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Published : February 25, 2013 | Author : Meera
Category : Human Rights laws | Total Views : 3570 | Rating :

  
Meera
Meera Mathew, LLB from Indian Law Society and LLM from Indian Law Institute(pursuing last semester)is a practicing Lawyer. She had initially worked in corporate field and then got into litigation.
 

Genocide In Asia

The law is only marginally relevant in matters of prevention. There are several reasons for this. The perpetrators of modern genocides are collectivities, and it is much harder to prosecute a collectivity rather than an individual. These collectivities are almost always states that victimize their own citizens.” - , Kurt Johnassohn

The world has witnessed gross human rights violations over the past decades. Certain crimes were of such nature and magnitude that it caught the attention of the international community at large and these crimes came to be initially termed as ‘Crimes Against Humanity’ and later a sub- category was culled out which was known as ‘genocide’.The Convention on the Prevention and Punishment of the Crime of Genocide came into existence in 1948 and is considered to be the first Human Rights document because it was ratifies on the 9th of December, 1948, a day before the Universal Declaration of Human Rights came into existence. World War II and the Holocaust are said to have the maximum impact on the structure of the Convention. The gross and inhuman treatment meted out to certain groups of people during this period forced the world leaders to come together and draft the Convention so that justice could be done to all victims of such inhumane acts of violence.

Meaning:- "Genocide" derives from the Greek "genos," meaning "race, nation, or tribe," and from the Latin "caedere," meaning "to kill." The Nuremberg trials (1945-1946) did not widely employ the term "genocide." It was one Raphael Lemkin first proposed the term "genocide" in his 1944 book “Axis Rule in Occupied Europe”. Within months of its origin, the word started being used widely. Raphael Lemkin was a Polish-Jewish lawyer whose family was decimated by the Nazis.

Jurists list the following examples of genocide: "the denial of ethnic Hawaiian culture by the American run public school system in Hawaii, government policies letting one race adopt the children of another race, African slavery by whites, South African Apartheid, any murder of women by men, death squad murders in Guatemala, deaths in the Soviet gulag, and, of course, the Jewish Holocaust." The following actions have also received the label "genocide": "'race mixing' (integration of blacks and non-blacks); drug distribution; methadone programs; the practice of birth control and abortions among Third World people; sterilization and 'Mississippi appendectomies' (tubal ligations and hysterectomies); medical treatment of Catholics; and the closing of synagogues in the Soviet Union. Justice Robert Jackson in his planning memorandum which he distributed at the beginning of the London Conference in 1945 had outlined the evidence he planned to adduce in the trial. Referring to "proof of the defendant's atrocities and other crimes," he included, "genocide or destruction of racial minorities and subjugated populations by such means and methods as (1) underfeeding; (2) sterilization and castration; (3) depriving them of clothing, shelter, fuel, sanitation, medical care; (4) deporting them for forced labor; (5) working them in inhumane conditions.”

Israel W. Charny, in his work “Genocide: Conceptual and Historical Dimensions defines genocide as: “Genocide in the generic sense is the mass killing of substantial numbers of human beings, when not in the course of military action against the military forces of an avowed enemy, under conditions of the essential defenselessness and helplessness of the victims.”

Article II of the Genocide Convention 1948 defines "genocide." It provides that genocide means 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.'

Genocide today in Asia:

The terms “crimes against humanity”, “ethnic cleansing” and “genocide” have been used interchangeably. It is very necessary that the meaning of these words be understood so as to clearly demarcate the kind of acts they refer to.

Genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. Now genocide is given a wider interpretation that includes the terms like ethnocide, cultural genocide, female genocide, relegious genocide. The spiraling risk for fomentation of enmity within a group and directed against those defined as “other” can be assessed by examining a myriad of factors underlying mass violence and genocide. Factors including group cultural history, situational factors, social psychological factors and context, and interpersonal factors, can be examined to provide an assessment of risk for movement along a path of mass violence with hallmarks including stigmatization, dehumanization, moral disengagement, moral exclusion, impunity, and bystander interactions. Usually, the perpetrators do not commit genocide and mass atrocities in a vacuum. There are a number of conditions that allow conflicts to escalate into genocide and mass atrocities and permit actors to believe that the commission of these crimes is a rational response to their circumstances and legitimate means of advancing their interests. These conditions, which are not themselves necessarily the result of particular government or elite policies, create the structural foundations for genocide and mass atrocities.

The stages of the long-running war between the Sri Lankan government and the Liberation Tiger of Tamil Eelam, wherein killing of over 40,000 civilians, the violence or repression and in Balochistan, Disappearances and political assassination in Pakistan, the continuing to employment of a variety of tools, including use of the army, to handle problems in their restive Muslim populations by the governments in Thailand and the Philippines, the continuing use force to control minority populations in Kachin State by the government of Burma, the employment of draconian measures to suppress dissent among the Uyghurs in Xinjiang and the Tibetans by the Chinese Government, the Indian Government’s killing in the name of maoist insurgencies affetced area of more than 182 districts of India followed by brutal crackdowns are all the examples of recent genocide. Bhutanese population of Nepalese origin are also under great threat. While half the population of Bhutanese Hindu minorities are living as refugees in exile, half of them are resisting inside Bhutan. The government made the life of these people very insecure. They are likely to be exiled step by step unless the forcibly exiled ones are not repatriated.All these necessiate the Inetrnational forum to deal with the problem of genocide.

Types Of Genocide:

The types of genocide prevailing in Asia are :
1. "Cultural genocide": - There was also a proposal that cultural genocide be covered in the Universal Declaration of Human Rights. The use of genocide and mass atrocities to maintain state power, usually in the context of relatively weak states. That there is no binding international law of cultural genocide reflects UN and state reluctance to mandate the protection of minority rights. For example, the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities is not binding and has no enforcement mechanism. The same is true of a draft UN instrument on indigenous peoples rights that speaks of cultural genocide. It is a fact that the Taliban bombed and destroyed the Bamiyan Buddhas in Afghanistan to erase any memory of cultural interaction in South Asia.

2. "Ethnocide":- The phrase ethnic cleansing refers to the policy of a particular group to systematically displace or deport another group from a particular territory on the basis of religious, ethnic or national origin. Ethnic cleansing differs from genocide in that the intent of the perpetrator may not be to destroy in whole or in part a group‘, but to create an ethnically homogenous territory. Ethnic cleansing can be regarded as both a war crime and a crime against humanity, depending on the circumstances in which it is committed. In most cases, the systematic displacement of a group from its territory occurs during war, and thus can be regarded as ordering the displacement of the civilian population for reasons related to the conflict‘. It is a crime against humanity because it involves the deportations of forcible transfer of population‘ as well as the persecution against any identifiable group‘.Moreover, it is normally accompanied by other crimes such as murder, torture, and rape.

3. “State repression”: The Cambodia Holocaust is the largest mass genocide ever recorded in the history of Asia due to the state repression under regime of Khmer Rouge. An estimated number of 1.2 to three million Cambodians, Vietnamese, Laotian, Thai, Indian, Pakistani, British, United States, New Zealand, and Australian people were either executed, starved, or worked to death in 1975-1978. Likewise, Myanmar is considered as the world’s least free countries, with thousands of political prisoners, a military government, armed insurgency, a controlled press, and battered opposition. International Crisis Group describes Sri Lanka today: “Nearly three years since declaring victory over the Liberation Tigers of Tamil Eelam (LTTE), the government has weakened democratic institutions, deepened ethnic polarisation and aggravated the country's long-standing impunity for human rights violations. The former war zones in the north and east are heavily militarised and controlled from Colombo, while disappearances, killings, torture, gender-based violence and other abuses continue with impunity throughout the island. Sri Lankans who speak out about the situation risk reprisal.” Similarly, North Korea is considered as the world’s least free country. This is how Ambassadors Abramowitz and Bosworth describe it, “We start with North Korea, a country without even a whiff of democracy and little individual freedom, because it raises urgent problems of war, nuclear terrorism, and the risk of nuclear proliferation in Northeast Asia.”

4. “Counter-insurgency”: It means the use of genocide and mass atrocities to defeat an insurgent organization by denying it access to a civilian population to hide amongst. In India, there have been many insurgencies from its creation in 1947. The Kashmir insurgency 1989, was brought under control by Indian government and violence has been reduced. The Army's elite Rashtriya Rifles (RR) played a major role in putting down the insurgency. The RR was well supported by Central Reserve Police Force (CRPF), Border Security Force(BSF), Indo-Tibetan Border Police (ITBP) and state government police. The Naga insurgency in eastern India suffered a series of devastating setbacks at the hands of Special Forces.In early 2012, the long-formidable Maoist insurgency on India’s eastern coast also showed signs of losing momentum.

5. Radical social transformation: This refers to the use of genocide and mass atrocities to enact a process of radical social transformation, usually by eliminating a particular ethnic, religious, political or socio-economic group. The female genocide is one form of radical social transformation wherein female population in a country could be in threat due to rampant female foeticide, eg: India.

6. State induced Rebellion: It means the use of genocide and mass atrocities as a strategy of rebellion against the state. The 1971 Bangladesh Genocide is the best example of this. The genocide carried out by West Pakistan led to the extermination of close to 3 million people, along with the forced rape of a quarter of a million young girls and women. During the Genocide ten million people fled to neighboring nations to seek refuge and close to thirty million people were displaced within the country.

7. Major war: The use of genocide and mass atrocities as part of a strategy for winning a major war at the lowest cost. The vietnamese war that lasted for about 30 years is the struggle that began with communists fighting French colonial power in the 1940s lasted until they seized Saigon and control of the whole country in 1975. The Hanoi government estimates that in 21 years of fighting, four million civilians were killed across North and South Vietnam, and 1.1 million communist fighters died.

8. Extermination of Minority: The Armenian Genocide took place during and after World War I is the example of this. It was the Ottoman government's systematic extermination of its minority Armenian subjects from their historic homeland in the territory constituting the present-day Republic of Turkey. It was implemented in two phases: the wholesale killing of the able-bodied male population through massacre and forced labor, and the deportation of women, children, the elderly and infirm on death marches to the Syrian Desert. Likewise, Bahrain government’s strtegies that engaged in a savage onslaught on the entire Shia community nearly 70 per cent of the population in recent times is also cited as Genocide by various jurists. The battle-cry of the al-Khalifa monarchy in Bahrain time when they started to crush the pro-democracy protests in the island kingdom has something to do with 'to drown the revolution in Shia blood.' Patrick Cockburn , Associate Professor of Political Science at the University of British Columbia in Kelowna, Canada ststes that just as the tsars once used Cossacks to kill and torture Jews and burn their synagogues, so Bahrain's minority Sunni regime sends out its black-masked security forces night after night to terrorise the majority Shia population for demanding equal political and civil rights.

Causes of Genocide and Mass Atrocities - Three Stages in Asia
The table below sets out the three-staged approach to the causes of genocide and mass atrocities in more detail. It incorporates the underlying social, economic and political conditions, processes of political upheaval and mobilization, and lastly the rising tensions that characterise the final months prior to genocide and mass atrocities.

The Causes of Genocide and Mass Atrocity

Broad Indicators

Key Elements

 

 

 

 

 

 

  1. Preconditions of Genocide and Mass Atrocity

 

Social Divisions

- religious, ethnic division

- social, economic or political discrimination

- history of genocide and mass atrocity

 

Regime Weakness

- human rights violations

- absence of rule of law

- absence of democracy

- loss of territory

 

Economic Weakness

- low economic interdependence

- economic collapse leading to

scapegoating

- inequality of opportunities

 

 

  1. From Upheaval to Mobilisation

 

Crisis

- political crises

- natural crises

- economic crises

 

Mobilisation

 

 

                       

- reorganising of armed forces

- arming of militia groups

- spreading hate propaganda

- marginalizing moderates

 

Outbreak of Violence

-trial massacres‘

- attacks against victim group/s

 

 

 

 

 

 

3. Imminent Emergency

 

Increase in Life Integrity

Violations

 

 

- murder

- torture

- kidnappings

- mass rape

- relocation

- restriction of movement

- repossession of land, property

- killing of moderates

 

Organised Preparation

 

-death lists

- increase in hate propaganda

- herding together of victim group

 

Opposition

 

- support from diaspora communities

- rebellion, retaliation from victim group

Empty External Threats

 

-strong rhetoric from international community, not followed through with action

Gregory Stanton had identified three stages of eight stages of genocide.The first stage, is classification‘, that demonstrates the way that the natural tendency to classify can cause division and cleavages. The second stage is symbolisation‘, comes into play when symbols of difference are used to mark these classifications. At this point, differences become more entrenched. These symbols may be formal, for example in the form of identity cards which carry ethnic classification, or they may be more cultural such as an emphasis on certain physical traits or differences in dress or in name. The third is dehumanization, when cleavages erupt between classified groups, in the form of dehumanisation‘. At this stage, a particular group begins to be dehumanised. The fourth stage is Organization. Genocide is always organized, usually by the state, often using militias to provide deniability of state responsibility. The fifth stage is polarization. Extremist terrorism targets moderates, intimidating and silencing the center. Moderates from the perpetrators’ own group are most able to stop genocide, so are the first to be arrested and killed. The stage six is preparation, wherein the victims are identified and separated out because of their ethnic or religious identity. Death lists are drawn up. Later Extermination begins, and quickly becomes the mass killing legally called “genocide.” It is “extermination” to the killers because they do not believe their victims to be fully human. When it is sponsored by the state, the armed forces often work with militias to do the killing. The final and eight stage is denial that always follows genocide. It is among the surest indicators of further genocidal massacres. The perpetrators of genocide dig up the mass graves, burn the bodies, try to cover up the evidence and intimidate the witnesses. They deny that they committed any crimes, and often blame what happened on the victims.

Conclusion:
The world agrees that genocide is unacceptable and yet genocide and mass killings continue. Our challenge is to match words to deeds and stop allow­ing the unacceptable. That task, simple on the surface, is in fact one of the most persistent puzzles of our times. There are certain things that are to be kept in mind when the Genocide Convention is discussed.

At the 2005 United Nations World Summit, Member States agreed that it is the responsibility of each state to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility, they recognised, entails the prevention of such crimes, including their incitement‘. This report, the first in a new series on the prevention of these four crimes (hereafter labelled simply genocide and mass atrocities‘) by the Asia-Pacific Centre for the Responsibility to Protect, provides a framework for thinking about the causes of these crimes a necessary precursor to the development of effective policy.

Once violence takes on a more systematic character in its targeting of victim groups, the risk of genocide and mass atrocities becomes much greater. In the weeks and months immediately prior to various episodes of genocide and mass atrocity, a number of early warning signs become apparent and their presence highlights the imminence of an emergency. The increase of life integrity violations, more organised preparation and a more intense show of opposition from the victim group are clear signs that the risk of genocide is high and immediate. Empty threats and warnings can contribute to the emergence of a culture of impunity whilst, conversely, encouraging target groups to engage in risky behaviour. Effective prevention needs to focus on measures that address both the rising tensions leading to genocide and mass atrocities and the root causes of these crimes. Genocide prevention should be incorporated into the statutes of many more associations. There is a need to create a world-wide movement to end genocide like the movement to abolish slavery in the nineteenth century. The time has come to reassert our common humanity.
~~~~~~~~~~~~~~
# Kurt Johnassohn, Genocide and Gross Human Rights Violations in Comparative Perspective (New Brunswick, N.J.: Transaction Publishers, 1999)
# Henry T. King, Jr., Benjamin B. Ferencz et.al., “Origins of the Genocide Convention, 40 Case W. Res. J. Int'l L. 13 2007-2009, available at: http://heinonline.org (last visited on 09.2.2013)
# Thomas W. Simon, “Defining Genocide”, 15 Wis. Int'l L.J. 243 1996-1997, available at: http://heinonline.org (last visited on 11.02.2013)
# Ibid
# William A. Schabas, “Origins of the Genocide Convention: From Nuremberg to Paris”, 41, 40 Case W. Res. J. Int'l L. 35 2007-2009 available at: http://heinonline.org (last visited on 7.2.2013)
# Meghna Rajadhyaksha, “The Crime of Genocide in International Law”, Vol.18, No.8 LC 12 (Aug., 2003)
# Supra note 4 at 40
# Helen Fein, Genocide: A Sociological Perspective 9 (Sage Publications, Great Britain, 3rd edn., 1993)
# Ibid
# Catherine Barnes, “The Functional Utility of Genocide: Towards a Framework for Understanding the Connection Between Genocide and Regime Consolidation, Expansion and Maintenance”, Journal of Genocide Research, 7 (3) 2005, pp. 320-5.
# G.A. Res. 217 (III), U.N. GAOR, 3rd Sess., at 71, U.N. Doc. A/810 (1948).
# Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, G.A. Res. 47/135, U.N. GAOR, 47th Sess., Supp. No. 49, at 210, U.N. Doc. A/47/49 (1992).

Authors contact info - articles The  author can be reached at: meeramathew@legalserviceindia.com




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