Bangladesh’s Capital Punishment for Rape Convictions: The Influence of Activism and Social Media on Lawmaking in Asia

BY: SUZANNE BROER, JUNIOR RESEARCH ASSOCIATE, PILPG-NL

After a video emerged on the internet on October 4 this year, where a group of men are seen attacking and raping a woman, a wave of protests washed over Bangladesh calling for reform of the domestic rape legislation.  The protests aimed to draw attention to the stigma surrounding rape and the blame that appears to be put on the victim rather than the perpetrator.  As a response to the protests, Prime Minister Sheikh Hasina decided that, instead of life imprisonment, capital punishment will be awarded to those convicted for rape. Speaking on Hasina’s behalf, Law Minister Anisul Haq cited the deterrent effect capital punishment as  playing a part in Hasina’s decision to adjust the legislation.  Although concerns regarding the effectiveness of this measure have been expressed by Human Rights Watch and other civil society actors parties, this instance exemplifies the potential influence of activism and social media on lawmaking. 

The Pressure of Covid-19

It appears that violence against womxn has increased by almost 70 percent during the Covid-19 pandemic, in addition to potential victims being disconnected from their support systems. This increase has been spilling over on social media and the viral video of the rape in Bangladesh is an example of this trend. The video that was the direct cause for the recent protests did not only show a painful crime but also shone a light on the stigma contributing to violence against womxn. 

Elimination of Discrimination and Violence Against Womxn

Violence against womxn is a manifestation of the unequal power relationship between men and womxn and takes place all around the world.  South Asia is an area in which sexual violence is more prevalent than others: it contains some of the world’s most powerful economies but also two-thirds of its poorest people.  Challenges resulting from socioeconomic disparities are inherently linked to gender. 

Throughout the world, issues regarding violence against womxn are covered by the umbrella convention regarding womxn’s rights: the Convention on the Elimination on All Forms of Discrimination Against Women (CEDAW).    Several South Asian states, including Bangladesh, have ratified the CEDAW and have made formal commitments to gender equality.  Nonetheless, factors such as limited resources, inconsistencies in safeguarding justice, or even disruption from natural disasters and conflicts have complicated the matter tremendously.

 Bangladesh had vowed to reduce and eliminate violence against womxn and children by 2015, in line with its commitments to CEDAW.  The Prevention of Oppression Against Women and Children Act (POAWC Act) of 2000 has contributed to the reduction of violence against womxn and children by prescribing life imprisonment as a sentence.  Nevertheless, reduction of violence against womxn can be made more significant: legislation, outreach and the behavior of police towards survivors can use improvement.  A viral video was capable of spiking the public attention regarding the general attitude towards violence against womxn, leading to the introduction of the death penalty.  This is because the video did not only reveal the crime itself, but also society’s attitude towards the crime.

The Surge of Social Media Protests

It is no surprise that communications technology plays a part in protests: it is most convenient and effective to spread information regarding ongoing injustices and mobilize people through social media.     The Arab Spring protests and the more recent Black Lives Matter protests are examples of this.  More specifically, in the Nirbhaya case, the protests that arose in the aftermath of a gang rape had a strong influence on criminal justice in India.  In fact, the protests are credited for the introduction of the 2013 Criminal Law Amendments and the death sentence in India’s rape jurisprudence.  However, such influence of social media and protests arguably impugns the legality doctrine in criminal law: law has to be clear, ascertainable and non-retrospective.  An adjustment of the law after the fact interferes particularly with the principle of non-retroactivity if the perpetrator is prosecuted based on the new legislation. Public opinion might also influence the impartiality of the judges, pressuring them to reach a conviction, often to the disadvantage of the fair trial rights of the accused.

What is special in the combination of violence against womxn and the role of social media in protests is inherent in the way that the problem persists: blame is attributed to the victim rather than the perpetrator and, as a consequence, the violence is heavily underreported.  Previously, cases of acid attacks on women have been handled relatively successful by Bangladesh, arguably because the consequences of acid attacks are visible and they thus visualize the violence perpetrated on women.  This changes the dynamic: exposing the violence, in a way, equals ‘reporting’.  The exposure of stigmas allows for them to be addressed and works towards their elimination.

 Conclusion

 Violence against womxn is prevalent in Asia, but Bangladesh has long taken measures to reduce the problems.  It appears to be rather difficult to do so, as socioeconomic challenges and their effects on the unequal power relationship between women and men are complicated by limited resources and conflicts.  In times where the Covid-19 pandemic puts an additional strain on the status of womxn in society, social media can expose the inherent preconceptions that underlie the problems.  As a result, a bottom-up influence from the public can have an effect on legislation, just as it did in the example of Bangladesh.

October 2020

Monthly News Updates:  Human Rights Mechanisms - October 2020

By: Shaghayegh Javadinia, Junior Research Associate, PILPG-NL 

The following post highlights the work of regional and international human rights mechanisms around the world in protecting human rights and combating violations thereof, especially during the COVID 19 pandemic.

EUROPE 

European Court of Human Rights | Overcrowding in Oporto prison constituted degrading treatment for inmates

In the case of Bădulescu v. Portugal, the applicant, who is a Romanian national, was imprisoned for six and a half years in Oporto prison (Portugal) for theft.  The applicant contested the condition of detention in Oporto prison during the time in which he was serving his sentence.  The Court noted that the overcrowding and lack of personal space (less than three square meters per person) amounted to degrading treatment under Article 3 of the ECHR. describing it as a “hardship of an intensity exceeding the unavoidable level of suffering inherent in detention”.[October 20, 2020] 

European Court of Human Rights | Violation of Convention concerning the procedural safeguards relating to expulsion of aliens

The case of Muhammad and Muhammad v. Romania concerns two Pakistani nationals living lawfully in Romania who were declared undesirable and deported based on terrorism allegations.  The Court found a violation of their right to information about the reasons for expulsion since there was no permission for them to access important documents (classified as ‘confidential’) concerning their case. [October 15, 2020] 

European Court of Human Rights | The Court indicates interim measures in Nagorno-Karabakh conflict

Following a further escalation of the conflict in Nagorno-Karabakh, the Court indicated interim measures for Turkey and all states involved in the conflict to comply with their obligations under the ECHR and to refrain from actions that breach Convention rights of civilians. [October 06, 2020] 

On 7 October 2020, Turkish authorities requested the Court to lift the interim measures indicated concerning the Nagorno-Karabakh conflict.  Reiterating the imminent risk of irreparable harm and urgency of the situation, the Court rejected Turkey’s request to lift any part of the indicated interim measures. [October 14, 2020] 

AFRICA 

African Commission on Human and People’s Rights | The Commission welcomes the landmark decision of the Tunisian court to remove discriminatory reference from a surname

The Commission welcomes the decision of a Tunisian Court to authorize the removal of the word “Atig” (“liberated by”) from the identity documents of the 81-year-old Karim Dali.  This word has been used on identity documents to mark individuals as descendants of slaves.  According to the Commission, this decision is a major step towards the fight against discrimination and respect for dignity, as per Articles 2 and 5 of the ACHPR. [October 22, 2020] 

African Commission on Human and People’s Rights | Concerns about human rights violations by law enforcement institutions in Nigeria

The Commission calls on Nigeria to take the necessary measures to address the alleged human rights violations committed by the Special Anti-Robbery Squad (SARS) of the Nigerian Police Force.  The Commission calls for a dissolution of the SARS but also recommends measures for reforming the unit and investigating the alleged violations. These violations include, among others, extra-judicial killings, torture, and unlawful arrests.  [October 14, 2020] 

THE AMERICAS 

Inter-American Commission on Human Rights | Publication of practical guides on human rights in the context of COVID 19

Through its Rapid and Integrated Response Coordination Unit on COVID 19 Pandemic, the Commission has been publishing a series of handbooks on public policy recommendations and practical guidelines in response to COVID 19.  The most recent guide addresses standards to ensure respect for the grieving, funeral rites, and memorials of those who died during the COVID 19 pandemic. [October 15, 2020] 

Inter-American Court of Human Rights | Argentina held responsible for the illegal, arbitrary, and discriminatory detention and subsequent death of an afro-descendent person

The Court accepted the full acknowledgment of Argentina for its responsibility in violation of the rights to life, personal integrity, and personal liberty of José Delfín Acosta Martínez, who died in custody following his arrest and detention in 1966.  The Court has ordered Argentina to provide reparation and to train its police force against racial profiling and detaining people of African descent. [October 14, 2020] 

Inter-American Commission on Human Rights – IAComHR | Concern about threats to freedom of expression of journalists in Nicaragua

Two new bills have been presented before the Nicaraguan National Assembly that raise concerns about the freedom of expression of journalists and the media in Nicaragua.  Additionally, the Commission and its Office of the Special Rapporteur for Freedom of Expression (RELE) have observed an increase in criminal cases and financial sanctions against journalists and the media in Nicaragua. [October 07, 2020] 

UN MECHANISMS 

Committee on the Rights of the Child | Spain’s age assessment procedures violate migrant children’s rights 

Within 14 cases examined, the Committee found various violations of the Convention on the Rights of the Child, such as the right to identity, the right to be heard, and the right to special protection of children deprived of their family environment.  In all cases, Spain made erroneous assessments of the migrant children’s age and did not provide the minors with the necessary protection.  The Committee calls on Spain to prioritize the best interests of the child throughout the age assessment process. [October 13, 2020] 

Human Rights Council (Special Rapporteur on the rights of indigenous peoples) | Indigenous people have been left out of COVID 19 responses

The UN expert calls for pandemic emergency protocols to consider the rights of indigenous people, and to incorporate traditional indigenous knowledge into their response to COVID 19.  The Expert highlights the importance of allowing indigenous people to exercise their right to administer their health programs while providing them with accessible and non-discriminatory national health support. [October 12, 2020] 

Human Rights Council (Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression ) | Egypt uses terrorism trials to target human rights activists

During the COVID 19 pandemic, Egypt has been using exceptional “Terrorism Circuit Courts” to charge human rights defenders with acts of terrorism. Egypt uses these courts to silence the activists, and they also infringe many fair trial guarantees and allow for detention as a form of de facto punishment. [October 08, 2020]

October 2020

Monthly News Update: Southern Cameroons – October 2020

By: Kristoffer Burck, Junior Research Associate, PILPG-NL

This post collects updates from the past month concerning relevant developments in Southern Cameroons. The information is drawn from local and international online sources.

SCHOOLS IN SOUTHERN CAMEROONS

Attack on School | Bilingual School in Anglophone Region Attacked 

A bilingual school in Kumba town in the anglophone South-West Region of Cameroon was attacked by armed men on Saturday, October 24th. Different accounts report between four and ten deaths and dozens of wounded students. News outlets report also that the attackers arrived on motorbikes, wearing civilian clothes and carrying firearms and machetes. Witnesses describe indiscriminate attacks on students in classrooms. Among the victims are children as young as nine years old. [October 24th 2020]

Attack on School | Disagreement between Government and Separatists regarding responsibility for the attack

Different separatist groups have declared that the military is responsible for the attack on a school in the South-West region. Prominent actors, like Ayuk Tabe and the Southern Cameroon Civil Society Consortium, have alleged that the government forces conducted the killings at a bilingual school, labelling the attack a “genocide”. 

The Cameroonian Minister for Communications alleges that the Amazonian separatists conducted the attacks. In the same statement, he dismisses claims that the government forces might have been responsible. 

There are contradicting witness reports and no definitive evidence to support allegations of either side has been presented yet. [October 25th 2020]

Reopening of Schools | Government Officials Declare Schools are Opened

According to government officials, some schools in the anglophone North-West and South-West regions of Cameroon reopened on October 9th. A majority of schools have been closed for four years as a result of the ongoing conflict. Some anglophone activists backed reopening, while other factions remained reluctant to support the move, citing concerns about influence of the Cameroonian government on curricula. [October 9th 2020] 

Reopening of Schools | Teachers Refuse to Return

Attempts to reopen schools in the anglophone regions are met with resistance by teachers. More than 3.000 primary and secondary school teachers did not report to their schools in the first week, citing security concerns. The Cameroonian government offered the military transportation to schools, a move teachers have described as insufficient. [October 11th 2020]

POLITICAL OPPOSITION IN SOUTHERN CAMEROON

Opposition |  OHCHR Experts Call for Release of Opposition Figures 

High level experts of OHCHR express concern for the detention of opposition figures following protests in September. The press release from October 12th calls for the immediate end to detention of approximately 200 protesters. It further calls for an independent investigation into human rights abuses, allegations of forced disappearances, and ill-treatment of protesters. The experts specifically request the end of enforced house arrest of the opposition leader Maurice Kamto. [October 12th 2020]

Opposition | Opposition Leader Urges Supporters to Continue Resistance

In a rare statement, opposition leader Maurice Kamto addresses his supporters and proclaims that the resistance towards the current government will continue. As he is currently placed under effective house arrest, Kamto voices his optimism that he will win ongoing legal disputes on the illegality of his detention. [October 22th 2020]

October 2020

Monthly News Updates: Domestic Prosecution of International Crimes - October 2020

By: Alexandrah Bakker, Junior Research Associate, PILPG-NL 

This month saw prosecutions initiated in several states for international crimes. Most of these cases are in the early stages. However, the Bosnian state court convicted a former Serb Army commander for aiding genocide. 

EUROPE

Bosnia and Herzegovina | Bosnian state court convicts former Bosnian Serb Army battalion commander for assisting in genocide

The Bosnian state court sentenced Srecko Acimovic, former commander of the Bosnian Serb Army, to nine years in prison.  The court found that Acimovic knowingly assisted in detaining and killing over 800 Bosniak men from Srebrenica in July 1995,. [October 16, 2020] 

Bosnia and Herzegovina | Former Bosnian Serb reservist police officer on trial for crimes against humanity, pleads not guilty  

Predrag Bastah, a former officer in the Public Security Station in Vlasenica,  pled not guilty during his trial before the Bosnian state court for the killing of 37 Bosniak civilians.  Bastah is already serving a 22-year sentence for war crimes. [October 15, 2020]

France | Reports of French court’s willingness to try Rwandan doctor or genocide and crimes against humanity

Reports suggest that Eugène Rwamucyo, accused of being a member of the war committee that planned the genocide of Tutsis in southern Rwanda, will face charges of genocide and crimes against humanity before the French Cour d’Assises.  In 2007, Rwandan courts sentenced Rwamucyo in absentia to life in prison for his participation in the 1994 genocide, but the French courts refused to extradite him. [October 15, 2020]

Germany | NGOs file criminal complaint against the Syrian government for chemical weapons attacks

The Open Society Justice Initiative, the Syrian Center for Media and Freedom of Expression and the Syrian Archive filed a criminal complaint with the Office of the German Federal Prosecutor for the use of chemical weapons in Syria.  The complaint specifically relates to attacks using sarin in Ghouta in 2013 and in Khan Shaykhun in 2017. [October 7, 2020] 

THE AMERICAS

Ecuador | Confederation of Indigenous Nationalities of Ecuador files lawsuit against President Moreno for crimes against humanity

The Confederation of Indigenous Nationalities of Ecuador filed a the lawsuit accusing Ecuadorian President Moreno and other officials (including the Defense Minister) of crimes against humanity allegedly committed during the October 2019 protests. [October 13, 2020]

Internet Shutdowns and the Legality of Limiting the Right to Information

By: Diana Tuon Sposito, Junior Research Associate, PILPG-NL

The right to information is one of the rights protected under the scope of the fundamental human right to freedom of expression.  Respecting this right is essential for the enjoyment of several other rights, including cultural, social, and economic rights. However, people’s right to information may face a threat of violation when state authorities arbitrarily shut down the Internet, which happens more frequently than imagined. In this sense, this article analyzes the lawfulness of limiting the right to information in the cases of the worldwide phenomenon of Internet shutdowns.

The Right to Information

Under international human rights law, the fundamental human right to freedom of expression includes the right to have an opinion, which is the only unrestrictable right, as well as the right of freedom to seek, impart and receive information and ideas at any form.

As provided by Article 19 of the International Covenant on Civil and Political Rights (ICCPR), the right to freedom of expression can only be limited if based on one of two grounds: either to respect the rights or reputations of others; or to protect national security, public order, or public health and morals. However, even if falling under one of these two situations, for a restriction to be lawful, it needs to pass in the limitation test.

According to the General Comment 34 of the Human Rights Committee, the basic principles that regulate a lawful restriction are (1) legality, which requires the restriction to be prescribed by law; (2) legitimate aim, meaning that it needs to fall under a legitimate public interest; (3) necessity and proportionality ; and, finally, (4) the limitation has to be an exceptional measure.

The Limitation Test

Moreover, claiming a threat to national security or public safety so to legally shut down the Internet does not suffice. State parties to the ICCPR cannot invoke such grounds to suppress public information when it would not harm national security. 

Furthermore, The Human Rights Council (HRC) has manifested that access to information is critical in times of crisis, and that state authorities need to make exceptional efforts to protect journalists’ work to impart information. The HRC has also claimed that broad restrictions on access to the Internet cannot be based on the grounds of public order or national security.

In that sense, a limitations test has been established to assess the legality of a restriction to the rights protected by freedom of expression. For a restriction of the right to information to be considered legal, it must satisfy two conditions. First, the restriction must be extremely necessary, and the only possible manner to achieve protection for the situation that generated the need. Second, the  restriction has to be proportionate and the least intrusive option possible, with regard to considering the form of expression and the objective it wants to achieve.

Internet Shutdown

Internet shutdowns are intentional blockings or interruptions of Internet access or Internet-based communications for a specific population, location, or mode of access. In this way, the Internet becomes inaccessible or unavailable, either nationally or locally. This usually occurs in an attempt by a government to control the flow of information within a specific locality.

In 2019, 1,706 days of Internet access were disrupted by 213 Internet shutdowns across 13 states. The most common reason for Internet shutdowns that year was protests. Other common justifications are public safety, national security, and disrupting fake news.

During the COVID-19 pandemic, for instance, states like India, Bangladesh, and Myanmar have shut down the Internet as a measure to control the flow of information during the pandemic. According to ARTICLE 19, this was an attempt to diminish criticism of decisions taken during this period, hide corruption, extend the deadline for response, and a non-prioritization from governments to inform and be transparent. 

However, in most states that adopted internet restrictions as a way of dealing with the pandemic, the restrictions were not lawful since these measures were neither properly based on any of the grounds allowed, nor passed the limitation test. Considering the relevance of this pandemic, blocking the Internet refrained people from having access to updates on health measures, working remotely, or even communicating with family members. This means that the measures had a direct impact on the people’s right to information, and also stopped the media from informing its audience.

Moreover, it was not necessary nor proportionate, since there are less intrusive measures to deal with the pandemic, such as improving health facilities and giving information about precaution, which could have also been made available through the Internet.

Conclusion

Not only during the COVID-19 pandemic but in all circumstances, international law does not allow for unlimited restrictions on the right to information. In this sense, internet access providers or governments cannot block, slow down, or discriminate internet traffic associated with particular content as a way of restricting the user’s right to information indiscriminately.

Any restriction to the right to information needs a justification under one of the two grounds provided by Article 19, as well as passing the limitation test.. In most cases, internet shutdowns constitute a violation of the right to freedom of expression since they unlawfully restrict people’s right to receive, as well as the media’s right to impart, information of any kind.