VI. Remedial Framework to Combat Impunity
This chapter proposes detailed recommendations to the Indian government to ensure an effective remedy for all persons whose rights or freedoms were violated in Punjab during the counterinsurgency operations starting in the early 1980s. These recommendations aim to provide redress for the gross violations of human rights that occurred and address the institutionalized impunity that has prevented accountability. The Supreme Court also has the power to implement these recommendations as the Punjab mass cremations case and other cases reach the court.
The cases discussed above highlight several issues that must be addressed in any remedial framework in order for India to fulfill its international legal obligations. The obstacles to combating impunity include, among other issues:
In addition, as discussed in the legal standards chapter above, flaws in existing laws and regulationsspecifically the requirement for prosecution sanction (governmental approval to bring a case against state officials) and the failure to incorporate gross human rights abuses and widespread and systematic crimes into the penal codeare also obstacles to prosecution and should be repealed or reformed.
The framework proposed in this chapter addresses the rights to knowledge, justice, and reparations of the victims families. In order to provide an effective remedy and combat impunity for these gross violations of human rights, we recommend a commission of inquiry, a special prosecutors office with fast track courts, and a comprehensive reparations program.
India has a rich history of peoples commissions and governmental commissions of inquiry.338 However, in the Punjab and Sikh context, both of these mechanisms have failed to properly and thoroughly investigate and acknowledge state abuses. The Peoples Commission on Human Rights Violations in Punjab, a civil society initiative of the Committee for Coordination on Disappearances in Punjab, was banned by the Punjab and Haryana High Court after one sitting.339 Government-appointed commissions of inquiry on the 1984 massacres of Sikhs glossed over the massacres and failed to uncover the system through which the abuses were perpetrated, or assign full responsibility to the planners and organizers.340 Thus, it is necessary that protections are built-in to ensure that any future commission operates independently and with credibility. The internationally-endorsed Impunity Principles, adopted by the UN Commission on Human Rights (now the Human Rights Council), provide guidance on international law and best practices on commissions of inquiry, specifically truth commissions.341
In order to redress the right to knowledge, the government of India should establish a commission of inquiry to investigate the gross human rights violations that occurred in Punjab from at least 1984 to 1995 during the counterinsurgency operations. The commission should:
A societys right to know the truth about past events requires an investigation capable of identifying perpetrators and enabling sanctions against them, as well as an acknowledgment by the state of the abuses suffered, a public accounting of institutional participation, and access to archives regarding the abuses. The state must conduct investigations into human rights violations effectively, promptly, thoroughly and impartially.342 The investigations should particularly aim to secure recognition of such parts of the truth as were formerly denied,343 such as the identity and fate of the disappeared, the systematic nature of the abuses, the extent of violations, and the role of senior officials in perpetrating the abuses. To address the abuses committed in Punjab, the commission should focus on the rights violations experienced by individual victims and discard the restrictions and classificatory scheme applied by the NHRC in the Punjab mass cremations case.
The commissions terms of reference should be confirmed after public consultations, especially after incorporating the viewpoints of the victims and family members.344 The Committee for Information and Initiative on Punjab, for example, has argued in the Punjab mass cremations litigation that the government must investigate the entire context of abuses relating to the disappearances and extrajudicial executions, such as the torture and trauma suffered by family members of the disappeared and prior experiences of abuse by the decedent.345 In the medical study conducted by Physicians for Human Rights and the Bellevue/NYU Program for Survivors of Torture, 48 percent of the respondents stated that the victim of the extrajudicial execution had experienced prior episodes of custodial torture.346 Further, in 74 percent of the cases, police arrested family members of the decedent; in 56 percent of the cases, police tortured family members.347 These abuses all comprise gross violations of human rights that trigger international legal obligations.
The selection of the individuals who will serve as commissioners is crucial to the commissions perception as a transparent and credible body, and its success in bringing to public attention the full extent of the human rights violations committed. The commission should include experts in international human rights law, who are independent and not associated with the institutions implicated in abuses during the counterinsurgency operations, with a fair representation of gender and religious diversity. The selection process should be public and inclusive, and solicit the active participation of victims and their family members; selection should not be left to a private panel of decision-makers.348
Public proceedings of the commission will increase public confidence349 and insure transparency. However, witnesses and victims must have the option to request partial or wholly confidential hearings in their individual case, in order to protect themselves from retaliation. If possible, provision should be made for limited access to such closed sessions in order to monitor compliance with human rights standards.350
The commission should rely on testimony from witnesses and family members of victims, government and police records, and its own investigations to reach its conclusions. Refusal of the police or other state agencies to participate should not prevent the commission from conducting its investigations. 351 The commission must conduct these investigations using its own staff, rather than relying on the police. As discussed in this report, the history of the Punjab mass cremations litigation and the experiences of families pursuing legal cases have amply demonstrated that government agencies suffer from a conflict of interest that has led to their omitting key perpetrators and faking evidence in investigations, and also participating in intimidation of witnesses and complainants, among other questionable and illegal practices. In order to facilitate the collection of testimony and public education about its work, the commission should establish offices throughout Punjab to allow for walk-in availability.352 The commission can further pursue partnerships with universities and human rights organizations abroad, to facilitate the collection of testimonies from refugees, including participation through video-conferencing.353
The government must ensure the preservation of and access to archives that would provide information on the human rights violations.354 Access to confidential records has provided crucial information to accountability efforts in other countries and indicated the governments commitment to transparency.355 The Impunity Principles call for the application of technical measures and penalties to prevent any removal, destruction, concealment or falsification of archives.356 The government must provide access to police records, such as First Information Reports, character rolls that record disciplinary actions taken against individual officers,357 records of prosecutions and convictions, as well as newspaper reports and press releases on killings and police actions, among other documents. Reasonable restrictions should be imposed to safeguard the privacy and security of victims and other individuals.
The commission should use the balance of probabilities standard in making findings on specific cases. In their brief submitted to the NHRC on December 10, 2003, Human Rights Watch and Harvard Law Student Advocates for Human Rights discussed the unfair evidentiary burdens families face in proving disappearances and extrajudicial executions, because the state often exclusively controls the evidence necessary to prove the violations, which it rarely turns over. Because of these difficulties, international human rights bodies have relaxed evidentiary standards and held circumstantial and testimonial evidence, including hearsay, to be admissible before such bodies. Such evidence can shift the burden of proof to the state to refute the allegations of violations, failing which it is presumptively liable.358
The commission should identify and name, in its final report, the individuals responsible for planning and executing the gross human rights violations that occurred during the counterinsurgency operations starting in 1984. As a leading commentator on truth commissions has argued: [T]elling the full truth requires naming persons responsible for human rights crimes when there is clear evidence of their culpability. Naming names is part of the truth-telling process.359
The commission should clarify the different kinds of responsibility involved, such as ordering or executing abuses versus implementing policies that facilitated abuses.360 The commission should focus on naming the individuals who bear the greatest responsibility, including superior responsibility.
In order to protect the due process rights of the accused, the commission should notify individuals about the allegations against them and that the commission intends to name them in its public report, and afford them with an opportunity to respond to the allegations.361 This process is similar to Section 8(b) notices in Indias Commission of Inquiry Act. However, the commission should ensure that effective procedures are in place to ensure that those bringing accusations are not placed at risk.362
The commission must provide protection to victims and witnesses who participate in its hearings. Some families visited by Ensaaf, whose cases initially received a measure of support from the government, expressed that after several years they compromised with the police because they could not sustain their cases under police intimidation, abuse, and prolonged legal proceedings. The commission should further provide psychological and medical support to those who testify, in order to help witnesses who develop secondary trauma from testifying.363 For further protection, the courts must prohibit police and their agents from all contact and communication with victim families and their relatives and attorneys, with the provision of strong penalties for any violations.
A time frame of two years would give the commission sufficient time to thoroughly investigate the abuses, provided it has adequate resources. A deadline is needed in order to prevent the excessive delay that has characterized the Punjab mass cremations litigation before the NHRC, with the repeated reframing of issues. A delay will decrease the commissions credibility among victims families, as some have already been struggling for truth and justice since the early 1980s. Such a time frame will not hamper the commissions work. Argentinas truth commission, for example, took over 7,000 statements in nine months.364
The commission should hand its case files directly to the Special Prosecutors Office (SPO) in order to facilitate the investigation of cases.365 For example, Argentinas National Commission on Disappeared Persons (La Comision Nacional Sobre la Desaparicion de Personas, CONADEP) issued its report in 1984; after CONADEP provided its files to the judicial system, the judiciary was able to quickly build cases against alleged senior perpetrators so that trials began 18 months after the government transition, including the operation time of the commission.366 Similarly, in Mexico, about 270 of the 320 cases initially investigated by the SPO were previously investigated by the Mexican truth commission. The SPO was directly able to incorporate documents collected by the truth commission, as long as the records were authenticated according to law.367 Thus, de novo investigations were not required. This is important in the Punjab context where the judicial process has led to repeated and redundant investigations, prolonging trials and facilitating the destruction of evidence, as demonstrated by Tarlochan Singhs 18-year struggle for justice for his son Kulwinder Singh.
A truth commission cannot be a substitute for prosecutions.368 The commission will serve a crucial truth-telling function, which prosecutions alone cannot fulfill because of the high standard of proof required for criminal cases. Thus, the truth commission will provide official acknowledgment to families in cases where official wrongdoing cannot be established at the level of criminal culpability, but where the evidence nonetheless is sufficient to establish a record of disappearance.
The International Covenant on Civil and Political Rights requires India to ensure that those responsible for gross violations of human rights are brought to justice. According to the Human Rights Committees General Comment No. 31, As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant.369
Prosecutions through Indias existing criminal justice system have failed to lead to accountability. A study of 90 habeas corpus cases filed on behalf of the disappeared demonstrated that the majority of the cases were dismissed by the Punjab and Haryana High Court before reaching the point where charges would be filed. Police denials, disputed technical facts, claims of a lack of police motive, and the lack of supporting affidavits, which families had difficulties gathering because of police abuse, among other issues, were reasons the court used to dismiss the petitions and deny the reality of abuses.370Petitions were also impermissibly dismissed because of a delay in filing, even though there is no statute of limitations for filing petitions regarding violations of fundamental rights.371
As demonstrated in the case studies discussed in this report, several problems have plagued criminal trials, ranging from pro-police biases in the investigating and prosecuting authority and the CBIs failure to charge senior police officers; reliance on police officers to conduct inquiries into their colleagues actions; redundancies in the criminal process that lead to lengthy delays and the destruction of evidence; and falsification of police and government records to cover up abuses. Police harassment has intimidated witnesses into turning hostile or refusing to provide evidence, and also caused complainants to withdraw cases after repeated abuses.
In order to fulfill its international obligations to redress the right to justice, the Indian government should create a Special Prosecutors Office (SPO) and fast track courts that will:
The government should also reform the Indian criminal procedure to remove the requirement of prosecution sanction and introduce disappearance as a crime in Indias penal code. The CBI should further publicly release detailed information on all arrests, prosecutions, and convictions against security forces for human rights violations up to this point.
By focusing on system crimes and the most responsible officials, India will be able to more efficiently manage resources in the face of massive state crimes. As one commentator writing about the special prosecutors office in Mexico states:
By focusing on system crimes rather than isolated incidents, the SPO can bring several cases as evidence to support a single charge, allowing for greater participation by victims and decreased exposure to police harassment.374
While the commission of inquiry completes its investigations and prepares the recommendation of cases for the SPO, the SPO should engage in a consultative process and establish and staff itself. The SPO should begin operations after the commission has transferred its files and endeavor to conclude trials promptly in order to prevent eroding of the public trust and the desire to cooperate.375 However, the government should not set a termination date for the court because that would create an incentive for the accused to delay the prosecution, or cause the court to infringe upon the rights of the accused.
The SPO should incorporate outreach to families of victims into its work, in order to re-establish faith in the judiciary. Thus, it should visit Amritsar and other major cities in Punjab and create a network of district coordinators.376 Through regular case updates and seminars, the SPO should aim to increase victims families awareness of developments in the prosecutions and their understanding of why the SPO has selected certain prosecutions. The SPO should also solicit feedback and work to address any misconceptions.377
In order to increase public faith in the SPOs work and transparency, the SPO should provide full transcripts of hearings, 378 as well as place major decisions and motions online. In accordance with Indian law and due process, the SPO should also allow the participation of private attorneys selected by victim families in the prosecution of cases.379 Mrs. Khalras attorneys played an essential role in the CBIs prosecutions of the officers accused of her husbands abduction and murder. Among other contributions, they ensured the inclusion of key witness SPO Kuldip Singh, as well as the revision of charges to include murder charges.
The ICCPR requires that states make reparation to individuals whose rights have been violated.380 The Indian government should provide victims and their beneficiaries with reparations through a prompt and effective procedure.381 Unlike the procedure adopted by the National Human Rights Commission in the Punjab mass cremations casewhere families were not allowed to directly participate, confirmations of eligibility for compensation depended on police approval, and arbitrary restrictions excluded many victims and beneficiariesvictims and civil society should play a meaningful role in the design and implementation of the reparations program.382
The Reparations Principles, adopted by the UN General Assembly, include the following components of reparations: restitution, compensation, rehabilitation, and satisfaction and guarantees of non-repetition.383 Reparations are premised on the principle of non-discrimination, where all victims who have suffered like violations receive like reparations.384 Further, reparations should be proportional to the gravity of the violations and the harm suffered.385
In order to remedy violations of the right to life, the Indian government should, among other actions:
The commission of inquiry should be empowered to provide reparations as it determines, although a separate administrative body should dispense the reparations.387
Two of the challenges that face reparations programs are the completeness or ability of the program to cover all potential beneficiaries through its selection of rights violations, evidentiary standards, and structural procedures, as well as the comprehensiveness of the program, or the harms it attempts to redress.388 The gross human rights violations perpetrated during the counterinsurgency included several types of violations, ranging from disappearances and extrajudicial executions, to torture, arbitrary detention, extortion, and destruction of property. Further, one victim typically suffered numerous violations. Consultations with victims families and civil society could help determine the rights violations covered.
According to the Reparations Principles, compensation should be provided for any economically assessable damage resulting from gross violations of human rights, such as physical or mental harm, moral damage, lost opportunities, and material damage and loss of earnings.389 The PHR/Bellevue study, for example, demonstrated that in 35 percent of the cases, respondents described permanent physical disabilities or injuries.390 Nearly 40 percent of the individuals interviewed revealed symptoms consistent with a diagnosis of Major Depression at the time of the evaluation, and 33 percent reported current symptoms consistent with post-traumatic stress disorder.391 Further, nearly 80 percent of the individuals had significantly elevated scores on an index that measures overall psychological distress.392 Thus, many victims family members continue to suffer mental and physical trauma, over ten years after the violations occurred.
The procedure for securing reparations must also be developed in consultation with victims families, so that it does not further alienate victims. The effectiveness of the program will be determined by its accessibility. Lessons can be drawn from the failures of the Punjab mass cremations case, as well as the negative experience with procedures instituted for victims of the 1984 Bhopal gas disaster:
Victims families should be allowed to file an appeal if they are denied reparations, with a time limit on the resolution of their cases.394
The commission should further provide concrete recommendations on guarantees of non-recurrence of violations. The Indian government should, with appropriate due process safeguards:
338 See, e.g., Affidavit of Ram Narayan Kumar, September 28, 1998, Civil Writ Petition No. 14133 of 1998, Sudershan Goel v. The Union of India and Others, Punjab and Haryana High Court, para. 5, (Objections to the maintainability of the petition).
339 Civil Writ Petition No. 14133 of 1998. Sudershan Goel V. The Union of India and Others. Punjab and Haryana High Court. December 20, 1999.
340 See Jaskaran Kaur, Twenty Years of Impunity: The November 1984 Pogroms of Sikhs in India (Portland: Ensaaf, 2006), 2nd ed.
341 Impunity Principles, principles 6-13. The Impunity Principles define truth commissions as official, temporary, non-judicial fact-finding bodies that investigate a pattern of abuses of human rights or humanitarian law, usually committed over a number of years.
342 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Reparations Principles), adopted December 16, 2005, G.A. res. 60/147, U.N. Doc. A/RES/60/147 (2005), principle 3(b).
343 Impunity Principles, principle 6.
344 Impunity Principles, principle 6.
345 Application by the Petitioner, October 24, 2005, Writ Petition (Criminal) No. 447 of 1995, Committee for Information and Initiative on Punjab v. State of Punjab and Others. Copy on file with Ensaaf.
346Physicians for Human Rights and Bellevue/NYU Program for Survivors of Torture, Evaluation of Litigants Pertaining to Writ Petition (Crl.) No. 447/95 Committee for Information and Initiative on Punjab v. State of Punjab, October 18, 2005, http://www.ensaaf.org/pdf/reports/PHR-Bellevue.pdf (accessed April 13, 2007), p. 5.
347Ibid., pp. 6-7.
348 Indonesia: Constitutional Court Strikes Down Flawed Truth Commission Law : Recommendations, International Center for Transitional Justice (ICTJ) press release, December 12, 2006, (received by email to Jaskaran Kaur on December 8, 2006).
350 ICTJ, Comments on Draft Internal Rules for the Extraordinary Chambers in the Courts of Cambodia, November 2006, http://www.ictj.org/images/content/6/0/601.pdf (accessed May 19, 2007), p. 10.
351 Argentinas National Commission on Disappeared Persons (La Comision Nacional Sobre la Desaparicion de Personas, CONADEP) collected extensive evidence of human rights violations through witness and victim testimonies. Rebecca Lichtenfeld, ICTJ, Accountability in Argentina: 20 Years Later, Transitional Justice Maintains Momentum, August 2005, http://www.ictj.org/images/content/5/2/525.pdf (accessed May 19, 2007), p. 2.
352 The Redress Trust, Zimbabwe: From Impunity to Accountability, March 2004, http://www.redress.org/publications/Beyond%20impunityA5.pdf (accessed May 19, 2007), p. 18, fn. 30 (discussing International Criminal Courts victims-rights network).
353 For example, Northwestern University is helping collect testimonies from the Liberian Diaspora community in the US for the Liberian Truth and Reconciliation Commission. Transitional Justice in the News, ICTJ, newsletter, March 15, 2007, http://www.ictj.org/en/news/newsletter/1180.html (accessed May 19, 2007).
354 Impunity Principles, principle 5.
355 For example, in Mexico, the Presidential Accord ordered the release of secret documents that have considerably helped with investigations. See, e.g., Paul Seils, ICTJ, A Promise Unfulfilled? The Special Prosecutors Office in Mexico, Occasional Paper Series, June 2004, http://www.ictj.org/images/content/1/1/111.pdf (accessed May 19, 2007), p. i.
356 Impunity Principles, principle 14.
357 The police maintain character rolls for each enrolled police officer (inspectors, SI, ASI, HC and constables). This roll includes major and minor punishments, the record of posting, and progress report. These rolls are maintained until three years after the police officer dies or unenrolls. Punjab Police Rules, 1934, (Chandigarh, India: Chawla Publications (Ltd), 1998), rules 12.28-12.35.
358 Human Rights Watch, India Punjab Amicus Curiae Brief, (2003), http://www.hrw.org/pub/amicusbriefs/punjab.pdf (accessed April 22, 2007), Summary of Argument.
359 Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity, (New York: Routledge, 2001) p. 107.
360 Hayner, p. 130, discussing Human Rights Watch, Recommendations to the [South African] Truth and Reconciliation Commission, January 1998.
361 Impunity Principles, principle 9(b).
362 See Hayner, p. 129.
363 See e.g. Impunity Principles, principle 10. See also, ICTJ, Comments on Draft Internal Rules for the Extraordinary Chambers in the Courts of Cambodia, November 2006, http://www.ictj.org/images/content/6/0/601.pdf (accessed May 19, 2007), p. 5.
364 See Hayner, p. 34.
365 See e.g. Impunity Principles, principle 8(e): Commissions of inquiry shall endeavour to safeguard evidence for later use in the administration of justice.
366 Rebecca Lichtenfeld, ICTJ, Accountability in Argentina: 20 Years Later, Transitional Justice Maintains Momentum, August 2005, http://www.ictj.org/images/content/5/2/525.pdf (accessed May 19, 2007), p. 2.
367 Paul Seils, ICTJ, A Promise Unfulfilled? The Special Prosecutors Office in Mexico, Occasional Paper Series, June 2004, http://www.ictj.org/images/content/1/1/111.pdf (accessed May 19, 2007), p. 14.
368 Impunity Principles, principle 8.
369Human Rights Committee, General Comment 31, para. 18; see also Impunity Principles, principle 19; Reparations Principles, principle 2(b).
370 Jaskaran Kaur, A Judicial Blackout: Judicial Impunity for Disappearances in Punjab, India, Harvard Human Rights Journal, vol. 15 (2002), pp. 287, 289.
372See e.g. Paul Seils, ICTJ, A Promise Unfulfilled? The Special Prosecutors Office in Mexico, Occasional Paper Series, June 2004, http://www.ictj.org/images/content/1/1/111.pdf (accessed May 19, 2007), p. i.
373 Ibid., p. 18.
374 Ibid., pp. ii-iii.
375 For example, public perception is that the Mexican SPO operated slowly because after two and a half years, it had only issued arrest warrants for three isolated cases, and only had one person in custody. Paul Seils, ICTJ, A Promise Unfulfilled? The Special Prosecutors Office in Mexico, Occasional Paper Series, June 2004, http://www.ictj.org/images/content/1/1/111.pdf (accessed May 19, 2007), p. i. The SPOs office was disbanded in December 2006, having only initiated prosecutions in 2.5% of the 532 cases investigated, ultimately resulting in only 7 arrest warrants. Emilio Godoy, Rights-Mexico: Truth Commission or Justice Commission? IPS News, August 16, 2007, http://www.ipsnews.net/news.asp?idnews=38897 (accessed September 10, 2007).
376Tom Perriello and Marieke Wierda, ICTJ, The Special Court for Sierra Leone Under Scrutiny, March 2006, http://www.ictj.org/static/Prosecutions/Sierra.study.pdf, p. 36.
377 United Nations Commission on Human Rights, Independent study on best practices, including recommendations, to assist states in strengthening their domestic capacity to combat all aspects of impunity, by Professor Diane Orentlicher, E/CN.4/2004/88, February 27, 2004, http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.2004.88.En?Opendocument (accessed May 19, 2007), para. 40.
378 ICTJ, Comments on Draft Internal Rules for the Extraordinary Chambers in the Courts of Cambodia, November 2006, http://www.ictj.org/images/content/6/0/601.pdf (accessed May 19, 2007), p. 11
379 See e.g. Impunity Principles, principle 19.
380 Human Rights Committee, General Comment 31, para. 16.
381 Impunity Principles, principle 32.
383 Reparations Principles, principles 19-23.
384 Reparations Principles, principle 25.
385Reparations Principles, principle 15.
386 Impunity Principles, principle 34.
387 United Nations Commission on Human Rights, Independent study on best practices, including recommendations, to assist states in strengthening their domestic capacity to combat all aspects of impunity, by Professor Diane Orentlicher, E/CN.4/2004/88, February 27, 2004, http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.2004.88.En?Opendocument (accessed May 19, 2007), para. 19(b).
388 Pablo de Greiff, Introduction: Repairing the Past; Compensation for Victims of Human Rights Violations, in Pablo de Greiff, ed., The Handbook of Reparations (Oxford: Oxford University Press, 2006), pp. 6-10.
389 Reparations Principles, principle 20.
390 Physicians for Human Rights and Bellevue/NYU Program for Survivors of Torture, Evaluation of Litigants Pertaining to Writ Petition (Crl.) No. 447/95 Committee for Information and Initiative on Punjab v. State of Punjab, October 18, 2005, http://www.ensaaf.org/pdf/reports/PHR-Bellevue.pdf (accessed April 13, 2007), pp. 9-10.
391 Ibid., p. 11.
392 Ibid., p. 11.
393 International Campaign for Justice in Bhopal, Compensation Fact Sheet. Copy on file with Ensaaf.
394 In Argentina, a survivor could file an appeal within 10 days of the rejection of an application, and the courts had 20 days to resolve the appeal. Maria Jose Guembe, Economic Reparations for Grave Human Rights Violations: The Argentinean Experience, in Pablo de Greiff, ed., The Handbook of Reparations (Oxford: Oxford University Press, 2006), p. 31.