Can We Have ‘Truth and Reconciliation’ without Justice?

If perpetrators of human rights abuses are shielded, a truth commission would be a futile exercise

KASHMIR ~ As the controversy over unmarked graves unravels in Kashmir, Chief Minister Omar Abdullah has called for a Truth and Reconciliation Commission. Locally, the idea of such a commission has met with resistance, mostly because Kashmir is not yet perceived as a post-conflict zone. But there is an even more fundamental question about truth and reconciliation commissions we should be asking. What are these commissions, and why have they found their way into several peace agreements? Is a Truth and Reconciliation Commission appropriate for Kashmir?

Several countries undergoing political transitions have established official truth-seeking bodies to confront the legacy of past human rights abuses. Priscilla Hayner, in her seminal comparative study on truth commissions, Unspeakable Truths, has stated that such a mechanism should aim to clarify and acknowledge the truth; provide a platform to victims of human rights violations; contribute to justice and accountability; and outline institutional responsibility to prevent recurrence of abuses. Most importantly, truth commissions should seek to provide an opportunity to victim families to share their experiences, and pave the way for acknowledging the crimes that were committed against them.

However, as was witnessed in neighbouring Nepal, these objectives may not find resonance with the political class, which may see a truth commission merely as a way to grant amnesty to perpetrators of serious crimes. In Nepal, in 2006, days before the Comprehensive Peace Agreement was signed by the Seven Party Alliance and the Communist Party of Nepal, most clauses including those on federalism and parliamentary democracy were strongly contested before an agreement was reached.

Surprisingly enough, from the beginning, there was near consensus on the formation of a Truth and Reconciliation Commission.

When we tried to understand this bonhomie within the political class, it was evident that most political actors agreed to the formation of a Truth and Reconciliation Commission in the first place because they saw it as a mechanism to write amnesty into the law. For them, a truth commission was a substitute for punishing perpetrators of human rights violations. At the time, they were most familiar with the South African Truth and Reconciliation Commission, and within that the provision for granting amnesty to perpetrators. Given this limited understanding of the South African experience, a Truth Commission for Nepal seemed like the softest option available.

Perhaps Nepali politicians did not realise that the international law on amnesties has evolved substantially since 1995, when the South African Truth Commission was formed—with the UN consistently maintaining the position that amnesty cannot be granted for international crimes such as genocide, crimes against humanity, or violations of international humanitarian law. Significantly, it was during the Lome Peace Accord in 1999, which provided for the formation of the Sierra Leone Truth and Reconciliation Commission, that the UN clarified its stance on amnesties.

In recent years, international human rights and criminal law has evolved towards greater consensus that amnesties for serious human rights violations are impermissible. In Latin America, a number of amnesties have been explicitly or implicitly overturned. In the case of Velasquez Rodriguez vs Honduras, the Inter American Court held that Honduras could not, through amnesty or otherwise, eliminate the victims’ right to seek reparations for enforced disappearances. Peru and Argentina have followed suit.

But this gap in what a truth commission should do and what political actors want it to do resulted in a draft Nepali Truth and Reconciliation Commission Bill that flouted well-established international standards. Eventually, in the face of stiff opposition from national and international human rights groups, the Nepali government was forced to withdraw its draft version, and launch consultations with the stakeholders.

Much to the chagrin of human rights and victims groups, even the current draft bill compromises basic principles of justice and accountability. A truth commission has not yet been formed. We found that a clear cause of confusion was the narrow frame of reference for transitional justice, based to a considerable extent on the Truth and Reconciliation Commission in South Africa but without a critical understanding of the South African experience.

In this context, given the long history of enforced disappearances, torture, and extra-judicial killings, accountability for human rights violations remain important for any kind of closure in Kashmir. In Kashmir, if the Truth and Reconciliation Commission is envisaged merely as a mechanism for reconciliation without ensuring a sense of justice and accountability for victim families, it is bound to fail. Impunity is deeply entrenched in Kashmir, and an impediment to the creation of a society based on the Rule of Law. Unless impunity is tackled first and foremost by the punishment of perpetrators, other mechanisms may have little effect.

A victims’ right to an effective remedy obligates India to take necessary investigative, judicial and reparatory steps to redress violations and address their right to knowledge, justice and reparations. Moreover, international human rights law recognises the investigation and prosecution of crime as a separate element of effective remedy. The updated UN Principles on combating impunity elaborate this right as the Right to Truth, Justice and Reparation.

While the ultimate decision to formulate a truth commission lies with the Government, its legitimacy is closely associated with its formation process. Each transition is unique, and a truth commission should respond to the local demands of the context and history of the conflict. But a framework for a truth commission in Kashmir cannot deviate from accepted international standards. Is the commission going to reverse the prevailing culture of impunity? Is it going to ensure that thorough investigations are launched into cases of enforced disappearances and other human rights violations? Is it going to unearth the pattern of systematic abuses that have occurred during the conflict? Is the commission going to be informed by best practices and international standards? Is the Government going to accept responsibility for acts of commission and omission? Is it going to ensure that perpetrators don’t escape responsibility?

Or is it going to shield perpetrators in the guise of reconciliation? Unless, the Truth and Reconciliation Commission engages with the above questions, and seeks to address them, it would be a futile exercise. We should remember that victims of human rights violations may forgive, but they do not forget. I am not sure if the Chief Minister has thought about these questions yet.

Warisha Farasat is a human rights lawyer based in Delhi. She worked previously at the International Centre for Transitional Justice

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Warisha Farasat