| The Law of Genocide: Humanity’s Tragic Secret

Course Information

  • 2020-21
  • 5-Year B.A., LL.B. (Hons.), LL.M.
  • III, V
  • Mar 2021
  • Elective Course

How does this course relate to the programme curriculum – does it develop on a prior course in the programme or is the foundational or standalone course?

Public International Law (‘PIL’) is a mandatory taught course included in the curricula of law schools in India. Yet genocide, although in large part responsible for the very creation of contemporary PIL and its jurisprudence, has been largely marginalised as a field of study and research within the curricula of most law schools, for various reasons, including the difficulties encountered in defining, adjudicating, and thereafter enforcing the same, given its very nature, the conflicts it poses with State sovereignty, and the implications it carries for victims and perpetrators. Furthermore, given the scope of the subject, it has lent itself to study through a range of academic perspectives that are distinct from the law, including those of anthropology, history, and politics/international relations.

Today, almost 75 years from the inception of the ‘The Convention on the Prevention and Punishment of The Crime of Genocide, 1948,’ (‘Genocide Convention’), scholars of Public International Law acknowledge that this topic is now no more than marginalia in the ever expanding mille feuille that has come to dominate the discussion on PIL in law schools across the world – whether by way conventions and treaties (or other soft sources), treatises that expound the law, and jurisprudence and case based articulations on various issues within in. In most cases, the topic of ‘Genocide’ itself, is limited to no more than a few pages even in the most authoritative commentaries on the subject.3 If anything, perhaps the most significant treatment of genocide is afforded within the realm of International Criminal Law, which too is a specialised course and not a part of conventional curricula at the undergraduate level. Even within this sphere, ‘genocide’ as such is treated mainly to provide contrast to other issues such as crimes against humanity, war crimes and the like.

Therefore, while not a foundational course in the subject, it certainly seeks to contribute to this most unaddressed aspect of International Law, and build on existing legal scholarship, while informing it with the continuously emerging panoply of perspectives to which this subject matter is easily lent, emanating from academic discourse and human experience, owing to the extraordinary nature of the ‘crime’ and the larger implications it has on the world and its people as a whole, whether legal or otherwise.

**It is important to note here that ‘genocide’ itself has, and does, escape easy definition, and is regarded by different standards and consideration quite distinct from any straitlaced legal interpretation – if only because it surpasses ordinary notions of criminality as understood in traditional municipal legal systems as a matter of human suffering, and a trenchant reflection of the state of humanity, and the human condition at large, at various levels of thought and experience.

Describe how you have approached the course. What have you included/excluded and why? Choice of materials – primary or secondary readings / case law;

Since this course is meant to be offered primarily to undergraduate law students, and to be offered as an elective course within a limited time frame, the approach chosen has been guided principally by legal considerations. However, the inherently distinct nature of the crime, as also the law that purports to govern it, makes it germane to a range of unique debates on different issues, which only grow more diverse and numerous as society, culture, politics, and standards evolve. In this context, the approach seeks to build upon issues of legal relevance while maintaining a balance of other important perspectives and considerations wherever feasible, to make for a more holistic understanding of the legal issues at stake, and provide participants with a better platform for analysis of these issues in a manner they find most thought provoking, and which ultimately furthers the understanding of large scale human tragedy and the various interests and issues at stake.

PIL is atypical in that it is not a ‘hard law’ course such as others like contracts, property law etc., but rather governed by a more fluid institutional and legal regulatory framework, which are not easily compared to those found within domestic legal systems

– whether at the legislative, executive, or judicial levels. This is more pronounced within the sub-category of genocide, where decided cases and resulting case law are very sparse to begin with, and the jurisprudence and precedent created thereby is still far from settled, and dependent on extraneous circumstances and individual case-based considerations.

Thus, this course begins with the relevant foundational documents relating to the topic, and builds upon it through scholarly treatment and analysis of the law and jurisprudence, while also relying upon insights offered from other secondary sources that are not essentially legal, but which are no less important to the understanding of genocide as a crime. This has been done to provide participants with as broad a range of perspectives as possible from which to engage with the topic at hand, so as to promote increased discussion and participation as to achieve the objectives laid out above in accordance with the intended pedagogical method as described below.

Insofar as primary material such as case law is concerned, allusions to them will be made as and when necessary, for the rendered decisions can claim no authority over the positions or standards of law, because the international national institutional infrastructure does not support the same, whether because of conflicts with individual sovereignty of states, or because of the absence of any real principle of stare decisis in International Law at large.