The law is a living organism which is reflected by the ever-evolving landscape of international criminal law. Conflicts demonstrate the role of major players of international law drive most essentially, human rights. Human rights are rights inherent to all human beings, without any discrimination. According to Art. 1 of the UDHR, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” These rights are all interrelated, interdependent and indivisible. Human rights are thus guaranteed universally by law, in the forms of treaties, customary international law, general principles and other sources of international law. 
Before analyzing the concepts of laws and state relationship, we must consider the evolution of human rights and their universality. The concept of human rights can be traced back to the Stoic philosophy which closely resembles the Buddhist school of thought. The concept of natural rights in these schools emphasized that human beings are born virtuous and they should preserve this virtue by distancing themselves from passion. These schools function with the maxim of living in according to nature, both in the sense of the laws of the universe and reason. Before the draft of the most important declaration now governing the human rights discipline, two evolvements came in the from of the American Declaration, recognizing the importance of guaranteeing “life, liberty and the pursuit of happiness” to all men; and then the French Declaration which granted “life, liberty and fraternity” to all men. It is however surprising to note that these declarations and philosophical schools of thought emphasized on the words “all men” meaning that these rights were only available to men or a class of men. It was only in the later part of the 19th Century that these rights were also granted to women and children. Now, in the modern times, these human rights are universally granted through the UDHR to “all human beings” without any distinction. It is established that these declarations have
Through these declarations another incidental question of human rights attacking state sovereignty arises. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, to promote and protect human rights and fundamental freedoms of individuals or groups. By becoming parties to international agreements and instruments, States assume obligations and duties such as the responsibility to protect, to abide by the international humanitarian law principles and to ensure full satisfaction of the grant of human rights both in times of peace and war. The Conventions of Hague and Geneva govern such activities of states when it comes to enforceability and protection at times of war and peace. This obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. It requires States to protect individuals and groups against human rights violations. They are under a duty to bring into force mechanisms in their domestic laws to abide by the dictates of such documents. This process of enforcement in one’s land is done post ratification.
Through ratification of international human rights treaties, Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. The domestic legal system, therefore, provides the principal legal protection of human rights guaranteed under international law. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual and group complaints are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level. Thus, even though post ratification the country is bound legal by the international instrument, it is not an attack on the sovereignty, further, as provided under the Vienna Convention on the Law of Treaties, the states are under a liberty to reserve to certain treaty norms or derogate from them.
Interpretations of treaties and state roles in the implementation of the same, are indispensable in studying the human rights violations. Post this clarity one can move into the details of the state violations and study how various judicial pronouncements have molded this law into what we know today as the international human rights law regime.
The advancement of hate crimes in domestic realm:
“No other physical encounter between human beings carries such a disparate potential for good or evil.” –Starre Vartan.
in a morning of June 1994, Kenneth Harris, a black man, was driving home from a trip to France with his white girlfriend, Miss Woodward. He pulled into a garage in ford and his girlfriend left the car to make some purchases from the kiosk. Ms. Woodward was immediately subjected to verbal abuse, some of it racist, by three white youths who had also pulled onto the forecourt of the garage. One of the youths approached Mr. Harris’s car and began to kick and punch at the passenger side. When Mr. Harris stepped out of the car to ask what was wrong the youth replied, “cause you’re black” and challenged him to a fight. One of the other youths then took hold of Harris and all three kicked, punched and stabbed him with screwdrivers as he lay on the ground. Then one of the assailants, called Ridley, entered the victim’s car and reversed it over his legs while the others held him down. Ridley, after attempting to repeat the maneuvers, drove off in the car leaving Harris with a fractured skull, a series of lacerations to his body and injuries to his legs, which may permanently impair his mobility.
Above is a classic documented evidence of Hate Crimes. Crimes motivated by prejudice, also known as hate crimes or bias-motivated crimes, affect the security of individuals, their communities and societies. A hate crime is an ordinary crime connected to some sort of factor signaling that the perpetrator commits the crime in conjunction with holding a particularly biased or disparaging attitude or view towards the victim in virtue of a perceived membership of this victim to some social group. Effective responses to hate crimes are necessary to prevent them from posing a serious security challenge. In extreme situations, they can lead to wars within and across borders. Hate crimes characterized by bias or prejudice towards groups of people require that the act must constitute an offence under criminal law and the act be motivated by bias.
Bias motivations can be broadly defined as preconceived negative opinions, stereotypical assumptions, intolerance or hatred directed to a group that shares a common characteristic, such as race, ethnicity, language, religion, nationality, sexual orientation, gender or any other fundamental characteristic. These crimes include a threat, property damage, assault, murder or any other criminal offence committed with a bias motivation. Hate crimes don’t only affect individuals from specific groups but also pose a threat to target the human rights defenders, community centres or places of worship.
To conceptualize hate crimes, it is essential that the elements leading to its formation and criminalization are fulfilled. Firstly, if there is no crime, there can be no hate crime, but conceptions differ regarding the range of crimes eligible for hate crime status. In many jurisdictions, any offence under criminal law is a potential hate crime. Secondly, any conception of hate crime involves some determination of what distinguishes this type of crime. There is general agreement that the proof of the hate crime lies in the answer to the question why the crime was committed, but different conceptions favor different definitions of the salient motive. Some emphasize prejudice or hate, others bias or discrimination. Thirdly, any conception of hate crime implies a position on the requisite relation between the hate and the crime. Specific definitions may require proof of causation connected to motivation (i.e. that the crime was motivated by prejudice or bias), or alternatively a demonstration of identity-based hostility before, during or after the commission of the offence. When proof of causation is required there is also a need to decide on whether the crime must have been motivated in whole or only in part by hate. Finally, conceptions of hate crime imply a specification of a list of so-called protected characteristics, i.e., the hate crimes must be directed towards categories of group identity. Hence, specific conceptions of hate crime differ regarding the range of characteristics to be included, and variation on this parameter is the most easily recognized among the four given root causes of diversity between conceptions. In sum, the four-tiered concept exposes the skeleton around which concrete conceptions of hate crime are molded. It does not say which is the best interpretation in a context, but it facilitates distinction between constitutive and contingent aspects of hate crime and provides the basis for delimitations of the crimes.
Human rights prescribe states to provide their population with a certain sort of protection and security. This, among other things, includes people to be able to enjoy the freedoms of opinion, assembly, life-style, movement and choice, which all branch out of the fundamental rights guaranteed under respective state constitutions. But if the state allows individuals to interfere with the execution of these freedoms of other people, it does not perform this fundamental task properly. This is the ultimate motivation for criminal law and related preventive policies.
The state irresponsibility in acting towards there hate crimes disturbs the tenets of liberal democracy which disturbs the strings of peace, law and order. Thus, when people don’t respect this in a way that makes them commit a crime, they attack not only the victim of this crime, but become a potential threat to general social stability. The perpetrator risks throwing the well-ordered society into chaos, and raise a question on the role of state. Thus, an attack by an individual and any delay in an action by the state authorities weight the balance of justice towards grave injustice and a demolition of state structure.
Surprisingly, hate crimes are also creators of state actions and inactions in situations demanding just and reasonable conduct of the state law enforcement agencies. Crimes committed by police or security forces can be categorized and treated as human rights violations when they function in the strict no action zone. The facilitating of hate crime elements also applies to the crimes committed by death squads or other agents operating de facto as state agents. Further, as we shall see, according to one approach to human rights this concern with types of actors is essential, whereas according to another it is obsolete. In any case, the need for scrutiny of the claim that hate crime is a human rights violation emerges especially in relation to hate crimes perpetrated by a fourth type of actor; i.e. private individuals. Private individuals, whether acting alone or in the company of their peers, represent the almost exclusive focus in existing concerns with hate crime offenders. There are questions of their age, sex, relationship to their victims, secondary motivation (thrill, mission etc.), and the like, but the status of the perpetrators as ordinary citizens is assumed.
Once a crime is committed, a due procedure of law must be followed to seek relief. But even before the stage of filing the report, the victim must open about the crime. Almost half of the cases of go unreported because they are suppressed within the victim or within the family. In other case, the crimes are visibly seen and, yet the crimes go unreported since the perpetrators are connected in a group which holds substantial position in the society. As soon as this stage is overcome and if at all the incidence reaches the stage where the victim knocks the doors of the justice the entire elongated procedure begins which may or may not ultimately result in a fruitful outcome.
Violence against various communities – a domestic study:
- Violence against non-heteronormative communities:
Recently, in Texas on Oct. 21, a body was found off a county road west with bullet wounds to the chest, abdomen and shoulders. The victim, Stephanie Montez, a transgender woman was misidentified as a man was made to pay brutally for being oriented differently. Merriam Webster defines the term as an idea “based on the attitude that heteronormativity is the only normal and natural expression of sexuality.” This system encompasses expectations of gender roles, identities and sexualities deemed “natural.” The assumption is that everyone is cis-gender (more on this later), heterosexual and performs traditional gender roles. So basically, if you are biologically female, you identify as a woman. You also like the opposite sex and are traditionally “feminine.”
Unfortunately, this concept has real consequences for members of the LGBT community and for society. Ironically, while scholars and policy-makers have long referred to hate crime as a ‘message crime’, the assumption that those beyond the immediate victim are likewise intimidated by the violence has gone untested. Grounded in a recent study of the community impacts of hate crime, we offer some insights into these in terrorem effects of hate crime. As the nation’s become more adaptive and people become more expressive about their sexuality, there has been an increase in violence motivated by hate. Hate crimes against these communities are the most prevalent of the hate crimes based on sexual orientation. Hate crimes have their roots in normative, individual, and societal attitudes and ideologies that lead to intimidation, bullying, teasing, physical assault, rape, and murder. Even as transgender people have scored political victories and turned public opinion in favor of more protections, violence has risen, especially against black and transgender women. The full death toll is impossible to determine, but by rights groups’ estimates, each of the past three years has become the deadliest on record.
The Human Rights Campaign has documented the killings of twice the populations as compared to last year. They have been shot, stabbed, burned and, in at least one case, pushed into a river. On average, one to two have been killed somewhere in the continent every week. As per expert opinion, these numbers almost certainly understate the problem. Local officials are not required to report such killings to any central database, and because the police sometimes release incorrect names or genders, it can be difficult to know that a homicide victim was transgender. So, advocacy groups are left to comb news reports and talk to victims’ friends or family.
There is an increased climate of hate that is, in some cases, being allowed to grow. A lot of these cases are happening in regions where there are a lack of protections and there’s a lack of understanding and infrastructure for trans folks to live their daily lives. These atrocities are alarming, and the numbers are increasing day by day. the number of crimes reported daily, and the numbers known through human rights watches over the world, show a major contrasting difference. The cause behind such difference and inconsistence is the fear of re-victimization. This is a part of a well-planned organized structure of societal thinking aimed at neutralizing gender roles and attributing them.
- Violence against religious minorities:
The number of reported hate crimes in 2016 increased by nearly 5 percent to more than 6,100, according to a new report by the FBI. As has long been true, hate crimes based on race were by far the biggest category, with more than half of reported hate crime incidents motivated by race, ethnicity, or ancestry. This category makes up more than 20% of the reported incidences with Muslims and Jewish communities being the most sought-after targets.
A report by various investigating authorities in the human rights watch arena, gives a glimpse at the numbers in a year in which concerns about hate crimes skyrocketed due to politically motivated agendas. Be it the recognition by Trump of Jerusalem or the Civil War in Yemen, the patterns of these motivated crimes seem to always target the marginalized populations in isolation. Digging deep into the phenomenon, the answer lies within the state law enforcement agency actions. Before analyzing the same, we must understand the difference between hate crimes and hateful acts. The essential elements being fulfilled, there must be a crime for there to be an established hate crime. On the other hand, a hateful act need not necessarily be a crime. As a crime is characterized by mens rea and actus reus a hate crime is an admixture of these with an additional element of hate driven by a specific agenda. A hateful act likewise is merely driven by hateful motivation and does not spring out to become a criminal act penalized by law. The idea, essentially, is to take extraordinary steps against crimes that can go much further than harming individual victims.
As we embark on a historical trail in India or for that matter around most of the world, we can see that Muslim rulers were always invaders who believed in the policy of seizing others land and ruling over them. It is believed that these communities always migrated from land to land in the thirst of power. Mighty as they were, these rulers were also ruthless, though not all when it came to the treatment the gave to the ruled or the prisoners of war. This was where the roots of the hatred sprang, and the communities have ever since been driven with this hatred and bias against them. Another aspect for the spring of these atrocities and ill treatment of the Muslim communities is the notion of terrorism being attached to them. Many myths and leading evidences always end up characterizing these minorities with terror and spreading violence. They are thus served their own cause.
In case of other communities, a known fact is that the minority is always subject to the majority rule and they must abide or perish. This is the same reason why various draft instruments have been formulated to curtail such atrocities against religiously minor groups or indigenous populations. The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992 is a General Assembly resolution that achieves this purpose of safeguarding the minorities and protecting their interests. In this war of recognition and protection, it is the majority that is often overlooked. This will be dealt with in the next section in the context of India, where despite Dalits holding almost a major chunk of the population, they are severally victimized.
- Violence against majorities (Indian Dalits):
Article 17 deals with the abolition of untouchability. Though, this article does not create a right, yet it is a lease of rescue to the 1/6th of Indian population from perpetual subjugation, humiliation & disgrace of centuries. To incorporate the article in the constitution as one of the most unambiguous articles of the constitution was the best way to eradicate this evil. To, further strengthen the constitutional provision in Article 15 and Article 17, the parliament of India enacted the Untouchability (offences) Act in 1955. This act was further amended and renamed in 1976 as Protection of Civil Rights Act, 1955. This act lays down that whatever is open to public (or Hindus) should be open to the members of the scheduled castes. It abolishes the untouchability and its practice in any form is made punishable under the law. The main purpose of the paper is to highlight some of the prevalent practices regarding the Dalit atrocities. This will be dealt with from two aspects i.e. social atrocities and individual atrocities.
The passing of Land redistribution laws was the benchmark for such atrocities, the government and the dominant caste landlords fought unceasingly to prevent Dalits from gaining control over land that is legally theirs. This discrimination is also by far etched in the education system that prevents Dalit children from full participation in classrooms, thereby barring them from accessing the most important tool for social mobility. Moreover, violence against women is on the rise and patriarchal attitudes toward the role of women prevail. This “hidden apartheid” impacts most of the average population in India. The government action to create mechanisms of enforcement, and to enact various policies to combat discrimination against Dalits in government, the workplace, at educational institutions have not completely gained justice. Even after the abolition of the caste system, more than half a century ago, Dalits or ‘untouchables’ continue to face caste discrimination.
Looking at recent statistics every year, 13,000-15,000 cases of atrocities against Dalits and 3,000-3,500 cases of ‘untouchability’ are registered in India. Two instances of harassment in the western Indian state of Gujarat have prompted the Asian Human Rights Commission (AHRC), a Hong Kong-based rights body, to urge the Indian government to take urgent action against anti-dalit presentations. The AHRC was seen quoting, “Fifty-six years after India’s independence, the country is still suffering from caste discrimination and inequality”. The incidences that caught the national eye were when three Dalit teachers were transferred for protesting caste-wise seating arrangements during lunch at their school. Another stone in the pillar was by the suspected suicide of a Dalit man whose wife Gangaben Maru, an elected village head, was being threatened by her upper caste political rivals. The chain of happenings is endless and uncared for.
Two Dalit boys were killed, allegedly by members of an upper caste community in Saharanpur district of Uttar Pradesh, because they had won a cricket match says a report by the New Delhi based Indian rights group People’s Union for Civil Liberties (PUCL). For the past 60 days people have been on a dharna protesting police inaction in the mysterious disappearance of a Dalit sarpanch Karan Singh from the Brahmin-dominated Pehrewar village in Haryana’s Rohtak district four months ago has further highlighted the issue. The police allegedly refused to lodge an FIR for over a month after the incident took place. The people are demanding a CBI inquiry. Haryana the not so peaceful land anymore records a whooping rate of Dalit atrocities. In October 2002, five Dalits were lynched in Duleena village in Jhajjar district. Two hundred dalit families fled their homes in Harsola village in Kaithal district after being attacked. And, a few months ago, a woman dalit sarpanch was beaten in public in Gandhra village in Rohtak district.
Several campaigns have been launched to curb and control these atrocities. Heads of various institutions such as National Human Rights Commission and the National Commission for Scheduled Castes and Tribes as well as the United Nations, were called for acting and presenting their views for this pressing problem. Action to be taken against those violating the rights of Dalits was the main criterion of discussion. The bodies urged the Indian government to set up an independent body to investigate and try “the offenders of such gross violations of human rights”.
A pilot study done at Delhi’s Jawaharlal Nehru University has been associated with the National Campaign for Dalit Human Rights, points out the discouraging situation for Dalits. The chief coordinator encourages the efforts put up by the Indian government for registering efforts by Dalit groups and other human rights bodies to highlight the issue of discrimination against Dalits at an international conference against racism held in the South African city of Durban in 2001. The awareness is spreading but not as one would desire. Had this caste-less society been never established, the founding stones of India would have shaped differently. But we cannot necessarily blame it all on the Varna system. It is we, the people, who are responsible for the continuance of such atrocities. Action Aid, a soon-to-be-published report by the global nongovernmental organization, states that Dalits are often harassed if they assert their rights. Social and economic boycotts, murders, and rape- the sequence of violence against the Dalits is endless.
Many cases go unreported as the police means to dilute the seriousness of the offences and shield the offenders thus also indirectly inflicting injustice against the people who are discriminated upon. Police, the role of whom is to protect the society and maintain the civil order drifts away from being ‘the professional imposition of a coherent moral consensus on society’. Political activities too lead into the oppression of these minorities, women and children are harassed at an altogether different level. The situation is so inappropriate that the tainted rule of the British colonial rule fetched a far better outcome for these oppressed societies.
Document of Hate Crimes under International Law:
These crimes at international level can be divided into four basic categories, war crimes, genocide, crimes against humanity and crimes of aggression. This core crime classification evolved in the international law regime post the World War II when the German Nazi perpetrators were tried at Nuremberg. The context from the judgment read:
“Article 6. The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes:
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for
which there shall be individual responsibility:
- Crimes Against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing
- War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity
- Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing.”
Upon analysis of the Nuremberg pronouncement, the crimes specified thereunder can be classified as directed against a specific population and in furtherance of a policy driven by vendetta towards a specific group by individuals or a group of persons. Hate crime scholars Barbary Perry and Patrick Olsson, ‘is, by nature a sustained and systematic violation of human rights.’ The idea echoes claims made by several human rights organizations, including OHCHR and Human Rights First. It essentially limits people’s equality of opportunity and infringes their basic human rights.
To understand this further, one must take the guideline of the Rome Statute and the jurisprudence of the ICC available thereunder. Essentially, the Rome Statute provides that the crimes listed should be committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.. Thereby, to prove the alleged crime, it is necessary to show the nexus between the elements and the actions of the Defendant in line with the Statute. The term civilian population lacks a statutory definition, but essentially comprises all persons who are civilians as opposed to members of armed forces and other legitimate combatants. The alleged attack must be directed against a population that was the ‘primary object of the attack’, and not just an incidental victim. The object of the attack must be a civilian ‘population’, rather than a limited and randomly selected number of individuals. According to the International Humanitarian Law, the term civilian means persons who are not members of the armed forces. The Law of Geneva under Article 13(2) of Additional Protocol II of 1977 forbids the killing of civilians or the making them objects of attack.
These interpretations state clearly that in order for the crimes to be governed under the crimes listed under the Rome Statute, they must be widespread or systematic. For once if we assume the fact that hate crimes are for a matter of fact systematic and widespread, they are not part of a literal attack on an entire civil population. True, hate crimes are typically embedded in widespread patterns of prejudice, the targeting of vulnerable minorities might be quite systematic, and hate crimes are sometimes committed by or under the aegis of public authorities. This is how one can bring the crimes under the umbrella of international human rights law, because the state has become implicated in the targeting of their abuse. Still, and even if we should recognize a grey zone or an overlap, the reality of hate crimes as bad as it is.
Giving hate crimes, the human rights statutes is essential to draw any conclusion. Initially beginning from an approach which questions state sovereignty for acceding to international treaties, it was studied that ratification or signing to a treaty is not an attack on the states sovereign structure. It is like a commitment made by a state party to the international community to preserve the integrity of nations. As per the concept of the collective security, states through these documents ascertain a duty to be bound by law and to protect and preserve the law. Secondly, the essay focused on the victimization of various groups of minorities and majorities with a special focus on Indian regime. It can thus be effectively concluded that the status of being a minority does not always influence hate crimes. These crimes are motivated by a bias and hatred. Thirdly, the essay draws a parallel among the domestic laws and international law while studying hate crimes. The Rome Statute governs the international criminal arena and is one of the most effective documents, if not binding, in determining the status of state perpetrators. Finally, we see how the incidences today have shaped this field of study. The various religious atrocities and the campaigns that have followed since have left us to question law enforcement and the role of agencies in ensuring the bricks of the legal statute staying erect in these conflicts.
The incidences in Syria, the hammerings in Rwanda, the pushes of Sri Lanka and the gross violations in Myanmar are but a few known major hate crime records. It is high time that we move from a system of integrated safety and realize human rights to the core of its definition. It is time the community changes the outlook of the governments and becomes the mechanic of change. The holders of justice have ever since been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims and stops delivery of justice at the behest of upholding their imperial status. Even though the “watchers” have served as a benefactor to some they have failed to maintain the essential motto of peace and collective security. These agencies have used states and their non-encroachment policies as instruments for failure of carrying out farcical human rights drives, at the behest of humanity. In this backdrop of mass exploitation, we must unify and determine a framework of administration of justice and the cause of conflicts to better the land and to stop this “struggle for justice”.
This article is written by Sharvani Navagul. Sharwani is a student at National University of Study and Research in Law, Ranchi. This article secure 10th position in the RostrumLegal Essay Competition, 2017.
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