DETENTION OF ROHINGYA : 26.03.2021. Mr. Bhushan, representing his NGO, filed an urgent application in Supreme Court of India seeking the release of about 150 Rohingya reportedly detained in a Jammu jail and stalling of their deportation.
CJI Sharad A. Bobde : “We are not in any way called upon to condone or condemn genocide in Myanmar, though we believe genocide anywhere is condemnable,”
Government represented by Solicitor General Tushar Mehta, were clear that once the nationality of the illegal immigrant is verified, they will be sent back to Myanmar and acknowledged that “India is not the capital of the immigrants of the world”.
Bhushan replied that “The mere fact that another country wants them [Rohingya] back and you [India] want to give them is not enough. You cannot send anybody to a place where he can be killed or subjected to torture”
“Have you today placed any evidence that Rohingya are being killed or tortured [in Mynamar]?” Chief Justice Bobde asked.
To which Mr. Bhushan asked the court to hear the United Nations Special Rapporteur.
To which the Harish Salve replied that, “
· No municipal court should do anything that embarrasses the executive government. Municipal court applies only domestic laws.
· Treaties or conventions refused by the government cannot be implemented through the courts.
· The U.N. is not subject to the jurisdiction of the municipal court…
· Besides, Mr. Bhushan has not impleaded Jammu and Kashmir in his application,”
WHAT IS GENOCIDE? The Convention on the Prevention and Punishment of the Crime of Genocide was unanimously adopted by the United Nations General Assembly on 9 December 1948 as General Assembly Resolution 260. The Convention entered into force on 12 January 1951.
The Genocide Convention establishes on State Parties
· Obligation to take measures to prevent and to punish the crime of genocide, including by enacting relevant legislation and punishing perpetrators, “whether they are constitutionally responsible rulers, public officials or private individuals” (Article IV).
· Obligation to enact the necessary legislation to give effect to the provisions of the Convention (Article V);
· Obligation to ensure that effective penalties are provided for persons found guilty of criminal conduct according to the Convention (Article V);
· Obligation to try persons charged with genocide in a competent tribunal of the State in the territory of which the act was committed, or by an international penal tribunal with accepted jurisdiction (Article VI);
· Obligation to grant extradition when genocide charges are involved, in accordance with laws and treaties in force (Article VII), particularly related to protection granted by international human rights law prohibiting refoulment where there is a real risk of flagrant human rights violations in the receiving State.