Category Archives: Human Rights

The Validity of Advance Sexual Consent

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The validity of ‘advance consent’ is an issue which is being determined by the Canadian judiciary. Advance consent has been held to be invalid only in recent times. Throughout history, advance consent was recognised by both law and society, the most visible example of which was the ‘advance consent’ which a wife granted her husband during the wedding ceremony, and which lasted till death (or, in more recent times, divorce) did them apart.

What is interesting though is that, this time around, the issue of advance consent has not arisen in the context of orthodox sexual practices but with reference to practices which many people would find anything but orthodox. The Canadian courts have been called upon to determine whether a woman who allegedly consented in advance to erotic strangulation also consented to being sodomised while unconscious.

There are several pertinent factors. Firstly, the woman’s story was not always entirely consistent. Secondly, there appears to have been a history of domestic violence involving the woman and her partner, and as such, the validity of any consent she gave, assuming that she did in fact give consent, may not be beyond question. Thirdly, even assuming that she did give consent for one act, it is unclear how consent for one specific act could metamorphose into consent for other acts as well. Finally, considering that consent in these circumstances cannot truly be considered to have been granted if it does not also include an opportunity to withdraw consent, it is unclear whether it would be possible to give consent at all for an act such as strangulation — after all when one is being strangled or is unconscious, the withdrawal of consent is not an option.

Clearly, therefore, to voluntarily engage in acts which leave one incapacitated would require the grant of advance consent. However, blanket recognition of advance consent presents problems in itself. There are, of course, the ‘standard’ issues which the recognition of advance consent has presented throughout history such as the non-recognition of acts such as marital rape as crimes. In addition to this, there are also echoes of that historical legacy which are heard today. This could be in the form of ‘non-consensual consent’ where women consent in advance to an activity, and consent to having their partners force them to engage in it later even if they don’t want to do so at that later time. Alternatively, it could be in the form of pseudo-legal documents such as ‘abuse contracts’ where women consent in advance to being abused.

There is little doubt that there are circumstances in which advance consent runs contrary to our current socio-legal ethos. However, if advance consent were to be considered to be entirely void, it would make it impossible to perform certain acts within consensual relationships, and could, in effect, regulate relationships between consenting adults ‘“ which, too, in today’s socio-legal and cultural climate would, inter alia, be considered to be an unacceptable violation of the right to privacy. As such, while the issue may seem to be relatively clear-cut at first glance, a closer look reveals that it is anything but clear. The recognition of advance consent could make women vulnerable to abuse. On the other hand, non-recognition of advance consent could make illegal certain acts between consenting adults which are of an essentially private nature, and in which the law would not generally interfere.

One solution would seem to be draw out lists of circumstances in which advance consent could and could not be recognised. However, this too presents its own problems: primarily, how would one determine to which set a particular case would belong. For example, if advance consent was given within a relationship marred by domestic violence, could it be considered to be ‘real’ and, consequently, valid? Or would the possibility that the advance consent was not voluntary make it void? It is unclear whether there is any way in which to differentiate between circumstances in which advance consent should or should not be recognised. Universal recognition could, however, adversely affect the safety of many, and universal non-recognition could adversely affect the freedom of some. Whether safety should supersede freedom, or freedom should supersede safety, is ultimately a value judgment which would manifest itself as a matter of policy.

(This post is by Nandita Saikia and was first published at LawMatters.in.)

Links via Feminist Legal Forum:

Rehauling Sexual Assault Law in India

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Comments on the Proposed Amendments to Criminal Law

The Criminal Law (Amendment) Bill, 2010 has been made available.  The Bill contains proposed amendments to two laws: the Indian Penal Code and the Criminal Procedure Code. The former is a substantive law while the latter is a procedural law. In other words, the Penal Code states what would constitute and offence and what the punishment for such offence would be. The Criminal Procedure Code, on the other hand, specifies the procedure required to be followed to implement the law laid down in the Penal Code.

The Bill, inter alia, redefines rape by proposing to amend Section 375 of the Indian Penal Code in the following terms:

A man is said to commit ‘sexual assault’  if he –

(a) penetrates the vagina, the anus or urethra or mouth of any woman with

(i) any part of his body; or

(ii) any object manipulated by such man

except where such penetration is carried out for proper hygienic or medical purposes;

(b) manipulates any part of the body of woman so as to cause penetration into the vagina, the anus or the urethra of the offender by any part of the woman’s body;

(c) introduces any part of his penis into the mouth of woman,

under the circumstances falling under any of the following six descriptions:-

Firstly.-Against her will.

Secondly.- Without her consent

Thirdly.- With her consent when such consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes to be lawfully married.

Fifthly.-With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that action to which she gives consent.

The exception for medical/hygienic purposes in Section375(a), however, doesn’t seem to require consent. What this would mean is that if the penetration were for medical purposes, and such purposes are not defined, the doctor, would not be required to obtain the consent of the woman so as to avoid falling foul of the provisions of this section if the proposed amendment were to become law. This, of course, could be considered to fly in the fact of the lived experiences of many women. It completely denies the existence of medical rape. It would also seem to exclude from the scope of sexual assault such things as medical students performing pelvic exams on unconscious women without their consent. While it is possible to see the requirement for such an exception, it is difficult to understand why the exception does not state: “except where such penetration is carried out for proper hygienic or medical purposes with the consent of the woman.”

After defining sexual assault, the proposed amendment then states the punishment for sexual assault and lists specific sexual assaults which would be dealt with in a stricter manner in Section 376 of the Indian Penal Code. Under Section 376(1), sexual assault would normally be punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life and, possibly, also a fine. Under Section 376(2), sexual assault by certain persons and/or under certain circumstances would be treated more seriously. Specifically:

Whoever,-

(a) being a police officer commits sexual assault -

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a women in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits sexual assault on a woman or minor in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution takes advantage of his official position and commits sexual assault on any women or minor inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits sexual assault on a woman in that hospital; or

(e) being relative of, or person in a position of trust or authority towards, the women assaulted commits sexual assault with such woman; or

(f) commits sexual assault on a woman knowing her to be pregnant; or

(g) commits sexual assault on a woman when such woman is under eighteen years of age; or

(h) commits gang sexual assault,

(i) being in a position of economic or social or political dominance commits sexual assault on a woman under such dominance, or

(j) commits sexual assault on a woman suffering from mental and physical disability, or

(k) while committing sexual assault causes grievous bodily harm, maims or disfigures or endangers the life of a woman, or

(l) commits persistent sexual assault,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be imprisonment for life and shall also be liable to fine.

Thus, Section 376(2), if passed, would be an enhanced version of the current law as it introduces some new provisions such as that which deals with sexual assault by relatives.

Further, in the case of certain persons such as those who are in positions of authority or are public servants, sexual intercourse which does not amount to sexual assault would also be an offence under Section 376B of the Indian Penal Code in specified circumstances. If the perpetrator had taken advantage of his position and induced or seduced any woman either in his custody or under his charge or present in the premises and has sexual intercourse with her, the sexual intercourse would amount to sexual assault. The punishment for such an offence would be either simple or rigorous imprisonment for a term which may extend to 10 years but shall not be less than 5 years and, possibly, also a fine.

There has also been proposed an amendment to the Indian Penal Code (Section 376A) to deal with the sexual intercourse by a husband upon his wife during separation. Under this provision:

Whoever commits sexual assault with his own wife, who is living separately under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may be extend to seven years and shall also be liable to fine.

Despite the hype about the proposed amendments regarding rape being gender-neutral, it is clear from Sections such as 376(2) that many of the provisions are gender-specific. For example, sexually assaulting a disabled woman would, at least theoretically, under Section 376(2)(j) result in an enhanced punishment but there would be no such enhancement of the punishment if the victim were male.

Also, the provision of Section 376(2)(g) which states that those who commit ”sexual assault on a woman when such woman is under eighteen years of age” is unclear. It has also been proposed to add a Section (dealt with later in this post) which deals with the sexual assault of minors with a minor being defined as a person who is under the age of 18. Section 376(2)(g) deals with the sexual assault of women in this same age group. It is not clear why it has been thought to be necessary to have two provisions which deal with the sexual assault of female minors, or which Section would actually apply in such a case.

One explanation would be that Section 376(2)(g) actually intends to deal with the age of consent. However, if this is the intention, it is not truly reflected by the wording of the law. Assuming that Section 376(2)(g) lays down the age of consent for women and states that it is 18 years of age, whether this age is too high is debatable. What appears to be a lacuna here, however, is that the age of the man is not taken into consideration at all. There should probably have been a proviso inserted into this clause which so that it would come into effect only if the other person involved was “x” number of years older than the complainant/victim. In other words, it is probably not ideal to have a law which states that if one person was 18, and the other 19, the consent of the 18 year old would be immaterial since, presumably, the reason for having an age of consent is to protect minors from adults, and not from other minors or from persons who are at the threshold of majority.

The provision which is proposed to be inserted into the Penal Code to deal with the sexual abuse of minors states:

(1) A person is said to commit “sexual abuse of minor” against a minor under the age of eighteen years if the person-

(i) penetrates his penis into the vagina, the anus or urethra or the mouth of a minor;

(ii) manipulates any object or part of his or her body or that of the minor so as to cause penetration into the vagina, the anus or urethra or mouth of any minor with or without the will or consent of the minor.

Explanation-Mere penetration is a sexual assault within the meaning of this section.

(2) Whoever commits any offence of sexual abuse of minor shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

(3) Whoever, with sexual intent, invites, counsels or incites or exhibits pornography a minor to touch, directly or indirectly, with a part of the body or with an object, the body of any minor, including the body of the person who so invites, counsels or incites, or touches, with sexual intent, directly or indirectly, with a part of the body or with an object, any part of the body of a minor, shall be punished with imprisonment of either description which may extend to ten years.

(4) In this section,- (a) ‘minor’ means —  a person under eighteen years of age.

There have been discussions about the need for such an amendment to the law for many years now. So far, it has only been possible to deal with child abuse under the existing Section 377 of the Indian Penal Code which deals with so-called unnatural offences. The Section has been notorious for its widespread misuse — consenting adult homosexuals have routinely reported being threatened with its implementation since the Section makes homosexual acts an offence even if they are between consenting adults.

As mentioned at the beginning of this piece, it has also been proposed to amend the Criminal Procedure Code so implement the changes in the Penal Code. Strangely enough, with respect to child sexual assault, the following amendment has been proposed:

198B. No court shall take cognizance of an offence punishable under sub-section (2) or sub-section (3) of section 376C of the Indian Penal Code, except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by his father, mother, brother, sister or by his father’s or mother’s brother or sister or by any other person related to him by blood or adoption, if so permitted by the court.

This means that in cases of child sexual abuse, a complaint may only be filed by the victim or certain relatives of the victim. It does not seem realistic to expect a child to file, or even be able to file, a complaint. And, considering the way in which child sexual abuse, particularly when the abuser is a relative, is veiled in Indian society, it is extremely difficult to understand why relatives would be listed as the only possible complainants other than the victim. Under this provision, it appears that a complaint cannot be made by such persons as doctors and other health-care providers, caregivers or educators who may, in fact, be in a better position than relatives to make such a complaint.

Once a complaint has been made though, and the trial is in progress, it has been proposed to insert a provision into the Criminal Procedure Code which would allow the judge to take appropriate measures to ensure that the alleged minor victim of sexual assault or any other sexual offence is not confronted by the accused, although the court must also uphold the right of cross-examination of the accused.

Thus, although the aim seems to be to redefine and restructure sexual assault law in India, the proposed amendment, as it now stands, is not without its flaws.

By Nandita Saikia

The Proposed Accessibility Exception to Copyright

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Update (April 26, 2010):

Please note that although this does not affect the critique below, the relevant Section No. is 52(1)(zb) in the Copyright Amendment Bill, 2010, and not 52(1)(za) as mentioned herein — Section 52(1)(za) was based on documents which had reportedly been leaked and made available.

Section 52(1)(zb) reads as follows:

The adaptation, reproduction, issue of copies or communication to the public of any work in a format, including sign language, specially designed only for the use of persons suffering from a visual, aural or other disability that prevents their enjoyment of such works in their normal format.

Also read Disability and the Indian Copyright Amendment Bill, 2010 (SSRN link).

This paper is updated till May 6, 2010, and deals with both the proposed accessibility exception to copyright, and the compulsory licence which has been proposed for the benefit of disabled persons.

The Proposed Accessibility Exception to Copyright

By Nandita Saikia and Bihu Sharma

(This is a Working Paper and is based on the proposed Copyright Amendment.)

 

Introduction

The disabled in India are, for the most part, an invisible minority with disability, and often the disabled themselves, being stigmatised. In a country where access to information and education is limited by a variety of factors, including class and caste, persons who have disabilities tend to be far more disadvantaged than the average person of their own caste and class would be.

Disability is generally considered to be an individual and isolated problem and without a support structure, comprising family or other persons, that has adequate resources, having a disability in India is almost certain to limit one’s ability to be a productive member of society.

One of the ways in which disabled persons are prevented from realising their potential is by their access to printed material such as books being virtually non-existent should they suffer from a disability which hampers their ability to access printed material.

Image from WikiCommons

Image from WikiCommons

The Scale of the Issue

A large fraction of printed materials are protected by copyright law which grants the owners of copyright certain exclusive rights with respect to such materials.

In the developed world, estimates indicate that only 5 per cent of published books are converted into formats which are accessible to people with visual impairments. In India, the situation appears to be much worse. It has been estimated that only about 0.5 per cent of all published books in India are converted into accessible formats, and that less than 1 per cent of visually impaired persons have adequate access to printed matter. These statistics only take into account persons who are visually impaired.

Additionally, besides those who cannot access printed material due to reasons not related to disability such as illiteracy or financial constraints, there are millions of people in India whose access to printed material is limited because of other disabilities ranging from dyslexia to an inability to manipulate the pages of a printed book.

Exhaustion of Rights

The doctrine of Exhaustion of Rights states that once a copy of a copyrighted work has been legally sold, the copyright owner exhausts his rights in that copy of the work and can be resold without reference to or consent from the owner. This means that once a copy of a copyrighted work had been made available anywhere in the world in an accessible format, that copy would not be considered to be an infringing copy of the work in India.

Thus, although explicitly following the principle of international exhaustion could adversely impact such things as the availability of low priced editions in India, since publishers would have little incentive to make such editions available in the Indian market without the assurance that the copy would not be ‘leaked’ to countries, following a principle of international exhaustion may actually benefit disabled persons since the cross-border movement of copyrighted works in accessible formats would be legal.

The Proposed Amendment to the Copyright Act, 1957

Indian Copyright law does have ‘exceptions to copyright infringement’ incorporated in it. These exceptions could be in the form of ‘Fair Use’ or ‘Fair Dealing’ provisions, and, if one were to extend the definition of ‘exceptions to copyright’, it would also probably be possible to include within the scope of the definition statutory and compulsory copyright licences.

The Indian Copyright Act, 1957, as it stands today, however, does not contain provisions which deal with making copyrighted works accessible to disabled persons. Traditionally, exceptions to copyright have been defined in terms of very narrow circumstances in which a copyrighted work may be exploited by a person other than its owner without the consent of the owner.

The need to incorporate provisions which enable disabled persons to access to copyrighted works has, however, been recognised in recent years, and it has been proposed to amend the Copyright Act, 1957, to include within the statute a separate compulsory licensing provision to allow for the publication of copyrighted works in formats for the benefit of the physically challenged.

In addition to this, it has been proposed to incorporate an additional ‘exception to copyright infringement’ in the statute which would allow a copyrighted work to be reproduced and distributed in a format accessible to disabled persons. The proposed amendment reads as follows:

Section 52(1)(za): The reproduction, issue of copies or communication to the public of any work in a format, including sign language, specially designed only for the use of persons suffering from a visual, aural or other disability that prevents their enjoyment of such works in their normal format.

Although the proposed insertion of such a Section is, in itself, a step forward, it would appear that the provision does not serve the needs of either copyright owners or disabled persons as best it could. For example, it is entirely silent with reference to technological protection measures, and does not say that such a measure may be circumvented in order to convert a copyrighted work into an accessible format. While it would be possible to argue that the law intended to allow for technological protection measures to be circumvented under the accessibility exception, one would probably have to use rather circuitous logic to do so.

In addition to this, there are a number of other provisions in the accessibility exception which give rise to concern. The aim of an accessibility exception to copyright would presumably be to ensure that disabled persons are able to enjoy copyrighted works to the same extent as abled persons. It is, however, debatable whether the proposed amendment to the Copyright Act, 1957, is successful in doing so.

The Protection of Copyright Owners

Under the proposed amendment, the reproduction, issue of copies or communication to the public of a copyrighted work would be legal if it were in a format specially designed only for the use of persons with a disability regardless of whether or not the copyright holder had already made the work available in that format. Further, given that the format into which a work could be converted to ensure accessibility has not been qualified in any way, the original format could be modified to an extent beyond that which would be required to provide accessibility to disabled persons.

Thus, the extent to which modification has been allowed under the proposed amendment is not qualified. Ideally, for the protection of rights holders, the exception should have only applied to works which had not been made available by rights holders themselves in the necessary accessible formats (at a reasonable price and without undue effort having to be expended in order to obtain the works in question in such formats).

Further, there is also no provision in the accessibility exception which states that it would apply only to non-commercial endeavours to make copies of works in accessible formats available to disabled persons. It is conceivable that such a requirement would, in a country like India, simply restrict the applicability of the exception to an appreciable extent. Further, if the proposed amendment were to be modified along the lines mentioned in the previous paragraph, it would completely obviate the ‘need’ for a provision regarding non-commercial use since the rights of copyright owners would be adequately protected.

The Requirements of Disabled Persons

The proposed amendment requires the accessible format to have been specially designed only for the use of persons suffering from a disability (such as Braille). This would immediately exclude formats which have not been ‘specially designed’ only for disabled persons from falling within the scope of the accessibility exception. Since many of the formats which disabled persons would benefit from are not formats which have been specially designed for them (whether they be large-print photocopies for visually-impaired persons or photocopies on coloured paper for dyslexic persons), this requirement would, in a way, defeat the aim of attempting to ensure that disabled persons are in fact able to access copyrighted works.

Moreover, according to the proposed amendment, the format to provide accessibility must have been specially designed not merely for the benefit of persons with disabilities but for their use. This means that a format which may be utilised for instructional or educational purposes, for the benefit of disabled persons, without being designed specifically for the use of disabled persons, could be seen to be excluded from the scope of the accessibility exception.

Similarly, the requirement that a disabled person be prevented from being able to enjoy the work in its original format also significantly narrows down the scope of the proposed amendment since it means that certain ‘activities’ would not fall under the scope of the disability exception. If a disabled person were to enjoy a copyrightable work to any extent at all, the provisions of this exception would not apply, since the person would not be considered to have been unable to enjoy the work, or to have been prevented from doing so on account of their disability. The corollary to this is that a format of work which would merely enhance a disabled person’s ability to access and enjoy a work (such as a large print photocopy) may not fall under the scope of this exception since the disabled person may not have been prevented from enjoying the work in its original format.

With reference to accessible formats themselves, the insertion of sign language as an example of an accessible format gives rise to some concerns in itself. It would probably have been worth specifying that an accessible format contemplated by the provision could be any format whether or not it was substantially the same as the original format of the work. Such an amendment would be welcome since it is entirely conceivable that, in future, it could be argued that the law never intended for ‘minor’ changes in formats such the making of photocopies to be included within the scope of the exception considering that the one format mentioned would, in most cases, be a ‘substantial’ change, and that it betrays the legislative intent to only include ‘substantial changes’ of format within the scope of the exception.

Conclusion

While the drafting of this proposed amendment in the Indian Copyright Act, 1957, to enhance accessibility to copyrighted works at all is certainly a step in the right direction, the text of the exception is fraught with ‘loopholes’, and its language could well be considered to be a reflection of the way in which the Indian society views disabled persons.

According to the proposed amendment, disabled persons do not simply have disabilities, they are ‘persons suffering’ from disabilities, and formats in which copyrighted works are made available for abled persons (who comprise the majority of the population) are not merely the original formats but the ‘normal’ formats of those works.

India probably has a long way to go before it sees disability as nothing more than a difference instead of as an abnormality. However, in the context of an exception to copyright for the benefit of disabled persons, even as it stands, the proposed amendment would probably significantly enhance the ability of disabled persons to access copyrighted works.

Image Source: WikiCommons

Effect of Armed Rebellion on Children: Innocence Scarred

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By Sidhartha Jatar
 
Introduction

There is a stark contrast between the two worlds that exist today: one world offers comfort and hope to children in an environment where their social and developmental needs can be attended to while the other deprives communities and societies of the stability required to meet these welfare needs. Children are the future of every generation and are like saplings that require sufficient nutrition, sunlight, shelter and space to grow healthy and stay rooted. Families provide their first line of defence, giving them emotional strength and inculcating in them a basic sense of trust and bonding. Communities offer platforms for wider interaction, enabling children to develop a sense of belongingness and responsibility. Thus, it is in a salubrious climate conducive to peaceful development that children find opportunities for wholesome growth.

Armed rebellions rob a child of these essential ingredients. They upset the daily routines of life, destroy the social fabric of a community and leave behind a milieu that is unfavourable to value-based cultural and social development – the effects of this being noticeable at several levels: 1) Personal – biological and psychological 2) Family and relations 3) Social networks, schools and neighbourhoods 4) Norms and value-systems.

The deprivations of war and armed conflict result in poverty, disease, hunger, lack of clothing and poor sanitation with maximum brunt being borne by children. Children become active participants in heinous crimes as well as direct victims of violence. Through thematic references one can attempt to gauge the extent and nature of the effects of armed conflict on them.

Selective themes

Child soldiers

Armed rebels and militia forcibly recruit children to fulfil their manpower shortages for both military and non-military activities. While some child soldiers are trained to kill, others are used for support functions such as cooking and spying. Child recruitment by rebels and militia is a favourable option since these children don’t require pay and can be manipulated easily. There are some deeply disturbing stories, for example, of RUF soldiers in Sierra Leone forcing children to take part in slaughter campaigns against their own families and communities in order to sever ties. The RUF is also said to have also engaged in extreme brutalities such as cutting limbs of children to prevent government forces from using them to source diamonds. The LTTE in Sri Lankan is an example of a regularised military force which inducts children into its armed forces and provides them with weapons training.

Land mines

These are one of the worst forms of weaponry with severe long-term effects. As sitting time bombs, they pose a significant threat to children who are curious and are unable to read or understand danger signs. While mines cost a pittance to make and take little time to embed, removing minefields is a costly and time-consuming proposition. Additionally, the danger posed by landmines continues well after their intended purpose has been served. Scarcity of medical aid and resources means that few child amputees have access to prosthetics. Many more are left unattended to and succumb to their injuries.

Small-arms trade

The small-arms trade has significantly increased the ability of children to participate in acts of violence. Small arms are found in plenty in conflict zones where weapons are unaccounted for and arms dealers are operative. Children can be taught to use these weapons and reload/reassemble them. Being easy to carry and handle, they form the perfect weapon in a child’s armoury.

Sexual violence

Girls are raped and forced into prostitution apart from being used as soldiers. It is said that they serve a double purpose of performing the function of a soldier by day and offering their services for enervated combatants by night. The mental trauma and debilitating physical effects on such children are but one of the many other problems they have to face. Social stigma, early motherhood, threat of HIV/AIDS all add up to cost the girl child her adolescence.

Children as witnesses/targets

As witnesses to horrific crimes, the psychological impact on children can be destabilising to their personalities and character. The brutality and violence to which they are exposed has resulted in them being termed as “lost generations”. Where communities are sought to be wiped-out through genocide and ethnic cleansing, children become primary targets.

International Law and special protection for children during armed conflict

Since the 19th century, nations have attempted to use International Law to circumscribe the effects of armed conflicts on civilians including children. Prior to WW2, the laws of war (culminating in the Hague Convention) were the only rules that advocated maintenance of law and order during conflict and immunity of civilians including children. The devastating effects of WW2 on the civilian population, however, would provide impetus for a new legal order that expressed the resolute stand of nations to ‘humanise’ war and protect innocent persons. The Geneva Convention of 1949 and its Two Additional Protocolsthus became pillars of what has come to be called ‘International Humanitarian Law’. The Fourth Geneva Convention in particular refers to special protection of children, their need for family support and their right to adequate care, maintenance and education while Protocol I prohibits recruitment of children below the age of 15 for military purposes. In 1989, a significant step was taken through the creation of the Convention on the Rights of the Child (CRC), a legal instrument that specifies rights of children. The Convention embodies a few basic principles:

o Best interests of the child shall be of primary consideration

o No discrimination on grounds colour, sex, religion etc

o Childs inherent right to life

o Child’s right to freedom of expression

The Optional protocol to the CRC on Armed conflict then recognised the rights of all persons below 18 years of age to special protection and non-recruitment for use in hostilities by armed forces and non-State actors.

The international legal framework has also been bolstered by the Rome Statute of the International Criminal Court that recognises child recruitment as a war crime and a crime against humanity and seeks to ensure that egregious violations of human rights don’t go unpunished. The arrest and trial of Thomas Lubanga (leader of the rebel forces in Congo) is a decisive step towards strengthening the international enforcement machinery and deterring future perpetrators who might think that they can go on unwatched and unpunished. Political commitments made via the Paris Principles towards disarmament, demobilisation and reintegration of children associated with armed conflict have confirmed the resolve of several conflict-ridden nations and their governments towards protection of children’s rights.

In spite of these prolonged efforts at the international level, ground realities show a deteriorating condition for children in conflict-affected areas. Just over the last decade, some 6 million children have been wounded in armed conflict. Current estimates peg the number of child-soldiers at 300,000. Where has the international community failed and what is the way forward?

“Era of application” and strategies for execution

If the world community is going to witness any further success in its endeavours, the 21st Century will have to be an era of implementation. This is easier said than done considering that the nature of conflict has changed i.e. battles are increasingly being fought intra-state by non-state actors including disbanded militia and rebel forces. Additionally, terrorism has literally brought war into ‘one’s own backyard’ requiring the use of precision strikes and aerial bombings that cause collateral damage. Application of international law to such non-state actors and its enforcement remains a challenge.

Some other strategies that might help reduce the negative impact of armed rebellions on children:

  • Removal of small arms stockpiles
  • Cutting shipment lines for illegal trade in arms
  • Ending political/financial/military support to groups that conscript children
  • Certification systems e.g. the Kimberly certification scheme which imposes strict standards before which a diamond can be termed as conflict-free
  • Improved monitoring and reporting (as has been envisaged by the Security Council’s Working Group): This will help in gathering data, creating records, supporting future prosecutions of offenders etc.
  • Increasing awareness amongst families and communities regarding human rights and international norms
  • Convincing non-state actors to demobilise child soldiers
  • Renewal of support to anti-mine groups

Reintegration and Peacebuilding

Reintegration of children in society is an essential function of peacebuilding and the UN sends child protection officers along with peacekeeping forces to provide, amongst other things, training to its soldiers.  The task of reintegration is complex given the heterogeneity of experiences children face during armed rebellions.

How does one ensure that children aren’t painted with the same brush (especially through institutionalised mechanisms)?

Does the international community have an overly simplified understanding of the mental state and condition of children in conflict-zones? Perhaps there is a greater need for reintegration to be ‘age appropriate’, ‘gender focused’ and ‘community based’? A girl who has been a child soldier, rape victim and a child mother might need counselling on different fronts for her ‘double trauma’. A child soldier turned major will need a different approach to reintegration that someone of lesser age. There could be children who don’t require counselling at all and show signs of “spontaneous reintegration” whereas others might need spiritual healing for their sense of alienation, guilt and anger.

Just as the approach towards reintegration can be varied, the healing process itself could involve both institutional and non-institutional mechanisms. Through combined efforts involving political will, community structures and youth led initiatives children of war and conflict can hope to attain emancipation from its scourges.

Will God ever return to Rwanda to spend the night?

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By Sidhartha Jatar

With the Tanzania based ICTR sentencing former defence official Theoneste Bagosora to life in prison for participating in the 1994 genocide in Rwanda, the international community can ‘pat itself on the back’ for a remarkable first – Bagosora is the first person to be indicted by the tribunal for planning and organizing killings.

Ever since the ICTR was set up in 1997, over 34 people have been convicted and 23 still remain on trial. Recently, a famous singer – Simon Bikindi was sentenced to 15 years in prison for an inflammatory speech he made inciting violence against Tutsis during the genocide. Such convictions go a long way in reassuring Rwandans that justice has not left their doorstep and perpetrators of this inhuman crime will be brought to book.

That, however, does not take away from the fact that over 800,000 people were killed in a period of 100 days during the genocide. Compare this to Pol Pot’s murder of a million victims in Cambodia over four years or Hitler’s systematic extermination of Jews during World War two and the scale and rate of the genocide will become clear.

History of the conflict

The root of this conflict lies in social differentiation and concentration of power amongst the Tutsi elite (the minority group) which exercised total control over the Hutu majority for centuries. While a case of elitism may be made against the Tutsi community, racial prejudice and the myth of Tutsi superiority was implanted and reinforced only during European colonization (since 1894). E.g. John Hanning Speke, the Nile explorer, propounded the Hamitic hypothesis according to which all culture and civilization in the region was introduced by the fairer, taller Tutsi community. The Germans and Belgians exploited such vague theories and instituted a policy of indirect rule (Tutsi chieftains were left to rule but in reality were mere puppets), thereby perpetuating feudalistic ways and introducing a system of apartheid.

During the independence movement in 1959, the Tutsi’s – who had long been favoured by the Europeans – found themselves at the receiving end as the Belgians switched sides and backed the rebellion towards majority Hutu rule. This resulted in an exodus of Tutsi’s from Rwanda who for the better part of their lives would live stateless in Uganda, Burundi, Zaire (now Congo) and Tanzania. Through a UN supervised referendum, a Hutu led party came to power in 1961 and the century’s old Tutsi power base shifted to the Hutu majority. The following three decades would see an internal power struggle with a leader emerging in the form of Juvenal Habyarimana. The revolutionaries in Rwanda would, in the words of V.S Naipaul, become “mimic men” as they practiced the very abuses which they had revolted against. Habyarimana declared in 1986 that Rwanda was full and could not accommodate any Tutsi refugees: the Rwanda Patriotic Front (Tutsi rebels) was founded in Uganda the following year. In 1990, an attack by the RPF on Rwanda resulted in probably the first genocide against the Tutsi community with newspapers such as Kangura circulating the “Hutu Ten Commandments” urging violence on all fronts. As tensions mounted and the fighting intensified, over a million people were displaced and left homeless. In 1993, renewed peace negotiations resulted in the Arusha Peace agreement and UNAMIR was deployed by the UNSC to implement it. Any progress that may have been made was unfortunately reversed when President Habyarimana’s plane was shot down (allegedly by the RPF but suspectedly by his own military officers). This moment was used by the Government to justify a wide-scale slaughter of Tutsi’s. Radio Rwanda reported that the Virgin Mary had told a renowned local visionary that she approved the killing of Tutsis and that the President was with her in Heaven. The Interhamwe, a pro-government militia assisted in the bloodletting. Militiamen with machetes cut off hands and limbs of people, raped women and dumped bodies into river streams. One can only imagine the fear and desperation that people must have felt. Whereas the genocide might have been expected to strengthen the ruling Hutu party, in fact, the R.P.F gained control of Rwanda and established a new government. Revenge killings followed and an estimated two million Hutus fled to neighbouring Congo. Ever since, a Hutu rebel force has grown in Congo resulting in the Tutsi government of Rwanda invading Congo twice with the objective of eliminating the Hutu militia. Over five million lives have been lost in this renewed conflict and the worst seems yet to come considering that the struggle -which has spread to Congo – is no longer about an ethnic struggle but also about a race for resources. Today, an ethnic-Tutsi Congolese military rebel named Laurent Nkunda runs amok. Under the garb of eliminating the Hutu militia, he has occupied resource rich regions of Congo and in the process committed several war crimes for which he is sought by Congolese authorities and the international community. The death of innocent civilians continues as the plague of hatred and violence spreads like wildfire.

Reflections

Who is to blame for this crisis? Can we pin-point a perpetrator and serve the cause of justice by trying henchmen and militia leaders? Was this genocide a crime against humanity (in its non-technical sense) or a crime by humanity? After all, military bosses, businessman, mayors, journalists, teachers, taxi-drivers, shopkeepers and a host of unidentifiable persons were involved in the fratricide. Even today amongst the crowd lurk murderers and rapists who did no better than the men being tried at the ICTR. How can society punish them? Would the slow and painstaking trials at the ICTR satisfy Rwandans? Would it fill the vacuum left behind?

In Rwanda there exists a fractured society and a psychologically traumatised generation which will have to deal with the complexity of the conflict and its socio-political and historical dimensions. Survivors of this tragedy will have to rebuild their faith in humanity and answer a seemingly unanswerable question -”When a people murders up to a million fellow-countrymen, what does it mean to survive?”

To end with a note of optimism and hope for the future, a famous Rwandan proverb would seem apt: imana yirirwa ahandi igataha i – God spends the day elsewhere, but always comes back to spend the night in Rwanda.

(Image Source: Wiki Commons)

A Report on the International Criminal Tribunal for Rwanda

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BY Shardul Singh

Rwanda is small hilly and densely populated African country surrounded by rivers and lakes. It is said that god comes to rest every night in this beautiful country.

In Rwanda three ethnic communities live, Hutu,Tutsi and the Twa. Rwanda was a colony of Belgium. They severally segregated the population of Rwanda into three ethnic communities. Belg regarded Tutsis to be more educated, taller and having a lighter skin colour. Hutus are the majority tribe. Twa constituted a very small minority.

The International Criminal Tribunal for Rwanda was established at Arusha, Tanzania in November 1994 by the Security Council acting under Chapter Seven of the UN Charter. Genocide in Rwanda took place between 6th April 1994 and 17th July 1994 after the plane of the former President of Rwanda was shot down. Military effectively took control of the country and committed mass scale murders. One estimate says that 500,000 people were massacred in three months

Apart from being beautiful Rwanda is also a country with the most well organized administrative setup in comparison to the rest of the African countries. It has Prefectures (Provinces), Districts which are divided into Secteurs. Each Secteur is further divided into Cellules. Cellule is the smallest administrative unit in the country which implements governmental policies at the grassroot level.

Since I have been working with the OTP (Prosecution) and coming from a legal background, I would keep my article on the legal side rather than on the political, however there are areas where International Politics does have its impact on the working of the Tribunal. I would discuss Political factors as briefly as possible.

Principal Organs of the UN ICTR

1. The Registry- It assists the judges. It is also the place where all the filling of documents and signing and sealing of the documents is done, much like in India, it also performs certain administrative functions.
2. The OTP-Short for Office of the Prosecution. Office of the Prosecution decides which perpetrator is to be indicted. Since OTP selects the targets, it becomes a very important organ of the UNICTR
3. The Chambers and the Appeals chambers

A) OTP (office of the Prosecution)

The Head Prosecutor is Mr.Justice Hassan B Jallow , from the African nation of Gambia. He is the headmaster for all the other Senior/Assistant Trial Prosecutors. He represents the prosecution and reports its progress to the Security Council and the General Assembly

The OTP is divided into small trial teams headed by a Senior Trial Prosecutor which has an investigator. Translators are provided to translate documents from Kinyarwanda to English and French.

Prosecution has good resources at its disposal when compared to Defense. Prosecution has investigators in Kigali which interview witnesses. Their task may also extend to collecting relevant documents from the Gacaca courts in Rwanda and other normal Rwandan courts. Based on the decision of the office of the Prosecutor, investigators focus their attention on obtaining evidence and witnesses against the accused.

My observation has been that some times investigators snub the witness from giving evidence against many other people purely because they were told to concentrate against a certain accused. This leads to huge chunks of information missing from the chain of evens, making the courts task very difficult.

B).Defense

I have been fortunate to come across Lawyers working for the Defense who have impeccable careers in their municipal jurisdictions and they are masters of criminal law to say the least.

Defense has its own investigators which are not on the pay roll of UN-ICTR; these investigators are on the look out to collect evidence to contradict the prosecutions case.

Defense is also paid by the UN-ICTR depending upon the number of hours put in by them, but they are not a part of UN-ICTR. They do not have an access to the huge collection of documents in the data bases provided to the Prosecution.

There are times when the defense depends on the Prosecution’s office to provide them with certain documents. I humbly submit that, if the defense is also allowed to reach these archives it would better serve the cause of Justice

C).Court Practices

i) The trial in the court rooms remain much like the way trials are conducted in India. Exchanges have to be much slower since the court is working in three different languages simultaneously. The rules of Procedure and Evidence are very similar, if not exact, to the Code of Criminal Procedure in India.

The interesting aspect of the trial is the blend of both Civil law and Common law practices. Some Civil law Judges will aggressively takeover the role of the Prosecution or the Defense during Examination in chief or Cross Examination. Common law Judges act like umpires whereas the Judges from Civil law countries will be active players along with being a referee.

At the UN-ICTR elements of both Civil Law and Common Law systems find themselves in the court room since Judges from both these system constitute a bench.

ii) Quick disposal of Cases- The Tribunal has been extremely good when it comes to disposal of cases inspite of the fact that in a single accused case, there may be more than 25 witness on the either side of the court room. The reason for that is that the same bench sits for the entirety of case’s duration, without breaking. This means courts hears and records evidence without frequent adjournments.
After the prosecutions case is over six weeks are given to the defense to prepare its case.

Criticism of the Tribunal

a). I was deeply privileged to exchange views with Prof. Lennox Hings , the Lead Defense council for Colonel Ephrem Setako

According to him, Justice was not done by the Trial court in the Media case where Barayagwiza was detained for a long period of time without any specific charges being brought against him.

It is a human right violation since he could not defend himself. He was not told the grounds for his detention, making his detention illegal. The Appeals Chamber acknowledged that fact and held that under such circumstances no fair trial can take place and Barayagwiza should me released. Before Barayagwiza could be released the Rwandan Government threatened the Tribunal by saying that it would if Barayagwiza is released we will shut down the Prosecutor’s office in Kigali and we will not allow any witness to appear before the Tribunal. The Appeals Chamber took a complete U-Turn and decided to try Barayagwiza. They would adjust the number of days illegally spent in the prison with the total sentence, if found guilty .

This clearly shows how Political considerations play a large role on International Criminal Tribunals

Prof. Hings gives another reason why Judges cannot remain independent. Judge have been sitting for a long duration of time and have various cases. Judges have made findings of fact for e.g. was the genocide actually committed etc; same question may crop up successive trials. Judges, in short, are unable to put on the blinders.

What is more troublesome is that the Judges have heard same witnesses in successive trials. It becomes very difficult for them to start afresh when it comes to attaching weight or ruling on the credibility of the same witness.

b). Effect of Gacaca courts-Gacaca has contributed in a major way to the court room confusion at the Tribunal. Gacaca is a system of courts in Rwanda which convicts people for Genocide at the Cellule level; there is Gacaca court at the sector; and one for appeal at the level of each remaining sector . Popular Judges are elected by the people who are often illiterate and lack legal education .These courts sit weekly. They don’t have any specialized procedure .It will not be wrong to say that it is an informalized way of sentencing.

There were tens of thousands of suspects who were awaiting trial in the prisons, and so Gacaca was seen to be cheap and effective to deal with the volume of cases. There may be over 1,000,000 cases to try .

Gacaca doesn’t recognize suspect’s right to defend himself or the right to prompt trial . Gacaca has enormous sentencing power as well. It can award life imprisonment without testing the veracity of the accusation . I remember a witness being sentenced to 30 years in 30 minutes by Gacaca, for merely lying.

What is most surprising is that no judgment is handed down to the convicted person nor are any reasons given for convictions. I have come across a witness who was sentenced by Gacaca in his absence! Appeal is allowed but the suspect doesn’t even know the grounds of his appeal!

How does it affect The Tribunal?

Often the witness’s credibility is impeached by confronting him with his Gacaca proceedings. It is the usual practice followed during the Cross-Examination of the witness. The idea is to confront the witness with the finding of the Gacaca but if the Gacaca proceedings are faulty in the first place then, wood for the trees is lost. Tribunal cannot effectively dispense justice.

Conclusion

There is inherent weakness with these International Courts. They are far from reality and depend on the states for co-operation. UN-ICTR and UN-ICTY alone cost about 20 percent of the total budget of the United Nations and so there is an added pressure on these Ad-Hoc Tribunals to complete their mandates.

Hybrid courts have lesser problems and function more smoothly. They are Municipal Courts with international participation for example Special Court for Sierra Leon.

UN-ICTR has convicted over 35 high profile suspects of Genocide. It is the only International Tribunal which has convicted Head of a State and continues to try high ranking officials and ministers who planned and perpetrated the killings of innocent people.

UN-ICTR has undoubtedly contributed richly to International Criminal Law. Jurisprudence evolved by the Tribunal will form the foundations of International Criminal Court.

(Image: Wiki Commons)

The Definition of Domestic Violence under the DV Act

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Women are an integral part of Indian society but suffer from the violence in the family which doesn’t seem to be substantially curbed by either education or awareness. In fact, Domestic Violence is one of the few phenomena which seems to have cut across all the cultural, socio-economic, educational, ethnic and religious barriers which usually divide society, and, absurdly enough, it seems to increase with a rise in a woman’s education and also prevails among the elite — such as they are.

Before the 2005 Act was passed, there had been attempts by the Government to help protect women (such as by introduction of The Protection from Domestic Violence Bill, 2002 was supposed to do). The Bill was, however, widely criticized as was the one which came before it and was not passed by Parliament.

One of the problems with the Bill was that it didn’t define what Domestic Violence clearly. It spoke of habitually assaulting a woman and no one seemed to know exactly how frequently a woman had to be assaulted for the assault to be habitual.

The 2005 Bill, however, defines domestic violence quite comprehensively. Also, the definition under the Act is not exhaustive.

Under Section 3 of the Domestic Violence Act, 2005, any of several possible perpetrators of domestic violence can be dealt with. These perpetrators are referred to as ‘the respondent’ in the statute and have been defined as any adult male person who is or has been, in a domestic relationship with the aggrieved woman and against whom she has sought any relief under the Act. The perpetrator may be the woman’s husband or a man with whom she shares a relationship in the nature of a marriage.

‘Woman’ means any woman who is or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent and a ‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

A ‘child’ means any person below the age of eighteen years and includes any adopted, step or foster child.

Any act, omission or commission or conduct of the respondent constitutes domestic violence if it:

  • harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the woman or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse
  • harasses, harms, injures or endangers the woman with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security
  • has the effect of threatening the woman or any person related to her by any conduct mentioned above
  • otherwise injures or causes harm, whether physical or mental, to the woman.

Explanations

1. ‘Physical Abuse‘ means any act or conduct which is of such a nature as to cause bodily pain, harm or danger to life, limb or health or impair the health or development of the woman and includes assault, criminal intimidation and criminal force.

2. ‘Sexual Abuse‘ includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman.

3. ‘Verbal and Emotional Abuse‘ includes:

  • insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child
  • repeated threats to cause physical pain to any person in whom the woman is interested.

4. ‘Economic Abuse‘ includes:

  • deprivation of all or any economic or financial resources to which the woman is entitled under any law or custom whether payable under an order of a Court or otherwise or which the woman requires out of necessity including, but not limited to, household necessities for the woman and her children, if any, Stridhan, property, jointly or separately owned by the woman, payment of rental related to the shared household and maintenance
  • disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the woman has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the woman or her children or her Stridhan or any other property jointly or separately held by the woman
  • prohibition or restriction to continued access to resources or facilities which the woman is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

‘Shared household’ means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the woman and the respondent or owned or tenanted by either of them in respect of which either the woman or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the woman has any right, title or interest in the shared household.

To determine whether any act, omission, commission or conduct of the respondent constitutes ‘domestic violence’ under the Act, the overall facts and circumstances of the case shall be taken into consideration.