International People's Tribunal on Human Rights and Justice in Kashmir (IPTK)

Srinagar, June 06, 2010

Re.: Fake Encounters and State Terror in Kashmir

Dr. Angana P. Chatterji is Convener IPTK and Professor, Anthropology, California Institute of Integral Studies.
Advocate Parvez Imroz is Convener IPTK and Founder, Jammu and Kashmir Coalition of Civil Society.
Gautam Navlakha is Convener IPTK and Editorial Consultant, Economic and Political Weekly.
Zahir-Ud-Din is Convener IPTK and Vice-President, Jammu and Kashmir Coalition of Civil Society.
Advocate Mihir Desai is Legal Counsel IPTK and Lawyer, Mumbai High Court and Supreme Court of India.
Khurram Parvez is Liaison IPTK and Programme Coordinator, Jammu and Kashmir Coalition of Civil Society.

Queries may be addressed to:
Khurram Parvez
E-mail: kparvez [at] kashmirprocess [dot] org
Phone: +91.194.2482820
Mobile: +91.9419013553

The spectre of death and state violence haunts Kashmiri civil society each day. Violence is anticipated, experienced, and intimate to lives. There are those that are its direct targets and others that are concomitantly affected. Violence permeates daily life, regulates bodies and conditions behaviour...

On April 29-30, 2010, the Indian Armed Forces executed Shahzad Ahmad, Riyaz Ahmad, and Mohammad Shafi in a fake encounter in Kupwara district, claiming them to be "infiltrating militants" from Pakistan.

Extrajudicial actions of the Indian Armed Forces in Indian-administered Kashmir have been accompanied by inflammatory discourses in April-May 2010, presenting insurgency, militancy, and terrorism as escalated threats to national borders and nationalized populations, charting collaborations between external and internal enemies (Muslims of Pakistan and Muslims of Indian-administered Kashmir), arguing for greater state control over mechanisms of "security" and "freedom."

Cross-Line of Control (LoC, between India and Pakistan) movements, infiltrations, and insurgency into Indian-administered Kashmir are real and significant issues. The Indian state exaggerates these realities in order to create national and international sanction to escalate militarization, by linking "foreign terror" to local Kashmiri civilians, in a context where large sections of civil society are discontent with Indian rule. Such claims propagate a more aggressive role for India within the Afghanistan-Pakistan-Kashmir region, expanding India's influence as an international force, and enabling the Indian state's administration of Kashmir to proceed with impunity. In April-May 2010 alone, Indian Armed Forces reportedly killed over 20 militants in different "encounters." These cases require transparent and independent investigations.

IPTK released BURIED EVIDENCE: Unknown, Unmarked, and Mass Graves in Indian-administered Kashmir in December 2009. Authored by Angana Chatterji, Parvez Imroz, et al., BURIED EVIDENCE documented 2,700 unknown, unmarked, and mass graves, containing 2,943+ bodies, across 55 villages in Bandipora, Baramulla, and Kupwara districts. The Government of Jammu and Kashmir and the Government of India have not undertaken investigations into the findings of BURIED EVIDENCEor acted on its recommendations. Such action may have generated constructive interventions into the continuing chain of extrajudicial executions by the Indian military and paramilitary.

In the absence of intervention into extrajudicial killings, violence continues. Shahzad Ahmad, Riyaz Ahmad, and Mohammad Shafi were lured, kidnapped, involuntarily disappeared, and murdered by members of the Indian Armed Forces and state-sponsored militia. They were persuaded to leave their homes in Nadihal village, Baramulla district, for the 4 Rajputana Rifles Unit camp in Kalaroos, Kupwara district, with the promise of paid employment moving arms and ammunition along the LoC.

The fake encounter that killed Ahmad, Ahmad, and Shafi was staged close to the time when the 4 Rajputana Rifles Unit at Kalaroos was marked for transfer out of Kashmir. These murders in Machil sector of Kupwara district, as other fake encounters, were also reportedly motivated to secure cash rewards and perhaps act as a shield for illegal trade in arms. Reportedly, the Armed Forces has been customarily offering cash rewards of between 50,000 Rupees and 200,000+ Rupees to police or armed forces personnel for the killing of a militant. Official discourse asserts that individual security forces personnel have committed crimes for reward, acting on their own initiative, against regulations, masking the reality that the policy of the Armed Forces mandates and rewards brutality.

Chief Minister Omar Abdullah authorized a magisterial probe on May 27, 2010. The public do not have the right to participate freely in these inquiries, and until that is enabled, such inquiries do not support truth and justice in Kashmir, where a substantial section of the judiciary has been severely compromised through twenty years of militarized governance. The police charged Major Upendar, 4 Rajputana Rifles Unit at Kalaroos, along with three others, with criminal conspiracy and kidnapping. Police also lodged a murder case against Major Upendar and three others. This is the first instance in which a unit of the Indian Armed Forces has transferred charge over officers, even while Kashmir Police have chargesheeted other officers in various fake encounter cases in the past. Chief Minister Abdullah stated that: "This time the assurance of full cooperation has come from no less than the Defence Minister [A. K. Antony]" (Jaleel, 2010). In the Machil killings, police investigations, unlike in the numerous other instances across Kashmir, uncovered important information.

Why this exception? Is it the start of transparency and accountability, the beginning of the end of the twenty-year conflict? Or, are these strategic steps in a game calculated to isolate these events from the larger context of military rule and immunity with the intent to subdue sustained public outcry? If the former, then all responsible agencies and institutions must be transparently investigated, all recorded encounters must be examined for malpractice, all extrajudicial killings must be examined for any linkages to enforced disappearances; and all unnamed, unknown, and mass graves be investigated. If it is the latter, "business as usual" and the routine violence of everyday life can be expected to continue unabated.

The Senior Superintendent of Police of Kupwara district, Mohammad Yousuf, stated that, following the Kalaroos fake encounter, police were inquiring into others. "We can't say that every encounter that happened on the LoC is fake. But we are a bit concerned now" (Ehsan, 2010). Mass and intensified extrajudicial killings have been part of a sustained and widespread offensive by the military and paramilitary institutions of the Indian state against civilians of Jammu and Kashmir. The methodical and planned use of killing and violence in Indian-administered Kashmir constitutes crimes against humanity in the context of an ongoing conflict.

In contexts of non-international armed conflict as well as in areas under occupation and disputed areas, international human rights law explicitly states that states may apply lethal force only in situations where such use is imperative and necessary to contend with the amount of force being perpetrated. International humanitarian law urges the adoption of a law enforcement framework, and the mandate to make arrests whenever possible. The United Nations Human Rights Committee states that the right to life is protected by law. Even with respect to proportionality and the use of disproportionate force on persons perpetrating force, international human rights law argues that a state must respect the right to life. Fake encounter killings in Indian-administered Kashmir repeatedly break this agreement.


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