On 9 February 2022, the government was asked in the Rajya Sabha the following question: “Will the Minister of Home Affairs be pleased to state whether it is a fact that India ratified the Genocide Convention (1948) passed by the UN General Assembly (UNGA); (b) if so, whether Government have enacted any laws regarding Genocide.”
The Modi government answered: “India signed the Convention on the Prevention and Punishment of the Crime of Genocide, 1948 on 29th November, 1949 and ratified the Convention on 27th August, 1959 and thereby recognised genocide as an international crime. The principles embodied in the Convention are part of general international law and therefore already part of common law of India. The provisions of Indian Penal Code, including the procedural law (Criminal Procedure Code) provide effective penalties for persons guilty of such category of crime and take cognizance of the acts which may otherwise be taken to be in the nature of genocide, as culpable offences.”
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Genocide is a crime under international law, whether committed in times of peace or armed conflict. It is prohibited and criminalised under the Genocide Convention, which Israel ratified in 1950, and the Rome Statute. Five specific acts constitute genocide: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group. However, to constitute the crime of genocide, these acts must also be committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” This specific intent is what distinguishes genocide from other crimes under international law.
Regardless of whether individual Palestinians are citizens of Israel living in Israel, are living under Israeli military rule in the Occupied Palestinian Territory or are Palestinian refugees, they overwhelmingly identify as Palestinian and have deep and shared political, ethnic, social and cultural ties. Palestinians share a common language and have similar customs and cultural practices, despite having different religions. They, therefore, constitute a distinct national, ethnic and racial group protected under the Genocide Convention.
Since October 2023, Israel has carried out a military offensive in the occupied Gaza strip of unprecedented magnitude, scale and duration. Since then, it has carried out relentless aerial and ground attacks, many of them with large explosive weapons, which have caused massive damage and flattened entire neighbourhoods and cities across Gaza, along with their life-supporting infrastructure, agricultural land, and cultural and religious sites and symbols deeply engrained in Palestinians’ collective memory. Israel’s military offensive has killed and seriously injured tens of thousands of Palestinians, including thousands of children, many of them in direct or indiscriminate attacks, often wiping out entire multigenerational families. Israel has forcibly displaced more than 90 per cent of Gaza’s 22 lakh inhabitants, many of them multiple times, into ever-shrinking, ever-changing pockets of land that lacked basic infrastructure, forcing people to live in conditions that exposed them to a slow and calculated death. It has deliberately obstructed or denied the import and delivery of life-saving goods and humanitarian aid. It has restricted power supplies that, together with damage and destruction, led to the collapse of the water, sanitation and healthcare systems. It has subjected hundreds and likely thousands of Palestinians from Gaza to incommunicado detention and acts of torture and other cruel, inhuman or degrading treatment, leading to the death of many.
Is what Israel is doing to the Palestinians genocide? Yes. That is the finding of many groups, including Amnesty International. An intent to destroy a group “in part” is sufficient to establish the requisite specific intent for the crime of genocide. In determining what constitutes part of the group, international jurisprudence has adopted a requirement of substantiality rather than a specific numeric threshold. This standard requires that the perpetrator must intend to destroy at least a “substantial part” of the group in question, which must be significant enough to have an impact on the group as a whole. In applying it to Israel’s war, Amnesty International considers that Palestinians in Gaza constitute a substantial part of the whole group of Palestinians. In 2023, Palestinians living in Gaza comprised approximately 40 per cent of the nearly 55 lakh Palestinians living in the Occupied Palestinian Territory.
Importantly, the perpetrator does not need to succeed in destroying the targeted group, either in whole or in part, for genocide to be established. International jurisprudence recognises that “the term ‘in whole or in part’ refers to the intent, as opposed to the actual destruction.” Equally important, finding or inferring specific intent does not require finding a single or sole intent. A state’s actions can serve the dual goal of achieving a military result and destroying a group as such. Genocide can also be the means for achieving a military result. In other words, a finding of genocide may be drawn when the state intends to pursue the destruction of a protected group in order to achieve a certain military result, as a means to an end, or until it has achieved it.
What is happening in Gaza to the Palestinians is genocide. India recognises it as an international crime and India has signed the convention to prevent and punish genocide. India must speak out and act against this crime that continues daily before our eyes.
By Aakar Patel
