Conference on transitional justice in Southasia
23-25 January, Kathmandu | Hosted by Himal Southasian and the International Center for Transitional Justice
Across Southasia, social movements have worked to demand justice and accountability during the region’s darkest hours – involving pogroms against minorities; human-rights abuse in the context of armed conflict; abuse and impunity by entrenched economic elites; violence against Dalits, indigenous communities and migrants; violence against women; militaries operating with state-sanctioned impunity within and across borders; violations by armed opposition groups with little accountability to local communities; the global ‘war on terror’ and its perverse dynamics in the region; and forced evictions of communities by dams and mines, urban real-estate mafia, or feudal landlords.
The demand for justice is a persistent feature of the Southasian public realm. In Bangladesh, families of those killed in the Liberation War still call for acknowledgment and ‘memorialisation’. The struggle against the impunity enjoyed by the masterminds of the Gujarat carnage of 2002 continues in courts in Ahmedabad and Bombay. Victims of the excesses of the long sequence of autocratic regimes in Pakistan have been calling for fundamental institutional reform of the state. Survivors of the anti-Tamil pogrom of 1983 in Sri Lanka continue to demand accountability and reparation. At the same time, there have been atrocities which have been neglected, such as the killing of thousands in the Assamese hamlet of Nellie in 1983.
On 23-25 January, Himal Southasian organised a conference on the issue of accountability for mass atrocities carried out against citizens in the various countries and sub-regions of Southasia. Scholars and rights defenders gathered in Kathmandu to share their experiences and insights, with the ultimate goal of ensuring that excesses be investigated and addressed for the sake of justice and reconciliation, as well as to prevent future abuse. The conference was supported by the International Centre for Transitional Justice and the International Center for Development Research, and convened by Vasuki Nesiah and Kanak Mani Dixit.
Here we present an abridged version of the presentations made at the conference by some of the participants, who are among the foremost scholars and activists dealing with accountability and impunity in the countries of Southasia. A complete transcript of the presentations and discussions will be published as a further follow-up to the “Exhuming Accountability” conference.
The pan-regional problem,
Why are we speaking of Southasia? Is there any value in clubbing the experiences and practices of the entire Subcontinent into one meeting? There are valid reasons, primarily because of the pan-Subcontinental institutionalisation of certain state practices as well as of certain practices of those who purport to be resistance. In India, Nepal, Pakistan, Sri Lanka, systematic violation of international humanitarian law by both state and non-state in conflict situations is something which is very much present as a common theme.
The second commonality is the presence of, for want of a better term, ethnic or demographic cleansing. Virtually all of our counties have had episodes in the past in which large movements of people have been forced by either the state or non-state actors. Distinct from a process of demographic shifting have been anti-minority massacres. We’ve had specific instances of high levels of targeted violence, most often with state complicity against minorities – the bomb blasts and pressure on the Shia in Pakistan, the low-intensity violence against the Hindu minority in Bangladesh.
The fourth commonality in the context of conflict is systematic violence against women. The fifth commonality which I see in the architecture of insurgency and counterinsurgency is the problem of disappearances, which we have in J & K, the Northeast, Nepal, Sri Lanka, Pakistan. The last point of commonality is that of impunity. Impunity is enshrined not only in the judicial or political practices in Southasia, but also in our national laws. When you have a situation wherein officers cannot be prosecuted for doing things in the line of duty, when you have impunity enshrined in law, you have once again a good reason to take up the issue of transitional justice at a pan-Southasian level.
The second question that I think is worth asking, particularly given the linkages of the transitional-justice phenomenon to the international criminal architecture, is: Which is the best forum in which to seek justice – international, national or regional? I think that even though the emergence of the International Criminal Court and other forums becomes an additional point of pressure, justice that comes through a national forum is, in my opinion, likely to be more durable, more transformative.
This brings me to the third question. Can there be transitional justice without transition? Because if you look at the examples of what is classified as transitional justice today – the cases of South Africa, Guatemala, Chile, Argentina, and Peru to a certain extent – virtually all of these mechanisms arose out of the context of a political transformation. We must not lose sight of the fact that it is the transition that is the key to the realisation of justice in many respects.
Can the struggle for justice help us bring about political transition? Can we think of justice as transformative justice in the political sense? I think we can. It’s significant that in the past decade the ability of ruling establishments across Southasia to get away with the kind of crimes they’ve got away in the past has decreased, the political cost has definitely gone up. Compare the political fallout for the BJP as a result of the Gujarat massacres of 2002 with the political fallout for the Congress party as a result of the anti-Sikh massacres of 1984. There is a world of difference in the nature of public opinion, in the manner in which the media covered the incidents, in the archiving and documentation and the willingness to collate and bring this information into the public domain. All of these suggest that, in a sense, the preoccupation and struggle for justice does provide an impetus for us to bring out a reconfiguration of power equations in society.
Transitional justice cannot just be about addressing past crimes, or even about preventing future ones. It also has to help all of us in our own different regions put a closure on historically-evolved grievances. Unless the historically-evolved grievance of, say, the people of Kashmir is not addressed, unless their sacrifices are not respected, unless homage is not paid to all the people who were victim to the violence, it will be very difficult for people living in these societies and communities to feel a sense of closure.
Finally, while many of the issues that we raise concern questions that are beyond our domain, what we do control is the process of archiving, documentation, dissemination of information. These are significant efforts, which help to challenge the official silence or the widespread public apathy which comes about due to lack of information or ignorance; I think that this is something that we can do as individuals and as a collective.
This panel probed questions about the politics of prosecutions and their contribution to accountability for mass crimes. At one level, legal accountability is often seen as the most central component to struggles for justice. We have pursued trials even when courts have been slow, judges conservative, police obstructive and the legal framework inhospitable. We have pursued trials even when courtroom dynamics have been alienating for survivors and for victims’ families, and even when we have been able to convict only the lower rungs of a repressive machinery. Against this enduring commitment to seeking judicial avenues for redress, looking back at the history of prosecutions in Southasian countries, this panel explored ways to broaden and deepen the ways in which trials contribute to justice in its fullest sense. In particular, two issues were highlighted. First, it was asked whether prosecution processes define ‘accountability’ too narrowly. Second, the panel looked at whether it is possible to ensure that trial processes be rendered more ‘victim friendly’, and what specific reforms would be involved in making the legal system more accessible, prosecution strategies more responsive to ‘victim’ priorities, and the trial process less formal.
Strengthening prosecution mechanisms
The Indian context is not really a transitional-justice framework. You’re not moving from one political configuration to another, nor is India a fledgling democracy. In India, non-prosecution would very much jeopardise peace, and therefore a lot of emphasis ought to be placed on prosecution in India. I think the people’s desire to prosecute has shown that it could be an amalgam of retribution, assertion for equal citizenship by the individual and community, a need of acknowledgment, a belief in the deterrent effect of penal law, an enabling act to overcome fear and helplessness, a proclamation by survivors that they have been beaten but not broken, a reclaiming of democratic institutions – and it’s a mix of all this that one sees when people urge for prosecution.
In the 1984 anti-Sikh massacre, it was interesting to see that there were criminal cases against some powerful Congress politicians, and a temporary setback to their political careers. However, what was required was that there must be direct evidence of their presence at the scene of the crime. Of course all of those prosecutions, at least at the trial court level, have failed, while some are still pending in the appellate court. In the present legal framework, the only avenue that is available is to invoke the law of conspiracy, or the law of abetment – both of which are totally inappropriate to address a mass-crime scenario.
Therefore, the current framework of the Indian penal code, the criminal procedure court and the Evidence Act is inappropriate. While it does note down the law of offences of murder, theft, rape, burning, looting, it does not take into account the dynamics of mass crime. A couple of the dynamics that have to be addressed by law is the dynamic of power and intent and the pattern that targets a group – which I think are defining features of mass crime – and that mass crimes are distinct from ordinary crimes, and cannot be committed without the sanction and complicity of those in positions of power, authority and responsibility. And therefore, one would argue for the creation of a separate offence in substantive law as well as in procedural law.
In substantive terms I think the offences of genocide and crimes against humanity need to be codified in substantive law. Individual criminal responsibility also needs to be brought in. The whole business of prior sanction required for prosecution of police officers or public servants, which is codified in the penal code in the Special Armed Forces Act, is now retained in the new communal violence bill. This bill makes a feeble effort to make public servants accountable, both for acts of omission and commission, but at the same time keeps the right of prior sanction very much intact. Again, in terms of substantive offences, the definition of rape is completely inadequate, as I think the Gujarat experience has shown clearly. There is a pending sexual-assault bill, and this needs to be drawn upon again before anything is done on the communal violence bill.
How do you make the investigation more inclusive and accessible – this is a key challenge. The victim should have a right to get a copy of the chargesheet, particularly in the case of crimes where you’re saying there’s complicity of authority and therefore the state as the prosecutor is not necessarily the custodian of societal interest in that circumstance. So a copy of the chargesheet, a copy of the orders, an enhanced role of the victim’s council will help. They have absolutely no information as to what is happening in those cases; therefore, some kind of system mechanism needs to be created which keeps them informed of what is happening as a matter of right.
Political consensus on impunity
In the Bangladeshi context, the transitions we have seen have been from war to peace, and also from militarisation to a kind of ‘civilian-isation’ of our administration at various points. Those have been the contexts in which we’ve had to address prosecutions. In each of the transitions, we’ve seen political compacts that have been the foremost barriers to any form of accountability. So even following the genocide of 1971, an amnesty was granted to many of those responsible for the killings. The other military venture within Bangladesh was in the Chittagong Hill Tracts. Again following the peace accord we saw a failure to set in place any accountability measures, and de facto amnesty was provided.
In the transitions from military rule to civilian rule, constitutional immunities were put in place each time to ensure that there couldn’t be any effective prosecution for political killings and other human-rights abuses. Under the ordinary law, we have provisions that prevent effective prosecution of defence personnel, security personnel or state officials for human-rights violations. Currently we have the Rapid Action Battalion, which has also been responsible for hundreds of extrajudicial executions in the last few years, with not a single prosecution or effective investigation to date.
So we have a chequered but consistent pattern of impunity and lack of accountability measures embedded in the law and the Constitution. It is not just the fact that the legal fabric is so weak in terms of ensuring accountability, but also that there isn’t clear political consensus on these issues, and that our institutions are permeated by partisan politics that affects their functioning. The way in which the 1971 genocide has been addressed – and even one of the most significant sets of killings, the disappearances of 14 December, when intellectuals were disappeared at the hands of the Pakistan Army and its local collaborators – despite investigations into those killings, and despite the issue having been kept in the limelight by the families of the disappeared, it has not been possible under any administration to even conclude an investigation into them. This is because the group involved as the collaborators of the Pakistan Army in the killings, the Jamaat-i-Islami, is involved in political compacts, either official or unofficial.
There is a need to create effective, independent political pressure for change. What we’ve seen so far has been largely an unfocused exercise where we’ve put a lot of hope and expectation on the possibilities of public litigation as an effective tool for opening up this process. But we’ve not married that to the ways in which you have to change the investigative machinery, and the way you have to critique the investigatory machinery on the ground. Without having done the work on the ground, it is almost impossible to rely on public-interest litigation to take you anywhere at all.
Structural issues in Nepal
In Nepal, we have very little infrastructure and very little institutional development in terms of dealing with violations committed by the state. That’s where the fundamental problem lies. There are lots of problems with regards to the substantive legal provisions as well, because the existing legislation provides that in claiming or initiating the criminal investigations we have to go to the police. And when you go to file the FIR with the police against the police, you can imagine how they investigate the case. In the first place, we have been struggling even to register FIRs. Then the police, rather than doing investigations, attempt to pollute the evidence and falsify the documents. We haven’t been able to bring even a single successful prosecution in the case of gross human-rights violations, largely because of these structures.
There have been a few encouraging developments from the courts. I agree that unless there is an independent judiciary and independent investigations it’s very difficult to have a successful prosecution in the case of gross human-rights violations. But at the same time, there are some initiatives that are going on in the Supreme Court in the cases of disappearances, as we have been filing writs of Habeas Corpus on behalf of those who have been disappeared. The Supreme Court used to quash all those petitions, saying the writ of Habeas Corpus or jurisdictions of the writ is limited to testing the legality of the detentions. Now the Supreme Court has decided to have an investigations committee under the Supreme Court itself, and the committee has been looking at these disappearances. We are now pushing for an order from the Supreme Court in terms of having substantive legal provisions in dealing with the cases of disappearances.
Unless we have very substantial legal provisions to bring the prosecution, and independent investigations in cases of human-rights violations, it is very hard to believe that there will be successful prosecutions in Nepal.
Communalism and the courts
I’d like to put forward the proposition that when we’re looking at the Southasian or Indian context, if we really want to understand what communalism is about, we have to understand the deep-rooted racism of caste bias. The everyday, deep-rooted caste bias is manifest in our institutions – the masculine contextualising or imagined notion of Hindu nationhood has its roots in caste as much as in community. We need to first understand the link between the caste bias that has run deep in our institutions for thousands of years, and a communal bias that has resurfaced over the last 150 years, and taken off particularly after Partition.
We’ve had a series of excellent judicial commissions looking at most institutions of communal violence. So the commission reports are good documentation, because they point to the genesis of communal violence, and the impunity enjoyed by police and perpetrators from civil society and the political class. But very rarely do they come to conviction. It would be ridiculous to suggest that the legal process is the only way that one can fight this. At least in terms of Gujarat, one sees the legal battle as just part of the significantly larger political struggle against fascism in that state today. And it’s ironic that the struggle against fascism has today been reduced to a rigorously-fought legal battle. The culture of impunity that has grown over the decades has contributed to graver and graver communal mass crimes taking place.
We’ve tried to build up the legal struggle in Gujarat. We’ve got 37 cases pending all the way to the Supreme Court – criminal to civil to writ to other forms of law – while at the same time, we’re trying to argue for a discourse on mass crimes and a law for mass crimes. We don’t know what kind of bill the government will ultimately come up with. The first two drafts were horrendous, because they didn’t have three major things: they looked at only Indian Penal Code crimes, did not look at genocidal crimes, did not have a command of structure, and did not have a definition of mass crimes at all. So they seemed to want to give greater powers to the police, rather than empower the citizenry.
I also wanted to mention, in terms of communal violence, that there has been an inevitable prioritising of the major genocidal attacks or pogroms which have taken place against the largest minority, the Muslims. For instance, one of the cases where genocidal seeds were really visible was in Baghalpur in 1989. In three villages there, you had this mass massacre, and overnight you had these corpses being buried and cauliflower being grown over the corpses to hide the evidence. Many such markings on the genocidal map in terms of communalism have gone unchecked and have not been revisited by us because of limited capacity. But I think one thing recent efforts have shown is, if you keep at it, it is possible to revive some of these older cases as well.
Without sounding hunky-dory, we are only five years down the road in Gujarat. Meanwhile, other massacres are 20 or 30 years down the road, and have reached nowhere near where we are now. The Supreme Court and the High Courts have been pretty bad in terms of delivering judgements on communal violence. I’d like to present a few examples. One is related to 1992-93 Bombay, and involves the newspaper brought out by Bal Thackeray, which was used to orchestrate the pogrom. Citizens actually took the state to court, asking for action against Bal Thackeray. The High Court delivered a horrific judgement, saying that Thackeray had only written about the anti-national Muslims, so it was alright. And when that was challenged in the Supreme Court, the Supreme Court threw it out without even looking at the petition.
In contrast to that, a couple of the judgements and orders that have come out in the Gujarat-related cases have been relatively better. It will not do to sound as though the battle is nearly over, but for the first time, they have tried to capture the magnitude of the entire genocide in Gujarat, not simply the one incident that took place. We have a very long way to go, but I think one of the roots of trying to understand communal and caste violence is to see it as part of a systemic thing, and not just sporadic outbursts that take place when a Gujarat or a Mumbai or an ‘84 happens.
The Nellie massacre
The Nellie incident was a mass killing that took place in rural areas in Assam on 18 February 1983. There were 1600-3300 victims, mainly Muslims of East Bengal origin who had migrated during colonial periods. The attackers were neighbouring villagers, non-immigrant Assamese native people.
Between 1979 and 1985, there was a large-scale student agitation, which was called the anti-foreigners movement. It was led by the All Assam Students’ Union, AASU, and their claim was to detect foreigners’ names from electoral roles, delete those names and deport the people to their original countries. The targets were mainly Bangladeshis and some Nepalis. In 1980, AASU had several rounds of talks with the Centre, but no agreement was reached, partly because those people who had been suspected as foreigners – Bangladeshis, mainly Muslims – were vote banks for Congress. After 1980 the movement stagnated for a bit. In 1982, the central government decided to hold state assembly elections without revising the electoral rolls. Then AASU called for a boycott, and there were numerous violent incidents in Assam. Nellie was only one of them. More than one lakh people were displaced, and there have been estimates of 5000-10,000 people being killed overall. In many violent incidents, the attacking community and the attacked communities varied, but victims were mostly of East Bengal origin.
Right after the incident, 688 cases were filed with the police in connection to it. Among them, 378 cases were not submitted for lack of evidence. Only 310 were ultimately submitted by the police, but they were dropped during the rule of the Asom Gana Parishad, the AGP. There was one official committee set up, which brought out a report in May 1984, although it was never made public. There was another nonofficial inquiry by citizens, brought out in 1985, and it did some work including estimating the number of victims. The report showed the number was around 1600. Officially there has been nothing done on this incident.
I want to raise a few basic questions. First, when there were no trial cases, how can we seek justice for the victims? Apart from these trial cases, the only thing that has been done for the victims has been compensation – INR 5000 for each deceased, and INR 2000 and two bundles of tin sheets for every surviving family. In this situation, what kind of justice can be possible? The issue is of responsibility and justice. In this case, involvement of the neighbouring villagers is very obvious. I see a problem in describing attackers as puppets and goondas, as some political scientists do. Local people admit to being involved in this incident; they should also be prosecuted, but both Congress and the AGP are reluctant to do anything.
At the same time, how do we look at the responsibility for those people who supply the necessary conditions for the massacre – in this case, the Congress, AASU and AGP leaders? Many of the decision-makers in the Congress, including Indira Gandhi, have passed away. Others might now be in power. What can be done in this situation? First of all, we should note that civil society and NGOs in Assam are very weak on Muslim issues. One group has come up with a project to make a documentary on the Nellie massacre, which I believe is a very good idea. But the same person who came up with this project says maybe we should do something on compensation, because that might enable the community to forget. I don’t think this is the case; I think at least some type of legal prosecution should be done.
The argument in favour of compensation is partly motivated by the compensation that was decided for the anti-Sikh riots, which was INR 715 crores. But there’s always a problem in the particulars of compensation. Very recently, for instance, there was a killing of Hindi-speakers in Assam. The central government decided to issue INR 7 lakh for each deceased. Whereas in 2005, following another ethnic clash in Assam, the victims only received three lakh. So the amount of compensation differs according to which group you belong to, and according to which particular race you have. You can hardly call this justice.
It’s been almost 24 years since the Nellie massacre and almost nothing has been done. What can we do to say we have not forgotten about them?
Mass crimes and gender
I’ll base my comments on three experiences – sexual violence in peacetime, sexual violence in mass-crime situations (Gujarat is a particular example), and the violence in Chhattisgarh in central India. My first question is: When we say ‘transitional justice and gender’, transition to what are we talking about? Certainly when it comes to gender-based violence, I believe we are heading towards greater degrees of violence in times of both peace and conflict. The challenge is how to make both sustained healing and justice part of the same kind of processes in a long-term way.
I believe that mass crime and sexual violence do not represent any kind of epistemic break from the continuing pattern of systemic gender violence. Sexual violence was not a by-product of the mass crime that took place in Gujarat. A tentative estimate suggested well over 300-400 women were mutilated, brutalised, raped and subsequently burned. The kind of symbolism that enables this is a very classic kind of discourse. Very broadly, it’s a discourse that goes back over a hundred years in its construction – the Muslim being the plunderer, the enemy, raping and defiling Mother India. And so, to recover the honour of the Hindu nation, you rape and defile Muslim women. So you have this discourse, which really creates a strong motivation for the defiling and the killing and the brutalising of the Muslim woman’s body, for the emasculated Hindu male and the Hindu nation to recover its sense of self and of masculinity.
What do we do with this? One issue is the issue of access – a woman in peacetime accessing the law is impossible. In a mass-crime situation, with women on the run, it’s not going to happen. You’re also going to have the silence re-imposed on women –community honour is at stake. Then of course you have the limitations of the law itself. In the Indian Penal Code all you’ve got is a very limited definition of sexual assault, which is primarily focused on penile penetration. In other words, what happened to the women in Gujarat is not recognised in law anywhere – mutilation, the cutting, carving, chopping of breasts, penetration by a physical object, or if a woman was stripped and made to walk naked for three miles, there’s no law that covers it. So we don’t have the framework to deal with the variety and brutality of sexual assault that we saw.
When we prosecute for sexual-violence crimes, and we often do it in the language of patriarchy, of ‘honour’, in language that says, ‘Your lordship, this poor, unfortunate victim has suffered more in her body and her soul, and her honour has been destroyed forever.’ Everyone who has dealt with sexual violence knows that, if you have a patriarchal judge and judiciary, this is the only way to win a case. The problem is that you do nothing in that to destroy the entire repertoire of symbolic honour, community honour, all of this honour being invested in the body of the woman that enabled the violence in the first place. It was precisely this construction that allowed the sexual violence, and it is precisely the same construction that we go back to when we seek justice for that.
Where do we go from here? The point is that as a lawyer, you want conviction in that one case. But when we talk about mass crimes, is it really symbolic justice that we’re seeking? And if it is symbolic justice that we’re seeking, well, there is a conflict in the minds of the lawyers and activists as they go into that courtroom. They have to ask themselves, Are we really just talking about this one case? And you have to talk about that one case, because you have the victim right there. So you will fight it in patriarchal language. And you will allow her to be victimised even more than she has been already been. But if you look at the long-term perspective, you might lose the case if you try and battle it in any other way.
This panel explored how reparations policy can be developed in ways that underscore the fact that victims’ rights have been violated, and that they are entitled to redress. While reparations cannot restore victims to the status quo ante, reparation programmes could advance a good-faith effort to address the injury suffered in ways that at least partially alleviate the suffering of victims. Historically, neither state practice nor human-rights jurisprudence has developed the principle of reparations in ways that signify recognition of state responsibility and victims rights. At best, compensation has been meted out at the state’s discretion as a welfare measure with short-term ameliorative effect. At worst – and in fact more frequently – compensation has been manipulated by politicians as a tool for political patronage, denied to political opponents and granted when it helps curry favour with political supporters. Moreover, in most cases reparations policy has been reduced to a discourse about monetary compensation, with little attention paid to the multiple dimensions of injury that reparations policy can help redress. This panel was chiefly concerned with the challenges of developing reparation programmes that are internally coherent and fair to the entire group of victims in the context of a riot, cases of mass disappearances or other contexts of widespread human rights abuse.
Reparations and redressal
How do you reconcile truth commissions with the ordinary process of law? You can’t have a notion of reparation unless you already have in place a mechanism against impunity, and a mechanism which enables accountability. In India, the manner of understanding reparation has been for the Supreme Court to say, ‘We will not let the victim fall back on the procedures for claiming damages. Instead, we shall straightaway say that, for violations of fundamental rights, there will be a compensation fixed by us.’ Apart from this, the state will file criminal prosecutions; and if the victim wants a specific redressal in addition, she or he can be relegated to the normal courts.
If there really weren’t systems in place for recognising reparations and all their ramifications, I think there are a few other things we must go back to. First, we must have a concept of mass crimes as a violation that is very different from individual occurrences such as murder. It must enter the judicial conscience; it must enter an institutional conscience, a collective conscience, that mass violations are quite apart from individual murders and rapes and so on. They happen in a situation of mass fear: the mass fear enables them. The next thing to recognise is command responsibility. Because if you don’t address these issues, no reparations are possible. This really stems from an understanding that reparation is not just for a victim, but that institutions have to be repaired. If you want to build an accountable system, then you must have institutions that will not allow these violations; and if these violations have occurred, the institutions have to be restored.
When these violations occur there are many non-state actors. In Bangladesh in 1971 the local population behaved in strange ways. In Gujarat, the local population behaved in strange ways. In fact, the lower, marginalised rungs of society, in order to cross the margin and join the mainstream, often act as perpetrators. How do you deal with this? It is easy to focus on the state, but it’s not so easy to figure out how to deal with this. So there may be options – whether you’re going for truth and reconciliation, whether you’re going for truth commissions just to get a preliminary understanding of what happened or just to get a basis for further prosecutions.
This is equally important if you want to have a sustained fabric of a nation. In Punjab there were people who committed suicide because they could not get justice, despite it being established that their children had been killed by the police. There are people who have refused monetary compensation because they felt that it was an affront to their dignity. So if you really want to have a healthy state, you cannot ignore these aspirations. But how to fulfil these aspirations must be clear in the law through the whole notion of reparations, which stems from two simple judicial principles. One is that there is no wrong, no right without a remedy; the second is that you restore proportionally, so if there’s mass violation of rights, the proportionality issue is immense.
If you’re talking about restitution to how things were before the event occurred, I think the most important component is that the perpetrator should be brought to justice. When the state violates and turns aggressor, it is qualitatively different than any other aggressor. The reason why we’re now left to the mercy of the courts, why courts can afford to soft-peddle these issues, is that there is no clear recognition of crimes against humanity by those in uniform. They can get away with saying that this is a death in an encounter and they’re not even going to follow the procedure for inquiry. So unless it is brought into the ken of law, and therefore the ken of discourse, this is an aggression apart from any other.
Guarantees of non-recurrence are absolutely necessary, but when do you know that something will not recur? When you know that punishment is assured? But there may be very transitional situations where, because violations are so diverse, you want truth and reconciliation and you think it is worthwhile to grant amnesty. There may be a situation in which you want a commission of inquiry to just know the truth – although the findings may not be used in a criminal trial – but at least you will know how to proceed. There may be a third situation where you want to lodge prosecution straightaway, because the systems are in place. But recognition in the law really is one way of saying, of having it enter the discourse, that we now know that a man in uniform who kills is an offender apart from any other killer or thief. Where a violation occurs, like that in Punjab, you can no longer say this is a war fought for the nation, and therefore we will brush things under the carpet. That possibility of brushing things under the carpet must go.
Fractured region, divided people
Nighat Sayeed Khan
I’m going to talk about partitions – the 1947 Partition, that of 1971, and the LOC in Kashmir, which may or may not be a partition. To my mind, they are all very different from what we’ve been talking about because they involve at least two states, or different agencies in that process. None of these have actually come to any closure, despite those states being real.
In the Partition of 1947, three communities in particular were involved. The states were complicit; but the massacre wasn’t by order of the state, and the armies as such were not involved in it. The violence against women was of very different kinds. There were six different ones: mutilation, rape, leaving women behind as barter, ranges of suicide or killing their own women, and abductions. There was also a breakdown of the state, and the state was preoccupied with reconstructing itself. The patriarchal state had let women down in a moment of crisis, so there was a resurrection of the state and not wanting to address women.
In 1971, which was an entirely different situation in that sense, it was the state versus the citizens. There was military action against civilians in Bangladesh. The enormous massacres, rapes, burning of villages, creation of women’s homelessness, were not by-products. This was part of military policy. During this period there were some generals who resigned, and they were brought back in court-martial proceedings. There were also some junior officers who refused to go; they were also court-martialled. But apart from this sort of thing, and a few individuals who may have been against it and raising their voices, there was an enormous silence in West Pakistan.
Some of us have always felt that the reparation and rebuilding of East Pakistan was the responsibility of West Pakistan, especially given that East Pakistan had been a colony of West Pakistan, and the amount of shifting income, etcetera, that had been used in West Pakistan. A commission was immediately set up, however its report was not released until 2000, three decades later. In 1996, the Women’s Action Forum and many other organisations had sent an apology on their own behalves, because they could not get the state to move on the issue – they could not even get the public or civil society to sign on, including the human-rights organisations.
When the Rahman report was finally published, there had been no civil struggle to have it released. When it finally was released, however, and actually named the generals involved, even colonels, there was and has been no public outcry demanding prosecutions. There was again a debate triggered off by a women’s conference in 2001, which had invited women from Bangladesh. This generated discussion in the press: ‘Were women raped?’, etcetera. The state was definitely complicit. More terrible than that is the complicity of West Pakistani society. How do we move to address this? The only way to do so immediately is through compensation to the state of Bangladesh itself.
I raise the LOC issue in the sense that it is again a question of two armies. But it is a national struggle and there are freedom fighters; but there are also those same ones that are called terrorists. In this case, the violence is by two states and there is violence within. Now here the issue of reparations, the issue of complicity, the issue of who will be responsible and how to move on, gets even further complicated. Even though we don’t know what will happen to Kashmir, nevertheless I raise the question, What about the compensations and reparations? Which state? Both states? To whom and by whom? And will Pakistanis and Indians, or Kashmiris, push India and Pakistan to reconstruct the physical damage, quite apart from getting involved in all the personal, physical, psychological, emotional violence, of women who have been left alone, been widowed, children who have been maimed?
Official commissions, truth and inquiry
Commissions are often the first step in responding to mass human-rights violations such as anti-minority riots. This panel was an avenue to examine the record of commissions in Southasia, and to look at the ambiguities and challenges entailed in the potential of commissions to contribute to justice struggles. The issues of truth or fact-finding capture some of these questions. On the one hand, commissions seem valuable in setting the record straight, in clarifying the legal and historical record regarding human-rights violations, in laying out an ‘official truth’ regarding what happened in a context of mass human-rights violations, who was responsible and who was victimised. On the other hand, rather than historical closure, the value of many truth-commission processes is precisely that they dejudicialise the historical record and demythologise official truths; that they enable space for a richer notion of truth than captured in the idea of forensic fact; and that, in this way, they constructively open up democratic space to enable collective discussions about fundamentally contested historical visions. In the Southasian context, the majority of commissions have been judicialised processes intended to clarify the facts and make recommendations – often behind closed doors. This panel looked at the role and function of commissions, and asked whether they can be structured and mobilised in ways that deepen and broaden their approach to justice issues.
The psychosocial dimension
My interest in transitional justice began when I studied how people spoke about their psychological distress and their suffering. Most of these narratives were very gruesome, with ideas of revenge – even wanting to eat the perpetrators up, not wanting to speak to them or even know anything about them. Who decides that a transitional-justice process would be helpful for these people, when they’re talking about something else? And how can transitional justice be designed to satisfy these people?
There is evidence that transitional-justice mechanisms do not always have positive short- and long-term outcomes. For example, people may re-experience the suffering and distress they have undergone, or may face social stigmatisation and isolation after they have shared their terrible experiences. But there is also evidence that the very act of participating and benefiting from transitional-justice mechanisms can fully or partially restore a sense of control over their lives, a reinforcement of dignity, an increase of options for responding to felt or actual losses.
There are assumptions that there is a therapeutic value in the transitional-justice process for individual participants – that it is going to be helpful for them to speak about their experiences. But this is also something we have questioned. One of the most common assumptions in Sri Lanka is that the expression of emotions such as grief or anger during the narration of distressing experiences provides emotional relief. But there are concerns about this assumption. Narrating distressing stories and sharing personal experiences may actually make people feel that they have to focus on an experience in a more intensive manner. Intense focus on a personally distressing experience is likely to evoke associated emotions of sadness, anger, vengeance, humiliation.
There is an assumption that knowing the truth reduces distress. Knowing the truth is linked with the construct of closure. The establishment of the truth is said to allow people to review their own explanations of their experiences, and to sometimes accept other explanations made available through the transitional-justice mechanisms. But this may not be true for everyone, and its establishment may not lead to closure for everyone. Some people may feel further distress, because it may challenge or devalue their own explanations. This may cause them to experience lower self-esteem, guilt or insecurity. In some cases, people may feel more distressed once the truth is established, because it requires them to accept the death or disappearance of a family member or a close friend.
There is also the assumption that sharing experiences reduces a sense of isolation. It is assumed that people find it therapeutic if they come to know of others who have had similar experiences. But simply coming to know of many others having similar experiences may not always be therapeutic. It might even make them realise that there are so many others who have suffered, and that can be even more distressing.
The other main issue is the potential risk of transitional-justice mechanisms to psychosocial well-being – for example, the problem of social distance and formality in transitional-justice mechanisms. It is important to be cautious about patronising and intimidating those who provide narrations. The issue of accuracy of narratives is also important. When you ask people to come speak about their experiences, they might be very distressed, and it might be difficult for them to be logical. For implementers of transitional-justice mechanisms, it is important to realise that they are in a position of superiority and competence, and that this can be further intimidating. There is also the lack of support and protection during and after the transitional-justice process. In Sri Lanka, for example, we don’t have psychosocial support systems in place, and when you get people to speak about their problems, you also have to have in place a system that will support them.
How do we deal with multiple human-rights violations? In Sri Lanka, a person might have not only lost their property and land during displacement, but also have suffered from landmine injuries. People who have experienced human-rights violations could question how just are the transitional-justice mechanisms that have been set up, if they target particular groups and not others, or particular issues and not others. People who have experienced human-rights violations, including sexual violence and discrimination, may question why their experiences do not merit transitional-justice attention. Such exclusion may lead people to question the sincerity of the process.
One last point is the question of labelling. The transitional-justice process may impact on personal identities and individuals and groups. For example, a person who does not identify herself as a war widow may be forced to do so simply because she is targeted as a potential recipient of a process.
Regional Human Rights Commissions
This panel critically examined the potential role of Human Rights Commissions (HRCs) in addressing accountability for mass human-rights abuses. The regional experience of such commissions has been mixed. In some cases, HRCs have been brave and visionary, providing a politically independent voice that has challenged the abuse of power. Too often, however, these commissions have also been timid institutions – too subservient to the status quo and open to manipulation by the powers of the day. Even when their integrity has not been compromised, HRCs have proved inadequate to the task of dealing with mass atrocities because their legal powers have been limited, their capacity already overburdened and their mandate directed primarily towards addressing immediate individual complaints rather than mass atrocities. To some extent, transitional-justice mechanisms have developed precisely because HRCs and the routine criminal-justice system have proved institutionally inadequate to dealing with the scale and intensity of violations in the context of riots and prolonged civil wars, systematic violence against women and Dalits, communal massacres and counter-insurgency operations.
Can the national institutions, created by the state either to scuttle international scrutiny or to address international scrutiny, establish accountability? I think not, but in exceptional circumstances, possibly yes. But it depends on many factors, including independent appointment procedures, powers and functions, adequate resources. But if you look at the institutions in Southasia, do they comply? Let’s look at Nepal. I think this is the most crucial period, but since the members of the National Human Rights Commission resigned after the agreement between the seven parties and Maoists, there has been no commission. What about the Human Rights Commission of the Maldives? Since August 2005 there have only been three out of nine members, with no quorum to conduct the meetings.
If you look at the National Human Rights Commission of India, everybody knew that the chair, Justice Anand, was going to retire on this particular day. But the government never appointed anybody to replace Anand, so they appointed an acting chairperson who cannot deliver the work. There are only five members for a billion-plus population. Of course, NHRC of India has restrictions in terms of time – it cannot intervene into a complaint if a violation had taken place one year prior to the time of filing; it has to take permission from state authorities before it visits prisons. It also cannot investigate human-rights violations by the armed forces – but if you look at all of the armed conflicts in India and the violations in emergency situations, these have taken place under the armed forces.
In August 2005, the Sri Lankan Human Rights Commission building was attacked and security personnel tried to burn it down. No investigation has taken place and no one has been taken in. When a national institution cannot protect its own self or establish accountability for setting its headquarters on fire, how is it going to protect victims and provide justice?
Look at Afghanistan. A large number of violations are taking place in the prisons, which are under the forces from NATO and the US. But the Afghan Human Rights Commission doesn’t have access to the prisons that are being maintained by the international forces. Its work is extremely limited. Bangladesh has been in the process of establishing a Human Rights Commission since 1996 – 11 years. Officials have visited all the countries in the world that have commissions; there have been three draft bills, including two by the outgoing government, but no commission. Pakistan brought out a bill in 2004. Bhutan doesn’t want to have any kind of commission.
In this situation, I don’t think these are institutions that can provide justice. I think one of the key lessons is that if national institutions want to establish accountability, there needs to be a priority placed on the whole investigation process. Because if you don’t do the investigation properly, how do you fix responsibility? And if you look at the NHRC of India, which has more resources than others, most of the time the commission just asks the same police officials to investigate into their own abuses. We have cases where the perpetrator himself has been asked to investigate, and that person submits a report to the NHRC and NHRC says, ‘Ok, no violation has taken place.’
These are the negative aspects of the national institutions, but are there positive ones? Under exceptional circumstances. If the NHRC of India had not gone to the Supreme Court in the Gujarat case, had civil-society groups gone on their own, would we have seen the same result? But Gujarat is different, because Gujarat divided the whole nation – you had the BJP on one side, you had other political parties on the other. That may not be the case when you have a situation of armed conflict. You will not find the NHRC intervening in an armed conflict situation. If the work on Punjab had not been done by a committee, NHRC would not have intervened. If the activists who had been following the Gujarat cases had not followed up, I don’t think the NHRC would have intervened. You have to use the tools available.