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Fonte: The Hindu, May 14, 2002
The Gujarat carnage & ICC
The International Criminal Court is a safety net to tackle situations
where perpetrators escape the clutches of domestic law.
THE CARNAGE in Gujarat conveys a message of triumph of
violence and brutality over law, impunity over accountability, and high-handedness
over justice. As in the case of perpetrators of the communal attacks in
Mumbai, for the persons who have inflicted violence against the religious
minorities in Gujarat, impunity seems probable and accountability seems
illusive. It is precisely to end impunity that a judicial mechanism has
been created and has gained overwhelming support at the international
level - the International Criminal Court (ICC).
The ICC is the first permanent forum mooted at an international level
to deal with individual perpetrators (not states) committing the most
serious breaches under international humanitarian and human rights law
- crimes against humanity, war crimes and genocide. The ICC would not
oust the prerogative of the national legal system to prosecute offenders,
but would come into play only if the government is either unwilling or
unable to prosecute the offender. The primary responsibility for taking
action, therefore, vests with the government. The ICC is a safety net
to tackle situations where perpetrators escape the clutches of domestic
law.
On April 11, 2002, the number of ratifications to the treaty creating
the ICC exceeded the sixty required for it to become functional. The ICC
is now a reality. However, the jubilation I felt at the creation of this
important international mechanism was dampened by the fact that India
has neither signed nor ratified the treaty. My disappointment was heightened
by the fact that the ICC is of great relevance to the situation within
the country, particularly the violent attacks against the minorities in
Gujarat.
In Gujarat, though the National Human Rights Commission has swung into
action, it is not a court of law. It would make useful recommendations
on what needs to be done in future to avoid the recurrence of such incidents.
However, the task of prosecuting the perpetrators is the task of the state
legal machinery.
On the basis of independent reports, it is clear that the violence was
a state-sponsored carnage targeting the Muslim community. (Report on Gujarat
by the CPI(M) and the All India Democratic Women's Association, March
2002). The police force, which has to carry on investigations into the
violence for effective prosecutions to take place, is biased, communal,
has acted in a partisan manner, and is itself guilty of participating
in the attacks. (Statement of the Commonwealth Human Rights Initiative
on the Gujarat Riots and the Role of the Police, April 8, 2002). That
the State Government is itself biased in its approach to the situation
is obvious from the Gujarat Chief Minister's statement of justification
for the attacks on minorities - "Every act has an equal and opposite
reaction". (The Times of India, Delhi Edition, March 2, 2002). Therefore,
it is unrealistic to expect impartiality in meting out justice to the
victims.
In such situations, the possibility of prosecution of such offenders by
the ICC could at least persuade the domestic law enforcement agency to
act, and act effectively. The ICC is a means of encouraging the national
legal machinery to address these crimes, as it will intervene only in
cases in which a state is either unwilling or unable to prosecute an offender.
After all, no state wants its citizens to be dragged to an international
forum for a trial as that would undermine the efficacy of its legal system.
If it fails to prosecute, the international machinery would be brought
into action to end impunity.
Crimes against humanity
Among the crimes listed in the ICC statute, "crimes against humanity"
are among the most serious crimes of concern to the international community
as a whole. "Crimes against humanity" is of specific importance,
as this is a set of crimes which can be committed not only during war
time (as in the case of "war crimes") but also during "peace"
time. Crimes listed under this include murder, extermination, enslavement,
torture, sexual violence, enforced disappearances and other inhuman acts
of similar gravity. It includes the heinous crimes committed in the Gujarat
attacks. This category of crimes under the ICC is distinguished from ordinary
crimes defined under national penal laws in three ways:
* the acts constituting the crimes must have been committed as part of
a widespread or systematic attack;
* they must be knowingly directed against a civilian population;
* they must have been committed pursuant to a "state or organisational
policy" - that is, they must be committed by state agents or by persons
acting under their instigation or with their acquiescence.
If this yardstick were to be applied to the Gujarat carnage, it appears
that all the three requirements are satisfied. There is no doubt that
the attacks on minorities were widespread. The use of cranes, shovels
and trucks to demolish walls of the Muslim houses and shops, and the recent
house checks in the guise of census data collection to identify targets
indicate that the attacks were not spontaneous, but were systematic and
planned. (Report on Gujarat by the CPI(M) and AIDWA, March 2002). The
attacks were directed against a civilian population. It involved direct
attacks on the civilians by agents of the state, as well as a deliberate
failure of the State Government to take action against the perpetrators,
aimed at encouraging/instigating such an attack.
In addition, the attacks are undoubtedly genocidal in nature, as they
are aimed at the destruction of lives and property of a certain group
of people on religious grounds. The Gujarat attacks cover the first two
of the five prohibited acts stated in the definition of genocide under
the ICC statute, namely:
* killing members of a group;
* causing serious bodily harm to the members of a group:
* deliberately inflicting on a group conditions of life calculated to
bring about their physical destruction in whole or in part;
* imposing measures intended to prevent births within a group;
* forcibly transferring children of a group to another group.
The intention to destroy, in whole or in part, a religious group would
also satisfy the definition of genocide stated in the ICC statute.
It is apt here to mention that the Indian Government ratified in August
1959 the U.N. Convention on the Prevention and Punishment of the Crime
of Genocide, 1948 (which contains a similar definition of genocide). It
is therefore additionally duty-bound to prosecute and punish the offenders,
irrespective of their position. Further, it is rather ironic that not
too long ago, experts from the Ministry of Law helped the Cambodian Government
draft a law on crimes against humanity and genocide (to facilitate the
trial of Khmer Rouge leaders), while being complacent of the adequacy
of the Indian legal machinery in responding to similar crimes. This is
a case of preaching what we do not practise.
The utter failure of the state law and order machinery in protecting the
victims from further violations and taking prompt action against the perpetrators
illustrate the fact that our legal machinery is not as efficient as we
boast of. It also reminds us of the need for an effective, permanent and
impartial international machinery to be brought into action in situations
where a prompt and proper prosecution through the national legal system
seems impossible.
A culture of impunity
At present, India has not ratified the treaty establishing the ICC. The
ICC would have only prospective jurisdiction - that is, deal with crimes
that are committed after a country ratifies it. Therefore, sadly, the
perpetrators of the Gujarat carnage, as in the case of those of the communal
riots in Mumbai in the last decade, would never be tried by the ICC. However,
the exercise undertaken in this article is not without purpose. It is
to illustrate the gravity of the crimes committed in Gujarat from the
standpoint of international law, and further to highlight the potential
that exists for using an international mechanism to terminate a culture
of impunity within the country.
It would be desirable for the Indian Government to review its reluctance
over acceding to the treaty creating the ICC. If our human rights record
is good, and our legal machinery foolproof, we have nothing to fear from
the ICC. But if we are afraid that our dirty linen may be washed in public,
it is time we ensure that our laundry system becomes sound.
SAUMYA UMA
(The author is a human rights advocate and the Coordinator of "ICC-India")
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