GIVING VOICE TO END IMPUNITY THROUGH CARE Dr Laifungbam Debabrata Roy Speaker, Inaugural Session

National Consultation Testimonial Campaign contributes to eliminates impunity for perpetrator of torture in India, New Delhi, 12 July 2012

This is an age when countries as diverse as Mexico, Peru, Cambodia and Ethiopia, among

others, are digging into violent eras of their histories to set records straight and name those in power who allowed human rights abuses to occur or, worse, ordered them. In two decades, there has been no similar movement for a day of reckoning in India.
Barbara Crossette, New York Times reporter, and eyewitness to the 1984 massacres of Sikhs

Honble Justice Balakrishnan, Mr Pavel Svitil, friends and colleagues, Impunity means "exemption from punishment or loss or escape from fines". In the international law of human rights, it refers to the failure to bring perpetrators of human rights violations to justice and, as such, itself constitutes a denial of the victims' right to justice and redress. Impunity is especially common in countries that lack a tradition of the rule of law, suffer from corruption or that have entrenched systems of patronage, or where the judiciary is weak or members of the security forces are protected by special jurisdictions or immunities. After more than six decades having got rid of the colonial yoke, free and democratic India continues to be unashamedly among the nations of the world in which impunity is entrenched by policy, institutional behaviour and legislation. In March last year, the Jammu and Kashmir High Court awarded ` 10 lakhs as compensation to Azra Begum for the custodial disappearance of her son Mushtaq Ahmad Dar, a poor autorickshaw driver. He was picked up by the 20 Grenadiers at midnight from his home in Bemina on 13 April 1997, and never seen again. Judge F M Ibrahim Kaifulla's judgment in

Dr Laifungbam Debabrata Roy is a public health physician and human rights defender from Manipur in the North East territories of India. He is presently the Convenor/President of the Centre for Organisation Research & Education (CORE) and Chairperson of the Steering Committee of Human to Humane Transcultural Centre for Trauma and Torture (H2H), Manipur. Dr Laifungbam is the convenor of the Civil Society Coalition on Human Rights in Manipur and the UN (CSCHR) since 2010. He may be contacted at laifungbam@coremanipur.org.

this habeas corpus petition was considered a landmark one, not just for the amount handed out but also for his observations on the role of the police and the army. In awarding the compensation the judge held the disappearance of Mushtaq Ahmad Dar as "patent and incontrovertible" violation of Article 21 (the right to life). He said it was of such "grave magnitude which shocked the conscience of the court." The power of testimony is evident from the one given by the 20-year-old youths mother to the Independent People's Tribunal on Human Rights Violations in Kashmir, recounted her desperate search for her son in various detention centres and jails. She said that for 14 long years her battle was not over money, but "justice" for her son. But the justice she sought - in terms of punitive action against the guilty - is an impossibility. The de jure abrogation of right to life in Kashmir is rooted in the Armed Forces Special Powers Act (AFSPA). Section 4 of this law gives the army extraordinary powers to kill on basis of subjective discretion. This is coupled with a prohibition in Section 7 against prosecution of persons acting in exercise of powers conferred by AFSPA unless the prior sanction of the Central government is obtained. The Centre has routinely rejected applications for permission to prosecute anyone. Herein lie the roots of impunity. AFSPA and the Disturbed Areas Act have fostered not just a culture of impunity but lack of adherence to any law. Demands for revocation of this law have become particularly vociferous in the Valley, as in Manipur and the rest of the North East region of India, even as in September 2011 the State Human Rights Commission (SHRC) submitted its report on mass and unmarked graves in North Kashmir. The SHRC acknowledged "there is every probability that unidentified dead bodies buried in various unmarked graves in North Kashmir may contains bodies of enforced disappearances." The International People's Tribunal on Human Rights and Justice in Indian-administered Kashmir which in 2009 brought out a report Buried Evidence on mass, unmarked and unknown graves, notes that "in one instance of investigation in North Kashmir where the official version was that the graves were those of foreign militants, 46 of the 50 bodies which were exhumed after court orders were identified as local. Only one was identified as a militant." The complete breakdown of standard operating procedures and consequent lawlessness extends to the armed forces as a pattern of impunity that violated even the draconian provisions of AFSPA whereby they were required to produce anyone apprehended before a magistrate in 24 hours. This breakdown, coupled with the fact that the armed forces could simply hand over bodies to police for burial without identification and without entry of the dead in the public domain, has led to a complete lack of culpability. The culture of impunity has permeated the local police and the Special Operations Group (who do not come under AFSPA) in Kashmir. This cultural pattern is also painfully familiar among the local armed police forces that also do not come under AFSPA, in the North East region of
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India. This culture is encouraged and nurtured well by the well-established system of cash incentives, rewards and promotions to fight militancy. In Kashmir, the current debate over revocation of the AFSPA from a few areas of the State is not the central issue. What is of crucial importance is ending the culture of impunity and the pattern of lawlessness that it has spawned. The national debate today is indeed for the repeal of this very Act or its suitable amendment to bring it in absolute compliance with international human rights standards, particularly the International Covenant on Civil and Political Rights (ICCPR). The State of Jammu & Kashmir and the government of India maintain there are mechanisms within AFSPA for justice and sanctions for prosecution can be sought. But a document procured from the State home ministry (under the Right to Information Act) shows that from 1989 to 2011 sanction to prosecute was sought in just 50 cases. Of these 31 pertained to the Ministry of Defence and 19 were sent to the Home Ministry. Sanction for prosecution is awaited in 16 of these cases, and was declined in 26 cases. The home department says it has "recommended" sanctions in eight cases. But so far not a single case of sanction for prosecution has been granted. In our experience in Manipur, we have documented over 1500 cases of extrajudicial killings in fake encounters by the army and the local police commandos since 1979. Of these 94 are of children below the age of 18 years. The Civil Society Coalition on Human Rights in Manipur and the UN (CSCHR) has submitted this information to the Human Rights Council and the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, this year. What is characteristic of these alleged extrajudicial killings is the total absence of an accountable due process of law in investigating and pursuing these alleged killings to their logical conclusions. In not a single case has the alleged perpetrators of the extrajudicial killing or torture has been accorded Central Government sanction for prosecution in Manipur. The pattern of impunity continues to manifest unchecked in modern India, especially in the sensitive border areas and States where armed conflict or insurrection exists, and murderers roam free, confident that their crimes will never be exposed, and many will continue to be rewarded and awarded citations, medals and promotions for these unlawful killings in the name of conspicuous acts of gallantry in discharge of official duties and internal security measures. On the other hand, torture is absolutely prohibited by international human rights and humanitarian law. Since the 1980s, 150 States party to the Convention on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT) have agreed that the use of torture is illegal, under any circumstances, with no exceptions and have taken their pledge among other things to fight against torture, against impunity for torture, to criminalize the use of torture, train law enforcement officials on the absolute prohibition against torture and disallow the use of confessions extracted through torture in legal proceedings.

In the past 25 years the UN mechanisms and bodies monitoring torture have been able to bring about some change but torture is far from over. The OHCR in its media statement on the UN day in support of victims on torture, June 26, 2012 revealed that most of the victims of torture are ordinary people who belong to already vulnerable sectors of society. Most shockingly of all, even children are not spared. The threat created by perpetration of torture in the developing countries is a menace as it appears to occur on a large scale and only few resources for the provision of therapeutic assistance to the survivors. The torture survivors go through a lasting psychologically frustrating life gripped by fear and traumata, their physical or the emotional ordeal continue for years. The question of internal security poses an insurmountable challenge as they are encouraged to move on as the overwhelming many in our communities experience multiple episodes of torture and illtreatments, directly or indirectly, in the present scenario. Encouraging the survivors to narrate their distressing experience is a trauma in itself and they question if their coming out with their experiences would ensure befitting punishments to the perpetrators. It is quite a challenge to ascertain what good would come forth with their opening up the wound, but today, many have started to witness the healing of their stabbing emotional injuries as they ventilate through narration or story-telling. Silence has always been their refuge. Torture survivors are recluses socially, and also tend to get neglectful, medically as a manifestation of the syndrome of post-traumatic stress disorder (PTSD). Convincing them to give their testimonies demand that practitioners bring to light both the therapeutic significance as well as the legal necessities. They have to be convinced on how an effective mechanism to promptly investigate any allegation of torture demands them to speak up about the incident. Giving testimonies also reveals why a survivor of torture deserves full rehabilitation to rebuild their life. Rehabilitation has been this years focus on the International Day in Support of Victims of Torture. It is every torture survivors right and the Government should be accountable to make compensation an enforceable right. Nowadays, many torture survivors have come to terms with their trauma through this method of intervention as they listen to and realize that they are not alone to have gone through this man made tragedy. An optimistic ground can also be created to make provisions for the survivors to speak up and in the long run raise a voice in unison against the perpetrators who revels in impunity. The message has to be loud and clear so as to break the silence against impunity. Every citizen of democratic and free India, as a fundamental right, seeks the immediate ratification of the Convention against Torture without any reservations and the ratification of the Optional Protocol to the Convention. India signed the treaty in 1997 without any reservation or declaration. It is a matter of national disgrace that 15 years since, the government has failed to adopt an appropriate Torture Prevention Bill that is fully compliant with the provisions of the
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UN treaty and international human rights law. Until accountable legislative and policy measures are adopted and enforced, victims of serious human rights violations have no full recourse towards redress for their sufferings in the continuing climate of impunity that prevails in India. Testimonies contribute substantially towards a positive change but for the victims, accountability and justice, is a human right. But impunity also draws a much larger canvas, one that stretches the horizons of human rights issues. Impunity is a severe rot in the very roots of democracy, governance and the rule of law. Impunity cannot exist without legal sanction and political patronage. The concept and development of the security sector in India needs a very careful and holistic appraisal if we are to uproot impunity. The term is associated with different and often competing definitions, which include either a narrow or a broad set of actors. In the first instance, security sector refers to only state organisation authorised to use force. In the broader definition, the United Nations Development Programme (UNDP) suggested in 2002 a definition which also includes justice and law enforcement institutions, civil management oversight bodies, non-statutory security forces and civil society groups. We have to focus today on human security, and abandon the outdated notions of military threat. If India is to sincerely tackle impunity, then it must first sincerely address poverty reduction and broader security concerns that affect a wider range of societal groups because security institutions significantly affect prospects of national prospects of social and economic progress. The absolute prohibition of torture in human rights and humanitarian law brings to fore the question of the dignity inherent in all human beings. Poverty is a brutal denial of human rights. A focus on human freedom is the common element that links that provides the capability to cross over the two approaches. The denial of dignity that ensues from torture and cruel, inhuman and degrading treatment or punishment, and the denial of dignity that issues from a severe deprivation of command over economic resources, recognised as poverty, provide the fundamental values of human dignity and human freedom as the core cross-over point between torture and poverty. As we honour survivors of torture and other ill treatment today, let us also remind ourselves that the continued threats to human security in India has many more victims women, children, the aged, forcibly displaced persons, migrants, national and ethnic minorities. The inter-links between poverty and torture are unquestionable the poorest and most deprived ethnic minorities of the country are over-represented among victims of torture. The persistence of poverty among the Indian masses and the amassing of wealth among a few families constitute a major challenge to battling impunity today. Asking the poorest who have been tortured to give testimony may itself constitute torture unless we can all commit ourselves to bring them redress and rehabilitation as a right.