Child Soldiers in Syria

Written by Garima Tiwari

“If the men are gone, our children are present.”[i]

Syria

After the death of his mother and his father’s disappearance 5 years ago, Shaaban Abdullah Hamid, aged 12 years, spent several years in the streets or doing casual jobs at a plastic factory. An uncle of Shaaban presented the boy with a handgun and offering him a job as a soldier for the Islamist group Afhad al-Rasul. The training lasted one month, after which the boy spent the following two months sniping at people walking or driving on an Aleppo bridge. Killing a civilian brought him $2.5, and killing a government soldier, $5. Working an 8-hour shift, he killed a total of 13 civilians and 10 soldiers. His firing position stayed warm round the clock, because two other boys worked the remaining two shifts. Shaaban also executed delinquent or offending rebels several times, doing so on orders from his uncle. In the end, his father got word of him and took him to a Red Crescent refugee camp in Hama. From there, both moved to Tartus to take up farming jobs. Asked about any emotions in connection with his sniping, he said he had none. [ii]  Continue reading

Smuggling of Migrants: A Search for New Land, New Home, New Life.

Written by Garima Tiwari
In this picture, victims of human smuggling are intercepted along the Southern border of the United States of America. Photo credit/Wordpress

In this picture, victims of human smuggling are intercepted along the Southern border of the United States of America. Photo credit/Wordpress

On May 16th, 2013 Ecuador smashed a ring that smuggled immigrants from India and Sri Lanka into the US through Ecuador. Among the six people were arrested including three Indian nationals and two members of Ecuador’s immigration police. They brought in nationals from India and Sri Lanka, and arranged refuge for them in various hotels. The smugglers charged USD 5000 per person and after entering Ecuador illegally, the migrants would be sent to Central America and from there to the United States.[i]   Continue reading

Children as Victims of Trafficking in India

Written by Garima Tiwari

sctnow india-child-labour_1570360i

( http://www.glogster.com and http://www.gandhiforchildren.org)

The recent case of an Indian new-born baby allegedly sold for 800,000 rupees ($ 14,750) over Facebook, opened up many questions on the prevalence and working of child trafficking racket in the country. The boy, born in a hospital in Ludhiana in the northern state of Punjab, was sold twice before the deal on the social networking site. The infant’s grandfather allegedly first snatched the child from his own daughter, telling her he had been stillborn, to sell him to a nurse for 45,000 rupees. The nurse, in turn, reportedly sold the baby for 300,000 rupees to a hospital lab assistant. The infant was then allegedly put up for sale on Facebook by the lab assistant, and a businessman from New Delhi is accused of offering 800,000 rupees for him after seeing photographs. The police raided the businessman’s house and recovered the child. They also arrested five people including the grandfather and another man accused of facilitating the deals. Tens of thousands of children in India are thought to be trafficked every year, some for adoption but also many for bonded labour, begging or sexual exploitation.[i] That is hardly the experience of most parents. Since 2007, when the exposure of a serial killer in Nithari, on the outskirts of New Delhi, revealed that local police had ignored parents’ pleas that their children had disappeared, evidence has piled up showing that officials continue to disregard complaints of missing children.[ii]

Many, many such incidents are repeatedly reported with multitude of reasons for trafficking and sad implications. Take for example, Smita a sixteen year old girl was taken from her village in Jharkhand, India and subjected to various forms of sexual abuse and exploitation at the hand of her employers including rape. When rescued her parents refused to take her back since she had been tainted by rape. Falling sex ratios in Haryana and Punjab has led to a need for trafficking of brides from villages in Orissa, Jharkhand, Bihar, Assam and West Bengal, who have been sold off by the parents. Jyoti, age fourteen, was sold and married to a 40-year old man for Rs 15,000 in order to produce a mail heir[iii]

This post highlights the need for urgent action by the authorities to fight child trafficking in India. A huge number of children from a place called Tarai in Nepal are trafficked to India everyday and they fall victims to child labor. Approximately 90,000 children went missing in India in 2011 alone. Nearly half of these cases remain unsolved. Thus, while there is movement of children through procurement and sale from one country to another, with India being both a supplier as well as a “consumer”, there is internal “movement” of children within the country itself – one town to another, one district to another and one state to another. It is undertaken in an organised manner, by organised syndicates or by individuals, and sometimes informal groups. Relatives and parents are part of this as well.[iv] Children as young as 5 years are sold to traffickers by their parents who are in need of money and brought to India.  These children are trafficked to various parts of India like Delhi, Mumbai and Kolkata and are made to work in cloth factories, have to stitch bags and perform various hazardous and odd jobs. [v] In 2012 about 250 Nepali children were rescued from the India-Nepal border. There are number of unregistered orphanages in Nepal which are trafficking children to different parts of the world and Indian human rights activists speculate that there are thousands of Nepali children who work in India. In March 2013, 38 tribal children, including 32 minors were rescued who were being taken by train for bonded labor. [vi]Their parents were given an advance amount of Rs 1,000 for a bonded labour of 40 days for the children, to work at the under construction site of railway tracks in Nagpur in India. The agents involved in trafficking usually give these minor girls the look of a married woman so that they are not easily caught. The boys were to be paid a daily wage of Rs 160 and girls Rs 150.

The chart below shows some of the methods of trafficking:

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Chart taken from the Manual For Social Workers : Dealing with child victims of trafficking and commercial sex exploitation[vii]

The Indian Constitution under Article 23 specifically prohibits human trafficking, asserting that all citizens have the right to be protected from exploitation. Article 36 of the Convention on the Rights of the Child provides for protection of children from exploitation and physical and psychological recovery and article 39 of the CRC provides for the social reintegration of child victims of exploitation. In India, various laws like Juvenile Justice (Care and Protection) Act of 2000 (JJA), Immoral Traffic (Prevention) Act of 1956 (ITPA) amended in 1986, and the like, are providing support, care, and protection to these children in various State Homes across the country.

In June 2011, India ratified the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which supplemented the 2000 UN Convention Against Transnational Organised Crime. India’s response to the problem of trafficking has been considerably influenced by its Trafficking in Person (TIP )Report rankings. The definition of trafficking under the UN TIP Protocol is the “recruitment, transportation, transfer, harbouring or receipt of persons” by using “force[,] . . . coercion, abduction, fraud, [and] deception” to control and exploit another person, including, but not limited to, sex exploitation.Between 2001 and 2003, India figured in Tier Two of the TIP Report before being demoted to the Tier Two Watch List. It was only in May 2011 when India ratified the UN Protocol that it made its way once again into the Tier Two List. India’s response to the trafficking problem in terms of abolishing trafficking isn’t unique in the sub-continent. Indeed, the 2002 SAARC Convention on Preventing and Combating Trafficking in Women and Children defines trafficking as sex trafficking following a 1949 UN Convention, rather than the 2000 UN Protocol.[viii]

While India has ratified the UN Convention for the Suppression of the Trafficking in Persons, without reservation, and enacted ITPA in response showing its intention to fight trafficking, Section 7 of the said act which penalizes those who prostitute in or near public places, and Section 8, which penalizes the solicitation of sex, both of which have in practice justified the police’s arrest and imprisonment of trafficked women who have been forced into prostitution and who have no knowledge or control over the brothel’s proximity to public places. Amending the law to exclude Sections 7 and 8 would decriminalize the activities of trafficking victims who are forced to solicit for sex. In 2006, a bill to amend the ITPA was proposed by India’s Ministry of Women and Child Development, which would decriminalize prostitution and instead would penalize prostitutes’ clients. The law currently contains provisions that penalize brothel owners, managers, and traffickers. The Ministry of Home Affairs also set up specialized police units in major Indian cities in 2011 with the sole task of investigating sex trafficking cases and arresting traffickers and brothel owners and managers. These police officers were specially trained and sensitized to understand how trafficking rings operate. However, the police lack the resources to investigate and make arrests on every trafficking case. [ix] Even after arrest the judicial process is so slow that while one is being put under trial, the whole trafficking ring keeps flourishing.

The recent Criminal Law Amendment Act, 2013 recognises trafficking as an offence in the Section 370 of the Indian Penal Code . This is on the similar lines as the Palermo Protocol, also ratified by India in May 2011, following a Supreme Court judgement defining trafficking in a public interest litigation (PIL) field by Bachpan Bachao Andolan in 2011. The bill targets the entire process that leads to trafficking of a person and also makes the employment of a trafficked person and subsequent sexual exploitation a specific offence under Section 370 A.[x] While the old section 370 of Indian Penal Code dealt with only buying or disposing of any person as a slave the new section will take in its purview buying or disposing of any person for various kinds of exploitation including slavery. This provision includes organ trade as well. As the explanation further clarifies “exploitation” would also include prostitution. This is in addition to the ITP Act, 1956. The new section also ensures that persons involved at each and every stage of trafficking chain are brought within the criminal justice system.Also by specifically including that if a person is brought with his/her consent, where such consent is obtained through force, coercion, fraud, deception or under abuse of power, the same will amount to trafficking, the law has been substantially strengthened. This will cover all situations where girls who happen to be major are duped with promises of marriage and willingly accompany the traffickers who exploit them in various ways. While earlier no specific offence was made out for the mere bringing of the girl in question now that too is criminalized.  It has also been specifically added in the provision that consent of the victim is immaterial for the determination of the offence.The new section also differentiates the instances of trafficking major persons from minor persons. This differentiation is brought about by providing separate penalty for each with higher minimum sentence for trafficking minor persons.In addition the section also provides for enhanced punishment for repeated offender as well as where the offender traffics more than one person at the same time. By providing that trafficking in minor persons on a repeated conviction will attract imprisonment for life (meaning the remaining natural life) the law has been substantially changed.[xi] This will surely act as a big deterrent. Involvement of a public servant including a police officer shall entitle him to life imprisonment which shall mean the remaining natural life.[xii] Addition of the section 370 A further adds strength to trafficking related law by criminalizing employment of a trafficked (major/minor) person. A person who has even reason to believe or apprehension that the minor/major person employed by them has been trafficked will make them criminally liable. This places a huge responsibility on the employers who were till now, let off easily under the not so strict provisions of the child labour laws and juvenile related laws.  Here also a higher minimum prison term is prescribed where a minor person is involved. Also important is the fact that irrespective of age of the person employed, simply employing a trafficked person is an offence. This provision will go a long way in ensuring that people verify the antecedents of the placement agencies as also get the police verification of the persons employed. This will also aide in curbing the huge demand for labour who are victims of unsafe migration.[xiii]

The enactment of the law on paper with no real training and support to the functionaries would be futile and therefore, what is needed now is “actual”, “planned” and “effective” implementation. Involving the community participation in the whole implementation process would create a greater impact. The procedures and technicalities should not reduce the ambitious legislations to empty words, because at stake here are the children- the future of the nation.

(For those who want to get a deeper understand of the brutality of the child trafficking rackets I recommend the movie recently screened at the Cannes Film Festival on May 22 titled: “Oass- The Dew Drop”, which is inspired by a real-life story of abduction of an 11-year-old Nepalese girl who is sold to a brothel in Delhi by her aunt. (http://www.youtube.com/user/OassTheFilm))


[i] Police Rescue Indian baby allegedly sold on facebook, April 24, 2013 available at http://www.thehindubusinessline.com/news/police-rescue-indian-baby-allegedly-sold-on-facebook/article4650168.ece

[ii] Jason Overdorf, Indian Chilld Trafficking on the Rise, May 5, 2013 available at http://www.salon.com/2013/05/05/child_trafficking_in_india_on_the_rise_partner/

[iv] Child Trafficking in India available at http://www.haqcrc.org/publications/child-trafficking-india

[v] Darker Side of India: Child Trafficking on the Rise,27th March 2013, available at  http://www.siliconindia.com/news/general/Darker-Side-of-India-Child-Trafficking-on-the-Rise-nid-144134-cid-1.html

[vi] Rashmi Drolia,Child Trafficking: 38 Children Rescued from Railway Station, 15th March 2013,available at  http://articles.timesofindia.indiatimes.com/2013-03-15/raipur/37744973_1_railway-station-tribal-children-needy-children

[viii] Prabha Kotiswaran, India has to rethink human trafficking, The Hindu Business Line, march 27th 2012, available at http://www.thehindubusinessline.com/opinion/india-has-to-rethink-human-trafficking/article3251458.ece

[ix] Anusree Garg, Anti Trafficking Legislation Inadequately Combatting Sex Trafficking in India, March 2013, The Human Rights Brief, available at The Human Rights Brief, http://hrbrief.org/2013/03/anti-trafficking-legislation-inadequately-combating-sex-trafficking-in-india/

[x] India Prohibits All forms of Trafficking, March 21st, 2013, Bachpan Bachao Andolan available at http://www.bba.org.in/news/210313.php

[xiii] Ibid

Why India Continues to Stay Out of ICC?

Written by Garima Tiwari

ICC, Author Vincent van Zeijst

 

 

“We can understand the need for the International Criminal Court to step in when confronted by situations such as in former Yugoslavia or Rwanda, where national judicial structures had completely broken down. But the correct response to such exceptional situations is not that all nations must constantly prove the viability of their judicial structures or find these overridden by the ICC.” – Indian delegate said in his official statement delivered at the Diplomatic Conference.[i]

Years after the establishment of International Criminal Court (hereinafter “ICC”) India has no indication of becoming a State Party to the Statute. The establishment of the ICC came out of the need for an independent, permanent criminal court to deal with heinous crimes of international concern. India’s decision to remain out of ICC is not something of an aberrant stand it took. Even when the International Military Tribunal for the Far East was established after the surrender of Japan at the end of Second World War, Dr. Radhabinod Pal, Judge from India gave a Dissenting Judgment .He refused to be bound by the charges brought against the defendants by the Prosecution. Consequently, Justice Pal declared the accused Japanese leaders innocent of all charges. [ii] This dissenting judgment of Justice Radhabinod Pal at the International Military Tribunal for the Far East) is of unique importance in the history of international law as a new interpretation of contemporary (i.e. history of the pre-second World War era) history of international events.[iii] Under the Charters of the Nuremberg and Tokyo Tribunals, radical changes were made in the definitions of international laws. These tribunals made definitions of new offenses and held individuals in power responsible for perpetrating such offenses. Justice Radhabinod Pal from India, however, refused to be carried by such an innovation. Justice R.B. Pal, however, vehemently opposed the changing concepts of international law.  In his judgment, he made a critical and detailed study of the status of international law in the first half of the twentieth century and argued that international law could not be changed by mere ipse dixit (dogmatic pronouncement) of the authors of the Charter in question.[iv]

At the time of the drafting of the Rome Statute, some of the fundamental objections given by Indian delegates in their opposition to the Court relate to the perceived role of the UN Security Council and its referral power. India has therefore, not signed and raitifed the statute. As mentioned by Mr. Lahiri, the principal objections of India to the Rome Statute have been the following:  [v]

  1. Made the ICC subordinate to the UN Security Council, and thus in effect to its permanent members, and their political interference, by providing it the power to refer cases to the ICC and the power to block ICC proceedings.
  2. Provided the extraordinary power to the UN Security Council to bind non-States Parties to the ICC ; this violates a fundamental principle of the Vienna Convention on the Law of Treaties that no state can be forced to accede to a treaty or be bound by the provisions of a treaty it has not accepted.
  3. Blurred the legal distinction between normative customary law and treaty obligations, particularly in respect of the definitions of crimes against humanity and their applicability to internal conflicts, placing countries in a position of being forced to acquiesce through the Rome Statutes to provisions of international treaties they have not yet accepted.
  4. Permitted no reservations or opt-out provisions to enable countries to safeguard their interests if placed in the above situation.
  5. Inappropriately vested wide competence and powers to initiate investigations and trigger jurisdiction of the ICC in the hands of an individual prosecutor.
  6. Refused to designate of the use of nuclear weapons and terrorism among crimes within the purview of the ICC, as proposed by India.[vi]

India has ratified Geneva Conventions and has even enacted Geneva Conventions Act 1960, but in practise, India has decided to overlook Common Article 3 in its special enactments, applicability and Supreme Court rulings. Moreover, it is normally and more extensively argued that at no point has the situation in India met the threshold required for the application of Common Article 3. Thus, India has not accepted the application of Common Article 3 of the Geneva Conventions to the situations prevailing in the country.

There are reports on hundreds of mass graves in Kashmir[vii]. Torture, hostage-taking, and rape have all been prominent abuses in the Kashmir conflict. Both security forces and armed militants have used rape as a weapon: to punish, intimidate, coerce, humiliate and degrade, but no we do not meet the threshold of Common Article 3.There is widespread and frequent fighting throughout Kashmir, recourse by the government to its regular armed forces, the organization of insurgents into armed forces with military commanders responsible for the actions of those forces and capable of adhering to laws of war obligations, the military nature of operations conducted on both sides, and the size of the insurgent forces and of the government’s military forces, which makes Common Article 3 is applicable to the conflict in Kashmir[viii]-but still Indian government argues that it does not meet the threshold for application of Common Article 3. This is because India has viewed the conflicts it has been beset with as domestic affairs, if above the ‘law and order’ level but certainly below that of a non-international armed conflict. As we know the definition of Non international armed conflict not having been attempted in Common Article 3, the threshold of its applicability is pitched high by domestic states. Governments are understandably reluctant because of sovereignty considerations to concede belligerency opportunities for the non-state groups who they accuse of posing an armed challenge to the state. [ix]This reluctance is despite Common Article 3 stating that its application ‘shall not affect the legal status of the Parties to the conflict.’[x]

Another example is, Armed Forces (Special Powers) Act, 1958 [xi]( hereinafter ‘AFSPA’), passed when  the Naga movement in the North eastern States for independence had just taken off. AFSPA has just six sections. The most damning are those in the fourth and sixth sections: the former enables security forces to “fire upon or otherwise use force, even to the causing of death” where laws are being violated. The latter says no criminal prosecution will lie against any person who has taken action under this act. While article 3 prohibits killing of innocent civilians in non-international armed conflict, AFSPA under section 4(a) gives wide ranging powers to the armed forces to use force to the extent of causing death on mere suspicion. This has occasioned the application of AFSPA without resorting to the emergency provisions that would then invite its accountability externally. In last 54 years, not a single army, or paramilitary officer or soldier has been prosecuted for murder, rape, destruction of property (including the burning of villages in the 1960s in Nagaland and Mizoram). [xii]There has been regrouping of villages in both places: villagers were forced to leave their homes at gunpoint, throw their belongings onto the back of a truck and move to a common site where they were herded together with strangers and formed new villages. It is a shameful and horrific history, which India knows little about and has cared even less for. [xiii]  There are extrajudicial executions, made emphatically in the north east region, which Government normally remains silent about. Justice Jeevan Reddy committee recommended the repeal of the AFSPA in 2005 but the findings and recommendations are buried as the government has neither taken a call on them nor made them public.[xiv]

Various reports, academic views as well as conferences, have  time and again highlighted the need for India to actually accept the common article 3 in practice. The Judiciary has failed its duty in this context by overlooking ‘judicial guarantees’ as required by the article. [xv]The situation of conflict that persists in Kashmir and the North-East explains the reasons for the state’s anxiety that this manner of violence could be referred to the ICC. Always arguing that the threshold  has not reached, India continuously evades application of Common Article 3. Some help  could have been taken from Additional Protocol II,where a lower threshold in found under Article 1(2) but India has not ratified the same. Even, the inclusion of ‘armed conflict not of an international character’ in defining ‘war crimes’ in Article 8 of the Statute for an ICC met with resistance from the Indian establishment.

There is a mild fear that if India signs Rome statue it would come under the jurisdiction of ICC under Common Article 3 and crimes against humanity during non-international armed conflict. This may be said to be a major reason for staying out of ICC since Articles 7 and 8 of the Rome Statute include such crimes, and no reservations are permitted, except the opt out provision  under Article 124 of the Statute . As Mr. Lahiri notes, “having become Party to so many human rights conventions, which requires India to submit a variety of periodic reports for UN scrutiny on domestic actions to implement these obligations, it is scarcely appropriate that India should assert impunity for the commission of the most heinous crimes imaginable in the course of combating domestic insurgencies.” [xvi] India also looks for an opt-in provision whereby a state could accept the jurisdiction of the ICC by declaration (possibly for a specified period), and this might be limited to particular conduct or to conduct committed during a particular period of time. The lack of such a provision, and the inherent jurisdiction which replaced it, are perceived as representing a violation of the consent of states, and thus a threat to sovereignty. India’s resistance to accepting the inherent jurisdiction of the ICC is explained, in part, by anxieties about how investigation, prosecution and criminal proceedings in the Indian system may be judged by an international court. Further elements giving rise to India’s misgivings are the fear that the Court might be used with political motives, the power conferred on the Prosecutor to initiate investigations proprio motu and the role allotted to the Security Council.[xvii]

Maybe in the future meetings of the ICC Assembly of Parties could well consider, for example, extending the Kampala ‘opt-out’ provisions .  Discussions on inclusion of terrorism and nuclear weapons are already taking place. [xviii]  Prosecution of Indian officers , leaders and army by ICC, is an overstretch and the jurisdiction over India under the UNSC referral process is possible even if India stays out of ICC . [xix] India should immediately ensure substantive and effective participation in ICC deliberative and negotiating bodies which it is entitled to attend as an observer. [xx] Most of the objections and concerns seem to have waned over the years. Moreover, heightened activities on the ICC in India in the past year have generated greater participation and interest from diverse constituencies including parliamentarians, academia, media and various civil society groups.[xxi]

India has been subject to international dispute settlement bodies, such as the Dispute Settlement Body of the World Trade Organization and the International Court of Justice, amongst others. State sovereignty is not compromised merely because a nation-state agrees to subject itself to an international court that can exercise jurisdiction over its officials. [xxii]Several legal provisions found in the Indian Constitution and the criminal laws of India are antecedents to many of the principles found in the Rome Statute – the presumption of innocence, principle of legality, proof of guilt beyond reasonable doubt, fair trial, legal aid and the right to remain silent, amongst others.[xxiii] Thus, India might have seriously misjudged the legal, political and social repercussions of opposing the Rome Statute, and risks further erosion of credibility if it altogether repudiates the Statute, and with it, its sizable practical advantages for protecting the dual interests of its nationals as individuals serving their country abroad, and of its national security.[xxiv]

Till India signs the Rome Statute it must be stated that the standards set by the Rome Statute could be of use in the region regardless of its poor record of ratification. For instance, the Rome standards have been used to promote law reform at the national level in India, as well as to provide redress to victims before national Courts in Sri Lanka. Thus, as mentioned in the ICC Outreach, although the importance of the Court in fighting impunity worldwide is undisputable, the ICC also exists as a tool to strengthen national legal systems and provide redress to victim. [xxv]

 

[i] India and the ICC, Usha Ramanathan, available at http://www.ielrc.org/content/a0505.pdf

[ii] Judgment of Justice Radhabino Pal at the Tokyo War Crimes Trial, 1946-48, A. F. M. Shamsur Rahman available at http://www.asiaticsociety.org.bd/journals/June_2010/contents/04_AFMShamsuRahman.htm

[iii] R. John Pritchard & Sonia M. Zaide (eds.), “The Dissenting Opinion of the Member for India R.B. al” inThe Tokyo War Crimes Trial, (New York & London: Garland, 1981), Vol. I. p. 21

[iv] Supra n.2

[v] Dilip Lahiri, Should India continue to stay out of ICC? (published on 24 November 2010) Available at http://www.orfonline.org/research/should-india-continue-to-stay-out-of-icc/

[vi] Ibid

[vii] http://www.kashmirprocess.org/reports/graves/BuriedEvidenceKashmir.pdf

[viii] India’s Secret Army in Kashmir, New Patterns of Abuse Emerge in the Conflict http://www.hrw.org/reports/1996/India2.htm#P211_52287

[ix] Roderic Alley, “Internal Conflict and the International Community: Wars without end?”, Aldershot: Ashgate Publishing Company, 2004, p 120.

[x] Common Article 3 states: ‘The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

[xi] The Armed Forces (Special Powers) Act  1958 available at http://mha.nic.in/pdfs/armed_forces_special_powers_act1958.pdf

[xii] Sanjoy Hazarika, An Abomination Called AFSPA,Febryary 12, 2013, The Hindu available at http://www.thehindu.com/opinion/lead/an-abomination-called-afspa/article4404804.ece

[xiii] Ibid

[xiv] Sanajaoba, Armed Forces Special Power Act, 1958- A Law for Extra judicial Execution in Perpetuity, at http://openspace.org.in/node/461

[xv] Ibid

[xvi] Supra n. 5

[xvii] Supra n. 1

[xviii] Jane Boulden,Thomas G. Weiss, Terrorism and the UN: Before and After September 11, Indiana University press, (2004) p. 65-66

[xix] Supra n 5 ( refer conclusions)

[xx] http://www.frontline.in/navigation/?type=static&page=flonnet&rdurl=fl1807/18070670.htmhttp://www.sikhsangat.com/index.php?/topic/38139-why-india-rejects-the-international-criminal-court/

[xxi] Coalition of International Criminal Court,India, at http://www.iccnow.org/?mod=country&iduct=77

[xxii] Abraham, What Are we Scared of? Available at http://www.boloji.com/index.cfm?md=Content&sd=Articles&ArticleID=5471

[xxiii] Ibid

[xxiv] Rishav Banerjee, Rome Statute and India: An Analysis of India?s Attitude towards the International Criminal Court, Journal of East Asia & International Law › Nbr. 4-2, October 2011

[xxv] The ICC can wait, Justice Cannot , available at http://www.un.int/india/2011/ind1953.pdf

 

 

Counter Terrorism : A Democratic Dilemma

Image

 Photo credit:www.picdesi.com

Written by Garima Tiwari
“Terrorism often thrives where human rights are violated,” and “the lack of hope for justice provides breeding grounds for terrorism.”[i]  The recent February 2013 blasts in Hyderabad, India have brought to light the weakness of the intelligence and the laws to create any deterrence. After 9/11, the threat from terrorism has been identified as the most dangerous threat by states. This is because of the unpredictability, widespread reach, lethality and ruthlessness of the attacks. The trend toward higher casualties reflects the changing motivation of today’s terrorists. Terrorist groups lack a concrete political goal other than to punish their enemies.

The Hyderabad blasts are a stark reminder of the shortcomings of Indian counter-terrorism capabilities. Since 2008, India has had 11 more terror strikes in which 60 people have been killed across five cities. The government has taken measures to beef up its security and intelligence agencies. But implementation on the ground is often stymied by India’s notorious bureaucratic red tape. The Maharashtra Anti-Terrorism squad, for example, has a capacity of 935 personnel but is actually working with just 300. A $28.5 million proposal to improve security around Mumbai was announced soon after the 2008 “26/11″ attack—involving 5,000 CCTV cameras at key junctions, motion detectors, night vision for security forces, thermal imaging for the police, and vehicle license plate identification capability. But it never took off. [ii]

The whole counter –terrorism strategy involves a democratic dilemma which consists of two parts. The first is how to be effective in counter-terrorism while still preserving liberal democratic values , and the second is how to allow the government to fulfill its first and foremost responsibility of protecting the lives of its citizens without using the harsh measures at its disposal.[iii] It is generally assumed that the ‘criminal justice model’ is the better option for democracies to overcome the ‘democratic dilemma’ they face. Terrorism inevitably involves the commission of a crime. Since democracies have well-developed legislations, systems and structures to deal with crime, the criminal justice system should be at the heart of their counter-terrorism efforts.[iv] But then special laws with higher deterrence values are required and justified, on the grounds that the existing criminal laws are not adequate to deal with the militancy because what is at stake is the very existence of state and another reason cited is the obligations under the prevailing international environment and obligations like under Prevention of Terrorism Act in India after the 9/11 attack and the UN Resolution 1373. Then there are security forces empowerment laws in India that give immunity and additional special powers to the security forces like the Armed Forces Special Powers Act; Laws of proscription that criminalises terrorist groups and a range of undesirable activities like the Unlawful Activities Prevention Act (UAPA) and other exclusive laws on control of finances, money laundering, drug-trafficking, cyber warfare and so on. [v] Counter-terror laws in India have come into being reflecting the Indian style of handling terrorism – namely, ad hocism. No single law has prevailed throughout. From time to time, depending on the regime at the Center, legislation has come into being and then faded.

When one tries to look at the counter-terror laws of India the following characteristics would come to picture which actually highlight various aspects of where the democratic dilemma is leading:

  1. Hasty enactment without giving much room for public debate or judicial scrutiny;
  2.  Overly broad and ambiguous definitions of terrorism that fail to satisfy the principle of legality;
  3.  Pre-trial investigation and detention procedures which infringe upon due process, personal liberty, and limits on the length of pretrial detention;
  4.  Special courts and procedural rules that infringe upon judicial independence and the right to a fair trial;
  5. Provisions that require courts to draw adverse inferences against the accused in a manner that infringes upon the presumption of innocence;
  6.  Lack of sufficient oversight of police and prosecutorial decision-making to prevent arbitrary, discriminatory, and disuniform application; and
  7.  Broad immunities from prosecution for government officials who fail to ensure the right to effective remedies.[vi]

Despite the experience of 26/11, India’s internal security still remains vulnerable because we have not acquired appropriate capacities and determination to prevent such an exigency. The laws emphasise more on protection of state rather than people. The Indian politicians do not accept national security with the kind of gravitas it demands.[vii] Overall, neither the laws create deterrence nor do they protect the lives of civilian population.

What is needed in not just a strong all encompassing law, but strict implementation and vigilance with respect for human rights.  There have to be proper safeguards against misuse and abuse of law. There has to be clear cut definitions of crimes and penal provisions to avoid excessive discretionary powers. Enactment of special laws should not be in haste; for greater awareness and acceptance, the process has to be transparent and should be subject to public debate and judicial scrutiny. Special laws should possess review mechanisms and ‘sun-set’ clauses for periodic assessments.[viii] Most experts have suggested strengthening policing from the grass root level, enacting tough laws and speedy trial of cases would go a long way in preventing and controlling terror attacks in the country because the terror attacks are often carried out with the help of some local elements. Then again the external factors like politicisation of the police force should be checked to ensure its effectiveness.[ix]

Terrorism is a threat which most states are today facing. We can only defeat terrorism in the long term by preventing the next generation of terrorists from emerging. We must reduce the breeding grounds of terrorism. This is, of course, not an easy task.[x]


[i] Supreme Court of India in People’s union for Civil Liberties vs. union of India, AIR 2004 SC 456, 465

[ii] Hyderabad’s Terror Attack: Speculation Swirls as Critics Point to Government Failure

By Nilanjana Bhowmick Feb. 22, 2013available at http://world.time.com/2013/02/22/hyderabads-terror-attack-speculation-swirls-as-critics-point-to-government-failure/#ixzz2P8YZGrFd

[iii] Excerpt by Boaz Ganor, Trends in International Terrorism and Counter Terrorism, Editors: Dr. Boaz Ganor and Dr. Eitan Azani available at http://www.ict.org.il/Books/TrendsinInternationalTerrorism/tabid/282/Default.aspx

[iv] Lindsay Clutterbuck, “Law Enforcement,” in Audrey Kurth Cronin and James M Ludes (eds.), Attacking Terrorism – Elements of a Grand Strategy (washington, D.C.: Georgetown university Press, 2004), p. 141

[v] Dr. N. Manoharan, Special Laws to Counter Terrorism in India: A Reality Check available at http://www.vifindia.org/article/2012/november/20/special-laws-to-counter-terrorism-in-india-a-reality-check

[vi] Anil Kalhan et al, “Colonial Continuities: Human Rights, Terrorism and Security Laws in India,” Colombia Journal of Asian Law, Vol. 20, no. 1, 2006, p. 96.

[vii] C. Uday Bhaskar, former director of the Institute of Defence Studies and Analyses, a New Delhi-based think tank available at http://world.time.com/2013/02/22/hyderabads-terror-attack-speculation-swirls-as-critics-point-to-government-failure/#ixzz2P8Y5pFI3

[viii] N. Manoharan, Trojan Horses? Efficacy of Counter-terrorism Legislation in a Democracy Lessons from India, Manekshaw PaPer No.30 , 2011, available at http://www.claws.in/administrator/uploaded_files/1308896190MP%2030.pdf

[ix] Strong local policing, strict laws will curb terror attacks’, Tuesday, 26 February 201, available at http://www.siasat.com/english/news/strong-local-policing-strict-laws-will-curb-terror-attacks

[x] Excerpt Gijs de Vries, Trends in International Terrorism and Counter Terrorism, Editors: Dr. Boaz Ganor and Dr. Eitan Azani available at http://www.ict.org.il/Books/TrendsinInternationalTerrorism/tabid/282/Default.aspx