Kashmir: Under special law, Indian Army acts with deadly impunity

The last time Ghulam Nabi Magray saw his teenage son Javaid, the 17-year-old was studying at their home in Srinagar in the Indian-administered Kashmir valley. It was evening – more than 12 years ago.

Mr. Magray came downstairs the next morning to find Indian soldiers at his gate. They told him to go back inside and not to look for his son.

But when he and his wife saw blood and a tooth on the nearby pavement, they shouted out.

Javaid never did come home, an all too typical experience for many parents in the Kashmir valley dating back decades, according to an Amnesty International (AI) report issued in July on conditions in the valley.

The Indian Army said Javaid was a militant who resisted arrest, got wounded, taken to a hospital, and then died.

Yet a posthumous state investigation found Javaid innocent and said he was not a militant. When the soldier accused of killing him was summoned by authorities, the man fled.

The Indian Army is charged with keeping peace and order in the contested valley where last fall there was a record turn-out for elections despite a history of insurgency and simmering local anger at Indian authorities.

Amnesty points to the root of those grievances in the Army’s long use of a law called the Armed Forces Special Powers Act [AFSPA], a policy for Indian regions designated as “disturbed areas.”

The act bestows near impunity on soldiers who in Kashmir have killed more than 3,500 persons over 25 years, often under mysterious circumstances that are rarely if ever investigated, Amnesty found. When soldiers have been tried for these crimes they are tried in military rather than civilian courts.

The AFSPA “empowers officers” to “fire” or use “force” as a measure of self-defense or “maintenance of public order.” Deadly force under the law is acceptable in cases as loosely defined as “prohibiting the assembly of five or more persons.”

Amnesty researcher kicked out

The New York Times editorial board on July 24 urged Prime Minister Narendra Modi to repeal the law that gives soldiers “wide powers to kill, arrest, search and detain” – authority they say has resulted in a “shocking incidence of rapes, murders, torture, summary detention and disappearances.”

Human Rights Watch in 2008 and a UN panel in 2012 said the act is a violation of international law and norms. But India has not budged. Indeed, authorities in Delhi kicked out Christine Mehta, an American-based Amnesty researcher on Kashmir, according to The Wall Street Journal.

The report found the Indian Army in Kashmir has dismissed 96 percent of all complaints, calling them “false and baseless” despite the report’s findings that military investigations into its own conduct lack transparency.

Not a single member of the security forces deployed in Kashmir over the past 25 years has been tried for alleged human rights violations in a civilian court, the report said.

The special act has “legitimized routine violence by identifying civilian populations as threats to national security and […] ensuring immunity from prosecution by establishing that no legal proceeding can be brought against any member of the armed forces without the permission of the central government,” argues Haley Duschinski, a Kashmir specialist at the University of Ohio. That leaves, in practice, “victims with no legal mechanisms for seeking justice,” she wrote.

Another side of the story

In comments to the Monitor, Indian military analysts in Kashmir argue another side of the story. 

One Army officer with 10-years experience in Kashmir says that AFSPA is integral to Kashmir’s security. He spoke on condition of anonymity due to the sensitivity of the situation.

“At a functional level, how can we operate without an enabling act? That’s what AFSPA is,” said the officer, contacted by the Monitor on the phone. “The army would otherwise be overwhelmed by false accusations. You shouldn’t have to go to the magistrate every time you chase a terrorist.”

Studies show that militants themselves have killed 13,226 civilians in the last 25 years of insurgency – nearly 10,000 more than the Army. According to the South Asia Terrorism Portal, annual civilian casualties in Kashmir have dropped from 1,000 in the 1990s to about 25 in the past five years.

AFSPA may be unjustified, says Khurram Parvez, a human rights activist with the Jammu Kashmir Coalition of Civil Society, but India’s policy will not change, due to lack of international pressure.

Mr. Parvez told the Monitor that India contradicts itself on Kashmir policy: “India claims unrest in the state is caused by an insurgency sponsored by Pakistan [and says] because Kashmir is occupied – the Geneva convention and law of occupation should apply. But he says, “they also label it as an internal law and order problem.”

Yet Parvez warns against blaming AFSPA for all problems, adding that local police are also to blame, and that the situation is confused by local media who often conflate reports on local police and Indian Army actions.

In 2010, for example, some 100 protesters were shot dead. The Indian officer in Kashmir contacted for this report said some Kashmiris blamed the Army for these deaths but it was actually the state police in charge of maintaining law and order in that situation.