PUCL and PUDR organised a meeting on 22 Oct, 2011 on “Enforced Disappearances and Discovery of Mass Graves in Kashmir”. Speakers included Khurram Parvez of International Peoples Tribunal on Kashmir (IPTK) and JKCCS, Paramjeet Kaur Khalra of the Khalra Mission from Punjab, and Supreme Court lawyer Nitya Ramakrishnan, and were presided over by law researcher Usha Ramanatham. Interventions were made by Justice Rajender Sachar, Vrinda Grover, Pushkar Raj and Gautam Navlakha among others. The purpose of the meeting was to discuss the issues of disappearances, unidentified and mass graves in Kashmir earlier brought to light by the IPTK and recently corroborated by the findings of the Jammu and Kashmir State Human Rights Commission, so as to decide the lines of intervention that Indian rights groups could follow to take the issues forward. The attempt was to share and learn from the Punjab experience of the mass unidentified cremations discovered by Jaswant Singh Khalra and the subsequent struggle for justice being waged by Paramjeet Kaur and the Mission.
The positive role played by the Kashmir SHRC was acknowledged. It was pointed out that however in the Punjab case the role of the NHRC became limited to identifying the dead and providing monetary reparation. The circumstances in which the killings and surreptitious disposal of bodies occurred, identifying the political reasons behind these and providing safeguards against future occurrence and punishing the guilty had not been addressed in Punjab. The meeting sounded a cautionary note that the same should not occur in Kashmir. An impassioned plea was made by Paramjeet Kaur of the need to not forget Punjab where justice was still awaited by the families of the victims. The issues emphasised by the speakers were:
1. The need to establish culpability and punish the guilty. In the last two decades no offending security personnel has been prosecuted in Kashmir eg prosecution of Major Avtar Singh accused in the Jalil Andrabi case still awaits sanction from the Defence Ministry despite his being declared a proclaimed offender by Interpol. It is a glaring legal lacuna that enforced disappearances are not a crime under Indian law. But the obvious inference to be drawn from killings and surreptitious burials on such a large scale, with the identities of both the killed and the killers being destroyed, is being perpetrated by the state and its agents. It was pointed out that the circumstances following the disappearance and leading up to the killing – ie wrongful detention, torture, non-production before a magistrate etc. all are crimes in themselves inviting investigation and prosecution.
2. The identification of the dead by tallying the identities of those reported missing against the bodies identified, or through DNA testing. This is an essential step so as to end the uncertainty of families, allow them to mourn their dead and perform the funeral rites with due love and respect. Usha Ramanatham pointed out the absence of a protocol to be followed for DNA testing given that people were being asked to give their DNA to a state that they did not trust, whose agencies were in fact the accused. Apprehensions were expressed about the misuse of the DNA of family members for purposes other than corroboration of identity, for creating secret databases as had been known to happen in the USA.
3. The assertion of the Indian government and the mainstream media that those buried in the unidentified graves were not civilians but militants and foreign militants, as if this mitigated the enormity of the discovery. It was emphasised that the existence of so many unidentified bodies in unmarked graves itself merited an investigation to establish the circumstances of the deaths and affix responsibility, irrespective of the identities of those buried.
4. Mass graves. The Chief Minister’s assertion that there were no mass graves but only unidentified bodies was completely discredited since mass graves are not only the presence of more than one body (usually unidentified) in a single grave, but also as per the UN (1992 and 2002) where multiple cadavers are present in a single burial location, killed through extrajudicial and summary executions. T he SHRC investigation has reported finding at least 18 graves containing more than one body amidst 2000+ unmarked graves at 38 sites. Of the 2700+ unmarked graves that the IPTK found (Nov. 2009 report), 154 contained two bodies and 23graves had 3-17 bodies .
5. Reparation -Monetary compensation cannot supplant justice. Moreover reparation should extend beyond monetary compensation to social, emotional and psychological reparation.
6. Speakers reiterated that such enforced disappearances, targeted and mass killings, and secret disposal of bodies by security forces were not limited to Punjab and Kashmir, but also extended to Assam, Nagaland, Manipur, and could possibly be the future of Operation Greenhunt areas if due measures were not taken.
7. It was reiterated that the memory of the dead and the lessons of history not be forgotten. That the work of Jaswant Singh Khalra needs to be taken forward even as we awaken to the grim reality of Kashmir.
The following areas of intervention emerged at the end of the meeting:
i) That investigations be ordered into the enforced disappearances and unidentified graves in Kashmir (and cremations in Punjab),and the guilty punished.
ii) That India ratify the UN Convention on Enforced Disappearances to which it is a signatory.
iii) That India stop acting in derogation of the Convention on Enforced Disappearances (to which it is bound as a signatory) by providing complete legal and political impunity to security personnel under laws such as the AFSPA, thus violating various provisions of the Convention such as Article 6 which provides for the responsibility of the superior officer in enforced disappearances.
iv) That the Indian government amend the Prevention of Torture Bill of 2010, in keeping with the recommendations of the Rajya Sabha’s Select Committee eg regarding timebound sanction by the government for prosecuting govt officials together with reasons for refusal of sanction, and in keeping with the articles of the UN Convention on Torture to which too India is a signatory.
v) That we work in cooperation with the group/s in Kashmir who are engaged in this process before the SHRC in order that the ongoing SHRC process itself is strengthened.
Paramjeet Singh and Harish Dhawan