IV. International and Domestic Legal Standards and Norms
An enforced disappearance occurs when officials affiliated with the government arrest, detain, or abduct an individual, and then refuse to acknowledge the deprivation of the individuals liberty or disclose his fate or whereabouts.50 The practices of disappearances and extrajudicial executions violate several human rights, including the right to life, the right to liberty and security of the person, the right to a fair and public trial, as well as the prohibition on torture and cruel, inhuman, and degrading treatment or punishment. An enforced disappearance is a continuing crime until the disappearance is resolved.
Impunity means the impossibility, in law or in fact, of holding perpetrators accountable.51 De facto impunity takes place when the state fails to prosecute human rights abusers for lack of capacity or political will. De jure impunity occurs when laws or regulations providing immunity or amnesty make it difficult or impossible to prosecute a perpetrator for human rights abuses. Both forms of impunity prevail in India and effectively shield perpetrators from accountability, leading to more human rights violations and undermining faith in the government and security forces.52
To combat impunity, international law, including treaties to which India is party, guarantee the right to an effective remedy for victims of gross human rights violations, including disappearances, extrajudicial executions, and torture. 53 A victims right to an effective remedy obligates the state to take the necessary investigative, judicial, and reparatory steps to redress the violation and address the victims rights to knowledge, justice, and reparations.54 The state is under a continuing obligation to provide an effective remedy; there is no time limit on legal action and the right cannot be compromised even during a state of emergency.55
International human rights standards provide that states investigate allegations of human rights violations with a focus on identifying perpetrators and holding them to account.56 Every victim is entitled to information on the particular circumstances and underlying causes leading to his victimization.57 The Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions call upon states to remove officials implicated in these crimes from direct or indirect power over the complainants and witnesses, as well as those conducting the investigation.58 In cases of enforced disappearance, the evidence necessary to establish liability is often under the exclusive control of the state, which has an incentive to conceal this evidence, and thus international human rights bodies have held circumstantial, documentary, and testimonial evidence to be admissible in their investigations of disappearances.59
States are obligated to bring perpetrators of serious criminal offenses to justice.60 This obligation is independent of the wishes of victims, who for various reasons including being subject to intimidationmay not press for prosecutions.61 Significantly, the UN Human Rights Committee in its comments to Indias report prepared under the International Covenant on Civil and Political Rights (ICCPR), urged that judicial inquiries be mandatory in all cases of death at the hands of the security and armed forces and that the judges in such inquiries be empowered to direct the prosecution of security and armed forces personnel.62 In no circumstances, including a state of war or public emergency, shall immunity from prosecution be granted to alleged perpetrators of extra-judicial executions.63 The enforcement of judgments is also a crucial aspect of the right to an effective remedy.64
International law sets out various reparations mechanisms. According to the Human Rights Committee, the ICCPR:
Combating impunity requires the identification of the specific perpetrators of the violations. The doctrine of superior responsibility imposes liability on superiorswith either de jure or de facto commandfor the unlawful acts of their subordinates, where the superior knew or had reason to know of the unlawful acts, and failed to prevent and/or punish those acts.66 The doctrine of superior responsibility is well-established and is part of customary international law.67
A superior possesses the requisite culpable mental state for the imposition of criminal liability when he has actual knowledge or reason to know that his subordinates were committing crimes.68 A superiors actual knowledge is established through direct or circumstantial evidence.69 The second type of knowledgehad reason to knowrequires the superior to remain informed about the activities of his subordinates; he cannot willfully blind himself.70 The superior can be liable if he possessed any information that should have put him on notice of crimes committed or about to be committed by his subordinates. Although the superior cannot be expected to perform the impossible, he would be held criminally liable for failing to take actions within his material possibility. The lack of formal legal competence does not preclude responsibility.71
International law not inconsistent with municipal law is part of Indias law.72The Supreme Court has repeatedly stressed the respect given to the national implementation of international law, and the need to accommodate international law even without express legislative sanction.73Moreover, the Supreme Court has held that international law can be incorporated into the fundamental rights under the Indian Constitution.74 Thus, the standards of international human rights law, including the right to an effective remedy in cases of disappearances and extrajudicial executions, are part of the fundamental rights protected by the Indian Constitution.
When fundamental rights are at stake, Article 32 of the Indian Constitution gives the Supreme Court the power to forge new remedies and fashion new strategies designed to enforce these rights.75Its power is both injunctive and remedial.76 For example, in addition to awarding compensation for illegal detention, the Supreme Court has issued detailed mandatory directions that all law enforcement officials must comply with when they arrest or detain any person.77 These requirements were issued to supplement constitutional and statutory safeguards. The court has also established guidelines and norms not addressed in existing legislation.78 In creating commissions, the Supreme Court has stressed that the proceedings must be appropriate not in terms of any specific form, but in reference to the purpose to enforce fundamental rights.79 The commission can even diverge from the adversarial procedure80 to allow for a procedure more sensitive to victims rights in situations of reparation for gross human rights violations. The court also has the power to issue directions to the state, including the taking of positive action such as augmenting the investigative machinery and setting up new courts in order to ensure a speedy trial.81
All of the individuals interviewed for this report deplored the lack of an effective remedy for disappearances and extrajudicial executions by the Punjab police. They repeatedly stressed that the Indian governments offers of compensation did not equal justice. Many viewed the offer of money, in the absence of justice, as an effort to buy their silence. For the family members of victims, justice includes establishing the truth of what happened to their loved ones and holding perpetrators accountable for their crimes.
50 The International Convention for the Protection of All Persons from Enforced Disappearance which is currently open for signature, defines enforced disappearance as: the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. art. 2, http://www.ohchr.org/english/law/disappearance-convention.htm. India was one of the initial signatories to the convention, signing the treaty on February 6, 2007. As a signatory, India must refrain from acts which would defeat the object and purpose of [the] treaty. Vienna Convention on the Law of Treaties (1969), art. 18.
51 Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (Impunity Principles), U.N. Doc. E/CN.4/2005/102/Add.1, February 8, 2005, adopted by the UN Commission on Human Rights in Resolution E/CN.4/2005/81, April 15, 2005.
52 Code of Criminal Procedure, 1973, sections 45 and 197. These sections require the prosecutor to apply for prosecution sanction, or permission from the state or central government, before instituting any proceedings against a public servant or member of the armed forces. This requirement has prevented and halted cases against senior officers charged with serious human rights abuses.
53 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), entered into force March 23, 1976, art. 2. See also International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), entered into force January 4, 1969, art. 6.
54 See Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004) , para. 15 (States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights protected by the ICCPR). See also Impunity Principles, principle I; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Reparations Principles), adopted December 16, 2005, G.A. res. 60/147, U.N. Doc. A/RES/60/147 (2005), principle 11.
55 See Human Rights Committee, General Comment 29, States of Emergency (art. 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), para. 14 (Even if a State party, during a state of emergency, and to the extent that such measures are strictly required by the exigencies of the situation, may introduce adjustments to the practical functioning of its procedures governing judicial or other remedies, the State party must comply with the fundamental obligation, under article 2, paragraph 3, of the [ICCPR] to provide a remedy that is effective.). See also The Redress Trust, Enforcement of Awards for Victims of Torture and Other International Crimes, May 2006, http://www.redress.org/publications/master_enforcement%2030%20May%202006.pdf (accessed April 22, 2007) pp.10-11.
56 See Human Rights Committee, General Comment 29, States of Emergency (art. 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), para. 15 (A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant).; Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, Principle 3(b) (Investigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law); see also European Court of Human Rights, Ibrahim Aksoy v. Turkey, Judgment of 18 December 1996, 100/1995/606/694, para. 98. The ECHR ruled that the notion of an effective remedy for torture in Article 13 of the European Convention includes a thorough and effective investigation capable of leading to the identification and punishment of those responsible.
57 Reparations Principles, principle 24.
58Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, principle 15.
59 See e.g. Maria del Carmen Almeida de Quinteros et al. v. Uruguay, Communication No. 108/1981, UN Doc. CCPR/C/19/D/107/1981 (1983); Irene Bleier Lewenhoff and Rosa Valino de Bleier v. Uruguay, Communication No. 30/1978, U.N. Doc. CCPR/C/OP/1 (1985); Velasquez Rodriguez, Inter-Am. Ct. H.R Ser. C No. 4. This issue is discussed in Human Rights Watch, India Punjab Amicus Curiae Brief, (2003), http://www.hrw.org/pub/amicusbriefs/punjab.pdf (accessed April 22, 2007), Argument II.
60 See Human Rights Committee, General Comment 31, para. 18 (States Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations [of human rights recognized as criminal] could in and of itself give rise to a separate breach of the Covenant.).
61 See The Redress Trust, Implementing Victims Rights: A Handbook on the Basic Principles and Guidelines on the Right to a Remedy and Reparation, March 2006, http://www.redress.org/publications/Reparation%20Principles.pdf (accessed April 22, 2007), p. 24.
62 Concluding Observations of the Human Rights Committee: India, August 4, 1997, U.N. Doc No. CCPR/C/79/Add.81, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/85e8bbf07b5dbdc88025652b005538bd?Opendocument (accessed May 20, 2007), para. 21.
63 See Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, principle 19.
64 See The Redress Trust, Enforcement of Awards, pp. 6-7, citing Inter-American Court of Human Rights, Baena-Ricardo Case, judgment of 28 November 2003, Inter-Am. Ct. H.R., (Ser. C) No. 104 (2003), para. 82, cited in Shelton, Remedies in International Law (Oxford: Oxford University Press, 2005) p. 383.
65 Human Rights Committee, General Comment 31, para. 16. Others have delineated four components of reparations: restitution, compensation, rehabilitation, and satisfaction and guarantees of non-repetition. Restitution is described as the restoration of the victim, whenever possible, to the original situation prior to the occurrence of the violation. This includes restoration of liberty, citizenship, employment, property, or ones place of residence. Compensation covers material losses, such as medical expenses and the loss of earnings, as well as economically assessable moral damage, such as pain and suffering. Rehabilitation includes legal, social, medical, and psychological care and services. Satisfaction and guarantees of non-repetition include measures such as the full public disclosure of the truth; the search for the whereabouts of the disappeared; an official declaration restoring the dignity, reputation, and rights of the victim and persons closely connected to the victim; and review of laws that contribute to or allow gross violations of human rights. Reparations must be proportional to the gravity of the violations and the harm suffered. Further, reparations are premised on the principle of non-discrimination, where all victims who have suffered like violations receive like reparations. See Reparations Principles, principles 19-23.
66 Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo, International Criminal Tribunal for the former Yugoslavia (ICTY), Case No. IT-96-21-T, November 16, 1998, para. 346 (Celebici). In Celebici, the Trial Chamber of the ICTY traced the development of the concept of superior responsibility from its first international judicial recognition in the Nuremberg and Tokyo trials of World War II. The Trial Chamber broke down the principal of superior responsibility into three essential elements: (i) the existence of a superior-subordinate relationship; (ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and (iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.
67 Ibid. at para. 333., affirmed in part and reversed in part, Prosecutor v. Delalic et al., ICTY, Judgment (Appeals Chamber), February 20, 2001) (Delalic Appeals Chamber).
68 Ibid., at 383.
70 Ibid., at 387-388.
71 Ibid., at 395.
72 Vellore Citizens Welfare Forum v. Union of India, INSC 1050 (1996). The Supreme Court held that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law. As per Article 372 of Indias Constitution, all laws in force in the Indian territory before the commencement of the Constitution continue in force. India follows Englands common law and thus designates the same status to customary international law in domestic law.
73 Gramophone Co. of India Ltd v. Birendra Bahadur Pandey, AIR 1984 SC 667, 673.
74 Peoples Union for Civil Liberties & Anr v. Union of India, (1997) 3 SCC 433.
75 See Bandhua Mukti Morcha v. Union of India and others, (1984) 3 SCC 161; M.C. Mehta v. Union of India, AIR 1987 SC 1086.
76 M.C. Mehta v. Union of India, AIR 1987 SC 1086.
77 DK Basu v. State of West Bengal, (1997) 1 SCC 416 at 438, para. 35.
78 Vishaka v. State of Rajasthan, (1997) 6 SCC 241, para. 11.
79 Bandhua Mukti Morcha v. Union of India and others, para. 11.
80 Bandhua Mukti Morcha v. Union of India and others, para. 13.
81 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, AIR 1979 SC 1369, 1979 SCR (3)1276.