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Thinking Truth and Reconciliation in Kashmir: Shuja Malik

October 22, 2011

Guest post by SHUJA MALIK

“Truth and Reconciliation Commission (TRC)” is a recent addition in the lexicon of the Kashmir conflict/dispute. IT gained currency after recent confirmation of reports about presence of unmarked, unidentified and mass graves in Kashmir. The idea of a TRC for Kashmir raises questions about its relevance and context, especially unidentified graves and enforced disappearances.

Truth and reconciliation commissions have been established in the past with varied powers and purposes, usually at points where the parties involved are ‘emerging out of conflict’ or are at ‘transitional stage’, and after modalities have been established for conflict resolution.

These commissions look into different aspects of conflict; the abuses that have been committed, and help in the restoration of human dignity of victims and their dependents, create conducive conditions for reconciliation between perpetrators and victims, and finally, make recommendations to avoid recurrence of such events.

The outcome varies, depending on how the recommendations are accepted by the establishing parties. The South African Truth and Reconciliation Commission was established to determine the ‘nature, cause and extent of human rights violations’ and was able to help victims in ‘reparation and rehabilitation’ and victimisers in speaking truth that lead to amnesty in a few cases. To avoid ‘victor’s justice’ or to give more weight to victims it considered reports of human rights violations and amnesty applications from both apartheid forces and the liberation state.

The National Commission on the Disappearance of Persons in Argentina that investigated the enforced disappearance of unarmed activists and guerrillas during the ‘Dirty War’ was only successful to the extent of memorialisation. Considering these two examples, how wide should the ambit of such a commission in Kashmir be?

Will a single commission be able to cover victims of both armed and political violence?

What about apolitical, unarmed, non-aligned victims who have been subjected to different forms of violence?

What about victims of fake encounters and enforced disappearances?

The other dynamics: TRCs are a post-conflict process established by a constitutional decree, under a constitution that is agreeable to all parties involved, keeping in consideration universally accepted laws that deal with such issues. Does this apply to Kashmir? It does not.

Will it be the constitution of autonomous Jammu and & Kashmir / self-ruled J&K / federally administered or fully integrated J&K? Under which one will the the contours of the Kashmir TRC be determined?

Considering the political aspirations of a vast section of the population, as also the international status of the Kashmir dispute, what will be the moral and legal acceptance of such a commission?

Ignoring these issues, let us look at the prevalent circumstances.

Victimisers are covered by high levels of impunity by ‘special’ laws. Will this commission lead to an end of such impunity? Will it bring under the ambit of law all those who are, or have been involved in these abuses, and finally lead to justice? With all draconian laws, whether they are to cover armed forces (like the Disturbed Areas Act and the Armed Forces Special Powers Act) or to help the administration in maintaining ‘law and order’ (like the Public Safety Act) how can one expect non-recurrence of these abuses?

A Truth and Reconciliation Commission in Jammu and Kashmir can only be feasible after these issues have been settled. There has been a disproportionate response from the Indian state to the struggle of the Kashmiri population, the victim of which has been the entire civilian population.

Therefore, a post-resolution TRC in Kashmir will have to cover abuses committed by different stake-holders or actors that are or have been directly or indirectly involved. This should lead to reconciliation between people belonging to different shades of opinion, who are ready to own up to their mistakes. That should cover the political and other forms of violence, the subject of which have been various political workers, human rights activists, journalists, businessmen or populations of other categories.

Similarly such a commission should seek justice for those that have been incarcerated endlessly, or for other terms under administrative laws and should have a mandate to look into their rehabilitation, and the rehabilitation of their families (who have also been victims).

In addition to these specific abuses, there are numerous others that have impinged human rights of almost every individual. Such a commission should be empowered to look into these aspects and work for their reparation.

Unmarked, unidentified and mass graves:

Under universal principles of justice and legality a Truth and Reconciliation Commission can’t be expected to look into the issue of unmarked, unidentified and mass graves. The initial reports of two different organizations (IPTK and SHRC) have put an estimate of around 6500 such graves in the five investigated districts. Some of these have been identified as mass graves so actual numbers of those in these graves will be greater than grave count. An important difference has to be made between an unmarked grave and an unidentified grave. An unmarked grave is not essentially an unidentified grave. An unidentified grave is one in which the identity of the buried is unknown. It will sound very imprudent that an international tribunal or Human rights commission would go into the graveyards of Kashmir and start documenting the dead in all unmarked graves. Either no or unreliable information is available about those who are buried in these graves. Official version is that most of them are foreign militants killed in encounters with security forces. According to SHRC report 574 bodies have already been identified to be of Kashmiri locals and they have been relocated by their families to different graveyards. Also testimonies of witnesses (in IPTK report) point towards efforts by security forces at concealing the identity of those that were brought for burial in these graves. This gets further augmented by reports of fake encounters with number of such cases coming to fore increasing day by day.  Latest has been only few months back when a mentally retarded person in Jammu province was killed and passed on as a foreign militant. Similarly most of the civilian victims till date exhumed and identified have been victims of fake encounters. In absence of any reliable and legally acceptable data about those present in these graves everything appears to be hazy and therefore there is an urgent need for identification of those who are buried in them.

Fake encounters

The questions about these fake encounters that need to be answered include: who were behind these fake encounters, why were they conducted and ordered, who benefitted from them, was it a common practice, were there specific squads to conduct these and other questions like these?

The major reason cited for these ‘fake encounters’ is that they form a route to quick promotions and other accolades. But there are cases in which even on a cursory look it doesn’t appear so. Were these encounters for simple reasons of incentives or they had a systematic purpose of intimidating a population into silence? In few instances different agencies arrested people from different places and were killed by other agency at a separate place. In other instance first a father was killed in such an encounter and afterwards his son met the same fate when he pursued the case of his father’s disappearance.

A curious fake encounter is the Pathribal encounter in which five alleged foreign militants involved in massacre of Sikhs in Chattisinghpora were killed. These five ‘foreign militants’ were later found to be five civilians picked up from different places of Anantnag District. This would have turned into a case of unidentified graves and enforced disappearances but for the timely and immediate exposure of events leading to this encounter. So more reading and thinking increases the confoundment and only conclusion one reaches is that each case needs to be investigated separately.

Therefore, a complete and impartial investigation is a must and that should unearth the events leading to these encounters and this will help in establishing the facts about the deaths whether they were in real encounters or through extra-judicial means.

Enforced disappearances

The deaths by extra-judicial means mostly occur through fake encounters and that brings us to the associated phenomenon of enforced disappearances. An enforced disappearance can be defined as secret abduction or imprisonment of a person by a state or political organization or by a third party with authorization of the state or political party followed by its refusal to acknowledge the person’s fate and whereabouts and the intent is to place victim outside protection of the law.

It is not necessary that people subjected to such disappearances are essentially subjected to fake encounters but at the same time it will be naïve to expect of a state to give right of life to those whom it wants to keep outside of the protection of law.

The Rome Statute of the International Criminal Court, defines forced disappearance as a crime against humanity and does not consider it as subject to ‘statute of limitations’ when committed as part of a widespread or systematic attack directed at any civilian population. Similarly, the International Convention for Protection of all Persons from Enforced Disappearance, adopted by UN General Assembly in December 2006, states that wide spread or systematic practice of enforced disappearances constitutes a crime against humanity. This Convention also provides a right not to be subjected to enforced disappearance, as well as the right for the relatives of the disappeared to know the truth and also gives victims’ families the right to seek reparation.

The Association of Parents of Disappeared Persons (APDP) puts an estimate of 8000-10,000 for people in Kashmir who have been subjected to such disappearances. These victims of enforced disappearances can be segregated into two categories: civilian populations and sections like human rights activists, journalists, political activists and sympathizers of different political ideologies.

Therefore, these disappearances work at two different levels, one is the silencing of opponents and critics and other is the intimidation of the population that might serve as a potential source of new opponents. Looking into these aspects, the stand of the global organizations on enforced disappearances and the adoption of new conventions by UN, demands a proper investigation into the phenomenon of these disappearances in Kashmir.

Many questions need to be answered here as well. Who ordered these abductions whether they are of political or apolitical persons? Was it a state policy and which agencies were involved in these disappearances? The responsibility or the dereliction of it needs to be fixed and guilty should be brought to book.

The Need

Abuses of this magnitude touch the conscience of a nation, remain entrenched in memory and haunt generations. Manipulations will only add to pain and misery while as unconditional and complete justice is the only solution. That will need establishing independent and highly empowered investigation tribunals based on accepted international laws. The tribunals should be composed of people of unquestioned integrity and required expertise from different fields required to cover these investigations.

For the issue of mass, unidentified and unmarked graves the best option would be utilize combined expertise and efforts of SHRC and IPTK. This tribunal can move forward from and beyond reports they have already published. Such a committee should be further empowered to work towards the identification of the people who are in these graves. Police records should be taken into consideration after establishment of identities and for those there are no records investigations should be conducted to establish the events that lead to these deaths. Similarly the issue of enforced disappearances needs to be looked into by an international tribunal which is beyond the influence of state.

In all these issues state is a party to the crime either by commission or omission. It can’t simply shrug off its responsibility by putting the blame on its organs or rogue elements. The magnitude of these crimes only points towards complicity of the state. One can not envisage a role for Truth and Reconciliation Commission. In Kashmiri parlance it will only be a Treith and Rozgaar Commission; Treith for victims and Rozgaar for commission members. (Treith; Kashmiri for blatant lie and Rozgaar; for employment).A Kashmiri all along his life lives through treiths unleashed in name of his rights at least after his death he deserves a truth, if nothing else.

For details of the encounters cited here, see http://www.kashmirprocess.org/reports/graves/toc.html

(Shuja Malik is a researcher in biophysics.)

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