1984 Delhi Genocide - Yes, It's Genocide

Naming the Crime

The Indian government has labeled the massacres of Sikhs following Indira Gandhi's assassination as a "riot," defined as "a wild or turbulent disturbance created by a large number of people." The label of a "riot" not only mischaracterizes the massacres, but it also purposefully masks the most brutal dimensions. This chapter focuses on the possible human rights crimes that could more accurately describe and capture what happened during the pogroms of November 1984, specifically:

(1) The targeting of a religious group for murder and extermination, as evidenced by:

a. Slogans calling for the death of all Sikhs;
b. Repeated attacks by gangs to ensure that all Sikhs were killed;
c. Direct targeting of Sikh property;
d. Destruction of symbols and structures of the Sikh faith; and
e. Perpetration of other crimes such as rape and sexual assault, beatings and physical attacks, looting and stealing, extortion, acts of humiliation such as stripping, and mutilation of corpses;

(2) Police participation and instigation of the murders, as well as manipulation of records and destruction of evidence precluding criminal accountability; and

(3) Organized and systematic implementation of the carnage, characterized by:

a. A systematic and uniform method of killing;
b. Public meetings the night before the initiation of the massacres where leaders distributed weapons and exhorted attendees to kill Sikhs;
c. Organized dissemination of rumors;
d. Effective identification of Sikhs through lists;
e. Organized transportation of gangs of assailants; and
f. Large-scale provision and distribution of weapons and kerosene.

Discussing the complexities of the law on genocide, this chapter explores the judgments of the international criminal tribunals.

The International Criminal Tribunal for the former Yugoslavia (ICTY) stressed the importance of maintaining the rigor of the definition of genocide:

The gravity of genocide is reflected in the stringent requirements which must be satisfied before this conviction is imposed. These requirements… guard against a danger that convictions for this crime will be imposed lightly. Where these requirements are satisfied, however, the law must not shy away from referring to the crime committed by its proper name.

We do not embark on this exploration of the law of genocide in order to make a case for genocide; we are not arguing before a court. Our aim goes beyond that. We hope to use this discussion to gain a stronger understanding of all of the characteristics and patterns of conduct defining the November 1984 carnage, towards proposing further issues of study and advocacy. In its report Reality Demands, documenting violations of international humanitarian law in Kosovo in 1999, the International Crisis Group engaged in a similar discussion of the application of the laws of genocide and crimes against humanity. It warned:

"[I]t may indeed be detrimental to the cause of international peace and justice to use terms without proper consideration of their true scope and meaning. Thus, if the genocide label is attached to situations that perhaps do not satisfy the legal definition, it loses substantial force and effect as an expression of the most supreme horror and condemnation. A further consequence is that those who genuinely seek to argue that genocide has occurred, or is occurring, are perhaps not taken as seriously as they might deserve to be."

We hope this discussion will encourage readers to move beyond labels imposed over the last [3]0 years and instead, draw their own conclusions as they incorporate the analysis contained in this report, demonstrating the horrific nature of the crimes, the government's role and callous response, and the [3]0 years of impunity.

Origins of "Genocide"

In his November 1944 work, Axis Rule in Occupied Europe, Polish jurist Raphael Lemkin coined the word genocide, combining the ancient Greek word genos, meaning race or tribe, and the Latin word cide, meaning killing. Having lost his family in the Holocaust, Lemkin embarked on an analysis of German occupation policies. In these works, he defined genocide as "a coordinated plan aimed at destruction of the essential foundations of the life of national groups." He proposed a broad definition of genocide, incorporating not only attempts at the physical destruction of a group, but also political, social, cultural, economic, biological, religious, and moral genocide. Lemkin stressed that genocide was a crime directed against groups, with the attack on the individual being secondary to the attack on the group.

On December 11, 1946, as a result of Lemkin's lobbying efforts in the United Nations (UN), the General Assembly passed Resolution 96(1), stressing the following elements of genocide: (1) genocide was independent of crimes against peace or war crimes; (2) religious, racial, political, and other groups were protected; and (3) both public and private individuals could be held accountable. The Resolution requested the Economic and Social Council (ECOSOC) of the UN to make preliminary studies towards drawing up a draft convention.

Fifty-six states unanimously adopted the Convention on the Prevention and Punishment of the Crime of Genocide (1948) ("Genocide Convention"), the first human rights instrument adopted by the UN, on December 8, 1948. Although steeped in the recent memory of and desire to condemn the Holocaust, the Genocide Convention did not specifically refer to it.

The Convention contains 19 articles. Article 1 of the Convention reaffirms that genocide is a crime under international law, irrespective of the context of war or peace. Article 2 of the Genocide Convention defines genocide as:

Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

This list of acts is restrictive, rather than illustrative. In Article 3, the Convention defines the following crimes: conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, complicity in genocide, and genocide itself. Article 4 holds both private individuals and public officials accountable for acts of genocide. In Article 5, the Convention places an obligation on State parties to adopt domestic legislation to "give effect" to the Convention, providing for effective punishment of individuals guilty of genocide. The Convention has 133 parties and 41 signatories. India signed it on November 29, 1949 and ratified it August 27, 1959.

Requirements of Genocide

In Prosecutor v. Akayesu, the International Criminal Tribunal for Rwanda (ICTR) provided an ordered analysis for determining whether genocide had occurred in Rwanda in 1994. In its first step, the Chamber asked if at least one of the enumerated acts in Article 2 of the Genocide Convention had occurred. In Delhi, for example, during the massacres of Sikhs, the evidence is clear that mobs killed and caused serious bodily and mental harm to the Sikhs, fulfilling this element of genocide.

Two major parameters frame the second step of the genocide analysis – the inquiry regarding the intent element in the definition of genocide. On the one hand is the necessity of a finding of specific intent to destroy a group based on national, ethnical, racial or religious grounds. As Lemkin wrote, the intent to destroy based on these grounds is what distinguishes genocide from mass murder. On the other hand, the requirement of intent presents evidentiary difficulties for parties trying to prove genocide in a court of law. While the Nazis declared and documented their intent and immediate evidence was recovered, a similar paper trail has not surfaced in subsequent genocides. In the case of the Sikhs, authorities have already destroyed key evidence, such as police reports, Ved Marwah's handwritten notes from his inquiry into the police's role, and affidavits of key deceased Army leaders. Despite this, the slogans of extermination, public speeches urging the elimination of Sikhs, over one thousand contemporary affidavits of survivors and witnesses, government committee reports, other police and government records, and survivors themselves can provide evidence of intent, as discussed below.

Definition of Intent

The intent element in the definition of genocide requires a finding of specific intent. In Akayesu, the Trial Chamber stated that specific intent meant

(1) the perpetrator targeted a particular group because of its group identity, (2) with the overall aim of destroying the group. The International Law Commission (ILC) also interpreted the destruction element as adding to the specificity of the intent requirement, highligh ting the perpetrator's intended consequences as determinative:

"[A] general intent to commit one of the enumerated acts combined with a general awareness of the probable consequences of such an act with respect to the immediate victim or victims is not sufficient for the crime of genocide. The definition of this crime requires a particular state of mind or a specific intent with respect to the overall consequence of the prohibited act."

Similarly, in Prosecutor v. Krstic, the Trial Chamber used genocide only to refer to those "acts committed with the goal of destroying all or part of" the group. The Appeals Chamber in Prosecutor v. Jelisic emphasized the necessity of distinguishing intent from motive. The existence of a personal motive, such as to secure economic benefits, does not preclude a finding of specific intent.

Inference of Intent

The tribunals recognize that they will rarely find explicit avowals to eliminate a group. Thus, both tribunals agree that intent can be inferred from facts if the defendants do not confess. In their discussions of the relevant factors, both tribunals have stressed the deliberate and systematic nature of the acts, the methodical manner of killing, as well as the scale and character of the acts directed against the target group. In Akayesu, the Trial Chamber highligh ted the "undeniable scale, the [systematic nature and the] atrociousness" of the killings as evidence of specific intent to exterminate the targeted group.

The expert witnesses in Akayesu identified more specific factors, adopted by the Trial Chamber. Dr. Alison Desforges spoke of statements made by political leaders and songs and slogans used by the Interahamwe as evidence of Akayesu's intent to commit genocide. Dr. Ronie Zacariah, another expert witness, testified that the Achilles' tendons of many wounded people had been cut, and the Chamber emphasized the "resolve of the perpetrators of these massacres not to spare any Tutsi." The Chamber found that Akayesu was present when Tutsis were killed and he even addressed a public meeting, ordering Hutus to harm or kill the "enemy." Similarly, the speeches of the Congress (I) leaders on October 31 exhorted non-Sikhs to kill Sikhs; mobs chanted slogans to kill the Sikhs; and mobs burned Sikhs alive and returned to Sikh residences repeatedly to ensure no chance for survival.

In discussing the meticulous organization of the violence, the Trial Chamber highligh ted the use of lists to eliminate Tutsis. The Chamber also focused on the " physical targeting of the group or their property" and "the weapons employed and the extent of bodily injury," both of which are discussed in this report in the context of the massacres of Sikhs, as well. The use of kerosene as a weapon, for example, ensured that Sikhs were killed rather than injured and alive, and Congress (I) party leaders distributed government-issued voter and ration lists to identify their Sikh targets.

In a joint judgment, Prosecutor v. Kayishema and Ruzindana, the Rwanda tribunal convicted both defendants of genocide after inferring specific intent. In these cases, the Chamber cited similar factors as the Akayesu Chamber, such as the number of victims, the methodical pattern of conduct, the weapons used, the statements made by Kayishema calling Tutsis the enemy of Rwanda, the use of words referencing Tutsis as dirt and filth, and the songs about exterminating the Tutsis. Whereas Kayishema held a political position as the Prefect of Kibuye, Ruzindana was a commercial trader. The Trial Chamber used the following acts of Kayishema to infer his specific genocidal intent:

At the crime sites where he was found to have participated, Kayishema committed one or more of the following acts: headed the convoy of assailants; transported attackers in his vehicle; directed the initial positioning of the attackers; verbally encouraged them; initiated the attacks by orders or gunshots; lead the groups of attackers; shot at fleeing Tutsis; and, finally, thanked the Hutu attackers for their "work."

The Trial Chamber inferred Ruzindana's specific intent based on the following acts:

At the sites where he was found to have participated, Ruzindana committed one or more of the following acts: Headed the convoy of assailants; transported attackers in his vehicle; distributed weapons; orchestrated the assaults; lead the groups of attackers; shot at the Tutsi refugees; and, offered to reward the attackers with cash or beer.

Subsequent trials at the ICTR highligh ted similar evidence. Like Kayishema and Ruzindana, Congress (I) party officials arranged buses for transporting assailants, procured expensive kerosene for use by assailants, exhorted gangs of assailants to kill Sikhs, rewarded assailants with alcohol and money, and controlled, directed, encouraged, and often led the assailants in their attacks.

The Yugoslav tribunal has focused on similar factors when inferring intent. In its Rule 61 order in Prosecutor v. Nikolic, the Chamber looked at language and uniformity, highlighting the "uniform methods used in committing the said crimes, their pattern, [and] their pervasiveness throughout all of the Bosnian Serb-held territory." In its review of the Karadzic and Mladic indictment, the Trial Chamber inferred intent from "the perpetration of acts which violate, or which the perpetrators themselves consider to violate, the very foundation of the group." Thus, the Chamber highlighted the systematic rape of women, and the destruction of mosques, churches and libraries, destroying the biological, religious and cultural foundations of the Bosnian population, comparable to the rape of Sikh women, cutting of Sikh hair, defiling of Sikh scriptures, and primary attacks on gurudwaras. In Prosecutor v. Krstic, the Trial Chamber also highligh ted the concealment of bodies in mass graves, subsequent mutilation of bodies, and reburials of bodies, " thereby preventing any decent burial in accord with religious and ethnic customs and causing terrible distress to the mourning survivors, many of whom have been unable to come to a closure until the death of their men is finally verified." Since the assailants charred Sikhs beyond recognition, many Sikh families also never learned of the ultimate fate of their loved ones. Even when the police collected the bodies of dead Sikhs, as in the case of the relative of President Zail Singh, they did not return the bodies to the families for the last religious rites.

Plan

Although Lemkin wrote about genocide in the context of government plans, the drafters of the Genocide Convention rejected "proposals to include an explicit requirement that genocide be planned by the government." In Prosecutor v. Jelisic, the Trial Chamber discussed whether the existence of a plan to exterminate a group was an element of genocide or a major factor. During a two-week period, Jelisic served as the principal executioner at the Luka camp. He systematically killed Muslim inmates at the camp, the majority of whom were community leaders.

Judge Claude Jorda found that the Prosecution had failed to prove the perpetration of genocide because it had not shown a general or regional plan to destroy the Bosnian Muslims, in whole or in part. However, the Trial Chamber did not require a plan as an element of the crime of genocide:

[T]he preparatory work of the Convention of 1948 brings out that premeditation was not selected as a legal ingredient of the crime of genocide, after having been mentioned by the ad hoc committee at the draft stage, on the grounds that it seemed superfluous given the special intention already required by the text and that such precision would only make the burden of proof even greater. It ensues from this omission that the drafters of the Convention did not deem the existence of an organisation or a system serving a genocidal objective as a legal ingredient of the crime. In so doing, they did not discount the possibility of a lone individual seeking to destroy a group as such.

The Trial Chamber observed the difficulty of proving specific intent if the violence was not widespread or backed by an organization or system. Thus, it was these qualities that influenced the intent determination, more so than the lack of a concrete plan.

The Appeals Chamber upheld the Trial Chamber's conclusion that a plan or policy was not a legal ingredient of the crime of genocide. The Appeals Chamber stressed, however, that when trying to prove specific intent, the existence or inference of a plan could become an important factor: "The evidence may be consistent with the existence of a plan or policy, or may even show such existence, and the existence of a plan or policy may facilitate proof of the crime." In Kayishema and Ruzindana, the Rwanda Tribunal also wrote that such a plan would be evidence of specific genocidal intent. Thus, the existence of a plan is not required to prove genocide, but can help in the determination of specific intent.

Especially important are characteristics that would lead to the inference of a plan, such as widespread violence, methodical killing, and the use of lists to identify victims, among other factors. When defining different characteristics of a genocidal plan, as inferred from facts, to destroy the Bosnian Muslim population of Srebrenica, the Krstic Trial Chamber discussed factors such as: the systematic nature of the violence and the catastrophic impact on the community, from permanent dismemberment to the elimination of male support in a patriarchal society. The Appeals Chamber upheld this inference. When looking at the massacres of Sikhs, we lack information on the silent, behind-the-scene perpetrators and the extent of involvement of the most senior government leaders, such as Prime Minister Rajiv Gandhi. However, the organization of meetings and provision of money and weapons; the use of voter lists to identify Sikhs and their properties; the large-scale distribution of kerosene; and the coordination of transportation, all point to the prior existence of a plan. The massacres also had a catastrophic impact on the Sikh community, with the destruction of family units, leaving widows and orphans, and the destruction of homes and businesses, forcing people to live for extended periods of time in relief camps and leave Delhi for Punjab, as at least 50,000 Sikhs did.

In Whole or In Part: A Quantitative Criterion?

Article 2 of the Genocide Convention further complicates the intent to destroy with the phrase "in whole or in part." This phrase appeared in the first draft of the Genocide Convention, was removed in the second draft, but reappeared in the final draft. The phrase has confounded scholars and courts as to its exact meaning. The Legal Committee itself questioned whether the phrase should refer to a baseline proportion or number of people killed.

Genocide scholars have provided a variety of viewpoints. Leo Kuper interprets the phrase to require "a 'substantial' or an 'appreciable' number" of victims as an element of genocide. Because the phrase was part of the chapeau of genocide, William Schabas sees it as reflective of the intent of the perpetrators, not as a numerical threshold. The actual number of deaths, however, can help inferintent. The ILC also gave a similar interpretation of the phrase reflecting intent, rather than a quantitative threshold:

It is not necessary to intend to achieve the complete annihilation of a group from every corner of the globe. None the less the crime of genocide by its very nature requires the intention to destroy at least a substantial part of a particular group. [emphasis added]

In the report to the Sub-Commission on Genocide, the Special Rapporteur highligh ted that the perpetrator can also possess the intent to destroy a qualitatively significant part of a particular group. The Final Report of the Commission of Experts described a significant part of the group as the political, intellectual, business, or administrative leaders. The report stressed that this attack on the leadership must be viewed in the context of further attacks on other members of the particular group.

The decisions of the criminal tribunals, such as in Kayishema and Ruzindana, also reflect that "in whole or in part" signifies the intent to destroy a substantial number or significant part of the group, not necessarily the actual result. In Kayishema and Ruzindana, the tribunal viewed the number killed by the particular perpetrator as an important indicator of the accused's intent, although not determinative. Beyond stating the relevance of the number or proportion killed as one factor, the tribunal did not further define a quantitative criterion.

The tribunals have also interpreted geographical limitations arising from the "in whole or in part" phrase. In Prosecutor v. Akayesu, the Trial Chamber found Akayesu guilty of genocide because of acts he committed within a particular commune, not looking at the total numbers killed in Rwanda. Similarly, the ICTY has focused on genocide in particular regions or municipalities, rather than in the entire region of Bosnia. In Jelisic, the Trial Chamber affirmed that under customary international law, they could give a finding of genocide even if the exterminatory intent was restricted to a limited geographic area, such as a municipality.

In Krstic, the Trial Chamber affirmed that the killing of Bosnian Muslims in Srebrenica constituted genocide, defining the targeted part in geographic terms as Bosnian Muslims in Srebrenica. In supporting the Trial Court's definition of the targeted part, the Appeals Chamber listed the numeric size of the targeted part of the group, in absolute or proportional terms, as the starting part of the inquiry into what constituted a substantial, or significant, part of the group. The Chamber also discussed the prominence of the targeted part of the group, within the whole group, among other guiding factors.

The Appeals Chamber dismissed the Defense's claim that the Trial Chamber had actually defined the targeted part as the Bosnian Muslim men of military age in Srebrenica. Instead, the attack on these military-aged men allowed for the inference of intent to destroy the geographically limited group of Bosnian Muslims in Srebrenica: "[T]he physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue." The Chamber maintained that the perpetrators intended to eliminate the Bosnian Muslims in the area as a community, through its destruction of the men and boys, forced transfer of the remaining community, and attack on religious and cultural symbols. Similarly, gangs predominantly killed Sikh men and boys in Delhi, partly because they were easier to identify as Sikhs, but also because of the disruptive impact this had on the patriarchal society, towards destroying the group itself.

Contrary to the majority of cases, two cases from the ICTY have proposed a threshold quantitative requirement, even prior to considering whether the requisite intent can be inferred. In Prosecutor v. Sikirica, the Chamber defined the "quantitative criterion" to require the destruction of a "reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership." The Chamber decided not to use the detention camp, where the abuses occurred, as the relevant geographical locality. Instead, it looked at the municipality in which the camp was located. Thus, the camp held around 1000-1400 Muslims, compared to a population of 49,351 Muslims in Prijedor municipality. Because the population of the Muslims in the camp was only between 2 to 2.8% of the municipality's Muslim population, the Chamber found that this did not qualify as a reasonably substantial part. The Chamber hedged their finding by stating that the failure to destroy a substantial or significant part did not necessarily negate an inference of intent to destroy – it was this fact, considered in combination with other parts of the evidence, which negated the intent. The Sikirica Chamber, however, did not provide any further guidance on the quantitative threshold.

The quantitative criterion has come under criticism for altering the definition of intent; posing an insurmountable obstacle, without clear guidelines, to the prosecution of genocide; placing the number killed as the primary factor, instead of as one of many evidentiary factors; and challenging the group right to exist. In Reality Demands, the ICG condemned the quantitative criterion:

Those who seek to deny that genocide has occurred on the basis of a body count do the term an injustice. It is clear from the very words of the definition in the Convention that more than killing is envisaged. The target of the crime is the group and the destruction of the group, or part of it, is the objective.

The predominant interpretation of "in whole or in part" is that this phrase further defines the intent requirement, as discussed above. If the courts instead decided to employ the quantitative criterion, they would not be able to establish an "appropriate quantity of killings:"

The calculation appears somewhat grotesque and wholly dependent on further determinations of both the geographic scope of inquiry and the numbers of the total group. Take, for example, very large groups, such as the 150 million Muslims in India. If mass killings occur and other intent factors have been satisfied, it seems improbable that the arbitrary number of two percent, here three million people, would fail to pass the reasonably substantial test, even though presumably meeting the " very large number" standard.

Regarding the group right to exist, the quantitative criterion would prevent the detection of genocide at the earliest possible time. Genocide could not be officially established until a certain number or percentage of people had been killed.

The interpretation of "in whole or in part" proves crucial for whether the massacres of Sikhs could be defined as genocide. If, according to official figures, around 3000 Sikhs, out of a population of 390,000, died in Delhi, then that would constitute less than 1% of the population. In Krstic, the Appeals Chamber stressed that the killing of military aged Bosnian Muslim men influenced the finding of specific intent to destroy Bosnian Muslims in Srebrenica because of the impact on the likelihood of the community's physical survival: "As the Trial Chamber found, the massacred men amounted to about one fifth of the overall Srebrenica community…The physical destruction of the men therefore had severe procreative implications for the Srebrenica Muslim community, potentially consigning the community to extinction." However, under the predominant interpretation of "in whole or in part," the gangs' "success, " or lack of it, in killing Sikhs would only count as one of many factors in inferring specific intent.

In light of the factors discussed above that are used to infer specific intent, many characteristics of the November 1984 massacres compare to the genocides in Rwanda and the former Yugoslavia, such as the systematic manner of killing, the use of lists to identify Sikhs, the attacks on Sikh religious symbols and institutions, the organized transportation of assailants and distribution of kerosene, and the slogans calling for the deaths of Sikhs, among other factors discussed in detail in this report. Besides the crime of genocide, a perpetrator can also be charged with direct and public incitement to commit genocide, conspiracy to commit genocide, complicity in genocide, and attempt to commit genocide. These crimes are not discussed in this report.

Individual Responsibility

In this report, we will not speculate on different individuals' levels of criminal responsibility, since that requires a detailed analysis of individual actions. We briefly summarize the law on criminal responsibility to demonstrate the various considerations that influence these determinations of responsibility. Article 6 of the ICTR statute and Article 7 of the ICTY statute give the provisions for determining individual criminal responsibility. The first paragraph of both articles discusses five forms of individual criminal responsibility:

A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in [articles above]...shall be individually responsible for the crime.

The second paragraph holds that public officials cannot claim immunity.

The Akayesu Trial Chamber clarifies a major distinction between these five forms of criminal responsibility. An individual can be held responsible as a principal perpetrator for committing the crime, but he can also "be held responsible for the criminal acts of others where he plans with them, instigates them, orders them or aids and abets them to commit those acts." The state of mind required for responsibility for direct commission of a crime rests in the legal definition of the crime itself. Thus, responsibility for commiting genocide requires a finding of specific intent to destroy the group.

Prosecutor v. Tadic states the two part test for determining liability for the other four forms of criminal responsibility: planning, instigating, ordering, or aiding and abetting a crime:

[T]he accused will be found criminally culpable for any conduct where it is determined that he knowingly participated in the commission of an offence that violates international humanitarian law and his participation directly and substantially affected the commission of that offence through supporting the actual commission before, during, or after the incident. He will also be responsible for all that naturally results from the commission of the act in question.

The Appeals Chamber in Krstic, for example, overturned the Trial Chamber's finding of Krstic's responsibility as a principal perpetrator of genocide, ruling that he did not possess the requisite state of mind of specific intent to destroy a group. Instead, the Appeals Chamber found Krstic responsible for aiding and abetting genocide because he assisted in " the commission of the crime knowing the intent behind the crime." Similar to the specific intent analysis of genocide, the court can infer knowledge from the circumstances.

In terms of the specific conduct that gives rise to individual responsibility, as the Tadic judgment summarized, it must "directly affect the commission of the crime itself." However, the perpetrator does not have to be present at the scene of the crime, and his action and the crime itself can be both geographically and temporally distant. The individual would incur liability under this theory only if the offense was completed.

The Akayesu Judgments provide a detailed description of the forms of participation. The Trial Chamber defines planning as "implying one or several persons designing the commission of a crime at both the preparatory and execution phases." Thus, although similar to plotting and complicity, planning can be committed by one person alone. The Akayesu Appeals Chamber states that instigation does not have to be direct or public. It merely involves " prompting another to commit an offence" and requires the commission of the principal offence in order to establish liability. The Trial Chamber defines ordering as when a " person in a position of authority uses it to convince another to commit an offence."

In Tadic the Chamber found that aiding and abetting "includes all acts of assistance by words or acts that lend encouragement." If the accused is present and it can be shown that his presence or words had an encouraging effect on the commission of the crime, then he has aided or abetted in the crime. The Tadic Judgment used the example of beating to explain this further:

[W]hen an accused is present and participates in the beating of one person and remains with the group when it moves on to beat another person, his presence would have an encouraging effect, even if he does not physically take part in this second beating, and he should be viewed as participating in this second beating as well. This is assuming that the accused has not actively withdrawn from the group or spoken out against the conduct of the group.

Thus, individuals who may not have possessed the specific intent to destroy a group and thus did not commit genocide, may still incur responsibility for planning, instigating, ordering or otherwise aiding and abetting in the planning, preparation or execution of genocide if they acted with knowledge of the principal person's specific genocidal intent.

Superior Responsibility

Prosecutor v. Mucic et. al ("Celebici") was the first case from the criminal tribunals to convict a person of genocide under the doctrine of superior or command responsibility, found in Articles 6(3) and 7(3) of the ICTR and ICTY statutes, respectively. The Trial Chamber traced the judicial development of the concept of command responsibility from its first international judicial recognition in the Nuremberg and Tokyo trials of World War II. It stated its interpretation of the principal of command responsibility, echoed by later judgments:

"In the simplest language it may be said that this Tribunal believes that the principal of command responsibility to be that, if this accused knew, or should by the exercise of ordinary diligence have learned, of the commission by his subordinates, immediate or otherwise, of the atrocities proved beyond a shadow of a doubt before this Tribunal or of the existence of a routine which would countenance such, and, by his failure to take any action to punish the perpetrators, permitted the atrocities to continue, he has failed in his performance of his duty as a commander and must be punished."

The Trial Chamber further broke down the principal of command responsibility into three essential elements:

(i) The existence of a superior-subordinate relationship;
(ii) The superior knew or had reason to know that the criminal act was about to be or had been committed; and
(iii) The superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.

The requirement of the existence of a superior-subordinate relationship raises questions about the nature and formality of the relationship and the types of superiors liable under the doctrine of command responsibility. The Celebici Chamber held that people in positions of superior authority – whether civilian or military – with either de jure or de facto command and with the power to discipline those under their control, can be held responsible for genocidal acts committed by their subordinates. Thus, formal legal authority is not a prerequisite to incur criminal responsibility under the doctrine of command responsibility.

Both the ICTY and the ICTR rejected the notion of strict liability for crimes committed by one's subordinates. The Celebici judgment determined that a superior possessed the requisite mens rea for the imposition of criminal liability when he knew or had reason to know that his subordinates were committing the crimes covered in the tribunals' statutes. Thus, either the superior " had actual knowledge, established through direct or circumstantial evidence," or had "in his possession information of a nature, which at the least, would put him on notice of the risk of such offenses by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates."

The Trial Chamber held that the second type of knowledge – "had reason to know" – required the superior to remain informed about the activities of his subordinates; thus, he could not willfully blind himself to their activities. The superior could be held liable if he had, in his possession, any type of information that should have put him on notice of crimes being committed by his subordinates; this information did not have to specify the crimes – it merely had to indicate a need for further investigation. Nor did the superior have to have read the information. Police Commissioner S.C. Tandon, for example, denied knowledge of the extent of the massacres of Sikhs. However, his subordinate police officers later testified before different governmental commissions that they received instructions from senior officers to hide evidence of the carnage; journalists Rahul Kuldip Bedi, Joseph Maliakan and Alok Tomar even personally warned the Commissioner of the massacres, but he still was not moved to action.

Crimes Against Humanity

The most recent statutory definition of "crimes against humanity," found in the Charter of the International Criminal Court, states that these crimes are acts "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack." The main elements of this crime are:

(1) the attack is either widespread or systematic;

(2) the attack is directed against any civilian population, not necessarily a defined group; and

(3) the perpetrators engage in the act with knowledge of the wider attack, but not necessarily aware of the consequences of their actions for the survival of any targeted population. The perpetrators' acts must form part of the general attack.

Earlier formulations of crimes against humanity, such as in the Nuremberg Charter, restricted its application to international war situations. Now, however, the crime is understood to apply to times of war and peace, and to both internal and international conflicts. The crime also applies to both state and non-state actors. Although the November 1984 carnage was systematic – the pattern or methodical plan was evident – and the police, Congress party leaders and workers, and other members of the mobs participated in full knowledge of the attacks being carried out throughout Delhi and other areas, the label of crimes against humanity does not account for the aggravating factor that the attack was specifically directed against a religious group. It is this threat to group survival and the higher threshold of specific intent to destroy a group that distinguishes genocide from crimes against humanity. Perpetrators of violent acts during the massacres, however, can be charged with crimes against humanity in addition to, or in the alternative to, genocide, for acts that were not motivated by specific intent. The ICTY has held that crimes against humanity, with the exception of persecution, do not require an element of discriminatory intent, overturning lower court judgments that did find such a requirement. Article 3 of the ICTR statute, however, differs from the corresponding article for the ICTY because it requires that the attack be committed on " national, political, ethnic, racial or religious grounds". However, the Akayesu Appeals Chamber has held that clause to serve as a jurisdictional limitation, rather than as requiring discriminatory intent for crimes against humanity, except for persecution.

Article 7 of the International Criminal Court (ICC) enumerates the crimes that constitute crimes against humanity:

"These enumerated acts are murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender or other groups that are universally recognised as impermissible under international law, in connection with any act referred to in this article or any other crime within the jurisdiction of the Court; enforced disappearance of persons; the crime of apartheid; other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or mental or physical health."

Thus, these represent some of the crimes that a court could possibly charge the perpetrators of the 1984 carnage with, in addition to genocide. An application of the jurisprudence of crimes against humanity would require further explorations into the policy or plan elements, and the definitions and elements of the enumerated crimes constituting crimes against humanity, among other issues.

Persecution

In Prosecution v. Tadic, the Appeals Chamber discussed persecution as a subcategory of crimes against humanity that is executed because of political, religious, or racial grounds. The Trial Chamber in Prosecution v. Kupreskic, while limiting the application of crimes against humanity to armed conflicts, elaborated that persecution consisted of the deprivation of a variety of fundamental rights by murder, torture, ethnic cleansing, or removing a group from a territory, and attacks on social and economic rights, falling just short of genocide. Matthew Lippman summarized the Trial Chamber's distinction between persecution and genocide:

The crime of genocide involves the intent to destroy a group or its members. The crime of persecution, on the other hand, involves the criminal intent to forcibly discriminate against a group or its members and thereby systematically violate their fundamental rights.

The Kupreskic Chamber evaluated the evidence, considering the intent standards, and found that persecution, or the intent to expel, had occurred, rather than genocide, or the intent to destroy. In the November 1984 massacres of the Sikhs, the organizers of the carnage were not primarily driven by an intent to drive Sikhs out to other territories, such as to Punjab. Instead, their actions, such as the use of kerosene and burning alive as the main method of murder, and their expressions all spoke of their intent to destroy Sikhs as a group.

The above article is an extract of 'Twenty Years Of Impunity' which is a report by Jaskaran Kaur, Ensaaf (2006).

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