Archive for Asia and the Pacific – Page 2

Death Penalty for Child Rapists in India: Populist, Hasty, Counterproductive

by Shardool Kulkarni, a law student at the University of Mumbai

This January, an eight-year-old girl hailing from a minority shepherding family in India was abducted, gang raped and brutally murdered in the Kathua region of Jammu and Kashmir. In the subsequent months, the incident generated polarized reactions in India and around the world, with public outcry juxtaposed against the response from individuals in authority and alleged politicization of rape owing to the victim’s minority status. The ensuing public discourse has placed the ruling dispensation headed by Prime Minister Narendra Modi under intense scrutiny, particularly in relation to the government’s stance and policies regarding child rape.

In April 2018, the Criminal Law Amendment Ordinance, 2018 was promulgated. The said ordinance brought in several changes to the existing legal framework pertaining to child rape in India, the most significant being the imposition of the death penalty as punishment for rape of a girl below the age of twelve years. The move, while hailed by some as an example of the government’s toughened stance on child sexual abuse, was criticized by academics, judges, NGOs and legal practitioners as being likely to worsen the plight of victims of child sexual abuse.

Disincentivising Reporting

The Kathua rape case involved the victim being abducted, drugged, gang-raped and brutally murdered by eight persons, including four policemen. However, it is pertinent to note that this is not the norm when it comes to instances of child sexual abuse: according to the National Crime Records Bureau of India, 95.5 percent of rapes are committed by persons known to the victim. The perpetrator of abuse is not the figurative shadowy stranger who strikes fear into the minds of the public, but rather the more closely known devils such as parents, older siblings, teachers, neighbors, or family friends. Victims of rape aged below twelve years are also unlikely to report a crime unless an older family member does so on their behalf. The likelihood of this happening is already low and could be diminished further if the consequence of reporting is the death penalty. As such, the amendment is likely to push the already underreported crime of child sexual abuse deeper into the chasm of unspoken, unacknowledged secrets of Indian society.

A Death Sentence for Victims?

The ordinance seemingly also ignores the possibility that making the act of raping a girl below twelve years punishable by death, a punishment usually reserved for murders, could encourage perpetrators to kill their young victims. Rape is an exceedingly difficult crime to prosecute if the only witness in most cases, the victim, is dead. While it may seem counterintuitive that a rapist would murder his or her victim and increase his or her chances of being sentenced to death, the heightened risk of being caught if the victim survives and thereby receiving the death penalty anyway could, in the opinion of some, prompt more rapists to kill their victims.

Indian students protest against rape in India in 2015. Sexual assault of women has been an ongoing issue in India. // Sajjad Hussain // AFP Photo

Following the enactment of the Criminal Law (Amendment) Act, 2013, the term “rape” has been accorded a wider connotation, including not only the traditional notion of penetrative sex but also other forced sexual acts such as fellatio. Thus, “rape,” as defined by the Indian Penal Code, is unrelated to the risk of death and need not necessarily be an act that may result in the death of the child owing to the sheer physical violence accompanied by it. Placing the punishment for raping a child on the same pedestal as the punishment for murdering a child might simply incentivize more abusers to ensure that their victim does not live to tell the tale.

Gender Bias: An Evidence of Populism and Apathy

Most media outlets in India carried news of the government’s decision on child rape. Interestingly, the ordinance only makes the rape of girls below the age of twelve years punishable by death, casting a blind eye toward male victims who constitute 52.94 percent of the victims of child sexual abuse in India. This sidelining of male victims points to a knee-jerk response to momentary outrage, a clear manifestation of the skewed discourse surrounding sexual violence that too often turns a blind eye to male victims. 

Subsequent to the promulgation of the ordinance, the Central Government announced its intention to amend the Protection of Children from Sexual Offences Act (POCSO) in order to make the changes brought in by the ordinance apply to male victims as well. While the move is a welcome one, it further highlights the fact that the policy in question was a hasty move.

Death Penalty: An Ineffective Deterrent

In its 262nd report, the Law Commission of India concluded that there was no evidence to suggest that the deterrent effect of the death penalty was any better than that of life imprisonment. In the United States of America, for example, states that did not impose capital punishment for homicide were found to have lower homicide rates than states that did impose capital punishment. As such, the presumption that the death penalty acts as an effective deterrent is fundamentally flawed.

Moreover, presuming that death penalty does indeed deter child sexual abuse, the deterrent effect is watered down significantly in India by poor case disposal and conviction rates. In its 2016 report titled “Crime in India,” the National Crime Records Bureau revealed that the conviction rate under the POCSO Act is an abysmal 28.9 percent. To make matters worse, pendency in cases of child rape was 89.6 percent. Moreover, there are no witness protection programs in place, and no probe has been made into the functioning of Child Welfare Committees set up by the government. Imposing stringent punishments becomes meaningless if the law remains a mere dead letter.

Several persons in authority responsible for the ruling dispensation, including two ministers in the State of Jammu and Kashmir, protested against the arrest of the accused in the horrific Kathua rape case. The apathy of the police authorities, the statements made by persons in power and the communal color that the entire incident acquired created a strong public sentiment against the ruling party on the issue of child rape. In this light, the Criminal Law (Amendment) Ordinance, 2018 can only be regarded as a hasty and populist move to placate the outraged public without addressing, and moreover possibly aggravating, the plight of the innocent victims of these horrific human rights violations.

Shardool Kulkarni is in his penultimate year as a law student of the five-year law course at the University of Mumbai. He holds the distinction of being the youngest Indian to have deposed before a parliamentary committee in Indian legislative history. In the past, he has worked as a law trainee under Justice F. M. I. Kalifulla, Judge, Supreme Court of India, and as an Attaché to the Office of the Speaker, Lok Sabha, Parliament of India.

What does the Rohingya crisis mean for Myanmar’s Nobel Laureate?

By Olivia Heffernan, a master’s candidate at Columbia University School of International and Public Affairs 

On November 14, the Weatherhead East Asian Institute at Columbia University hosted a lecture titledUnderstanding the Rohingya Crisis.” Panelists addressed the historical roots of ongoing violent conflict in Myanmar, including the “othering” of the minority Rohingya Muslims and escalating fear of Islam, as well as the responsibility of the international community to respond to the country’s human rights crisis. The lack of response raises questions about the international community’s commitment to protecting peace and precipitates another interesting discussion: What does an ethnic cleansing overseen by a Nobel Peace Prize winner mean for the credibility of the award itself?

Aung San Suu Kyi accepts her Nobel Peace Prize in 1991. // Flickr

Daw Aung San Suu Kyi, Myanmar’s de facto leader and first state counselor, was conferred the Nobel Peace Prize in 1991 for her admirable fight for democracy in Myanmar during 15 years under house arrest as a political prisoner. However, actions speak louder than words. Aung San Suu Kyi’s complicity to the killings and expulsions of Rohingya Muslims raises questions about her promise to ensure peace and democracy in Myanmar.

Panelists of the event provided context for the current crisis and cited startling statistics of pervasive and systematic violence against the Rohingya, violence that constitutes ethnic cleansing by U.N. standardsHuman Rights Watch reports that military repression has resulted in the deaths of thousands of Rohingya Muslims, forcing at least 600,000 people to flee their homes since 2016. The U.N. continues to deliberate on whether the killings constitute a genocide. Furthermore, panelist Mayesha Alam mentioned that no state besides Indonesia criticized the government of Myanmar for its inhumane treatment of the Rohingya during the recent ASEAN summit. The lack of international response delegitimizes international covenants such as the Universal Declaration of Human Rights and principles such as the Responsibility to Protect.

In an open letter to Aung San Suu Kyi, fellow Nobel Peace Prize winner Archbishop Desmond Tutu wrote, “My dear sister: if the political price of your ascension to the highest office in Myanmar is your silence, the price is surely too steep.” Malala Yousafzai, another Nobel Peace Laureate, also expressed her disappointment in a statement on Twitter: “Over the last several years, I have repeatedly condemned this tragic and shameful treatment. I am still waiting for my fellow Nobel laureate Aung San Suu Kyi to do the same. The world is waiting and the Rohingya Muslims are waiting.” Similarly, Kenneth Roth, executive director of Human Rights Watch and long time supporter of Aung San Suu Kyi, has said, “Now that she’s in power, she symbolizes cowardly complicity in the deadly tyranny being visited on the Rohingya.”

Fellow Nobel Peace Prize laureates like Malala Yousafzai have been critical of Daw Aung San Suu Kyi’s lack of response on the Rohingya crisis // Flickr

In her first public address since the violent military crackdown on the Rakhine state, Aung San Suu Kyi’s statements contradicted her actions. She displaced blame and denied culpability, claiming that the Myanmar government “condemns all human rights violations and unlawful violence.” She also made false claims, assuring the audience that Rohingya Muslims did not face discrimination and had equal access to healthcare and education— a blatant lie according to international human rights advocates. Perhaps more concerning, in the same speech, Aung San Suu Kyi announced that despite widespread condemnation, she does not fear international scrutiny.

Despite ubiquitous disappointment in Aung San Suu Kyi’s leadership and calls for the revocation of her award, former Nobel Prize committee member Gunnar Stalsett defended the committee’s choice: “The principle we follow in the decision is not a declaration of a saint…when the decision has been made and the award has been given, that ends the responsibility of the committee.”

However, Stalsett’s above statement is dangerous— it insinuates that the Nobel Peace Prize committee has no interest in the actions of their awardees post-conferment. Not condemning Aung San Suu Kyi for her direct contradiction of the award’s values discredits the legitimacy of the prize. Recipients of the Nobel Peace Prize should be held to higher standards and accountable for their actions. At the least, they should face repercussions for committing injustices. While a Nobel Peace Prize has never been revoked, in this case, rescinding the award appears to be one of the more obvious and symbolic means of sending an important message to Aung San Suu Kyi: reputation and power do not acquit anyone of wrongdoing in the face of human rights violations.

Olivia Heffernan is a student at Columbia University School of International and Public Affairs concentrating in social and urban policy and specializing in journalism. She is president of the Criminal Justice Reform Working Group (CJR) and has previously worked for human rights-related nonprofits. Olivia is originally from Washington, D.C., but she has spent multiple years living abroad.

Lankesh and Free Speech: Gagged, Tortured and Shot

By Malcolm Katrak, a guest blogger and judicial clerk to Justice S.N. Variava

The Asian News International (ANI) tweeted on September 5th, “There has been a shootout at Gauri Lankesh’s house this evening; she is no more. Body found in the veranda.” Another tweet swiftly followed, “This is a cowardly act, she is just a writer & journalist, not a terrorist or a naxalite.”

Senior journalist Gauri Lankesh was shot dead on September 5, 2017 // Twitter

Gauri Lankesh, a senior journalist from Karnataka, had been portrayed as a critic of Hindu right-wing extremism by journalists and news outlets around the country after she was shot dead in Karnataka, India. A total of seven bullets were fired, four missing the target and three hitting Lankesh. The Chief Minister of Karnataka termed the murder as brutal and further stated that this was an “assassination on democracy.”

Freedom of press and protection of free speech has long been debated in the halls of parliament and the corridors of the judiciary in India. Be it the First Amendment in the United States, Article 19 (1) of the Constitution of India, or the International Covenants, there has always been an issue with respect to the limitations of free speech and expression. The horrendous and brutal attack on Gauri Lankesh reminded the country of the horrors of the emergency, where the press was stifled and gagged until they choked.

What is termed as the fourth pillar of democracy now again looks subservient to the other three pillars. Two weeks ago, Madhya Pradesh police arrested nineteen-year-old Abhishek Mishra for attacking the Chief Minister of Madhya Pradesh on social media regarding the recent failure of demonetization carried out by the Narendra Modi government. Further down the timeline, two months ago, there was a gratuitous misuse of legislative privilege in Karnataka, when two journalists were sentenced to jail terms by the Karnataka assembly for publishing defamatory materials.

Justice Louis Brandeis in the U.S. Supreme Court case of Whitney v. California rightly stated that those who won independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. Liberty was valued both as an end and a means; they believed liberty to be the secret of happiness and courage to be the secret of liberty. The current predicament among the public is to be silent until something happens.

A protestor holds a sign at the #NotInMyName Protest honoring journalist Gauri Lankesh // Joe Athialy // Flickr

A few months ago, the Supreme Court of India in the Subramanian Swamy case held that Section 499 of the Indian Penal Code, which deals with criminal punishment for defamation, is not disproportionate and not ultra vires (beyond the powers) of the provisions of the Constitution. This may have run against the international trend of decriminalizing defamation albeit the court proceeded on the basis of reasonableness. On the other hand, in Shreya Singhal, the Apex court proceeded to strike down Section 66A of the Information Technology Act, 2000 as being violative of Article 19(1) of the Constitution. Article 19(1) enshrines the fundamental right of free speech and expression.

In the past, the Supreme Court of India as a watchdog has been cognizant of such cases where press was gagged and whistleblowers blown. The Supreme Court must realize that free speech and expression is the basis of human rights, the root of human nature and the mother of truth. Protection of free speech cannot be done by imparting judgments but by imparting justice for those who stood to protect it.

#NotInMyName protest celebrating the life of journalist Gauri Lankesh // Joe Athialy // Flickr

On a sympathetic note, the death of Gauri Lankesh has received considerable angst amongst the public with candle light marches and condolence meetings throughout the country. On the other hand, there are those who have taken to social media to post pictures of Gauri Lankesh with students of Jawaharlal Nehru University, especially the ones alleged to have committed sedition, with the tagline, “what goes around comes around.” A few others have tried to connect the dots with Gauri Lankesh’s defamation case and Amit Malviya’s tweet on November 29, 2016, which reads as follows, “Prahlad Joshi, BJP MP from Dharwad, gets Gouri Lankesh convicted in a defamation case… Hope other journos take not.” Blaming any right wing Hindu group for the murder of Lankesh would be an unsubstantiated allegation. Unfortunately, the way circumstances are panning out, these unsubstantiated allegations may be the reason for  journalists’ convictions.

Men feared witches and burnt women, politicians fear free speech and shoot writers. Unfortunately, Michelle Obama’s words ring bells of fear and woes: “I have seen how leaders rule by intimidation. Leaders who demonize and dehumanize entire groups of people often do so because they have nothing else to offer and I have seen how places that stifle the voice and dismiss the potential of their citizens are diminished: how they are less vital, less hopeful, less free.”

Malcolm Katrak is a law clerk to Justice (Retd.) S.N. Variava, former judge of the Supreme Court of India. In the past, he has worked with Darius Khambata, former Vice-President of the London Court of International Arbitration and Justice S. J. Kathawalla, judge of Bombay High Court. 

The Saddest Bride I Have Ever Seen…

By Sameera Uddin, graduate student of Human Rights at Columbia University


“In Bangladesh, 65% of girls are married before they turn 18.” (UNICEF)

“She was withdrawn, quiet, and appeared very sad throughout the entire day,” said Allison Joyce, an American photojournalist who documented the wedding of 15-year-old Nasoin Akhter to a 32-year-old man, in her blog. The international community greeted Joyce’s photos of Nasoin’s wedding with shock and disappointment.

According to UNICEF, nearly one-third of Bangladeshi girls are married by the age of 15, the highest rate for that age group in the world. South Asia is home to almost half (42 per cent) of all child brides worldwide, and India alone accounts for one-third of the global total. Currently, it is illegal for girls to get married under the age of 18 in Bangladesh, yet the statistics suggest that the reality is otherwise.

child_marriagesWhy is it that a country often highlighted as a development success story is facing these challenges? Bangladesh has reduced its poverty rate, has achieved gender parity, and is improving its record on women’s rights—but the country still faces huge challenges when it comes to stopping such practices. Bangladeshi Prime Minister Sheikh Hasina announced last year that she would end child marriage in the nation by 2041, but a recent Human Rights Watch report points out that the government has not taken radical measures to stop the practice. HRW reports that the Bangladeshi government has not proposed any plan as to how it will implement this countrywide.

Many local government officials also fail girls at risk. Awareness is growing that marriage of girls under age 18 is illegal under Bangladeshi law, but this awareness is undermined by the widespread complicity of local government officials in facilitating child marriages. Interviewees consistently tell stories of local government officials issuing forged birth certificates showing girls’ ages as over 18, in return for bribes of as little as US $1.30. Even when marriages are prevented by local officials—as they sometimes are—families find it easy to hold the marriages in different jurisdictions. One would assume that, in order to stop such practices, the laws should be better enforced. Contrary to this expectation, however, the Prime Minister’s cabinet has announced a plan to lower the legal marriage age from 18 to 16. The rationale for reducing the age limit is that the Bangladeshi government feels it is challenging for a country like Bangladesh to effectively reduce child marriage through stricter laws alone.

And it is true that their remain many challenges to stopping this practice. Child marriages are not a new phenomenon in Bangladesh. Oftentimes, families who cannot afford education—though it is supposed to be “free”—are forced to pull their children out of school and either put them to work or marry them off. Poor communities in Bangladesh are forced to send their sons and daughters to work because they simply do not have the luxury to feed their families while also ensuring that their children receive proper education. This is the reality of many families in Bangladesh. Elementary and secondary schools in the country are under resourced. This also has to do with cultural norms because parents think that since their daughters will not be working after they get married, then there is no point of sending them to school in the first place.

But there is more to it than that. As a native of Bangladesh, I have seen first hand why many of my neighbors would marry off their daughters at a very young age. Surprisingly, oftentimes it is the wealthy families that decide to do this, not because they cannot afford education for their girls, but rather because these girls are seen as a “burden.” In Bangladesh, the birth of a son is more favorable than that of a girl. Giving birth to a girl is still seen as a curse in many parts of the country.

As a girl passes the age of 18, her parents are faced with societal pressure, particularly from the girl’s family and relatives. It is imperative to understand the social stigma girls face in a patriarchal society like Bangladesh. In Bangladeshi families, fathers are the ultimate decision-makers when it comes to their children. Though this is becoming obsolete in the urban parts of the country, the structure is still deeply engrained in the mindset of many Bengalis. In Bangladesh, a girl is considered old when she turns 20. Families are usually stigmatized for not caring about their daughters, meaning by the time a girl turns 18, it is the job of the father to get her married off. If he does not fulfill this duty, he is usually shamed by society and relatives. Once a girl is older, boys and older men harass her on her way to school. She is not allowed to work or travel on her own. These practices stem from the deep-rooted customs and traditional practices of Bangladesh.

In addition to societal pressure, the dowry concept is a main cause behind the early marriage of girls. Even though the practice is illegal, dowries are still a norm in the rural areas of the country. Dowry payments are usually smaller when the girl is young; however, once she gets older, it becomes more difficult for families to marry off their daughters because of the increase in the amount of dowry needed. If a family is not able to pay the proper amount, the daughter may be abused by her in-laws. Therefore, in order to escape high dowry expenses, poorer families opt for getting their daughters married at an early age.

These are some of the reasons why the Government’s recent decision deserves strong scrutiny from the international community. Prime Minister Sheikh Hasina in “Girl’s Summit 2014” pledged to reduce, and ultimately eliminate, child marriage. However, the PM’s cabinet proposal to add a clause in the Child Marriage Restraint Act is contrary to this pledge, as it would lower the legal age of marriage for girls from 18 to 16 under special circumstances, such as if the girl is pregnant or “if it is their parents’ wish.” If this law is passed, Bangladesh will not only squander the progress it has made so far, but it will also lose another generation of promising girls.

From a human rights perspective, Bangladesh acceded to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1984, which stipulates 18 as the minimum marriage age. Bangladesh also signed the UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages in 1998. This Convention requires signatory states to obtain consent from both parties entering into a marriage and to establish a legal minimum age for marriage.

However, international laws and treaties are effective only to an extent in countries like Bangladesh. The government itself has very little implementation power in a country that still operates under a traditional system. In order to eliminate child marriages, the government needs to effectively engage the parents in decision-making and alter the current mindset by educating parents on the importance of educating their children. In addition, parents need to be educated on the health risks that girls face when they are married at an early age. It will be difficult for the government to convince families to abruptly shift their mindset to support for marriages at a later age.  They will require more engagement at a macro level before they will support a policy that does very little when it comes to actual implementation and execution. In instances like this, it is imperative for policy makers in Bangladesh to approach its citizens from a cultural competency perspective and align their priorities with the community we are trying to impact.

As a Bangladeshi myself, I understand the cultural context in which the country is operating. Though I was lucky to be born in a family that did not see me as a burden and wanted the best education and lifestyle for me, there are very few families who share this outlook. Because my parents were educated and engaged in the political landscape of the country, I know one of the effective ways for this practice to stop is for the government to really understand the traditions of the country before attempting to normalize an international standard that means very little to the average family in Bangladesh.


Sameera Uddin is a graduate student of Human Rights at Columbia University, and an operations analyst at NYC Mayor’s Office of Immigrant Affairs. Her research focuses on immigrant students’ access to higher education in the United States.

The Enforced Disappearance of Human Rights in the World

By Marina Kumskova, graduate student of human rights at Columbia University


1Between March 2002 and July 2004, eight individuals of Chechen origin were “arrested by groups of armed and masked men in a manner resembling a security operation”. Pointing guns at the family members, the soldiers took men away in military carriers. Similarly, on April 28, 1991, Jeremías Osorio Rivera was officially detained by a military patrol when he went to the village of Nunumia to take part in a sports event. He was accused of making a terrorist threat for carrying an officially registered gun and explosives materials.

None of these men have been seen or heard from since, despite their families’ tireless efforts to find them. In both cases, the males were abducted and detained by armed men without arrest warrant, held in solitary confinement under mortifying circumstances for unidentified periods of time, and deprived of legal assistance or any other contact with the outside world. In both cases, after the abduction of the individuals and in the absence of any information about their whereabouts, the domestic criminal justice systems in the respective countries did not take any measures to provide remedies for determining the fate of the disappeared individuals. They also failed to safeguard the relatives’ right of access to justice and right to know the truth through effective investigation and through holding accountable those responsible for the crimes.

The aforementioned cases are typical examples of the crime that is internationally known as “enforced disappearance.” Today, this crime continues to take place in 88 states all over the world, and constitutes a continuous violation of multiple rights. Enforced disappearances emerged in international discourse after World War II, and the narrative of violations carried out by Latin American military dictatorships in the 1960s and 1970s shaped the development of this discourse. Since that time, the international community has begun to acknowledge that a wide range of human rights of both the victims and their families are denied by the act of enforced disappearance, claiming that states should be held accountable for their failure to prevent the disappearances, to investigate them, and to punish the perpetrators in light of their obligations under several international agreements.

Despite the number of treaties and agreements signed in order to establish an understanding as to the nature of enforced disappearance and determine state responsibilities, the international community has repeatedly failed to create a conceptual framework for enforced disappearances and to establish monitoring mechanisms that can proactively address the problem. This is likely due to political influence in the shaping human rights norms.

The context of the crime of forced disappearance implies that the perpetrator has an unfair advantage over the victim, because evidence is often under the exclusive control of the perpetrator, who typically has intent to hide it. As a consequence of this distinctive characteristic of disappearances, it is up to international human rights bodies, such as the Inter-American and European Courts of Human Rights, to promote and protect individuals from this violation.

2Unfortunately, the details and procedures of implementing judgment are specific to each Court. Both courts can and do force states to pay financial compensation to family members of disappeared persons. However, the whereabouts of victims have never been established, and required remedies have never been fulfilled, causing severe suffering of the victims’ loved ones. Under pressure from the Inter-American Court of Human Rights and the Inter-American Commission, Peru adopted legislative amendments and provided special reparation policies. Overall, the Inter-American system has managed to develop valuable jurisprudence that still requires more work in terms of influencing state compliance. On the other hand, the European Court was not able to require any action to be taken by Russia as result of the judgment in the joint case of the enforced disappearance of the eight Chechen individuals referenced above, since it issues only declaratory judgments. Russia has failed to adopt any measures to ensure that no similar violations take place in the future, that violators are adequately deterred, or that family members of the disappeared persons are provided with necessary remedies.

Overall, despite the gravity of the crime, enforced disappearance continues to be ineffectively addressed by regional and international mechanisms. Unfortunately, international human rights courts cannot do much to prevent this crime from happening, especially when the courts investigate cases in which one of the parties is a so-called “powerful” country. Even more unfortunate is the fact that the Courts fail to provide effective remedies to the family members of disappeared persons. While countless people around the world are subjected to injustices, international courts and human rights activists cannot do much about it unless states express their willingness to comply with the judgments. In this light, the most promising method would be to lodge interstate complaints against the countries that are not willing to comply with recommendations or declaratory judgments by creating political pressure. However, the questions remain: which countries will be able to proceed with this legitimate measure without creating political tensions, and how can non-governmental organizations influence this process?

Marina Kumskova is a graduate student in Human Rights Studies Program at Columbia University and a research assistant at the Center for International Human Rights at John Jay College. In her research, she focuses on religious discrimination in the context of counter-terrorism policies.

A Review of The Act of Killing (2012): Trauma, Memory, and the Power of Filmmaking

By Daniel Golebiewski, graduate student of human rights at Columbia University


On March 8, 2014, Columbia’s School of the Arts, in collaboration with the Institute for the Study of Human Rights (ISHR), screened Joshua Oppenheimer’s 2012 documentary, The Act of Killing. This film was shortlisted for a 2014 Academy Award nomination for Best Documentary. On this evening, the audience had the chance to see the Director’s Cut and ask Oppenheimer questions regarding trauma, memory, and the power of filmmaking.

In 1965, Anwar Congo and Adi Zulkadry—Indonesian “gangsters” deriving their label from the English “free men” meaning to live on without punishment from the criminal justice system—accepted their role as leaders of the most well known killing squad in North Sumatra. In The Act of Killing, Oppenheimer invites these two gangsters and their comrades to reenact their assassinations of Chinese communists. They seem eager to create a film that uses humor and romance, as well as inspiration from their favorite movie genres like Westerns and musicals. In fact, they decide that they want to create more sadistic scenes than those that can be found in movies about Nazis, as well as more action scenes than those typical of James Bond films. Despite these disconnected intentions, the documentary effectively puts forth three important themes: the effects of trauma, the importance of memory, and the power of filmmaking.

Movie Poster

Movie Poster

Unlike his comrades, Anwar—the main executioner—fails to hide his pain. Although he dances the cha-cha, drinks alcohol, smokes marijuana, or dresses to impress, when it comes time for him to play a victim, he breaks down. He says that he feels what his victims must have felt and describes feeling as if he “were dead for a moment.” Although Oppenheimer points out that the victims’ torture was much worse because they knew that they were going die, Anwar tearfully says that he does not want the memories of what he did to come back to him. In fact, when he revisits the rooftop where he claims many of his killings took place, Anwar gags repeatedly and then asks himself, “Why did I have to kill them? I had to kill… My conscience told me that they had to be killed.” His memories continue to haunt him during a reenactment of a burning village.  Never expecting the scene would look so awful, he believes his victims have “curse[d] [him] for the rest of [his life],” meaning karma will come back to haunt him, whether during this lifetime or in his dreams. Anwar faces nightmares. He dreams about repeating his invented, simple method of wrapping a wire around his victim’s neck and pulling the wire from one end, suffocating the victim without a “bloody mess.” By using this method to kill almost 1,000 people, Anwar repeatedly dreams that he meets the ghosts of his victims face-to-face.

Oppenheimer wished to create a film that would force the Indonesian perpetrators to acknowledge that they killed thousands of communists, crimes for which they have not been held accountable. Thus, by allowing them to reenact their crimes in the manner and style in which they remember them, unlike a historical narrative, Oppenheimer tried to make “a documentary of imagination.” In other words, the film tries to blur the usual good vs. evil narrative often seen in this genre. As a result, the audience gets the chance to understand the perpetrators; in this case, Anwar is not solely a “killing machine” but has the capacity to repent for his past atrocities. Hence, the film argues that humans are complex and difficult to understand—Anwar appears proud to have been involved in events that have defined Indonesia but, at the same time, becomes ashamed when the victims’ families confront his actions. As Oppenheimer noted during the discussion, we all have a link to the perpetrators; in this case, when we buy products made from Indonesian palm oil, part of the cost goes to the Indonesian perpetrators, many having positions within the Indonesian government.

Oppenheimer’s The Act of Killing attempts to bring the Indonesian genocide to light through the reenactments of the former anti-communist perpetrators. Although Anwar shows signs of trauma, he and the gangsters continue to live as “free men,” or as one of them says, a life of “relax and Rolex.” Moreover, these gangsters believe that although they strangled their victims with a wire, they “were allowed to do it” and “the proof is [they] murdered people and were never punished.” In fact, for the people killed, they say, “there’s nothing to be done about it” and the victims “have to accept it.” As a result, many “never felt guilty, never been depressed, never had nightmares.”

One can only hope that The Act of Killing influences the Indonesian government and the international community to hold these “free men,” “gangsters,” “perpetrators,” or whatever else they call themselves, accountable for war crimes.

Daniel Golebiewski is a graduate student at Columbia University where he is pursuing a Master of Arts in Human Rights Studies. His interests are transitional justice and memory through the arts.



Chitwan National Park & the Displacement of Tharu Peoples

By Erica Bower, student at Columbia College


The following Photo Essay is an excerpt from a post I wrote on my blog while studying abroad through Cornell Nepal Study Program (CNSP) in the spring of 2013.

 Our stay in Chitwan National Park was truly a once in a life time experience—a scene straight from the discovery channel.

However, as incredible as this experience was from the perspective of a tourist, as a student of Human Rights and environmentally-induced displacement, Chitwan has an incredibly dark side.

In many ways, the case of Chitwan is the inverse of most instances of the environment-displacement under study in Nepal given that efforts for environmental protection, rather than environmental degradation, have caused massive displacement.

The brutal reality is that in order to create such a pristine National Park, the Nepali government has forcibly removed all of the Indigenous communities in the district.

The Tharu peoples have lived in the Chitwan region for hundreds of years, and have a rich cultural history tied to the jungle and physical location of Chitwan.

In fact, Tharu peoples are known throughout Nepal as “Son of the Earth.”

However, upon King Mahendra’s decision to make the park “protected,” the Tharu peoples were told they had to leave behind the land of their ancestors and every facet of their livelihoods.

During a visit to a Tharu museum, I was captivated by an exhibit about individual experiences of the Tharu peoples living outside of the National Park in “Buffer Zones.”  There are accounts of houses being burned and army officials dragging mothers and children away in extremely violent ways.

Today, there are efforts to incorporate Indigenous perspectives into conservation, as well as to ensure that displaced peoples retain their livelihoods and benefit from the increased tourism and income that is generated by the national park. For instance, the following photograph is a portrait of a Tharu family-owned business selling local honey.

I left the Tharu village and Chitwan Park with an immense sense of conflict.  As an environment appreciator, I am so amazed at the biodiversity and natural beauty of Chitwan, yet as a human rights activist, there is something deeply unsettling about this violation of rights and disruption of livelihoods.

While the discourse surrounding Climate Induced Migration and displacement considers the indirect anthropogenic contributions to Climate Change as a driver of movement to be a Human Rights violation, the parallel discourses surrounding the more direct development and conservation induced displacement must not be ignored.

As I kept finding again and again throughout my semester in Nepal, circumstances are far more complicated and deeply rooted in complex cultural histories than the surface “skin” that appears obvious to the naked eye.

Erica Bower is a senior at Columbia College majoring in human rights and sustainable development.  Her research interests focus on the nexus of environment and mobility, both in the context of climate-induced displacement in the mountainous communities of Manang and Mustang districts and the contrasting example of conservation-induced displacement in Chitwan National Park that reaffirms the inherent complexity in the displacement discourses.

“They Are Also Human:” An Afternoon with Human Rights Defenders from Burma

By Michelle Eberhard, graduate student of human rights at Columbia University


Burma is complicated.  Not only is it also known as Myanmar, the name it was given following a 1988 coup d’état that ushered in two additional decades of military rule, but this Southeast Asian nation is home to a population of over fifty million people belonging to more than one hundred and thirty-five different ethnic groups. Rather than embracing the diversity of its citizens, however, the Burmese government has instead systematically exploited ethnicity for economic gain and facilitated the creation of destructive divisions between peoples in order to further its own agenda.  A particularly vivid example of this is found in the 1982 Burma Citizenship Law, which permits the government to “decide whether any ethnic group is national or not,” thus condoning arbitrary discrimination against peoples it would prefer to marginalize.  While the international community has praised the progress Burma has made in recent years, specifically following its 2010 democratic elections, recent violence indicates that the change is a façade.

What does it take for change to become real?

Last month, the Féderation Internationale des Droits Humains/International Federation for Human Rights (FIDH) welcomed a delegation of four female human rights defenders from Burma to its New York office in an attempt to answer this very question.  Led by Ms. Debbie Stothard, Secretary-General of FIDH and Coordinator of the Alternative ASEAN Network on Burma (Altsean-Burma), these courageous women came to the United States to advocate for a stronger resolution on Burmese human rights issues.  Ms. Stothard was also accompanied by Ms. Seng Shadan, the 2013-2014 General Secretary of Kachin Women’s Association Thailand (KWAT); Ms. Wai Wai Nu, Rohingya activist, law student, former political prisoner, and the founder of Women’s Peace Network-Arakan (WPNA); and Ms. Ah Noh, deputy coordinator of KWAT and an activist from last year’s FIDH delegation.

As an intern with the International Coalition for the Responsibility to Protect, an NGO which, like FIDH, falls under the larger umbrella organization of the World Federalist Movement-Institute for Global Policy, I had the opportunity to attend a presentation these women gave while in New York, as well as to spend individual time with three of them later that afternoon.  Like any good student, I came to these interviews with a list of questions.  I soon realized, however, that my questions didn’t really matter.  What mattered was giving these human rights defenders a chance to be heard – something they are denied by their own government.

With that in mind, I decided to stop being the interviewer, and to instead just listen: because sometimes, when the right words cannot be found, it is best to let someone else do the talking.

Rohingya Persecution

“They don’t even recognize that we can exist,” Wai Wai Nu, a Rohingya originally from Rakhine State, located in the southwest corner of Burma, told me.  Arrested in 2005 at the age of seventeen due to her family’s attempts to help democratize Burma, Wai Wai proceeded to spend the next seven years of her life in prison before being released in 2012.  Since then, Wai Wai has been living in Rangoon, the former capital of Burma, where she dedicates her work to her own people, particularly Rohingya women, who are still in Rakhine.  “I think it is my responsibility to work with those vulnerable women; otherwise there is no other [voice]” for them.

The Rohingya have been “systematically subjected to many human rights abuses for many decades,” which has led to the conclusion by many that the Rohingya are “one of the most persecuted people on earth.”  Examples Wai Wai offered to show that this title was aptly earned include: the requirement to have official permission in order to be married; a 2-child limit for Rohingya families; restrictions on travel and freedom of movement, such as the inability to visit another village without official permission; forced relocation; confiscation of property; torture; extortion; physical and sexual violence; and exclusion from the education system. In addition, the 969 Buddhist National Movement, currently led by a radical monk named U Wirathu, has exacerbated attacks against Muslims, calling for Buddhists to rise up against what Wirathu calls a secret Muslim “master plan” to take over the country and Islamicize it.

Chased from their homes and livelihoods, many Rohingya have become internally-displaced persons (IDPs) and find themselves living in “squalid camps like prison,” starving, lacking access to healthcare, and totally segregated from Rakhine society. This is the goal for the Rohingya’s future as expressed by Burma’s president, Thein Sein.  In 2012, Sein even went so far as to shamelessly explain to the United Nations High Commissioner for Refugees (UNHCR) that the “best solution” for the Rohingya would be to put them in UN-sanctioned refugee camps and send them to another country.  Sein also asserted that he saw no need to change the 1982 citizenship law, under which the Rohingya are not recognized as being of the Burmese nationality. Without legal representation, property rights, or legitimate protection, the Rohingya, who “have no option other than fleeing” the human rights violations, leading to “voluntary exodus from the land,” are a weak and isolated people.  While Wai Wai notes certain successes in education and information sharing amongst those involved with her organization; however, her work remains difficult in the face of continued government persecution that seeks to silence her along with her people.

Kachin Marginalization: Avoiding a “Shallow Analysis” of Burma’s Ethnic Conflict

While the plight of the Rohingya has justifiably received increased media attention in the past months, this is not the only ethnic group that has experienced increased persecution in Burma.  As Seng Shadan and Ah Noh explained, the government’s economic plans have greatly impacted its relation with the people of Kachin State, whose territory borders that of China.

In particular, these women noted two reasons for the resumption of violence in Kachin State.  In March 2011, the Burmese army broke a seventeen-year ceasefire with the Kachin Independence Army (KIA) when it added extra security to protect a dam-building project it had recently agreed upon with China.  Despite the Kachin people’s objections, this project was begun, and with it came renewed fighting between the Army of Burma and the KIA.  A second related reason for the discord is the continued lack of self-determination in Kachin State, where the people of Kachin have no political rights, and whose armed group (the KIA) was previously forced to become part of the Army of Burma.

As such, major human rights abuses – including human trafficking, rape, torture, and murder – center on the issue of land, as well as the extraction of natural resources like oil, uranium, gold, and rubies.  Indeed, these resources are exploited by the government, and the people of Kachin are never compensated for them.  This injustice, coupled with the fact that the Kachin are being pushed from their homes, has only led to further instability for these persecuted people.

Members of the international community “all think that Burma is getting better and don’t want to talk about Kachin,” Ah Noh said.  “But for me, I don’t see…that there’s improvement.  I want the international community to pressure [the government] and to monitor it.”  She also emphasized that the Rohingya should be granted full citizenship. Seng Shadan, also a Kachin activist, echoed these sentiments.  Citing several of KWAT’s achievements, she noted that the publication of reports on human rights abuses has caused the Burmese government to be a “little bit more careful” in its actions and to admit that “it has made mistakes” – a break with the past, when the government simply denied all accusations of wrongdoing.  This shift can be attributed to the fact that “true information is presented now,” thanks to the reporting and work of organizations like KWAT.


Burma is complicated, but the world’s response shouldn’t be. In the end, the progress made by a newly democratic state is inconsequential if it still governs part of its people by undemocratic principles. “Better” is not good enough if certain populations are still excluded from the continuum of recognizable improvement.  Until “better” means better for everyone – including for the Rohingya and the people of Kachin State – there is still work left to do, because, as Wai Wai pointedly reminds us all, “they are also human.”

Michelle Eberhard is an M.A. candidate in the Columbia University Human Rights Studies program, concentrating in genocide.  She also interns with the International Coalition for the Responsibility to Protect.

Special thanks to FIDH for arranging an opportunity to speak with the Burma delegates.

Obama in Burma: Rewarding Cosmetic Changes?

By Hal Levy, undergraduate student at Columbia University

The White House moved with uncharacteristic speed to announce a surprising foreign policy initiative two days after President Obama’s reelection.  He was going to Burma and it was happening right now, less than two weeks after the votes were counted, and because he decided that everything would happen so quickly it was far too late to haggle over his itinerary, which by the way was already in place.  “Why scrutinize this?” was the implicit message to human rights activists, “because we don’t want your input this time.”

However, this landmark engagement with the current Burmese regime warrants scrutiny and at the very least revision if it is to go forward.  Burma is finally opening to Western investment, but Obama must not abandon America’s responsibility to protect potential Burmese workers in favor of geopolitical games and economic opportunity.  Fraudulent elections held in 2010 transferred power to a mixture of civilians and military-appointed candidates in name only, while President Thein Sein and the military establishment retained near-total control of the country.  The concern that has been reluctantly expressed by activists – including a silenced Daw Aung San Suu Kyi – is that Obama’s visit is really a cynical approach to ending successful sanctions merely in exchange for recent reforms in Burma that may be cosmetic and temporary.  While dialogue is generally good in any situation, a visit from Obama (and on the heels of the high-profile visit from Secretary Clinton in December 2011) is a rebuke to the international human rights community, and one that has startled even more “realist” domestic observers.

It is true that reformers in the Burmese government have fought military hardliners to break Burma’s long isolation from the West, and are certainly due for increased international backing.  However, the U.S. has so far managed to provide appropriately escalating support with the appointment of a new ambassador and fewer trade restrictions.  A visit from the President is a great deal stronger than the current framework of “action for action” and risks delivering a message to the Burmese government that it is safe to stop their welcome but incremental progress on reform.

Will this be seen as rewarding a democratic transition, or the mere start of a client state relationship?  White House human rights advisor Samantha Power wrote the day after news of the trip broke that it will help the administration monitor “continued progress on the road to democracy.”  Despite this, Human Rights Watch “think[s] that the visit is premature,” with their puzzled Asia director Phil Robertson quoted in a Los Angeles Times article asking, “what’s actually the rush?”

Much less information about Burma filters out to the West than that of more prominent human rights violators, and so the U.S. government is privy to more details than the public.  And the idea of Burmese engagement as a credible demonstration of Western-supported democratization for North Korea is perhaps the most appealing aspect of the trip.  Yet for Obama, it is indisputably irresponsible to engage Thein Sein without making meaningful assurances on the part of the U.S. to protect human rights in Burma.

While time may prove otherwise, it appears Obama’s visit is not the beginning of massive civic change but rather presages a freeze on rights (a conciliatory amnesty declaration in advance of Obama’s visit was revised to exclude political prisoners) and the expansion of sweatshop labor for Burma’s massive underemployed population.  At a minimum, all statements that the White House releases about President Obama’s time in Burma should make clear that the minimum standards for Burma’s development do not begin at the current point, and that the end of U.S. sanction efforts are conditioned on the continuance of reforms.

Since Obama has inexorably set himself on the path to Burma, he should at least reverse the course of his discussions there and turn his trip into a push for justice.  Commerce and shared foreign policy interests are certainly valid topics for Obama and his Burmese counterparts to address, but there is room for human rights as well…be it the need for an independent judiciary, internet access sans censorship, or to give strength to recently escalated calls to prevent the ethnic cleansing of the Muslim Rohingya minority.

The President currently has a singular chance to control the timetable of U.S. investment in Burma.  In light of little domestic opposition, he should do this by sticking to the commitments he has publicly made to begin a fair trading relationship; what Daw Aung San Suu Kyi has repeatedly referred to as “democracy friendly, human rights friendly investments.”  Burma has no shortage of human rights indicators to tie to economic cooperation.  And even when Obama leaves, stringently enforced rights-aware trade will give the international community the continued leverage to ensure Burma’s democratic transition.  The U.S. can go a long way towards funding civil society and free association in Burma, even if done indirectly through conditional approval of local business operations.

To be sure, these are bold steps.  But if Obama is comfortable with making bold steps in regard to the sensitive subject of human rights in Burma, he might as well do it in full measure.  Transitional solutions should appeal to the Burmese military, foreign investors and the President alike as paths to true stability in Burma.  A military-civilian hybrid Burma will remain just another political actor, but a grateful democratic Burma can become a new U.S. ally in the region.  (I realize this argument has been used to justify disastrous misadventures over time and in America’s recent past. However, the will of the people as evidenced by the success of the National League for Democracy, the Burmese populace’s favorable opinion of the U.S., and perhaps even lessons learned in other nation-building follies may contribute to different circumstances in this case).

The White House’s own statement on Obama’s trip mentions the relative benefits of transparency and democracy.  President Obama has recognized Burma’s problems, but has he simultaneously excused them?  It is still quite possible that this much slower approach to human rights may succeed, but Obama has historically made a mockery out of human rights trade enforcement. It is up to President Obama to demonstrate America’s lasting commitment by making the solidification of Burmese civil society the primary focus of his trip, and not merely a hollow excuse for unfair and unsustainable trade.


Hal Levy is a junior at Columbia University majoring in human rights.  He is the Treasurer of Columbia University Students for Human Rights.

Film Review: Brother Number One

By Laura Reed, M.A. in Human Rights Studies Candidate at Columbia University

“I am deeply honored and moved to be here today, given the opportunity to speak.  I realize that this is a privilege made available to a few, especially compared to the numbers of families that suffered under the Khmer Rouge regime.”– Rob Hamill, in the opening statement of his testimony at the trial of Comrade Duch in Cambodia.


Brother Number One, featured at the 2012 Human Rights Watch Film Festival in New York, is a powerful documentary film that explores the legacy of the Khmer Rouge regime in Cambodia.  Directed by New Zealand filmmaker Annie Goldson, this film depicts the personal journey of Rob Hamill as he travels to Cambodia to testify in the recent trial of former Khmer Rouge leader Duch at the UN-backed war crimes tribunal.

A film about this period in Cambodian history, relayed through the story of a New Zealand family’s experience, is bound to raise some eyebrows from the human rights community.  Why focus on a Western man’s personal story, rather than a story from the millions of Cambodians who experienced tragic loss and suffering at the hands of the Khmer Rouge?

In a previous blog post on RightsViews, we discussed the controversy surrounding the Kony 2012 viral video, which was criticized for (among other things) focusing on the personal journey of Invisible Children founder, Jason Russell, rather than the perspectives of Ugandans.  In an opinion piece for the New York Times, our fellow bloggers at Wronging Rights pointed out the problem with “awareness-raising campaigns” that put white Westerns at the center of stories that take place in non-Western countries, arguing that “a focus on awareness also requires putting ‘relatable’ figures center-stage. That means ‘whites in shining armor,’ while portraying the communities affected by atrocities as helpless victims.”

Documentary filmmakers often struggle with this question of how to fairly represent their subject in a way that is both accurate and compassionate, and how to get their audience to relate to issues that are far removed from the viewer’s everyday experience.  Every once in a while, though, a film comes along that deftly strikes a balance of voices, making the film both relatable to outside audiences and true to its subject.  Such is the case with Brother Number One.

Through a series of interviews, Goldson takes the viewer from the present-day trial of a former Khmer Rouge leader back to 1978, when Rob’s older brother, Kerry, was captured by a Khmer Rouge gunboat.  Kerry and his friend were taken to Tuol Sleng prison where they were tortured, forced to write confession statements, and ultimately executed.  The Hamills did not learn what happened to their son until two years after they initially realized he had gone missing.

The narrative of the film is largely driven by following Rob’s experience of testifying at the war crimes tribunal; however, the director makes equal use of interviews with Kerry’s family and friends to tell the story of what happened; interviews with scholars who are familiar with this history; and interviews with Cambodian victims, survivors, and former complicit Khmer Rouge workers who relay their personal accounts.  One of the most striking ways in which Goldson achieves this balance is by weaving in the stories of those directly involved in the filmmaking process.  In one scene, Rob is interviewing Meas Muth, the man he suspects is responsible for sending his brother to the Tuol Sleng prison. The translator, Kulikar Sotho, breaks from translating to interrogate the interviewee with her own questions, highlighting how the contested history of this time period still emotionally resonates with Cambodians today.[vimeo][/vimeo]

Both Goldson and Hamill were acutely aware of the possible issues with using Hamill’s story to shed light on the history of the Southeast Asian country.  During the Q&A at the HRW Film Festival, Hamill commented that he was “extremely anxious” during the filming process in regards to how Cambodians would react to a film telling the story of their country, but through the experience of one New Zealand family.  He remarked, however, that Cambodians have received the film warmly, in some cases thankful for the broader audience that it would generate, and regard him as a fellow victim.

Goldson was also aware of the potential of overlooking Cambodians’ stories through the focus on Rob’s experience, and took specific care to make sure the end product was balanced in this way.  In an interview with a New Zealand magazine, Goldson remarks that she knew there “were always going to be allegations of Eurocentrism from some, […] and there were, particularly from certain sectors of the industry, although interestingly there was no breath of this from Cambodia itself.”  Goldson purposefully wove in stories from Cambodians who were naturally part of the film because, as she notes, it “seemed the most seamless way of attempting to address the cultural context of the film, as well as Rob’s story.”

The result of this thoughtful direction is a powerful film that uses personal narrative to explore the broader themes of forgiveness, justice, and the struggle to reconcile with the past.

For more information about the film, visit:

Laura Reed is an editor for RightsViews and a graduate student in the Human Rights Studies MA program at Columbia.  Her research focuses on issues of transitional justice, human rights documentation, and contested narratives of conflicts.