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Context: The International Criminal Court has announced that it will open an investigation into possible war crimes committed by Russia in Ukraine.

War crimes:

• War crimes are those violations of International Humanitarian Law (treaty or customary law) that incur individual criminal responsibility under International law. War crimes carry an individual liability
• The definition established by the Rome Statute of the International Criminal Court (ICC) is derived from the 1949 Geneva Conventions and is based on the idea that individuals can be held liable for the actions of a state or its military.
• War crime vs. Genocide: War crimes are defined as occurring in a domestic conflict or a war between two states, while genocide and crimes against humanity can happen in peacetime or during the unilateral aggression of a military towards a group of unarmed people.
• Acts that can be considered war crimes: taking of hostages, willful killings, torture or inhuman treatment of prisoners of war, and forcing children to fight. But, in practice, there is a lot of gray area within that list.
• Guided Principles: To decide whether an individual or a military has committed a war crime, international humanitarian law lays down three principles: distinction, proportionality and precaution.
  • Proportionality prohibits armies from responding to an attack with excessive violence.
  • Precaution requires parties to a conflict to avoid or minimize the harm done to the civilian population.
  • Distinction one has to distinguish between civilian and belligerent populations and objects

War Crimes in India:

• War crimes have been happening in India since Britishers took over but the sad part is that it continued even after independence.

War crimes committed in India after independence:

• Genocide of Sikhs in (1984)– After the 3rd prime minister of India Indira Gandhi was killed by her Sikh bodyguards, there was widespread violence against Sikh community in many parts of India. People belonging to Sikh community were targeted and killed in an inhumane way.
• Exodus of Kashmiri Pandits (1990)- In 1990 all the Kashmiri Pandits were given a warnings from the loudspeakers of the mosques overnight to either convert to Islam or leave Kashmir. All the belongings of Kashmiri Pandits were targeted.
• Gujarat riots (2002)- On 27 February 2002, the pilgrims were returning home by train from Godhra. The train was set on fire by Muslims. The Hindus retaliated at this incident. This clash between the said communities resulted in a riot which lasted for a couple of days.
• Delhi riots (2020)- It was a result of the anti-CAA protests in Delhi which later resulted in riots.
• Bengaluru riots (2020)- Mob of thousands of people attacked at the houses of Hindus including the house of a local MLA because his relative shared a poster of Mohammad on social media.

Law Related to War Crimes in India:

• Currently there are no laws related to war crimes in India.
• There is no provision in Indian laws which define ‘genocide’ and ‘war crime against humanity’.
• There are various sections of the Indian Penal Code, 1860 that are used to punish the war crime perpetuators.
  • Section 120A and 120B of IPC,1860 says that when two or more people commit a conspiracy to do an illegal act.
  • Section 300 of IPC, 1860 defines murder and section-302 have the provision of imprisonment for life or death sentence.
  • Section 436 IPC, 1860 states that any person who tries to destroy or destroys the property such as house or religious place shall be punished with imprisonment for life.
  • Section 153A IPC, 1860 penalises any person who promotes enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and acts prejudicial to maintenance of harmony. It can be done by writing, oral words, gestures or any visual representation.
  • Section 295 IPC, 1860 penalises any person who destroys, damages or difiles any religious place with the intention of insulting the religion.
• In 2005, the government introduced “The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005. Unfortunately, it is still a bill and the government is not willing to make it an act. The important provisions of this bill are:
  • The responsibility to maintain peace is of both State and Central government.
  • Speedy trial and compensation to the victims.
  • Police have special powers to search any house for the arms and ammunition.
  • Special courts shall be made for the trial of matters related to communal violence.
  • Protection to be given to the witness.
  • Public officers to be punished for not doing their duty properly.
  • Power to the Central government to deploy armed forces only on the request of the State government.

Conclusion:

• War crimes are not only related to crimes committed during war but even during the peacetime. It is a broader concept so any kind of violation to human rights should comes under the shadow of war crimes.
• India ratified the Genocide Convention on 27 August, 1959 but still there is no concrete law on genocide in India. Indian legislators should enact necessary laws required to deal with the genocide.

https://indianexpress.com/article/explained/explained-what-constitutes-a-war-crime/

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