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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.


(The author is a human rights advocate and the Coordinator of "ICC-India")

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