Impunity is the absence of accountability and the rule of law. Impunity is defined in an international human rights instruments as the ‘impossibility, de jure or de facto, of bringing perpetrators of violations to account’, in criminal, civil, administrative or disciplinary proceedings, because such perpetrators are not made subject to inquiries that will allow them to be accused, sentenced and ordered to provide reparations.¹ Impunity enables an environment where violations are allowed to continue unhampered. Looking back the world history, conflict drivers around the world are often related to chronic impunity and lack of accountability of one kind or another. Where impunity prevails, human rights become the first casualty.

According to recent statistics, more than 10.2 million people in the world are deprived of their liberty, and an important number among them are awaiting trial.² To hold perpetrators to account and provide justice to victims remains a challenging task, globally as well as in South Asia. People’s movement and the systematic intervention of civil society across the globe have established legal tools and best practices to combat the culture of impunity. In Latin America, people’s quest for truth-seeking, accountability and reconciliation was phenomenally influential. In Europe, there have been several attempts to combat the culture of impunity through tribunals, EU human rights mechanisms and mass creation of public memories. The principle of command responsibility was stressed upon to establish a mechanism for accountability.

Procedurally, most of South Asian states are democratic. They hold periodic elections and form governments. However, substantially, illiberalism holds way in each of the states. It is seen in the delay and denial in developing tools to combat impunity. In another indication of illiberalism, legislations, such as penal codes, which are available in all the countries, are enforced in a manner that grants immunity to erring officials rather than hold them to account. Human rights violations by armed forces and military establishments are often shielded in the pretext of ‘national security,’ ‘public order, ‘counter-terrorism’ and so on.

The culture of impunity has, thus, become institutionalized in South Asia. It thrives on the absence of the rule of law and lack of political will of the governments to tackle injustices and hold the security apparatus to account. Even the judiciary has been rendered helpless, not to speak of national human rights institutions.

This series of publications, ‘Impunity Report in South Asia’ summarises the research outcome on the institutionalised impunity in seven South Asian countries; Bangladesh, India, Nepal, Pakistan, Sri Lanka, Afghanistan and Maldives.

Issue 1: State of Impunity in Bangladesh

Impunity in Bangladesh widely includes civil, administrative and criminal justice that make perpetrators immune to credible investigation of crimes, and the prevention of prosecution and lawful punishment. Impunity has been an inseparable part of the national policy of Bangladesh since the inception of the country following its independence in 1971. In today’s Bangladesh, victims of ordinary crimes or gross human rights violations remain uncertain to receive justice on time. In the given context, the perpetrators are not prosecuted as demanded by the victims following national and international standards. The society is given the impression that ‘there is no shame in violating rights’, especially if the offenders are somehow associated with the power holders.

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Issue 2: Impunity and Torture in the Maldives

The Maldives has improved its democratic credentials since the last presidential election; even so, the culture of repression and persecution is far from over. Concerns regarding the right to freedom of speech; the right to freedom of assembly and association; and the protection of minority rights and human rights defenders remain significant concerns.

This paper highlights areas where the country needs urgent, focused and intensified reform efforts. The study is based on the analysis of existing literature on strengthening the country’s human rights commitments through institutional reforms and amendments to the legal framework. The section on transitional justice is based on interviews with survivors of past atrocities in the Maldives, and an analysis of international law, with a particular focus on the provisions that deprive members of the public of effective remedies.

Police and prison reforms are central to the Maldives’ efforts to establish the rule of law, good governance and open democracy. This research focuses on the Maldives, with a view of identifying historical and structural issues that contribute to the prevalence of impunity for atrocities; as well as certain criminal offences; and the repression of rights and political violence. Recommendations made by international bodies and informed by previously completed studies, and with the acknowledgment of civil society concerns can lead the Maldives to consolidate freedom, liberty and stability if prioritised and implemented effectively.

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Issue 3: The State of Impunity in Pakistan: A Minority Community Perspective

Impunity exists in Pakistan, creating challenges to the rule of law and curtailing citizens’ rights. It is common for civilians to experience: extra-judicial killings; enforced disappearances; illegal detention; torture; and extortion, which are closely associated with vague laws, court jurisdiction issues and the weakening writ of the government. The human rights to religious freedom is almost non-existent in Pakistan for both sectarian and religious minorities, while the very act of applying for a national identity card – central to any banking, financial or other services in Pakistan – becomes an act of self-abnegation for the ordinary Ahmadi.

Additionally, women are denied equal inheritance as well as equal testimony under the law of evidence, while, there are constant threats of murder and enforced disappearance, often carried out by the state and non-state actors, thereby fuelling impunity. The main source of the rampant impunity in Pakistan should be identified and eliminated by closely reviewing the legal documents and existing practices of undemocratic exercise.

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Issue 4: The State of Impunity in Nepal

This study aims to promote stakeholder solutions to the current state of affairs in Nepal, which has prevailed since the end of armed conflict in 2006. The study argues that delayed justice in the cases of grave human rights violations that occurred during the armed conflict between the Maoist party and the Government of Nepal is closely associated with accountability of the then conflicting parties. The lack of the legislature’s engagement and the Government’s reluctance in addressing the recommendations of the Supreme Court on transitional justice-related instruments have prolonged the end of impunity.

Upon reviewing the literature on human rights violations, this study concluded that accountability has been impeded by the fragmented conflicting parties, who ignored the victims’ concerns about justice. The Government, on the other hand, neglected truth seeking, and therefore failed to ensure justice, including in the provision of reparations and standardised institutional reform. The current state of the country’s transitional justice law and unaccountability of state agencies cannot be improved without a collaborative approach and a consultative process with civil society organizations, victims and their families, as well as the international community.

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Issue 5: Impunity in Sri Lanka: The Role of Survivors, Victims, and Their Families in Challenging Impunity

This paper will explore the issue of impunity in Sri Lanka. The survivors and the victims in this paper refers to those that have suffered from impunity and injustice in Sri Lanka’s legal system. To this end, the paper makes reference to cases of survivors’ and victims’ fights against impunity in the country. One of the key findings of this study is that challenging impunity in Sri Lanka is not well received due to reasons that range from: gaps in legal institutions and a lack of public interest or commitment; to corruption and inefficiency in the existing systems, as well as political and state interference and other pull and push factors, which will be elaborated in detail.

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Issue 6: The State of Impunity in Afghanistan

Since 2001, Afghanistan has witnessed considerable achievements in the area of human rights, such as: the Constitution of 2004; the law on Elimination of Discrimination against Women in 2009; and the establishment of the Afghanistan Independent and Human Rights Commission. The creation of a legal system and several civil society organizations are also notable achievements.

In addition to this, the country has ratified two core international human rights treaties; the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of Persons with Disabilities (CRPD). However, with the ongoing armed conflict, these hard-won gains are more fragile than ever. If these achievements are not supported and consolidated, there is fear that they may be reversed, as the overall human rights situation appears to be deteriorating.

As it stands, there remain clear indications of declining respect for human rights; in particular, the surge in civilian casualties; an alarming level of women rights violations; deteriorating security; the recurring impunity of abusers; growing corruption; and the weak rule of law and accountability, combined with a lack of political will indicate that there is a waning determination on the Afghan Government’s part to respect, protect and defend human rights. Finally, despite incidents of war crimes and crimes against humanity that took place during the political expediency of the last four decades, there remains no prospects for remedial action for victims and no accountability measures to bring perpetrators to justice.

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Issue 7: The State of Impunity in India

India has a culture of impunity that has worsened since 2014 when the Hindu right-wing government came to power. During this regime, India witnessed the rise of authoritarianism and the subsequent weakening of democratic and public institutions. In addition to this, there has been a notable rise in hate crimes and mob violence against minorities, whereby State complicity in these hate pogroms is noted.

Whilst the laws of the country largely comply with international standards, India has some draconian laws that authorize preventive detention and allow for the detention of persons for extended periods of time. In conflict areas, the Armed Forces are provided with special powers and immunity from prosecution. The very existence of these laws, among others, contribute to de jure and de facto impunity in India.

It is worth noting that India has general laws and institutions that are capable of ending impunity, however, due to inconsistent enforcement of laws and weakened institutions, accountability is not the norm but rather, the exception. Persecution of persons and civil society organisations critiquing the State or seeking accountability is not uncommon. This paper delves into the context, causes and forms of impunity in India and proposes recommendations that could serve to end impunity.

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Issue 8: South Asia: An Overview

Most of the South Asian States follow democratic norms and values, as may be evidenced by the fact that they hold periodic elections. However, these States also lack concrete plans and tools to combat impunity. Some studies suggest that the legislation and penal codes available in these countries are selectively enforced, whereby acts committed by erring officials are ignored.

Additionally, major incidents of human rights violations by armed forces and military establishments are often excused under the pretext of ‘national security,’ ‘public order, ‘counter-terrorism’ and so on. A culture of impunity is in a sense institutionalized in South Asia. The region is characterised as having an absence of the rule of law, and as lacking the political will to tackle injustice or hold security sectors to account. In many cases, the role of the judiciary and the national human rights institutions has been rendered helpless or dysfunctional.

This research seeks to provide insight into the state of impunity in South Asia. It aims to build a regional knowledge base on issues pertaining to impunity that cut across the region, and link them to national campaigns and advocacy efforts for the establishment of a regional human rights mechanism. It further presents an overview of impunity in South Asia based on the country papers developed by respective country authors from Afghanistan, Bangladesh, India, Nepal, Pakistan, Sri Lanka and the Maldives.

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For further information, please contact:

• South Asia Programme, FORUM-ASIA, sasiaforum-asia.org
  

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• Communication and Media Programme, FORUM-ASIA, [email protected]