Impunity and the Regime of Accountability for Non-state Actors

- Som Prasad Niroula, Project Coordinator, SAFHR

The concept of impunity defined as the impossibility, de jure or de facto, of bringing the perpetrators of human rights violations to account – whether in criminal, civil, administrative or disciplinary proceedings – applies only to State actors. It is so, clearly, because laws that impede prosecution and legal proceedings without prior official sanction are available to and benefit only the State agencies.
Non-State actors commit human rights abuses and remain outside accountability despite harsh laws that aim to prosecute and punish them.
Conceptually, non-state actors belong to a very broad realm. The realm includes macro-level institutions, groups of people associated on the basis of some limited but common objectives, various civil society formations, armed groups, national and international entities, including corporations, philanthropic, cultural, educational, and human rights organizations. Our research interests compel us to limit our inquiries to the role, responsibilities and the requirements of a legal regime relevant to those organized groups and the masses of people mobilized by them who commit human rights atrocities and remain outside the reach of rule of law.
For the purpose of commensurability, it will be useful to identify common issues of human rights violations that we desire both the State and non-State agencies to be accountable for. I think they should definitely include rights to life, liberty and expression; freedom of conscience, movement and sexual choice in broadest possible terms. The right to life must include protection from torture. The right to sexual choice must prohibit sexual violence.
Armed non-State actors:
Caroline Holmqvist, a conflict management expert from Sweden, defines non-state actors as armed groups that operate beyond state control. The definition includes:
 Rebel opposition groups (groups with a stated incompatibility with the established governments);
 Local militias (organized along markers of identity, real or imagined such as ethnicity, religion, language, or on the basis of political manifestos);
 Vigilantes;
 Warlords;
 Civil defense forces and paramilitary groups (when such are clearly beyond state control);
 Private companies that provide military and security services to State or non-State actors.
In Punjab, the collaboration between the State and the non-State actors has been founded on a brazenness of impunity that is unprecedented. In early 2006, the State officials in Punjab admitted that more than 300 “militant collaborators” who had publicly been killed and cremated got rehabilitated under assumed identities. The Chief Minister of the State claimed that the rehabilitation was part of the national policy and was being followed in Jammu and Kashmir, the Northeast and other parts of the country.
In Assam, a Commission of inquiry constituted by the State government under Justice Khagendra Nath Saikia in August 2005 formally indicted the elements within the State government and the security establishment of using surrendered members of the ULFA, generally known by the acronym of SULFA, to carry out “secret killings” of family members of leaders and cadres involved in the armed struggle in the period between 1996 and 2001.
In Chatisgarh, an entire militia, including children, has been set up by the State to fight the Maoist insurgency.
Murderous Masses:
Atrocities committed by murderous masses, mobilized by organized political groups, raise another set of tricky issues. The example of anti-Sikh pogrom, orchestrated in the wake of Prime Minister Indira Gandhi’s assassination on 31st of October 1984, is well known. Murderous gangs led by political leaders, with policemen looking and egging on had killed thousand of people with impunity.
The Gujarat carnage, perpetrated by the Hindutva organizations with the active and tacit support from important elements of the State apparatus, blurs the distinction between the State and the non-State actors that commonly attaches to discussions on crimes against humanity. Please, watch this video clip: (A strange case of police firing).
Even outside these two examples, studies carried out by scholars like Paul Brass show that the sectarian violence is rarely spontaneous and that “riot producing machines” and militant Hindutva organizations operating with support from partisan State authorities are often culpable.
Issues of Accountability:
The National Human Rights Commission, in a suo moto case in the wake of Gujarat carnage, observed that the responsibility of the State extended not only to the acts of its own agents, but also to those of non-state players within its jurisdiction and to any action that cause or facilitate violation of human rights.
In terms of legal theory, destruction of enjoyment of human rights by non-state actors can be viewed from two different perspectives. The first and more conventional perspective that views State actors and agents of public power as the bearers of human rights obligations would require the governments to protect people from depredations committed by non-state actors by effective exercise of police powers and enforcement of law.
Under the second perspective that views human rights as entitlements to be enjoyed by everyone and to be respected by everyone, instead of viewing them as contracts between citizens and the State, the non-State actors, especially if they are organized formations, need to be brought before effective jurisdiction in law which can scrutinize their conduct and establish accountability.
Mandate of common Article 3 of Geneva Conventions and Protocol II bind the State and non-State actors with the obligations to respect humanitarian law norms in situations of internal armed conflicts.
However, the main problem around the issues of accountability involving armed opposition groups in partial control of a territory and outside the reach of police powers of the State lies in the State-Centric approach of both the domestic and international law. States ratify legal instruments and, therefore, carry the primary responsibility for their implementation. The State alone is involved in all stages of legal process. This is true even of procedures allowing recourse to international fora.

The main challenge before us, when we talk about human rights abuses committed by non-State actors, is in designing a legal framework to bring non-State actors, together with State actors, under a common system of accountability.
This problem was taken up for discussion at the 1990 session of the Commission on Human Rights held in Geneva, with Peru and Columbia proposing the creation of special mechanisms under the UN to monitor, report on, and work for the cessation of violent crimes perpetrated by armed opposition groups. The initiative failed due to arguments advanced by several participants that the governments were well equipped with special legislation to use force to curb violent crime. Eventually, the Commission adopted a modified resolution that requires the existing Special Rapporteurs and Working Groups under the Commission on Human Rights to pay special attention to atrocities committed by armed opposition groups and accords them a status, subject to scrutiny, within the terms of the First Protocol.
In the domestic realm too the problem of accountability for depredations committed by armed opposition groups is inseparable from the issue of their recognition by the State in law and engagement on the basis of mutually binding human rights norms. I will conclude by referring to the Ceasefire Agreement between the Government of India and the NSCN-IM, concluded in 1997, which provides a detailed framework of ground rules and permissible and impermissible actions by armed forces belonging to both the State and the non-State. The framework also provides for a monitoring mechanism.
The example is a model for building a framework of accountability for non-State actors that are outside the reach of State’s police powers. It requires the State to recognize them in some ways and then bind them to a framework of conduct during the peace process as well as hostile engagements.