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Invisibilising mass violence in Gujarat

By Anita Abraham

International law mandates the prosecution and punishment of all perpetrators of mass crimes, including heads of state and other leaders. But India has not defined state criminality in mass atrocities in its jurisprudence, making it difficult to address situations such as Gujarat in 2002

The need for a national mass crimes law

With the recent conviction of former Liberian President Charles Taylor by the Special Court for Sierra Leone (SCSL) on all 11 counts of aiding, abetting and planning war crimes and crimes against humanity in Sierra Leone, the jurisprudence of international human rights law and international criminal law, by attaching liability to a former head of state, has expanded in its application and covered the situation of impunity that prevailed during Taylor’s regime.

Likewise, the prosecution of people who planned and conspired in the mass violence in Gujarat in 2002 -- whether heads of state/leaders or other people actively engaged in the killings, rape and other major crimes -- must be carried out in an unbiased court of law. It is necessary to invoke and incorporate into national law, the responsibility of commanders and superiors as well as the irrelevance of official capacity provided by international law, in particular the Rome Statute and the ICTY (International Criminal Tribunal for the former Yugoslavia) and ICTR (International Criminal Tribunal for Rwanda)statutes.

In the Indian context, specific acts and omissions committed by heads of state in the context of genocide and crimes against humanity have not yet been criminalised either through statutes or through judge-made laws. Till date, mass atrocities/crimes or gross human rights violations have not been defined in national legal jurisprudence; nor has it been acknowledged that the Indian state has committed specific types of mass crimes.

International law, through the enactment of the Rome Statute preceded by the Nuremberg Charter and Trials, the Genocide Convention, the Geneva Conventions, ad-hoc tribunals like the ICTY and ICTR, amongst others, has laid down a voluminous legal jurisprudence for the prosecution and punishment of all perpetrators of mass crimes, including heads of state and other ranks of leadership. The Rome Statute, the legal basis for the existence of the International Criminal Court, defines four substantive types of mass crimes -- genocide, crimes against humanity, war crimes and crimes of aggression.

It is important for the Indian state to accept that there is a lacuna in the existing laws and state redressal machinery needed to address the situation of mass violence that took place in Gujarat in 2002. Further, there is a need to create legal concepts and jurisprudence for the description and criminalisation of specific forms of state criminality.

Invisibilising mass violence in Gujarat
Families mourn those who died in the 2002 Gujarat riots

Procedure according to the law

Till date, the mass crimes and gross human rights violations that claimed the lives of thousands of people in Gujarat in February and March 2002, and due to which the Muslim community in Gujarat has still not been able to claim their political and legal entitlements, have been referred to as ‘communal riots’ or ‘communal violence’. While the terms ‘communal riots’ or ‘communal violence’ suggest that the violence was initiated by a group of people belonging to one religious community upon another group belonging to another religious community, either due to provocation or for self-defence, the violent incidents that took place in Gujarat have nothing in common either with a spontaneous riot or a mob fight.   

In many of the cases registered during incidents of mass violence in Gujarat in 2002, the actual facts of the case were different from the facts recorded by the police in the given case (1). In many instances, the perpetrators’ modus operandi was to go in large groups/mobs to houses and areas in which Muslim families lived. Hence, in some areas or villages, Muslim families were killed and properties destroyed and in other areas Muslim families were threatened with their lives, and houses, shops and establishments burnt, looted and destroyed. Many families fled to relief camps. Sexual violence of the worst kind was committed against women and young girls. As is a known fact today, the people accused of the crimes lived in the same area/locality as the victims. As a result, the victims were more vulnerable because the aggressors were fully aware of the details of their families, the size of their houses, etc. The mobs would approach a house and kill its occupants; in some cases, if the residents managed to flee for their lives, the house was looted and set on fire. Since many of the perpetrators were known to the victims, in most cases they could be identified by the victims.

Close inspection of the first information reports (hereinafter referred to as FIRs) registered by the police shows that all details of the said offences have been left out. The FIR would be recorded in such a way that, instead of recording every single detail of the offences committed against a person and his/her family, a summary of the destruction of an entire village or locality spanning 3-4 km would be written down in six to 12 sentences. In many cases, it was made to appear as though altercations had broken out between two communities/groups of people leading to violence. The cases would go to trial as cross-cases, in an attempt to justify the violence as ‘communal riots’. FIRs that covered offences committed over large areas were referred to as ‘omnibus’ FIRs, wherein instead of pointing out every offence pertaining to the person or his property, a few general sweeping statements were made in one FIR in order to cover all the aforesaid offences/crimes without naming either the victim or the perpetrators. Statutorily, it is mandated that when the commission of an offence is alleged, for example in a case of alleged murder wherein A kills B at location C, an FIR will be registered at the local police station highlighting all the relevant details varying between time of incident, date of incident, exact location, weapon of offence, possible eyewitnesses, number of victims, offences committed against them, what the victim was doing at the time of the incident (if known), and so on. In other words, Section 154 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) is drafted in a manner that envisages that the description of the event will be given in the best possible manner in order to determine the exact way the incident took place. The FIR is considered the fulcrum of an investigation; further and potential investigation turns on the details stated in the FIR. Hence, recording an omnibus FIR with little or no details, sometimes even false details, incorporating a number of cases, is the first step towards ensuring that the scales of justice are tilted in favour of the accused.

The truth of the events of the case was thus completely irrelevant to the investigating agency, and the entire exercise of taking down the victims’ complaints was conducted in a manner that shielded and protected the perpetrators. The procedure was manipulated to hide the facts and enable the perpetrators to deny that anything had happened. Arguably, the entire state machinery connived to abstain from providing legal protection to victims of crimes committed against them in 2002.

It is pertinent to mention here that even if the information registered in an FIR is sparse and insufficient, if strong, reliable information is obtained subsequently during the investigation, that information can be placed on record by the investigating agency either through supplementary statements or at the time the investigating agency files its chargesheet. These steps, which are mandated by the law, are enough to bring on record a transparent and truthful revelation of facts revealing the manner in which the offence was committed, so that accused persons are ably prosecuted.

In a situation where, in the rest of the state, cases are conducted with a sense of normalcy and by following relevant legal procedures, the absence of redressal mechanisms for victims of incidents that took place in Gujarat appears to have been a result of trying to achieve an invisibilisation of the mass violence that took place against Muslims in Gujarat in 2002. It has only been through persistent efforts by NGOs, the victims and their families, and interventions by the Supreme Court that several prosecutions have been fairly conducted. 

Criminal prosecution

Criminal prosecution of people who have committed these crimes, especially those from among the leadership, must be carried out. People who indulge in mass violence in the form of mass killings, mass rape, mass pillage, mass arson, mass destruction of religious places of worship, even as they hide under the cloak of the leadership, must be held accountable in a democracy. It should be the mandate of any government, irrespective of political ideology, to avoid further incidents of mass violence in the name of religion or ethnicity, and render accountability by prosecuting and punishing the ranks of leadership. Kritz, while arguing for accountability, states: ‘In helping societies deal with a legacy of past mass abuses, the process of criminal accountability can serve several functions. Prosecutions can provide victims with a sense of justice and catharsis -- a sense that their grievances have been addressed and can hopefully be put to rest, rather than smouldering in anticipation of the next round of conflict. They provide a public forum for the judicial confirmation of facts. They can also establish a new dynamic in society, an understanding that aggressors and those who attempt to abuse the rights of others will henceforth be held accountable. Perhaps most importantly for purposes of long-term reconciliation, this approach makes the statement that specific individuals -- not entire ethnic or religious or political groups -- committed atrocities for which they need to be held accountable. In so doing, it rejects the dangerous culture of collective guilt and retribution that often produces further cycles of resentment and violence.’ (2)

Levels of culpability

Legal concepts to incriminate the ranks of leadership for the commission of gross human rights violations must be evolved (3). It may also be relevant to create levels of culpability. The Rwandan government, which enacted legislation (4) in 1996 in order to address the genocide that took place in Rwanda, in 1994, created four levels of culpability: 1) Leaders and organisers of the genocide, and perpetrators of particularly heinous murders and sexual torture. 2) All others who committed homicides. 3) Perpetrators of grave assaults against persons not resulting in death. 4) Those who committed offences against property (5).

Invisibilising mass violence in Gujarat
Zakia Jafri revisits her home in Gulberg Society, Ahmedabad, where her husband Ehsaan Jafri and several others lost their lives in the 2002 riots

According to Kritz: ‘All those in the first category are subject to full prosecution and punishment. Provision of a series of incentives for people in Categories 2 and 3 -- by far the largest categories -- to come forward voluntarily and confess… Specifically, those in these two groups who participate in the ‘confession and guilty plea procedure’ which includes a full confession of their crimes, including information on their accomplices or co-conspirators, will benefit from an expedited process and a significantly reduced schedule of penalties… Those Rwandans who confess to their role in the 1994 genocide in exchange for lenient treatment need to do one more thing: they need to formally apologise to their victims… It assumes that, in this way, the process of criminal accountability may be more effective in facilitating national reconciliation. Finally, those in Category 4 will not be subject to any criminal penalties.’

The relevance of the Rwandan justice model to the mass atrocities that took place in Gujarat is substantial. It is pertinent to mention here that in several cases in Gujarat the accused approached the victims/witnesses to reach a ‘compromise’. While some of these cases may involve offences related to property, which may be compounded even legally, many cases in which the accused approached the victims for a settlement or compromise are those wherein people have been killed in the violence. This is not permitted under the law. Jha states: ‘The technical illegality and the impossibility of a legally valid compromise agreement of non-compoundable riot and arson offences is immaterial, given the prevalent culture of compromise which routinely facilitates hostile witnesses on the basis of agreements reached outside the courtrooms.’ (6)

Hence, victims have to struggle for basic redressal mechanisms such as getting complaints registered, getting applications for further investigations allowed, participation in criminal proceedings, compensation, etc. In addition, they are forced to consider options for survival based on the terms of the accused who quite often are well-known persons of the village who use threat, including those of social and economic boycott as well as monetary inducement, to reach a ‘compromise’. In many cases, while the victims may categorically refuse to ‘compromise’, some accept a compromise in exchange for promises of no further threats and no social boycotts in order to survive. Says Jha: ‘The phenomenon of compromise, whilst illegal, is deeply institutionalised in the criminal justice system where the norms of poor investigation, inordinate delays and low conviction rates have been exacerbated by a communalised society where communal offences have not been diligently investigated or prosecuted.’ (7)

While studying the aforesaid situation, it may be fruitful for the purposes of moving towards long-term reconciliation and avoiding future such events from taking place, if the courts in Gujarat effected the process of compromise by following legal procedures. This is especially relevant in view of the fact that even now, after the violence, the two communities are living together. And that the targeted Muslim community must be able to live in their hometowns on a par with the rest of the village. State intervention and judicial intervention is essential to enable this.

The following practices may be applied in less serious crimes. Sections 320, 265A-L and Section 306-308 of the Code of Criminal Procedure are compounding, plea-bargaining and grant of pardon proceedings provided in national criminal law, respectively. The provisions of Sections 320, 265A-L, 306-308 of the CrPC allows an accused to compound a matter, or plead guilty in order that the matter is settled on terms agreed to and negotiated by the victim. This provides a certain degree of closure for the victim who can even ask for a public apology and compensation where necessary. The entire case gets settled inside the courts. Hence, a plea-bargaining procedure or compounding procedure for less serious crimes such as those involving minor assault on persons or property could be undertaken in the context of the violence that took place in Gujarat.

These steps would be an improvement on the current situation in which the victims agree to a ‘compromise’, in a coercive social and political environment. This way, the targeted Muslim community can at least begin the process of healing. For less serious crimes which do not involve offences that have caused death, etc, compounding or plea-bargaining in the context of mass crimes for minor offences that are permitted in Sections 320 and 265A-L of the CrPC should include (a) an apology by the accused persons to the victim; (b) narration of a truthful and accurate account of the facts regarding the commission of offences by the accused persons and; (c) where relevant, a disclosure of accomplices in the manner provided in Sections 306-308 of the CrPC. Plea-bargaining procedures in the context of mass crimes established by the state would assist in reconciliation between the two communities since it would finally allow the victims to be on par, politically, with the accused persons, and would allow the accused to accept and acknowledge their commission and participation in the mass crimes.

(Anita Abraham is a lawyer with an independent practice based in Delhi. She has been involved in research in the areas of gender and communal violence. This article is part of a Working Paper for the Centre for the Study of Law and Governance, JNU, Delhi)

1 The author has studied some of the cases registered in the state of Gujarat during her work with Nyayagrah, the justice programme of Aman Biradari, based in Ahmedabad, Gujarat. The views of the author are her own and do not necessarily reflect those of the organisation 
2 Kritz, Neil. 1998. Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights. Law and Contemporary Problems
3 Eichmann was convicted by a court in Israel in 1962 for endless war crimes and crimes against humanity and crimes against the Jewish people.  Nino Carlos says: “While the Israeli court recognised that Eichmann did not bear direct responsibility for most of these crimes, it ruled that in the case of such massive crimes ‘distance’ between the agent and the victims did not diminish responsibility. On the contrary, in general, the degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands.” See Nino Carlos. 1996. Radical Evil on Trial. New Haven and London, Yale University Press, Introduction (vii-xii) 
4 The ‘Organisation of Prosecutions for Offences Constituting the Crime of Genocide or Crimes against Humanity Committed Since October 1, 1990’, Organic Law No 08/96 (August 30, 1996). See also H Morris, Madeline. 1997. ‘The Trials of Concurrent Jurisdiction: The Case of Rwanda’. Duke Journal of Comparative and International Law, Vol 7: 349
5 Id
6 Jha, Prita. 2011. ‘Paper on Compromise’. Unpublished paper on file with the author
7 Id

Infochange News & Features, March 2013