India has been able to side-step human rights conventions through a series of special laws for their armed forces.
|Ghulam Muhammad Wani’s son disappeared 15 years ago, but his case is just one among thousands in Indian-administered Kashmir [Azad Essa]|
His unibrow twists and arches furiously. The creases on his face tighten. His eyes shift from the door and with his index finger he points towards the ceiling. Then he stares straight at me and begins to speak – his voice like a calamitous clap of thunder, echoing off the cold walls and ringing in my ears.
I have no idea what he is saying, but his tone conveys everything.
“Take it easy … they are here to listen to your story … don’t be angry,” says Parveena Ahangar, the chairperson of the Association of Parents of Disappeared Persons (APDP), one of two organisations going by the same name in Kashmir, as she tugs gently at the old man’s knee.
But he refuses and embarks on a second tirade; spitting as he pronounces a series of adjectives that I recognise as expletives.
A friend who has accompanied me for the purpose of translating whispers: “I can’t translate all of this. He is cursing just about everyone there is to possibly swear at.”
Ghulam Muhammad Wani needs a moment to clear his mind. I happily give him three.
The 80-year-old is short and stocky but cuts an imposing figure. Dressed in a dirty, brown pheran, he sits on the floor of his living room in Rajbagh, Srinagar. His overstretched woolen socks loop around the contours of his feet, stealing dust from the parched carpet below.
He tells us his story.
A father’s anguish
On the evening of May 14, 1996, members of the counter-insurgent Ikhwan group, a pro-government militia made up of former insurgents, now working for the Indian army, knocked on his door and took off with this son, Imtiyaz Ahmed Wani.
Suspected of being an insurgent, a separatist fighting for freedom from the Indian state, Imtiyaz disappeared without trace.
After searching from pillar to post, visiting police stations and army officers, Wani went to the State Human Rights Commission to file a complaint about his missing son. Finding no joy there, he sold a property, took out a loan and paid a seemingly sympathetic counter-insurgent who promised information about his missing son. But the money, like his son, disappeared.
“My son was a gardener at the forest department, earning Rs 2,000 ($45) a month; he did no wrong,” Wani finally offers.
“It has been 15 years,” he trails off.
During his desperate search for Imtiyaz, a policeman from the Special Task Force (a counter-insurgency wing of the Jammu and Kashmir police force) came to his house and offered him 1,200 rupees ($30) as piecemeal compensation. Over time, Wani was also approached by politicians offering him “aid” in exchange for his silence.
“I told them to leave … it would have been like accepting blood money.
“They robbed me of my son, who will now bury me when I go?” Wani asks the silent room.
Imtiyaz’s disappearance is just one of many in Indian-administered Kashmir since the beginning of the insurgency there in 1989. Unofficial estimates suggest that over the past two decades, between 8,000 and 10,000 young men have disappeared.
Buried Evidence, a report published by the International People’s Tribunal on Human Rights and Justice in Indian-administered Kashmir (IPTK) in 2009, reported the number to be “8,000 plus”.
It is a figure disputed by the Indian government and SM Sahai, the chief of police in Kashmir, says it is grossly exaggerated.
“This number is not correct, and most of the missing persons are fighters who crossed [the] border into Pakistan, and are still there,” he says.
Human rights activists say the government has repeatedly released contradictory figures, indicating a lack of seriousness in addressing the issue.
“One day, they say it is 3,931 people missing, the next day it is 3,749 … they are not serious about it,” says Parvez Imroz, a human rights activist and co-founder of the original Association of Parents of Disappeared Persons (APDP).
Zahir-ud-Din, a local journalist whose investigation into disappearances in Kashmir culminated in a book, Did they vanish in thin air, concurs that the state has marginalised the issue. One can even pick up on it from the language employed – ‘missing’ as opposed to ‘disappearance’, ud-Din says.
A familiar story
|An illustration by Kashmiri cartoonist Malik Sajad|
Following the partition of India and Pakistan, and the latter’s attempt to capture the valley, Kashmir was split into an Indian-administered Kashmir, a Pakistan-administered Kashmir and, later, a Chinese territory, which is mostly uninhabited. Ever since, India and Pakistan have used the territory to exercise bitter foreign policy towards each other, culminating in three wars.
While self-determination has always been a project in Indian-administered Kashmir, it took a rigged election in 1988 to prompt a call to arms against the Indian government’s rule of the region; young men ventured into Pakistan-administered Kashmir for training in guerrilla warfare.
India responded with a military campaign to suppress the insurgency, resulting in an estimated 60,000 to 70,000 deaths, and Kashmir became one of the most militarised places on earth, with more than half-a-million Indian troops deployed to the region. To help put this into perspective it is worth noting that at the height of the occupation of Iraq in 2008, foreign troops there numbered 250,000.
Kashmiri novelist Mirza Waheed says that young men did go to Pakistan, and that many did not return, but insists the story has always been bigger than that.
“There have been numerous cases of custodial deaths, torture, illegal detention, extra-judicial killings, also known as ‘fake-encounters’, and they cannot be brushed away,” he says.
Widespread and systematic
The APDP, co-founded by Imroz and Ahangar before they each formed their respective associations, has long argued that disappearances in the valley have been purposefully systematic.
Ahangar has not seen her son Javed since he was picked up by security forces 17 years ago. Since the early days of the APDP, she has acted as a pillar of strength for parents seeking comfort and advice in dealing with their lingering loss.
Ud-Din says that numbers have always been difficult to verify, but that disappearances are widespread. “When people started disappearing [in the 1990s] we thought that they might have died accidentally due to torture. But thousands of people cannot disappear accidentally. It happens with a design.”
Imroz concurs that while the rate of disappearances may have slowed over the past decade, “it was a phenomenon” that is yet to be solved, with perpetrators that are yet to face justice. “Both combatants and non-combatants were picked up from home, from the roads, from just about anywhere and taken to detention centres. Their fate was often not known,” he says.
“Enforced disappearances is one of the many repressive measures (like killings, illegal detentions etc.) aimed at breaking the resolve of people,” says Athar Parvaiz, a journalist based in Srinagar.
Disappearances fit into a larger theme of human rights violations in Kashmir.
In late March 2011, Amnesty International (AI) released a report claiming that the “state of Jammu and Kashmir was holding hundreds of people without charge or trial in order to keep them out of circulation”. AI alleges that a contentious Public Safety Act (PSA) allows security forces to detain individuals when the state has insufficient evidence for a trial.
Through this law, AI says that between 8,000 and 20,000 people have been detained over the past two decades, with 322 people held between January and September 2010.
Through this law, AI says that between 8,000 and 20,000 people have been detained over the past two decades, with 322 people held between January and September 2010.
Govind Acharya, an AI India specialist, stresses that while detentions through the PSA can last for up to two years, and therefore pale in comparison to enforced disappearances, the numbers are ominously similar.
“The number of disappearances and the number of PSA detentions cited are coincidental, but the number of both are in the thousands. Some of the PSA detainees became victims of enforced disappearances and some did not,” Acharya explains, adding that forced disappearances are forbidden under international law and that the “PSA is a form of legalised forced disappearance”.
But disappearances and detentions are not the only ways in which human rights are undermined in Kashmir.
In late 2010, a US cable released by whistleblower website WikiLeaks reported that the International Committee of the Red Cross (ICRC) had briefed US diplomats on widespread torture in Indian jails in Kashmir and their frustration with the Indian government’s failure to address their concerns.
In 2009, the Allard Lowenstein International Human Rights Clinic at Yale Law School reported that “the pattern of legal breakdowns in Kashmir violates basic tenets of international human rights law” and that “research indicates that India fails to meet its international obligations in Kashmir”.
Worse still, is the report’s damning assessment of the “Indian government’s disregard [for] its own standards governing detention”. “[It] refuses to honour court orders quashing detention, and exploits procedural impediments to avoid presenting detainees in court,” the report states.
The WikiLeaks cable adds that “detainees were rarely militants, but persons connected to or believed to have information about the insurgency”.
Imroz says that the real tragedy of disappearance can be found in the families whose lives it disrupts forever.
“Most of those who disappeared were noncombatants … and consider how many people are directly affected by the ordeal of a loved one disappearing.
“If a family member dies, you mourn and are forced to move on, but when someone ‘disappears’ the entire family, community is disrupted emotionally and psychologically; they all join the search. When does it end?” he asks.
It is natural that intermittent curfews, perpetual gun battles, midnight raids and disappeared family members should place a strain on this society of barbed wire and sandbags, but ud-Din says it amounts to something more like torture.
“It is torturous. Perpetual trauma has gone to their head. Most of them have become psychiatric patients. The half widows [as the wives of the disappeared are known] are the worst hit. They cannot go for second marriage, they cannot inherit from their husband’s estate, and nobody accepts them as widows. Most of them have been turned out by the in-laws,” he says.
“It is a huge disruption to the society,” Imroz adds. “Consider children who have lost their father and breadwinner and are taken out of school, and become child labour … or are refused entry into an orphanage because there is no certification of death, or the complications in sharing property because there is no certainty of anything,” he continues.
‘Discipline and death’
It is little wonder then that the IPTK report postulates that the governance of Indian-administered Kashmir has taken on the techniques of ‘discipline and death’ as modes of social control, with the objective of “assimilat[ing] Kashmir into its territory”.
This use of discipline and death as a regulatory mechanism has left Kashmiri society traumatised, existing in virtual limbo.
But Waheed says that it would be erroneous to label Kashmiris as victims lacking agency, even though they have been victims of a brutal military suppression, or to ignore the fact that any society would devise coping mechanisms in the face of such trauma.
“There is no dichotomy between being traumatised and resilient. A brutalised people have no choice but to be resilient, in all kinds of ways. A mother whose nine-year-old son was bludgeoned to death last summer – what can she do other than grieve or protest? Both require resilience.
“Kashmir has an extremely high incidence of psychological trauma. Depression is quite common. But what do you expect in a place where people have been incessantly brutalised for more than 20 years? I have seen and heard uncommon acts of bravery and dignity in the face of suffering and tragedy,” Waheed says.
While not disputing this resilience, Parvez says that there is a lack of institutional and societal support for those suffering from this type of trauma. “The MSF [Médecins Sans Frontières] have trauma counselling, and they have worked with the APDP, but there is still a lack of institutional recognition of the issue.”
Parvaiz agrees, adding that putting aside the romanticism of a resilient society, “the two-decade [long] conflict and mis-governence over the years have wrought havoc on Kashmir … [affecting] the social fabric of the society [while] insecurity [about the] future reflects in their social behaviour as well”.
Impunity reigns supreme
It would appear that part of the problem is that the Indian government refuses to acknowledge enforced disappearance as the scourge that it is in Indian-administered Kashmir.
For the past 10 years, both versions of the APDP have assembled every month – on different days – in a Srinagar park to bemoan the lack of justice and the lack of government action in addressing the issue. Imroz says that not only is the Indian government refusing to offer an explanation for the disappearances, but that they are not willing to address the mass complainants either.
The IPTK report, which Imroz co-authored, documents an investigation of 2,700 graves in 55 villages and three districts in Indian-administered Kashmir between 2005 and 2009. The numbers are staggering: 2,373 graves were found unmarked, 151 graves contained more than one body; while 23 graves held between three and 17 bodies.
The study noted that mass graves have always been a tell-tale sign of crimes against humanity or genocide. But Sahai, the police chief, says the mass graves belong to fallen foreign fighters and reveal little about disappearances.
Authorities often claim that unmarked graves are those of fighters from Pakistan, the study notes, adding that such rhetoric conflates “cross border militancy with present nonviolent struggles by local Kashmiris for political and territorial self-determination”.
Acharya says the crux of the issue can be explained in one word – “impunity”.
“Victims of human rights violations from all sides of the conflict can expect very little from the Indian state or Jammu and Kashmir.”
Through the Armed Forces Special Powers Act (AFSPA), Indian forces engaged in various violations are often protected from prosecution.
Sahai insists people should report disappearances. “If people have such complaints, we want them to compile a list of those missing and then we can conduct a thorough investigation. The fact that Amnesty International operates in the valley is testament to the fact that we are open to investigations,” he says.
The Indian government has allowed the UN special rapporteur on minorities and the UN special rapporteur on human rights defenders to visit Indian-administered Kashmir, but has refused to allow the UN working group on arbitrary detention or the UN special rapporteur on extrajudicial executions access. Crucially, the UN working group on enforced and involuntary disappearances has also been denied entry, despite its requests to conduct investigations in the territory.
When quizzed on this, Sahai pleads the fifth, saying: “It is difficult for me to comment on this because this issue is of a high diplomatic status.”
Acharya says that “given the regular visits of others’ rapporteurs, it does seem to be a glaring omission” and adds that while AI did manage to meet GK Pillai, the Indian home secretary, to discuss their latest report, gaining an audience with the Jammu and Kashmir chief minister, Omar Abdulla, was proving to be quite a task.
|Imroz says that the process for reporting a family member’s disappearance is layered in bureaucracy, but that a screening committee, which is meant to investigate disappearances, does exist.
“If a family is able to prove to the screening committee that a family member has disappeared for more than seven years, the matter is taken to the local council and district magistrate and eventually they are able to receive ex gratia relief money of around $2,000.
“But if the family member suddenly returns, they will have to repay the money.”
Imroz says around 500 families have received this amount.
“There are families who need the relief money, but normally victim’s families want justice, and this procedure, which does not even work properly, does not bring the perpetrators to book.
“In principle, we do not promote the extra gratia relief, because we want justice, and this is not justice, but to say that lists of names need to be brought in and something will happen is inaccurate.
“Police often file these disappearances as ‘missing’ and often the law is not followed, whereby an active search is meant to take place. The files just get lost.”
In a similar vein, Imroz says that although the IPTK report was released in 2009, they are still waiting for Abdulla to respond.
Al Jazeera also found little success when approaching the chief minister’s office for comment.
Kashmir has always been a sensitive issue, but if anything, the human rights violations in the valley are only emblematic of the Indian state’s selective observance of international treaties on human rights.
Human Rights Watch (HRW) has regularly castigated India for violations in the north-eastern state of Manipur, where the AFSPA has cultivated a culture of impunity for the security forces. In the late 1980s and the 1990s, Indian counter-insurgency tactics in Punjab included the use of enforced disappearances, extra-judicial executions and mass cremations.
This is perhaps the reason why India has signed – but not ratified – the International Convention for the Protection of All Persons from Enforced Disappearance that came into being at the end of 2010. The convention effectively outlaws enforced disappearance, making states accountable and effectively turning systematic disappearance into a crime against humanity.
AI is categorical in their acknowledgement that every country has a right to defend itself, but insists that enforced disappearance can never be tenable.
“India does have a robust procedure for dealing with terrorism, as seen from the trial of Ajmal Kasab, the sole survivor of the Mumbai attacks in 2008,” Acharya argues. “[However] the Jammu and Kashmir government is bypassing the judicial system and imposing arbitrary punishment based on very broad categories by government agents, rather than the judiciary.”
Sahai disputes this, saying: “This idea that we [Jammu and Kashmir] have a whole new set of rules and that there is no accountability is wrong; we follow the law like other states and places in India. Kashmir is a disturbed area and often human rights groups are used as tools of propaganda by separatists. If our human rights organ[isations] are compiling figures and our judiciary exists to protect the people, what is the need for AI to investigate?”
But Imroz argues that state institutions have very little power in the face of the AFSPA. With the judiciary unable to act and the State Human Rights Commission unable to punish, the armed forces have effective legal impunity.
To talk about legal devices protecting the people of Indian-administered Kashmir is null and void because of the special status enjoyed by the armed forces there.
Imroz says the tragedy becomes further complicated when one notes how Indian civil society, though vibrant, “has abandoned Kashmir from mainstream discourse together with the Indian media”.
The harrowing tales of thousands of disappeared people, the broken homes and the daily travails of life in Indian-administered Kashmir are missing from the popular imagination of most Indians. Instead, the narrative begins and ends as Kashmir, the elusive paradise overrun by Pakistani jihadists with Kalashnikovs; not ordinary people torn by a decades-long conflict, a disproportionate military campaign and gross human rights abuses.
The Kashmiri people are virtually anonymous in the telling of their own stories.
This is partly why ud-Din believes that families nursing broken homes due to the disappearance of fathers or sons need closure.
“While interviewing the former minister of state for home in 1999, I urged him to declare all the disappeared persons dead, [as] according to me [this] is the only way out. This alone would end the unending search and the sufferings of the aggrieved relatives. However, the minister refused for obvious reasons,” he says.
New generation: New questions
“The new generation is asking questions … the new generation is less afraid to speak up,” Imroz says. “[They] realise that they have to get past the rhetoric; rise above it. Kashmiri civil society is slowly rising, and [is] part of the problem and the solution, and it’s up to them to deem what is unacceptable.”
This is a view shared by Acharya, who says the affected families must keep pushing government officials to heed their calls for justice. “Organisations like Amnesty International can only shed light on a few cases and hope that the other cases will get resolved as well. But, it’s hard not to be pessimistic about the prospects of justice.
“Of course, as a human rights activist, I’d recommend that the Jammu and Kashmir government take steps to repeal laws like the PSA and the AFSPA (Armed Forces Special Powers Act) that give immunity from prosecution of human rights violations, to initiate steps towards prosecuting human rights violators and to ensure that the state does not violate economic, social and cultural rights of those affected by repeated curfews and checkpoints that make seeking an adequate livelihood so difficult.”
But these calls are unlikely to be heard by the Indian authorities – at least not in the near future.
And while justice might go some way toward healing wounds and advancing closure, it is unlikely to bring Ghulam Wani’s son home or to ease this father’s anguish. For now, his only recourse is to refuse to pay for electricity, water and other services – withholding a few coins from the state in protest against a silent war.