Reparations and redressal

by Nitya Ramakrishnan, Conference on transitional justice in Southasia, January 23-25, 2007, Himal Southasia, March, 2007

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.

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 aren’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 do 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 very possibility of brushing things under the carpet must go.

The pan-regional problem by Siddharth Varadarajan

Human rights commissions by Suhas Chakma