Friday, April 25, 2008

Mass Crimes and the inadequacy of Indian laws to address them

This year’s ICC-India campaign began with its 2nd National Consultation on International Criminal Court and India in New Delhi today. The campaign is an eight-year old anti-impunity campaign, which works on issues of justice and accountability for mass crimes in India, using principles from the law related to ICC. For the uninitiated, ICC is an independent treaty-based organization that is designed to serve as a safety net for use only when national courts are unwilling or unable to act. Based in The Hague, the Netherlands, the ICC builds on a legacy of the Nuremberg and Tokyo tribunals, which tried perpetrators of World War II atrocities, as well as the more recent work of the UN-created ad hoc war crimes tribunals of Rwanda and the Former Yugoslavia. The campaign is part of the global campaign.

Currently, 106 countries have become members of the ICC’s governing Assembly of States Parties. India is not a State Party to the ICC. The Rome Statute creating the ICC is a treaty adopted on 17 July 1998 by 120 nations voting in favour, 7 in opposition and 21 abstaining. The ICC treaty came into force on April 11, 2002, with 60 ratifications, enabling the Court to try acts of genocide, war crimes and crimes against humanity committed after 1 July 2002. (Which means even if India decides to ratify the Statute, the Gujarat Genocide of 2002 will be out of its purview). In 1998, India had abstained from voting on the Statute. In December 2002, it concluded a pact with the U.S.- an active anti-ICC campaigner - not to surrender each others’ citizens or military contractors to the ICC for prosecution.

The background material distributed at the Consultation includes an insightful article on India and the ICC written by Usha Ramanathan, and published in Journal of International Criminal Justice (Vol.3, (205) pp.627-634), where she articulates and answers some of India’s concerns over the ICC Statute.

The ICC-India campaign, to use the words of Siddharth Varadarajan, who spoke at one of the sessions, may not succeed in making India ratify the Statute, but its success has to be measured in terms of creating awareness over the need to reform domestic laws to enhance their ability to address mass crimes.

Vrinda Grover, while speaking on “why mass crimes go unpunished: Gaps and flaws in the Indian legal system”, called for specific changes across the board in IPC, Cr.P.C. and Evidence Act to make State institutions accountable in mass crimes.

Elaborating, she said Indian criminal jurisprudence has no scope to deal with communal riots. S.146 I.P.C. deals with rioting by an unlawful assembly. Likewise, there are different sections dealing with murder, rape etc. The various reports of the Commissions of inquiry view communal riots as violence between two groups of equal power. There is for instance, no definition of planned targetted killing, or State's complicity in planning and orchestrating a mass crime.

As a result, the arraignment of accused is always incomplete, and those who abdicated State duties are not brought to book. The same police force, which played a dubious role during communal violence, is asked to investigate. The police thus files omnibus FIRs, there is no identification of dead bodies, and no effort taken to collect corroborative evidence. IPC lifts crimes, does not talk of the context in which crimes are taking place, she explained.

Even in the case of systematic destruction of communities because of ethnicity, caste or religion, the same requirements of filing of FIR are insisted upon. In one case, when victims filed FIR after six months, the court acquitted the accused on that ground alone. Section 375, IPC, for instance, does not envision sex-related violence during a carnage as happened in Gujarat in 2002. She deplored that there is no law to make the State institutions accountable; instead we have Section 197 Cr.P.C. to provide immunity to State officials and Judges.

Vrinda Grover was sceptical about the Prakash Singh judgment of the Supreme Court calling for reforms in Policing. She doubted the motives of the petitioners in this case, as they are former DGPs, who suffer from institutional bias. They want autonomy for the police; what about their accountability, she asked.

Saumya Uma, coordinator for ICC-India, and Co-Director, Women's Research and Action Group (WRAG)gave an overview of the campaign in South Asian countries. She spoke about Afghanistan, which is the only country in South Asia to have become the State Party to the ICC. She recalled that India signed the Bilateral Immunity Agreement with the United States in total secrecy, and made the announcement after the signature.

ARTICLE ALERT: Today's Indian Express carries an article co-authored by our co-blogger Tarunabh.

Update: A detailed report on the consultation, prepared by the organisers, can be found here.

1 comment:

tarunabh said...

Thanks for this Venkatesan. Bringing in a legislation for mass crimes was one of the poll promises of the Congress party. The draft communal violence Bill circulated by the government was found to be inadequate and even dangerous on several counts. The Bill was a typical state reaction which sought to give even more power to the very state agencies which have historically been complicit in such mass crimes. Since then the Bill has been in cold storage in the government seems to be in no hurry to legislate on its important electoral promise.