Affirming right to know truth

We are ordered to forget, forgive
Bulldoze shrines of memory…
                   The Manual of Occupation: From the collection in Green is the Colour of Memory by Huzaifa Pandit.

A day before Eid, a Twitter storm with the hashtag #InquireKashmirKillings erupted. Notwithstanding the pall of gloom caused by the killing of respected editor- in-chief of Rising Kashmir, Shujat Bukhari by unknown gunmen on the very day that the report by the UN on the situation in Kashmir vis-a-vis human rights was released, Kashmiris hurled themselves into battle.

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Tweets vehemently echoed the request made by United Nations High Commissioner for Human Rights for an international commission of inquiry in Kashmir. Citing some of the killings of unarmed civilians by the security forces over the decades, for which there has been no justice delivered, the Kashmiris fleshed out the cold facts and statistics by providing names, details of incidents and images. They confirmed the right “to know the truth” and to preserve “memory which emphasizes the central importance of a thorough and effective investigative process in order to counter impunity effectively,” which as the report states, is increasingly a part of international jurisprudence.

The roll call of crimes listed through tweets and images was chilling. Just a handful of examples :

*Wamiq Farooq, class VIII student killed by tear gas canister hurled at him in 2010.

*Maimoo Regoo killed by the Border Security Forces in 1990. Her daughter still preserves the blood stained shawl she was wearing.

*Danish Sultan, 12 years of age, drowned in Jhelum whilst being chased by the police.

*A mentally retarded man showered with pellets in old Srinagar.

Most poignant was the tweet mourning Viqar killed that very day.

Tomorrow is Eid and tomorrow is funeral of a teenager.

Report on the Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit- Baltistan by the Office of the United Nations Commissioner for Human Rights, the first of its kind on Kashmir, is a landmark one because it acknowledges the political rights of the people in the region and calls upon the governments of India and Pakistan to respect the Kashmiris rights to self determination as protected under international law.

Summarily dismissed by India as “tendentious” it has been criticised by prominent sections of the Indian media as “airy fairy” and even “idiotic”. The UNCHR, on its part, declares that in assessing the situation of human rights in Kashmir, it has relied chiefly on “the binding obligations that both India and Pakistan voluntarily assumed as State Parties to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights …… …..as well as customary international law.”

There are many sections of the 48-page report but, the key human rights challenges are sections dealing with lack of access to justice and impunity and the use of excessive force. Deploying the yardstick of international standards the report claims:

Special laws in force in the state, such as the Armed Forces (Jammu and Kashmir) Special Powers Act 1990(AFSPA) and the Jammu and Kashmir Public Safety Act (1978) (PSA) have created structures that obstruct the normal course of law, impede accountability and jeopardize the right to remedy for victims of human rights violations.

AFSPA empowers the armed forces in J&K to enter homes and search without warrants, to shoot unarmed civilians even with intent to kill and to destroy property_ on mere grounds of suspicion. Moreover, section 7 denies permission to prosecute armed forces personnel unless sanction is given by the Union of India.

The report notes:

In the nearly 28 years that the law has been in force in Jammu and Kashmir, there has been not a single prosecution of armed personnel granted by the central government. In relation to this, the Indian authorities claim they follow a policy of ‘zero tolerance against human rights violations and that military courts appropriately handle any allegations of human rights violations.

But, as the report observes, according to the Special Rapporteur on Independence of Judges and Lawyers, “military courts do not meet international fair trial standards and thus are not suitable to try offences committed against civilians.”

Machil and miscarriage of justice

An example of justice denied by military courts can best be demonstrated with the Machil fake encounter case to which the report also alludes.

In 2010, three youths from Baramulla district were hired by another local to work as high altitude porters for the Indian Army. They were taken by the agent who recruited them and handed over to soldiers of 4 Rajputa Rifles. They were later killed by the soldiers near the border at Machil and branded as “foreign militants” in order to claim gallantry awards and cash incentives.

It was only after detailed police investigations, following complaints by families of the missing youths, that the lid was blown off this heinous crime. Exhumation of bodies confirmed they were locals from Thayen village and court proceedings began. A High Court decision allowed the army to conduct its own inquiry. On November 12, 2014, five personnel were convicted by an army court and sentenced later to life imprisonment. But, this decision, hailed as landmark, was upturned in July 2107. The Armed Forces Tribunal has suspended the sentences and granted bail. For the families of the victims who tried to pursue justice this is a cruel blow. “Which law is this that you sentence them to life sentence and then within a few years decide to release them?” asked Mohammad Yousuf Lone, father of 22-yearold Riyaz who was killed.

Lethal and Excessive force

Another crucial section of AFSPA that the report dissects is section 4 which deals with lethal force and how it has been deployed to deal with protests, dissent and gatherings. Section 4 allows the use of lethal force against any person contravening laws or orders “prohibiting the assembly of five or more persons.”

This, says the report, contravenes several international standards on the use of force and related principles of proportionality and necessity including UN Code of Conduct for Law Enforcement officials and UN Basic Principles on the use of Force and Firearms by Law Enforcement officials. International norms believe firearms should only be used as last resort and used with “lethal intent only when strictly unavailable in order to protect life.”

The exponential rise in civilian killings between 2016 -2018 are a stark reflection of how lethal and excessive force has been deployed against the people of Kashmir as they protest and resist. According to official data released early this year, civilian killings rose more than 166 per cent in 2017 from a year ago, even as there was a decline in the number of deaths of security personnel.

Civilian killings are generally categorised as those who died because of firing from across the border, those who died during protests and those who died because of cross firing between armed militant groups and security forces. This year, in a rather significant statement in the assembly, former chief minister, Mehbooba Mufti, in reply to a written question said that in 2017, 20 civilians were killed in “law and order” problems and 48 died in “militancy relegated incidents” thereby making a clear distinction between killings during protests and gatherings and to those killed near where an encounter was taking place.

This distinction comes in the wake of a new phenomenon. That of people, especially the youth, trying to rush towards the site of an encounter as soon as they see moving convoys and troops. People try to create a diversion by shouting slogans or stone pelting to give a chance to the holed up militants to escape or then simply shout slogans to demonstrate solidarity. But, what is seen by Kashmiris as a sign of a truly indigenous people’s uprising, has been denounced by the Indian Army as activity by over ground militants and is dealt with utter ruthlessness.

In February 2017, chief of Indian Army warned of tough action and “zero tolerance” and the army’s statement made clear that such people, though not armed combatants, would be viewed as legitimate targets.

Kashmiris allege that contrary to official claims most of the killings are not because of cross firing at the encounter sites but are targeted killings. Many of them have occurred several kilometres away from the encounter site.

During my field trips to Kashmir in 2017 I learnt how in most cases the encounter site is cordoned off in several concentric circles and at the farthest circle there are personnel who prevent access. Most protests take place a considerable distance away and the argument that people are actually participating in hostilities is viewed with scepticism.

A field trip to Pulwama ( said to be the “hotbed of militancy”) with a researcher was revealing in regard to aspects of lethal force, the nature of targeted killings and the difficulties in accessing justice. The father of 18- year- old Owais Shafi Dar of Kakapora said his son was shot dead by pellet gun firing with such lethal intent that an entire cartridge lodged in his chest. There were no protests that day and the youth was shot as he was coming home from the mosque on August 13, 2017 by Central Reserve Police Force (CRPF) personnel, returning from an encounter near Awanee. The father believes that the CRPF were angry that day because they had lost a man in the encounter and shot in a vendetta. The incident was witnessed by a shop owner Fayaz Ahmed Dar, who helped rush the youth to the local hospital from where he was taken to SMHS hospital in Srinagar. The police lodged an FIR after many days and only after the intervention of the Deputy Commissioner. The family had not been shown a copy despite many requests.

The mother of Firdous Ahmad Khan of Begum Bagh insisted he was a vegetable seller who left home on August 1, 20127 to procure vegetables from vegetable growers. It was the day that Abu Dujana, the Lashkar e Toiba commander and his associates, were killed in an encounter. The family does not know how Firdous died or who killed him as a huge contingent of the army, CRPF and Special Operations Group (SOG) were deployed for the encounters. All they know is that Firdous was found with an abdominal wound in the right side at Harkipora and rushed by local people to a hospital where he was pronounced dead on arrival. The family had not even been able to procure a death certificate because he was technically not a patient in the hospital and the police had summarily dismissed attempts to lodge an FIR without the certificate.

Amir Nazir Wani, a 14-year-old boy of Begum Bagh who was shot dead on March 9, 2017, was supposed to be in school, said his brother, but had slipped off to join the protesting crowds at Golipora, two kilometres away from Padgampora, where an encounter was underway since the previous evening. Although the boy was a considerable distance away from the site, lethal force was used. “Everyone in the village was shocked to see a young boy brought home dead with a bullet that had entered his neck and exited from the chest, ” said the brother. The family was summoned to the police station and learnt that an FIR under section 307 of Ranbir Penal Code had been filed. But later the same police station promised ex gratia relief (This is an amount given by the state for civilians caught in cross-firing). “The police say he is an accused and still they are recommending ex gratia. It is mind boggling,” added the brother who said the family had no hopes of justice.

Lawyers in Kashmir say this practice of turning the victim into the accused is commonplace with regard to civilian killings especially during periods of unrest, as is the assumption that the force unleashed was legitimate. This is because the police tend, under pressure, to rely on the version given to them by armed forces when filing the FIR and do not record, let alone investigate information brought in by others, including witnesses.

This is despite the fact that a Supreme Court decision (Babubhai Versus State of Gujarat) has declared it is permissible to have recordings of two FIRs especially when there are two distinct versions.

The utter discrepencies between the version by the state narrative and that of the people can be illustrated by the very recent incident on this Eid when police claimed that 18-year-old Sheeraz Ahmad died when a grenade in his hand exploded whilst the doctors at the district hospital Anantnag stated he died of pellet injuries. It also said several others had been brought in with pellet injuries after clashes.

The UNCHR report highlights the flagrant disregard to international norms by the security forces in regard to handling crowds and protests. It notes how law enforcement officers are supposed to give warning of their intent to use firearms and give people sufficient time to react. It quotes Physicians for Human Rights who interviewed protesters and witnesses during the 2016 unrest and notes that security forces did not give any such warning before firing bullets or pellets on demonstrators.

Such flagrant violations mean that there is no accounting for opening of fire whether minors are present, whether they are participating in protests or are just mere bystanders as amplified in the killing of 12-year old Faizan Ahmad Dar of Dalwan. Faizan was among the eight civilians killed on a bloody day in Budgam on April 9, 2017 during the parliamentary by-elections.

A quick dissection of the incidents and the pursuit of justice will illustrate several concerns on excessive force and lack of access to justice that have been expressed in the UNCHR report.

Bloody day in Budgam

Young Faizan and 22-year-old Abbas Rather, were bystanders near a school in Dalwan where the voting was being held. Angry protests and sloganeering were taking place when, according to Faizan’s uncle Mohammed Shafi Dar, the CRPF personnel without any warning shots in the air or tear gassing, took aim and shot into the crowd. The first bullet felled the 12-year-old.young boy. Minutes later Abbas was shot in the head as he moved to pick up the injured boy.

A crucial eye witness to the incident was Abbas mother Salima and his sister but a year later, despite court orders, no progress had been made in completing investigations.

Abbas father, who is, ironically a policeman, has declared to the media he has no faith in the judicial system.

In the case of 17-year-old Akeel Ahmad Wani, who was shot dead on the same day outside a polling booth in Beerwah, there is evidence in the form of a video that depicts excessive force being deployed by the Indo Tibetan Police Force. The video went viral in the social media. Akeel was rushed to hospital by a local Sikh youth but died. When Akeel’s father, a cancer patient, went to the police station to lodge a complaint, he was told an FIR had already been lodged. He was given a copy a week later. The FIR claimed that a mob armed with sticks, stones and bricks had encircled the polling station and that in retaliation the ITBP fired a few rounds in the air during which “a hooligan named Akeel got injured.”

In an interview with Amnesty, Akeel’s family repudiates this version and says he had gone to the market to buy medicines and died with bullets on the left side of his face. They add that if the police was serious about investigations it could have filed a counter FIR.

A common charge of most of the families of the other victims is that they were targeted by security troops with clear intent to kill and that belligerence by security forces sprang from the fact that the villagers were refusing to participate in the voting exercise. Shabbir of Dawlatabad was killed by personnel of Special Task Force that were passing through the area. He was relaxing in the graveyard. His father told a researcher of Informative Missives, “It was a murder. There were no protests going on. The area was calm.” He added that he had little knowledge of the law and how to go about pursuing a case.”

The sad refrain, “We have no hope,” echoes one year on. In January 2018 the government of J&K informed the state assembly that five inquiries had been established to review the killings of civilians in 2016 but did not specify whether investigations were completed. The state government added that no inquiries were conducted into civilian killings that took place in 2017. The Jammu and Kashmir Coalition of Civil Society (JKCCS) reported that till the end of 2017 none of the inquiries had been completed.

Not a single case of civilian killing by security forces has ever been prosecuted.

The people of Kashmir await justice.
We know the law, and all the statutes
Let the murderer deceive us a little longer

………………………

We promise to bare heads in mehshar1 Command the last sun to beat down a little longer

                 Buhu2 Sings An Elegy for Kashmir: from Green is the Colour of  Memory A collection of poems by Huzaifa Pandit

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Freny Manecksha Written by:

Freny Manecksha worked as a journalist for publications like The Daily, BLITZ, The Times of India, Indian Express and Mid-day. She has been an independent journalist and has focused on Kashmir and particularly women’s narratives from there. Her recent book "Behold, I Shine: Narratives of Kashmir's Women and Children" was published in 2017

3 Comments

  1. June 26, 2018
    Reply

    It would be fair if the role of Pakistan in the politics and security mess of J&K is also acknowledged and highlighted, or did the author safely assume that sophisticated assault weapons miraculously appeared in the hands of poor innocent Kashmiris

    Could the author also dig deeper into the presence of foreign terrorists within J&K, how they got there, who funded them and trained them??
    Or is it all the work of Allah, who guides the jihadis,funds them, trains them in their jihad against the infidel occupying forces??

    While we are on the topic of oppression and human rights violation, what about Lt. Ummer Fayaz & rifleman Aurangzeb?? What about their fundamental rights? What about their human rights? They may have been soldiers but they were on leave and hence did not die in the line of duty.
    How would this author classify their death??
    Was it the handiwork or R&AW??
    Was it the work of the Deep State?

    Now maybe the author is not aware but Pakistan is actively training, supporting and providing safe havens to the terrorists in Kashmir, hence can we say that this murder of the above two could be seen as indirectly state sponsored murdered by Pakistan??

    When the role of Pakistan is acknowledged in destabilizing, first Punjab and then Kashmir, then only will such reports will be taken seriously or else such reports will only be kept in a corner dustbin, where it belongs.

  2. FRENY
    June 29, 2018
    Reply

    Your comments are the same as the ones above by Lam Mairom to which I have replied at length …………

  3. Freny Manecksha
    July 6, 2018
    Reply

    Lam Mairom seems to have deleted comments so I am replying yet again
    Firstly the UN OCHR report and my own reportage make clear distinctions between force used on militants and those on unarmed civilians. This is in keeping with accepted norms related to conflict. Again the UNOCHR report clearly acknowledges geopolitics of the region and the complexity of the conflict and Pakistan’s role and foreign militants.
    My reportage deals with the excessive and lethal force unleashed on unarmed people of Kashmir or what is known as unarmed civilian killings.
    Official Indian figures are cited to show this rise in killings and injuries inflicted by Indian security personnel. They are much higher than numbers killed in cross border firing and are in violation of international norms ….they cannot be excused by whataboutery since they are committed by Indian forces.
    Are you serious in your suggestions that Kashmiris are not entitled to justice and a report on human rights should be thrown in dust bin
    Yes the killings of the army personnel by militants when they were technically not on duty can be viewed with concern but again the problem is that the conflict has not been defined by the state. Should the Geneva Code be applied? In which case hospitals and ambulances should also be declared as safe zones and spared attacks ….all this brings one to the nub of the problem. Can there be a political settlement instead of a military one.

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