.

Col R Hariharan, a retired MI specialist on South Asia, is an intelligence analyst.

- Asian Tribune -

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