The past two decades have witnessed two distinct phases of the conflict in Indian Administered Kashmir. What started out as a civil conflict in 1989, with active Kashmiri participation in an armed struggle for secession from India, based on the right to self-determination, as recognised by the United Nations Security Council has since transformed into a peaceful and non-violent agitation for the same right. The conflict has spawned massive violations of human rights, by both Indian security forces and ‘militants’ clashing with them, the former outnumbering the latter: the average Kashmiri has borne the brunt in either case. Though a fraction of what it was even seven years ago, the violence continues, causing severe social, economic and psychological crises among Kashmiris. This paper attempts to start a discussion on these problems, within a transitional justice framework, and explores the possibility of establishing a truth commission to address human rights violations committed by both sides of the conflict. The author contends that the transition in Kashmir from a ‘conflict’ to a ‘post-conflict’ situation has already begun, and that establishing a truth commission is an important way to formalise that break. The article is based on primary research, through interviews conducted in Kashmir in August 2009 with leaders of separatist and mainstream political parties, and with victims’ groups, to elicit their opinions on the need for a truth commission, and to ask them about the scope, composition and general powers they would envisage for any such commission, if it were established.
Ibid. Some of the laws that provide impunity for human rights violations are the Armed Forces Special Powers Act, 1990, the Disturbed Areas Act, 1990, and the Public Safety Act, 1978.
6.
Report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, ‘Mission to India’ (26 April 2013).
A ‘half-widow’ is the wife of a victim of an enforced disappearance: not knowing the fate of her husband with any degree of certainty, she cannot remarry and is often turned out of her matrimonial home by her husband’s family. She is not legally recognised as a widow, but is condemned to lead the life of one, thereby compounding her psychological trauma.
9.
Human Rights Watch, Everyone Lives in Fear, op. cit., pp. 62–115. Amnesty International has also documented, in some detail, the phenomenon of enforced disappearance in Kashmir and its repercussions; see, for example, Victoria Schofield, Kashmir in Conflict: India, Pakistan and the unending war (London and New York, I. B. Tauris, 2003), p. 198.
10.
Human Rights Watch, Everyone Lives in Fear, op. cit., p. 97.
11.
Ibid., pp. 116–22.
12.
In May 1992, following the assassination of the Mirwaiz of Kashmir, Molvi Mohammad Farooq, some forty people were gunned down near Islamia College Hawal at his funeral procession. In Kunan Poshpora, on 23 February 1991, units of the Indian army allegedly gang-raped anywhere between fifty-three to 100 village women during a search and interrogation operation. In the small town of Wandhama, on 25 January 1998, some twenty-three Kashmiri Pandits were shot and their homes and temple burned down by unidentified gunmen. On 20 January 1990, at the Gawkadal bridge in Srinagar, Indian police paramilitaries opened fire on Kashmiri protesters, killing at least thirty-five people; some survivors estimated a death toll of over 200. In Bijbehara on 22 October 1993, the Indian army fired on a crowd protesting about the siege of a mosque; at least thirty-five people were killed, with some sources claiming over fifty killed and up to 200 wounded. In the village of Nadimarg, 24 March 2003, at least twenty-four Pandits were lined up and shot including two small children, allegedly by Lashkar-e Taiba militants. In Chittisinghpura, 20 March 2000, thirty-six Sikhs were shot and killed; the identity of the perpetrators is disputed. See ibid.; see also Amnesty International, Impunity Must End in Jammu and Kashmir, 2001, available at: http://www.amnesty.org/en/library/asset/ASA20/023/2001/en/09b60517-d969-11dd-a057-592cb671dd8b/asa200232001en.pdf; see also http://www.amnesty.org/en/library/asset/ASA20/010/1991/en/256dbe4d-ee56-11dd-9381-bdd29f83d3a8/asa200101991en.html and http://kafila.org/2013/02/23/22-years-after-kunan-and-poshpora-rethinking-kashmir-abhijit-dutta/.
13.
MushtaqSheikh ‘Protests, strikes in Indian Kashmir over women’s deaths’, Reuters (1June2009), available at: http://uk.reuters.com/article/idUKDEL483425; Human Rights Watch puts the number of civilian deaths till 2006, at 20,000; see Human Rights Watch, Everyone Lives in Fear, op. cit., p. 1.
14.
Human Rights Watch, Everyone Lives in Fear, op. cit., p. 87.
15.
Ibid. The ‘Legislative Assembly’ is the provincial legislature of elected representatives, in every state in India.
16.
Ibid., p. 103.
17.
Ibid., pp. 103–04.
18.
Ibid., pp. 105–06.
19.
Ibid., p. 97.
20.
Ibid., p. 95.
21.
Ibid., p. 96.
22.
Ibid., pp. 94–95.
23.
Schofield, Kashmir in Conflict, op. cit., p. 151.
24.
RazdanOmkar, The Trauma of Kashmir: the untold reality (New Delhi, Vikas Publishing House Pvt. Ltd., 1999), p. 115.
25.
BoseSumantra, Kashmir: roots of conflict, paths to peace (Cambridge, MA, Harvard University Press, 2003), p. 108; see also Human Rights Watch, Everyone Lives in Fear, op. cit., p. 8.
26.
BhasinAnuradha, ‘A moon of many shades’, Economic and Political Weekly (Vol. 17, 27April2013); see also Bose, Kashmir, op. cit.
27.
Ibid., p. 22.
28.
Ibid. See also pp. 116–22.
29.
LutzEllen, ‘Transitional justice: lessons learned and the road ahead’, in Roht-ArriazaNaomiMariezcurrenaJavier, eds, Transitional Justice in the Twenty-First Century: beyond truth versus justice (Cambridge, Cambridge University Press, 2006), p. 326.
30.
Human Rights Watch, Everyone Lives in Fear, op. cit., p. 62.
31.
The official name of Indian Administered Kashmir is ‘Jammu and Kashmir’, and the designation of the head of the government of every state within the Union of India is ‘Chief Minister’.
32.
Human Rights Watch, Everyone Lives in Fear, op. cit., p. 62.
I asked whether it should address 1) Rape and sexual violence, 2) Murder and custodial killings, 3) Enforced disappearances, 4) Torture, 5) The displacement of Kashmiri Hindus, 6) Detention without trial, or 7) All of the above.
35.
Omar Abdullah, ‘The need for truth and reconciliation’, op. cit., ‘I understand that a TRC is usually set up in a post conflict environment and we are not yet at that stage but every indication is that we are heading in that direction.’
36.
A minister’s private secretary is a government servant, an officer in the state administration; a political secretary is a member of his political party, which in Mr Abdullah’s case is the National Conference.
37.
For a concise account of the rigging of the 1987 elections, see Bose, Kashmir, op. cit., pp. 47–51.
The term means a Muslim spiritual leader in Kashmir.
42.
Human Rights Watch, Everyone Lives in Fear, op. cit., pp. 40–41, 126.
43.
The Kashmir Bar Association is a representative body of lawyers practising in Srinagar; it is also a constitutive unit of the APHC (M).
44.
Human Rights Watch, Everyone Lives in Fear, op. cit., pp. 36–61.
45.
Ibid., p. 69.
46.
Ibid., p. 10.
47.
As quoted in Human Rights Watch, Everyone Lives in Fear, op. cit., p. 38.
48.
Ibid.
49.
Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, Section 4 (a).
50.
Ibid., Section 4 (c).
51.
Jammu and Kashmir Public Safety Act, 1978, Section 8.
52.
Criminal Procedure Code, 1973, Section 45; Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, Section 7; for a detailed examination, see Human Rights Watch, Everyone Lives in Fear, op. cit., pp. 27–35.
AliAgha Shahid, ‘Farewell’, in The Country Without a Post Office: poems, 1991–1995 (Delhi, Ravi Dayal, 2000), pp. 7–9; see also Sumantra Bose, Contested Lands: Israel-Palestine, Kashmir, Bosnia, Cyprus, and Sri Lanka (Cambridge, MA, Harvard University Press, 2007), p. 155.
