#NoMoreImpunity || Blog Symposium || Annotated Bibliography on Gender, Torture and Transitional Justice

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Annotated Bibliography on
Gender, Torture and Transitional Justice

Prepared by Mangalam Sridhar

 

  1. Gender  and  Torture  Conference  Report.  REDRESS  and  Amnesty International. October 2011. http://www.redress.org/downloads/publications/GenderandTortureConferenceReport-191011.pdf Accessed on 5/5/2016 at 1420 IST.

#Gender #Torture

The  report  is  a study  from  a  two-day  conference that   brought  in  people  from  different  dimensions like, representatives  from  Non – Governmental  Organisations  and  academics. The  report  focuses  on  the  definition  of  torture  as  per  the  international  law,  the  reasons  why  torture  is  considered  to  be  one  of  the most  serious  crimes  and  the  effects  of  the  different  forms  of  torture. It  looks  into  gender-based  violence  used  as  a  form  of  torture  by  state  actors  in  counter-terrorism  policies and  how  it  is  the  responsibility  of  the  state  when  torture  is  committed  by  the  non-state  actors. It  also  looks  at  the  international  legal  framework  implementing  the  prohibition  of  torture. They  discussed  on  the  role  that  legal  framework  on  torture  has  and  how  it  can  help  in  achieving  justice  for  women  and  those  from  marginalized  groups. It  also  considered  successes  in  advocacy  and  litigation  under  the  legal  framework  on  torture: it  recognised  the  forms  of  harms  by  state  and  non-state  actors  like,  female  genital  mutilation,  rape, etc. And  the  effects  this  recognition  has had.  It  also  focuses  on  the  responsibility  for  harms  by  non-state  actors.

  1. Torture  Research  Bibliography- Chris  Einolf, Assistant  Professor, DePaul University’s  School  of  Public  Service

https://tortureresearch.wordpress.com/Accessed on 6/5/2016 at 1930 IST

#Torture

This  research  bibliography  is  a  web  page  that  provides  academic  scholars, researchers  and  other  commoners  an  understanding  of  what  torture  is  and how  it  can  be  prevented.  It  provides  various  definitions  of  torture  including  the legal  definitions,  scholarly  definitions,  etc. It  also  provides  a  clear  study  on  the history  of  torture  in  the  different  eras. They  also  focus  on  the  micro  level  causes  that  facilitate  torture  like  military  training,  etc.  and  the  macro  level  causes. The  focus  on  gender is  given  in  the  study  about Rape  and  sexual  assault. And  they  have  finally  concluded  with  the  preventive  measures.

  1. Gender and Torture: Does it matter? Published by Centre for Study of Violence and Reconciliation, Johannesburg, South Africa

http://www.isn.ethz.ch/Digital-Library/Publications/Detail/?ots591=0c54e3b3-1e9c-be1e-2c24-a6a8c7060233&lng=en&id=179350 – Link for the PDF of the report. Accessed on 7/5/2016 at 1435 IST

#Gender #Torture

This  report  looks  at  the  different  ways  in  which  Gender  influences  the  impact  of  torture. It  aimed  at  developing  the  African  Torture  Rehabilitation  Model-  a  contextually – informed,  evidence – based  psychosocial  model  for  the  rehabilitation  of  victims  of  torture. They  looked  at  the  likelihood  of  Torture  Victimization, Impact  of  sexual  violence/ torture. The  study  had  three methodologies. It  also  looked  at  the  impacts  separately  for  men  and  women. And  then  a  consensus  was  built  and  interventions  were  proposed.  The  interventions  were  given  based  on  the  real-life  experiences  of  individuals.

  1. Gender  differences  in  Victims  of  War  Torture: Types  of  torture  and  psychological  consequences

http://www.ncbi.nlm.nih.gov/pubmed/20499736 Accessed on 7/5/2016 at 1545 IST

#Gender #Torture

The  study  focused  on  torture  for  political  reasons  on  men  and  women  and  the  various  psychological  impacts  faces  by  them. They  also  looked  at  the  types  of  torture  that  men  and  women  faced  and  found  that  there  were  28  types  of  tortures  frequently  faced  by  men  and  5  among  women. Torture  types  also  revealed  three factors- Common  torture, sadistic  torture  and  sexual  torture. They  concluded  with  a  study  on  torture  faced  by  women  and  men  in  wars.

 

5.  Accountability  for  Past  Abuse- Juan  E.  Mendez, September 1996.

http://kellogg.nd.edu/publications/workingpapers/WPS/233.pdf Accessed on  8/5/2016  at  0015  IST

#TransitionalJustice

It  looks  into  the  massive  human  rights  violations  and  abuse  in  the  past  and  attempts  to  restore  truth  and  justice  to  the  legacy  of  abuse  in  the  recent  past. It  also  looks  at  various  dimensions  of  the  problem-  legal, political  and  ethical  dimensions. It  focuses  on  ways  to  look  into  these  problems  and  how  to  tackle  them.  It  also  mentions  the  different  measures  taken  by  various  countries  to  curb  these  problems,  and  looks  at  the  international  law. It  looks  for  ways  to  avoid  false  dilemmas  and  looks  for  moral  justifications  for  prosecutions  for  all  kinds  of  violations  committed  or  faced. Lastly,  it  looks  at  universal  principles  and  the  differences  between  countries  while  trying  to  find  solutions  for  the  violations  and  crimes.

 

  1. Gender  and  Transitional  Justice  in  Africa:  Progress  and  Prospects- Helen  Scanlon  and  Kelli  Muddell

http://www.ajol.info/index.php/ajcr/article/viewFile/52170/40796 Accessed  on  8/5/2016  at  1200 IST

#Africa #Gender #TransitionalJustice

This  study  looks  at  the  needs  to  address  the  gender-based  violations  and  the  needs  to  address  the  kinds  of  violations  that women  face.  It  also  looks  at  negative  impacts  that  follow  when  gender – based  violations  are  neglected. It  focuses  on  the  legal  mechanisms  and  the  international  law- its  importance  and  contributions. Then,  it  looks  at  providing  amends  or  reparations,  security  sector  reform (SSR), mechanisms, emerging  concerns  and  the  challenges  for  Gender  and Transitional  Justice.

 

  1. Convention  Against  Torture: A  viable  alternative  legal  remedy  for  domestic  violence  victims- Barbara  Cochrane  Alexander

http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1277&context=auilr Accessed on 8/5/2016 at 1415 IST

#Gender #Torture

The  study  first  looks  at  torture – conventions  and  prohibitions, both  international  and  domestic. Then,  focuses  on  domestic  violence.  It  compares  Asylum  with  convention  against  torture(CAT)  relief  where, it  focuses  on  the  benefits  the  asylum provides  for  domestic  violence  victims, looks  at  the  requirements  for  the  survivor  of  domestic  violence  to  receive  CAT  reliefs  as  an  alternative  remedy.  There  is   a  detailed  study  on  domestic  violence, it  looks  into  case  studies  and  how  domestic  violence  is  a  form  of  torture.

 

  1. Gender  Inequality  and  its  effects  in  female  torture  survivors- Scientific  Research

http://file.scirp.org/pdf/PSYCH20120400009_94389582.pdf Accessed  on  8/5/2016  at  1420  IST

#Gender #Torture

It  gives  an  introduction  about  gender  inequality  and  torture  from  a  feminist  perspective, looks  at  gender  discrimination  as  a  form  of  trauma  that  has  adverse  effects  on  the  individual-  among  the  types  of  traumas,  this  focuses  on  type  III  trauma  which  is  one  of  the  most  serious  kinds. It  also  looks  at  the  different  dynamics  and  dimensions  of  gender  discrimination. And  there  is  study  conducted  on  gender  discrimination  for  females  and  males  in  different  areas.

 

  1. Transitional  Justice  in   Sri  Lanka  and  ways  forward- Centre  for  policy  alternatives- July  2005.

http://www.cpalanka.org/wp-content/uploads/2015/07/Transitional-Justice-in-Sri-Lanka-and-Ways-Forward.pdf Accessed  on  8/5/2016  at  1600  IST\

#SriLanka #TransitionalJustice

The  report  focuses  on  4  main  aspects  or  areas  for  study. They  are: Recruitment  and  conscription  of  Child  Soldiers,  Disappearances, Sexual  Violence  and  Displacement. Under  the  Recruitment  and  conscription  of  Child  Soldiers, they  look  at  the  definition  of  a  child  soldier,  use  of  child  soldiers, look  into  a  case  study  and  look  at  implementing  methods  to  stop  this  kind  of  a  violation  with the  involvement  of  the  truth  and  reconciliation  commission. Under  Disappearances, they  look  at  the  definition  of  enforced  disappearance,  the  issue  in  Sri  Lanka  and  look  into  a  case  study  where  they  focus  on  various  aspects  like, transition  of  leadership,  involvement  of  the  commission  of  inquiry,etc.  and  suggest  necessary  methods  to  avoid  these  problems. Under  Sexual  Violence, they  only  do  a  brief  study  on  Sexual  Violence  in  Sri  Lanka  and  look  into  a  case  study. Under  Internal  Displacement,  there  is  a  study  on the  issues  in  Sri  Lanka, how  it  has  affected  individuals  and  then  there  is  a  case  study  which  involves  the  National  Recovery  Strategy. Then,  the  importance  of  the  state’s  involvement  and  IDPs  involvement  is  looked  into.

 

  1.  Transitional  Justice  in  Sexual  and  Gender-based  Violence- Makau Mutua

http://www.pambazuka.org/gen//der-minorities/transitional-justice-sexual-and-gender-based-violence Accessed  on  8/5/2016  at  1930 IST

#TransitionalJustice #Gender

It  looks  at  the  need  and  the  importance  of  transitional  justice  to  solve  gender-based  problems. Looks  at  the  problems  women  face  due  to  patriarchy  and  male  centeredness. Focuses  on  early  stage  of  life, learning  and  socialisation  that  plays  an  important  role.  Looks  at  Sexual  and  gender  based  violence- women  and  girls  being  the  main  targets. And  then, legal  and  political  responses  are  looked  into.

 

  1. Gender  Justice-ICTJ

https://www.ictj.org/our-work/transitional-justice-issues/gender-justice Accessed on 8/5/2016  at  2300

#TransitionalJustice #Gender

Looks  at  the  prevalence  of  gender- based  violence  as  a  major  concern  and  looks  at  the  role  of  the  transitional  justice- its  mechanisms. They  also  mention  the  role  of  the  ICTJ like, how  they  support  local  women’s  groups, bring  activists  together,  etc.

 

  1. The  Gender  dimension  of  Transitional  Justice  Mechanisms: Laura.C.Turano

http://nyujilp.org/wp-content/uploads/2013/02/43.4-Turano.pdf Accessed  on  9/5/2016  at  0700  IST

#TransitionalJustice #Gender

Looks  at  the  war  crimes, violence  committed  against  women  during  armed  conflicts, etc. It  focuses  on  the  historical  treatment  of  crimes  committed  against  women  during  armed  conflict  where  we  can  see  that, rape  is  the  least  condemned  war  crime. And  it  also  looks  at  characterizing  the  crimes committed against  women  and  there  is  a  detailed  study, investigation  and  looking  at  ways  to  respect  and  respond  properly  to  the  victims.

 

  1. Torture, Cruel, Inhuman and degrading treatment of Women: Psychological Consequences- Libby Tata Arcel

http://ojs.statsbiblioteket.dk/index.php/psyke/article/viewFile/8530/7087 Accessed  on  11/05/2016  at  1000  IST

#Torture #Gender

This  report  starts  with  an  introduction  on  Torture  and  gender-specific  forms  of  torture. They  look  at  the  important  reason  for  focusing  general  societal  violence  against  women  and  it  looks  at  the  branch  of  human  rights  law. They focus  on  the  World  Conference  on  Human  Rights. Then, they  look  at  the  definition  of  gender-based  violence  and  how  this  definition  is  connected  to  the  definition  of  torture.  They  focus  on  sexual  torture  and  Cruel, Inhuman, Degrading, Treatment  and  Punishment (CIDTP) of  women  by  State  Agents-  This  looks  at  the  definitions  and  forms  of  Sexual  Assault.  It  also  focuses  on   specific  contexts  of  Sexual  Torture  and  CIDTP  like,  Armed  Conflict,  detention  for  various  reasons, etc. Then, they  focus  on  impunity  for  sexual  torturers, recognition  of  rape  as  a  sexual  torture  and  finally  looks  at  the  experience   of  sexual  torture.

 

  1.   Report  on  Gender  Perspectives  on  Torture  and  other  cruel,  inhuman  and degrading  treatment:  Juan.E.Mendez

http://antitorture.org/gender-perspectives-2/ Accessed  on  15/05/2016  at  1530 IST

#Gender #Torture

Firstly, it  talks  about  the  gender  perspectives  on  torture and  other  cruel  or  inhuman  treatment. The  rapporteur  stresses  on  the  applicability  of  the  prohibition  of  torture  and  other  inhuman  treatment  in  international  law  to  the  experiences  of  women, men, transgenders, lesbian, etc. It  focuses  on  the  legal  framework  for  the  need  to  apply  the  convention  against  torture  and  other  inhuman  treatment. They  also  look  at  how  violence, discrimination, etc.  is  not  just  faced  by  women  but  also  by  men,  looks  at  the  purpose  of  the  definition  of  torture  and  how  it  is  fulfilled. Then, it  separately  focuses  on  the  torture  and  other  kinds  of  ill-treatment  faced  by  women, transgenders, lesbian, etc. in detention, health  care  settings, looks  at  the  different kinds  of  abuse  or  violence  like  Rape, Domestic  violence, etc.  and  looks  at  the  various  measures  like,  health  care  and  sanitation, security, etc. It  also  focuses  on  the  different  harmful  practices  like  female genital mutilation, honour- based  violence,  etc. and  the  access  for  women, transgenders, etc  to  justice.

 

#NoMoreImpunity || Blog Symposium || Re-imagining Justice: The Courts of Women Story

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RE-IMAGINING JUSTICE: THE COURTS OF WOMEN STORY

(An extract from a longer essay, Trespass, or Re-imagining Justice.)

Corinne Kumar

Let me gather some stars and make a fire for you and sitting around it, let me tell you a story.

It is a story of the Courts of Women.

It was a dream of many years ago. It began in Asia through the Asian Women’s Human Rights Council who with several other women’s rights groups has held Courts in the Asia Pacific region; El Taller International, a sister organization based in Tunisia has taken these Courts to the other regions of the world- Africa, Arab, Central and Latin America.

The Courts of Women are an unfolding of a space, an imaginary: a horizon that invites us to think, to feel, to challenge, to connect, to dance, to dare to dream.

It is an attempt to define a new space for women, and to infuse this space with a new vision, a new politics. It is a gathering of voices and visions of the global south, locating itself in a discourse of dissent: in itself it is a dislocating practice, challenging the new world order of globalization, crossing lines, breaking new ground: listening to the voices and movements in the margins.

The Courts of Women seek to weave together the objective reality (through analyses of the issues) with the subjective testimonies of the women; the personal with the political; the logical with the lyrical (through video testimonies, artistic images and poetry) the personal with the political, urging us to discern fresh insights, offering us other ways to know, inviting us to seek deeper layers of knowledge; towards creating a new knowledge paradigm.

While the Courts of Women listen to the voices of the survivors, they also listen to the voices of women who resist, who rebel, who refuse to turn against their dreams. They hear the voices of women from the women’s and human rights movements; they hear of survival in the dailiness of life; they hear of women and movements resisting violence in its myriad forms- war, ethnicity, fundamentalism; they hear of women struggling for work, wages, their rights to the land; they hear of how they survive- of their knowledges, their wisdoms that have been inaudible, invisible. They hear challenges to the dominant human rights discourse, whose frames have excluded the knowledges of women. The Courts of Women hear of the need to extend the discourse to include the meanings and symbols and perspectives of women.

The Courts of Women are public hearings: the Court is used in a symbolic way. In the Courts, the voices of the survivors are listened to: women bring their personal testimonies of violence to the Court, which are sacred spaces where women, speaking in a language of suffering, name the crimes, seeking redress, even reparation.

It speaks of a new generation of women’s human rights.

It is an expression of a new imaginary that is finding different ways of speaking truth to power; of challenging power, recognizing that the concepts and categories enshrined in the ideas and institutions of our times are unable to grasp the violence; the Courts of Women are more than speaking truth to power, more than being a critic of power; it is about creating another authority. The Courts of Women also speak truth to the powerless, seeking the conscience of the world, creating reference points other than that of the rule of law, returning ethics to politics. It invites us to the decolonization of our structures, our minds and our imaginations; moving away from the master imaginary, finding worlds, as the Zapatista say, that embrace many worlds. The Courts of Women are about subsumed cultures, subjugated peoples, silenced women reclaiming their political voice and in breaking the silence refusing the conditions by which power maintains its patriarchal control.

The new imaginary invites us to another human rights discourse; one that will not be trapped either in the universalisms of the dominant thinking tied as it is to a market economy, a monoculturalism, a materialistic ethic and the politics and polity of the nation state; neither must it be caught in the discourse of the culture specific but one that will proffer universalisms that have been born out of a dialogue of civilizations, of cultures. And this will mean another ethic of dialogue. We need to find new perspectives on the universality of human rights, in dialogue with other cultural perspectives of reality, other notions of development, democracy, even dissent; other concepts of power (not power to control, power to hegemonize, but power to facilitate, to enhance) and governance; other notions of equality – equality makes us flat and faceless citizens of the nation state, perhaps the notion of dignity which comes from depth, from roots, could change the discourse. Through its very diverse voices, the Courts of Women speak of equality not in terms of sameness, but in terms of difference, a difference that is rooted in dignity, from the roots of peoples, of women who have been excluded, erased; other concepts of justice—justice without revenge that proffers many horizons of discourse and because our eyes do not as yet behold those horizons, it does not mean that those horizons do not exist.

The new political imaginary speaks to an ethic of care:

The Courts of Women are an articulation of this new imaginary.

The Courts of Women invite us to write another history,

to re-tell history, to re-claim the power of memory:

A counter hegemonic history, a history of the margins. The Courts of Women are a journey of the margins, a journey rather than an imagined destination; a journey in which the  dailiness of our lives proffer possibilities for our imaginary, for survival and sustenance, for connectedness and community. For the idea of imaginary is inextricably linked to the personal, political and historical dimensions of community and identity. It is the dislocation expressed by particular social groups that makes possible the articulation of new imaginaries. These social groups, the margins, the homeless, the social movements, the Occupy movements, the Arab spring, the indigenous, the dalits, the women, are beginning to articulate these new imaginaries.

Women through the Courts are writing another history, giving private, individual memory its public face, its political significance; transforming memory and experience into political discourse. The Courts of Women are communities of the suffering, communities of the violated but they are also communities of survivors, of knowers, of healers, of seed keepers, of story tellers, of people telling history as a way of reclaiming memory and voice.

The peasants in Chiapas, Mexico, describing their new imaginary explain their core vision in their struggle for their livelihoods and for retaining their life worlds. And in their profound and careful organization, in their political imagining and vision do not offer clear, rigid, universal truths, knowing that the journey is in itself precious, sum up their vision in three little words :

asking, we walk.

The asking in itself challenges master narratives, masters’ houses, houses of reason; universal truths, of power, of politics, of patriarchy. The Courts of invite us to dismantle the master’s house, for as the poet, Audre Lorde says the master’s tools will never dismantle the master’s house. There is an urgent need to challenge the centralising logic of the master’s narrative implicit in the dominant discourses –of class, of caste, of gender, of race. This dominant logic is a logic of violence and exclusion, a logic of civilised and uncivilised, a logic of superior and inferior.

This centralising logic must be decentered, must be interrupted, even disrupted. 

The Courts of Women speak to this disruption, to this trespass. The Courts of Women are finding new paradigms of knowledge and new paradigms of politics; a politics with an ethic of care, compassion, community, connectedness, a politics with ethics, a political vision that can offer change for all.

The Courts of Women are our dreams of trespass.

The Courts of Women return through testimony, the voices of the dispossessed to political discourse. In its search towards a new political imaginary, the Courts of Women work towards a politics with an ethic of care; for any theory of poverty (poverty lines, the World Bank one-dollar-a day, millennium development goals, poverty reduction strategies, etc.) that is disconnected from a theory of care will not listen to the voice of the other and simply leave the poor out: the new political imaginary speaks to an ethic of care, affirming one’s responsibility to the other, an ethic that will include conviviality (that wonderful phrase of Ivan Illich). The discourse and praxis of rights cannot mean only economic and political emancipation, but must challenge the current paradigms of thought and politics.

The Courts of Women is a tribute to the human spirit: in which testimonies are not only heard but also legitimized. It invites the subjugated and the silenced, to articulate the crimes against them; it is a taking away of the legitimizing dominant ideologies and returning their life-worlds into their own hands. The Courts of Women celebrate the subversive voices, voices that disobey and disrupt the master narrative of war and occupation, of violence, of patriarchy, of poverty.

We need to find new spaces for our imaginations: gathering the subjugated knowledges, seeking ancient wisdoms with new visions, listening to the many voices speaking, but listening too to the many voices, unspoken.

The Courts of Women offer another lyric, another logic,

lifting the human spirit, creating a new imaginary,

offering another dream.

Corinne Kumar is Secretary General of El Taller International, which has pioneered Courts of Women around the world. She is also a founding member of the Asian Women’s Human Rights Council (AWHRC) and of Vimochana.

 

#NoMoreImpunity || Blog Symposium || Women’s Participation in Transitional Justice

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WOMEN’S PARTICIPATION IN TRANSITIONAL JUSTICE: STILL FAR TO GO

Sumadhu Weerawarne-Perera

The experience of war and violent conflict is a gendered one. Its impact on men and women is different. The first round impact of violent conflict includes death and disability, impacting mostly on men, sexual and gender-based violence, widowhood, loss of income, assets and related security and displacement and migration.  The second round of impacts centres on adaptive responses or what victims or victim-families and communities to deal with the consequences of the first round.  These include the necessary induction of women in to civic and economic activities, the attempt to ignore the impacts of violence-related trauma in the effort to inadequately move-on and resultant impact on the women themselves and children.[i]

The possible third round impact relates to state responses to those issues that gave cause and arose out of violent-conflict.  In determining and designing these it is evident that the experience of both men and women during, due to and post-war must be taken into account. But the engagement of men and women in post war contexts is different. Patriarchy determines the space for women’s participation, the depth of women’s participation and the value and relevance accorded to women’s thinking and opinions. Just as much as women made little or no contribution in terms of decision making in the war effort, formally they are not being drawn in equal and representative terms to the transition/ reconciliation process. Most victim survivors of conflict are women – war widows in the north and south, but their participation in determining post war responses is minimal. And the engagement of men and women from a gendered lens is also limited or non-existent.

The presence of women in parliament went down from 5.7 per cent at the last general election.[ii]  This necessarily means that even in terms of numbers women are severely underrepresented in key decision making bodies which determine the policy direction of the government in relation to transition from war to peace.  When Parliament converted into a Constitutional Assembly for the first time in April this year it was with the aim of enacting a new constitution.   Accordingly, 7 deputy chairpersons and 21 steering committee members were elected by the Constitutional Assembly.  Only one of them, a deputy chairperson, is a woman.  Not one of its 21 members of the steering committee which is responsible for coming up with the draft constitution was a woman.   The Prime Minister informed Parliament that appointments for sub committees will be carried out after receiving the report from the Committee on Constitutional Reforms Public Representation before end April. No objections were raised by the opposition when appointing members for the Constitutional Assembly. [iii]

While there is a recognition in Sri Lanka today that a peaceful and just society requires multi ethnic and multi religious representation in decision making, there is still no recognition that men cannot, and should not, seek to represent the  interests of the entirety of society, when more than half of the population of Sri Lanka are women.

The exclusion of women from decision making in Sri Lanka at the highest levels through what appears to be a bi-partisan consensus in the Constitutional Assembly is not a positive sign for a transformation of the polity or its governance. There is a need for civil society to encourage more and more women with qualifications to come forward for public life.  There is also a need for the government to use, as a living and active policy, every opportunity for affirmative action in favour of women, such as in the constitutional reform process and the Constitutional Assembly.  A gendered-response is fundamental to effectively address post-conflict –problems and to build necessary resilience in communities and sustainable peace in the country.  However, efforts so far see limited women’s representative or effective participation.  This is concerning as a generic response without taking into account the heterogeneity of experiences across gender and other disaggregates like geography, ethnicity, age and social class may prove to be non-effective further fuelling the existing problems and cleavages.

On the other hand, the picture is not totally bleak.  At the local government level, legislation was introduced early this year in March to increase the participation of women with a dedicated quota of 25 per cent. This will clearly contribute to improved representation in terms of numbers, at least at the local government level and give some level of voice to women. This has yet to come into effect as no local government election has been held since then.   In addition, the government has announced that the Provincial Councils Elections Act No. 2 of 1988 is to be amended to include a 30 percent quota for women during the nomination of candidates.[iv]  However, the government has also stated that no similar quota will be provided at the parliamentary level and that the expectation is that increased women’s representation in higher levels of governance will take place through the upward mobility of women from the local level.

The basic analysis is from the point of view of inclusion that women represent women best and must necessarily be included in all decision-making processes.  Sri Lanka is today in a post-war transformative state. The transitional justice mechanisms that the government has pledged to set up, including the truth commission, office of missing persons and office of reparations will necessarily see women playing a major role as victim-survivors.  The first of the government’s transitional justice institutions to emerge, the office of missing persons, has special provision for gender concerns in it “to issue from time to time, rules and guidelines, which may include gender-sensitive policies, to be followed by all staff of the OMP relating to the exercise, performance and discharge of its powers, duties and functions.”[v] Those women who participate in these and other decision making forums need to empowered and on par with their male counterparts.  There is a need to be focused on capacity-building and inclusion of women in the transition and reconciliation process.

Sumadhu Weerawarne-Perera is a journalist and communications consultant.

 

[i]    Violent Conflict and Gender Inequality: An Overview by Mayra Buvinic, Monica Das Gupta, Ursula Casabonne  and Philip Verwimp, H i C N Households in Conflict Network, The Institute of Development Studies – at the University of Sussex – Falmer – Brighton – BN1 9RE, http://www.hicn.org

http://www.hicn.org/wordpress/wp-content/uploads/2012/06/HiCN-WP-1291.pdf

[ii]   https://www.parliament.lk/lady-members

[iii] Ensure equitable women’s representation in constitutional reform’ National Peace Council of Sri Lanka, http://srilankamirror.com/news/item/10008-ensure-equitable-women-s-representation-in-constitutional-reform

[iv]   http://www.srilankanewslive.com/news/politics2/item/8259-provincial-councils-elections-act-to-be-amended

[v]  THE GAZETTE OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Part II of May 27, 2016  SUPPLEMENT (Issued on 27. 05. 2016)

#NoMoreImpunity || Blog Symposium || Trials of Sexual Violence in Conflict against Men

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CRIMINAL TRIALS AND TRIBULATIONS OF CONFLICT-RELATED SEXUAL VIOLENCE AGAINST MEN

Anjali Manivannan

Introduction

It is common knowledge today that rape and sexual violence are weapons of war. What is less commonly known is that war puts both women and men at risk of rape and sexual violence. In the post-conflict era, transitional justice processes must wrestle with achieving accountability for mass atrocities, including sexual violence crimes, and the challenges inherent in finding meaningful ways to redress victims. This contribution will discuss the obstacles to and effectiveness of justice for male victims of conflict-related sexual violence in the context of prosecutions—with the caveat that other transitional justice mechanisms, like truth commissions, also tend to significantly sideline these victims. Conflict-related sexual violence against men is a salient topic in many war-torn and postwar countries today, including Sri Lanka, which is presented here as a case study to highlight the complexities of the issue. Prosecutions of this crime are necessary to both provide accountability for Tamil male victims of sexual violence and end impunity for gross human rights violations.

Sexual Violence Is a Weapon Used Against Both Women and Men

The use of sexual violence against men dates back to ancient times and remains a widespread and recurring war tactic.[1] Against men, conflict-related sexual violence may be even more widespread than we think; unfortunately, due to enormous under-reporting, statistics are limited. Conflict-related sexual violence can terrorize and traumatize males as much as females and is committed against the backdrop of patriarchal norms of dominance, power, and gender. Perpetrators of sexual violence against men use it as a tool to emasculate or feminize, homosexualize, and prevent procreation, the last of which is also one of many reasons women are sexually violated. All three motivations aim to privilege perpetrators over male victims, in keeping with the patriarchal frameworks that are arguably even more entrenched during hypermasculinized situations like war.

Conflict-related sexual violence against men takes many forms. The reality of the harms suffered goes against popular perception, which holds that sexual violence against men is analogous to the experiences of women and takes the form of rape. Instead, conflict-related sexual violence against men includes not only oral and anal rape by perpetrators or “enforced rape” between victims, but also enforced sterilization, including castrations; sexual slavery; forced masturbation; enforced nudity; and other violence to the genitals, such as genital beatings.[2] Given this wide range of sexual violence harms, when the conception of sexual violence against men is reduced to rape, non-penetrative acts are mischaracterized as non-sexual violence. Misidentification of these crimes ignores numerous victims and conceals different gendered experiences of sexual violence. It also reinforces stereotypes of men as perpetrators and women as victims, instead of addressing the varied positions of men and women during war and postwar periods. Moreover, a complete picture of human rights violations, against men and women, sexual and non-sexual, is necessary to determine the form and substance of transitional justice to move the country forward.

Victories and Shortcomings of International Criminal Trials for Male Victims

Under international law, victims have a right to remedies and reparations for human rights violations. This includes the right to effective justice, which may be fulfilled through prosecutions of perpetrators. Accordingly, criminal trials are an important, arguably essential, component of transitional justice. They mete out retributive justice, contribute to ending impunity for mass atrocities, and potentially deter the future commission of such crimes.

Unfortunately, most of the time, conflict-related sexual violence against men is not prosecuted. When it is, this crime is rarely characterized as sexual violence with attached consequences.[3] Thankfully, this appears to be changing, particularly at the International Criminal Court (ICC). In March 2016, the ICC handed down a landmark decision in the Bemba case, in which the accused was found guilty of crimes against humanity and war crimes, including rape.[4] Bemba had the first indictment charging sexual violence against men as rape and the first conviction for rape based on the testimony of male victims in international criminal jurisprudence.

The sexual violence against men in Bemba concerned rape. There is still, however, a need for progress in non-rape crimes of sexual violence against men. For example, in the ICC’s now-dropped Kenyatta case, the Pre-Trial Chamber rejected the prosecution’s charges of forcible circumcision and penile amputation as “other forms of sexual violence.” The Pre-Trial Chamber ignored the sexual nature of these acts and their intent to destroy men’s identities and masculinities, ultimately subsuming these crimes into “other inhumane acts.”[5] In this respect, we have not come far from the first international criminal trial for sexual violence and sexual violence against men: the Tadić case at the International Criminal Tribunal for the Former Yugoslavia (ICTY) nearly twenty years ago. Tadić was convicted, but his crimes of sexual violence against men were subsumed under “cruel treatment” and “inhumane acts.”[6] Today, overcoming the hurdles to prosecuting conflict-related sexual violence against men remains critical to transitional justice everywhere, as illustrated in Sri Lanka’s nascent accountability processes.

Case Study of Sri Lanka: The Need for Internationalized Prosecutions of Conflict-Related Sexual Violence Against Men

Sri Lanka’s protracted civil war ended violently in May 2009 following the government’s decisive defeat of the Liberation Tigers of Tamil Eelam (LTTE), also known as the “Tamil Tigers.” Twenty-six years of fighting bore witness to violations of human rights and the laws of war committed by both sides. The government, however, was the only party responsible for sexual violence, which its security forces perpetrated and continue to perpetrate against women and men on an equal basis. Since the breakdown of the Norwegian-brokered ceasefire in 2006, numerous forms of sexual violence against Tamil male detainees have been reported. These acts include rape, often by inserting objects such as pipes and barbed wire into the anus; forcing detainees to perform oral sex on security forces; crushing, beating, kicking, and burning the genital area; inserting thin rods, metal, or wire into the penis; and placing chili powder on the genital area.[7] Security forces often perpetrated acts of rape and sexual violence alongside other kinds of torture. Unfortunately, the perpetrators of conflict-related sexual violence against both women and men continue to enjoy impunity.

In Sri Lanka, as in many postwar countries, justice is a painstakingly slow process; seven years after the war ended, the implementation of transitional justice processes is only just getting underway. However, the government continues to drag its feet, despite co-sponsoring UN Human Rights Council Resolution 30/1 (October 2015), which recommended prosecutions of alleged war criminals. In fact, the government has since backtracked on significant commitments to the Human Rights Council by forbidding international involvement in justice and accountability processes. Sri Lanka’s rejection of international participation naturally has strong implications for achieving credible justice for Tamil victims in general. It also precludes criminal accountability for conflict-related sexual violence against men.

Domestic capacity to prosecute mass atrocities is often non-existent or greatly compromised in the aftermath of war, exacerbating the difficulties in addressing conflict-related sexual violence. Accordingly, a best practice for the prosecution of conflict-related sexual violence is appointing advisers with legal expertise on this specific issue. Due to the large number of male victims, expertise in investigating and prosecuting conflict-related sexual violence against women and men is necessary to secure justice in Sri Lanka. However, as the Kenyatta case shows, even an international court staffed with experts may struggle with addressing non-penetrative acts of sexual violence against men. Given the widespread lack of specialists and experts on conflict-related sexual violence against men across the board, it is extremely unlikely that such professionals exist domestically in Sri Lanka. Instead, Sri Lanka must allow all of its transitional justice mechanisms to incorporate substantive and technical assistance from international partners. Such involvement is essential to the credibility and success of all justice initiatives, including non-criminal accountability processes, and experts should thus be actively invited to assist Sri Lanka.

Due to the misunderstandings and mischaracterizations involved in investigating and prosecuting conflict-related sexual violence against men, sexual violence and gender experts are critical to criminal justice. The lessons learned from international criminal jurisprudence on sexual violence against men, albeit limited, must be applied to Sri Lanka. Tamil men and women alike must receive recognition, remedies, and reparation for any sexual violence suffered.

Unfortunately, as long as Sri Lanka refuses to allow outside experts, perpetrators who have continued to rape and otherwise sexually violate Tamil men—again, on an equal basis with women—are unlikely to even be charged for this particular crime. Postwar countries like Sri Lanka with high-levels of conflict-related sexual violence against men must implement trials that are expertized and equipped to effectively investigate and prosecute both rape and non-penetrative sexual violence against men. The international community must ensure that Sri Lanka heed the call to internationalize its transitional justice processes in order to punish and deter conflict-related sexual violence against both women and men.

Anji Manivannan is a New York-based human rights lawyer and longtime advocate for justice in Sri Lanka.

Bibliography

Nimmi Gowrinathan & Kate Cronin-Furman, The Forever Victims? Tamil Women in Post-War Sri Lanka (2015), http://www.deviarchy.com/wp/wp-content/uploads/2015/09/The-Forever-Victims-Tamil-Women-in-Post-War-Sri-Lanka.pdf.

International Truth & Justice Project Sri Lanka, A Still Unfinished War: Sri Lanka’s Survivors of Torture and Sexual Violence 2009–2015 (2015), http://www.itjpsl.com/wp-content/uploads/2015/07/Stop-Torture-Report.pdf

Anjali Manivannan, Seeking Justice for Male Victims of Sexual Violence in Armed Conflict, 46 N.Y.U. Journal of International Law & Politics 635 (2014), http://nyujilp.org/wp-content/uploads/2010/06/46.2-Manivannan.pdf

Sandesh Sivakumaran, Lost in Translation: UN Responses to Sexual Violence Against Men and Boys in Situations of Armed Conflict, 92 International Review of the Red Cross 259 (2010), http://www.icrc.org/eng/assets/files/other/irrc-877-sivakumaran.pdf.

Sandesh Sivakumaran, Sexual Violence Against Men in Armed Conflict, 18 European Journal of International Law 253 (2007), http://ejil.org/pdfs/18/2/224.pdf.

People for Equality and Relief in Lanka, Withering Hopes (2015), http://pearlaction.org/wp-content/uploads/2016/04/Withering-Hopes-PEARL.pdf.

Prosecutor v. Muthaura, Kenyatta & Ali, Case No. ICC-01/09-02/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (January 23, 2012), https://www.icc-cpi.int/CourtRecords/CR2012_01006.PDF.

Prosecutor v. Gombo, Case No. ICC-01/05-01/08, Judgment (March 21, 2016), https://www.icc-cpi.int/CourtRecords/CR2016_02238.PDF.

Prosecutor v. Tadić, Case No. IT-94-1-T, Opinion and Judgment (May 7, 1997), http://www.icty.org/x/cases/tadic/tjug/en/tad-tsj70507JT2-e.pdf.

U.N. OHCHR, Report of the OHCHR Investigation on Sri Lanka (OISL), U.N. Doc. A/HRC/30/CRP.2 (September 16, 2015), http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Documents/A.HRC.30.CRP.2_E.docx.

 

[1] The Ancient Chinese, Egyptian, Greek, Norse, and Persian armies perpetrated acts of sexual violence against men. Much more recently, sexual violence against men has also occurred in armed conflicts in Argentina, Burundi, the Central African Republic, Chechnya, Chile, the Democratic Republic of the Congo, El Salvador, Greece, Guatemala, Iraq, Kenya, Kuwait, Liberia, Northern Ireland, Rwanda, Sierra Leone, South Africa, Sri Lanka, Sudan, Turkey, Uganda, the former Yugoslavia, and Zimbabwe. Sandesh Sivakumaran, Sexual Violence Against Men in Armed Conflict, 18 European Journal of International Law 253, 257–58 (2007).

[2] Id. at 263.

[3] Sandesh Sivakumaran, Lost in Translation: UN Responses to Sexual Violence Against Men and Boys in Situations of Armed Conflict, 92 International Review of the Red Cross 259, 272–73 (2010).

[4] Prosecutor v. Gombo, Case No. ICC-01/05-01/08, Judgment (March 21, 2016).

[5] Prosecutor v. Muthaura, Kenyatta & Ali, Case No. ICC-01/09-02/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ¶¶ 254, 264–66 (January 23, 2012).

[6] This was the first case before the ICTY in which sexual violence against men was prosecuted. Tadić forced two male detainees to perform oral sex on each other and also forced a male detainee to sexually mutilate another by hitting and biting his genitals until one testicle was bitten off. Prosecutor v. Tadić, Case No. IT-94-1-T, Opinion and Judgment (May 7, 1997).

[7] U.N. OHCHR, Report of the OHCHR Investigation on Sri Lanka (OISL), ¶¶ 571, 594, 600, U.N. Doc. A/HRC/30/CRP.2 (September 16, 2015).

#NoMoreImpunity || Blog Symposium || Women and Missing Persons

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WOMEN AND MISSING PERSONS

National Peace Council of Sri Lanka Team[i]

In the East of Sri Lanka there is Parameswary, a grandmother living alone with her 11 year old granddaughter in a half built house. They go to the bush for they have no toilet. Nearby there are equally poor people but they live in better housing with assistance from the state. But Parameswary refuses to take any assistance from the state. She holds the state responsible for the disappearance of her three sons. In the early days, she went to over 20 military camps to look for them and in later days she went to two government-appointed commissions of inquiry but she failed to find them.[ii]

In the North there is Kannamma. She has been looking for her husband for over a decade. She wants to know what happened to him and where he is. But she says she does not want to hear that he is dead as she refuses to accept that he is dead. Apart from the emotional attachments, there is also the socio-political reality. If he is dead, she becomes a widow with all its debilities in the Hindu context.

Now the government is coming up with its most ambitious effort so far, the Office of Missing Persons. [iii]  This is less in response to the needs of these bereaved women than it is in response to the UN Human Rights Council resolution of October 2015 that the Sri Lankan government, to mostly everyone’s surprise, co-sponsored in Geneva.[iv] In agreeing to implement the resolution, the new government which came to power in January 2015 moved away from the policy of confrontation with the Western countries and India that the former government was engaged in.

The June session of the UN Human Rights Council is expected to be an important test for the government. The resolution that it co-sponsored in October 2015 stated that the UN High Commissioner would submit an oral update to the Human Rights Council at its thirty-second session (June 2016) and a comprehensive report followed by discussion on the implementation of the present resolution at its thirty-fourth session (March 2017). In recent weeks there have been several announcements by the government to highlight the progress that it has made in implementing the UNHRC resolution.

The most important of these governmental actions is the unveiling of the draft legislation on the Office of Missing Persons that reflects a considerable amount of thought and research and can be considered as superior to any previous Sri Lankan legislation on the issue. This was one of the four transitional justice mechanisms that the government promised to establish in the run up to the co-sponsored resolution of October 2015. The other mechanisms are a Truth and Reconciliation Commission, a Special Court on war crimes and an Office of Reparations. [v]

However, international human rights watchdog groups like Human Rights Watch have been critical of the draft legislation on the grounds of process.  They have pointed out that there has been insufficient public discussion about the legislation and that the victims who are to be the beneficiaries should have been consulted. While the government itself says that around 65,000 persons have gone missing in terms of complaints made to government commissions, the latest government appointed commission gives a more modest figure of 20,000.  This shows that the numbers are still uncertain and continue to be debated.[vi]

But the ground reality is that for those who have lost even one loved one, the agony continues without end.  For some, the agony will continue even after closure and the truth is known, as they will have to deal with the social and psychological consequences. There is no template in the transitional justice process where people are concerned.  Each individual has different needs and expectations.  Some may want a telling of their story, while others will want accountability and the killers of their loved ones punished.

In the run up to the June session of the UN Human Rights Council in Geneva, leading members of civil society have demanded that credible investigations be conducted and perpetrators held accountable with respect to credible allegations of human rights violations. In a statement they have pointed out that previous Commissions of Inquiries and the Criminal Justice system have only resulted in the acute re-traumatisation of victims with little satisfaction in terms of justice and reparations. [vii]

Moreover, the recommendations of these Commissions with respect to the investigation of human rights violations, and the prosecution of alleged perpetrators, have not been implemented, exacerbating Sri Lanka’s culture of impunity that these institutions are meant to combat. For these reasons, yet another commission established without a meaningful guarantee of accountability and reparations will signal a lack of commitment to the Government’s own commitments and to genuinely breaking with the past.

Healing and justice need to walk hand in hand.  The great majority of those who will go before the four mechanisms of transitional justice that the Sri Lankan government has promised to set up will be women.[viii] They need to be capacitated to do so, and they need to be counseled and supported financially, socially and psychologically after they have done so.  This is a challenge that cannot be left to the government but which civil society organizations need to take up.

The National Peace Council of Sri Lanka has been working in the area of peace and transitional justice, and recently on gender equality in these contexts.

[i] The NPC Team that worked on this comprises Sumadhu Weerawarne-Perera, Venuri de Silva, Lakmini Jayathilake, Mactalin Soosainathar and Jehan Perera.

[ii] THE WRONGED RIGHT TO SECURITY AND JUSTICE, Narratives of loss, pain, survival and the failure of the law is a 27-minute documentary that highlights gross violations and abuses in human rights laws and the implementation of the law in Sri Lanka. The documentary explores the State’s inability to afford protection and justice to its citizens through the narratives of seven people (victims of war and police torture) who speak of the physical and psychological abuse they have undergone and the trauma they continue to experience in their difficult path to recovery – https://drive.google.com/folderview?id=0Bzr-LZKivIqpaHJNTmUzNW51b1E&usp=sharing_eid&ts=576b77ba

[iii] Cabinet approval to establish Office of Missing Persons, Daily News, May 26, 2016 http://www.dailynews.lk/?q=2016/05/26/political/82851

[iv] HRC 30th Session, 13/10/2015 A/HRC/RES/30/1 Promoting reconciliation, accountability and human rights in Sri Lanka

http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/30/1

[v] Sri Lanka’s Response To UNHRC: The Full Text Of Foreign Affairs Minister’s Speech Today, September 14, 2015, https://www.colombotelegraph.com/index.php/sri-lankas-response-to-unhrc-the-full-text-of-foreign-affairs-ministers-speech-today/

[vi] Sri Lanka to enable certificates of absence for 65,000 people missing during war, http://www.firstpost.com/fwire/world-fwire/sri-lanka-to-enable-certificates-of-absence-for-65000-people-missing-during-war-2821756.html

Maxwell Paranagama Commission Report: Full Text October 22, 2015 https://www.colombotelegraph.com/index.php/maxwell-paranagama-commission-report-full-text/

[vii] 22nd June, 2016, Civil society Statement on Accountability and the timing of Transitional Justice Mechanisms in Sri Lanka

[viii] There is no official gender disaggregation of those who gave evidence before the Paranagama Commission on Missing Persons which concluded in March 2016. Inquiries from the Commission (June 23, 2016) revealed that numbers are currently being tabulated and will be available shortly. However, anecdotal evidence of those who sat in on Commission meetings holds that most of the participants were women.

#NoMoreImpunity || Blog Symposium || Impunity, Trust and Transitional Justice in Sri Lanka

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IMPUNITY AND TRUST: TRANSITIONAL JUSTICE IN SRI LANKA

Nimalka Fernando

In the post war context, Sri Lanka government has announced that it will facilitate a robust Transitional Justice process. As announced by the Foreign Minister, the mechanisms will guarantee truth seeking, provide reparation to those affected by the war and conflict, facilitate non-recurrence and assist in accountability.

One of the major challenges we human rights defenders faced over the past decade is the continuing and strengthening of the culture of impunity that prevailed in Sri Lanka. Violence perpetrated by political and security forces persons went unpunished. One of the major challenges we are facing in Sri Lanka is the failure to take action against perpetrators in spite of the existence of laws. In this regard torture though prohibited in law is a tool regularly used by all categories of the security forces. The Prevention of Terrorism Act provides the security forces and police to detain suspects for a prolonged period which has resulted in the use of torture to get evidence and commit degrading action against the victim. The majority of Tamil men and women survivors have revealed barbaric acts of torture including rape and sexual harassment. We are talking about transitional justice in such an environment. Victims and witnesses have repeatedly shown that they have no faith and confidence in national institutions. Even though the political leadership has changed they have failed to build a healthy environment to combat impunity.

The transitional justice process in Sri Lanka has to go beyond purely providing mechanisms to those affected.

Let me focus on the issue of violence against women. Often transitional justice advocacy will solely focus on addressing the issue of accountability more legalistically. Similarly when we are dealing with torture it is important to remember that a woman can be tortured without leaving marks on her body. In a war it is important to analyse the totality of the experience of women who has continued to be displaced, marginalised and forced to experience further acts of violence. Sri Lanka has to sign the optional protocol to the Convention Against Torture and provide a political environment of trust building if its commitment to TJ to become real to affected communities.

Nimalka Fernando is a prominent human rights defender, peace activist and lawyer from Sri Lanka.

#NoMoreImpunity || Blog Symposium || Custodial Torture: A Special Hell

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CUSTODIAL TORTURE: A SPECIAL HELL

Nitya Ramakrishnan

In the December of 1991, Li Peng, the Chinese Premier came on a visit to New Delhi. Over 2000 resident Tibetan men and women, demonstrating in protest, were detained by the Delhi Police. The Supreme Court ordered their release and directed an inquiry into complaints of unwarranted police violence against peaceful protesters. Additional Sessions Judge, Rekha Sharma, conducted the inquiry,[i] at which, the women spoke of the verbal and physical abuse in custody. It was the women’s word against that of the police, and the latter were exonerated on the principle of doubt. This was no trial, but a fact finding inquiry, and its conclusions precluded any investigation and trial of the molestation as a criminal offence.

No such doubt surrounds the torture and murder of Thangjam Manorama by officers of the Assam Rifles stationed in Imphal. Those officers roam free, while the State and the Central Government engage in a turf battle that has lasted a decade. On July 10 2004 Manorama was formally arrested and taken from her home by uniformed men of the Assam Rifles. On July 11, 2004, her bullet ridden body was found in an open field of the city.  On July 12 Manorama’s family lodged a First Information Report at the local police station.  Forensic tests commissioned by the state police revealed marks of torture and possible rape before Manorama was killed.   The Assam Rifles do not deny either the arrest or the killing, but say that they killed while she trying to flee (with her arms tied behind her!). A Commission of Inquiry set up by the State Government indicted the army men. The legality of this Commission was challenged by Assam Rifles on the ground that as a Central force, they were not amenable to any inquiry set by the State Government.[ii] The Gauhati High Court upheld this claim of Assam Rifles and the case is now in the Supreme Court.  Meanwhile, the High Court’s plea to the Centre that, it should on its own initiate action, goes unheeded. Quite aside from who may set up a commission, there is a crime of homicide and rape to be investigated and tried, but that has not happened.

On May 30, 2009, the bodies of two women, Nelofaar, 22 and Asiya, 17, were found floating in Rambi Ara Nalla‘s shallow waters flowing through the Shopian district of the State of Jammu and Kashmir. On the previous day, these young women had set out from home, for their nearby orchard across the river, both sides of which are heavily patrolled by the Indian army.  Huge public protests followed the finding of the bodies, for it was strange that the army should have maintained silence about these deaths, that could not possibly have escaped their notice.  Eventually, the state police registered an FIR and the first set of forensic reports indicated rape and murder. A Commission of Inquiry, and a CBI investigation later, the doctors who gave the first forensic report have been branded liars. The case is closed as one of accidental drowning. We do not know what happened, as there has been no open trial.

Every death, disappearance or alleged rape in police custody, or any other custody ordered by a Magistrate must be subjected to a magisterial inquiry in addition to a police investigation, but this requirement of law is observed mainly in the breach.[iii] So too, the NHRC guidelines on encounter deaths. Almost never, do we see a full trial of a complaint of custodial abuse.

India has no separate statute banning torture, and is yet to ratify the UN Convention Against Torture. A proposal to do both is pending since 2010.[iv]  However, torture is effectively outlawed. Murder, by any one is a criminal offence.  Hurt and illegal confinement in police custody have been classified as offences in the Indian Penal Code since 1860.[v]  Later, after the Constitution came into force, it has been judicially pronounced that torture is a violation of the right to life guaranteed by the Constitution.

A spate of legal clauses followed a public movement sparked by the acquittal of two policemen by the Supreme Court in the Mathura rape case.[vi] Custodial rape was listed as a separate category of rape, with a higher punishment offence.[vii] The burden of proof was shifted to the custodial officer, if sexual intercourse during custody was established.[viii]

More amendments followed the public protests over Nirbhaya in December 2012.  Rape by army men in areas of their deployment was added to the category of rape crimes that would draw a higher punishment. Presumptions were brought in to operate against custodial officers and members of security forces in rape trials.[ix]

There is enough in the law even today to punish torture. Yet, action against offenders does not occur as a matter of course. Invariably, higher courts have to be petitioned, or fact finding committees set up before state agents are even investigated on the count of torture. Then too, the process seldom moves to a conclusion. Reparative justice by way of compensation has largely been a matter of judicial discretion. The National Human Rights Commission has done little more than award measly sums as interim compensation.

Some cases of custodial torture catch public attention, while an infinitely greater number do not. Those that may get documented will reveal the ploys of the system to resist any open scrutiny of custodial abuse. These ploys are a manipulation of the process, in spite of the legal provisions that render torture a crime.

The 1991 case of Delhi’s Tibetans  begs the question, for within a prison cell, torture will, oftener than not, only be word against word.  The 2004 case of Manorama shows that even when the fact does not rest on word alone, and is established by record, state actors easily avert justice.  Shopian 2009 is a case of shifting the goal-posts midway.

Torture is an open secret. A special hell is reserved for women in those dark chambers where no law can enter. Still, the fear that an arrest and investigation is likely to follow would act as some kind of check. Routine prosecution of torture as a crime is the first step against impunity.

Unlike the empire that effectively strikes back, torture victims are less able to galvanize legal process. Their interlocutors get side-tracked into special solutions and almost in denial, they seek to saddle the system with more and more laws with less and less effect.

Nitya Ramakrishnan is a Supreme Court Senior Advocate and the author of In Custody: Law, Impunity and Prisoner Abuse in South Asia, Sage, 2013.

[i] The Inquiry Report is not readily available.

[ii] Judgement and Order in  Writ Petition 5187 of 2004, Col. Jagmohan Singh and others Vs The State of Manipur & Others and Writ Petition 6187 of 2004, JC-172262F Nb Digambar Datta and others vs The State of Manipur and others, Gauhati High Court, June 23, 2005.

[iii] S.176(1-A) CrPC.

[iv] The Prevention of Torture Bill 2010 was passed by the Lok Sabha, but the Rajya Sabha saw fit to refer it to a Select Committee, Post the Select Committee recommendations it has not been placed before Parliament.

[v]  Ss.330, 331 and 348  IPC.

[vi] Tukaram and anr V State of Maharashtra (1979) 2 SCC 143

[vii] Introduction of S.376 (2)  a, b, c,and d.by the Criminal Law amendment Act of 1983 as categories of rape carrying a higher punishment

[viii] Introduction of S, 114A Evidence Act. by the Criminal Law amendment Act of 1983

[ix] Criminal Law Amendment Act 2013.