Still waiting for justice in Kandhamal

WAITI NG FOR JUSTICE: A REPORT OF THE NATIONAL PEOPLE’S TRIBUNAL ON KANDHAMAL EXECUTIVE SUMMARY A National People’s Tribunal (NPT) on Kandhamal was held in New Delhi on 22-24 August 2010, organized by the National Solidarity Forum - a countrywide solidarity platform of concerned persons from various walks of life. The NPT aimed at assisting the victims and survivors of the Kandhamal violence 2008 to seek justice, accountability and peace and to restore the victim-survivors’ right to a dignified life. The twelve-member jury of the NPT was headed by Justice A.P. Shah (retd.). The Tribunal’s final report was released in Bhubaneswar on 2nd December 2011. The report is based on the testimonies of 45 victims, survivors and their representatives. Additionally, it incorporates and draws upon the contents of studies, field surveys, research, fact-finding reports and statements to the Tribunal that were presented by 15 experts. The 197-paged report is divided into four parts. The first part provides the background and context of the violence in Kandhamal in 2008, and highlights the fundamental aspects of the violence. The second part focuses on the impact of the violence. In separate chapters, this part examines aspects such as freedom of religion, the gendered impact of the violence, impact on children, and the impact on socio-economic and cultural rights. The third part compiles and analyzes the responses to the violence. It encompasses role of the state and democratic institutions, processes of justice and accountability and the aspect of reparations. The fourth and concluding part of the report lays down the concluding observations and the recommendations of the jury. Annexures to the report include details of victim-survivors who deposed before the Tribunal, details of reports / statements presented to the Tribunal and details of members of the Organizing Committee for the Tribunal. MAJOR OBSERVATIONS: • Communal Violence in Orissa: The targeted violence against the adivasi and dalit Christian community in Orissa violates the fundamental right to life, liberty and equality guaranteed by the Indian Constitution, and affirmed by the ICCPR, ICESCR, CERD and other international covenants. The brutality of the violence also falls within the definition of ‘torture’ under international law, particularly the Rome Statute of the International Criminal Court. Communal forces have used religious conversions as an issue for political mobilisation and incited horrific forms of violence and discrimination against adivasi and dalit Christians. • Violence in Kandhamal: The 2008 attacks in Kandhamal were widespread, and were executed with substantial planning and preparation. The violence meets all the elements of ‘crimes against humanity’ as defined in applicable international law. Christians who refused to abandon their faith and convert to Hinduism were brutally killed or injured. Burning and destruction of property (residential, official and religious / charitable institutions) was also a predominant form of violence. Human rights defenders have been deliberately targeted for their role in assisting victim-survivors. Moveable property, valuable documents and certificates were looted / destroyed to economically impoverish and lower the socio-economic status of the victim-survivors. Evidence of the attacks was systematically and meticulously destroyed in order to scuttle the processes of justice and accountability. • Gendered Impact: The jury observes, with deep concern, the silence that prevails in matters of sexual assault, at various levels including documenting, reporting, investigating, charging and prosecuting cases. The threats of sexual violence against women and their daughters continue, heightening women’s sense of vulnerability. The attacks on women violate constitutional guarantees of equality and non-discrimination on the ground of sex, and other international standards, including the CEDAW. The relief measures undertaken by the government have been marked by gender blindness and did not address women’s special needs for privacy, nutrition, medical and psychological support. There is no implementation of government schemes by which widows, single women and women survivors of violence can be restored to a life with dignity. • Impact on Children: The impoverishment of the victim-survivor community after the violence has had an adverse impact on the children jeopardizing their physical, psychological and intellectual development. Many children have witnessed horrific violence to their close family members and suffer from acute trauma with no access to services of socio – psycho support and healing. Many children have dropped out of school due to the financial inability of the families to bear the expenses, due to fear or discrimination by the school authority. Children having been forced into the labour force, in hazardous conditions, in order to supplement the family income, and have also been trafficked for the purposes of forced labour, sexual exploitation and abuse. • Impact on Socio-economic and Cultural Rights: The violence against Christians has caused large-scale displacement, leaving the victim-survivors with a sense of rootlessness. The destruction of many churches and prayer halls, and the failure to reconstruct them has deprived the victim-survivors of their right to religious practice. The victim-survivor community is unable to freely practise its faith and is thereby reduced to a state of secondary citizenship – an anathema in a democracy like India with a constitution that guarantees fundamental rights. The violence has had an adverse impact on the livelihood and economic well-being of the affected people. Socio-economic boycott of the Christian community continues to be implemented in a variety of ways. The provisions of NREGA too do not benefit them as it is implemented in manner that discriminates against persons on grounds of religion, caste and gender. • Role of State Administration and Public Officials: The jury members observe, with grave concern, the deliberate dereliction of constitutionally mandated duties by public officials, their connivance with communal forces, participation in and support to the violence and a deliberate scuttling of processes of justice through acts of commission and omission. The state agencies have blatantly failed to extend much-needed institutional support to victim-survivors and protect them from attacks to their persons and properties, ostracism, socio-economic boycott and subjugation by non-state actors. The state government has also failed in its responsibility to prevent the violence in Kandhamal in August 2008. • The Justice Process: The jury observes, with deep concern, that the criminal justice system has been rendered ineffective in protecting victim-survivors and witnesses, providing justice and ensuring accountability for the crimes perpetrated. The complicity of the police and their collusion with the perpetrators during the phase of investigation and prosecution, indicate an institutional bias against the targeted Christian adivasi and dalit community. Victims and witnesses engaged in the justice process have been threatened and intimidated, as there is no guarantee of safe passage to and from the courts. Guidelines on witness protection, issued by the Supreme Court and various High Courts, are not followed by the Fast Track courts. Women and child witnesses face extreme vulnerability. The jury further observes that clear gaps exist in substantive, procedural and evidentiary law to prosecute and punish those responsible for targeted mass violence, and that international jurisprudence in this regard has potential relevance for filling the gaps in Indian criminal law. • Reparations: Through the issuance of a notification prohibiting non-profit organizations from conducting rescue and relief work in Kandhamal, the state government abdicated its constitutionally-mandated duty to protect the lives and human rights of vulnerable populations. The dismal conditions in the government-run relief camps are clearly indicative of the indifference of the State government to the plight of victim-survivors. They are violative of the right of victim-survivors to a life with dignity and equality, as guaranteed by the Indian Constitution; and the right of all IDPs to an adequate standard of living, as recognized UN Guiding Principles on Internal Displacement, 1998. The award of meagre compensation to some victim-survivors and its denial to many, defeat the very purpose of awarding compensation - to repair the harm and loss caused to the victim-survivors. The lack of uniform criteria in damage assessment has led to an arbitrary determination of compensation amounts by State authorities whose acts are coloured by institutional bias against the Christian community. The absence of a comprehensive rehabilitation package has prevented the victim-survivors from being restored to a life of dignity. The negative role of public officials in the peace committees and the infiltration of perpetrators in such committees indicate that the state government’s peace initiatives have been a dismal failure. The jury reiterates that while confidence-building measures are of prime importance, these cannot be undertaken in the absence of or as a substitute for processes of justice and accountability, which are the tool for long-lasting peace in the region. MAJOR RECOMMENDATIONS: A. Socio-economic and Cultural Rights Apply National Rural Employment Guarantee Act (NREGA) and other livelihood schemes of the state and central government to the affected community, without any discrimination on the basis of caste, religion or gender. Act against those engaging in such discrimination. Implement widow pension schemes; provide government jobs to individuals from families of deceased victims, on compassionate grounds; reinstate/reappoint victim-survivors engaged in government jobs prior to the violence and transfer them to areas that they perceive to be safe and secure; provide soft loans for commencement of small businesses. Ensure that relief camps meet the minimum international standards of health, hygiene and privacy for IDPs; they should have facilities to meet the educational and nutritional needs of children, lactating mothers and pregnant women; provide medical and psychological, particularly trauma counselling to the victims/ survivors, with a special attention to the needs of women survivors of sexual and gender-based violence. Incorporate a separate section in the State policy on relief and rehabilitation that conforms to Article 3 of the Child Rights Convention, as the guiding principle for all relief and rehabilitation work. Recommend that the National Commission for Protection of Child Rights and the National Commission on Scheduled Castes and the National Commission on Scheduled Tribes assess the needs of children, dalits and adivasis respectively from the affected Christian community in Kandhamal, and make recommendations to appropriate agencies at the state and central levels for ensuring their rehabilitation at the earliest. Address educational needs of the children who have suffered displacement as a result of the violence. Address the long-standing problem of landlessness and land alienation of the dalits and adivasis in a comprehensive manner through land reform and redistribution. B. Legal and Judicial Processes Identify unreported cases of sexual and gender-based violence and include the offence of sexual assault in First Information Reports (FIRs), in cases where it has been ignored and ensure that they are effectively investigated and prosecuted. Enquire into the acts of all public officials named in this Report, and pursue stringent disciplinary, administrative and other legal action against them for grave dereliction of duty, and for collusion and complicity in the crimes committed by the perpetrators. Strictly enforce Sections 153 A and B of the Indian Penal Code (promoting enmity between different groups and doing acts prejudicial to maintenance of harmony) in order to proactively prevent programmes that are divisive, propagate hate and incite violence against religious minorities. Constitute a Special Investigation Team (SIT) to re-examine the already registered FIRs for accuracy, examine registrations of fresh FIRs, the trials that resulted in acquittals due to intimidation and/or lack of evidence and recommend the trials that need be transferred or fresh trials be conducted outside Kandhamal. Appoint Special Public Prosecutors who discharge their duties with professional competence and integrity. At the appellate stage in the Orissa High Court a special panel of lawyers to represent the victims of Kandhamal violence should be constituted. Recommend that State Legal Services Authorities set up a legal cell to assist victims in their legal cases and interactions with the police and courts. Provide protection to victims and witnesses before, during and after the trial process according to the guidelines provided in the judgments of the Delhi and Punjab and Haryana High Courts. Take pro-active measures to prevent threat of sexual and gender-based violence to women survivors and their daughters and pay attention to the needs of the child witnesses involved in various proceedings related to the Kandhamal violence. The State Legal Services Authority lawyers to also ensure, that witnesses depose freely and without fear in the fast Track Courts and to bring any incident of intimidation to the notice of the concerned authorities including the Court. State Legal Service Authority to assist the victim- witnesses to initiate appropriate legal action in this regard. Accord special protection to human rights defenders and adequately compensated the damage to their residential and organizational properties so that there are no impediments to their work in assisting victim-survivors with processes of justice and reparations. C. Reparations Adopt, at the very minimum, the 1984 anti Sikh and 2002 anti Muslim Gujarat compensation package to enhance the compensation already announced. In addition, victims of sexual and gender-based violence should be included as a ground eligible for compensation and employment. Recognize the right of the Internally Displaced Persons (IDPs) to return home and create enabling conditions to facilitate such safe return in accordance with the UN Basic Principles and Guidelines on Development-based Evictions and Displacement, 2007 and UN Guiding Principles on Internally Displaced Persons. Facilitate the return and reintegration of the affected families back in their villages of habitual residence, or resettle them in safe and secure alternative places of residence that is near to agro-based or other livelihood possibilities. Formulate and implement policies to provide victim-survivors full reparations, which include compensation, restitution, rehabilitation, guarantees that the crimes committed will not be repeated, and forms of satisfaction such as restoration of their dignity and a public acknowledgement of the harm that they have suffered; meeting national and international human rights standards. Include movable properties into the scheme of compensation, and adequately compensate loss of valuables, cash, agricultural produce and cattle, essential documents, household articles and vehicles towards restoring the victim-survivors and their families to the standard of living that they enjoyed prior to the violence. Focus on revival of dignified livelihood options for the affected families, and facilitate a resumption of the livelihood they had pursued prior to the violence. Make a concerted effort at recovery and return of lands that the victim-survivor families had abandoned at the time of the violence, in order that they may pursue agro-based forms of livelihood. Include members of the affected community, particularly women, in all confidence-building and peace-building initiatives by the state and district administration. Substantive participation of women in village level peace committees should be facilitated, rather than a token representation. D. Minority Rights Protect the right to religious freedom and clarify that this freedom means and includes the right to remain animist, areligious and/or atheist, and make any form of forced conversion or reconversion illegal. Formulate a policy / programme to urgently address the issue of institutional bias against the minority Christian community in Kandhamal and other parts of Orissa, through a combination of perspective-building and stringent action that is intended at upholding the rule of law. Review OFRA to ensure that it does not violate the right to religious freedom as guaranteed by the Indian Constitution and international law. Review the definition of the Scheduled Castes in The Presidential Order of 1950, on the basis of the discrimination experienced by members of schedule castes even after conversion. Implement the recommendations of the National Commission for Minorities, issued in their reports of January, April and September 2008 with immediate effect. **********