National 3 (Spotlight Weekly)

Crime Against Humanity

A sub-regional seminar calls for an integrated approach to eradicate the heinous crime

By BHAGIRATH YOGI in New Delhi

A prison : Inhuman condition

On Sunday night (September 15, 2002), a group of Maoist insurgents took Krishna Prasad Sapkota, former chairman of Rayale Village Development Committee (VDC) in Kavrepalanchok district, adjoining Kathmandu, into custody. His badly mutilated body - with his eyes plucked, ears chopped off, stomach punctured with a sharp object, a bullet in his chest and his head chopped off - was found at an adjoining place called Darimbot the following morning, according to Kantipur daily. His 'crime': protesting the abduction of a local villager, Singha Bahadur Thapa, by the Maoists.

-The same night, a group of insurgents chopped off the right hand and right leg of Gorakhnath Kalwar, a resident of Khuruhuriya VDC-7 in Kapilvastu district. Kalwar died due to excessive bleeding while undergoing treatment in an Indian hospital at Gorakhpur. (The Kathmandu intelligentsia are at their wit's end to know why the 'left' Maoists only chop off 'right' limbs of their 'class enemies'.)

- On March 15, 2002, over a dozen security personnel reached Saraswoti VDC-3 Tokha, on the outskirts of Kathmandu. They took five local residents into custody, including Kanchha Dangol, a carpenter who made a living as a daily wage worker. Three days later, the Defense Ministry said Dangol was killed in an encounter with the security forces.

On March 20, a fact-finding mission comprising human rights organizations spoke to Dangol's family members (including 85-year-old mother and four children; his wife had died a couple of years back), eyewitnesses and observed the dead body. On the basis of the evidence collected, the mission concluded, "Dangol was arrested along with four other people of the village, taken to the custody, tortured and shot dead." There has not been any response from the government.

"Since November 2001, the largest number of people have been tortured in the history of Nepal," said Dr. Bhogendra Sharma, director of the Center for Victims of Torture (CVICT), a Kathmandu-based human rights organization, presenting a paper at the seminar on "Reparations for torture victims in Nepal, Sri Lanka and India" in New Delhi on Saturday (September 14).

According to Dr. Sharma, torture was one of the provocative factors for youths in rural areas to join the Maoist party. Absolute impunity to perpetrators has fueled the insurgency, rights activists said. "The belief among higher authorities is that punishing security people will reduce their morale and, thereby, jeopardize law and order," he added.

Though Nepal signed the United National Convention Against Torture (CAT) after the restoration of democracy in 1990, torture is not regarded a crime during legal practice. The Torture Compensation Act 1996 has the provision of compensating torture victims to the tune of Rs.100,000 but very few victims have time and inclination to fight for their right. They are equally afraid of the possibility of revenge from the authorities. Though over 130 journalists were detained by security forces during the nine-month-long state of emergency, not a single one has filed a case seeking compensation from the government.

The situation is no different in other countries of the region. Suffering from civil war till sometime back, the situation in Sri Lanka was even worse. "Nearly 40,000 people were extra-judicially killed and another 45,000 detained or tortured over the last forty years," said Kalyananda Tirangama of the Lawyers for Human Rights and Development in Sri Lanka. Tirangama, who was himself detained for three years and tortured, said stringent laws alone would not help eradicate the problem. "The perpetrators of torture are liable to a minimum sentence of seven years and maximum sentence of 10 years. But this law has become impractical," he said.

Experts say law enforcement agencies often use torture as a means to extract confessions from an accused. "The practice of torture is as old as humanity," said Soli J. Sorabjee, attorney-general of India. "One main reason for its rampant practice is the mindset of the security forces. Proper scientific training and equipment must be provided to the police."

An eminent lawyer, Sorabji said a change in the public mindset was equally important to eradicate torture. Public thinking is bound to affect the law-enforcing officers, he said.

Chairman of the National Human Rights Commission of India, Justice J. S. Verma, said torture is a gross violation of human rights. "There is a tendency of torturing petty offenders rather than economic criminals. If an innocent person is torture, he is likely to turn into a terrorist," he warned.

Experts said the role of the judiciary was equally crucial in providing justice to the victim and his/her family. "The court can ask the government to provide reparation to the victims of all types of torture," said Carla Ferstman, legal director of Redress, an NGO. "Under the CAT, the state has obligation to enact laws in their respective countries." (See Box)

So, what can civil society do to eradicate torture? "We are not members of a civilized society as long as we are not protesting against torture. We have to debate on legal as well as other strategies to deal with torture," said Dr. Bijay Gupta, professor of law at the Jamia Milia Islamia. "Simply by ratifying conventions, ground realities don't improve. So, there is a need to provide for legally enforceable right to reparation. We should create institutional support system, create awareness and create more space for civil society," he added.

The day-long seminar made a number of recommendations on eradicating torture, including legal reforms to make the definition of torture more explicit, compensation not to be limited to finance only, creating awareness through the media and advocate for state's compliance with national and international laws.

"To begin with, there should be an emphasis on collecting material evidence and prosecuting on the basis of evidence collected rather than on statements extracted through torture," said Kedar Poudel, acting secretary at the National Human Rights Commission. "The court too needs to change its concept. At the same time, we need to adopt a right-based approach," he added.

A long way to go indeed.

Defining Torture

The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines 'torture' as 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.

Article 2 of the Convention stipulates that each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture, says the convention.

Fifteen years ago, on June 26, 1987, the Convention against Torture entered into force. Despite numerous commitments by all governments to ratify it, the Convention against Torture remains the least ratified of the six international human rights treaties with only 129 states parties.

Torture is expressly prohibited under the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, various international standards and regional human rights treaties. Prohibition of torture is also part of international customary law.

The Convention against Torture contains detailed steps that state parties must take in carrying out their obligation to prohibit and prevent torture. It also establishes the Committee against Torture, consisting of ten independent experts, to monitor state parties' compliance with their obligations under the Convention. The Committee carries out its mandate by reviewing state party periodic reports, deciding on individual complaints and carrying out confidential inquiries. To date only 50 states have made the declaration to Article 22 to provide for individual complaints. The constitution of the kingdom of Nepal, 1990, prohibits use of torture even during the state of emergency.