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    South Asia
     May 7, '14

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Terror and impunity in Kashmir
By Shubh Mathur

One such case concerns the death of Tufail Ahmed Mattoo, a 17-year-old schoolboy who was killed when he was struck by a tear gas shell at close quarters in June 2010. He was returning home from school when he walked past protestors demanding justice for three young men who had been abducted and killed by the army and passed off as "foreign militants" a few months earlier.

On June 11, police and paramilitaries were firing tear gas shells and baton-charging the protestors. A press note prepared by Tufail's father, Mohammed Ashraf Mattoo, gives an eyewitness' version of the killing: "The woman, who is sole 'official eye witness'

of the above case, narrates the heart wrenching incident of Tufail's killing," Matoo wrote.

"'It was 11th June, a Friday. There was a loud bang,' she says. The boom that sounded like that of a grenade explosion 'was actually sound of a tear gas shell being fired.' She says that moments before hearing the explosion, 'I saw three boys running towards the Gani Memorial from Syed Sahib Shrine. One of them was Tufail. He was being closely chased by the policemen. Tufail entered the gate of the stadium but could not go too far as he slipped on the mud. Two Jammu and Kashmir police officers then came out of the Gypsy [police van] and followed him to the ground,' she says. They were hurling abuses at him in Kashmiri, saying "we will not leave you." The officers aimed at Tufail from close range and fired a tear gas shell straight at him.' The officers went near his body, she claims. 'I managed to catch hold of arm of the officer who had fired at Tufail and started slapping his face. But another officer who had ordered the former to shoot pushed me to the ground and freed him from my hold. They escaped in the same white colored Gypsy they had arrived in,' she says. 'The tear gas shell shattered Tufail's skull and killed him instantly.'"

When the family went to the local police station, the police refused to file an incident report. The family then went to the local court, which ordered the police to record and investigate the incident. A year later, when the police investigation had not made any progress, the family petitioned the High Court in Srinagar, which ordered a special police investigation.

"In November 2012," according to Amnesty International, "after more than a year, the police team submitted a case closure report to a Srinagar trial court, without informing the Mattoo family, saying that the perpetrators of the crime were "untraceable". The closure report said there was insufficient evidence available to identify Tufail 's killers. When the Mattoo family learned about the police report, they challenged the closure of the investigation before the J&K High Court. The family said the investigation disregarded crucial evidence and eyewitness testimonies, including a post-mortem report submitted by a team of doctors stating that the cause of death was a tear gas shell."

In the course of the police investigation, the eyewitness who confronted the policeman who shot Tufail was able to identify him in a line up. Yet the investigation report dismissed her testimony with two self-contradictory statements about the suspect she picked: first, they said that the man was actually a tailor, not a policeman; and second, they said that he was a policeman but was not on duty at that location on that day. On February 14, 2014, the Jammu and Kashmir High Court ordered the police to reopen their investigation into the killing of Tufail Ahmed Mattoo.

Mohammed Ashraf Matoo understands clearly what is at stake in his struggle for justice for his son: "I am defending the right of every citizen in a democracy to get justice," he says. He argues that justice is a basic human right, and human rights are for all, regardless of religion, race, or language.

Despite the silence of the international community and the active obstruction of justice by the Indian government, courts, and army, Kashmiri initiatives for justice by groups like the APDP are the foundation on which international criminal prosecutions can be built. The State Human Rights Commission (SHRC) in Kashmir, despite many shortcomings and a lack of resources, has begun investigating the crimes that have gone unpunished for so long. It has investigated thousands of unmarked mass graves in border districts. The forgotten massacres of the early 1990s and the mass rapes at Kunan Poshpora are also being reinvestigated and new prosecutions opened in Kashmiri courts.

Kashmir and international justice
The Kashmiri emphasis on discovering the truth and seeking justice for these crimes is consistent with international human rights law. Given the scale of the human rights violations and the persistence of impunity, the only possibility for justice is through international criminal prosecutions. Such prosecutions will be an essential part of any negotiated and peaceful settlement of the Kashmir conflict.

International law presents at least an ideal of justice that cannot be subverted by impunity and claims of national sovereignty. It has come to recognize that victims of grave violations of human rights and society at large have a right to see justice done; a right to know the truth; an entitlement to compensation and also to non-monetary forms of restitution; and a right to new, reorganized, and accountable institutions. It must be recognized in Kashmir that bringing human rights abusers to justice is an essential part of the peacemaking process itself.

There is no statute of limitations in international law on war crimes and crimes against humanity. Over the past two decades, the concerns raised by victims of massive human rights abuses-in situations of war, internal conflict, and political repression-have become the driving force behind the creation of international human rights mechanisms. In post-conflict societies from Guatemala to Cambodia, abusers have been brought to justice with the intervention of the international human rights community in collaboration with victims, survivors, local NGOs, and courts. Kashmir remains the unfortunate exception.

This is due in large part to the enormous amount of support India has been able to maintain internationally for its version of the conflict, even though the UN recognizes Kashmir as a disputed territory and UN Security Council resolutions dating back to 1948 call for a plebiscite to determine the future of Kashmir. The Indian version-that the insurgency is the product of Pakistani interference alone-is a convenient fiction. The number of militants fighting against Indian rule has never been more than a few thousand, and is now not more than 200 or 300, according to the Indian army. The problem is not the insurgency, as India would have the world believe. The insurgency itself is a symptom of the problem, which is the denial of the basic human right of self-determination to the Kashmiri people. The massive military presence is meant to terrorize the civilian population into giving up the struggle for Azadi, or freedom.

Meanwhile, Kashmiris are prevented from speaking out. Local Kashmiri television channels have been banned since 2010. This regime of state terror and impunity has flourished in the absence of any serious efforts by the international community to hold India accountable for its abuses. The active role of the UN in investigating war crimes in Sri Lanka contrasts sharply with its hands-off attitude when it comes to Kashmir.

Like the UN, the United States too has preferred to turn a blind eye to the abuses in Kashmir, passing up opportunities to bring Indian military officers accused of such crimes to justice when they were present on US. soil. Although in the run-up to his election in 2008, US President Barack Obama acknowledged the need for a resolution to the conflict as the basis for a lasting peace in the region, the idea was quietly dropped in the wake of the Indian outcry provoked by his remarks. The US foreign policy consensus seems to hover around the notion of formalizing the status quo, turning the highly militarized Line of Control (LoC) into an international border between India and Pakistan.

This proposal ignores the history and dynamics of the conflict. The LoC marks the Ceasefire Line of 1948, where the Indian and Pakistani armies stood at the close of their first war. It divides Kashmir into two parts, administered by India and Pakistan. Much like other partitions and divisions, it is bitterly resented since it divides villages and separates families from each other. The Kashmiris call it the khooni lakeer, or "line of blood."

Most workable proposals for the resolution of the conflict recognize the role the division has played in fueling the conflict. In its place, they propose a similar series of steps: demilitarization and free movement across the LoC; the release of all political prisoners; an end to all repressive laws that limit freedom of speech, expression, and association; accountability and justice for human rights abuses through mechanisms such as an international criminal tribunal; and the creation within a specifically defined time-frame of a process for determining the future of the region according the wishes of its diverse inhabitants. To these proposals, Kashmiri political scientist Noor Ahmed Baba adds the guiding principle, born out of the uniquely Kashmiri ethos, of turning Kashmir from a conflict zone into a zone of peace between India and Pakistan.

Shubh Mathur is is an Indian anthropologist whose work concerns memory and justice, human rights, the meanings of violence, nations and borders, the death penalty, environmental ethics, South Asia, and neighboring regions. Her first book, The Everyday Life of Hindu Nationalism, was published by the Three Essays Collective Press. She is currently working on a collaborative ethnography with the families of the disappeared in Kashmir. More information regarding the Association of the Parents of the Disappeared is available at disappearancesinkashmir.org.

(Posted with permission from Foreign Policy in Focus)

(Copyright 2014 Foreign Policy in Focus)

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