The horrific Kathua Rape incident highlights the systematic failure on the part of India in enforcing International Human Rights obligation. India’s International Human Rights obligation dates back to the establishment of United Nations (UN), in which India, being one of the original members of the UN, is obliged under Article 1(3) of UN Charter, to respect human rights. Moreover, an enabling legislation was enacted by the legislature in 1993, i.e. Protection of Human Rights Act 1993, in which Human Rights are defined as “the rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the International Covenants and enforceable by courts in India”. The terms “International Covenants” and “International Human Rights Instruments” are crucial in this context.
Now for beginners, “rape” unlike other crimes, is undefined in international law and rape incidents fall under the purview of life or dignity within the discourse of human rights. One of the basic human rights instruments, which India is part of, is the Universal Declaration of Human Rights (UDHR). The Article 6 of UDHR mentions ‘Right to Life’ as a main component. The grotesque rape of the 8 year old victim is a blatant violation of the aforementioned provision. The fact that human rights are guaranteed by the state to individuals, does not imply that the state can violate certain rights, especially since Right to Life is absolutely non-derogable.
Furthermore, the current debate raging among the International law scholars is regarding the binding nature of human rights documents like UDHR. At least three different grounds can be identified as attributing to the binding character of UDHR. Firstly, the UDHR has obtained the status of customary international law, secondly it constitutes the general principles of law and thirdly the United Nations consistently places reliance on the UDHR when applying human rights provisions to the United Nations charter. Thus, UDHR is extremely important in laying down the fundamental principles of human rights. The fact that India is part of the International Covenant on Civil and Political Rights, further makes it mandatory for India to stand against human rights violations.
Another perspective to the rape incident is whether this heinous act is a classic example of genocide. The jurisprudence in this regard is strict since India is part of the Genocide Convention 1948. Under Article 1 of the aforementioned convention, it is clear that genocides can be committed during periods of peace and not necessarily during armed conflicts. Despite the Genocide Convention that is in place, India is yet to pass an enabling law to codify genocide. The Kathua Rape incident can be classified under genocide, since it falls under Article 2 of the Genocide Convention and since ‘religion’ is one of the main factors based on which genocides are committed. On the other hand, the recent systematic attack targeted on minorities, is an instance of genocide ascribed to the state.
India further owns an obligation under Jus Cogens and Erga Omnes. This assumes significance since an elevated status of Jus Cogens can negate the conventional understanding of International Law being state-centric and consent based to a normative standpoint. Moreover, it diffuses immunity, which has been a stumbling block in enforcement.
The entire contention is that the Crime of Rape has gained the status of Jus Cogens. According to the International Law Commission, there are certain criteria that should be met before a crime elevates to the status of Jus Cogens. These include a) Opinio Juris, b) language of the preamble or other provision of the treaty, c) Prosecution of perpetrators for the crime, d) State Practices. The crime of rape has met all these criteria. Therefore, India’s obligation is listed as a Jus Cogens, which it can be precluded.
In addition to that, an investigation on the aspects of rape jurisprudence would be incomplete, if any reference to international crime tribunals i.e. International Crime Tribunal for Rwanda and Yugoslavia (ICTR and ICTY), are not made. Much of the legal debate on rape flows from cases in these tribunals. Systematic rape was often used as a weapon of war in the process of “ethnic cleansing” and also as a special method of crime against humanity. According to the report of Tadeusz Mazowiecki, the Special Reporter appointed by the UN Commission on Human Rights, rape was an instrument used to humiliate, degrade, terrify and for shaming. It is to be reminded that even a single act of rape, could amount to the status of a genocide, if committed with a specific intention as pointed out in the Akayesu case. Humiliation is also one of the factors to be considered when assessing the gravity of a crime. This was confirmed in the judgments of ICTR Musema and Cesic sentencing. The Kathua incident was committed pre-planned with the intention to humiliate.
Another convention that India has contradicted is the Torture Convention (CAT Convention) 1984. Torture in any form is prohibited and the crime of torture has attained the Jus Cogens status. Rape is a form of torture as defined under the Torture Convention. Moreover, prohibition of Torture is absolute and non-derogable by the state. India signed the Convention on 14th October 1997. However, irrespective of the recommendations of the Law Commission of India (273rd Law Commission Report), India has failed in its capacity to codify the law pertaining to torture. The Kathua episode typifies the torture of the tender girl, which constitutes a grave breach under the International Human Rights Law.
Lastly, one of the seminal challenges in International Law is that, there is no definition for the term “rape” albeit Article 27 of the Fourth Geneva Convention on Innocent Civilians and Addition Protocol 1, 1977 defines sexual violence in terms of honour and dignity. Furthermore, the definition of rape is borrowed from the Akayeshu dictum. It is also vivid that the Akayeshu dictum places reliance on the Geneva Convention 1949. India has enacted the Geneva Convention Act, 1960 to enforce its obligation under the Geneva Convention 1949. But, the Act is seriously flawed. According to Section 18 of the Act, the whole power is vested with the central government when initiating any proceedings. Yet, in situations where the state themselves are the perpetrators of the crime, the Act remains ineffective as a dead-letter.
In addition, protection is provided under the common Article 3 of the Geneva Convention that seeks to provide minimum standards of living. Although India is not accountable to the provisions in the convention, it will be answerable under the common Article 3 of the Geneva Convention 1949.
In conclusion, it is evident that the impact of International Human Rights treaties lies in, acceptance and implementation. The legislature has to play a vibrant and exuberant role to enact laws supplementing India’s International Human Rights Law obligation. With the parliament hardly functioning courteously, this seems a distant dream. The judiciary should apply the principles of International Human Rights Law in their judgments, thereby acting as a valve between National and International law as stated in the Article 142 of the Constitution of India.
By: Atul Alexander