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DOES INDIA NEED STRONGER LEGAL MECHANISMS TO ADDRESS WAR CRIMES?

INTRODUCTION

“Peace is the virtue of civilization. War is its crime.” [1] The word ‘war crime’ has taken a front seat in the global news for the past few years. The occurrence of violent conflicts and sometimes wars across the globe have intensified in recent years. The latest news on war crimes coming from the ongoing Ukrainian conflict started in February 2022, with both sides accusing each other of horrendous war crimes, there is an immediate need for the world to address the issue of war crimes. As an aspiring global superpower with its economy predicted to surpass that of the third and fourth strongest economies, Japan and Germany, and become the third strongest in terms of real and nominal GDP, India has a very huge responsibility to address the issue of war crimes and ensure that whoever perpetuates the same must be prosecuted by its legal mechanism. But there is always a lingering concern, does India have legal mechanisms strong enough to address war crimes properly?

Wilful killing, torture, or inhuman treatment including…wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person… taking of hostage, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly[2]. War crimes include multitudes of crimes such as rape, sexual slavery, forced prostitution, forced pregnancy, genocide, forced sterilization, and many more. This blog is going to examine the current state of India’s capacity to address war crimes through its legal mechanisms and also consider whether there is a need for stronger and more organized legal mechanisms to address this burning issue.

A HISTORY OF WAR CRIMES

The Hague Convention of 1899 and 1907 is the period of history in which the concept of war crimes was introduced. In the said convention of Hague, the basic principle of war and war crimes was established. Due to the horrible atrocities against mankind committed by the Axis countries, the sleeping issue of war crimes was brought back to the attention of international players. The Allied power during the time of the Second World War formed the International Military Tribunal to prosecute the leaders of the Upper echelons of the defeated nations for war crimes. The International Military Tribunal was also the base for the formation of the International Criminal Court (ICC)[3] in the year 2002, a permanent tribunal with the purpose to investigate and prosecute individuals for committing serious crimes which generally concern the international community, it also includes war crimes.

The ICC is a very unique and extremely powerful body for promoting the concept of international justice and holding individuals accountable for committing heinous actions. It holds jurisdiction over individuals regardless of one’s nationality, if the said crime was committed on the territory of the state party to ICC, or if the accused is a national of the state party. The fact that ICC holds so much power is far from the truth as it faces multiple challenges which also include a lack of cooperation from some states, limited monetary resources, and a lot of political barriers. Still, ICC is an important body to deal with war crimes and related atrocities as it continues to play a very crucial part in promoting accountability and keeping the system in check.

CURRENT LEGAL MECHANISMS IN INDIA TO DEAL WITH WAR CRIMES

Under the current legal provision, there is no proper law to deal with war crimes in India. But still, there are few laws which although slightly but still address the issue of war crime in parts.

Some of these laws are as follows:

  • The Prevention of Torture Act, 1987[4] : It is an act that prohibits acts of torture and also prescribes punishments for such acts committed.
  • The Geneva Convention Act, 1960[5] : It is an act that implements the four Geneva Conventions in India and prescribes punishment for the same.

Although the current legal mechanisms may seem sufficient to deal with the problem of war crime, the reality is far from the truth. There are a lot of limitations in current legal mechanisms. The limitations include limited jurisdiction where Indian courts have very limited jurisdiction and can only hear local cases, lack of evidence because generally war crimes happen in an area of violent conflict and it is very hard to find enough evidence to prosecute an accused, and much more.

NEED FOR STRONGER LEGAL MECHANISMS

Before looking at the need for stronger legal mechanisms, it is extremely important to look at the existing gaps in the current legal framework. The gaps which exist in the current legal framework of India for dealing with war crimes are listed below:

Insufficient Punishments: The existing penalties to deal with war crimes are not severe enough to deter a potential war criminal.

Limited Resources: The lack of resources and manpower in the Indian legal system can also act as a small bother.

India today needs a lot stronger legal mechanism for dealing with war crimes not only from the moral responsibility to ensure justice for the victims or promoting solitude for the future but also because it is a signatory of international treaties and conventions like the Geneva Conventions and the Rome statute of the International Criminal Court, which essentially requires a country to investigate and prosecute war crimes. By ratifying international treaties addressing war crimes, enhancing the budget and capacity of judiciary and probe agencies, and forming an organized and well-structured local law on war crimes.

CONCLUSION

As an aspiring global superpower, it becomes extremely necessary for India to amend its legal mechanism to show a way forward to the other countries of the world towards dealing with war crimes. Does India lack legal mechanisms to deal with war crimes properly or is it sufficient enough? It is a question to be raised and debated seriously currently, in a world with ongoing conflicts. Some decisions which do not affect our foreign policy must also be taken. The issue of allocating enough resources for the judiciary and law enforcement departments must also be taken care of. The formation of organized laws regarding war crimes can also be an important step taken by our lawmakers.

In the end, the severity of the issue must be spread wisely, which is thankfully done by the mainstream media resulting in more and more people knowing about the issue of war crimes. Thus to ensure that innocents are given justice and potential war crimes are successfully abated, the rising country India must look with extreme seriousness towards the strengthening of legal mechanisms to address war crimes.

Author(s) Name: Raunak Raj (Chanakya National Law University, Patna)

Reference(s):

[1] Victor Hugo

[2] Article 147 of fourth Geneva Convention

[3] https://www.icc-cpi.int/sites/default/files/Publications/understanding-the-icc.pdf

[4] Adopted by UN General Assembly Resolution 39/46, 10 December, 1984. Entered into force on  26 June 1987

[5] ACT NO. 6 of 1960 1 [12th March 1960.]