“We had to save our identity. We have remained an unconquered race always and never entered into a compromise. Therefore, we raise the question of autonomy.” 

K.C. Mardi, founder of NGO Sarjom

The Indian Government has upheld colonial-era categorisations of Adivasis, the indigenous communities of India, as “Scheduled Tribes” (listed in the Fifth and Sixth Schedules of the Constitution of India), upholding affirmative action via Article 15. Much of the Adivasi populace in Jharkhand, Chhattisgarh, and Odisha have historically resided in mineral-rich forest areas, meaning that this ancestral land has been marked by the Ministry of Commerce and Industry and minerals industry key players like Bhushan Power and Steel Ltd. and the Adani Group. Adivasis continue to face state-sponsored industrial prejudice, leading to mass displacement from collective land and conditions detrimental to the continuation of their group identity. This is not considered a genocide based on current interpretations of the Convention on the Prevention and Punishment of the Crime of Genocide (UNGC) because this requires the physical destruction of the group “whole or in part.” This paper argues that this interpretation of the UNGC is unnecessarily narrow and disadvantageous, non-aligned with the drafter’s intent, nor with the actual text of articles 2(b) and (e). Theoretically, “cultural genocide” as a wrongful act could be easily interpreted to be within the ambit of the existing Convention through Art. 2(b) and (e). This is necessary for the continued viability of Adivasis, based on the premise that cultural genocide is often the first step towards a physical one. This paper focuses solely on this interpretive exercise and its viability to facilitate future discussion; broader questions of responsibility will not be addressed. 

Framing the Problem 

Avoiding essentialist eco-romantic renditions of Adivasis, many still residing in these forest areas have expressed an inalienable cultural link with the land they have historically resided on. Key examples have been the Bhumji and Santhals of East Singhbhum, Jharkhand, whose ancestors have historically cleared, levelled, laboured, and cultivated the land. Land erosion is tied to the equal erosion of Adivasi traditions of self-rule and self-sufficient farming. When BPSL settled in the district, the only landowners willing to sell were non-Adivasis. Objections to BPSL’s attempts to buy out the region have revolved around material and historical claims to the status of “original settlers” that have made the landscape they inhabit a key part of cultural group identity – and existence.

The domestic legislature is insufficient. The Forest Rights Act, 2006 and the Panchayat [Extension to Scheduled Areas] Act of 1996 (PESA) attempted to insert safeguards for Adivasis living in forest regions, but in Wildlife First & Ors. v. Ministry of Forest and Environment, the Supreme Court ordered the eviction of more than a million tribal families from collective lands in 2019. Following resultant protests, the Pathalgadi movement began, based on the customary erection of stone slabs engraved with quotes from the Constitution or PESA in Adivasi-populated areas to assert autonomy over the land and resources. The installation began after the Jharkhand ‘Land Bank,’ where the Jharkhand government began to list Adivasi lands, including sacred groves, as available for investor purchase, which is how BPSL gained entry to East Singhbum and how the Adani group gained access to Jharkhand’s Godda district, acquiring ten villages despite the villagers testifying that none of them assented. Inhabitants have been beaten and their crops ruined, with their ancestral burial grounds (jang baha) bulldozed.

Critically, this displacement occurs alongside ‘Extraction Education,’ where children are removed from their families (often by state officials) and sent to boarding schools that forbid native languages, religions, and signage. Almost 1,000 have died at one such residential school in Maharashtra. In East India, many of these schools have been established by stakeholders in displacement. For example, the National Mineral Development Corporation’s “Education City” in Jawanga, Bastar, and Dantewada in Chhattisgarh, areas with prominent Adivasi populations and targets for mining corporations, happens to primarily consist of residential ashrams operating with specific financial incentives for Adivasi students. Interestingly, the project also aims at training 1.600 youths from SC/ST/OBC/BPL categories in mining sector skills.  

Mapping an Understanding of Cultural Genocide

Genocide as the “crime of all crimes” conceptualised genocide as a materialization of the intent to exterminate entire groups based on their purported group identity. Initially advocated for by Raphael Lemkin, the architect of the Genocide Convention in the wake of the Holocaust, the proposition of cultural genocide as a subset of genocide — the systematic destruction of tangible and intangible aspects of a culture and something that facilitates its physical and biological destruction — eventually fell out of convention negotiations in the late 1940s. According to Lemkin, genocide is not necessarily the abject destruction of a nation; it is a coordinated plan intended for the “destruction of essential foundations of the life of national groups” aimed at their annihilation. Individuals are targeted as members of the group – not as individuals.

At its core, genocide is different from crimes against humanity precisely because its true gruesome nature does not lie in its tangible violence alone — it is the systematic attempt to destroy the cultural “other.” Beyond the categories protected by Article II of the Genocide Convention (national, ethnical, racial, or religious), it is fallacious to argue that these categories are not fundamentally interconnected by the inability to choose who you are and associated baggage, which extends to more identity markers. There appears to be little justification for why only these categories were considered protected groups. This is despite UN General Assembly Resolution 96(1), which defined genocide as the “denial of the right of existence of entire human beings.”

This overreliance on categories, the emphasis on “positive” group classification, the de-prioritization of the genocidaire’s subjective approach in gauging special intent and resultant destruction, all contribute to the difficulty in simply calling something as it is. There have been many attempts to write off violent displacement as “ecocide,” “ethnocide,” or “ethnic cleansing.” For example, William Schabas prioritized the need to draw distinctions between genocide and ethnic cleansing. Ethnic cleansing is a relatively new term, discussed in 1992 by the UNSC’s Commission of Experts. The Commission concluded that “ethnic cleansing” is the intentional attempt to render a region ethnically homogenous using force. While ICTY v. Krstic implicitly advocated for the expansion of genocide to include acts that involved non-physical methods of group destruction instead of resorting arbitrarily to another category of a “serious crime,” it also stated that: …to annihilate these elements which give to that group its own identity…would not fall under the definition of genocide.”

This draws an artificial distinction between forced assimilation and genocide. If genocide is an act against a group, would it follow to exclude the destruction of a group’s identity but indict the physical carrying out of that act? The first is usually the root of the latter. In the Indian context, the destruction of the Pathalgadi stones indicates this special intent. Krstic also peculiarly analyses genocide with repeated reference to “customary international law” — genocide (disregarding the controversy around it as Jus Cogens) is protected against by treaty obligations. Parties to the UNGC, as India is, should be held to its interpretive standards above vague references to custom.

The need for this difference is appreciated in other contexts to ensure that genocide is not sold cheaply. International law tends to run on attempts at categorization. However, as aforementioned, land dispossession leading to loss of livelihood and resultant mass displacement stands differentiated from ethnic cleansing. Ancestral lands have a unique constitution in many tribes or indigenous ways of life; it is a historically central part of this group identity. Displacement for Adivasis is cultural genocide; as put by one author, every aspect of their existing social moor is destroyed: economy, loss of identity as self-sufficient farmers, social relationships, religion (as the land is imbibed with spiritual value) and significant village arrangements. These classifications, hence, do not accurately describe the acts taking place in the East Indian sub-continent. 

The historical context of settler violence and tribal/ST marginalization as the first step to destruction is not straightforward enough to fit the UNGC’s straightjacket, awarded to it by wary tribunals and interpreters alike. If a perpetrator perceived all citizens who build their identity around tribe membership as a target and attempted to destroy the cultural insignia that collectivises these citizens to force assimilation in pursuit of economic goals, the very act of cultural assassination strikes at the heart of genocide, regardless of this co-existing motive. Critically, the Commission of Experts acknowledged that the definition of “genocide” under the UNGC encompasses the targeting of specific segments of a group, including those defined by their regional existence; even if one were to argue that not all Adivasis are being targeted, the fact remains that targeting sub-communities by virtue of their location can still constitute genocide under the UNGC.

Indeed, one issue with locating “special intent to destroy” concerning the kind of violence traced here lies with the perpetrator’s pre-conceived justification of their acts. Their actions rest on the assumption that there is nothing to destroy. Adivasi ways of life have been labelled “primitive,” “savage,” and “backward” with no scope for native, legitimate political/social organization. In the mind of the perpetrator, dispossession, murder, or coercive transfer of children do not amount to genocide carrying the act’s abhorrence, explaining why violence in the name of nation-building or development receives a degree of acceptance. There is a need to delve further into the perpetrator’s state of mind, and that is why it is so critical to label these actions as genocide, to enforce the act’s accompanying duties, responsibilities, and fear of retribution.

The mere difficulty of implementation or political fear cannot be why necessary change is unaffected. As articulated by the Commission of Experts on Yugoslavia, the UNGC needs to be “liberally interpreted to encompass existing [and] evolving methods of genocide” to ensure that actions are deliberated in their entirety to respect the “spirit” of the UNGC. This is especially true when the justification for encouraging such interpretive change is already alluded to in the framework of the Genocide Convention and the intent of its framers, which will now be explored.

Textualizing the Genocide Convention: A Case for a Broader Interpretation

Article 2(b) and the Undefined Contours of “Mental Harm”

The very inclusion of “mental harm,” an infliction typically unaccompanied with direct physical/biological violence against its victims, indicates how the UNGC never intended to absolutely exclude a definition of genocide that excluded all manifestations of genocidal intent but the physical. This is cemented by the seemingly intentional lack of a definition in the UNGC; there is no attempt at a list of acts causing mental harm to attract liability under the Convention. Additionally, the inclusion of both bodily AND mental harm under clause 2(b) implies that the framers of the UNGC did not intend to conflate the two – it is not necessary that mental harm must also be accompanied by physical consequences for such a group.

A relevant example of how this provision was interpreted is Prosecutor v. Blagojevic, where the ICTY opined that survivors from the siege in Srebrenica did suffer acts that directly resulted in severe mental harm even where there existed no evidence of physical symptoms reflecting the same. Additionally, where mental harm was considered in other ICTY decisions, it was held that so long as the mental harm caused is “lasting” and goes “beyond temporary unhappiness, embarrassment or humiliation and inflict grave and long term disadvantage,” it would be valid grounds for prosecution under the clause. The most noteworthy takeaway from the ICTY in this regard is its decision in Prosecutor v. Krasjinik, where the Tribunal concluded that forcible displacement constitutes serious mental harm if it contributed to the group’s destruction.

The authority of decisions rendered by an ad hoc tribunal stands on shaky ground, especially considering the difficulty in constructing a clear line of precedent with materials deciding on genocide. One could argue that the Tribunals especially have resorted to extremely purposive methods of interpretation to justify controversial decisions that were not rooted in the existing body of international law at the time. If one were to justify this by alleging that the ends justified the means, this could lead to a slippery slope for the scope of interpretation international law permits.

What if one could undercut such a criticism through the text of the UNGC? Art. 31(1)/32 of the Vienna Convention on the Law of Treaties (VCLT) provides that treaties must be interpreted in good faith based on their ordinary meaning except when doing so would lead to mischief. According to the VCLT, intention comes second; the text comes first. When considering how best to interpret Art.2(b), no abject absurdity would arise from interpreting it as broad enough to include cultural genocide within its scope. There is no denying that the actions of the corporations enumerated in the first section, with the complicity of the Indian state, would result in irreversible and lasting mental harm to the Adivasis they targeted. Even when considering a potential concern about the Article, including less serious offences, the requirement that the mental harm contributes to destruction alleviates such concern. If anything, interpreting a Convention explicitly aimed at protecting minority/groups at risk from majoritarian impulses to exclude very real forms of harm is absurd. When indigenous or tribal groups are coercively assimilated to integrate them into the rest of the population, this leads to the utter destruction of the group.

2(e): An Implicit Ban on Coercive Forms of Assimilation

Lemkin originally considered Art.2(e) as a part of the cultural dimension of genocide; this is how it entered the UNGC. As a pre-condition to its acceptance, the article was reconsidered as an element of a traditional genocide. Art.2(e), prohibiting the forcible transfer of children, has often been discussed in the context of cultural destruction and the dangers of coerced assimilation. As articulated during the Sixth Committee,

“The forced transfer of children to a group where they would be given an education different from that of their own group, and would have new customs, a new religion and probably a new language, was in practice tantamount to the destruction of their group, whose future depended on that generation of children.”

Noteworthy is that the article does not possess an exception for benevolence. If it had, this may have thwarted an attempt at including assimilative programs within its ambit. The boarding schools located in Chhattisgarh and Jharkhand that ban community practices will inevitably disconnect children from the future of the tribe they hail from. Critically, 2(e) does not include bodily harm within the clause, distinguishing it clearly from 2(a). This implies that forbidding the flow of cultural information from group members to the next generation of the group could be violative of the UNGC. Interpreting 2(b) and 2(e) together as imbibing cultural genocide would produce no mischief.

A Concluding Note

Adivasis are among the list of indigenous groups globally persecuted in the name of development and nation-building. Their marginalization rests on the assumption that they are primitive and backward, requiring the benevolence of a patronal entity that can assimilate them into a “civilized” society. As a direct result of aggressive assimilation strategies, more than 30,000 children have been enrolled by State officials at the Kalinga Institute of Social Sciences (Odisha) and at the Kasturba Gandhi residential schools, both associated with the Indian government since 2018. Thousands of Adivasi have been displaced and moved to infertile lands far from ancestral property. The very heart of the UNGC is its purported protection of the group identity. Cultural genocide can and should be textually interpreted as being within the ambit of the UNGC if only to facilitate a broader sense of accountability. The international community cannot continue to ignore the many steps involved in destroying a group, whole or in part. The recognition of such acts as internationally wrongful may be the catalyst for domestic pro-activity in protecting the land rights of the displaced and encourage further frameworks for individual and state responsibility. 

---

Aishwarya Alla is a third year student at Jindal Global Law School.