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The criminal offences committed against Bilkis Bano and her family members were no ordinary crimes. They were multiple crimes of rape and murder, including the murder of children. They were mass crimes committed in a context of an anti-Muslim pogrom – in a planned, organised and concerted manner through a systematic attack across many parts of Gujarat. Much has been written and spoken about the legality of the remission order issued to the eleven convicts in Bilkis Bano’s case last month, by critiquing the Indian law and procedure. This article attempts to add to the public discourse through an international law perspective.
The definition of ‘crimes against humanity’ has undergone various modifications since 1945, when it was first codified under the Charter of the International Military Tribunal at Nuremberg. Notably, its nexus to war was removed, hence making it a criminal offence committed in wartime or peacetime. Decades later, the Statute of the International Criminal Tribunal for former Yugoslavia (ICTY) and the Statute of the International Criminal Tribunal for Rwanda (ICTR), defined ‘crimes against humanity’ and explicitly included ‘rape’ as a crime against humanity.
In 1998, the global community adopted the Rome Statute establishing the International Criminal Court (ICC), which spelt out ‘crimes against humanity’ as one of the four most heinous crimes under international law (along with genocide, war crimes and aggression), for which individuals are prosecuted in a permanent court. The Statute defined crimes against humanity in Article 7 as any of the acts listed in the provision, when committed as part of a “widespread or systematic attack, against a civilian population with knowledge of the attack”. The list includes murder, rape and other forms of sexual and gender-based violence. The communal pogrom in Gujarat – and the multiple rapes and murders committed on Bilkis’ family – falls within the purview of ‘crimes against humanity.’
Reformation in heinous crimes
In international criminal law, there is no provision for remission as an executive discretion. Once the ICC has convicted and sentenced the person, against the sentence, there is a provision for review (including for reduction of sentence). Rule 223 of the Rules of Procedure and Evidence gives power to three judges of the Appeals Chamber to review if the sentence should be reduced, based on a defined set of criteria including:
(a) The conduct of the sentenced person while in detention, which shows a genuine dissociation from his or her crime;
(b) The prospect of the resocialization and successful resettlement of the sentenced person;
(c) Whether the early release of the sentenced person would give rise to significant social instability;
(d) Any significant action taken by the sentenced person for the benefit of the victims as well as any impact on the victims and their families as a result of the early release;
(e) Individual circumstances of the sentenced person, including a worsening state of physical or mental health or advanced age. [Emphasis added]
The clear criteria prevent an arbitrary exercise of power in reducing the sentence awarded. In the ICC Statute, the reduction of a sentence remains a judicial mandate and not executive discretion.
One may ask – can convicts of heinous crimes undergo reform? India has firmly embedded itself in the retention of the death penalty – it has the highest number of death row prisoners (488) in the past 17 years in 2021 as per a report. The international community, meanwhile, has determinedly moved towards the abolition of the death penalty, even for the most serious offences, in support of the reformatory theory of punishment.
For instance, Article 77 of the ICC Statute provides for a maximum of thirty years imprisonment or “a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.” The drafters of the ICC Statute did not leave it open to the judges of the ICC to impose the death penalty (irrespective of how heinous the crime committed was). In the negotiations for the ICC Statute, a Working Group on Penalties had contentious discussions, with some delegations insisting on the inclusion of the death penalty due to the heinous nature of the crimes, while other delegations advocated for humane treatment of the convicts, and the possibility of their reformation and rehabilitation.
Article 77 was formulated as a compromise between the polarising viewpoints. Thus, the ICC Statute contemplates the possibility of reformation by an individual, even when convicted for the most serious crimes under international law. However, it is on the basis of the clear, intelligible and transparent criteria set out in Rule 223 (discussed above) that the reduction in the sentence will be determined by the judges of the Appeals Chamber.
Victims’ right to participation
In international law, ‘victims’ have a very specific definition and a comprehensive set of rights. In the ICC Statute, victims are placed at the heart of international criminal justice, and their rights fall within three main categories: right to protection (from threat, intimidation, coercion and duress), participation (in the proceedings for justice) and reparations (to repair the harm caused). Victims’ rights in the ICC are discussed in detail elsewhere.
Victims’ participation in the proceedings has been given utmost importance by the ICC Statute, by way of recognising victims as important stakeholders in the dispensation of criminal justice. By observing the practice at the ICC, one can deduce that victim participation is evident in stages including the following: when the prosecutor requests the pre-trial chamber to authorise the commencement of investigation; when the court deals with challenges to ICC’s jurisdiction and the admissibility of a case; when hearing is held for confirming the charges of a suspect; when a suspect is arrested and produced before the ICC for trial; during trial; during sentencing and in hearings for reparations.
In India, there appears to be no uniform legal compulsion to hear the victims’ views stated in the rules related to remission. The relevant law (Sections 432, 433 and 433A of the Code of Criminal Procedure) spells out that the Jail Advisory Board must mandatorily hear the trial court’s opinion. While the trial court’s opinion is imperative, this might not suffice as the trial court may not be in a position to put itself in the shoes of the victims and imagine their concerns several years after the conviction and sentencing are concluded.
Hence, hearing the victims’ or their representatives’ views in addition, prior to issuing the remission order, is an important aspect of the victims’ right to participation. If the victims’ views appear unsubstantiated, exaggerated, false, vengeful, frivolous or emotional, the Board may ignore their viewpoint with reasons given in writing. However, to deny them the opportunity of presenting their views while determining the issuance of remission undermines victims’ right to participation.
There is often a misconception that reparations and compensation are synonymous. In international law, reparations involve much more than compensation, and consist of five key elements that would help ‘repair’ the harm done to the victim. These include restitution (restoring the victim to the situation prior to the crime), compensation (for economically assessable damage), rehabilitation (including medical and psychological care, legal aid and social support services), satisfaction (often entailing disclosure of the truth) and guarantees of non-repetition.
These elements have been defined in the Basic Principles and Guidelines on a Right to a Remedy and Reparations for Victims, adopted by the UN General Assembly in 2006. In the case of Bilkis Bano, except for compensation paid by the state government, other elements have hardly been met. The guarantee of non-repetition is intangible but has symbolic importance for victims. Where the convicts show no remorse for the horrific crimes they committed, and are instead, given a heroic welcome as celebrities, there can be no possible guarantee of non-repetition of the crimes, either to the victims or to other members of their community.
State obligations and due diligence
The UN Convention on Elimination of Discrimination Against Women (CEDAW), ratified by the Indian government in July 1993, is one of the core human rights treaties that mandates member states to discharge legal obligations for human rights. In relation to women’s human rights, CEDAW mandates that such legal obligations of the state include the duty to respect (to refrain from discrimination through its own actions); the duty to protect (including prevention, prosecution, punishment, provision of reparations and establishing legal and other mechanisms for redress) and the duty to fulfil (by creating an enabling environment for human rights, including by providing for budgetary allocations and infrastructural facilities).
The UN Declaration on Elimination of Violence Against Women and CEDAW Committee’s General Recommendation 35 further mandate that states are responsible for acts of commission and omission by both state and non-state actors, and that states have a due diligence obligation – that is, to be duly diligent in regulating and protecting women from systemic forms of violence. The state’s due diligence obligation does not end with punishment to the guilty, but extends to providing reparations to victims and to taking “all appropriate measures to prevent acts of gender-based violence against women.” Any acts that provide tacit permission or encouragement to acts of gender-based violence against women would fall short of the due diligence obligation.
Through the lens of international law
A holistic perspective of the remission order through the lens of international law leads us to several conclusions. A premature release of the eleven persons convicted of multiple rapes and murders, without any clear indication of their reformatory potential, while disregarding the opinion of the trial judge, without giving an opportunity to Bilkis to have her concerns on the remission heard, and through an opaque and arbitrary exercise of executive power, woefully falls short of international legal standards.
In a country such as India, which believes in democracy and rule of law, an intelligible set of criteria that spells out the reformatory potential of a convict and other aspects such as ramifications on the victims, the community they belong to and on the law and order situation are imperative. These would act as guidelines for the Jail Advisory Board that considers pleas of remission from convicts, as well as for the public at large in understanding why an order of remission was issued in favour of some convicts and not others who had committed similarly heinous offences.
Even if India is not a state party to the ICC, the law and rules related to the ICC form part of the body of international law that one must be mindful of. The state’s remission order has, on one hand, led to a chilling effect among victims and potential victims of sexual and gender-based violence, more so in contexts of mass crimes; on the other hand, it has emboldened the convicts and potential perpetrators by providing them tacit encouragement for such offences. These ramifications illustrate that the state has failed to discharge its due diligence obligation to respect, protect and fulfil women’s human rights in international law. As a result, Bilkis Bano has received nothing more than an iota of reparative justice.
Saumya Uma is a professor of law and Director of the Centre for Women’s Rights at Jindal Global Law School, O.P. Jindal Global University. She teaches, writes and speaks at the intersections of gender, human rights and the law. The opinions expressed in this article are her own.