Strange, nay startling, are the ways of the National Human Rights Commission, India’s premier agency for the protection of human rights. Even as the nation receives back its uniformed dead from  Pakistan, brutalized, disfigured and mutilated in defiance of all norms of international law and humanity, the commission has declared that the militants in Kashmir were guilty only of trying to achieve secession but not of the crime of genocide. Headed by a former Chief Justice of India, the Commission-which generally takes a very expansive view of its powers and the concept of ‘human rights’, stretching them to include starvation deaths and poverty-driven suicides--chose last week to adhere to what it called the ‘stern definition’ of genocide in international law and to dismiss a petition filed by the Panun Kashmir movement alleging that genocide was taking place in the Valley. ‘The crimes committed against the Kashmiri Pandits’, ruled the Commission on June 11 in a 39-page judgement, ‘are, by any yardstick, deserving of the strongest condemnation. And there can be no gainsaying the acute suffering and deprivation caused to the community.   But against the stern definition of the Genocide Convention, the Commission is constrained to observe that while acts akin to genocide have occurred in respect of Kashmiri Pandits and that, indeed, in the minds and utterances of some of the militants a ‘genocide-type design’ may exist, the crimes against the Kashmiri Pandits, grave as they undoubtedly are, fall short of the ultimate crime: genocide’. Acts akin to genocide and a genocide-type design, but not genocide! That is like saying that we have a war-like situation in Kargil but not a war. A description that conceals more than it reveals.

But while such concealment might at times be good diplomacy, it is not, and cannot be, good adjudication. Certainly not at the hands of a Commission that has rarely felt hampered by the strict letter of the law and has so very often looked beyond the limitations of its own founding charter, the Protection of Human Rights Act of 1993. Mark, for instance, the Commission’s thundering order of August 4, 1997, relating to the Punjab mass cremations’ case. A simple order of remand from the Supreme Court to examine the matter ‘in accordance with law’ was used by the Commission to cast aside a statutory bar against taking cognizance of matters more than a year old, enlarge its own jurisdiction and set itself up as a body ‘sui generis’. Sui generis is Latin for ‘the only one of its own kind’ (Black’s Law Dictionary, emphasis in the original).

But how exactly does the Genocide Convention, referred to by the Commission last week, define ‘genocide’ and how stern is that defintion’ Genocide, says Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the UN General Assembly on December 9, 1948, ‘means any of the following acts committed with intent to destroy, in while 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’. Not merely genocide but acts by way of conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicityin genocide are also punishable under the Convention. That is

Article 3. Neither genocide nor any of the said acts enumerated in Article 3 shall be considered as political crimes for the purpose of extradition.

That is Article 7 of the Convention. The origins of the Convention, said the International Court of Justice in May, 1951, in and advisory opinion specially sought by the UN General Assembly, ‘show that it was the intention of the United Nations to condemn and punish genocide as a crime under international law involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind...’

The Convention was manifestly adopted, the court continued, for a ‘purely humanitarian and civilising purpose. It is indeed difficult to imagine a convention that might have this dual character to a greater degree,since its object on the one hand is to safeguard the very existence of certain human groups and, on the other, to confirm and endorse the most elementary principles of morality.. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions’.

The high ideals which inspired the Convention provide the foundation and measure of all its provisions. That is the canon, the precise canon, of interpretation of the Genocide Convention (an international document) laid down by the International Court of Justicein its majority opinion. The dissenting opinionof four judges of the court headed by its Vice-President, JG Guerrero (and including Sir Arnold

McNair)--dissenting on a different point--states even more explicitly that the ‘enormity of the crime of genocide can hardly be exaggerated, and any treaty for its repression deserves the most generous interpretation...’

Why then has the National Human Rights Commission, headed by the venerable Justice MN Venkatachaliah, sought to play down the enormity of what is happening in Kashmir by conjuring up a ‘sternness’ of definition that is simply not there’.