South and Central Asia

COVID-19 hate crimes: Identifying the Real Virus that infects us [Part – II]

/ Tejaswini Kaushal / Leave a comment

Actions taken by the USA to control COVID-19 hate crimes

COVID-19 hate crimes act in the US

To address the nationwide spike in hate crimes against Asian Americans in 2022, US President Joe Biden signed the COVID-19 Hate Crimes Act in May 2022. Following expert testimony about the spike in crime and grassroots pressure to defend Asian-American neighborhoods, the bipartisan measure was signed. The new Bill aims to enhance law enforcement’s ability to deal with hate crimes through public education campaigns, hate crime hotlines, and training for recognizing hate crimes. The Justice Department will quicken investigations and improve data gathering. The legislation aims to increase public awareness and accessibility of hate crime reporting at local levels.

Overview of the Act

The Congressional Research Service’s description of the Act lists five important provisions:

  1. A designated DOJ officer must expedite the review of hate crimes and related reports.
  2. State, local, and tribal law enforcement must receive DOJ guidance on setting up reporting procedures for online hate crimes and gathering information on protected characteristics.
  3. The DOJ and HHS must release recommendations to increase awareness of hate crimes during the COVID-19 pandemic.
  4. The Act creates funds for state-run hotlines, crime reduction initiatives, law enforcement programs, and the National Incident-Based Reporting System.
  5. Judges may impose community service or educational requirements as a condition of supervised release for those found guilty of a hate crime charge on probation.

Criticism of the Act

Stop AAPI Hate criticized the new law for giving law enforcement more authority, saying that it will only address hate crimes rather than significant hate incidents since it focuses on criminal law enforcement authorities in its remedies. They urged the federal government to address systemic racism and oppression through funding community-based organizations, enhancing civil rights laws, investing in mental health and immigration services, and supporting all communities’ voices and historical events.

Activities undertaken post the Act’s enactment

On the first anniversary of the COVID-19 Hate Crimes Act, the Department of Justice launched initiatives to prevent and address hate crimes and bias-related occurrences. They released new guidelines in collaboration with the HHS to increase understanding of COVID-19-related hate crimes, distributed grant requests for state-run hotlines and neighborhood-based strategies, and hired their first Language Access Coordinator.

Law enforcement systems for reporting, tracking and tackling hate crimes

The COVID-19 Hate Crimes Act was passed to enhance hate crime reporting, response, and prevention at the federal level. However, there is a trust issue between Asian American communities and the police. Some states, such as New York City, have acted to improve this relationship by creating specialized teams to respond to pandemic-related violence and harassment and to educate people about their rights.

Furthermore, many Asian Americans lack confidence that local police will treat them with respect and courtesy, with only 24% feeling very confident. 73% support training law enforcement to recognize anti-Asian American and Pacific Islander bias should be given. Additionally, there is a need to increase the number of Asian American police officers in locations with large Asian American populations since they make up 6% of the US workforce but only 2% of police officers.

As a positive intervention, states like New York City have established special response teams to address pandemic-related hate crimes and improve trust with the Asian-American community by providing education, referrals, and investigations.

Provision of health care facilities, especially mental health services

Health systems need to be prepared to provide culturally and linguistically suitable services (CLAS) to Asian American patients who may have experienced trauma. Clinicians of Asian American origins may need to establish trust with patients who have experienced violence and discrimination. Online services like the Asian Mental Health Project and the National Asian American Pacific Islander Mental Health Association can link Asian Americans with culturally sensitive practitioners. Medical education should emphasize cultural sensitivity, and providers should inquire about prejudice, violence, and mental health issues with patients, as well as be aware of the social isolation and financial difficulties brought on by the pandemic. A responsive mental health workforce is critical, as many Americans of Asian origin may be hesitant to seek treatment.

Devoted research and funding

Only 0.17% of the National Institutes of Health’s research budget is allocated to studying the health requirements of AANHPI despite making up 7.0% of the US population. The Asian American Foundation has pledged significant multimillion-dollar community investments to address bullying in schools and engage interfaith leaders and journalists.

Education in schools

DOJ and the Department of Education offer resources to combat COVID-19-related harassment in schools, while school-based interventions can reduce racism and hate speech. 73% of Asian Americans support initiatives to educate the public on recognizing anti-AAPI bias to address their historical underrepresentation in society. AANHPI’s historical contributions to the US must be recognized, and more awareness is needed to combat entrenched prejudice and conflicts.

Removing public health reporting of bias

WHO and CDCP had cautioned that racially discriminatory rhetoric during COVID-19 can result in victimization, stigmatization, and division of people. President Biden signed an executive order directing agencies to prevent racism and xenophobia against AANHPIs. Furthermore, the new White House Initiative on Asian Americans, Native Hawaiians, and Pacific Islanders, co-chaired by Xavier Becerra and Katherine Tai, aims to resolve bullying and discrimination, improve quality and fragmentation, expand language translation, and better understand multigenerational household needs. Some local governments have approved resolutions condemning xenophobia.

INTERNATIONAL OBLIGATIONS

1.      International Convention on the Elimination of All Forms of Racial Discrimination

This convention requires nations to “condemn” and eradicate racial discrimination and improve tolerance among all races.

2.      Committee on the Elimination of Racial Discrimination

The Committee on the Elimination of Racial Discrimination (CERD) calls for governments to formally reject hate speech and launch awareness programs and educational policies to combat racism. Training for the police and legal systems is also important to ensure familiarity with international obligations protecting free speech and expression while safeguarding against hate speech. Human Rights Watch recommends that all governments establish action plans to address new forms of discrimination and xenophobia, with the UN High Commissioner for Human Rights providing guidelines for best practices.

Analysis and Conclusion

The incidents of brutality that are pursued in a developed, liberal and tolerant country like the United States put the whole world in a terrible shock. Though change has been brought across the nation to curb the discrimination and hatred towards the Asian-American community, future steps are required to address the growing public health concern of violence against Asian Americans, eradicate prejudice and hatred against Asian Americans, assess new tactics, and determine the future’s most effective methods of health and healing.

COVID-19 Hate Crimes: Identifying the Real Virus that infects us [Part – I]

/ Tejaswini Kaushal / Leave a comment

Asian Americans have reported a surge in hate crimes, including physical violence and harassment, since the outbreak of COVID-19. Health crises such as pandemics have historically been linked to stigmatization and discrimination against Asian people. From their arrival in America in the late 1700s, Asian Americans have faced verbal and physical abuse driven by personal racism and xenophobia. Discriminatory rhetoric and exclusionary policies have also been supported by the state, sustaining this violence at the institutional level. Insecurity and fear of foreigners have been exacerbated by COVID-19, leading to an increase in anti-Asian hate crimes, perpetuating inequality at individual and institutional levels.

What does one mean by a hate crime?

Hate crimes are a pernicious form of violence that target individuals or groups based on their membership or perceived membership in certain social or racial categories, such as ethnicity, religion, gender identity, sexual orientation, and disability, in the form of physical violence, property damage, harassment, and even murder. Hate crimes are distinct from hate speech, which refers to specific types of language that incite hatred or discrimination. Furthermore, while a hate crime is a criminal act, a ‘hate incident’ is noncriminal behavior driven by prejudice, which can potentially culminate into a hate crime.

The rippling consequences of hate crimes

The psychological effects of hate crimes can be profound and far-reaching, not just for the individuals who are directly affected but also for others. Victims of hate crimes that were motivated by hate and prejudice have been shown to have higher levels of psychological distress, including symptoms of despair and anxiety, than those of crimes not perpetuated due to xenophobia or racism. The following reasons for such an evaluation were addressed in a 1999 study:

  1. Hate crimes cause psychological and emotional harm as well as self-esteem issues to the individual victim.
  2. Hate crimes create a generalized fear among the targeted group.
  3. Hate crimes have a ripple effect on other vulnerable groups who associate with the targeted population.
  4. Hate crimes cause severe melancholy and stress in the entire community.

Hate crimes witnessed during the pandemic

The manifestation of the “Othering” theory

“Othering” is a process of marginalization and exclusion that occurs when a dominant group stigmatizes and excludes non-dominant groups who are racially different or lack a sense of “civic belonging”. This process is rooted in prejudice and fear and strengthens the dominant group’s perception of their own “normalcy” while categorizing those who are different as “abnormal.” This historical and ongoing process results in the disempowerment and social exclusion of marginalized groups.

Historical experiences of “othering” by Asian Americans

The projected immigration population of Asians in the US has grown dramatically yet prejudice and hate against them have been ongoing and they are frequently blamed for spreading disease during pandemics, and Asian Americans have historically been “othered” as an edifice and falsely portrayed as a model minority. This has resulted in microaggressions, hate crimes, and other forms of discrimination, like being labeled ‘dirty’ or ‘sickly’ during the pandemic. Asian Americans have been targeted regardless of their multiethnic identity, especially during times of economic instability, adversity, insurgency, or epidemic.

Burgeoning Anti-Asian hate crimes during the COVID-19 pandemic

In addition to prosecuting racial assaults against Asians and individuals of Asian origin, governments should take immediate action to stop racist and xenophobic violence and prejudice associated with the COVID-19 outbreak, according to a statement released by Human Rights Watch. Antonio Guterres stated that a “tsunami of hate and xenophobia, scapegoating and scaremongering around the world” and he asked states to “act now to strengthen the immunity of our societies against the virus of hate“. Government officials and political parties in various countries have used the COVID-19 pandemic to spread anti-immigrant, xenophobic, and white supremacist beliefs. This has resulted in an increase in hate crimes against minorities, including Asians.

Recent COVID-19 hate crime incidents in the US

Over the past year, more than 6,600 hate crimes have been reported against Asian-Americans, according to the advocacy group Stop AAPI Hate. Over the two years that the COVID-19 virus was widespread, several cases of violence and hate crimes in public spaces came up in the US. Some of the most preposterous attacks include homicide of an 84-year-old Thai immigrant on his daily walk in San Francisco, a 91-year-old senior being pushed to the ground in Oakland, assault and setting on fire an 89-year-old Chinese woman in Brooklyn, six Asian-American women being were shot at work in Atlanta, stabbing of two Asian American ladies at a bus stand in San Francisco,  among countless others.

Asian-American community lacked timely and sufficient support during the rise of hate speech in the US, possibly influenced by Trump and Pompeo’s use of “Chinese virus” and “Wuhan virus” in 2020. While Trump later stopped doing so, he did not call for government action either. In contrast, President Biden did bring out reforms to protect the Asian-American community in 2021.

Related issues with COVID-19 hate crimes in the US

Hate crimes often go unreported due to obstacles that hinder victims from reporting to local police, resulting in underreporting and a partial picture of the prevalence of hate crimes. Language barriers can also prevent Asian immigrants from reporting victimization. Additionally, mistrust of law enforcement and concerns about immigration status may deter victims from reporting hate crimes.

Chronicles of an Unsung Village:  Analysing the legality of a Chinese Hamlet in Arunachal Pradesh through an International Law Perspective 

/ Indrasish Majumder / Leave a comment

The term “territorial integrity” has a broad definition, embracing both territorial sovereignty and territorial preservation. The principle’s origins may be traced back to the Treaty of Westphalia, which established the territorial integrity and non-intervention principle as two key principles in international law in 1648. The idea of territorial integrity is incorporated into the UN Charter’s first chapter, as evidenced by the phrase “All members shall refrain from threatening or using force against the territorial integrity of any state…”

Many international treaties, such as the Organisation of Arab States (1948), the African Union (2000), and the Helsinki Final Act (1975), emphasise the need for territorial integrity protection. While highlighting the significance of a nation’s territorial integrity in his magnum opus, Just and Unjust Wars, Michael Walzer noted that it is founded on the assumption of non-interventionist approaches by states to safeguard a nation’s internal as well as external sovereignty. It ensures the integrity of a country’s border and denotes a country’s autonomy within its own borders. Unfortunately, nations are often victims of territorial integrity violations, and India is one of them this time. The recent building of a hamlet by China in Arunachal Pradesh, as verified by satellite imagery, poses a significant threat for India’s territorial integrity. “The Chinese foreign ministry has justified this construction on the grounds of construction on its own territory and has labelled it a subject of China’s sovereign rights,” according to media sources. Without a doubt, China has long asserted Arunachal Pradesh as part of its territory; however, India has always denied this claim by asserting sovereignty over the north-eastern state. The author in this article seeks to show that China’s actions amount to a violation of the established principle of non-intervention, a violation of UN Charter Article 2(4) against the background of this unlawful construction .

Violation of the Non-Intervention Principle

China’s building of a hamlet in Arunachal Pradesh, a state under India’s territorial sovereignty, is a breach of the non-intervention principle. The principle basically asserts that no country can influence or engage in the internal affairs of another nation, either directly or indirectly. It is based on the principle of preserving international peace and order while respecting each nation’s geographical boundaries. “The concept of non-intervention is a consequence of the principle of sovereign equality of States since it bans States or groups of States from intervening directly or indirectly in the internal or external affairs of other States,” the ICJ said in Nicaragua v. United States. In the Lotus Case (France v. Turkey), the PCIJ said that “the first and main restraint placed by international law upon a state is that a state may not use its authority in any form in the territory of another state.” As a result, every State must be able to conduct its activities without intervention from the outside world. The concept is fundamental in international law and it has been designated as a ‘jus cogens restriction,’ as also shown by the UN Charter and the judgements in the Nicaragua and Lotus cases, in other words, the concept has been elevated to the level of customary international law, and non-compliance is disallowed, subject to specific limitations. Scholars have often used terms like “sovereignty,” “state dignity,” “inviolability of state territory,” and “jus cogens” to emphasise the principle’s critical role in preserving a nation’s territorial integrity. The ‘Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty 1965, G.A. Res. 2131 (XX)’ also recognises it and by the International Court of Justice in the issue of Armed Activities on Congo’s Territories (DRC v. Uganda). China’s non-interventionist policy is constantly criticised, notwithstanding its importance.

China, without a doubt, has strongly proclaimed the non-interventionist stance at the Bandung Conference and on countless other occasions, but its interventionist acts have exibited that there is a contradiction between China’s words and deeds. China, as the world’s economic and military superpower, has often crossed international borders to further its own objectives. Similarly, China has engaged in “quiet intervention” by erecting Hamlets on Indian soil, thus intervening in India’s internal issues. China participates in certain interventions quietly, but refuses to use the word “intervention” to excuse its intrusive behaviour. China is promoting itself as a “New Assertive China” in the guise of constructive involvement. As a result, it would not be inaccurate to remark that China’s uncertain foreign policy is a double-edged sword. On the one hand, it has the potential to provide the best possible results, on the other side, it is frowned upon.

The violation of UN Charter’s Article 2(4)

Two cornerstone concepts of international law are reflected in Article 2(4) of the UN Charter: first, the principle of non-intervention, and second, the sovereign equality of all countries. The usage of the phrase “refrain from using force against territorial integrity” in Article 2(4) of the UN Charter encompasses unlawful expansion into the borders of other states as well as cross-border occurrences that infringe on the nation’s territorial sovereignty. Applying this Article to China, as a UN Charter member, the building of a village in Indian territory of Arunachal Pradesh is comparable to cross-border unlawful conduct, thus breaching India’s territorial sovereignty and the UN Charter’s aims, as defined under Article 2(4) of the UN Charter. Furthermore, China cannot use Article 51 of the UN Charter’s right of self-defence mechanism since the condition of a “armed attack by another nation” is obviously lacking in the present situation, as India has not initiated any kind of military attack against China’s village development.

Conclusion

In conclusion, China has placed a question mark on the implementation of the above cited principles by establishing an apparent Hamlet inside India’s geographical boundaries, based on a study of a globally recognised legal framework to safeguard a country’s territorial integrity. The alleged Sino operation has not only violated India’s sovereignty in the area, but also the recognised principle of non-intervention, as well as the UN Charter’s Article 2(4). The well-established concept of Non-Intervention, as its name indicates, demands a state to refrain from interfering in the internal affairs of another state, either directly or indirectly. As a signatory to the United States Charter, China is obligated by its regulations, which stipulate in Article 2 that the principles of non-intervention and sovereign equality of all nations are the cornerstones of international law. China, on the other hand, has failed to comply with both. China has even gone so far as to breach other Treaty duties, including the requirement in the Declaration on Friendly Relations, the Declaration on the Right to Development, and the Manila Declaration that nations maintain each other’s territorial integrity. Though the Indo-China Border Dispute extends back centuries, the Sino side’s continued violations of international law reveal that diplomatic discussions have been ineffective, and there is a foreshadowing of a catastrophic confrontation to come.

Horrors of a Rape Trial in India: A Saga of threat for masturbation or delivery of Justice?

/ Amreen Tapadar & Deeksha Sharma / 1 Comment

Introduction

About 50% of the Indian male population is positively traced with a sexual dysfunction which creates hindrances in basic human instincts, leaving one crippled with ignominy. Impotence is the inability in developing or maintaining a penile erection sufficient to conclude the act of intercourse to orgasm and/or ejaculation occurring biologically which is mainly of two types-physical and psychological. Unlike sterility, potency is transitorily dependent on various factors. Untreated Impotence results in sexual sadism. The Mental Healthcare Act 2017, disregards sadism or psychologically generated impotence, indirectly making India the “impotence capital of the world.”

Secondly, the atrocious Impotence Test prevailing chiefly is considered a decisive piece of evidence in cases of rape. This embarks the beginning of torture in the Indian Criminal Justice System. The inhumane approach adopted by the Indian Penal Code in giving discretionary powers to the police officers attacks the scheme of the Indian Constitution. Despite the generic relevance of the test in most cases, routine practice violates Article 21 (Right to Life) of the Indian Constitution. In this article, we highlight the extraneous essence of the impotence test in light of the Indian Criminal justice system and the Indian Constitution.

The terror of the Impotence Test

Traditional female-centric laws pertaining to sexual offences in India butcher male integrity and violate their basic human rights. Checking the potency in rape cases remains a significant practice of law. The relevance of potency extends to adoption, nullity of marriage and divorce along with sexual offences.

Section 53 of the Criminal Procedure Code (Cr.P.C.) showers “unfettered discretionary power” on police to believe that an examination will afford evidence for the case and wistfully magistrates are ousted of such powers. The lacunae in the provision can be identified as:

Firstly, according to acclaimed Modi’s Indian Medical Jurisprudence, the potency test establishes the capability of committing the alleged sexual acts but the hamartia is the laxity of courts in considering situational and psychological factors, resulting in varying opinion of courts on similar matters.

Secondly, force may be used by the police authorities on the unwilling person to collect samples, otherwise threat of masturbation performed on him is invited caused by wrongful interpretation. Religious seers,like Raghaveshwara Bharathi and Asaram accused of rape faced a similar threat. The DNA Technology (Use and Application) Regulation Bill, 2018, bifurcates consent required in taking bodily fluid into two instances, written Consent  in crimes with less than 7 years of punishment and no consent for crimes with punishment of more than 7 years. The clear legislative intent is to differentiate between the two which gets contradicted by the unchecked power given to police authorities in deciding the necessity of performing the examination. Thus, the Indian Penal Code violates the ‘due process of law’ of the Indian Constitution.

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CCIL 2018: “The Role of International Criminal Law and the ICC in Responding to the Alleged Crimes Perpetrated Against the Rohingya”

/ Ariel Wheway / Leave a comment

On November 1 and 2, 2018, the Canadian Council on International Law (CCIL) held its annual conference in Ottawa, Canada. This conference is touted as one of the premier international law conferences in the world, bringing together scholars and practitioners from across Canada, the United States and Europe. This year’s topic was “International Law at the Boundaries,” which recognized the role of non-state actors and ideas that seek to push international law to its limits.

One particular panel discussed three important, and even novel, issues within international criminal law: (1) jurisdiction over crimes committed by a non-state party; (2) sexual and gender-based violence; and (3) the role of social media in contributing to these crimes. “The Role of International Criminal Law and the International Criminal Court (ICC) in Responding to the Alleged Crimes Perpetrated against the Rohingya,” examined the ongoing situation in Myanmar and the ICC’s role in holding perpetrators of international crimes accountable. Fannie Lafontaine of Laval University’s Faculty of Law and the Canadian Partnership for International Justice chaired the panel of three speakers: Payam Akhavan of McGill University’s Faculty of Law, Valerie Oosterveld of Western University’s Faculty of Law, and Kyle Matthews of the Montreal Institute for Genocide and Human Rights Studies.

Akhavan discussed the ICC’s jurisdiction over the crimes committed against the Rohingya. This has been an area that has required some thought because Myanmar is not a party to the Rome Statute of the ICC, and therefore the Court does not have jurisdiction over crimes committed on its territory unless a referral by the United Nations Security Council is made (which has not happened yet and has been suggested to be unlikely). Akhavan highlighted how the ICC’s jurisdiction is currently being established through the crime of forced deportation as an underlying act of the crime against humanity. Forced deportation involves the crossing of international borders, and because the act of deporting the Rohingya ended on the territory of a state that is a party to the Rome Statute—Bangladesh—the Court has jurisdiction to try those responsible for forcing the Rohingya into Bangladesh.

Oosterveld ended the panel with a discussion of sexual and gender-based violence in the context of the Rohingya. She discussed the many ways that Rohingya women and girls are targeted and then humiliated through public gang-rapes to promote terror, and even ‘branded’ by their perpetrators biting them. Men and boys suffered similar treatment in detention from their captors trying to gain information.

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WHERE DO THE ROHINGYA GO?

/ Rashmi Raman / Leave a comment

In a historically important decision, the Pre-Trial Chamber of the International Criminal Court has today decided that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh. The Prosecutor submitted her request to the Court under Article 19 (3) of the Rome Statute of the ICC submitting that even though most of the crimes against the Rohingya have taken place within the sovereign territory of a non-state party Myanmar, over which the ICC is unable to exercise jurisdiction, one discrete incident, that is the incident of border crossing into the territory of a member state Bangladesh, creates enough ground to attract the jurisdiction of the ICC over the crime of deportation associated with the border crossing. This is a step into unchartered waters for the ICC – never before has the principle of territoriality of a crime been reviewed independently of the “territorial integrity” of states. To venture into this area would be to bring the obligations of three states – Myanmar, Bangladesh and India (into which Rohingya populations have entered seeking asylum) under general principles of international law into question – for a group whose terrible suffering has been at the forefront of all human rights billboards this year.

Two provisions of the Rome Statute have been provocatively interpreted by the Prosecutor and the Pre Trial Chamber in its majority ruling on admissibility today. These are Articles 19 (3) and 119 (1). 19 (3) is the Prosecutor’s power to approach the Court in the matter of determining certain judicial questions before embarking on a course of action that may involve invoking the Court’s jurisdiction. The Chamber notes that at the heart of this request is question of invoking the jurisdiction of the Court under Article 12 (2) (a) in the context of an alleged forceful deportation of the Rohingya from the Rakhine region of Myanmar into Bangladesh. The Chamber then relies on old jurisprudence from the PCIJ in the Mavrommatis Palestine Concessions and the ICJ’s more recent East Timor (Portugal v. Australia) as well as a host of other cases from various other international courts and tribunals to hold that the definition of “dispute” is one that is open to judicial interpretation. It thus finds that its jurisdiction is subject to “dispute with Myanmar” and that it is competent to entertain this request under Article 119 (1). Further the Chamber relies on a general principle of international law – Kompetenz Kompetenz and cites a powerful battery of precedents to establish that as an international court of law, it has the power to determine its own jurisdiction under the Rome Statute and exercise its jurisdiction to admit the request made by the Prosecutor.

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The Role of Mercy in India

/ Shubhangi Agarwalla / Leave a comment

There has been such a sustained focus on the right to impose death that it sometimes eclipses its essential corollary, namely the sovereign right to spare life. In India’s modern political system, this power to spare life remains in the form of executive clemency. Executive clemency, enumerated in Article 72 of the Indian Constitution, represents an escape valve where officials unaffiliated with the judiciary can survey the landscape and make decisions on factors beyond the law. Thus, the most logical use of clemency powers is when an individual wrongly convicted, can demonstrate that the system failed or that they are innocent. Critics, however, have argued that this conflicts with the demands of justice and equality, demands a liberal state presumably must heed. Due to mercy’s arbitrary and capricious nature, the state, they argue, should be lawful, not merciful. A study of the mercy petitions rejected by various Presidents in recent history lends some merit to their argument since it reveals a trend of politicization of mercy.

For example, the rejection of Saibanna’s mercy petition came right after the December 16 gang rape; a time when the government needed a facile gesture to show that it was tough on crime against women. He had been sentenced to death for murdering his second wife and daughter after having been convicted for murdering his first wife, however his case was riddled with glaring judicial blunders from start to end. Both the trial court and the High Court convicted and sentenced Saibanna under s. 303 of the Indian Penal Code which provided for mandatory death sentence but had been struck down as unconstitutional some twenty years earlier. The Supreme Court took full notice of the s. 303 issue but then noted that the session’s court faulty finding did not prejudice the cause of the accused since there was no record of any mitigating circumstances.

However what the Court failed to consider was that in cases under s. 303 there is no sentencing hearing, and hence no opportunity to bring on record mitigating circumstances. Moreover, the Court squarely based its death sentence verdict on the erroneous view that Saibanna, already undergoing a life sentence, could not be sentenced to life imprisonment again, and therefore the death sentence was the only available punishment. Thus in effect, the Supreme Court revived mandatory death sentencing. So glaring were these errors that a campaign had been launched pursuant to which fourteen eminent retired judges of the High Court and the Supreme Court
wrote to the President asking him to commute these death sentences. They said that it would be unconscionable and a blot on the administration of justice to execute Saibanna whose petition had been pending for 25 years. These factors should have necessitated the commutation of the death sentence by a government with even an iota of respect for the rule of law. Continue reading →

New supplements to the International Protocol on documentation and investigation of sexual violence in conflict for Iraq, Myanmar and Sri Lanka

/ Sarah Fulton / Leave a comment

Cover_Myanmar_Burmese supplement.jpgOnce hidden and unspoken, reports of sexual violence now feature prominently in daily media dispatches from conflict zones around the world. This visibility has contributed to a new emphasis on preventing and addressing such violence at the international level.

Promoting the investigation and documentation of these crimes is a key component of the international community’s response. However, this response requires thoughtful and skilled documenters.  Poor documentation may do more harm than good, retraumatising survivors, and undermining future accountability efforts.

Recently, the Institute for International Criminal Investigations (IICI) and international anti-torture organisation REDRESS, with the funding support of the United Kingdom’s Foreign and Commonwealth Office (FCO), have launched a series of country-specific guides to assist those documenting and investigating conflict-related sexual violence in Myanmar, Sri Lanka and Iraq.

The guides (available in English, Burmese, Tamil, Sinhalese, Arabic and Kurdish on the REDRESS and IICI websites) complement the second edition of the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict, published in March 2017 by the FCO.

The Protocol aims to support practitioners to document appropriately by providing a “set of guidelines setting out best practice on how to document, or investigate, sexual violence as a war crime, crime against humanity, act of genocide or other serious violation of international criminal, human rights or humanitarian law”. It is a tremendous resource for practitioners, covering theoretical, legal and practical aspects of documentation.

However, as the Protocol itself makes clear, documentation of conflict-related sexual violence is highly context-specific. Each conflict situation and country has individual legal and practical aspects that must be considered alongside the Protocol’s guidelines.

The guides aim to fill this gap by addressing the context for and characteristics of conflict-related sexual violence in the three countries. They address legal avenues for justice domestically and at the international level, specific evidential and procedural requirements and practical issues that may arise when documenting such crimes.

The publication of these guides on the three different countries highlights some interesting comparisons and contrasts.  Although the background to and most common forms of sexual violence differ from country to country, the motivations for the violence have parallels. Similarly, the stigmatisation of survivors is a grave concern in each country, influencing all aspects of daily life for them and the way that institutions and individuals respond to the crimes committed against them.

In all three countries, a landscape of almost complete impunity prevails, and in many situations survivors, their families and practitioners face significant threats to their security – often from state actors (e.g. police, military, state security). This harsh reality is borne out by the fact that although the drafting of the supplements relied heavily on the experience and input of local practitioners, due to security concerns, very few were able to be individually acknowledged for their contributions.  Continue reading →

Remembering Female Prisoners of Conscience on International Women’s Day

/ Kate Barth / Leave a comment

Women's Day blog photo (00000002)

Female Prisoners of Conscience (starting top left, clockwise): Diane Rwigara (Rwanda), Khadija Ismayilova (Azerbaijan, now released), Golrokh Ebrahimi Iraee (Iran), and Atena Daemi (Iran) 

Today, as we celebrate International Women’s Day, let us take a moment to consider the plight of female prisoners of conscience, a group of women distinguished both by their exceptional heroism and by their extreme vulnerability.

As the United Nations has increasingly emphasized in recent years, even among activists, journalists and politicians generally, Women Human Rights Defenders (WHRDs) face heightened danger; they are “subject to the same types of risks as any human rights defender, but as women, they are also targeted for or exposed to gender-specific threats and gender-specific violence.” The factors behind these heightened risks are complicated, but can relate both to the type of work that WHRDs often engage in (advocacy related to women’s issues), as well as who the WHRDs are (women, challenging traditional gender roles). Far too often, WHRDs face stigmatization, exclusion, violence and imprisonment.

Take the case of Diane Rwigara, for instance, a 35-year-old Rwandan politician currently being held in pre-trial detention. Diane’s crime was attempting to run against Rwanda’s authoritarian president Paul Kagame in the most recent election. Within 72 hours of her announcement of her candidacy, nude pictures allegedly of Diane were leaked on social media. When this public shaming failed to intimidate her, she was arrested—along with her mother and sister—and charged with a slew of specious offenses related to forgery, incitement to insurrection, and promotion of sectarian practices. Although Diane and her female relatives were arrested about six months ago, the government has refused to release her and her mother on bail while they await trial. There have been credible reports that the women have been tortured while in prison. If convicted, Diane’s mother and sister could spend up to seven years in prison; Diane herself faces a 15-year-sentence.

Sadly, Diane’s story is not unique. In fact, it hews closely to the authoritarian playbook on how to target a WHRD. Those who follow prisoner of conscience cases might remember a similar fact-pattern playing out with respect to Khadija Ismayilova, a prominent Azerbaijani investigative journalist, who was arrested in 2014, after a leaked video of her having sex with her boyfriend—obtained through illegal surveillance in her home—failed to shame her into silence.  After spending nearly 18 months in prison, Khadija was finally released in May 2016, however she remains under a travel ban for at least three more years.

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On the Job! [Helton Fellowship]

/ Osazenoriuwa Ebose / Leave a comment

On the Job! compiles interesting vacancy notices, as follows:
ASIL

► Applications are welcome from recent or current law graduates for the position of Helton Fellow.  The holder of this position receives funded contributions from ASIL members, interest groups, and private foundations to pursue field work and research on significant issues involving international law, human rights, humanitarian affairs, and related areas. Deadline is Monday, January 15, 2018; details here https://www.asil.org/about/helton-fellowship-program.