This report, prepared over two years using information gleaned mostly from official State documents, portrays the state of impunity prevalent in Jammu and Kashmir. Where identities of individual perpetrators of crimes are known it seeks a process of accountability for institutional criminality.

In the highly militarized space of Jammu and Kashmir, it reveals an entrenched culture of impunity. Cases of human rights violations committed by members of various State forces are analyzed within the context of an occupation, an armed conflict, and a state of structural impunity. These have evolved within State institutions, including the armed forces, and traverse the application and interpretations of special laws, and finally the judicial system itself.

The defining feature of human rights violations here is that in the name of countering militant violence the Indian State authorizes armed forces to carry out every kind of operation, often without adherence to laws and norms. In a majority of cases crimes are not noted or nvestigated at all.

Therefore, any listing or analysis of cases in this report would inevitably be an incomplete one.

 

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However, even the rudimentary statistics contained in it reveal an appalling picture. Out of 214 cases a list emerges of 500 individual perpetrators, which include 235 army personnel, 123 paramilitary personnel, 111 Jammu and Kashmir Police personnel and 31 Government backed militants/associates. The designations of some of these alleged perpetrators points to a deep institutional involvement of the Indian State in the crimes. Among the alleged perpetrators are two Major Generals and three Brigadiers of the Indian Army, besides nine Colonels, three Lieutenant Colonels, 78 Majors and 25 Captains. Add to this, 37 senior officials of the federal Paramilitary forces, a recently retired Director General of the Jammu and Kashmir Police, as well as a serving Inspector General.

This report also seeks to turn the focus on identities of alleged perpetrators of crime and atrocity. Therefore, rather than a general reference to, for example, the Rashtriya Rifles,  names and ranks of officers of this counter-insurgency force are mentioned. This stems from the understanding that despite a culture of systemic impunity that exonerates perpetrators, it is individuals who commit violations, and they must first and foremost bear responsibility for their acts.

By naming names the report seeks to remove the veil of anonymity and secrecy that has sustained impunity. Only when the specificity of each act of violation is uncovered can institutions be stopped from providing the violators a cover of impunity.

The institutional culture of moral, political and juridical impunity has resulted in enforced and involuntary disappearance of an estimated 8000 persons [as on Nov 2012], besides more than 70,000 deaths, and disclosures of more than 6000 unknown, unmarked and mass graves.

The last 22 years have also seen regular extra-judicial killings punctuated by massacres. The Gow Kadal [Srinagar] massacre of around 50 persons on 21January 1990 and other mass illings discussed in this report are symbolic reminders of the persistent human rights violations in Jammu and Kashmir.

The concept of individual criminal responsibility is well established under international criminal law. From Nuremberg to the United Nations ad hoc tribunals – like the International Criminal Tribunal for Rwanda, and the International Criminal Tribunal for the Former Yugoslavia – to the most recent, the International Criminal Court [ICC], the focus of international law has gradually moved from laying responsibility for crimes from the general – the State – to the individual – the perpetrator.

This is not to suggest that the institutions and the State bear no responsibility: in fact, it is clear that it is the Indian State that fosters a climate of impunity in Jammu and Kashmir. As principles of command responsibility have been elaborated and evolved under international criminal law, along with other principles of individual criminal responsibility, such as Joint Criminal Enterprise, it is clear that individual perpetrators of crimes own only a certain part of the final responsibility.

This is particularly true in case of organized structures such as the armed forces, where senior officers [and often, the government] also bear responsibility. But, by focusing on individuals, the anonymity that protects the perpetrators of actual crimes can be eroded.

By specifically naming alleged perpetrators, institutional cover is no longer allowed to shield them, thereby allowing for greater transparency and accountability. To facilitate justice, understanding of the specific is critical in order to allow for a greater understanding of the general.

Cases presented in this report reveal that there is an overwhelming reluctance to genuinely investigate or prosecute the armed forces for human rights violations. There is an occasional willingness to order compensatory relief, but not to bring the perpetrators to justice.

Without adequate prosecution, and fixing of individual criminal responsibility, monetary compensation is at best a weak palliative measure, and at worst a bribe to buy the silence of the victims.

The role of the judiciary in a conflict zone is a vital and, often, only hope available for ensuring justice. It must serve as an effective check on the executive and be vigilant in ensuring that human rights of individuals are not violated.

Despite the occasional passing of strong orders, this report contains numerous examples of the High Court effectively condoning the continuation of violations. The general experience in Jammu and Kashmir has been that the judiciary has allowed itself to be conscious of the power and will of the executive, thereby rendering itself subservient to the State.

Domestic processes of justice also do not appear willing to consider violations within this conflict in the light of relevant international humanitarian law i.e. the Geneva Conventions (1949), the Additional Protocols (1977), or international criminal law, as India has not yet legislated on crimes of Genocide, Crimes against Humanity and War Crimes. Domestic Indian law does not even criminalize ―Enforced Disappearance‖ or ―Torture‖, which means that it is unable to prosecute perpetrators of such crimes, thus depriving the people of appropriate instruments to force prosecution.

Unwillingness of the Indian State to address human rights issues in Jammu and Kashmir has been most recently displayed by the Government of Jammu and Kashmir Home Department submission to  the State Human Rights Commission [on 13 August 2012] about action taken on its recommendations of 19 October 2011 regarding unmarked and mass graves in three districts of North Kashmir.

This submission exhibits an unwillingness to correctly appreciate the concerns of its own State institution, the SHRC, and a purported inability to take any action. For example, on the question of conducting Deoxyribose Nucleic Acid [DNA] tests on the bodies interred in the graves, it is stated that with ―only 15/16 recognized labs in the Government as well as in the Private Sector, in the entire country‖ a comprehensive process cannot be undertaken.

Instead, a ludicrous and unique solution is put forward: a blood relation of the victim ―should be in a position to indicate with fair amount of certainty the exact location of the graveyard and the grave which is now sought to be re-opened‖. This unwillingness of the Indian State to critique itself therefore requires focused attention from the international community.

In the context of the Kashmir conflict the IPTK does not consider this report to be a definitive or exhaustive list of alleged perpetrators. It merely seeks to begin a process of accountability. The cases chosen are those where the IPTK has received information. In a State where institutions such as the police – have proven ineffective, a majority of the violations have in fact  not been investigated.

Therefore, the names of alleged perpetrators in a majority of cases are officially unknown, though certainly part of living public memory.

This report does not attempt to travel through the chain of command to establish the full list of all possible perpetrators who could be held responsible for specific crimes.

Further investigations would be necessary to understand more comprehensively the role of superior authorities involved in these crimes.

What is striking is that the documents in possession of the State itself indict the armed forces and the police by providing reasonable, strong and convincing evidence on the role of the alleged perpetrators in specific crimes.

The IPTK does not however believe that the entirety of the crime, including the role of alleged perpetrators, is captured in any one of the specific cases analyzed. Drawing from principles of Command Responsibility and Joint Criminal Enterprise under international criminal law, it is clear that only further non-partisan investigations would bring to light the entirety of criminality and culpability for each of the crimes documented in this report.

Despite available documents that indict the alleged perpetrators, the response of the Jammu and Kashmir Police, Government of Jammu and Kashmir and the Indian State has been woefully inadequate. From denial of sanction for prosecuting members of armed forces under the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 [AFSPA] to limited prosecutions of members of the Jammu and Kashmir Police and civilian associates of the armed forces, the Indian State and its functionaries appear to have played a direct role in the commission of crimes and subsequent cover ups.

The list of alleged perpetrators, their ranks, units and area of operations strongly suggest that the crimes listed within this report occurred acrossJammu and Kashmir, across var ious armed forces and the police, and at various levels of the hierarchy of each of these government forces.

The cases discussed in this report go contrary to the Indian State narrative of human rights violations as mere ―aberrations‖. Crimes in Jammu and Kashmir have not been committed despite the Indian State but because of it. The structures of the Indian State, including the Government of Jammu and Kashmir, must be accused of not just standing by while human rights violations have taken place, but carry a far higher culpability.

They must be accused of willfully putting in place structures specifically meant to carry out these crimes.

For reasons attributable more to the IPTK and less to the all pervading criminality in the region, districts such as Baramulla, Kupwara and Srinagar receive more focused attention in this report, although the cases are from all over Jammu and Kashmir.

The official designations of the alleged perpetrators and the geographical spread of the crimes committed against the people of Jammu and Kashmir indicate a decisive will of the Indian State, carried out by its functionaries as part of a design.

Numerous cases in this report reveal that volumes of evidence exist of crimes committed by specific perpetrators, assisted by a system where impunity is available right from the commission of the crime to the ultimate cover up.

Based on the information before it, the IPTK cannot conclusively pronounce on the guilt of any of the alleged perpetrators, but it is clear that enough evidence exists to warrant further action. However, in the absence of any institutional or political will to take the evidence to its natural conclusion – a trial where the crime and the guilt of a perpetrator can be proven beyond reasonable doubt – the Indian State stands indicted. (Courtesy: Pratirodh)