Case study of the Genocide Convention amongst Nagorno-Karabakh

Fighting for freedom and claim of Genocide

Violence broke between the two nations over the territory of Nagorno- Karabakh in the year 1980. The war ended in the 1990s and led to immense bloodshed. The consequences of the recent Russian-brokered ceasefire led to Azerbaijan having legal control over this territory. The Armenian leaders to date aren’t ready to give up on the legal control of this territory. 

Genocide, as per the United Nations, is defined as the destruction or partial destruction of a “national, ethnical, racial or religious group.” It is a war crime under international law, and countries are supposed to “prevent and punish” it under a 1948 U.N. agreement. Genocide is invoked by a secessionist regime as the last resort to resolve a conflict by involving third or outside parties. Secessionist leaders rally on foreign powers that revolve around their cause or arguments based on geographical, socio-economic, or religious ideologies. A few examples of secessionist movements are the cases of Iran supporting the Iraq Kurds in the quest for greater autonomy and the Arab states backing the Palestinians’ efforts at statehood. 

Freedom fighters of the nations  are seen to take international assistance when they bring attention to their repression. In a war between nations, the weaker country usually makes claims of genocide which is one of the most powerful defences and weapons. As per a study, more than two-thirds of members of the Unrepresented Nations and Peoples Organization, a nongovernmental organization composed of autonomy-minded minority groups like the Kurds, have alleged genocide.

How does Genocide disrupt peace?

Genocide is an evil practice, but it is very difficult to prove it as a war crime. The burden of proof is on the accusers to prove that the perpetrators had an intention to cause harm as per the standard and definitions of international law. Armenia had to prove the genocide. The 1915 Armenian genocide by Turkey is recognized by fewer than three dozen countries. This was the systematic mass murder and expulsion of ethnic Armenians carried out in Turkey and adjoining regions by the Ottoman government during World War I.  In terms of both law and politics, declaring a deadly military campaign to be genocide – versus just the atrocities of a bloody conflict – is tricky. Genocide claims tend to reduce their likelihood of being effective as the scope for negotiating and mediation reduces. Opposing parties can and do reject would-be peacekeepers based on their acknowledgement of or refusal to acknowledge genocide accusations, as per a recent study. 

Nagorno-Karabakh and genocide

The Genocide claims in Georgia led to disastrous effects as they did not go through peaceful negotiation even though there was international negotiation which led to the separation of Georgia. Abkhazia, a state in Georgia, had gained de facto independence after a brutal military assault in 2008. In the case of Nagorno-Karabakh, the claim for genocide was nothing new. A study shows that there were several media reports showing that Armenian leaders were repeatedly reminded of foreign powers of the 1915 Armenian genocide when pressing for outside intervention in their conflict with Azerbaijan.

On the contrary, Azerbaijan claimed that their citizens had faced genocide. As per the war in 1992, the Armenian military campaign in Nagorno-Karabakh had committed a massacre, called the Khojaly massacre, where 613 civilians were killed.  

It is impossible to determine whether genocide has occurred in Nagorno-Karabakh without in-depth investigations, but the accusations alone may overpower any truce. As Armenia’s angry reaction to the recent cease-fire demonstrates, peace between the two nations is fragile at best.

Is India abiding with the Genocide Convention,1948?

India ratified the Genocide Convention on 29th August 1959, and, since then, there has been no appropriate legislation on it. India has decided to make reservations with the treaty of Genocide Convention which was adopted by General Assembly of the United Nations on 9 December 1948. The ratification of the treaty by a method of making reservations was not opposed by the Netherlands and the United Kingdom of Great Britain and Northern Ireland. Reservations made to Article IX shall not be held incompatible until they go against the main purpose of this Convention. Netherlands has clearly stated that in accordance with Article 20 (4) (b), it shall not have any treaty relationship with any State that has resorted to making reservations in Article IX.  It has been studied that by drawing an analogy it may be held that the reservations made by the states including India to Article IX of the Genocide Convention, which deals with the competence of the International Court of Justice to adjudicate on disputes relating to interpretation or application of the convention and the determination of responsibility for genocide and related acts, are equally contrary to the object and purpose of the convention.

Since the reservation suggested by India was held incompatible by the individual states, there was no such  Genocide Convention treaty between India and Netherlands. Making a reservation would only affect the contracting states.  It is necessary to note that reservations can be made with respect to the compatibility of the Convention. In India’s case, it was related to crimes against humanity. The reservation made by Indians completely objectified the basis of the Convention. These reservations usually have affected the objectifying and the contracting States. The International Court of Justice had left the decision on individual states to decide if a particular reservation would be held valid or invalid as it was difficult to come to a common conclusion with regard to the motive and plan of the Convention. Facing such divergent views to a treaty and having to make reservations is inevitable. There are procedures laid out in Article IX of the Convention on the method of solving such disputes. Hence, the treaty would hold valid between India and Netherlands only without the reservation which was disapproved. However, it seems that India has not been abiding or enacting any of the genocide laws, and, hence, the treaty holds invalid amongst the two states. If any offences are committed in India or by Indian citizens, they will not be heard in domestic courts. India has been indirectly favouring the criminals of genocide and helping them reside in their territory because it is not a signatory to the International Criminal Court.

India is in clear violation of its constitutional obligations under Article 51 which says to foster respect to any international law or treaty and as well Article 253 which mentions that the Parliament must enact any law which is pertained in implementation by treaty, or Convention.” As said above, even after ratification, India has not implemented any laws related to the Genocide Convention under its International and Constitutional Obligation. Within the Indian Penal Code (IPC) and Criminal Procedure Code (Cr. Pc) there are provisions which deal with some of the offences of the convention but none of them seem well developed to deal with offences committed by a large section of people or even referred to as mass crimes. It is important to have proper sanctions to prosecute public servants. Section 197 of the CPC, 1973, which is an obstruction to Article IV, specifies punishments to guilty authorities, irrespective of their official position.IPC and Cr. Pc being colonial laws do not pertain to provisions of offenses which are committed by the State.

India has witnessed three horrifying cases which could be termed as Genocide even after the ratification was done: Anti-Sikh Riots: 1984, Bhagalpur Riots: 1989, and Gujarat Riots: 2002. The above incidents match all the criteria for them to be termed as a genocide, under the 1948 Convention.  India needs to implement new laws relating to genocide, rather than solely depending on laws made in the colonial period. The colonial law has been proven to be a failure in delivering justice and, hence, from this analysis it can be concluded that India has failed to uphold its responsibilities under Articles 51 and 253 as well as the internal obligations that it owed under the 1948 Convention.

Sanchali Bhowmik, a 2nd-year law student (L.L.B Hons.) at Jindal Global Law School 

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