This article is a joint publication of TheNation.com and Foreign Policy In Focus.
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 twenty-five 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 fifty 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 thirty-five 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 seventeen 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 protesters 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, 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 (RTI) 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.
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 protesters 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 protesters. A press note prepared by Tufail’s father, Mohammed Ashraf Mattoo, gives an eyewitness’s 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,” Mattoo 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 lineup. 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. This past February 14, the Jammu and Kashmir High Court ordered the police to reopen their investigation into the killing of Tufail Ahmed Mattoo.
Mohammed Ashraf Mattoo 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 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 nonmonetary 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 resolution of the conflict recognize the role the division has played in fueling it. 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.