by Ramesh Thakur 
The Japan Times
Saturday, January 12, 2013

CANBERRA — The shock waves from the pack-rape and murder of a 23-year-old student in New Delhi continue to reverberate in India and around the world. The pathology of rape is not rooted in local culture. A nation does not rise in collective revulsion at normal but rather at unacceptable behavior.

The explanation for the rape epidemic lies in accumulating failures of governance. Successive governments have responded to crises with patchwork solutions, postponing structural reforms to tomorrow. That tomorrow has arrived with a vengeance and the government is at a loss on what to do.

There are four reasons for the extraordinary outpouring of anger: This attack was particularly horrific and savage. It was perpetrated on the streets of the nation’s capital in a bus that drove through several police checkpoints. The victim was representative of the new aspirational India. And she proved remarkably fearless in fighting her attackers, and tenacious in clinging to life and hope that evoked admiration for her courage.

The problem of rape, especially against the poor, outcast and tribal women, is not recent and there have been enough high-profile cases that a government with a social conscience would have acted decisively by now. Public policy failings have produced the world’s biggest pool of poor, sick, starving and illiterate people. Institutional failures of governance mean their suffering is aggravated.

When the core problem is lack of implementation, new legislation is not the solution. India suffers from too many laws that are confusing, provide perverse incentives for police and judicial corruption, and foster and embed a disrespect for the principle of the rule of law. India needs fewer laws that are easier to understand, simpler to interpret, habitually obeyed and routinely enforced when challenged.

Many are demanding mandatory death sentences. India lacks the courage of conviction either to abolish the death penalty on principle, or implement it firmly in practice. Afzal Guru from Kashmir, convicted of the terrorist attack on parliament in 2001, with legal avenues exhausted in the Supreme Court eight years ago, is yet to be hanged because the Congress government fears an electoral backlash from Muslim voters.

A person was convicted and sentenced to death in 2002 for the rape-murder of a five-year old girl in 2001. In May last year, India’s woman president commuted the death sentence to life imprisonment.

A new feudal system is being created as the political process is captured by a narrow and self-perpetuating ruling class that is increasingly inbred, criminal and out of touch with the changing nation.

Patrick French’s analysis shows that of the 545 federal members of Parliament (MPs), 156 had hereditary connections. Of women MPs, 70 percent were in family seats. Every MP under 30, and 65 percent of the 66 MPs in their 30s, had a family connection. Of Congress Party MPs in their 30s, 86 percent inherited a family seat.

The president’s son, of the notorious “dented and painted” crowd of women protesters quote, is an inheritor MP. With the inheritor MPs being 10 years younger on average than others, this group will have a decade’s advantage in Indian political life. If the trend continues, almost all MPs will be hereditary.

Around one fourth of MPs face criminal charges. They can only be debarred on conviction. Because court cases can be indefinitely delayed, in practice being implicated in serious crimes is no bar to being an MP for life.

Courts are clogged. In Maharashtra — the worst on this count — only 240,000 of the 3.1 million cases of people in prison or awaiting trial were settled last year.

At current caseload settlement rates, India’s 15,000 judges (another 3,000 posts are unfilled) will require over 300 years just to clear the backlog of 30 million pending cases. Against India’s recommended norm of 50 judges per million population, it has just 10.

Public officials operate with colonial structures and mind-sets, lording it over subjects instead of serving citizens. India’s bureaucrats are rated the most inefficient in Asia. The police are corrupt, distrusted and feared by those who need the most protection against powerful predators.

Ruchika Girhotra, a 14-year old girl, was sexually molested by a senior police officer in 1990. He rose to be the state’s top cop while she and her family were harassed and victimized for pursuing the case. She killed herself in 1993.

Only in 2009 did justice finally catch up with the police officer, and even then with a risible six-month sentence that saw him smirking as he left court on bail pending an appeal. What is especially dispiriting about this is just how many individuals and institutions that could and should have protected her just went with the flow.

India is a laboratory for demonstrating the law of perverse consequences. Legislative quotas for women will be another means of feathering the family nest by packing parliaments with the “bibi, beti and bahu” brigade (wives, daughters and daughters-in-law). What’s required is exactly the opposite: opening the doors of political office to the talented young people of the new dynamic India who aspire to public office for serving a higher social purpose.

Creating special courts for speedy trials of rape cases with toughened conditions for defendants will impose even further delays in the administration of criminal justice in general. Powerful Congress Party politicians who incited the anti-Sikh riots in Delhi in 1984 that killed up to 3,000 are yet to face their day in court. Until they do, Sikhs will not reach emotional closure on those traumatic events.

Some victims will get swifter justice under fast-tracked procedures in special courts. Some people will threaten to or file false cases as a convenient tool of extortion against political opponents, social rivals, wealthy neighbors, rejected suitors, property disputants, etc. And the police and judges will have yet another weapon to extract bribes from all sides. Instant justice is usually the hallmark of kangaroo courts. India must build an efficient criminal justice system for everyone concerned, not subvert due process to appease the mob.

The glib call to name a tough new law after the victim will import American custom that is alien and offensive to the British legal tradition. It would be better to set up a memorial sculpture to the unknown rape victim along the route of that bus of infinite sadness.

Professor Ramesh Thakur is director of the Center for Nuclear Non-Proliferation and Disarmament, Australian National University
The Japan Times: Saturday, Jan. 12, 2013
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by Jennifer Trahan
Center for Global Affairs at the NYU School of Continuing and Professional Studies

Congress recently approved a bill expanding the U.S.’s “Rewards for Justice” program to include apprehension of individuals wanted by international tribunals such as the International Criminal Court.  The bill, passed by the Senate on December 20 and House on January 3, and promoted by U.S. Ambassador-at-Large for Global Criminal Justice Stephen J. Rapp, covers rewards for information leading to the transfer to or conviction by an international criminal tribunal (including a hybrid or mixed tribunal), of any foreign national accused of war crimes, crimes against humanity, or genocide ….

While the U.S. Government still clearly remains wary of the ICC and is not anticipated to ratify the ICC’s Rome Statue at any time in the near future, the legislation is a further positive step that strengthens U.S. constructive engagement with the Court.  Other recent positive developments include U.S. deployment of 100 special operations forces as military advisers to Uganda to assist with the apprehension of members of the Lord’s Resistance Army led by Joseph Kony; statements by State Department Legal Advisor Harold H. Koh that the U.S. respects its obligations as signatory to the ICC’s Rome Statute (obligations the second Bush Administration attempted to revoke); and U.S. participation at ICC-related meetings, including meetings of the Assembly of States Parties to the ICC.

During the second term of the Obama Administration, the U.S. should further solidify the US-ICC relationship by formally reactivating U.S. signatory obligations and articulating a clear policy position of U.S. support for the Court, which is designed to prosecute the worst instances of genocide, war crimes and crimes against humanity.  Congress should repeal the ban on direct U.S. financial support of the Court, to which the U.S. has supported referral of the situations in Libya and tacitly supported referral of the Darfur situation.  The U.S. should also press for referral by the U.N. Security Council of the situation in Syria, which has now claimed an estimated 60,000 fatalities, to the Court for investigation and prosecution.