Basil Fernando

Impunity is a much-used word these days. Perhaps for that very reason it has lost much effect. UN agencies and even organizations of states such as the European Union tell countries to "abandon impunity". Naturally human rights organizations also do the same. States so told do not resist. They just ignore the call. Year after year calls are made and each time states ignore these calls.

A consequence of this situation is that such calls on governments do not produce much hope of change among people of the countries concerned. They know that despite calls to prosecute state officers for crimes and violations of rights, nothing really happens.

Why do calls for abandoning impunity produce so few results? Without addressing structural reasons for grave violations of rights by the state officers, suggestions to end impunity are purely generalized abstractions. Let me explain by way of an illustration. A country with a record of serious violations of the Convention Against Torture is told to prosecute all perpetrators. This recommendation having been given to the government, some possible scenarios follow:

• No one reads the relevant report or recommendation. There is no official with the duty to read or to direct the report to a relevant authority for action. (In some situations some person is assigned to formally acknowledge the report, with polite comments that due consideration will be given to it. However the response does not go beyond this.)

• The report is passed to a minister, for example the minister of justice. However the minister does not have any possibility of implementing the recommendation. The minister may make a formal reply to the head of state, who transmits it to the organization which made the original recommendation.

• Heavy pressure is exercised by many agencies or powerful governments. In response symbolic action may be taken by the state concerned, for example to appoint a commission of inquiry or even arrest one or more persons. However as soon as the pressure ceases neglect sets in. This scenario reflects what happens in many countries in Asia.

• The state concerned promises to take action, but there is no genuine authority with power to take complaints, or, where a mechanism is available, there may not be an agency for conducting effective inquiries upon receipt of complaints. Again, where there are complaint and investigating mechanisms, there may not be an effective public prosecution system, and so no prosecutions take place. Alternately, where all formal mechanisms exist they may be beset with corruption and other malpractices that obstruct their effective operation.

• The law enforcement agencies themselves have become a major threat to the security of the people and engage in serious criminal activities routinely. Under such circumstances, the call to end impunity is utterly naïve.

• The political system itself is causing the type of violations against which the recommendation is made. The state may not even formally respond to the recommendation, except by way of denials.

Many examples may be given for each of the above scenarios. There are also an almost infinite variety of alternative outcomes for each of those given above.

Since making generalized recommendations to governments in the types of situations above, being those of most countries in the world, it is necessary to find ways to overcome this obstacle. The making of improved recommendations involves both the process of arriving at recommendations and also the very nature of the recommendations themselves. This brings the question of micro-studies into the picture.

Micro studies on human rights issues focus on details of the problem that obstruct the implementation of the human rights of a particular state, and how they can be removed. For example, instead of merely stating that impunity should be removed, a micro-study will go into the ways that impunity has become possible and offer details of how to over come those problems.

A micro-study suggests that merely to observe a particular state party lacks the political will remove impunity is not much of a discovery. While political will is a necessary aspect to solve any violation of rights, the lack of it is not a satisfactory explanation for why violations take place. Putting blame on the lack of political will often becomes a way to avoid developing understanding of the process by which impunity takes place. For example, even with the best political will it is not possible to ensure fair trial in a country where basic principles of independence of the judiciary have not yet been introduced. Many a government brought into power by popular upsurges against a tyrannical regime ends up unable to do much against continued violations of rights, despite good intentions. The reasons often are the entrenched vested interests, which do not go away with the election of new governments, and other structural problems that do not automatically change. A detailed understanding of the obstacles to rule of law and well worked out strategies to counter these are necessary if the wishes of the people who put the new regime into power are to be realized.

Micro-studies into removal of impunity require (a) Study of the legal structure of the criminal prosecutions in a country (b) Study of factors other than those arising from the legal structure, such as cultural, social and historical factors. Micro-studies into the legal structure though which human rights violations are to be redressed imply studies into the police, prosecution and judicial systems, and their relationships with each other.

Detailed studies into the police system indicate both how it is envisaged and how it actually functions. The way the system is envisaged is important in finding out whether, at least theoretically, the system would meet the requirements of a system under the norms and standards of article 2 of the ICCPR. If the envisaged system is itself flawed, as in many instances in fact it is, then it is not possible to expect compliance with article 2. Mere ratification of the ICCPR and other human rights instruments will not make much sense unless accompanied by genuine reforms to upgrade the system. Instead what happens all too often is that a government with a very poor law enforcement system gets international credibility by ratification of human rights covenants and conventions and qualifies itself for greater international respect while its human rights record remains unchanged. It is a different situation when a good system has been envisaged and articulated in law but for practical reasons does not function as it should. The causes of such malfunctioning must be studied meticulously, if proper recommendations are to be developed for correcting the situation.

In the case of the prosecution system it is also essential to know whether a proper prosecution system exists in law. Often close study shows otherwise. The demand for prosecution is frequently made of a system that does not even have the legal potential to act. In many instances the prosecutor’s office is a minute institution with very little significance and power. If demands for proper performance are made without real understanding of its lack of power, the result is merely a public gesture without any contribution to solving the rights violations. The situation is again different when a proper system exists in law but there are problems of actual functioning, despite the legal potential being available.

In essence micro-studies into human rights violations mean that the legal mechanisms which allow such violations to happen need to be studied in detail. When understood it is possible to prescribe suitable remedies. Merely to condemn violations and demand cures without exposing the way violations take place is futile.

There are many causes of human rights violations not directly related to the legal structure. A few illustrations follow.

• A massive psychological crisis may undermine the legal process temporarily. If such a crisis is allowed to stay long enough it can affect the protection of rights absolutely. The global situation after 11 September 2001 is one example of this condition. The psychological crisis arising out of this event has been used by some to call for the suspension of normal protections available to people, such as those available to detainees and prisoners, those undergoing trials and the like. Public opinion is manipulated to have people believe that effective security measures require suspension of some legal measures. A form of consensus is worked out from within the society to not assert their rights strongly at these times. It is this "consensus" that is then used to attack the legal framework for protection of rights. Two results occur: no expansion of mechanisms for the protection of rights takes place during these times, and the existing mechanisms are weakened. When this condition persists for some time, it begins to have a logic of its own, in further deteriorating the legal mechanisms.

• There are other long-term processes affecting the protection mechanisms adversely. For example, in societies that have not seen a very dramatic transformation from feudalism, old habits assert themselves over newly installed legal mechanisms for protection of rights. The social force of the old habits can be much more powerful than the legal force of the institutions created to protect rights. Under pressures of feudal habits the new protection mechanisms can give way or become ineffective. With out micro-studies into the conflict of the old and new, and without taking effective action to counteract the pressure based on past habits, mere imposition of the new paradigm of rights protection is of little use.

• Another category of causes affecting rights protection mechanisms may come from special types of repression deeply rooted in a particular society, which the rest of the world may not find easy to understand. An illustration is the Indian caste system. When the Indian Government introduces constitutional and legal provisions to eliminate this system the outside world credits the Indian Government for taking action to protect rights. However only those who live under such repression see though the measures as purely cosmetic. Here again it is only a micro understanding of the system that can lead to effective proposals to end it.

• Social privileges in countries where people other than the poor have not been brought under any effective legal controls also result in violations. In such a legal culture the law exists only to work against the poor. There is tacit consensus that the privileged must not be touched by the legal mechanisms. Such deeply engrained social practices and the modern conception of the universality of rights cannot coexist. When modern rules are accepted by way of constitutions and the signing of international treatises, not much seriousness is attached to them. Here too a micro understanding of the problems in this situation must be properly worked out, for mere imposition of a legal mechanism for protection will prove futile. Women’s rights issues in many countries fall under this category. Where men’s privileges are unchallenged, legal reforms only have superficial influence.

In most countries, human rights implementation requires much more than mere ratification of covenants and conventions. The promoters of human rights need to trouble themselves with the problems of implementation of human rights protections. When this does not happen gaps between what is in print and reality will not only remain, but will also have the hidden approval of the international consensus, which does not want to bother too much to rectify matters.

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Published on: 2002-10-24 (1020 reads)