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1

Law / right to privacy by UN

« on: March 29, 2015, 02:29:33 PM »

United Nations establishes landmark role for expert to investigate and report on right to privacy:

The UN's top human rights body, the Human Rights Council, today has passed a landmark resolution endorsing the appointment of an independent expert on the right to privacy. For the first time in the UN's history, an individual will be appointed to monitor, investigate and report on privacy issues and alleged violations in States across the world.

The resolution, which appoints a Special Rapporteur on the right to privacy for an initial period of three years, was spearheaded by Germany and Brazil, two countries who have shown sustained commitment to improving the protections of privacy at the UN, especially in the past two years as issues of State surveillance have dominated headlines around the world. More than 60 States co-sponsored the resolution, including countries from Africa, Asia, Latin America, and Europe.

Despite the consensus reached, the passing of the resolution comes after months of intense negotiation. The power to establish a Special Rapporteur is among the most substantial available to the Human Rights Council, and the Council's decision to establish the role further confirms the importance of privacy as a human right.

The deployment of internet monitoring and censorship during the Arab Spring thrust the issue of state surveillance into the UN spotlight almost five years ago. Since then, the revelations of the surveillance practices of law enforcement and intelligence agencies have sparked international debates, prompting calls to reform national laws and policies. Beyond digital surveillance, the capacity of states and companies to collect, store, analyse and share personal data continues to increase, and has contributed to the momentum behind demands for a dedicated Special Rapporteur on privacy.

The Special Rapporteur will be the authoritative voice and intellectual leader at the global level on the right to privacy around the world. The resolution gives the individual a broad mandate to promote the respect and protection of the right to privacy in all circumstances, wherever or however it is exercised. Amongst other things, the mandate holder will monitor states' and companies' compliance with the right to privacy, investigating alleged violations, and making recommendations to ensure that this fundamental right is respected and protected.

The individual chosen to take up the role of Special Rapporteur is expected to be appointed in June 2015.

Privacy International, the world's leading organisation promoting the right to privacy, has campaigned for the establishment of a Special Rapporteur on privacy for more than two years. Today's successful adoption of a resolution establishing a Special Rapporteur comes as the organisation celebrates its 25th anniversary.

Tomaso Falchetta, Legal Officer for Privacy International, said:

    “The Council today has confirmed what we have said for some time: The right to privacy is an invaluable human right, essential to human autonomy and dignity, and deserves explicit attention to ensure that it is respected and protected around the world. Now, perhaps more than ever, we need a dedicated individual to hold those accountable who wish to violate privacy, whether it is through surveillance, indiscriminate data collection, or other techniques that infringe on this important right. As Privacy International celebrates 25 years of advocating for the right to privacy, we can confidently say that today's resolution is one of the most important events to protect privacy.”

visit: https://www.privacyinternational.org/?q=node%2F549

2

Law / "There should not be any doubt about the trial process in Bangladesh"

« on: March 27, 2015, 12:08:39 AM »

Eminent Indian political psychologist and social theorist Ashis Nandy talks to Shamsuddoza Sajen of The Daily Star on various aspects of genocide in the context of South Asia, particularly Bangladesh.

The Daily Star (TDS): Why is it important to study genocide in the context of South Asia?

Ashis Nandy (AN): I believe that genocide is such an issue that it cannot simply be ignored after it has occurred. A society can be brought to the ground from the intense implosion resulting from genocide. The framework of a social conscience that forms the ethical entity of a society is thus moved. After a genocide, a sense of cruelty can be witnessed in a society which reaches the very roots of that people. And this comes out at different times.

Let me give you an example. A friend of mine told me the story of a married couple in Cambodia who were fighting with each other about a new lover in the husband's life. The husband used to sell fruits in the market. Several wars have taken place in Cambodia, so one could easily buy old grenades and bombs. The wife, in anger, bought a grenade from some place. When her husband was at the shop, selling his fruits, she threw the grenade at his stall. The husband obviously died but those around him also died. It was a market place and thus was crowded with people.

This mentality comes from the history of genocide in Cambodia. The framework of Cambodian life changed as a result of genocide. The same happened in the case of South Asia as well. That's why justice is important, and that's why punishment is also important. But that is not the end of everything. The children, grandchildren of these perpetrators are still alive. They will create their own mythology. We say that they are guilty; they say that they are not guilty; they claim to be patriots as well.

The process of genocide doesn't end with genocide, it continues. Once Dr A. Q. Khan was interviewed by Indian journalist Kuldip Nayar. Nayar asked A.Q. Khan, “Dr Khan, you created the bomb but your father and brothers live in Bhopal, which is in Madhya Pradesh in India. When you throw the bomb in Delhi or Mumbai, the radiation will spread to Bhopal as well.” A Q Khan said, “In 1947, I entered Pakistan after crossing the deserts of Rajasthan, starving and thirsty for a drop of water. I haven't forgotten that incident yet. That experience haunts me till date.  If the security of Pakistan is threatened, I will drop the bomb on India even if it means destroying my own family.”

This kind of mentality, this way of thinking is prevalent in our post-genocide society.  It's our misfortune that such genocides took place and several small genocides still occur every now and then. One can recall the Brahmaputra Mail train bombing of 1996 or the riots in Gujarat in 2002 as genocides on a smaller scale.

TDS: Do you see any change in the modus operandi of genocide in recent times?

AN: During the partition, most of the people who raped women accepted their crime and even married their victims later on. When they were being repatriated, these women did not want to leave their new families behind.
But, now we have become very individualistic. As urbanisation has increased, there has been a growing sense of anonymity. The internal checks have collapsed. Our sense of ethics has diminished. During the Gujarat riots, the rape victims were burnt to death.



TDS:  In the context of the subcontinent, there always seems to be a relation between religion and genocide. What do you think?
AN: There is a religious dogma, that's true, but it's not like there's always a religious purpose to them. Because in their hearts everyone knows that this has no relation with religion. Punjabi Muslims would generally say that Bengali Muslims are not actual Muslims because they are similar to Hindus. But the traditions of Punjabi Muslims were much more in line with Hinduism than those of Bengali Muslims.
How can one mobilise people, as every kind of people, be it Bengalis, Punjabis, villagers, Shiites, Sunnis or Hindus, makes a population. This is the case in the entire South Asia. Politicians think that people can be mobilised if they are religion centric. This was not the case earlier on. When religion is brought into politics, the issue of religious divides would appear as well.


TDS: War criminals are being tried in Bangladesh at the moment but there are attempts to show these trials in a negative light, especially in the western media.
AN: The American government is promoting negative propaganda against the trial because they fear that their skeletons might be dug out in this process. If fair justice of war crimes is to be done then Henry Kissinger should be forced to stand trial. Let them release every document and correspondence. Then we'll know whether they're speaking the truth or lies. We'll know, we'll decide.

TDS: Why are these trials important?
AN: So that these genocides don't take place in the future. Otherwise these will continue; there will not be any end to this. After the trials are over and justice delivered, everyone can say that justice has been served. The families of those condemned to the death sentence might be angry. But nothing can be done about it. In Bangladesh you are not doing any summary trial or trial through 'kangaroo' courts. There is a scope to appeal after the sentence is delivered. There should not be any doubt about the trial process in Bangladesh. People are seeing that; they are not idiots, they can see for themselves and decide. Capital punishment is executed even in America. Let the people who oppose capital punishment here express their objections in America.

visit: http://www.thedailystar.net/supplements/independence-day-special-2015/there-should-not-be-any-doubt-about-the-trial-process

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Law / Irish court 'accidentally' makes drugs legal

« on: March 11, 2015, 01:18:07 PM »

 An Irish court has temporarily legalised certain class-A drugs after a law governing the possession of controlled substances was ruled unconstitutional.

Judges at Ireland's Court of Appeal deemed the Misuse of Drugs Act 1977 to be incompatible with Irish law following a legal challenge.

The legislation, which covers a range of illegal drugs, had been sporadically updated to bring new psychoactive substances under its provisions.

Article 15 of the Irish constitution states that the country's parliament, known as the Oireachtas, has the exclusive privilege of creating new laws.

An emergency session of parliament has been called to pass legislation to recriminalise the drugs, The Journal has reported. It is believed possession will remain legal until Thursday, when the new laws will come into effect.

The case was brought to appeal by a Lithuanian national arrested over possession of methylethcathinone in 2012. Following his conviction, the man's lawyers argued that it would be unfair to be in possession of a drug that was legal one day and illegal the next.

Drugs covered by section 2(2) of the law included crystal meth, ketamine, MDMA and magic mushrooms.

In recent years, Ireland has seen a growth in retailers which sell psychoactive substances and drug paraphenalia, known as 'headshops'. This has resulted in Ireland's police force struggling to keep up with the introduction of new drugs available to the public.

Dozens of previous convictions are now under question, according to the country's health minister, Leo Varadkar:

"I'm told it's dozens, but I can't say for certain because what they'll have to do now is go thought each individual case and see if the people in question were charged just under this section of the act, or if they were charged with other acts as well."

Politicians had been alerted to the potential ruling for the past week, keeping the situation under tight wraps from the media.


http://www.telegraph.co.uk/news/worldnews/europe/ireland/11462193/Irish-court-accidentally-makes-drugs-legal.html

4

Law / Safeguard

« on: March 09, 2015, 12:14:31 PM »

United Nations   Resolution 1996/15

Economic and Social Council
 
45th plenary meeting
23 July 1996
________________________________________
1996/15. Safeguards GUARANTEEING protection of the rights of those facing the death penalty
The Economic and Social Council,

Recalling General Assembly resolutions 2857 (XXVI) of 20 December 1971 and 32/61 of 8 December 1977 and Economic and Social Council resolutions 1745 (LIV) of 16 May 1973, 1930 (LVIII) of 6 May 1975, 1990/51 of 24 July 1990 and 1995/57 of 28 July 1995,

Recalling also article 6 of the International Covenant on Civil and Political Rights, 1/

Recalling further the safeguards guaranteeing protection of the rights of those facing the death penalty, annexed to its resolution 1984/50 of 25 May 1984, and its resolution 1989/64 of 24 May 1989 on the implementation of the safeguards,

Taking note of the report of the Secretary-General on capital punishment and implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty, 2/

Recalling the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, set forth in the annex to its resolution 1989/65 of 24 May 1989 and endorsed by the General Assembly in its resolution 44/162 of 15 December 1989, and taking note of the recommendations of the Special Rapporteur on extrajudicial, summary or arbitrary executions concerning the death penalty contained in his report to the Commission on Human Rights at its fifty-second session, 3/

Taking note of Security Council resolution 827 (1993) of 25 May 1993, in which the Security Council decided to establish the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 and to adopt the Statute of the International Tribunal annexed to the report of the Secretary- General pursuant to paragraph 2 of Security Council resolution 808 (1993), 4/ and taking note also of Security Council resolution 955 (1994) of 8 November 1994, in which the Security Council decided to establish the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994 and to adopt the Statute of the International Tribunal for Rwanda annexed to that resolution,

1. Notes that, during the period covered by the report of the Secretary-General on capital punishment and implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty, an increasing number of countries abolished the death penalty and others followed a policy reducing the number of capital offences, and declared that they had not sentenced any offender to that penalty, while still others retained it and a few reintroduced it;

2. Calls upon Member States in which the death penalty has not been abolished to effectively apply the safeguards guaranteeing protection of the rights of those facing the death penalty, in which it is stated that capital punishment may be imposed for only the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences;

3. Encourages Member States in which the death penalty has not been abolished to ensure that each defendant facing a possible death sentence is given all guarantees to ensure a fair trial, as contained in article 14 of the International Covenant on Civil and Political Rights, and bearing in mind the Basic Principles on the Independence of the Judiciary, 5/ the Basic Principles on the Role of Lawyers, 6/ the Guidelines on the Role of Prosecutors, 7/ the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 8/ and the Standard Minimum Rules for the Treatment of Prisoners; 9/

4. Also encourages Member States in which the death penalty has not been abolished to ensure that defendants who do not sufficiently understand the language used in court are fully informed, by way of interpretation or translation, of all the charges against them and the content of the relevant evidence deliberated in court;

5. Calls upon Member States in which the death penalty may be carried out to allow adequate time for the preparation of appeals to a court of higher jurisdiction and for the completion of appeal proceedings, as well as petitions for clemency, in order to effectively apply rules 5 and 8 of the safeguards guaranteeing protection of the rights of those facing the death penalty;

6. Also calls upon Member States in which the death penalty may be carried out to ensure that officials involved in decisions to carry out an execution are fully informed of the status of appeals and petitions for clemency of the prisoner in question;

7. Urges Member States in which the death penalty may be carried out to effectively apply the Standard Minimum Rules for the Treatment of Prisoners, in order to keep to a minimum the suffering of prisoners under sentence of death and to avoid any exacerbation of such suffering.

Notes
1/ General Assembly resolution 2200 A (XXI), annex.
2/ E/CN.15/1996/19.
3/ E/CN.4/1996/4.
4/ S/25704.
5/ Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August-6 September 1985: report prepared by the Secretariat (United Nations publication, Sales No. E.86.IV.1), chap. I, sect. D.2, annex.
6/ Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August-7 September 1990: report prepared by the Secretariat (United Nations publication, Sales No. E.91.IV.1), chap. I, sect. B.3, annex.
7/ Ibid., sect. C.26.
8/ General Assembly resolution 43/173, annex.
9/ First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Geneva, 22 August-3 September 1955: report prepared by the Secretariat (United Nations publication, Sales No. 1956.IV.4), annex I, sect. A.

http://www.un.org/documents/ecosoc/res/1996/eres1996-15.htm

5

Law / ICC Appeals Chamber Issues Its First Judgment on Reparations

« on: March 07, 2015, 09:15:44 AM »

On March 3, 2015, the Appeals Chamber at the International Criminal Court (ICC) issued its first-ever judgment on reparations. Trial Chamber I had issued its decision establishing the principles and procedures to be applied to reparations in the case against Thomas Lubanga in August 2012. Both the defense and the victims had appealed the trial chamber decision.

In March 2012, Lubanga became to first person to be convicted by the ICC for the enlistment, conscription, and use of child soldiers under the age of fifteen years to participate actively in hostilities. The crimes occurred in 2002 and 2003 in eastern Democratic Republic of the Congo. Lubanga was sentenced to a total of 14 years of imprisonment, and both his conviction and sentence were upheld on appeal.

The ICC is the first international criminal tribunal that allows for victims to claim for reparations for the harm suffered as a result of the crimes. Such reparations can include restitution, indemnification, and rehabilitation. Victims can also receive certain types of reparations in proceedings before the Extraordinary Chambers in the Courts of Cambodia.

In addition, a Trust Fund for Victims (Trust Fund) has been established by the ICC States Parties. The Trust Fund’s responsibilities include implementation of reparations awards and the provision of physical and psychosocial assistance and material support to victims of the crimes within the jurisdiction of the court but not necessarily in relation to a case or a conviction. The Trust Fund’s operates in accordance with its Regulations.

The March 3 appeals judgment studied whether the trial chamber decision could be considered an order for reparations. It found that although the trial chamber decision contained key elements of an order for reparations, it needed to be amended for it to be considered as such. The Appeals Chamber found that an order for reparations in accordance with Article 75 of the Rome Statute must contain at least five essential elements. These elements are discussed below.

First, the order must be directed against the convicted person. The trial chamber decision had originally directed the order to the Trust Fund. The Appeals Chamber held that even when the convicted person is indigent, the order must be directed against them.

Second, the order must establish and inform the convicted person of his/her liability with respect to the reparations awarded in the order. The Appeals Chamber clarified that even when the Trust Fund advances funds in light of the convicted person’s indigence, the convicted person remains liable and must reimburse the Trust Fund.

Third, the order must specify and provide reasons for, the type of reparations ordered. Reparations can be collective, individual, or both. In this regard, the Appeals Chamber recalled that the victims’ legal representative had contested the trial chamber decision in relation to the award of collective reparations. They argued, in particular, that the trial chamber should have considered the individual request for reparations filed by the victims. The Appeals Chamber held that it was unnecessary for the trial chamber to do so and that its decision to award collective reparations should be construed as a decision to reject award of individual reparations. However, the Appeals Chamber indicated that the Trust Fund should consult with individual victims who participated in the trial and other victims who filed requests for reparations in relation to the collective reparations awards.

Fourth, the order must define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted, as well as the modalities of reparations that the trial chamber considers appropriate based on the circumstances of the case. The trial chamber had favored a broader approach in relation to the victims that could be selected for reparations and the types of harm that could be considered. The Appeals Chamber held that only victims who suffered direct or indirect harm as a result of the crimes that the person has been convicted of can receive reparations. Indirect harm includes that suffered by family members, and by individual who intervened to help the victims or to prevent the crimes.

Finally, the order must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes for which the person was convicted. In this regard, the Appeals Chamber held that the trial chamber had erred in delegating responsibility on victims’ eligibility to the Trust Fund. The Appeals Chamber also clarified that based on its ruling that there must be a link between reparations and the crimes the person was convicted. Therefore, it was not possible for the court to award reparations for sexual and gender-based crimes suffered by the victims in the case at hand. This is because those crimes were not charged by the prosecution and, thus, were not part of the crimes Lubanga was convicted for. However, the Appeals Chamber noted, the Trust Fund can use its discretionary assistance mandate to provide assistance to victims of sexual and gender-based violence.

The Appeals Chamber amended the trial chamber decision on the basis of the five requirements. An amended order was attached to the judgment. The Appeals Chamber ordered the Trust Fund to present a draft implementation plan for collective reparations to a newly constituted trial chamber within six months from the issuance of the judgment.

Check :http://www.ijmonitor.org/2015/03/icc-appeals-chamber-issues-its-first-judgment-on-reparations/

6

Law / Why US unsigned the Rome Statute ?

« on: March 05, 2015, 11:10:20 AM »

The U.S. opposed the ICC from the beginning, surprising and disappointing many people. Human rights organizations and social justice groups around the world, and from within the US, were very critical of the U.S. stance given its dominance in world affairs.

The U.S. did eventually signed up to the ICC just before the December 2000 deadline to ensure that it would be a State Party that could participate in decision-making about how the Court works. However,

    By May 2002, the Bush Administration “unsigned” the Rome Satute.
    The U.S. threatened to use military force if U.S. nationals were held at the Hague
    The U.S. continues to pressure many countries to sign agreements not to surrender U.S. citizens to the ICC.

But why would a country, often vocal in the area of human rights, and often amongst the first to promote human rights as a global issue in the past refuse to sign up to an international law and institution designed to protect human rights?


For more details please go through the link below:

http://www.globalissues.org/article/490/united-states-and-the-icc

7

Law / US sex abuse suspect detained in Brazil

« on: March 01, 2015, 06:28:29 PM »

Police in Brazil have arrested an American man suspected of sexually assaulting young women while running a religious group in Minnesota. Victor Barnard was detained on Friday after police raided a flat in the northeastern beach resort of Pipa.The 53-year-old, who founded his River Road Fellowship sect in Minnesota, was the subject of an international manhunt after disappearing in 2010.
He is accused of a series of assaults between 2000 and 2012.
Mr Barnard is being held in the city of Natal, 80km (50 miles) north of Pipa, while he awaits extradition to face charges in the US.
According to a criminal complaint in the US, two women said they were among about 10 girls and young women who were targeted by Mr Barnard.
They were chosen to live apart from their families at a camp he set up near Finlayson, Minnesota, about 90 miles (150km) north of Minneapolis.
One of the women says she was sexually abused by Mr Barnard from the age of 13 until she was 22. The other said her abuse occurred between the ages of 12 and 20.
US authorities say he used religious coercion and intimidation to isolate and control them.
He allegedly told one victim she would remain a virgin because he was a "man of God", according to a criminal complaint.
Most of the counts against him carry a maximum sentences of 30 years in prison.

8

Law / Rwanda urged to take criminal action over BBC genocide film

« on: March 01, 2015, 06:22:58 PM »

The BBC programme Rwanda, The Untold Story, included interviews with US-based researchers who say most of those killed may have been Hutus, killed by members of the then-rebel Rwandan Patriotic Front (RPF), which has been in power since 1994.

An inquiry in Rwanda has recommended that the government initiate criminal and civil proceedings against the BBC over a documentary which questioned official accounts of the 1994 genocide.

Inquiry head Martin Ngoga found that the documentary failed to meet the BBC's own editorial standards.

The BBC says it is "extremely disappointed" by the findings.

Rwanda suspended broadcasts by the BBC's Kinyarwanda language service after the TV documentary was aired.

"We stand by our right to produce the independent journalism which has made us the world's most trusted news source," the BBC said in a statement.

It said the programme was still going through its editorial complaints process.

"This process has not yet concluded but the provisional findings are that the documentary does not breach the BBC's editorial standards," the BBC said.
A Rwandan woman collapses with her baby on her back alongside the road connecting Kibumba refugee camp and Goma (28 July 1994) The BBC argues that it has a duty to investigate difficult and challenging subjects

At least 800,000 people died in the genocide over a 100-day period in 1994.

Those killed are generally believed to be mostly members of the minority ethnic Tutsi group, and Hutus opposed to the mass slaughter.

The programme also included interviews with former aides of RPF leader President Paul Kagame, accusing him of plotting to shoot down the presidential plane - the act seen as triggering the slaughter.

He has strenuously denied previous such accusations.
File photo of Rwanda's President Paul Kagame speaking to journalists in the courtyard of the Elysee palace in Paris Paul Kagame's Rwandan Patriotic Front (RPF) has been in power since the genocide ended

BBC news reports recall how the genocide unfolded

Critics in Rwanda say that the documentary was an attempt to revise the history and facts of the genocide, and disrespected the memory of those who had died.

The BBC "strongly rejects any suggestion that any part of this documentary constitutes genocide denial".

9

Law / Hong Kong woman jailed for abusing Indonesian maid

« on: March 01, 2015, 06:16:47 PM »

A Hong Kong woman convicted of abusing her Indonesian maid has been jailed for six years.

Law Wan-tung was found guilty earlier this month of causing grievous bodily harm, criminal intimidation and failure to pay wages.

The maid, Erwiana Sulistyaningsih, drew global attention last year when she returned to Indonesia in need of hospital treatment.

During the trial, she described being beaten and starved by her employer.

The case drew intense scrutiny in Hong Kong, where a significant number of families rely on domestic helpers.

The city's residents employ about 300,000 maids from other parts of Asia, mainly Indonesia and the Philippines.

10

Law / Delhi High Court judgement on rape and murder of 65-year-old sparks off debate

« on: March 01, 2015, 06:04:56 PM »

Can forceful sex with a 65-year-old woman, who is beyond the age of menopause, punishable under law? Delhi High Court judges seem to think otherwise. A judgment made on Friday by the Delhi High court in the case of rape and murder of an old woman in December, 2010 has sparked a debate on whether sexual intercourse with a post-menopausal woman can be treated as rape.

The judgement, made by a bench comprising Justice Pradeep Nandrajog and Justice Mukta Gupta has let off the accused, 49-year-old Achey Lal, waiving off the punishment meted out to the accused on the grounds that even if the intercourse “has been forceful, it was not forcible”.

“As regards the offence punishable under Section 376 IPC the deceased was aged around 65-70 years, thus beyond the age of menopause. We find force in the contention of the learned counsel for the appellant that even if the sexual intercourse was forceful it was not forcible and contrary to the wishes and consent of the deceased,” read the judgement. 

In December 2010, the victim was found dead inside her house in Majnu ka Tila along with an inebriated Achey Lal by a girl at whose house the victim worked. Achey Lal was arrested and eventually sentenced to 10 years of rigourous imprisonment. The post-mortem of the victim revealed that she has sustained injuries on her vagina, and traces of alcohol were found on her, too.

Lawyer-activist Vrinda Grover questioned the use of the word ‘menopause’. “On what grounds did the court has arrive on the judgement that the case was not one of rape? And where does menopause factor in here? Menopause is a medical condition, and the mention of the word is extraneous and erroneous. The injuries on the victim’s vagina proves that there was forced penetration, and the inference will lead to the criminal case of rape. Also, the judgement says that there are no other injuries, which is clearly a step back to the pre-Mathura era, where one would look for injurious to prove rape. The Mathura rape case led to two amendments; one, there should not be any requirement about explaining injuries for rape. And secondly, consent should be univocal. This case, to my mind, without the privilege of any evidence to be able to construct the case and thus rely on the judgement, is erroneous and not according to the jurisprudence of the Supreme Court,” said Grover.

Jugmati Sangwan of the All India Democratic Women’s Association said that the age of the woman should have, in fact, led to a bigger punishment. “Age does not matter in rape; 80-year-olds get raped, too. If the culprit is revengeful and bent on causing maximum harm, the age is a deterrent than. Should the age alone not be considered for any ground? This should lead to more punishment,” said Sangwan.

Lawyer Collin Gonsalves, however, said that the court could have been right, but the mention of the word ‘menopause’ is unfortunate. “It is a very cryptic judgement, and the reference to the word ‘menopause’ is unfortunate, unnecessary and irrelevant. The injuries on the vagina, however, indicates rape. Despite that, the court could be correct as injuries alone cannot lead a criminal court to conclude that it can be rape. There must be more evidence, because this could also have been a case of rough intercourse; forceful yet consensual sex,” said Gonsalves.

11

Law / The First Judgement by the ICC: Lubanga Case

« on: February 26, 2015, 04:43:45 PM »

Appeals Chamber to issue its judgment regarding the reparations for victims on 3 March 2015
24/02/2015
Situation: Democratic Republic of the Congo (DRC)
Case: The Prosecutor v. Thomas Lubanga Dyilo

On 3 March 2015, at 11h30 (Hague local time), the Appeals Chamber of the International Criminal Court (ICC) will deliver, in open court, its judgment on the appeals against the Trial Chamber's "decision establishing the principles and procedures to be applied to reparations" in the case against Thomas Lubanga Dyilo.

12

Law / The Palestinians' Decision to Join the ICC Deserves Support

« on: February 26, 2015, 04:36:57 PM »

Observation by the Ken Roth, Executive Director of Human Rights Watch

The Israel exception to Western governments' human rights principles has been starkly on display in the reaction to the Palestinian Authority's decision to join the International Criminal Court. In Washington, Ottawa, Paris and London, as well as Tel Aviv, the response has ranged from discouraging to condemnatory. The Palestinian move has been seen as “counterproductive,” “deeply troubl[ing],” “a concerning and dangerous development” that could make a “return to negotiations impossible.” Before accepting these howls of protest, we should ask why, exactly, the Palestinian move is supposed to be bad.

Given the outcry, one would think this move targets only Israel, but the ICC doesn't work that way. Rather, the court will be empowered to prosecute war crimes committed in or from Palestinian territory — that is, crimes committed by Israelis or Palestinians. The court's prosecutor is not dependent on formal complaints by ICC members but can now initiate cases on her own.

Many of the Western objections are based on the argument that having the Palestinians in the ICC will somehow undermine Israeli-Palestinian peace negotiations — moribund as they have been. The U.S. State Department opined that it would “damage the atmosphere” for peace.

But the broad parameters for peace have been known for years. What has been lacking is the trust between the two sides to make the painful decisions necessary for a peace accord. Nothing undermines that trust more than impunity for the war crimes that Human Rights Watch has found continue to characterize the conflict, whether settlement expansion, Hamas rocket strikes or Israel's lax attitude toward civilian casualties  in Gaza. By helping to deter these crimes, the ICC could discourage these major impediments to peace.

Moreover, the Palestinians' willingness to embrace the ICC should be applauded for what it says about their tactics. Hamas is rightfully condemned for its rocket attacks on Israeli population centers. Yet Hamas signed off on joining the ICC, even though its leaders could now face prosecution. Indeed, because these war crimes are factually and legally among the easiest to prove, they may stand the greatest chance of ICC prosecution.

The ICC is no guarantee that such attacks will cease, but it provides a disincentive, as well as an avenue of redress for victims. Why is it bad for the Palestinians to pursue such legal avenues rather than more rocket attacks?

But isn't the ICC another U.N. institution that will focus excessively on Israel? No. Unlike political bodies composed of governments, such as the U.N. General Assembly or Human Rights Council, the court's investigations and prosecutions are led by an independent, professional prosecutor, Fatou Bensouda of Gambia. She has earned a reputation as a sober, dispassionate, no-nonsense lawyer with no evidence of anti-Israel animus. In decisions she has made about the Israeli-Palestinian conflict, she declined a Palestinian request to assume jurisdiction made before statehood was recognized and, in a case brought by another government, decided against opening an formal investigation because the alleged crime in question was not serious enough.

Given Palestinian vulnerability to prosecution, the West's reaction suggests an interest not in seeing impartial justice done but in keeping Israelis out of the dock in The Hague. Yet the ICC is a court of last resort. It is empowered to act only when national authorities have not. So the easiest way for any government to avoid ICC prosecution of its citizens is to conscientiously and credibly investigate and prosecute alleged war crimes by its forces.

Both the Israeli and Palestinian governments have an abysmal record in this regard. The Palestinian Authority is not known to have initiated any such investigations. The Israeli military prosecutor occasionally conducts investigations but hardly ever prosecutes anyone. The most serious punishment imposed in recent years for abuse against Palestinians was a 7 1/2-month prison term for an Israeli soldier who stole a credit card. The ICC provides a strong reason for both sides to break this pattern of impunity. Again, what is wrong with that?

 
But what if Israel does not change? If it continues to expand settlements and to use methods of warfare that impose an unacceptably high civilian toll while refusing to prosecute offenders, that is not a path that Western governments should endorse. Keeping the ICC out at all costs may be good for the Israeli leaders who fear ICC prosecution, but it is hardly good for Israelis, Palestinians, peace in the region or global justice.

It is not too late for Western governments to change course. Obligatory condemnations are one thing, but Israel is pushing to punish the Palestinian Authority. It already is threatening to withhold tax revenues collected in the West Bank on the Palestinians' behalf. Western governments should refuse to follow suit with their own sanctions. The Palestinians' landmark decision to face down misguided threats and embrace the ICC should be bolstered, not undermined.

13

Law / Torture is a crime and those responsible must be brought to justice

« on: February 26, 2015, 04:20:05 PM »

“Under the UN convention against torture, no exceptional circumstances whatsoever can be invoked to justify torture, and all those responsible for authorising or carrying out torture or other ill-treatment must be fully investigated.”

“The United States is obligated under both the Geneva convention and the convention against torture … to investigate and prosecute the commission of torture.”

President Obama has cooled on commitments made during the 2008 election campaign to pursue criminal investigations if it were proved that “there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront”.

14

Law / Unshackle the United Nations

« on: February 26, 2015, 03:38:12 PM »

LONDON — Glance at any newsstand or catch any rolling news channel, and you will be confronted by a seemingly unrelenting tide of horror. Limp bodies pulled from rubble, shells and barrel bombs pounding once leafy neighborhoods. Refugees huddled for warmth or risking life and limb for survival. Mass abductions and beheadings.

From Ukraine to Nigeria, from Libya to Syria, the last 12 months have been a year of harrowing bloodshed. Millions of civilians have been caught up in conflict, with violence by states and armed groups inflicting untold death, injury and suffering. For the first time, Amnesty International has tallied the number of countries where war crimes have been committed: a shocking 18 in 2014. Among the worst were Syria, the Central African Republic, Iraq, South Sudan, Nigeria and Israel and the Palestinian territories.

As a result of the growth of groups like the Islamic State and Boko Haram, abuses by armed groups spilled over national borders, reaching at least 35 countries.

Faced with the enormity and the relentlessness of this horror it is easy to feel hopeless. But we are not powerless. Our governments and institutions may lack the will but they have the capacity, both individually and collectively, to help protect civilians in danger. It is a duty that they are abjectly failing to fulfill.

In our annual report being released Wednesday, we examine the human rights situation in 160 countries. We find that the global response to conflict and abuses has been shameful and ineffective.

Weapons have been allowed to flood into countries where they are used for grave abuses by states and armed groups with huge arms shipments delivered to Iraq, Israel, Russia, South Sudan and Syria last year alone. As the Islamic State took control of large parts of Iraq, it found large arsenals, ripe for the picking.

An historic Arms Trade Treaty came into force last year, providing a legal framework for limiting the international transfer of weapons and ammunition. But many nations have yet to ratify the treaty. There is also an urgent need for restrictions to tackle the use of explosive weapons — including aircraft bombs, mortars, artillery, rockets and ballistic missiles — that have devastated populated areas.

The United Nations, established 70 years ago to ensure that we would never again see the horrors witnessed in the Second World War, has repeatedly failed to act, even where it could prevent terrible crimes from being committed against civilians. The use of veto powers has enabled the narrow vested interests of the Security Council’s five permanent members — Britain, China, France, Russia and the United States — to take precedence over the needs of victims of serious human rights violations and abuses. This has left the United Nations hamstrung and increasingly discredited at this critical time.

Last week, Secretary General Ban Ki-moon wrote to the Security Council, calling for an end to the “business-as-usual” approach to Syria and urgent action to lift sieges on civilians and to end barrel bomb attacks. This appeal followed four vetoes by Russia and China that blocked Security Council action on Syria that could have helped save civilian lives. Likewise, the United Nations’ failure to pass a single resolution during the 50-day conflict in Gaza last year was largely due to the threat of a veto by the United States. Each such failure diminishes what little trust is left in the Security Council to take decisive action to protect civilians.

Continue reading the main storyContinue reading the main storyContinue reading the main story
The failures of our governments and institutions are dismaying, but they should spur us to action. We call on our governments to take some fundamental steps.

In situations where mass atrocities are being committed — or about to be committed — the five veto-wielding states should commit to not use their veto. In doing so, they will unshackle the Security Council, enabling it to protect the lives of civilians in advance, during or in the wake of grave crimes. Such a commitment would also send a clear signal to perpetrators of abuse that the world will not sit idly by while mass atrocities — war crimes, crimes against humanity, genocide — take place.

Some may argue that it is wildly unrealistic to expect the five permanent members to place the suffering of civilians in distant lands above their geopolitical interests. But this thinking is both morally and logically flawed. The nature of global conflict is changing. The definition of any country’s national interest should no longer be viewed through a blinkered nationalistic lens.

Conflicts no longer respect national borders. Armed groups and their ideologies do not confine themselves to their country of origin. Impunity emboldens human rights abusers and weapons empower them. Meanwhile the human tide of refugees creeps ever higher. In 2014, more than 3,000 people drowned in the Mediterranean trying to reach Europe from Africa and the Middle East.

The myopic response of our leaders has been not only ineffective but counterproductive. Governments around the world have resorted to knee-jerk, draconian “anti-terror” tactics that have only served to undermine our fundamental human rights and helped to create conditions of repression in which extremism thrive. Last year, 131 countries tortured or otherwise ill-treated people, and prisoners of conscience were jailed in 62 countries. Three quarters of governments investigated by Amnesty International had arbitrarily restricted freedom of expression, cracking down on press freedom, arresting journalists or shutting down newspapers. These figures are a disturbing increase from previous years.

Government leaders have attempted to justify human rights violations by talking of the need to keep the world “safe.” But the truth is, there can be no genuine security without human rights.

The challenges facing us are substantial and tackling them will not be easy. Abuses by states are difficult to confront and the ruthlessness of armed groups like the Islamic State and the threat they pose cannot be underestimated.

It will take commitment, vision and global cooperation. People of conscience must recognize that we are not powerless, and our governments must stop pretending that the protection of civilians is beyond their power.

BY
Salil Shetty,  the secretary general of Amnesty International.

15

Law / চীনের মহাপ্রাচীর, একটি প্রাচীন লোকগাথা

« on: January 23, 2015, 03:36:08 PM »

সময়টা তখন খ্রিস্টপূর্ব ২২০, আজ থেকে প্রায় ২২০০ বছরের ও বেশি আগের। ছিন সাম্রাজ্য সাম্লাতে হিমশিম খাচ্ছন সম্রাট ছিন শ্রি হুয়াং। মঙ্গোলিয়ান দস্যুদের হাত থেকে শহর, নগর আর সম্পদ বাাঁচাতে দরকার মহাপ্রাচীর নির্মাণ । মহাপ্রাচীর তৈরিতে দরকার অনেক মানুষ। কিন্তু কেউ স্বেচ্ছায় যেতে রাজি নয় মৃত্যু হতে পারে জেনে । অক্লান্ত শ্রম আর বিশ্রামের অভাবে কিছু শ্রমিকের মৃত্যু সংবাদ আসতে শুরু করেছে লোকালয়ে। কেও রাজি নয় একই মৃত্যুর কাছে যেতে ।  শুরু হল ধরপাকড়। যাকে যেখানে পাওয়া গেল ধরে এনে শ্রমিক হিসাবে লাগানো হল।খাবারের স্বল্পতা আর কঠিন শ্রমের কারনে বৈরি আবহাওয়াতে একে একে মারা যেতে লাগল শ্রমিকেরা। মৃতদের লাশ সেই প্রাচীরের পাশেই মাটিতে পুঁতে আবার কাজে যেতে বাধ্য করা হত বেঁচে থাকা শ্রমিকদের। ধরে আনা হত আরও শ্রমিক। সেই সময়ের এক লোককথা ।


লেডি মংচিয়াং, বা সুন্দরী নারী মংচিয়াং, চিনের দক্ষিণ অঞ্চলের এক কৃষক ঘরের মেয়ে। সুন্দরী, কর্মঠ, বুদ্ধিমতী। তার বিয়ে হয় ফান ছি লিয়াং নামের এক সুন্দর ও বিচক্ষণ যুবকের সাথে যে মংচিয়াং দের গ্রামে পালিয়ে এসেছিল সম্রাট ও তার অনুগত বাহিনীর ভয়ে। ধরে নিয়ে যেতে পারে প্রাচীর তৈরির কাজে। সুন্দর বুদ্ধিমান যুবক ছি লিয়াং, সুন্দরী মংচিয়াং এর পরিবারের নজরে পড়ে। বিয়ে হয় তাদের , দুজনের সম্মতিতে , কেননা তখন একজন আরেকজনের প্রেমে আবদ্ধ। সেই কালরাতে, ( মতান্তরে দুইদিন পরে) সম্রাটের লোকেরা ধরে নিয়ে যায় নববিবাহিত ছি লিয়াং কে ।

স্বামীকে হারিয়ে বিষণ্ণতা গ্রাস করে মংচিয়াংকে। উল আর পশমে বুনতে থাকে স্বামীর জন্য শীতের পোশাক, পরম মমতায়। পথ চেয়ে সময় কাটে তার । ছি লিয়াং আর আসেনা। একদিন স্বামীর জন্য বোনা শীতের পোশাক সাথে নিয়ে স্বামীর খোঁজে বের হয় মংচিয়াং। প্রাচীর এর কাজ তখন অনেকদুর এগিয়েছে। একদিন মংচিয়াং তার স্বামীর সহকর্মীদের দেখা পায় , তাদের জিজ্ঞাসা করে জানতে পারে , তার স্বামী অনেক আগেই অনাহার, অত্যাচার আর কঠিন শ্রমের কারণে মারা গেছে । মংচিয়াং দু’হাত ছুড়ে পাথরে মাথা ঠুকে কাঁদতে থাকে ভালবাসার মানুষ হারিয়ে। তার চিৎকারে আকাশ বাতাসে প্রতিদ্ধনি হয় , স্তম্ভিত হয় সাগরের জল। হঠাত এক বিকট শব্দে ভেঙে পড়ে সদ্যগড়া প্রাচীর এর ২০০ মাইল । সম্রাট এর আদেশে ধরে আনা হয় মংচিয়াংকে । সম্রাট তার প্রাণদণ্ড ঘোষণা করতে চান কেননা মংচিয়াং এর অদ্ভুত কান্নার মায়াবী শক্তি প্রাচীর ধ্বংস করেছে । কিন্তু তিনি মংচিয়াং এর রূপে মুগ্ধ হয়ে তাকে বিয়ের প্রস্তাব করেন । আশ্চর্যের বিষয় হল এই যে , মংচিয়াং তাতে রাজি হয় । কিন্তু তিনটি শর্তে -

১) মংচিয়াং এর মারা যাওয়া স্বামীর লাশ খুজে বের করতে হবে
২) মৃত স্বামীর জন্য স্মৃতিমিনার বানাতে হবে
৩) সেই স্মৃতি মিনারে সম্রাট নিজে সহ তার সভাসদরা শ্রদ্ধা জানাবে কাল পোশাক পরে।

সম্রাট মংচিয়াং কে পাবার আশায় তাতে রাজি হয় । সব শর্ত পুরন হবার পর সম্রাট যখন তাকে রাজপ্রাসাদে নিয়ে যেতে চায় তখন সবার চোখ ফাকি দিয়ে মংচিয়াং দৌড়ে সমুদ্রের পানিতে ঝাঁপ দিয়ে আত্মহনন করে । তার ভালবাসার প্রতি সম্মান জানাতে সমুদ্রের মধ্যে দুইটি পাথর উত্থিত হয়। একটি মংচিয়াং এর কবর , একটি তার ভালবাসার প্রতি সম্মান জানাচ্ছে । স্থানীয় মানুষের মুখে মুখে এই লোকগাথা নানাভাবে ঘুরেফিরে রঙ পায় ।