Omar Abdullah’s call for a Truth & Reconciliation Commission in Kashmir, following the finding of bodies in mass graves, raises complex and disturbing questions about justice.
In early 1977, Jacobo Timerman, the publisher of a liberal newspaper in Argentina, was arrested by the military junta. For some time previously, he had used his newspaper to publish accounts of government brutality and human rights violations. After his arrest, Timerman was kept in isolation, blindfolded for long periods and subjected to brutal torture with an electric cattle prod. He was finally released in 1979 and his 1981 book Prisoner Without a Name, Cell Without a Number is a harrowing account of his years of imprisonment. Never sentimental, the book has the dispassion of a professional journalist; this only makes it the more horrifying. But Timerman was a Jew, and his captors were anti-Semitic, and what troubled Timerman most, what he could not understand or reconcile, was the unreasoning hatred for his being a Jew.
Reporting for the New Yorker on Adolf Eichmann’s trial, the political theorist Hannah Arendt used the now famous phrase, “the banality of evil” to ask why it is that ordinary people so often engage in the most egregious conduct against their fellow humans. Is it mere thoughtlessness? A failure to question? A tendency to conform with mass opinion? The questions remain today; if anything, as Samantha Power — now a special assistant to President Obama; on the US National Security Council and running the newly established Office of Multilateral Affairs and Human Rights — says in her Pulitzer prize-winning A Problem From Hell: America in the Age of Genocide it raises even larger issues of international and domestic law and conflict resolution. Coming at it from an altogether different perspective is James Waller, Chair of the Pyschology Department at Whitworth College. In Becoming Evil: How Ordinary People Commit Genocide and Mass Killing, Waller posits four factors that ‘lead people to commit acts of extraordinary evil’ and, among these, he speaks of a ‘culture of cruelty’ and how people, binding into groups, evolve an ethos that is quite contrary to how they conduct their ordinary, everyday lives; and of the us/them divide by which aggressors dehumanize their intended victims.
Perhaps because their primary focus is genocide, the most extreme form of discrimination, neither Power nor Waller deal with the issue of apartheid in South Africa, or its aftermath, the Truth and Reconciliation Commission (TRC). Set up in 1995, the TRC was in some ways a conceptual breakthrough in a country with a deeply fissured society, and in itself a quintessential Mandela move: thinking out of the box and daring to attempt what no one had dreamed possible. The TRC had three separate committees (Human Rights Violations; Reparations and Rehabilitation; and Amnesty), and among its foundational theories was one of ‘restorative justice’, as opposed to ‘retributive justice’. Such was its influence that twenty countries, from America to East Timor, have since set up TRCs. The South African TRC report of 21 March 2003 contains powerful recommendations; and the concluding comments section of the Reparation & Rehabilitation Committee report (part of March 2003 TRC Report) is a profoundly moving and distressing document.
It had its critics. A 1998 report of human-rights abuse during Apartheid filed by the Centre for the Study of Violence and Reconciliation before the TRC indicated that reconciliation between the black and white communities had failed. Most victims did not see reconciliation as a viable alternative to justice; coupled with the amnesty programme, the TRC was slanted towards the aggressors. Other victims’ families too echoed this view, as did an unusual play Ubu and the Truth Commission by Jane Taylor.
Genocide, mass killings, torture and systematic oppression of a people over an extended period do not have to result in commissions of this kind. The Argentine National Commission on the Disappearance of Persons investigated the ‘disappearance’ of several thousand persons during the Dirty War. Its report, the fabled Nunca Más or ‘Never Again’, contained 50,000 pages of corroborated and sedulously organised depositions, many of them detailed accounts of abuse and torture in captivity. Nunca Más has been consistently in print 35 years, and has lost none of its power in that time. An equally shocking report came from Brazil in 1985 (Brasil: Nunca Mais; the English edition is entitled Torture in Brazil), documenting 15 years of pervasive torture by Brazilian governments. The Brazilian report is perhaps even more horrifying because it is based on official reports, photocopied clandestinely. In Argentina, Nunca Más was the basis of trials, not any form of reconciliation.
Today, the issue is closer home. For many of us, Kashmir now exists only in memories of happier days; its present realities are too grim. When the State Human Rights Commission’s found more than 2000 bodies buried in 38 sites in North Kashmir, the Chief Minister, Omar Abdullah, called for the setting up of a TRC for Kashmir. Predictably, and perhaps understandably, this was rejected by Syed Ali Shah Geelani, the Hurriyat Conference Chairman. “We do not expect justice from the system which is perpetuating human rights violations in the state,” he said.
Forgiveness and punishment stand at opposite ends of a justice spectrum. But, as Arendt says in The Human Condition, both attempt closure, to put an end to something “that without interference could go on endlessly”. Neither is possible without testimony from victims; and the conditions in which this testimony is recorded or taken is crucial to the outcome. Charting the course of victim/torturer engagements in Brazil and Uruguay in A Miracle, A Universe: Settling Accounts with Torturers, Lawrence Weschler records a remarkable four-page synopsis of proceedings before Brazilian military tribunals hearing accusations of torture by victims. The tribunal — four lay persons and one judicial officer — meticulously documented the evidence; and often accused the victim of lying. Later history provided redemption: “These victims — hollowed-out, burnt-out shells — came alive once again by testifying to the truth of their own experiences. And that truth, to a degree, has set both themselves and their societies free.” If Weschler’s last sentence has a Biblical ring to it (John 8:32 “Then you will know the truth, and the truth will set you free”) it is because in those countries, a more traditional form of punitive justice resulted. It is hard to conceive of the conditions under which testimonies would be taken, accusers confronted, and accounts ‘settled’ in the kind of situation we see in Kashmir.
There is no bridge across this divide; for what is at issue here is the very concept of justice. By definition, a TRC requires an amnesty, an exit option from the traditional form of retributive justice, and from punishment for past deeds. It is yet unknown whether the substitute — ‘reparative’ or ‘restorative’ justice — works in practice, and if it does, in what circumstances.
Amnesty in a TRC is most troubling, for it carries with it an assurance of legal pardon regardless of the accuser/victim’s intentions or desires. It creates a parallel legal universe to which accepted judicial and legal norms do not necessarily apply. Amnesty shares its linguistic Greek root, mnemos or memory, with amnesia. To grant amnesty to those who murdered, raped and tortured, we must impose on ourselves an amnesia of each murder, every rape, every torture. And, given the state of the nation, why this should be accepted in Kashmir and not elsewhere is equally hard to fathom.
The litany of states with records of human rights violations is very long indeed; and we would have to amend our Constitution to say, perhaps, “We the people of India, having solemnly resolved to forgive and forget …”
In early 1977, Jacobo Timerman, the publisher of a liberal newspaper in Argentina, was arrested by the military junta. For some time previously, he had used his newspaper to publish accounts of government brutality and human rights violations. After his arrest, Timerman was kept in isolation, blindfolded for long periods and subjected to brutal torture with an electric cattle prod. He was finally released in 1979 and his 1981 book *Prisoner Without a Name, Cell Without a Number* is a harrowing account of his years of imprisonment. Never sentimental, the book has the dispassion of a professional journalist; this only makes it the more horrifying. But Timerman was a Jew, and his captors were anti-Semitic, and what troubled Timerman most, what he could not understand or reconcile, was the unreasoning hatred for his being a Jew.
