Page 1 of 2 Terror and impunity in Kashmir
By Shubh Mathur
In 1991, the historian Alastair Lamb wrote that "it has become apparent that the Indian Republic is faced with, at least in that part of the Vale of Kashmir which it occupies, what can only be described as a terminal colonial situation".
This terminal colonial situation has lasted for 25 years and has brought suffering and violence on an unimaginable scale to the civilian population. Although the violence has been seared into Kashmiri memory, it is forgotten or deliberately obscured in India and the rest of the world. Now, finally, these stories are being told and shared with new audiences, in large part due to new social media. Evidence of massive human rights abuses by Indian forces is being documented in credible and compelling detail. In their
scope and nature, these abuses meet the legal definition of crimes against humanity.
Indian-administered Kashmir remains one of the most highly militarized regions in the world. The history of military violence - disappearances, shootings, extrajudicial killings, torture, arson, and rape - has touched virtually every home and family in the valley. The total number of those killed, maimed, and otherwise harmed will probably never be known. To date, no one has been held accountable for these atrocities.
National security laws like the Armed Forces Special Powers Act (AFSPA), in effect in Kashmir since 1990, guarantee impunity to military personnel accused of these crimes. Against this continuing chronicle of military terror, the Kashmiri movement for justice and rights offers a profoundly moral voice. Grief and love give the families the courage to confront and challenge this most paradoxical of all systems of terror - a military regime in service of a country that bills itself as the "world's largest democracy."
The Association of Parents of Disappeared Persons (APDP) has brought together hundreds of victims' families united by a quest for truth and justice. Founded in 1994 by Parveena Ahangar, one of the mothers of the disappeared, it has become a rallying point for victims and survivors. Guided by the concerns of the families, APDP's mandate has expanded to cover crimes like extrajudicial killings, torture, and rape.
It has also pioneered the legal strategy that offers the best chance of ending these abuses and of bringing the abusers to justice. Meticulous documentation of the disappearances and other abuses in collaboration with the UN High Commission on Human Rights has produced a detailed record. It provides documentary evidence that may serve in any future tribunals on crimes against humanity in Kashmir. Such accountability is essential to any kind of peace settlement.
The right to kill
Among those seeking justice for the crimes committed against them is Masooda Parveen, whose husband Ghulam Mohiuddin Regoo, a businessman and lawyer, was murdered by the army in 1998. Arrested by the army and pro-India militants at the instigation of a business rival, he was tortured first in his own home and then in the army camp where he was taken for "interrogation." He died under torture. To conceal the evidence, a landmine was tied to his body and exploded. The broken pieces were left by the front door of the house two days later.
Traumatized and left with the responsibility of bringing up her young children singlehandedly, Masooda Parveen was nevertheless determined to seek justice. Since the courts in Kashmir were completely under the domination of the army, she chose to go to the Supreme Court of India and petitioned for compensation for the wrongful death of her husband. The petition was refused twice before the Supreme Court agreed to consider it.
The army's response in court is remarkable for its callousness. The best interpretation of its version of the events is that the army used Regoo as a human shield. Interrogation, according to the army's account, revealed that Regoo was a Pakistani-trained militant. "He had offered to lead a patrol to a hideout," the army testified. "A patrol was deputed to move to the hideout accompanied by Regoo. He stopped the patrol 50 meters short of the hideout. After ensuring that he was not in a position to escape, Regoo was released with a direction to go forward. When he tried to create an opening, an explosion resulted leading to his death."
In 2007, the Supreme Court ruled in favor of the army. It also reaffirmed the provisions of AFSPA that give military personnel the right to kill on suspicion, maintaining that the law was essential to upholding Indian rule in Kashmir.
Masooda Parveen, who now identifies as Kashmiri rather than Indian, reflects on the outcome: "After this judgment, how does India claim me as its citizen? By what right?" She is haunted by the memory of her husband's death. "What did he ever do to them? They killed him, then they mutilated his body."
She feels that her struggle for justice is also fought for the many others who have suffered as much or even more than she has, but are forced to remain silent and helpless. Echoing a universal sentiment among the victims and survivors of Indian army violence, she says that she will fight for justice until the end of her life.
In May 2012, the Supreme Court again upheld the principle of military impunity in the Pathribal fake encounter case. "Fake encounter" is a term from the coded lexicon of Indian policing and counterinsurgency, widely understood to denote a staged shootout with militants - in other words, an extrajudicial killing by the police or army. In March 2000, in Pathribal, five Kashmiri villagers were abducted and killed by the army, and passed off as the militants responsible for the infamous Chattisinghpora massacre, where armed militants killed 35 Sikhs.
Since the killings took place just before US President Bill Clinton's visit to India, they attracted international attention. The identity of the killers was somewhat blurred, as the militants wore Indian army uniforms and shouted Hindu slogans during the killing, according to the sole surviving eyewitness, who was quoted in an Amnesty International report in 2000. An Indian army post less than half a mile from the village took no action to prevent the massacre, which unfolded over three hours.
A few days after the massacre, five men were killed by the military in an "encounter" in the Anantnag area of south Kashmir. The army claimed that the slain men were the "foreign militants" responsible for the massacre. The bodies were buried and the officers in charge commended. Protests by villagers in the area, however, brought to light the fact that the military had abducted 17 local men, and that those killed by the army were not militants but local farmers.
The killings continued. On April 3, police opened fire on a group of protestors at Barakpora, killing eight, including the son of one of the missing persons. The mass protests continued and resulted in an investigation and the exhumation of the bodies, which were identified through DNA testing as civilians from Pathribal village.
In 2003, the inquiry into the encounter was handed over to the Central Bureau of Investigation (CBI), which submitted its report in 2006. On the basis of the report, the CBI filed kidnapping and murder charges against five army officers belonging to the 7th Rashtriya Rifles.
The army's response was to invoke the AFSPA. The matter went before the Supreme Court, which in May 2012 gave the army the choice of surrendering the officers to face trial in a civilian court or to institute a court martial. After much delay, the army chose the latter option. Amnesty International noted that "by giving the first option to the army for a court martial, this ruling reinforces immunity from prosecution in other cases of alleged extra-judicial killings in Jammu and Kashmir ... Instead of upholding the universal and constitutional right to life, the Supreme Court chose to rely on emergency laws which provide excessive powers, as well as impunity, to the army."
Under AFSPA, military personnel cannot be prosecuted without permission sanctioned by the central government in Delhi. There is no recorded case of such permission being granted since the beginning of the conflict. Responding to Right to Information applications filed by a Kashmiri NGO, the Jammu and Kashmir Home Department affirmed that "no sanction for prosecution has been intimated by the Ministry of Home Affairs and Ministry of Defense to the State Government from 1990-2011 under the J&K Armed Forces Special Powers Act."
The court martial in the Pathribal fake encounter case opened in September 2012. Fear, intimidation, and the absence of information about court dates and locations made it impossible for the testimonies of the families of the victims and local witnesses to be recorded. On January 23, 2014, the army closed the court martial, with an inexplicable statement: "The evidence recorded could not establish a prime-facie case against any of the accused persons but clearly established that it was a joint operation by the Police and the Army, based on specific intelligence."
De facto impunity
Police have been implicated in abuses alongside the armed forces. They enjoy a similar climate of impunity.