By Prof. Bharat H. Desai
The Baisakhi Day of April 13, 2023 brought to the fore painful memories of the 104 years old carnage at Amritsar’s Jallianwala Bagh. On that fateful day, the British soldiers enacted one of the bloodiest massacres on the Indian soil. The festering wounds of that past and the ghastly act of a renegade agent of the British Raj still await a closure. It calls for making International Law work through reparations for injury caused by an internationally wrongful act committed during the British colonial rule.
The Amritsar massacre resulted from wanton ten minutes firing without warning was ordered by Brigadier-General Michael Dyer on the assembled peaceful protesters against the Rowlatt Act (XI of 1919). The action required firing of 1,650 rounds that killed at least 379 people and injured 1200 more. The tectonic shocks of the incident were a turning point in Mohandas Gandhi’s full commitment to Indian freedom from the British rule. It also made Rabindranath Tagore to give up his knighthood. Tagore expressed his anguish in his protest letter of May 31, 1919 to the Viceroy Lord Chelmsford thus: “The disproportionate severity of the punishments inflicted upon the unfortunate people and the methods of carrying them out, we are convinced, are without parallel in the history of civilized governments”. Similarly, the March 08, 1920 report of Lord William Hunter, President of the Disorders Inquiry Committee explicitly concluded: “Brigadier-General Dyer's action at Jallianwala Bagh was in complete violation of this principle (using the minimum force necessary)…that it is impossible to regard him as fitted to remain entrusted with the responsibilities which his rank and position impose upon him”.
Past as Present: Healing the Wounds
In the post-independence period, the 1919 Amritsar massacre has been relegated in the public memory even though the Jallianwala Bagh memorial remains a mute witness to one of the historical wrongs left behind by the British Raj. After a century (1919-2019) of the Amritsar massacre, the then British Prime Minister Theresa May described it merely as the “shameful scar” on the British Indian history. Hence, a formal apology in the British House of Commons still eludes. In the wake of the Prime Minister’s Questions on April 10, 2019, concerning the Amritsar massacre, May invoked the standard cliché to describe the massacre as a “distressing example” and said: “We deeply regret what happened and the suffering caused.” This was at best a half-hearted, insincere and reluctant acceptance of the massacre that was dubbed ‘monstrous’ at the time even by Winston Churchill. In 2013, David Cameron became the first serving British Prime Minister to visit the Jallianwala Bagh Memorial. However, Cameron brushed it aside and refused to "reach back into history" to apologize for the wrongs of British colonialism.
Even as the wheels of time move on, the ghosts of the past wrongs haunt affected peoples and nations and hence the quest for a closure persists. In a historic move on April 24, 2021, the US President Joe Biden formally recognized the 1915 Ottoman-era massacre of the Armenians as ‘genocide’ and observed: “We honor the victims of the Meds Yeghern so that the horrors of what happened are never lost to history. And we remember so that we remain ever-vigilant against the corrosive influence of hate in all its forms”. It became reminiscent of a similar initiative by President Barack Obama, who visited the Hiroshima bomb site on May 27, 2016. In paying homage, Obama invoked the “souls of the dead who speak to us” and candidly admitted: “We stand here...and force ourselves to imagine the moment the bomb fell...we listen to a silent cry…(it) demonstrated that mankind possessed the means to destroy itself.” Though not tendering an explicit 'apology', the US President laid a basis for closer of the wrong at a future date as several former colonial powers have already done. For instance, apologies have been tendered by Germany for the 1904-08 Namibian massacre (2021), Canada for the ill-treatment of the passengers (Indian) of the ship Komagata Maru (2016), Japan for the ‘comfort women’ (2015), Australia for ‘stolen generation’ (2008) and Germany for the ‘holocaust’ (1970). In case of the ‘comfort women’, the compensation and “most sincere apologies and remorse” tendered by Japan (2015) was revoked in 2017 by the new South Korean government.
The invoking of the past in the present times reflects human’s evolution, empathy and eternal sense of justice. It is a vital lesson for all powerful wrongdoers who think they would get away by inflicting wounds on a people. The usage of words such as ‘regret’, ‘shame’, ‘remorse’, ‘sorry’ or ‘failure’ aim to seek rapprochement with either a section of a country’s own population or in another country. Mere tokenism would render it futile. It calls for full acceptance of state responsibility. In 2013, Britain apologized and agreed to pay compensation of 19.9 million pounds to 5,228 claimants for the Kenyan Mau Mau nationalist uprising. This precedent provides a concrete basis for the Britain to apologize and seek a closure of past colonial wrongs such as the 1919 Amritsar massacre.
Invoking State Responsibility
The formal tendering of an apology by a state either to own people (lost generation in Australia) or for an incident on its soil (ill-treatment of the Indian immigrants at the Canadian harbor) or in the former colonies (Mau Mau massacre in Kenya) are designed to satisfy psychological needs of the decedents of affected parties or the States. The French apology for blowing up of the Rainbow Warrior award (UNSG, 1986) in Auckland harbor and the US apology to Germany in the LaGrand case (ICJ, 2001) for failure to notify the accused of their right to communicate with German consular officials are other examples in this chain. In the same vein, India needs to seek a formal Pakistani apology for egregious violations of the right of consular access in the Kulbhushan Jadhav case (ICJ, 2019).
Every internationally wrongful act of a State constitutes a breach of legal obligation that entails an international responsibility. The International Law Commission’s 2001 Articles on Responsibility of States for Internationally Wrongful Acts provide for the injury caused by conduct of a State “to make full reparation for the injury (material or moral) caused by the internationally wrongful act” (Article 31). Modes of reparation could include restitution, compensation, or satisfaction. Thus, International Law recognizes apology as a formal remedy for its violations under an overarching criterion of satisfaction. It can take the form of an “acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality” (Article 37). In this context, the 1948 Genocide Convention, ratified by 153 countries (April 2022), holds direct relevance since recognizes that “at all periods of history genocide has inflicted great losses on humanity” and states “genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world”.
Awaiting Apology and Reparations
The present generation owes responsibility for the wrongful actions of the past generations since continuing nations have continuing responsibilities. As a corollary, a sincere apology and reparations can help in healing the past wounds. After a lapse of 104 years, it is high time the Indian government formally seeks an apology from the British government for the 1919 Amritsar massacre. The Punjab Legislature as well as both houses of the Indian Parliament can unanimously adopt resolutions to this effect. On February 19, 2019, in special House of Lords debate on Amritsar massacre, strong views were expressed by many peers on the need for a formal British apology. This inevitable historical British action would need to comprise a formal statement by the British Prime Minister in the House of Commons, issue of a postage stamp for paying homage to the departed souls and an appropriate compensation to be deposited in the Jallianwala Bagh National Memorial Trust Fund. This International Law ordained process would form a basis of much awaited closure for the descendants of the massacred victims, the City of Amritsar and the people of India. Which British Prime Minister would go down in history to do so? Time is the answer.
Dr. Bharat H. Desai is Jawaharlal Nehru Chair, Professor of International Law and Chairperson of the Centre for International Legal Studies (SIS, JNU), served as a member of the official Indian Delegations to various multilateral negotiations (2002-2008) as well as coordinated the knowledge initiatives for Making SIS Visible (2008-2013) and the four partner Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020)