The concept of transitional justice is familiar to people in South Africa, Chile and other countries but how relevant and useful is it for South Asia? This is a question that formed the basis for a fascinating two day seminar in Kathmandu in January organised by Himal Southasian and the Center for Transitional Justice. While South Asia has witnessed several large-scale mass crimes against civilians -- Nellie 1983, Delhi 1984, Gujarat 2002, the violence in Kashmir, the Colombo massacre of Tamils in 1983, the Bangladesh Genocide of 1971 by the Pakistani army -- is it analytically useful to speak of 'transitional justice'? And how useful is it to adopt a pan-South Asian approach? These were the questions I was asked to address in the opening session. The researchers at Himal have transcribed most of the proceedings and uploaded extracts from the first set of presentations in their March edition.
Exhuming AccountabilityConference on transitional justice in Southasia
23-25 January, Kathmandu Hosted by Himal Southasian and the International Center for Transitional Justice
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 actors 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 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 with 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.