GUJARAT, INDIA (Part II)

 Sexual Violence Rises to Level of Genocide

“I saw Farzana being raped by Guddu Chara.  Farzana was about 13 years old.  She was a resident of Hussain Nagar.  They put a saria (rod) in Farzana’s stomach.  She was later burnt.  12 year old Noorjahan was also raped.  The rapists were Guddu, Suresh and Naresh Chara and Haria.  I also saw Bhawani Singh, who works in the State Transport Department kill 5 men and a boy.” [1]

I.  Introduction

In the weeks after February 27, 2002, the Indian state of Gujarat experienced an outbreak of unprecedented violence.  The violence began when Muslims attacked a Sabarmati Express train full of Hindu activists returning from Ayodhya, the proposed site of a Ram temple.[2] The location has become increasingly controversial since Hindus burned the Babri mosque at Ayodhya in 1992, and left 1,700 people dead, the majority Muslims.[3] The recent train incident left 58 Hindus dead, but in the subsequent violence most of the 2000 victims were Muslims.[4] While the massacres and terrorization of both Muslims and Hindus has received widespread attention, the targeting of one of the most vulnerable segments of the minority population, Muslim women, has received far less coverage.  Muslim women became one focus of Hindu violence, and government forces failed to intervene, or actively participated in the attacks on women.

 

II.  Sexual Violence
A.     Nature of the Abuse

The testimony of survivors and witnesses follows a similar pattern: Muslim women were stripped of their clothing and jewelry, raped by one or multiple aggressors.  After the rape the women were sometimes cut and beaten with pipes, swords, and even hammers or screwdrivers.  According to some reports, the women were then doused with petrol or kerosene and burned to death.[5]

In many cases it appears the victims knew the names of the perpetrators.  Often, the attacks were done in the presence of witnesses, adding a public nature to the crimes.  Many of these attacks occurred in Muslim homes, and the witnesses were family members.  Because of the strong Islamic cultural beliefs about rape, the suffering of the victims may be compounded by the public nature of the attacks. 

“But what they did to my sister-in-law’s sister Kausar Bano was horrific and heinous.  She was 9 months pregnant.  They cut open her belly, took out her fetus with a sword and threw it into a blazing fire.  Then they burnt her as well.”[6]

Married, unmarried, pregnant women and virgin girls were all victims, but pregnant women in particular seem to have been targeted for violence; witnesses describe fetuses being ripped from mothers’ abdomens before being killed.  Investigators on a fact-finding mission heard this story so often that it became the meta-narrative of the victims.[7] Neither social class nor an urban or rural location provided protection.  Their religion was the only uniting factor between the victims. 

Despite various fact-finding missions, no organization has determined a comprehensive count of the victims of sexual assault or female massacre victims.  Most of the survivors now live in temporary refugee camps, compounding the difficulty of estimating the number of rape and sexual violence victims.  Access to rural areas is also restricted, leaving the number of those victims unknown.  Official numbers are contradicted by anecdotal reports and given the widespread collusion of the police, the authorities remain more focused on covering up, than exposing, what occurred. 

        B.     The Role of the Media

In the days after the train incident, in addition to reporting the general Hindu massacre, Sandesh, a popular Gujarati daily newspaper ran stories that instigated rumors of Muslims raping some of the 26 Hindu women on the train. 

“10-15 Hindu women were dragged away by a fanatic mob from the railway compartment.” [8]

“Out of kidnapped young ladies from Sabarmati Express, dead bodies of two women recovered — breasts of women were cut off.”[9]

Despite the stories, police confirm that there was never any evidence of rape, sexual abuse, or sexual mutilation by the Muslim mob.[10] Later the Sandesh paper printed a retraction of the reports, but the story had already gained credibility with the public.  The violence of the past never included the level of sexual violence against women, and the overwhelming belief that Hindu women had been raped, mobilized the Hindu community in a new way.  In large part, the reaction of the Hindu community to these reports rested on the belief that in Hindu culture (as in Muslim culture) women are the vessels for the community’s honor, and that its violation necessitated revenge.[11]

C.     Examples of Abuse

Location:        Naroda Patia, Ahmedabad
Date:               February 28, 2002
Source:           Kulsum Bibi, Shah e Alam Camp, March 27, 2002

“The mob started chasing us with burning tyres after we were forced to leave Gangotri society.  It was then that they raped many girls.  We saw about 8-10 rapes.  We saw them strip 16-year-old Mehrunissa.  They were stripping themselves and beckoning to the girls.  Then they raped them right there on the road.  We saw a girl’s vagina being slit open.  Then they were burnt.  Now there is no evidence.”[12]

 

Location:        Naroda Patia, Ahmedabad
Date:           February 28, 2002
Source:        Abdul Usman, Testimony recorded by Citizens Initiative

“The mob, which came from Chara Nagar and Kuber Nagar, started burning people at around 6 in the evening.  The mob stripped all the girls of the locality, including my 22-year-old daughter, and raped them.  My daughter was engaged to be married.  7 members of my family were burnt including my wife (aged 40), my sons (aged 18, 14 and 7) and my daughters (aged 2, 4 and 22).  My eldest daughter, who later died in the civil hospital, told me that those who raped her were wearing shorts.  They hit her on the head and then burnt her.  She died of 80% burn injuries.[13]

 

Location:        Village Eral, Kalol Taloka, Panchmahals District
Date:               February 28th, 2002
Source:           Sultani, Kalol Camp, Panchmahals District, March 30, 2002

“On the afternoon of February 28th to escape the violent mob, about 40 of us got on to a tempo, wanting to escape to Kalol.  My husband Feroze was driving the tempo.  Just outside Kalol a Maruti car was blocking the road.  A mob was lying in wait.  Feroze had to swerve.  The tempo overturned.  As we got out they started attacking us.  People started running in all directions.  Some of us ran towards the river.  I fell behind as I was carrying my son, Faizan.  The men caught me from behind and threw me on the ground.  Faizan fell from my arms and started crying.  My clothes were stripped off by the men and I was left stark naked.  One by one the men raped me.  All the while I could hear my son crying.  I lost count after [three].  They then cut my foot with a sharp weapon and left me there in that state.”[14]

Location:        Hussain Nagar, Naroda Patia, Ahmedabad
Date:               February 28, 2002
Source:           Naimuddin Ibrahim Sheikh, 30 year old husband of Zarina.  Shah-e-Alam Camp, March 27, 2002

“It started at 9 am on February 28th.  That’s when the mobs arrived, shouting – Mian Bhai nikalo (Bring out the Muslims).  Many of them were wearing kesari chaddis (saffron shorts or underwear) The mob included boys from the neighboring buildings — Gopinath Society and Gangotri Society.  I ran out of my house with the entire family — mother, father, sister, sister’s daughter, my wife Zarina, my brother, my sister-in-law, and my niece… there were 11 of us.  We all ran towards the Police chowki.  The Police said, ‘Go towards Gopinath and Gangotri’.  In the melee, I was separated from my wife.  What happened to her, she told me later.  She tried to escape the mobs by leaping over a wall.  But found herself in a cul-de-sac.  They gang-raped her, and cut one arm.  She was found naked.  She was kept in the civil hospital for many days.  Now she is recovering with her mother near the Khanpur darwaza.”[15]

D.    Finding of Sexual Violence

The rape of women, killing of unborn children, and killing of women was widespread and systematic in nature.  The attacks on women not only represent a new kind of violence, but a particularly dangerous one, as the cycle of violence seems heightened when retributive rapes are involved.  It is very plausible that the sexual violence and genocidal acts will continue and escalate.

 

III.  Complicity of the Authorities

                A.     Nature of the Abuse

Collusion by the authorities included encouragement and facilitation of the targeting of Muslims, failure to quell the attacks, active participation in the attacks, and failure to bring perpetrators to justice.[16] Evidence suggests that the sang parivar (the collective group of Hindu nationalist organizations that includes the Rashtriya Swyamsevak Sangh (RSS), the Vishwa Hindu Parishad (VHP), the Bajrang Dal, and the political wing, the BJP) [NH1]  were arming and training Hindus months in advance of the train incident.[17] The Hindutva organizations used the twenty-four hours after February 27th to mobilize their network.  The sang parivar movement seems to have been waiting for an appropriate provocation to unleash this period of violence. 

Partly instigated by the media, the attacks appear to have been systematic, well-organized and well-planned.  The day after the Godhra train massacre, Hindu crowds of 5,000 to 15,000[18] wearing saffron Hinduvta garb and chanting pro-Hindu slogan like ‘Jai Sri Ram’ [Praise Lord Ram][19] attacked Muslims, and ransacked and burnt Muslim owned homes and businesses.  The crowds specifically targeted Muslims in Hindu areas.  People directing the crowd had computer printouts of individual Muslim houses and businesses from voter registration lists and lists from the Ahmedabad municipal corporation.  With those lists, the crowds were able to selectively target Muslims for attack.[20] Muslim hotels and restaurants operating under Hindu names were also attacked, while adjacent Hindu apartments, houses and shops were left unharmed.[21]

Inaction by the police also assisted in the attacks.  When victims managed to reach the police via telephone during the attacks, they responded with phrases like, “We have no orders to save you”[22] or “You protect yourselves.”[23] The police did not see it as their duty to protect the minority population.  Any officer who attempted to intervene on behalf of the victims was quickly transferred elsewhere.[24] In contrast, the police moved swiftly when Hindu’s reported violence at the hands of Muslims. 

Police directly participated in the attacks as well.  Police often accompanied the Hindu mobs, initially firing on Muslims to facilitate the attacks.  There is evidence that police were involved in arson, looting, and the massacres of Muslims.[25]  A report from the People’s Union for Civil Liberties indicates the police were also guilty of verbal, physical, and sexual abuse of Muslim women.  In one instance, the Hindu group boasted of police support in graffiti left behind at Sundaramnagar: “Yeh andar ki bat hai/ Police hamarey saath hai.”[26] [This is inside information / the police are with us].  The police signaled to the perpetrators that there would be no consequences for their actions. 

The most severe violence occurred between February 28 and March 3 and sporadic violence continued throughout March and April,[27] but the collusion extended beyond the point when peace had mostly been restored.  The original crimes have since been compounded by the lack of political will to prosecute the abusers.  Female victims have been denied the right to file First Information Reports (FIRs).[28] Human Rights Watch has documented the intentional omission of perpetrator names from complaint reports filed with the police.[29] In some instances the people partly responsible for the crimes are now in charge of investigating them.[30] Muslim youth have been arrested and detained under false charges.[31] Perpetrators have even brought false charges against victims.[32]  As a consequence, the survivors have no access to help or rehabilitation, or any protection against its repetition.  

The systematic inaction and widespread participation of the police in the massacres, riots and rapes strongly suggests they followed high-level orders not to protect Muslim victims.  Police orders most likely originated from the Bharatiya Janata Party (BJP) who dominate the Gujarat state government.  It seems likely that the mob operated with the blessing and participation of leaders in the state government, given that the type and number of petrol cans, machinery, and lists would have been difficult without the help of the government.  The BJP rhetoric and actions indicate support for what occurred.  Gujarat Chief Minister Narendra Modi, an outspoken advocate for the Sang Parivar agenda, has been widely implicated in the events.  He said afterwards that the “riots resulting from the natural and justified anger of the people.” “The five core (50 million) people of Gujarat have shown remarkable restraint under grave provocation,’ referring to the Godhra massacre.”[33] His implicated involvement in the events of last year has not hurt his political career.  Modi led the BJP to victory in the Assembly elections in December of 2002, and then promptly was elected leader of the legislature party.   

BJP also enjoys a majority in the coalition federal government, making it reluctant to condemn the Hindutva groups.  The dominance of Sang Parivar supporters within the Gujarat government and police force also decreases the probability of an impartial investigation into the events. 

According to the State Department, “Within the Indian context, the phrase ‘communal violence’ generally is understood to mean Hindu-Muslim conflict and the possibility of retaliation and serious riot.” (Oct 7)  However, what occurred in Gujarat after the Godhra incident moved well beyond the “communal violence” that has plagued the state since independence.  The Hindutva organization, aided by the police, consciously and systematically operated with the intention of destroying the Muslim population of Gujarat.  The targeting of Muslim women formed one component of this plan.  Victims who survived suffer from the physical wounds and are psychologically traumatized.  Targeting[34] of women also prevents future births and prohibits the growth of the population.  Taken collectively, what occurred in Gujarat constitutes a manifest pattern and an intent to destroy a religious group, and therefore meets the ICC’s definition of genocide under Article 6[A].  

B.     Examples of Government Complicity:

Location:        Vatva, Ahmedabad
Date:               March 1, 2002
Source:           Shabnam, Qutb-e-Alam Dargah Relief Camp, Ahmedabad, March 27, 2002

“The mob arrived, armed with trishuls and swords, shouting – Miya ne maro, Miya ne kato.  (Kill the Muslims!).  Some of them started pelting stones.  We were 50 odd people, they were a few thousand.  As we ran for our lives, the police blocked our escape, chasing us in the direction of the mob `Chalo maar do saalo ko’ (Kill the bastards), they shouted.  This is the first time this has happened here.  Where can we go_ What is to become of us_”[35]

 

Location:        Khed Brahma, Sabarkantha
Date:               February 28, 2002
Source:           Saira Bano, Vadali Relief Camp, March 28th, 2002

“It was 9:30 in the morning when the attack started.  A large crowd came at us.  They were all our neighbors.  I recognize each one of them — I know the castes: Bhatt, Vaghri, Prajapat.  We ran to the Police Station.  The Police gave us shelter, but said that they could not protect us for long.  They put us in dabba gaadis (police box-cars) and packed us off into the care of local Muslim leaders in Vadali.  That’s how we landed up at the relief camp.  (Vadali Relief Camp, March 28th, 2002)”[36]

 

Location:        Jawan Nagar, Naroda Patia, Ahmedabad
Date:               February 28, 2002
Source:           Kulsum Bibi and Jannat Bibi, Shah-e-Alam Relief camp, March 27, 2002

“The day began like any other.  We were all drinking tea when we heard that the (local) masjid had been attacked.  The men and boys went out to see what was happening.  They were confronted by a crowd of several thousands, armed with trishuls and swords.  Some of the swords had Bajrang Dal written on it.  They were wearing khakhi shorts.  Some were carrying petrol.  This we now know they had got from nearby Bipin Auto.  The owner is a Bajrang Dal agyavan (leader).  The trucks that had brought these men were stacked with gas cylinders…Suddenly the police fired.  Some of our men were killed in the firing.  The women and children started fleeing.  Our colony is sandwiched between the State Reserve Police (SRP) Colony, the State Transport workshop and the Hindu housing societies- Gopinath and Gangotri.  We all rushed towards the SRP Colony.  We were not allowed inside.  We begged but the gates remained shut.  We kept running back and forth like caged animals.  Then there was a lathi charge.  Many of us got hit.  We heard the police say things like – yeh aap logon ka aakhri din hai – [this is your last day].[37]


Location:        Navapura, Vatva, Ahmedabad
Date:               February 28th 2002
Source:           Saira Bano, Qutb-e-Alam Relief Camp, Vatva, Ahmedabad.  March 27, 2002

“Everyone was panicking.  We lost all hope when the police came with the crowd.  When we pleaded with the police that they were meant to protect everyone, they told us- “Tum lad lo.  Jitni takat hain mukabala kar lo”.  (You fight them with whatever strength you have.) [38]

 

Location:        Hussain Nagar, Naroda Patia, Ahmedabad
Date:               February 28, 2002
Source:           Saira Bano, Shah-e-Alam Relief Camp, Ahmedabad, March 27, 2002

“I heard girls screaming.  I saw a naked girl running with 25 men chasing her.  The sweet shop owner was distributing sweets to the rioters.  The police fired on the Muslims rather than the mob.” She said that women were beaten with sticks.  She saw her husband being killed in the police firing.  She was hiding on the terrace of someone’s house.  “At least I saw him die.  There are many women here who don’t know what has happened to their husbands.  Are they widows or not_ Should they mourn or not_” [39]


Location:        Khed Brahma, Sabarkantha District
Date:               February 28, 2002
Source:           Nagori Bibi, Vadali Relief Camp, Sabarkantha, March 28, 2002

The tension escalated and the mob (which she estimated as being over 2000) started throwing stones.  By about 12 noon about 50 -60 people were taking refuge in her house.  25 of these people belonged to her extended family.  Her brother-in-law then phoned the police to be told – “We neither have the time nor the staff.  We can’t come”.  They then phoned Amanullah Khan the local Muslim leader and also a member of the Congress.  It was only after he put pressure on the police that they came.[40]

 

Location:        Resident Khed Brahma (near dargah), Sabarkantha
Date:               February 28, 2002
Source:           Shamshad Bibi, Vadali Relief Camp, Sabarkantha, March 28, 2002

On February 27th when my sons went to the dargah they heard rumours that a dhamal (incident) was about to take place.  There were other rumours of impending tension.  4 families slept at the dargah that night.  In fact 2 policemen were posted outside.  “Now when I look back the police had come around asking questions about the Muslim residents, like how much cattle we possessed.”… Nothing happened that night.  I was cooking lunch the next day when the mobs came shouting – Maro, Maro (Kill! Kill!)… We ran.  We had to cross the river, which is dry.  Finally we reached the dargah.  I found many other Muslims there.  About 300 to 400 of us were cramped into a room.  Then they came and set fire to the dargah wall.  The police was around but did not stop the crowd… All we could do was pray.  The police squad finally came and took us to the Police Station.  We could hear them talking on the wireless — sab tod diya, phod diya.  (everything is broken, destroyed) Then suddenly we were told – chale jao nahin to police station ko jala denge.  [Go from here or they will burn down the police station]. [41]

 

Location:        Vatva, Ahmedabad
Date:               March 20, 2002
Source:           Farzana, story narrated by her sister-in-law Naim, Vatva, Ahmedabad, March 27, 2002

Farzana, 25, lived behind the Dargah.  She was shot dead by the police on the 20th of March.  Her family members said: “First, we heard a commotion outside.  Then we noticed a pall of smoke.  As we came out into the courtyard to check what was happening, the police fired indiscriminately, killing Farzana.  There were no men around as they had all gone to read the namaaz”.  Among the policemen identified by the residents of the area are SP KC Patel, PSI Baluch, PSI Siddiq Sheikh and PI Singh.  “The Hindu mobs were gathering near Ashopalo housing society, some distance away.  Par Police ne wahan nahin, hamare par hi attack kar diya.  (But instead of going there, the Police came here and started firing).  In the same shooting spree a young man Sikandar, 20, was killed.  Six others, including Mumtaz Bano, were wounded.  She is a polio victim.  Her neighbours are bewildered.  “Why shoot at a handicapped girl_ Poor thing had one bad leg, now she has two damaged legs.” Farzana’s older sister, Shahnaz Bano, was lathi charged when she came out to save her sister.  Shahnaz is angry and bitter.  “How can they enter our homes and kill us.  We only ask for one thing – insaaf” We saw the bullet holes in the wall and the memorial they had made for Farzana.  A crumpled dupatta marks the spot in the courtyard where Farzana first fell.  An aluminium pot covers the spot where she died.[42]

 

Location:        Bahar Colony, Vadodora
Date:               March 17, 2002
Source:           Naseem and Ameena, LNU, Vadodra, March 28, 2002


The mob came at 11 PM but could not enter the colony because of police patrolling.  Then they retuned at 3 PM the next day.  First, they blasted a godown.  Then they began to burn the few `jhonpar pattis’ (slum dwellings) nearby.  These were owned by some Hindu families who had already been evacuated.  Suddenly police jeeps were seen.  200-300 women tried to stop the police jeeps.  It is alleged that the police just went ahead saying `Ab to yahan aisa chalay ga!’ (From now on, this is the way it will go here).  Then they returned and started firing during which one bystander was shot.  Since the women were outside on the road, the police started beating them with lathis to herd them inside.  Amina Haroon Memon was one such woman.  Amina took us aside, removed her shalwar and showed the laceration mark from the police danda.  ‘They hit me even as I was trying to get back inside my house.  And such filthy gaalis.  We went out to call the police because if our boys would have gone they would have forcibly taken them away.  Even if I die it does not matter.  I am forty plus.  But not the young boys, they have a life ahead.  The people who come they have ‘sadhan’ (arms) we have nothing.’
[43]

                C.     Finding of Complicity

The mobs’ well-coordinated behavior, including cell phone contact between leaders during the attacks, government lists of Muslims and cooperation by police and other officials suggests that they were not rioters but instead acted like a well-organized and directed de facto paramilitary force.[44] Complicity of the police and government authorities was a crucial part of the success of the Hindutva organization. 

 

IV.  Legal Analysis

Although a number of international treaties and declarations are relevant to the violence against women in Gujarat, India,[45] this presentation emphasizes law that more directly addresses the responsibility for the violence that has taken place.  It, therefore, focuses on six main bodies of law that have direct application to the state sponsored communal violence in Gujarat; Customary International Law; the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), the International Covenant on Civil and Political Rights (ICCPR),  the Convention Against Torture or other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Convention on the Elimination of all Forms of Racial Discrimination (CERD), and Indian domestic law. 

On the face of it, Indian domestic law adequately complies with international law.  Unfortunately, as will be shown below, the law has not been adequately adhered to by state or national authorities in the case of Gujarat.

 A.     Convention on the Prevention and Punishment of the Crime of Genocide[46]

The Genocide Convention describes genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a)    Killing members of the group;

(b)   Causing serious bodily or mental harm to members of the group;

(c)    Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d)   Imposing measures intended to prevent births within the group;

(e)    Forcibly transferring children of the group to another group. 

In Gujarat, there is a pattern of mutual escalation of hostilities between Hindus and Muslims.  The train car attack was in response to an incident of religious tension, and was apparently an unplanned event, but quickly took on devastating proportions.  The Hindu reaction to the train car incident was aimed at the destruction of the homes and livelihoods of Muslims in Ahmedabad.  The Hindu retaliation was conducted in a calculated way– Hindus were moving from home to home with voter registration lists to identify Muslims,   then targeting them with death and destruction.[47] In September 2002, two Muslim men raided and attacked people in a Hindu Temple in Gandhinagar, Gujarat, killing approximately 30 people.[48] As explained above, the Hindu on Muslim violence was state sponsored.

Both Hindus and Muslims have met some of the UN’s conditions.  It is well documented that both sides have targeted members of the other group in killings, thus fulfilling conditions (a) and (b).  Hindus have fulfilled condition (c) to a greater extent than have Muslims.  The numbers coming from various sources regarding Gujarat, state that 59 Hindus were killed during the February disturbance and, in retaliation, Hindus took the lives of close to 2000 Muslims.  In addition, Hindus burned the homes and businesses of Muslims in the region.  All of these factors directly relate to “[d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”  Moreover, the sexual violence that is the subject of this special report relates to conditions (a), (b), (c) and (d).  The raping and killing of Muslim women is intended to terrorize the Muslim community at large, in addition to stigmatizing the women in their own eyes and in the eyes of their society.  The stigma is calculated to disrupt family relations within the Muslim minority, and to decrease the likeliness of marriage for young girls who have been “tainted,” thus preventing births within the group.

The situation in Gujarat is best described as “internal disturbances” rather than armed conflict.  An internal disturbance can be defined as an event that is characterized by serious disruption of internal order resulting from acts of violence or riots, which do not reach the level of and armed conflict.  The nature, intensity and reoccurrence of violence between Muslims and Hindus in Gujarat are grave enough to warrant the conclusion that they amount to genocide. 

B.     Rape and Sexual Violence as Genocide or Crimes against Humanity
         Pursuant to the Genocide Convention andCustomary International Law

One of the most important recent developments of human rights law and humanitarian law is the coming into force, in July 2002, of the Statute of the International Criminal Court (ICC Statute).  The International Criminal Court is the world’s first permanent court with a mandate to adjudicate international crimes.  The two most serious limitations on the Court’s jurisdiction are (1) it dates back only as far as July 1, 2002; and (2) some nations, including India, have not ratified the ICC Statute, and are therefore not subject to the Court’s jurisdiction.  Moreover, India and the United States signed a pact in December 2002, under which they agreed not to send each other’s nationals to a world tribunal.[49] In spite of that, the ICC Statute and future case law from the Court are to be considered some of the most important interpretative authorities on the status and development of international law.  It is, therefore, of great momentum in the interpretation of Customary International Law that he ICC Statute explicitly provides that rape and other sexual violence is a crime against humanity when committed as a part of a widespread or systematic attack directed against any civilian population (Article 7). 

In addition, under the Genocide Convention, rape and other sexual violence can be used to pursue genocide.  In the historic Akayesu judgment, the International Criminal Tribunal for Rwanda interpreted the Genocide Convention, and explained that sexual violence could be an integral part of the process of destruction of a specific ethnic group of women, contributing to the destruction of the group as a whole, thus creating responsibility for the crime of genocide[50]

There is no magic number at which to determine that massive abuse directed at a certain group amounts to genocide.  Rather, it is the nature of the abuse that is the most crucial factor.  The nature of the abuse must include the intent to destroy an ethnic, religious, racial, or national group in whole or in part.  Intent may be inferred from the fact that the violence is systematic and organized in its nature.  To make the determination of “genocide,” however, the violence must also be directed at a significant number of people.  In other words, once the nature of the violence and the numbers are compounded, it can be determined whether the term “genocide” is an appropriate description of the violence.

It is important to note that there are longstanding institutionalized attempts by the Sang Parivar to marginalize the Muslim community in Gujarat.  The fact that Muslims constitute a minority puts them in danger, especially when the VHP, Bajrang Dal, RSS and certain media sources are effective in exciting hard-liners within the Hindu populace.  The influence of the rest of the Sang Parivar on the ruling BJP inhibits the fair treatment of minorities by the government in Gujarat.  In the political climate described, minority women belong to the most vulnerable group of all.

C.  International Covenant on Civil and Political Rights[51]

The following articles of the International Covenant on Civil and Political Rights (ICCPR) provide core legal protections which have not been met by Indian authorities:

            Article 7:         No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 9:         1.  No one shall be subjected to arbitrary arrest or detention.  No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

 

Article 14:       1.  All persons shall be equal before the courts and tribunals.

 

Article 20:       2.  Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

 

Article 26:       All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The Indian government has violated the above provisions of the ICCPR by failing to ensure their application in Gujarat.  India is under the obligation to prevent and prohibit the described conduct under its domestic law.  Article 14 provides that all persons, in the determination of his rights, shall be entitled to a fair hearing by a competent , independent and impartial tribunal established by law.  Contrary to its obligations, and in spite of the fact that Indian penal and constitutional law is adequate (see below), Indian authorities have deprived the Muslim minority of due process and equality before the law, as well as of equal protection of the law, by failing to implement the ICCPR in practice.

One example of unequal treatment before the law is the following: Reports say that police arbitrarily arrested Muslims and held them in detention for several days without cause or accusation of any crime.  By contrast, very few Hindus were arrested in connection with the violence against Muslims.  In cases where Hindus were actually arrested, they were released within hours of detention.

D.    Convention Against Torture or other Cruel, Inhuman or Degrading Treatment or Punishment[52]

Article 1:         1.  For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 

2.  This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. 

Article 4:         1.  Each State Party shall ensure that all acts of torture are offences under its criminal law.  The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

Article 10:       1.  Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, public officials, and other persons who may be involved in the custody, interrogation, or treatment of any individual subjected to any form of arrest, detention or imprisonment.

Although the Indian government has not ratified the Torture Convention it has, by signing the convention, agreed to not violate, and to not allow any violations of, the spirit of the Convention.  Furthermore, state sponsored torture is prohibited by non-derogable customary international law known as jus cogens

India has violated the international prohibition against torture, first, by tolerating the massive abuses described above and, thus becoming an accomplice in the violations and, second, by failing to provide an effective remedy that would enable redress to the victims.  It is important to note that the police is an agent of the state.  Therefore, when the police gave tacit approval to Hindus to continue attacking Muslims and failed to enforce the law towards Muslims and Hindus equally, the abuse became state sponsored.  The lack of police response to desperate phone calls made by Muslims during the riots is an additional example of state sponsored abuse. 

            E.  International Convention on the Elimination of all Forms of Racial Discrimination[53]

Article 1:         1.  In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, color, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. 

Article 4:         States Parties condemn all propaganda and all organizations which are based on ideas or theories of      superiority of one race or group of persons of one color or ethnic origin, or which attempt to justify or  promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

a.  Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another color or ethnic origin, and also the provision of any assistance to racist activities, including financing thereof. 

Religion is a part of a person’s ethnic and/or national identity, and as such, any distinction based on religion is a violation of the Treaty.   The actions taken by Muslims and Hindus against each other directly correlate to the above definition of discrimination.  The intentional targeting of Muslims and their homes and businesses by organized Hindu mobs is a clear form of discrimination.  Hard-line Hindu groups are quoted as saying that the actions taken against Muslims in Gujarat were a “successful experiment which will be repeated all over the country.” [54]  The Indian National Human Rights Commission (NHRC) describes that statement as a call to violence for Hindus and sees other such statements and sentiments as the reason for continued tensions.[55]

F.  Indian Domestic Law

i) Constitution of India[56]

The Indian Constitution provides for the protection of people with respect to freedom of religion and prohibits any adverse action taken on the basis of religion.  The Constitution further provides for equality before the law, a tenet not adhered to by the police in Gujarat.

Article 14:       The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 

Article 15:       (1)  The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.   

Article 21:       No person shall be deprived of his life or personal liberty except according to procedure established by law. 

Article 22:       (1)  No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. 

Article 25:       (1)  Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. 

Article 355:     It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.

ii) Indian Penal Code[57]

The Indian Penal Code protects the rights of people, including minorities, and prescribes punishment of the perpetrators and instigators of events such as those that took place in Gujarat.  The government is under an obligation to apply the pertinent laws equally to everybody. 

The Penal Code (Chapter VIII, Art.  141) describes several situations in which an assembly of five or more persons is unlawful, including the following: If the common objective of the assembly is

*   To commit … criminal trespass or other offence;

*   By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way … or to enforce any right or supposed right;

By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do

 

Also, an assembly that was not unlawful when it assembled may subsequently become so (id).  The Penal Code prescribes the following conditions and punishments for involvement in an unlawful assembly:

*  Whoever, being aware of facts which render any assembly unlawful, intentionally joins or continues in it, is considered a member of an unlawful assembly (Art.  142).  The punishment is imprisonment up to six months, or a fine, or both (Art 143).  Whoever, being armed with a deadly weapon, is a member of an unlawful assembly shall be punished with imprisonment for up to two years, or a fine, or both (Art.  144). 

*  Whenever an unlawful assembly or any member of an unlawful assembly uses force or violence in prosecution of its common objective, every member of the unlawful assembly is guilty of rioting (Art.  146).  Persons guilty of rioting shall be punished with imprisonment for up to 2 years  (if armed with a deadly weapon, up to 3 years), or  a  fine, or both (Articles 147-48). 

*  Whoever malignantly, or wantonly, by doing anything illegal, gives provocation to any person intending or knowing it to be likely to cause a riot, shall, if a riot occurs as a consequence of the provocation, be punished with imprisonment for up to one year, or a  fine, or both (Article 153).

Other provisions of the Code expand on what speech and actions are illegal in connection with promoting enmity between different groups on grounds of religion (Art.  153 A), and making imputations or assertions prejudicial to national integration (Art.  153B).

 

V.  Conclusion

In Gujarat the violence against Muslims by Hindus was widespread and protracted in nature. The attacks showed advance planning and organization and encouragement, facilitation and complicity of the government, including active participation in the attacks and failure to bring perpetrators to justice.  Not only were attacks directed at Muslims in general, but sexual violence were directed at Muslim women with the intent to inflict serious bodily harm, mental harm, and death on that group.  Participants in the atrocities against Muslim men and women are therefore responsible for participating in genocide.  To the extent that government officials participated in, encouraged, organized, or aided in the atrocities, the responsibility extends to the national government of India.

 

Appendix: General Legal Sources

People’s Union for Democratic Rights, Maaro! Kaapo! Baalo! State, Society and Communalism in

Gujarat, Delhi, May 2002, Page 5, at

Human Rights Watch, India: Gujarat Officials Took Part in Anti-Muslim Violence, New Report

Documents Complicity of the State Government, April 30, 2002,  at

Human Rights Watch, India: Keep Peace in Gujarat, September 26, 2002, at

Press Trust of India, BJP tight-lipped over Sighal’s comment on Gujarat, September 4, 2002, at

National Human Rights Commission, New Delhi, India, Final Order on Gujarat dated 31st May

2002, at

Indian Legal Eagle: The Ultimate Law Portal, Indian Penal Code: Offences Against Public

Tranquility, at

Amnesty International, India: Hate Speeches on the Violence in Gujarat Must Be Stopped, at www. 

Amnestyusa.org/news/2002/india10162002.html.


 
Notes

[1] See Syeda Hameed ET AL., How has the Gujarat Massacre Affected Minority Women, The Survivors Speak. April 16, 2002 at 14 . at 6 [hereinafter Survivors Speak]. The passage comes from an anonymous 13 year old witness).

[2] Ram is one of the most important deities in the Hindu faith.

[3] See Pankaj Mishra, The Other Face of Fanaticism, N.Y. TIMES MAGAZINE, Feb. 2, 2003 at 44.

[4] See id.

[5] See Harsh Mander, Cry the Beloved Country, Reflections on the Gujarat Massacre, (March 13, 2002) available at   (Harsh Mander is a serving IAS Officer and working on deputation with a development organization.)

[6] See Survivors Speak, supra note 4, at 13. (The testimony comes from Saira Banu of Naroda Patia and was recorded at the Shah-e-Alam Camp on March 27th, 2002.)

[7] See Harsh Mander, supra note 9.

[8] Syeda Hameed ET AL.,  How has the Gujarat Massacre Affected Minority Women, The Survivors Speak. April 16, 2002 at 14 . [hereinafter Survivors Speak] (This headline ran on the cover of Sandesh, a Gujarati newspaper, on February 28, 2002, the day after the Godhra train incident. The headline is quoted in the report by the six member fact finding team sponsored by the Citizen’s Initiave in Ahmedabad, India) 

[9] id. (This headline ran on the March 1, 2002 edition of the Sandesh daily.)

[10] See id. at  14.

[11] See id. at 15.

[12] Survivors Speak supra note 4 at 6.

[13] id at 7.

[14] id. at 7.

[15] id. at 9.

[16] See Will the Forgotten Victims of the Gujarat Massacres Obtain Justice_ The Wire, Amnesty International, September 2002.

[17] The Concerned Citizen’s Tribunal: An Inquiry into the Carnage in Gujarat 2002

[18] See Dr. Kamal Mitra Chenoy et al.,  Ethnic Cleansing in Ahmedabad: A Preliminary Report (This report was written by a Sahmat Fact Finding Team deployed to Ahmedabad March 10-11, 2002. )

[19] See Human Rights Watch, “We Have No Orders to Save You” State Participation and Complicity in Communal Violence in Gujarat (April 2002) at 13. [Vol 14, No 3C ] available at

[20] See id. at  21.

[21] See Chenoy, supra note 14.

[22] See Human Rights Watch, supra note 19 at 5.

[23] See id. at 32.

[24] Deccan Herald July 10, 2002. (In addition, for some time, minority officers and those who do not support the Hindutva have been reassigned to less active positions.)

[25] See Human Rights Watch, supra note 19 at 21.

[26] See Chenoy, supra note 14.

[27] See Survivor Speaks supra note 4 at 6.

[28] See After the Rape, Gujarat Gags its Worst Victims, The Indian Express, April 17, 2002.

[29] See Human Rights Watch supra note 19 at 48-49.

[30] See id. at 6.

[31] See id. at 50.

[32] See The International Initiative for Justice in Gujarat Interim Report, Dec 19, 2002. (The International Initiative for Justice in Gujarat was organized by the following groups: Citizen’s Initiative (Ahmedabad), People’s Union for Civil Liberties (PUCL) – Shanti Abhiyan (Vadodara), Communalism Combat, Awaaz-E-Niswaan Forum Against Oppression of Women (FAOW) and Stree Sangam (Mumbai), Saheli, Jagori, Sama, and Nirantar (Delhi), Organised Lesbian Alliance for Visibility and Action (OLAVA, Pune), and other women’s organizations in India.)

[33] See Human Rights Watch supra note 19, at 34-35.

 

[35] Survivors Speak supra note 4 at 22.

[36] id. at 23.

[37] id. at 23.

[38] id. at 23.

[39] id. at 24.

[40] id. at 24.

[41]   id. at 25.

[42]   id. at 25.

[43]   id. at 26.

[44] See Chenoy, supra note 18.

[45] See, for instance, the Convention on the Elimination of All forms of Discrimination against Women, G.A. res. 34/180, 34 G.A.O.R. Supp. (No. 46) at 193, U.N . Doc A/34/46, entered into force Sept. 3, 1981. Also note that, while not directly applicable as black letter law, the Declaration on the Elimination of Violence Against Women, declares that states should develop legal, political and administrative measures to protect women against violence, including violence perpetrated or condoned by the state, and should “ensure that the re-victimization of women does not occur because of laws insensitive to gender considerations, enforcement practices or other interventions.” Declaration on the Elimination of Violence Against Women, G.A. res. 48/104, 48 U.N. GAOR Supp. (No. 49) at 217, U.N. Doc. A/48/49 (1993).

[46] Convention on the Prevention and Punishment of the Crime of Genocide, Jan. 12, 1951. Ratified by India 1959.

[47]   Human Rights Watch, India: Gujarat Officials Took Part in Anti-Muslim Violence, New Report Documents Complicity of the State Government  (April 30, 2002), at .

[48]   Human Rights Watch, India: Keep Peace in Gujarat (September 26, 2002), at .

[49] Agence France Presse, US, India Score ‘Win’ Against International Criminal Court (Dec. 26, 2000), at

[50] International Criminal Tribunal for Rwanda, Prosecutor of the Tribunal Against Jean Paul Akayesu, No. ICTR-96-4-T (Sep. 2, 1998) (Judgment), available at

[51] International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp . (No. 16) at 52, U.N. Doc.A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976. Ratified by India on April 10, 1979.

[52] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc.A/39/51 (1984), entered into force June 26, 1987. Signed by India on October 14, 1997.

 

[53] International Convention on the Elimination of All Forms of racial Discrimination, G.A. res. 2106 (XX) 660 U.N.T.S. 195, entered into force Jan. 4, 1969. Ratified by India on December 3, 1968.

[54]   Press Trust of India, Beginning of the End, Jan. 9, 2003, at www.hindustantimes.com.

[55]   Human Rights Watch, India: Gujarat Officials Took Part in Anti-Muslim Violence, New Report Documents Complicity of the State Government  (April 30, 2002), at

[56]   Indian Const. (Adopted Jan. 26, 1950, amendments through 1996 included).

[57] The Indian Penal Code, Act No. 45 (1860).


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