Asian Federation Against Involuntary Disappearances

TABLE OF CONTENTS

EDITORIAL

COVER STORY

- Realizing A World Without Desaparecidos

COUNTRY SITUATIONS

- The Making of Nepal’s Anti-disappearance Law

- Disappearances & Fake Encounters

NEWS FEATURES

- Claimants 1081

- Tracing Patterns of Disappearances in Latin America

- For the Want of Peace & Justice

- Probing Deeper into Munir’s Death

- Out of the Shadows

- Reclaiming Stolen Lives

PHOTO ESSAY

INTERNATIONAL SOLIDARITY

- Growing Federation

- At the Heart of Buenos Aires

REPRINT

- Submissions to the Independent Group of Eminent Persons

STATEMENTS

- Exhuming Truth

- Joint Statement of Independent Observers for the GRP - NDF Peace Process

POEM

- Of The Vanished

Country Situation

Recently, the issue of disappearances1 in the Jammu and Kashmir state invited country-wide attention after police investigations of cases brought to light that people are being disappeared and then later killed in “staged” or “fake” encounters. Victims were tagged as foreign militants killed in combat to project to the international community that Islamic Jehadis from Pakistan are causing trouble in Kashmir. More, considering how the military are generously rewarded monetarily to carry out such killings, officers taken the practice of picking up innocent civilians, kill them, pass them off as militants then collect their money.

One highly published case happened on December 8, 2006. The Indian Special Operations Group (SOG) picked up a man in Batamaloo. He was later found dead in Ganderbal at a scene of an alleged encounter between the SOG and the rebels. The SOG reported that the man was Lashker-e-Toiba, a militant from Multan, Pakistan. Investigations, however, found out that the person was not the said militant but a humble carpenter named Abdul Rehman Padder, and the killers were given Rupees 1 lac or US$2,000.

Padder’s case opened a Pandora’s Box as it fired up further investigations which unearthed four more cases of disappearances/fake encounters. Reports were soon published revealing the dubious strategies of the army and the SOG. News spread out like wildfire in the country; it jolted the entire civil society. In an act of demonstration, thousands of relatives of the disappeared took to the streets and for the first time, enforced disappearance became a public issue in the valley.

More, politicians and some civil society groups at the Indian capital of New Delhi went on a hunger strike. The worried government tried to control or to even ban the protest2 but it proved futile as the public outrage intensified considering that the protest served as the avenue to vent out the people’s suppressed anger against government atrocities which has built up for years. Padder’s death turned into the catalyst needed to mobilize the masses.

Following this event, the Association of Parents of the Disappeared Persons3 prepared the list of 31 people who were killed in “fake encounters” after being disappeared and passed off by the SOG as foreign militants. Petitions have also already been filed before the Jammu and Kashmir High Court. In most of these cases, bodies of the victims had been exhumed. However, due to the ineffectiveness of the judiciary, no investigations had been initiated. Public pressure though soon compelled the government on April 2, 2007, to appoint a commission tasked to probe into the cases. Formed under the Commissions of Enquiry Act of 1962, the team would be headed by a retired High Court judge.

It is important to note that this is the first time that the state ordered an investigation on the wave of enforced disappearances in the valley. In March 2000, five young individuals from Gujjar community suffered a similar fate as that of Padder: disappeared and killed under the pretext that they were foreign militants responsible for the massacre of 37 Sikhs at Chittingspora. But despite the massive demand for an inquiry regarding the violent incident, the government remained unmoved.4 Had the government at that time appointed a commission and the culpable officials indicted and prosecuted, it could have served as a deterrent to the perpetrators.

The new commission is the fourth commission appointed by the state but the first one formed to delve into the disappearance cases in Kashmir. Its mandates are:

a) Enquire into the causes, circumstances and conspiracy, if any, which led to the death of some persons in alleged custodial killings/fake encounters;

b) Fix responsibility of the persons involved for such killings, if any; and

c) Make suggestions/recommendations for preventing recurrence of such incidents in the future. The Commission shall perform all the functions necessary for holding the enquiry or incidental thereto and submit its report to the Government within a period of three months.

The APDP assails the limited mandate of the commission as the organization has always demanded that the government enquire into all the cases of enforced disappearances since it began in 1989. The Commission’s recommendations are also taken plainly as recommendatory in nature leaving perpetrators unpunished.

Furthermore, the commission’s appointment has drawn much controversy as the army contests the state government’s powers to question its actions. The army contends that since they are appointed by the federal government, the state government has no mandate over them. Under the draconian law, Armed Forces (Special) Powers Act (AFSPA), they say that they cannot be prosecuted without sanction from the federal government. Sanctions on them, however, are seldom given allowing them to enjoy impunity. Take for example the case of the Pathribal killings – a fake encounter which occurred in August 2000. The Central Bureau of Investigation, India’s premier investigation agency, charged an army personnel of the crime; the accused now faces trial in court. However, the prosecution process continues to be rocked by the army’s attacks on the court’s mandate.

APDP feels that the state and national mechanisms have failed; it is very unlikely for these mechanisms to bring the perpetrators to justice. Ironically, the Indian government has signed the United Nations Convention for the Protection of All Persons from Enforced or Involuntary Disappearances which is a pledge to uphold and respect human rights especially the Right Not to be Disappeared. Nevertheless, the international community can greatly help in putting pressure on the government to adhere and put into practice the principles and provisions of the Convention.

(Footnotes)

1 Enforced or Involuntary Disappearances (EID) still continue in the state of Jammu and Kashmir due to continuing armed conflict. Compared to the previous governments, however, the number of cases has been reduced. During the three-year rule of the People’s Democratic Party, 171 cases of disappearances have been recorded. But from November 2005 to May 2007, only 51 cases have been reported.

2 Prior holding public demonstrations, even if it’s a peaceful protest, require permission from the government.

3 The phenomenon of enforced disappearances has become a public issue in the state of Jammu and Kashmir due to APDP’s campaign and its networking with the Asian Federation Against Involuntary Disappearances (AFAD).

4 It has become customary in Jammu and Kashmir that the governments blame the previous governments for the cases of enforced disappearances; and they, therefore, feel morally unaccountable to the violations committed by their predecessors. The government also tends to release numerical data which conflict with those reported by human rights organizations.

Atty. Parvez Imroz is a lawyer specializing in cases involving human rights violations. A leading light in the human rights movement in Jammu and Kashmir, he serves as a patron of the Association of Parents of Disappeared Persons (APDP). He is a recipient of the Ludovic-Trarieux International Human Rights Prize 2006.

VOICE August 2007