Genocide in Nigeria: Time to Speak Daggers to a Murderous State

Arthur Anyaduba [1]

Just within a few months into 2016, several communities in Nigeria continue to witness scores of herdsmen attacks. In each instance of these barbarous attacks, hundreds of people get murdered or maimed for life. A typical scene after these massacres usually assaults the conscience with dismembered bodies, decapitated heads, raped corpses of women, looted and burnt buildings, bullet and machete wounds, and disembowelments. But what really baffles one about these unimaginable atrocities is not just their level of organization and cruelty. Or in the sophistication of the weaponry used to carry out these murders. But rather, it is in the fact that the kind of national moral outrage one expects from such a state as Nigeria is nowhere to be found. Continue reading

The Dominican Republic – Haiti Divide

Author: Regina Paulose

Most sad chapters in history involve a mix of bad (or an absence of) law and a tyrant. In 1930, Rafeal Leonidas Trujillo became the dictator of the Dominican Republic (DR). In October 1937, he ordered the massacre of thousands of Haitians (estimates range between 9,000 to 30,000 civilians). Dominican soldiers were ordered to carry a sprig of parsley and ask people to say the word “parsley” in Spanish. Those who could not pronounce the word paid the price by being hacked to death with machetes or through other violent methods. The U.S. Ambassador to the DR labeled it “a systematic campaign of extermination.” Bodies of Haitian’s were dumped in what became known as “Massacre River.” These events became known as the “Parsley Massacres” or “El Corte.” Continue reading

Saving the Rohingya

Author: Regina Paulose

Burma has been involved in the lengthy process of democratization since 2011. Some argue that Burmese reforms are not genuine while others argue that the process is genuine but democratization remains complicated by a myriad of political and cultural issues.[1] Although Burmese President Thein Sein is a remnant  of the former dictatorship, there has been progress in freedom of expression and freedom of the press.[2] Yet, the U.N. Special Rapporteur on Human Rights in Myanmar recently stated that there were “worrying signs of backtracking” and that the patterns witnessed “impose a climate of fear intimidation to the society at large.”[3] Continue reading

Domestic War Crimes Tribunal in the International Context: Bangladesh

Written by: Iffat Rahman [1]

Here in Dacca we are mute and horrified witnesses to a reign of terror by the Pak Military. Evidence continues to mount that MLA authorities have a list of Awami League supporters whom they are systematic and shooting them down.[i]

The Second World War has significantly shaped the human rights field and it has led to many Conventions and international laws and furthered the establishment of the rule of law for war crimes and prosecuting war criminals. Furthermore, to prevent and punish future crimes against humanity, in the shadow of the Holocaust, on 9 December 1948, the United Nations passed the Convention on the Prevention and Punishment of Genocide, which came into effect in 1951. One year later, Pakistan signed the treaty on Convention on the Prevention and Punishment of Genocide on 11 December 1948 and ratified it on 12 October 1957. However, even the treaty did not prevent the Pakistani Army from committing one of the worst genocides in 1971 when Bangladesh was separated.  Justice was never served for the victims until recently when the government of Bangladesh established the International Crimes Tribunals (ICT) where they are prosecuting people who collaborated with the Pakistani Army in 1971.

Recently, the ICT in Bangladesh has created a division within country in half and it had been reported that more than 80 people were killed in clashes over the Tribunal’s verdict and chaos followed. Many Hindu houses were burned down. The international justice community has been quick to point out that the current party in power, Awami League, and the current leadership of Sheikh Hasina, Prime Minister of Bangladesh, is after revenge rather than justice. Modeled after the Nuremberg trials, the tribunal, which has commenced in 2010, repeatedly faced criticism from the international community about the fairness and the openness of the trials. So far, the ICT has indicted 11 people for collaborating with the Pakistani Army and most of them hold high positions within the two opposition parties, Jamaat-e-Islami and Bangladeshi Nationalist Party. Abul Kalam Azad, member of Jamaat-e-Islami, was sentenced to death in absentia and the ICT gained quite a bit of attention after Mr. Abdul Quader Molla, senior leader of Jamaat-e-Islami, whose previous sentence of life imprisonment was overturned and received death penalty after a popular protest. Delwar Hossain Sayeedi, leader of the Jaamaat-e-Islam, was sentenced to death.

Is it genocide?

Along with the genocide in Rwanda, the Holocaust in Germany, the Bangladeshi atrocity was one of the worst atrocities committed in the 2Oth century. However, unlike the other genocides, the Bangladeshi genocide is one of the least studied genocides in the modern day history.  Bangladesh suffered a violent birth and whether or not, the war between East Pakistan and West Pakistan was genocide has been debated among the scholars many times. The war created 10 million refugees. According to the Convention on the Prevention of and Punishment, genocide is:

Article 2

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole 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.[2]

 

The massacre that happened in Bangladesh clearly fits within the realm of the definition of genocide. At that time, press rarely called it genocide but it is without a doubt that the Pakistani Army targeted Hindus selectively. The Hindu Bengalis became the Jews of Germany for the Pakistani Army. They were hunted down, killed, and the Pakistani Army unleashed a massacre that took place on defenseless villagers, peasants, students, mothers, and children.  According to confessions by Pakistani army soldiers and officers, they were ordered to kill Hindus, Kafirs (non-Muslims) and to show no mercy. Bengalis were seen as an inferior race. Lastly, India spoke out against the genocide, condemning and calling it,  “savage and medieval butchery” and “preplanned carnage and systematic genocide.”[ii] Telegrams were sent from the American Embassy to Washington labeling the massacre as “selective genocide”.  Bengali Army officers within the Pakistani Army were disarmed and executed. The massacre happened under a control command system and it was well planned by the West Pakistani Army. According to, A. Dirk Moses,

Yahya Khan, the Pakistani President, was “pushing through its own ‘final solution’ of the East Bengal problem.” Officers he interviewed told him that they were “determined to cleanse East Pakistan once and for all of the threat of secession, even if it means killing off two million people and ruling the province as a colony for 30 years.” “Pogroms” were instituted against recalcitrant villages in “kill and burn” missions. Entire “villages [were] devastated by ‘punitive action’,” which authorities called a “cleansing process.” Hindus were targeted for “annihilation,” because they were thought to be a minority of unscrupulous merchants who dominated the economy and siphoned off wealth to India.[iii]

When a massacre happens at a level where millions of people were killed because of there is a difference in religion, ethnicity and race, then it is a clear case of genocide.

 

A Brief History

There were many events led up to the genocide in Bangladesh. It is impossible to separate Bangladesh’s history from the partition of India. The partition also separated Bengal province of British into East Bengal and later on to East Pakistan and the West Bengal.  In 1948, Bengali movement starts where 54% of the population in Pakistan spoke Bengali and minority of the population spoke Urdu in West Pakistan where population also spoke Punjabi, Baluchi, Pashtun and Sindhi. Before that year, in 1947, a resolution advocated for Urdu to be the sole language of Pakistan, which caused Bengalis to protest, and later transformed into a movement. In 1949, the All Pakistani Awami Muslim League was formed and later changed into All Pakistani Awami League. In 1955, Sheikh Mujibur Rahman, then elected General Secretary, was re-elected as the leader of the Party and name of the Party changed completely to Awami League. Pakistan became an Islamic Republic and Bengali became a state language along with Urdu. In 1956, Awami League leaders demanded for provincial autonomy in the drafted constitution of Pakistan. On 1958, General Ayb Khan exiles the president of Pakistan and assumes all power. Slowly, over the years, Sheikh Mujibur became the prominent person in East Bengal and called for independence of Bangladesh. The atrocity started with a military operation called, “Operation Searchlight” which aimed to crush the Bengali movement and due to West Pakistan’s view of Bengalis being racially inferior.[iv] Attack was mostly targeted towards Hindus in East Pakistan and the casualty was great. According to some sources, three million people have died, making Bangladeshi Genocide to be one of the biggest genocides in the 20th century. The Pakistani Army targeted students, intellectuals and raped women and more than 7,000 people have died in the first massacred by the Pakistani Army. According to President Yahya Khan, Pakistani troops have to “kill three million of them (Bengalis)” in order to destroy the movement. Many scholars believe that the Pakistani generals thought Bengali National Movement was initiated by the Bengali intellectuals and Hindus, which made them the primary target.[v]

It is without a doubt students were targeted because students called for provincial autonomy, progressive laws and not a division along the line of religion.  The students were seen as a threat as much as the Language Movement that was taking place but the students later became the most prominent force for the evolution of Bengali Nationalism in Bangladesh.[vi] Students at the Dhaka University were to raise the flag of an Independent Bangladesh.  Pakistani Army violently attacked the dormitories of Dhaka University where a substantial amount of non-Muslim resided at that time. It should be noted that the massacre that took place happened on 25th March took place on Dhaka University campus and the campus was shelled and remaining students were shot, killed and gender or age didn’t matter in the killing spree.  When the dorms were emptied out, killing spree moved to villages. Students were shot at sight, interrogated and tortured to death.[vii]

It is estimated that the Pakistani Army raped approximately 200,000 women and girls.[viii] Pakistani Army and their collaborators have made girls and women targets through direct rape and through gendercide where men were killed off leaving the women vulnerable.

After 9 months of guerilla tactics by the Bengalis, in the final weeks of the war, India heavily supported Bangladesh and on 16th December 1971 Pakistan surrendered to Bengali and Indian troops.[ix]

A domestic affair

Technically known as the International Criminal Tribunal, there is very little international commitment is made to the trial and there is no way of knowing how much international standards are being made applied. When Bangladesh ratified the ICC Rome Statute in 2010, it became the first country in South Asia to ratify the treaty. The Rome Statute was mainly ratified so the government of Bangladesh would be able to proceed with the trials.  The International Crimes Tribunal Act 1973 was established to proceed with the prosecuting people who have committed crimes against humanity, war crimes and other crimes under international law. Under the ICT Act, many people were being investigated along with Pakistani Army officers. The investigation brought in charges against 195 Pakistani Army officers; however, the Pakistani Army officers were given amnesty and returned back to Pakistan under a trilateral treaty between Bangladesh, Pakistan and India. No other government took the initiative to prosecute the people who have collaborated with Pakistani Army until now. [x] When India brought the case against Pakistan to the International Court of Justice for violation of Genocide Convention, the charges were dropped because of diplomatic agreement and Bangladesh resisted in taking action against Pakistan at the ICJ.[xi]

ICT is one of the most fascinating and complicated war tribunals to take place and it can set a precedent example for countries in South Asia and Southeast Asia.  International paradigm has begun to shift and the power has been shifting to Asia. This Tribunal will play a big role in establishing a shift in practicing international laws in a domestic setting and also because it is not an UN tribunal and it had been fully sponsored and dictated by the government of Bangladesh.

According to Sanoj Rajan, Associate Director of the Program on Humanitarian Policy and Conflict Research at Harvard University,  “decision to avoid any international collaboration in the ICT was exclusively that of the Govt. of Bangladesh. The only non Bangladeshi involvement was that of United States Ambassador – at – Large for War Crimes, Mr. Rapp which was vehemently resisted by the Bangladesh.” He believes that “an initiative like this is always welcomed by the international community including UN, but the concern majorly is about the fairness of the proceedings. In ICT also there are many reasons why international community should be concerned on the fairness of the trial and that is what reflects in most of the literature on the topic.”[xii] The European Union also offered to assist with the tribunal.

The case of death penalty

One of the key differences between the ICT and the other international tribunals it the implication of death penalty. Under the Rome Statute, the ICC is not permitted to give death penalty to the guilty and currently no other tribunal has managed to give death penalty. When it comes to death penalty, Bangladesh is a retentionist country and methods of practicing the death penalty are by hanging and shooting. It is highly debatable if death penalty is unconstitutional in Bangladesh or not. Bangladesh still practices death penalty but the number of death penalty that has been decreased dramatically within the last year. Most of the death penalties took place since 2008 was for murder. Altogether with seven other countries, there were only 38 official executions that were carried out but there were 45 death penalty verdicts were imposed in Bangladesh in the last year.[xiii] However, according to Death Penalty Worldwide, an organization that monitors death penalty and the countries that are practicing it, claims that there were zero death penalties and there are at least 1172 people waiting to be prosecuted under death penalty.

It should be noted that that Bangladesh is part of the International International Covenant on Civil and Political Rights. Technically, ICCPR, does not prohibit death penalty and second Optional Protocool to the ICCPR calls for aboliton of death pentaly during peacetime and Bangladesh have not adopted the second optional protocol to the first treaty.   Mr. Abdul Quader Molla’s death sentence presents an interesting dillemma for the ICT. It also begs the question if the trials are fair and meeting international standards. In the beggining, Mr. Molla was given life imprisonment; however, after a popular protest, he recieved a life sentence. Under the ICT Act the government can give him the death sentence but the trials are closed off to the international community. According to the Bangladesh Laws (Revision and Declaration Act 1973)

Article 121 states that:

Whoever wages war against Bangladesh, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or 42 [imprisonment] for life, and shall also be liable to fine. Illustration A joins an insurrection against Bangladesh. A has committed the offence defined in this section.

And under the ICT Act 1973, under the sentence article,

20. (1) The Judgement of a Tribunal as to the guilt or the innocence of any accused person shall give the reasons on which it is based: Provided that each member of the Tribunal shall be competent to deliver a judgement of his own.

(2) Upon conviction of an accused person, the Tribunal shall award sentence of death or such other punishment proportionate to the gravity of the crime as appears to the Tribunal to be just and proper.[xiv]

These articles clearly give permission to give the death sentence for the guilty, however, this becomes confusing since Mr. Molla was awarded life imprisonment and the guilty verdict was changed to the death penalty. Death penalty for Mr. Molla was sought after the protest on 5 February 2013, calling for a death sentence. Since Bangladesh is a party to the ICCPR, Bangladesh is obligated to provide fair trials for Mr. Molla.  Overturning a sentence to death penalty makes Bangladesh guilty of violating the ICCPR treaty, under the provision of Article 15, where it clearly states that, “nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.”[xv] The tribunal in Bangladesh repeatedly failed to keep up with the international standards when it comes fair trails. Organizations such as International Commission for Jurists and No Peace Without Justice have also questioned its authenticity of the trial.

The first successful trials took place on genocide was with the International Criminal Tribunal for Rwanda. However, had the Bangladeshi tribunal proceeded in the 1974, it could have set precedent for the war crimes tribunals now. However, there is an increasing concern about the fairness of the trials that are taking place. The Bangladeshi government should be applauded for their efforts in trying to bring justice to the people who have suffered greatly and to the rape victims, but it seems like the Bangladeshi government is after vengeance than justice. The Bangladeshi government should welcome collaboration from the international justice community. Together, they can help to bring justice and help to reconcile.


[1] The author is a graduate of McGill University and currently residing in Canada. She has recently interned with civil party lawyers at the Extraordinary Chambers in the Courts of Cambodia.  Before then, she worked on Will to Intervene Project at the Montreal Institute of Genocide Studies.


[i] U.S. Consulate (Dacca) Cable, Selective Genocide, March 28, 1971, Confidential, 2 pp.
Source: Record Group 59, Subject Numeric File 1970-73, Pol and Def, Box 2530

[ii] Moses, Dirk A. The United Nations, Humanitarianism,  and Human Rights War Crimes/Genocide Trials for Pakistani Soldiers in Bangladesh,  1971–1974  See : http://dirkmoses.weebly.com/uploads/7/3/8/2/7382125/moses_east_pakistan_in_hoffmann_human_rights.pdf

[iii]  Ibid. Moses, Dirk A.

[iv] Shariach, Lisa. Rape as Genocide: Bangladesh, the Former Yugoslavia, and Rwanda  New Political Science.  See: http://www.tandfonline.com/doi/pdf/10.1080/713687893

[v] Bangladesh Genocide Archive. See: http://www.genocidebangladesh.org/

[vii] Ibid. Ahmed, Anis.

[viii] Genocide Watch. The 1971 Bangladesh Genocide. Coordinator of the International Alliance to End Genocide.  See: http://www.genocidewatch.org/bangladesh.html

[ix] Ibid. Genocide Watch.

[x] Jalil, Abdul.  War Crimes Tribunals in Bangladesh: A Socio-Political and Legal Impact Analysis ICSR. See:

http://dx.doi.org/10.5296/jsr.v3i2.2484

[xi] Ibid. Genocide Watch.

[xii] Email correspondent with Professor Sanoj Rajan

[xiii]  Keck, Zachary. The Death Penalty: Fading Into the Past? The Diplomat. See: http://thediplomat.com/the-editor/2013/04/12/the-death-penality-fading-into-the-past/

[xiv] Government of Bangladesh. International Crimes (Tribunals) Act 1973, . See: http://bdlaws.minlaw.gov.bd/pdf/435___.pdf

[xv] International Covenant on Civil and Political Rights. University of Minnesota. See: http://www1.umn.edu/humanrts/instree/b3ccpr.htm

 

 

Enforcing ICL: The Iran Tribunal and the Rios Montt Trial

WRITTEN BY: REGINA PAULOSE

“Silence is the most powerful scream” – Anonymous

There are many incidents that have violated International Criminal Law (ICL) that have taken place in global history but have never been presented to a “legitimate” tribunal for consideration.  Thankfully, this has not stopped victims from finding a way to address the wrongs that have been committed against them. After WWII, the Nuremburg Tribunals showcased that perpetrators of horrible crimes would face punishment by the international community (or at least by the victors of war). Unfortunately, as history continued to unfold, it became clear that whenever an atrocity occurred it did not necessarily mean that every perpetrator would be held accountable for violations of ICL.

Circa 1966, Playwright Bertrand Russell and Philosopher Jean Paul Sartre created the “Russell Tribunal” which investigated crimes alleged to have been committed by the U.S. during the Vietnam War.[1] As Jean Paul Sartre eloquently described,

“[t]he Russell Tribunal was born of this doubly contradictory conclusion: the judgment of Nuremberg had necessitated the existence of an institution to inquire into war crimes and, if necessary, to sit in judgment; today neither governments nor the masses are capable of forming one. We are perfectly aware that we have not been given a mandate by anyone; but we took the initiative to meet, and we also know that nobody could have given us a mandate. It is true that our Tribunal is not an institution. But, it is not a substitute for any institution already in existence: it is, on the contrary, formed out of a void and for a real need.”[2]

These activists envisioned that one day the world would have a permanent court to address war crimes, crimes against humanity, and genocide. Philosophically, the ad-hoc tribunals and the ICC are the ideals that Sartre envisioned in his inaugural address. In reality, “selective justice” has continued to cripple the international rule of law. However, as the Iran Tribunal and the Rios Montt Trial prove, citizens are moving together to force open the doors of justice to accommodate them so that they can determine their own truths for the atrocities they have witnessed.

Iran Tribunal

Inspired by the Russell Tribunal, survivors, families of deceased victims, activists, and scholars, created an “Iran Tribunal” to address the atrocities that were committed in the 1980’s by the ruling regime in Iran.[3]  The Tribunal specifically focused on the atrocities committed from 1981-1988. Ayatollah Khomeini appointed a provisional government in 1979. This provisional government began to arrest previous regime members and members of political organizations who spoke out against the Islamic regime. It is estimated from these actions, that approximately 15,000 people were arrested, tortured, and summarily executed.

The Tribunal heard and documented detailed evidence that showed the regime’s use of forced disappearances, various kinds of torture, massive rapes, and other forms of cruel and inhumane treatment of prisoners. Witnesses who came before the Tribunal also gave names of hundreds of victims who were executed without any due process. They described how these prisoners were held for as little as three days and executed by a firing squad or by hanging.

In addition there was testimony regarding various massacres that took place. The Jahrom Massacre was described as follows:

“After Mahmoud Vatanparast, the Governor of Fars Province, refused to rig the province’s parliamentary election results in 1980 in favour of Mohammed Behsarati, a losing candidate, the shari’ah leader of Jahrom ordered the murder of Vatanparast’s entire family from the pulpit of the mosque. Several family members where then summarily executed, including by crucifixion, defenestration, skinning alive, being cut into pieces with shears, and being dragged along the asphalt behind a moving van. Children as young as nine were arrested; others were incarcerated and then killed under torture or in the massacres of 1988. After inhabitants of Jahrom smelt a foul odour coming out of a canal, seventeen dead children were shortly found in the water.”[4]

During the Rasht Prison Fire, several inmates burned to death as guards would not open their cells to allow them to escape the flames. There were massacres in Kurdistan, where hundreds of Kurds were killed in an airport and children were executed in front of their schools.  The regime also used “pardon commissions” but it was commonly referred to as “death commissions.” Prisoners would be brought before the commission and questioned as to their religious/political beliefs. If the commission did not approve of their answer, the prisoners would be taken out and executed.

In its Findings, the Tribunal documented the perpetrators involved and the various locations where these crimes took place. In the Final Judgment  the Tribunal held that the “evidence tendered in these hearings supports a finding that crimes were committed by agents of the Islamic Republic of Iran, beginning with the Supreme Leader, and ending with the executions in the prisons and these constitute a breach of international law.”[5] It concluded that the Islamic Republic of Iran committed crimes against humanity during the 1980-1989 period.

Rios Montt Trial

The Iran Tribunal is not an isolated incident of victims demanding justice for the heinous acts of its leaders. In Guatemala, the road to bring Rios Montt to trial for his actions in 1982-1983 for genocide and crimes against humanity was a long one.

“Guatemalan victims’ organizations filed a war crimes case against the general in 2001, but it got stuck in the country’s legal system. Years later, under the principle of universal jurisdiction, the Spanish Constitutional Court accepted a case that had been brought by Nobel laureate Rigoberta Menchú charging Ríos Montt and seven other commanders with genocide, terrorism and torture. A tenacious lawyer named Almudena Bernabeu began the investigation. In 2006 a Spanish court issued arrest orders for the general and others, but the Guatemalan government denied extradition. When Ríos Montt was later elected to Congress, he gained immunity from prosecution. Then another extraordinarily brave woman stepped in. After Claudia Paz y Paz became Guatemala’s attorney general in 2010, she filed a case against Ríos Montt (after his term ran out) and two other military commanders on charges of genocide, torture and terrorism.”[6]

Although it has been many years since these events took place, the victims stopped at nothing to bring these perpetrators to justice. The Rios Montt trial is the first time a national court has prosecuted its own head of state for the crime of genocide.[7] The case is still on going as the latest information indicates that the case is moving on to the Sentencing Tribunal.[8]

International Humanitarian Law (IHL) makes it clear that it is prohibited to kill anyone who is not taking part in international armed conflict or internal armed conflict. Even if it is unclear if the situation is an armed conflict, human rights law forbids extrajudicial killing.[9] When violations such as these take place under IHL, the most common method in enforcing these laws is prosecuting individuals through war crimes tribunals.[10]

Whether or not a particular war crimes tribunal exists, has appropriate jurisdiction, or chooses to take action, states have a continued responsibility. “States are also bound to prosecute in their own courts any person suspected of having committed a grave breach of the Conventions, or to hand that person over for judgment to another state. In other words, perpetrators of grave breaches, i.e. war criminals, must be prosecuted at all times and in all places, and states are responsible for ensuring that this is done.”[11] IHL goes deeper in that “it requires States to seek out and punish any person who has committed a grave breach, irrespective of his nationality or the place where the offence was committed. This principle of universal jurisdiction is essential to guarantee that grave breaches are effectively repressed.”[12]

So how does one reconcile that only some events in history are prosecuted and others neglected – especially when international law promotes universal jurisdiction? ICL cannot be taken seriously if it is selectively enforced. The problem is not a lack of laws to regulate unlawful conduct; it’s the lack of political will to take action.  The Iran Tribunal and the Rios Montt trial are symbolic indications of a growing movement. It is a movement opposing sweeping atrocities under the historical rug and creating accountability even when the political will to hold perpetrators accountable may not exist.


[1] The U.S. did not acknowledge the legitimacy of this Tribunal. Since this Tribunal other “Russell Tribunals” have been created which acknowledge different events. The latest Tribunal created has been on Palestine. http://www.russelltribunalonpalestine.com/en/

[2] Jean Paul Sartre, “Inaugural Statement” Selections from the Russell Tribunal, http://www.vietnamese-american.org/contents.html

[3] The facts that I use here are taken from the Iran Tribunal, Findings of the Truth Commission, July 30, 2012, available at: http://www.irantribunal.com/Eng/PDF/Commission%20Report-p.pdf

[4] Findings, 2.3 -2.3.1.4

[5] Final Judgment in the Iran Tribunal Published, (February 7, 2013) available the Tribunal website and a press release summary can be found at: http://www.irantribunal.com/Eng/PDF/Press%20release-judgment.pdf.

[6] Laura Carlsen, Genocide on Trial in Guatemala, The Nation, available at: http://www.thenation.com/article/166526/genocide-trial-guatemala#

[7] Amy Ross, “Wading Uncharted Waters: The Trial of Ross Montt” ALJAZEERA, February 4, 2013, available at: http://www.aljazeera.com/indepth/opinion/2013/02/20132364350499257.html

[8] Kate Doyle, “Rios Montt on Trial for Genocide in Guatemala” February 7, 2013, available at: http://www.cipamericas.org/archives/8920

[9] The most authoritative source on IHL issues is the ICRC. The ICRC also maintains a database with all the treaties and relevant IHL texts which can be found at: www.icrc.org

[10] American Red Cross, Prosecutions of Violations of IHL, (April 2011), available at: http://www.redcross.org/images/MEDIA_CustomProductCatalog/m4640075_IHL_ProsecutionofViolations.pdf

[11] ICRC, “How are War Criminals Prosecuted under International Law?”  (January 1, 2004) available at: http://www.icrc.org/eng/resources/documents/misc/5kzmnu.htm

[12] Id

The Issue of Consent in Rape Prosecution: International Tribunals and Indian Courts

Written by Garima Tiwari

(  http://www.tumblr.com/tagged/ptsd)

While India struggles to make amendments to the existing rape laws a brief look into how the International Criminal Court (ICC) and International Tribunals have dealt with rape would be interesting. A look at the Indian position in the same context would help understand how the process differs particularly with reference to the issue of ‘consent’.

Nicolas  Poussin’s  famous  painting the “Rape of the Sabine Women” depicts women  walking  away  arm-in-arm  with  their  rapists,  suggesting “that  the  abducted  women  soon  accepted  their   assailants  as husbands.” It is  not surprising  then,  that rape  and  other  forms  of sexual violence  emanating  from  war  have  historically  been undocumented  and unpunished crimes.  Rape has been viewed as a reward or “spoil of war.”‘[i]

The first international treaty implicitly outlawing sexual violence, the Hague Convention of 1907, did not end impunity for these crimes: after World War II, for instance, the International Military Tribunal at Nuremberg did not expressly prosecute sexual violence, and the Tokyo Tribunal ignored the Japanese army’s enslavement of “comfort women”. In 1949, the landmark Geneva Conventions stated: “Women shall be especially protected … against rape, enforced prostitution, or any form of indecent assault.” [ii] It was the two  ad hoc International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), which, for the first time, dealt comprehensively with the crime of rape.

Position taken by ICTR

The Akayesu case[iii]  recognised that rape is an extremely grave crime as it can constitute genocide and a crime against humanity, providing that all the other elements for each of these crimes are met. Here the ICTR adopted a very broad definition of the crime of rape, which is defined as ‘a physical invasion of a sexual nature, committed on a person under circumstances which are coercive’. It also dealt with sexual violence, a broader category which includes the more specific crime of rape, whose identifying elements are recognised as ‘any act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to a physical invasion of the human body and may include acts which do not involve penetration or even physical contact’.[iv] Thus, in  Akayesu coercion was identified as the criteria for rape consent was irrelevant. The Semanza trial chamber[v] held that “the mental element for rape as a crime against humanity is the intention to effect the prohibited sexual penetration with the knowledge that it occurs without the consent of the victim.” In effect, rape went from being a physical act committed on the body of a victim to a psychic act committed in the mind of the perpetrator and the issue of lack of  consent became relevant. Kajelijeli[vi], followed Semanza and focused on non-consent and description of body parts when determining whether Mr. Kajelijeli should be held responsible for rapes committed by forces under his command. He was found innocent of rape and was not found guilty of genocide for the rapes his men committed. In the Muhimana case[vii] ICTR stated that, “coercion is an element that may obviate the relevance of consent as an evidentiary factor in the crime of rape.” In other words, the court ruled that most international crimes will be almost universally coercive—making true consent virtually impossible and therefore irrelevant for international prosecution.

The judgment and sentence in Prosecutor v. Karemera et al.[viii], issued recently by Trial Chamber III of ICTR secured the first international judgment to ever hold high-level government officials responsible for rape in such circumstances unlike as we will see what happened in Lubanga.[ix]

Proving rape in genocide (or other violent conflicts) using the Akayesu criteria would be relatively straightforward. Once the context of the violent conflict has been established, rape occurring within that context is assumed to be non-consensual. On the other hand, many rapes that would be provable under Akayesu would be difficult or impossible to prove under the Semanza definition. This would not only insult the victims but severely damage the credibility of the international tribunals for handling rape cases.[x]

Position taken by ICTY

The Delaliæ et al case aka Èelebiæi case[xi] case confirmed the approach that characterises the ICTR jurisprudence on the matter. In fact, the judges adopted the same ‘conceptual’ broad definition found in the Akayesu judgment. However, the ICTY in the Furundžija judgment[xii], adopted a more technical and specific definition. It qualified rape as an outrage upon personal dignity as provided for in Article 3 of the ICTY Statute (war crimes) and torture.The Furundžija definition (para. 185) represents the result of a peculiar approach followed by the ICTY, which involved looking at national jurisdictions to extrapolate what—due to the international lacuna on the matter—should represent a common perception of the elements of the crime. The outcome of this exercise was the following definition of rape, which is divided into two parts:(i) the sexual penetration, however slight:  (a) of the vagina or anus of the victim by the penis of the perpetrator or any other  object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; (ii) by coercion or force or threat of force against the victim or a third person. Thus, here coercion and lack of consent both were needed. This amounted to reintroducing the relevance of consent for rape prosecution. In the  Kunarac et al case [xiii]it was held that rapes that occurred in a brothel-like setting in Foca were a form of enslavement. The court drew on the Furundzija decision and concluded that “sexual penetration will constitute rape if it is not truly voluntary or consensual on the part of the victim.” It put forward a definition whose elements could be generally recognised as essential by the most representative countries in the world. Therefore, once again, an in-depth research of national jurisdictions was carried out and the conclusion is a step beyond the Furundžija definition. Sexual acts are forbidden when perpetrated against the free will of a person, and the ‘use of force-threat’ element is reduced from the status of an element of the crime to a being evidence of the lack of consent of the victim to the sexual intercourse. The judges confirmed rape as a war crime and crime against humanity. Moreover, the act of rape was considered as one of the underlying acts for the crime of enslavement. Instead, in defining the elements of rape, the Foca Trial Chamber included a consent paradigm, permitting defendants to use consent to sex as a defense, which had been considered and excluded from previous Chambers. While the ICTY’s definition of consent laudably incorporates the notion of sexual autonomy, and is a liberal standard relative to consent requirements globally, the consent paradigm is inappropriate in conflict situations where rape is used as a weapon of war.

The Kvocka et al case [xiv]  reintroduced the requirement of the use of force as an element of the crime, together with the lack of consent. The Kunarac et al Appeal Judgement[xv] confirmed the previous definition given by Trial Chamber II in the same case. The Appeals Judges confirmed that the lack of consent is conditio sine qua non of the definition of rape and that the requirement of the use of force is not an essential element but rather a symptom of lack of genuine consent (para. 129).[xvi] The Appeals Chamber leaned toward the need to “presume non-consent” in contexts like genocide. In situations like Foca where women were held in rape camps, “such detentions amount to circumstances that were so coercive as to negate any possibility of consent.”

As Catherine MacKinnon notes : No other crime against humanity, once other standards are met, requires that the crime be proved to be non-consensual. In fact, using victim’s consent as a defense would be bizarre. Consider a trial for murder within a genocide. How plausible would it be if a defendant claimed that, even though the act of killing took place within a setting of genocide, the victim had really wanted to be killed, so the perpetrator simply obliged? The reason that consent is not relevant for prosecuting rape in international crimes is that the crime takes place within a context where what we normally think of as sexual autonomy (at least for women) does not exist. Given the context of radical force, there is no true choice and so no consent in international crimes.[xvii]  Thus, ICTY and ICTR are both trying to presume non-consent in coercive situations which I think is very positive.

Position taken by ICC

The Statute of the International Criminal Court proves that the achievements of the ICTR and ICTY with regard to the prosecution of the crime of rape have been generally accepted by the international community. Article 7(g) of the ICC Statute specifically prohibits rape and, in addition, includes ‘sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity’ within the notion of crimes against humanity. Moreover, paragraph (h) of Article 7 confirms persecution as a crime against humanity and includes gender as a new discriminatory ground. At paragraph 3 of the same Article it is further specified that the term gender is general in nature, thus referring to both sexes. Rape is also listed in Article 8 (b) (xxii)-1 as a war crime.     In the Elements of Crime annexed to the ICC Statute, the crime of rape requires the penetration of the anal or genital opening of the victim with an object or otherwise the penetration of any part of the body with a sexual organ, thus recalling the analogous first part of the Furundžija definition. Similarly, a reference to coercive situations capable to vitiate the genuine consent of the victim of rape is provided for in Article 7 (1) (g)-1 of the Elements.Thus, both coercion and consent have been discussed.

But the first judgment delivered by the ICC failed to give any help in this regard. In the Lubanga case, despite evidence pointing to wide spread rape and other forms of sexual violence against in particular girl child soldiers, the Prosecutor did not include crimes of sexual violence in the charges. The charges were brought under Article 8, war crimes, and as such could have included charges of torture, rape, sexual slavery or outrages upon personal dignity. The Trial Chamber noted that they chose not to amend the charges. The Prosecutor could have amended the indictment at any time prior to trial or even at a reasonable moment during the presentation of the prosecution case.

Judge Odio Benito, in her dissent, differed from the majority’ decision not to use the evidence of sexual violence as a means to define the legal elements of enlistment, conscription of children or use of children in hostilities as innate to their status as child soldiers. Judge Odio Benito’s reasoning related to the interpretation of the war crime charges at hand and, thus, was not conditioned upon the submission of further amended charges. Evidence or information certainly did come out during the trial concerning the widespread nature of the sexual violence that occurred when these children were conscripted and enlisted. To that extent the case highlights the sexual violence even though it has not been charged.[xviii] Various groups suggested later on that a failure to add more serious charges would run the risk of offending the victims and strengthen the growing feeling of mistrust of the work of the ICC and of the work of the prosecutor especially. [xix]

Rape Law in India

India’s current definition of rape is steeped in outmoded traditions, dates from 1860, and  has been amended only twice since then, in 1983 and 2003. In India,it is defined as intentional and unlawful sexual intercourse with a woman without her consent. According to section 375 of the Indian Penal Code, an allegation of rape has to satisfy the either of the following criteria: sexual intercourse between a man with a woman in the following circumstances: (a) against the will of the woman; (b) without her consent; (c) under duress; (d) consent obtained by fraud; (e) consent obtained by reason of unsoundness of mind or intoxication. If the woman is below the age of 16 years, sexual intercourse is deemed to amount to rape.  Even if the woman has consented, it would be considered rape under the law. There is however, an exception to this definition of rape.  Un-consented sexual intercourse between a man and his wife would not amount to rape if the wife is 16 years or older. According to section 376 of the Indian Penal Code, the minimum sentence for a convicted rapist is seven to 10 years, while the maximum sentence is life imprisonment. Gang rape carries a punishment of 10 years to life imprisonment. However, in certain situations a convicted rapist can get away with serving less time since the law allows the judge discretion to award a lesser punishment in special cases such as an aged person or a person of unsound mind. Under section 354 of the Indian Penal Code, sexual assault is described as “outraging the modesty of a woman” – a description considered archaic, subjective and limited by legal experts. Currently sexual assault crimes carry a maximum punishment of two years. [xx]

Thus, issue of consent and coercive situations both have been incorporated in the Indian law, but the application of law is not in tandem with the requirements of justice as what is consent is linked with various social, cultural and moral annotations along with the character and sexual history of the prosecuterix. In 2011, only 26% of rape trials ended in conviction. In Delhi for instance, there’s only been one conviction out of 635 cases of rape reported in 2011.[xxi] This is also because, various social elements like the stigma attached to pre-marital sex, stereotyping as well as virginity play in the mind. This presumption of consent was embodied in Section 155 (4) of the Indian Evidence Act, which allowed defendants to offer evidence about a victim’s character and sexual history and remained there till altered as recently as 2002.  Changing law does not change much, since various practises and notions surrounding rape still stem on the character of the victim, like use of the “two-finger test” being a sufficient testament of the history of sexual intercourse of the victim. Indian law is still based on the colonial times and ironically while Britain changed its rape law with time, we are still caught in the web of antiquity. Another important aspect is the mindset. According to a survey by Sakshi, an NGO active in gender issues, 74% of judges surveyed a decade ago believed that “preservation of the family” should be a principal concern for women even in the event of violence in the home. And 51% believed that women who stay with abusive husbands are “partly to blame” for their plight. Some 68% felt that “provocative attire was an invitation to rape” and 55% felt that the “moral character of the victim” was relevant.

In the Mathura Rape case [xxii] the Supreme Court acquitted the two policemen who raped a sixteen year old girl on the grounds that the victim had no visible marks of injury and that she did not raise an alarm. Here consent has been implied from no resistance. In Mohd. Habib v. State [xxiii] the Delhi High Court acquitted a man who raped a seven year old girl, asserting that there were no marks of injury on his penis. The Court refused to take cognizance of the bite marks on the victim’s person and the fact that she suffered a ruptured hymen on account of the sexual assault. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment.  In State of Punjab vs. Gurmit Singh[xxiv] , the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character. The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar [xxv] , held that “the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard.” Thus, character, and prior sexual history does not imply consent. In some cases the Supreme Court has also observed that sex with the consent of the girl on a promise to marry her will not constitute rape unless it was shown that such consent was obtained by the man under coercion or threat.[xxvi]

The Mathura case is relevant because a minor change in the law did take place in 1983, focussing on custodial rape in which it would no longer be necessary to prove lack of consent. This is similar to the situation of coercion as used in the International tribunals for the situation is such, wherein the victim is unable to retaliate, consent would not be needed. This has been provided under Section 114A of the Indian Evidence Act 1872 as presumption of no consent.

Justice Verma Committee, formed as a response to the Delhi Gangrape incident, recommends inclusion of marital rape thereby highlighting marriage does not given unequivoval right over the body of the other, and consent remains relevant. The Criminal Law (Amendment) Bill, 2012, widens the ambit by replacing the word rape with sexual assault .While earlier, the definition of rape under the Indian Penal Code was sexual intercourse with a woman without her consent, courts have confined it to penile penetration of the vagina. The new amendment though brings under the ambit of this offence penetration of “vagina, anus, urethra or mouth with any part of the body including the penis, or any other object for a sexual purpose”. The definitions are also making the law gender neutral. Thus, consent in all such cases would be looked into.

Conclusion

As seen above, both in Indian law and international law, two criteria are used to identify rape: Coercion and non-consent.[xxvii] Indian law includes both in some way yet, consent is sometimes judged with eyes of stereotyping. Some countries, may adopt either of the two. The trend of ICTR and ICTY more towards looking at the situation as coercive, because of the nature of events and placing consent irrelevant in such circumstances of war and conflict.

There are several ways that the international crime of rape may be different from some national definitions of rape. There are a important legal and procedural protections offered to rape victims by most international courts which are mostly absent from national courtrooms, such as permitting in camera testimony and not permitting attacks on the victim’s credibility through probing their sexual relationships. The tribunals have also taken positive steps to ensure victims of sexual violence can testify without retribution or fear for their safety. Through the development of its rules of procedure, the ICTY has sought to protect the victims of sexual violence from abusive lines of questioning during testimony. Witnesses can also testify under a pseudonym, with face and voice distortion in video feeds, or in closed session. Thus, the procedural  rules  in  the ICTY  and ICTR,  and  ICC,  allow  for  judicial  discretion  in  granting  witness anonymity. Again, in wartime rape  crimes,  identity  does  not become  a  crucial factor,  as  it  does  in  regular  domestic  rape  cases. Furthermore, as is clear from above discussion, international criminal law does not revolve around the issue of consent to the same extent as it does in many national settings.

Even though a lot can be learnt from the various procedural and legal protections offered by international tribunals, the issue of consent has to be studied differently in different national systems whose national, religious, cultural and political ideologies infuse the laws.


[i] Patricia H.  Davis, Comment, The  Politics of Prosecuting Rape as a  War Crime, 34INT’LLAW 1223,1226  (2000)

[iii] Case No. ICTR-96-4-T, 2 September 1998

[iv] Akayesu, para. 688,Musema, case No. ICTR-96-13, at para. 965

[v] Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment and Sentence (May 15, 2003)

[vi] The Prosecutor v. Juvénal Kajelijeli (Judgment and Sentence), ICTR-98-44A-T, International Criminal Tribunal for Rwanda (ICTR), 1 December 2003, available at: http://www.unhcr.org/refworld/docid/404466007.html %5Baccessed 30 January 2013]

[vii] The Prosecutor v. Mika Muhimana, Case N° ICTR-95-1B-T

[viii] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T (issued on 2nd February 2012)

[x] MacKinnon, Catherine A. 2006. “Defining Rape Internationally: A Comment on Akayesu.” Pp. 237-246 in Are Women Human? Catherine MacKinnon. Cambridge, MA: The Belknap Press of Harvard University Press.

[xi] Case No. IT-96-21-T, 1998

[xii] Case No. IT-95-17/1-T, 10 December 1998

[xiii] Case No. IT-96-23 and IT-96-23/1, 22 February 2001)

[xiv] Case No. IT-98-30/1, 2 November 2001; ( paras. 177-178).

[xv] Case No. IT-96-23 & IT-96-23/1 A, 12 June 2002 paras. 125-133),

[xix] “Obtaining further charges in the opening case against Thomas Lubanga”, Statement by women’s rights and human rights NGOs of the DRC on the prosecutions by the ICC, Beni, September 16, 2006

[xxii] 1978) CrLJ 1864 SC

[xxiii] (1989) CrLJ 137 Delhi

[xxiv] (1996) 2 SCC 384

[xxv]  AIR 1991 SC 207

[xxvii] Supra Note 10