September 12, 2006

IV. The Origins of Impunity: Failure of Accountability in Jammu and Kashmir Since the Start of the Conflict

Over the years there have been well known cases of government abuse that have had a great impact on public opinion in Jammu and Kashmir. Because of the abuses themselves and the very public failure of accountability for the military and paramilitary personnel, police and high-ranking officials responsible, these cases have served as a recruiting sergeant for the insurgency.

Many Kashmiris, and some officials in New Delhi, believe that the course of events in Jammu and Kashmir could have been much different if the Indian government had properly supervised its forces so that abuses did not happen; if when their forces did commit abuses the government had held its forces accountable in a public and credible manner; and if it had quickly established the principle that the law would apply equally to soldiers and police, as it applied to militants and civilians. It is widely viewed that the insurgency derived much of its strength and longevity from this failure by government.

Below are some of the many serious cases of human rights violations that have seared the public consciousness in Jammu and Kashmir since 1989. No matter how "old" these cases, the Indian government remains obligated to investigate and punish those responsible for serious violations of human rights and international humanitarian law.[122]Human Rights Watch believes that no cases since the beginning of the insurgency are too old for justice to take place, and no effort at accountability and reparations is too late to be meaningful to Kashmiris, especially to the victims and their families.

In each of the cases discussed below, stretching over a ten-year period from early 1990 to early 2000, members of the security forces deployed in Jammu and Kashmir were accused of unlawful killings. In some cases official inquiries were ordered, but in the end no credible action was taken against the individuals implicated. This, along with immunity provisions in Indian law, has conveyed the impression to the population that the government has condoned the abuses.

The cases below are, of course, not the only serious incidents that have blotted the human and political landscape in Jammu and Kashmir in recent years. While these cases are illustrative, we believe that each, in its own way, serves as a milestone of the Indian government's failure to hold its security forces accountable.Atrocities by the militants during this period are not included, though more recent militant abuses are set out in Section VI.

A. Shootings at Gawakadal, Srinagar

Violence in Jammu and Kashmir erupted in November 1989, though signs of unrest had started almost a year earlier. After the kidnapping by the JKLF of Rubaiya Sayeed, daughter of India's Home Minister, in December 1989, the government decided to "get tough."[123]New Delhi appointed as governor Jagmohan, a Hafizabad-born (now in Pakistan) politician who was known as a forceful administrator, and who, as noted above, had held the post before.

"President's rule" is provided for under Article 356 of the Indian constitution.[124] This empowers the central government to dismiss a state legislature if the governor, a federal appointee, advises that governance of the state "cannot be carried on in accordance with the provisions of the constitution."[125]

Jagmohan was appointed governor despite opposition from the elected chief minister, Dr. Farooq Abdullah. In protest, the Abdullah government resigned. The imposition of governor's rule put New Delhi into direct confrontation with the Kashmiri insurgents.

Jagmohan was appointed on January 19, 1990. That night, in response to the kidnapping of Rubaiya Sayeed and other militant attacks, Indian security forces conducted warrantless and thus illegal house-to-house searches in Srinagar, hunting for illegal weapons or other evidence of support to the militants. They dragged many people out of their beds into the bitter cold. Many Kashmiris complained that they were beaten and abused.[126] Jagmohan maintains that he had nothing to do with the decision.[127]

The next morning, as word of the searches and beatings began to spread, people began to pour out into the streets of Srinagar. From the mosques, loudspeakers urged Kashmiris to come out and fight for azaadi, or freedom. Thousands of Kashmiris gathered to protest the actions of the security forces.[128]

The state government declared a curfew, but few if any Kashmiris observed it.[129] It was early evening when one group of marchers reached the GawakadalBridge on Srinagar's JhelumRiver.They were shouting slogans and some were pelting the soldiers with stones. Troops from the Central Reserve Police Force (CRPF) opened fire into the crowd. Eyewitnesses say the shooting was a brutal and excessive use of lethal force against demonstrators. Many demonstrators were shot from behind as they turned to run away.[130] Kashmiri news photographer Meraj-ud-din described the scene:

When I reached Gawakadal, all I could see were the dead. I saw bodies of children, bodies of women, bodies of men. Later they brought the bodies to the police compound. I saw them again. There I cried. I shouted, screamed. 'Don't do this to the people.' That day I saw everything.[131]

Human Rights Watch, in its 1991 report on the shootings, criticized the killings and concluded that the use of lethal force was not proportional to the threat.[132]

At least thirty-five people died. Many estimates put the toll near one hundred. Until then, this was the highest number of persons killed on a single day since the violence erupted in Jammu and Kashmir.[133] The killings drew international attention. The London based daily,the Independent, carried an interview with one of the survivors, a thirty-eight-year-old mechanical engineer called Farooq Ahmad, who worked for the government:

I was just standing watching the procession of Muslims demonstrating against India. It was curfew time and there were CRPF on both sides of the lane. They should have given a warning, telling people to go back to their rooms. But there was no warning, so people thought the procession was allowed. Then there were two shots in the air, and more shots, shots and shotspeople were falling down. I also fell down. Someone pushed me down. The CRPF took control of the area. There were a lot of dead and injured. But I was safe, no bullet. Then came somebody, they said I was still alive, and that fellow, an officer, came with a Bren gun, a light machine gun. He aimed at me and started firing.[134]

Farooq Ahmad survived. But few in Jammu and Kashmir have forgotten that incident. Human Rights Watch recently met with an eyewitness who recalled the events at Gawakadal.

I remember that scene perfectly. There were so many people. I remember thinking that all of Srinagar must be out on the streets. They were shouting slogans and calling for freedom. There was a CRPF bunker just near the bridge. Suddenly the soldiers opened fire. It was machine-gun fire and all I could hear is the rat-a-tat sound. At that time, we were not used to the sound of firing like we are today. I think everyone was shocked. No one had expected the troops to start firing. Soon, there were people falling down all over the place. I remember the man standing next to me saying, 'I know I have been shot but I can't feel anything.' I looked at him. And then I saw his foot. There was a bullet stuck inside his shoe All around people were groaning with pain. Everyone that could ran away. I stayed where I was in case they fired at me. I stood there for many hours. Finally, the police brought trucks and started taking the dead and wounded away. But they had been lying there for many hours before the trucks came. I remember that there were dogs sniffing at the bodies. I will never forget one sight. I saw a dog eating a human arm.[135]

The shooting at GawakadalBridge and the way the Indian government responded may have been the turning point in the rebellion. As Human Rights Watch said in a May 1991 report, "In the weeks that followed as security forces fired on crowds of marchers and as militants intensified their attacks against the police and those suspected of aiding them, Kashmir's civil war began in earnest."[136] Almost every day there were protests. Teachers, students, and government employees came out into the streets shouting slogans. At the same time, there were increased attacks from militants, now with a religious dimension. Hindu Kashmiris, called pandits, came under attack. Many were abducted or killed. Many received anonymous notes that were threatening and abusive.[137] Thousands of pandits began to flee the Muslim-majority Kashmir valley, relocating to squalid camps in Jammu and Delhi. At least three hundred thousand Kashmiri Hindus still remain displaced.[138]

The state administration, led by Jagmohan, sought to end the militancy and the mass protests through the increased use of force. Government forces fired live ammunition on crowds of unarmed demonstrators.[139] Round-the-clock curfews were imposed for days in major towns to prevent protests.[140] Paramilitary troops conducted large-scale searches, called "crackdowns" in Jammu and Kashmir. Residents were forced to gather outside while troops ransacked their belongings, looking for hidden weapons. Informers, in hoods, identified alleged militants to be taken into custody, who were then often tortured and sometimes killed.[141]

No known action was taken against any CRPF officials who ordered their forces to open fire at Gawakadal, or against the officers present during the shooting.[142] No public inquiry was ordered into the incident.[143] The police did file complaints against demonstrators who pelted stones at security forces, but they were not investigated.[144] Without an investigation into what exactly happened in Gawakadal, there will be no chance of holding those responsible accountable.[145]

The consequences of Gawakadal and the failure to hold the security forces accountable have been far reaching. Many young Kashmiris began to join the militants, whose popularity shot up. One man told Human Rights Watch that he and other parents watched helplessly as their sons enlisted with the militants: "Boys, as young as fourteen or fifteen, crossed the border and came back with guns. No one could stop them."[146]

The crackdowns also created greater schisms between the security forces and the public. Author and editor of the Asian Age newspaper, M.J. Akbar, summed up the feelings of many:

January 19 became the catalyst which propelled into a mass upsurge. Young men from hundreds of homes crossed over into Pakistan-Occupied Kashmir to receive arms and training in insurrection Pakistan came out in open support of secession, and for the first time, did not need to involve its regular troops in the confrontation. In Srinagar, each mosque became a citadel of fervor.[147]

B. Death of Mirwaiz Maulvi Mohammad Farooq

Mirwaiz Maulvi Mohammad Farooq was gunned down on May 21, 1990. The position of the "Mirwaiz," which is hereditary, is considered the most important religious authority in Srinagar.Farooq supported the independence movement led by the JKLF, although he had opposed the abduction of Rubaiya Sayeed. At the time of his death, he had also fallen out of favor with the more hardline Islamist groups, particularly the Hizb-ul-Mujahedin, which preferred accession of Jammu and Kashmir to Pakistan over independence.

According to police reports, on May 21 three persons visited Farooq at his home, claiming to have a prior appointment.[148] Farooq was alone when they went in to see him, while his secretary and guard waited outside. After about ten or fifteen minutes, the men waiting outside heard gun shots. They found Farooq critically injured with at least fifteen bullet wounds to the chest, head, stomach, and legs.[149] His assailants managed to escape.

As soon as they heard of the attack, people began to pour into the streets of Srinagar. Initially, public wrath was directed at members of the Hizb-ul-Mujahedin, which was suspected of the attack. The Hizb-ul-Mujahedin had by then begun a campaign of assassinating members of the old political order and Farooq's was a significant political voice.[150]After the attack, some of Farooq's followers began to surround and threaten to beat up supporters of the Hizb-ul-Mujahedin.[151]

Many Kashmiris gathered at the Sher-i-Kashmir Institute (a hospital) where Farooq had been taken, fatally wounded. At the news of his death, the crowd became restive and angry. A group snatched Maulvi Farooq's body and carried it in a procession towards the city.India Today magazine described what happened next:

The crowd forcibly took the body of the Mirwaiz, and wound its way through the downtown areas of Srinagar where curfew had been imposed. On its route lay the IslamiaCollege, which houses the headquarters of the 69th battalion of the CRPF. Seeing the mob heading towards them, the security forces panicked and opened fire, killing 57.[152]

There were varying accounts of the exact death toll.While some newspapers said that the death toll was fifty-seven, others reported that forty-seven were killed. Medical authorities certified thirty-five deaths.[153] Some press reports, however, put the toll at over one hundred.[154]

The protestors were carrying Farooq's coffin from the hospital to his office. The CRPF post was along the route. According to Yusuf Jameel, a Kashmiri journalist who covered the events, he first heard what sounded like a single shot.

It could have been militants or maybe a CRPF soldier guarding the camp fired his gun by mistake. But the CRPF reacted in panic. First the guards started firing blindly at the crowd and then the soldiers inside the camp thought there was fighting going on and came out and started firing as well.[155]

At least two bullets pierced the coffin.[156] Farooq's body fell out and was picked up by mourners, who replaced it in the coffin and ran with it to his office.[157]

J.N. Saxena, director general of police, however, gave a different account of the events in his official report:

The processionists pelted stones at the CRPF and some militants opened fire with AK-47 rifles from three sides and attacked the CPRF picket The CRPF had to return the fire and in the cross firing and stampede, several persons sustained injuries. The tally of fatal injuries is 24.[158]

Eyewitnesses told journalists that there had been no crossfire.[159] No troops were shot and injured or killed.

Jammu and Kashmir state police investigations later alleged that Farooq had been assassinated by a faction of the Hizb-ul-Mujahedin called the "Green Army," on the instructions of Pakistan's Inter Services Intelligence. The alleged assassin, Mohammad Abdullah Bangroo, was reportedly killed in an armed encounter a month later, on June 18, 1990.[160] Others allegedly involved in the plot continue to evade justice. In the irony that is Jammu and Kashmir, both Farooq and his alleged killer are buried in the same Martyr's graveyard in Srinagar.[161]

There was widespread criticism in the national and international press at the killing of unarmed mourners. Public rage shifted from the armed group blamed for the killing of Farooq to the government of India and the CRPF.[162]

One hundred and thirty-seven state government officials signed a letter to the governor expressing their anger over the mishandling of the situation and the indiscriminate attacks by security forces on unarmed civilians.[163] Ten senior officers also wrote a memorandum to the governor on May 28, 1990, expressing concern about the situation in Jammu and Kashmir and particularly about the incidents that had followed Maulvi Farooq's killing.

As responsible administrators we are appalled by the lack of planning, forethought and consideration for the mourners that led to indiscriminate killing of large numbers of peaceful processionists by nervous and trigger happy security forces. It is apparent that these security forces did not get the benefit of guidance of their officers and that frantic wireless messages from officers of the State Police asking for instructions to be conveyed to the CRPF to desist from firing on the procession were not heeded which is indicative of a breakdown of the command and control structure of the law and order machinery.[164]

Tavleen Singh, a journalist, later wrote that some in the administration conceded that the killings were unwarranted:

Later, a close aide of Jagmohan admitted to me that the whole thing had been a ghastly mistake and that men had acted without any proper instructions. They just went berserk and emptied all the bullets they had.[165]

While it appears that CRPF troops may have panicked and opened fire mistakenly, this may not relieve the commanders of legal responsibility for the deaths. Commanders have a duty to ensure that the soldiers under their command are trained in and understand the "rules of engagement," and that such rules of engagement are consistent with the requirements of international law.Poor soldiering is a command responsibility.

Governor Jagmohan later defended his term in Jammu and Kashmir in an 855-page book called My Frozen Turbulence in Kashmir. Jagmohan absolves himself of responsibility for ordering that first crackdown on January 1990 that sparked the protests. He blames the state administration led by Dr. Farooq Abdullah, who had ordered the crackdown before his resignation, and says that Director General of Police J.N. Saxena should have taken responsibility for following the chief minister's orders.

This would not only have been in accordance with the highest tradition of public service but would have denied my denigrators any opportunity to mount false propaganda against me. I was their main target Saxena would not have lost anything. We would not have let him down, as his action was bona fide. Regrettably, he could not pick up enough moral courage.[166]

On Maulvi Farooq's death and the killings that followed, Jagmohan claimed that the events happened so quickly that he could not assume charge of the situation. He once again placed the blame on the police, particularly Additional Director General M.N. Sabharwal, who was at the hospital but left when trouble erupted. Jagmohan writes:

Had he gone with the crowd or sent a strong contingent of police under the charge of a senior police officer to move with the crowd, the incident might have been averted, and if firing had to be resorted to by the [CRPF] to return the firing by the terrorists who were in the crowd, the casualties could be kept at a minimum. His conduct, to say the least, was highly irresponsible.[167]

Summarizing the events, he states that, "Unfortunately, in public affairs, you have to put up with the lesser evil to eliminate the greater evil, and events do not always take the direction that you intend."[168]

With a deteriorating human rights and political situation, it was critical that the government conduct a credible investigation and hold those responsible for the deaths accountable, at the very least with administrative sanctions. New Delhi forced Jagmohan to step down as Governor. This was a good first step, but not sufficient. If those with direct responsibility for the killings had also been held accountable, confidence within the community may have been restored to some degree.

But this did not happen. Jagmohan claims to have ordered an inquiry, but it is not clear that it ever took place.[169] No findings were ever made public. No one was ever held publicly accountable, except for Jagmohan. New Delhi failed to take credible action against those members of the CRPF or police who were responsible for the incident. If they had been fully and fairly prosecuted and those convicted appropriately sentenced, perhaps public rage at the death of unarmed protestors might have been contained. Militant leaders even joked to journalists that Jagmohan had achieved what they could not in forty years.[170]

The incident further turned Kashmiris against the Indian government and its security forces. Many seemed to forget that Farooq had not been killed by the government. As Tavleen Singh writes, "Whoever killed Maulvi Farooq it was certainly not Jagmohan, but because of the manner in which he handled the aftermath of [Farooq's] murder it was easy for militant groups to blame it on him."[171]

C. The Beijbehara killings

On October 22, 1993, at least thirty-seven people were killed when personnel from the 74th Battalion Border Security Force (BSF) opened fire to disperse more than ten thousand people marching on the National Highway in Beijbehara in Jammu and Kashmir. The protestors were demonstrating against an earlier incident of firing on protestors near the Hazratbal shrine in Srinagar.[172] One eyewitness recalled the events to Human Rights Watch:

The people had gathered on the National Highway which passes through Beijbehara town. It was like this even then, narrow, with shops on both sides of the road. There were thousands of people shouting slogans. But it was peaceful. The BSF just opened fire without any warning. It was terrible. There were so many people lying on the ground. Others were running in panic. This road, this very road, was full of blood.[173]

The government later said that thirty-seven persons had died.[174] The 1993 U.S. Department of State country report on human rights in India said, "Despite government claims that the security forces were ambushed by militants, only one BSF sub inspector was injured."[175]

The indiscriminate killing at Beijbehara is particularly important because it followed theSeptember 1993 passage of the Human Rights Protection Act (see Section III above), adopted under the pressure of persistent allegations of human rights abuse in Jammu and Kashmir as well as in other areas of armed conflict in India. The law established the National Human Rights Commission, which began operations in October 1993 and promptly took up the Beijbehara massacre. In proceedings that followed, it became apparent that the commission would not be able to challenge the armed forces' effective immunity from prosecution under Indian laws.

On November 1, 1993, the National Human Rights Commission, having on its own authority taken notice of the incident at Beijbehara, sent notices to the Ministry of Home Affairs, which controls the Border Security Force.The Ministry of Home Affairs sent to the NHRC a report on the incident based on the magisterial inquiry ordered by the state government as well as on the Staff Court of Inquiry ordered by the BSF.[176]This report stated that thirty-seven persons had died and seventy-three were injured in the shooting, and included evidence from six witnesses. The report also claimed that disciplinary proceedings had been initiated against fourteen BSF officials, but no details were provided.

On January 17, 1994, the National Human Rights Commission, based on the government report, made some strong recommendations that included immediate interim compensation to the victims' families and that, apart from disciplinary proceedings under the Border Security Force Act, there should be parallel criminal prosecution proceedings based on the magisterial inquiry.[177]

The government provided the standard 100,000 rupees [roughly U.S.$4,000 at that time] as compensation to the relatives of thirty-one civilians whom the local magistrate confirmed had been killed in the incident.Seventy-five others received compensations for injuries.[178] The National Human Rights Commission reported that the government, while indicating the extremely complex and serious situation on the ground, had assured the commission that it would ensure that:

[A]ny kind of excesses in the operations being carried out by the Security Forces, even in the most difficult of the situations, is effectively curbed.[179]

However, on the NHRC recommendation that there should be parallel criminal prosecution, the government responded that the BSF Staff Court of Inquiry, Record of Evidence proceedings, "broadly correspond to committal proceedings in a criminal court."[180]

There are no details available of the proceedings of the BSF Staff Court of Inquiry.[181] But nearly three years after the NHRC had called for action, on November 12, 1996, A.K. Tandon, then director general of the BSF, informed the NHRC that "a General Security Force Court trial was conducted in respect of the twelve BSF personnel involved in the said incident," but that results of the trial were "being withheld for the time being."[182]

On March 16, 1998, the NHRC, while acknowledging the BSF report, said that it wanted to review the proceedings of the General Security Force Court before taking any final position in the matter. The NHRC has the right to examine transcripts of trials to ensure that genuine attempts have been made to secure convictions.The commission directed the Ministry of Home Affairs to supply records of the proceedings. But the ministry refused, stating in a letter on May 5, 1998, the "inability of the Government of India to show records of the GSFC [General Security Force Court] to any authority other than those provided under the Border Security Force Act."[183]

The NHRC tried several times subsequently to insist that the government allow it to examine the proceedings of the trial, but no avail. In its annual report in 1998-1999, saying that it was "deeply disturbed," the NHRC noted that:

The Commission is yet to satisfy itself that justice has fully been done in regard to the tragic loss of life that occurred in Bijbehara, in the State of Jammu & Kashmir, on 22 October 1993 in respect of which incident it had made specific recommendations. The Commission is determined to see this case through to its logical conclusion. At the end of the year under reporting, it was awaiting the records of those proceedings and was contemplating moving a Writ Petition before the Supreme Court if it were denied full access to the records that it had sought.[184]

On February 8, 1999, the NHRC told the government to preserve all related documents and then appealed to the Supreme Court "to issue a writ to make available to the petitioner the relevant records of the court martials conducted in respect of the armed forces personnel involved in the said incident."[185] The writ petition was later withdrawn by the NHRC, probably because the verdict would have gone against the commission due to the restrictions imposed under Section 19 of the Human Rights Protection Act, 1993 (see Section III above).[186]

The Border Security Force had initially claimed that it had taken action against the responsible officials, but the only available information about this concerns one sub-inspector who the BSF told the NHRC had been found not guilty.[187] According to press reports, all those charged with murder were acquitted by the General Security Force Court.[188]

When the NHRC took up the incident there was hope among many Kashmiris that those responsible would be brought to justice. But this outcome made it clear that the NHRC would have a limited role in investigating abuses by the armed forces and promoting prosecutions of military personnel. Impunity was the victor again.

D. The killing of Jalil Andrabi

The trussed-up body of Jalil Andrabi, a human rights lawyer, was found on the banks of the Jhelum river in Srinagar on March 27, 1996.

Andrabi had been detained for questioning on March 8, 1996. After he failed to come home, a habeas corpus petition was filed by the Jammu and Kashmir High Court Bar Association. When Andrabi's body was found nineteen days after he "disappeared," it was discovered that he had been shot in the head and his eyes gouged out.[189] He had been dead for at least a week when his corpse was found.

On August 13, 1996, the High Court directed the police and security forces to make joint efforts to arrest the suspected perpetrators. In late 1996, after hearing representations from a Special Investigation Team (SIT) looking into the case, the High Court noted "that functionaries of the Union of India have not been cooperating with the [SIT] in a proper manner."[190] On April 10, 1997, the SIT presented its initial findings to the High Court and said that Maj. Avtar Singh from the 103rd Unit of the Territorial Army[191] and some other soldiers under his command were responsible for the abduction and killing of Andrabi. The team told the court that they had not been able to arrest Major Singh because no one appeared to know his whereabouts.[192]

When the army was told to produce Major Singh, the army representative told the High Court that Singh had been with the army for only a limited period and that his term of service had been terminated. He was no longer in the army and therefore could not be produced by it.[193] The army representative also said that the major had not committed the crime in his official capacity and therefore the army as a whole could not be held responsible for his actions.[194]

According to the NHRC, the army refused to hand over the accused Major Singh to the Special Investigation Team.[195] The police team had also been told that Major Singh could not be prosecuted by civil courts because he was employed by the state and would be considered for court martial. Stating that the case was "a source of continuing embarrassment to the country," the NHRC noted that,

[d]espite a notice having been served on the army to produce the officer of the army suspected to be involved in the abduction and subsequent death of Jalil Andrabi, this has not been done. The persistence of such a situation reflects extremely poorly on the conduct of those who are failing to cooperate in ensuring justice is done in this most serious case.[196]

The government of India has consistently failed to deliver justice in the Jalil Andrabi case. Soon after his murder, the government, in fact, chose to be defiant. In response to an Amnesty International report, the Indian government said in a September 1996 letter: "The allegations of [a] Government hand in the killing of human rights activists in J & K has been made earlier also. In all incidents of killings of so-called human rights activists, Government has made available clinching evidence showing they were targets of one or other militant organization, whose ideology did not match with theirs."[197]

However, when the Special Investigation Team handed in a report to the state government on October 11, 2000, it again blamed Maj. Avtar Singh, who had been posted for anti-terrorist operations in Rawalpora, Srinagar. On October 18, 2000, the High Court, based on the inquiry report, ordered the SIT to file charges including murder, and asked the commanding officer of Major Singh to provide all possible assistance in producing the accused before the court.

Several orders were issued to the army, requiring that the accused be produced before the court of the Chief Judicial Magistrate, which was hearing murder charges against Major Singh. On December 26, 2000, the magistrate, noting that the army authorities had repeatedly ignored requests to produce the suspect in court, presented the army with the option to try the suspect by court martial or in a civilian court. On January 22, 2001, the army sent a letter to the magistrate stating that Major Singh would be tried in a court martial.

The Jammu and Kashmir High Court Bar Association then submitted a petition to the High Court demanding that Major Singh be tried in a civilian court. The petition reminded the court of the failure to produce Major Singh before the judge. The High Court, acting on the petition, stayed the court martial.

In March 2001, the SIT submitted its final report to the High Court. The SIT had found during its investigations that Major Singh may have been involved in at least six other extrajudicial executions.[198]

The delays and failure of due process in this case reflect the government's failure to address impunity for the armed forces. Arshid Andrabi, brother of Jalil Andrabi, is also a lawyer and has been pursuing the case. He says that there is no option but to follow the rule of law, but the failure to arrest his brother's alleged killer reflects a breakdown in the judicial system.

We are pursuing the case, but we have no hope at all. I have just returned from a hearing. Maj. Avtar Singh had still not been arrested. It was claimed that he cannot be found. It has been nine years and the man is still at large. Despite orders by the court, they have not bothered to arrest him The army says that he retired two years ago, but even before that, the police knew where he was posted. They sent summons. He did not appear but still he was not arrested. It proves that there is some sort of connivance between the police and the army. This man has been blamed for other killings as well. He has been questioned by the police. Why was he not detained then as is the rule for all those accused of murder?[199]

The failure of the government to prosecute those responsible for the murder of Jalil Andrabi is still cited in Jammu and Kashmir as an example of how New Delhi permits its troops to commit crimes with impunity. As Mian Abdul Qayoom, president of the Jammu and Kashmir High Court Bar Association, put it to Human Rights Watch:

Jalil Andrabi was a well-known man. His case was taken up by so many organizations, including many in India, the NHRC, Amnesty International, and Human Rights Watch. Nothing has happened. His murderers are living in comfort on government salaries or pension. How then can there be justice in any other case?[200]

Indeed, as far back as July 1999 Human Rights Watch had recommended to the government of India that, "Major Avtar Singh of the 35th Rashtriya Rifles should be apprehended immediately and prosecuted for the March 1996 murder of human rights lawyer and JKLF member Jalil Andrabi."[201] The state's willingness and ability to resist even a police finding to prosecute a military officer reflects a pattern of impunity that has had broad-reaching consequences in Jammu and Kashmir.

E. Chattisinghpora massacre and ensuing killings

On March 20, 2000, on the eve of a visit by then U.S. President Bill Clinton to India, armed men in Indian army uniforms entered the village of Chattisinghpora in Anantnag district at night.The villagers, most of them Sikhs, were told that it was a routine investigation and identity check. Male residents were asked to come out of their homes with their identification cards. Once they were lined up outside, however, the gunmen opened fire, killing thirty-six and injuring several others. It was the first time in more than a decade of violence in Jammu and Kashmir that the Sikh community had come under attack.

The killings shocked many Kashmiris. India immediately blamed Pakistan and the Islamist groups based there. Others claimed that the killings were in fact carried out by Indian troops.[202] Generally, Kashmiris were willing to wait for a credible inquiry.[203]

In August 2000, the government said that it had evidence that the Pakistan-based Lashkar-e-Toiba was behind the killings.[204] In response to a notice from the National Human Rights Commission, the director general of police of Jammu and Kashmir, Gurbachan Jagat, said a case had been registered and investigations were in progress. The commission said that according to information received from the government of India:

Of the twenty accused persons identified in connection with the killing of 35 Sikhs, 6 were killed in subsequent encounters; 2 were further detained under the Public Safety Act and 12 were absconding. A charge sheet has been filed in the case on 13 November 2000. The report stated three Pakistani nationals belonging to Lashkar-e-Toiba had confessed their involvement in the killings.[205]

This was a partial representation of the facts. After the murders of the Sikhs, the government ordered an inquiry and combing operation to locate those responsible. On March 25, 2000, the security forces claimed that five militants responsible for the massacre had been killed in an armed encounter at Pathirabal. The encounter was later found to have been fabricated; the dead men were ordinary villagers. On April 3, 2000, security forces opened fire on a demonstration in Brakpora to protest the killing of the five villagers, this time killing eight civilians.

Pathirabal killings

On March 25, 2000, five days after the Chattisinghpora massacre, Farooq Khan, senior superintendent of police in Anantnag, claimed that security forces had killed the militants responsible for the killings in an operation in Pathirabal, Panchalthan. Describing the joint operations by the police led by Khan and the army's 7th Rashtriya Rifles led by Col. Ajay Saxena, Khan told journalists that assault rifles, grenades, and two wireless sets had been recovered from the militants who all belonged to the Abu Maaz unit of a foreign militant group.[206] They had been hiding inside a hut that later caught fire. Director General of Police Jagat said a member of the Hizb-ul-Mujahedin had provided information about the militant hideout. All of the militants were "probably foreigners," he said, adding: "It is certain that they were the killers."[207] The daily update for March 25, 2000, on an army website claims: "5 foreign terrorists (Harkat-ul-Mujahideen and Lashkar-e-Toiba group) killed. These terrorists were involved in the massacre of 36 innocent Sikhs on the night of 20 March."[208]

The army handed over the bodies to the police and filed a police report.[209] The bodies were badly mutilated, with three completely charred and another that had been decapitated. All of them were buried by the police.[210]

Meanwhile, a number of villagers had been abducted on March 24, 2000, from three different places in the area, and missing person complaints had been lodged at the local police station. After hearing about the killing of so-called militants, villagers went to the site of the killings, where they found some items of clothing belonging to two of the five missing men.[211]Local residents of the area insisted that those killed were not militants but the abducted men who had then been murdered in a fake encounter, and the bodies burned to prevent identification.[212] An army spokesman, however, said: "Genuine terrorists have been killed. Do not give much credence to these reports about a fake encounter. People are twisting facts."[213]

Refusing to believe the official version, the villagers held several protests. On April 1, 2000, the Chief Judicial Magistrate ordered Deputy Superintendent of Police Sheikh Abdul Rahman to investigate the matter to ascertain whether the dead men were civilians or armed gunmen. An inquiry was also launched into the disappearance of the five villagers. At the same time, the district magistrate ordered that the bodies be exhumed for identification.

The bodies were finally exhumed on April 6-7, 2000. Although badly burnt, relatives identified the bodies. However, the identification was not conclusive.[214] It was decided that DNA tests would be conducted to settle the issue. Meanwhile, all five bodies were handed over to the relatives for reburial pending a final identification from the forensics laboratories.[215]

Forensic samples were collected by Dr. Balbir Kaur and a team of forensic experts from a government medical college under the supervision of police officer Rahman and sent to the Centre for DNA Fingerprinting and Diagnostics in Hyderabad and to the Central Forensic Science Laboratory in Kolkatta. On February 26, 2001, the Hyderabad laboratory wrote to the police, saying that some of the samples were spurious because in one case samples supposed to be from a female relative were actually from a male, and in another case samples from an alleged female were in fact composed of the blood of two different men.[216] Fresh samples were gathered and sent by Dr. Kaur.[217]

Meanwhile, information about the spurious samples was leaked to the press.[218] On March 14, 2002, the National Human Rights Commission issued a notice to the government of Jammu and Kashmir about reports of tampering with the DNA testing, and called for an "up to date report of the action taken in this matter," stating that:

In view of these media reports, which have not come as a surprise to the Commission because of the reservations it has had on the performance of the concerned public servants reported earlier to the Commission not being found very satisfactory, the Commission requires the Government of J & K to submit a comprehensive up to date report of the action taken in this matter together with that in contemplation to correctly identify the five deceased as well as the follow up action."[219]

Farooq Abdullah, then chief minister of Jammu and Kashmir, had already made a statement on March 8, 2002, in the state assembly, admitting that officials had tampered with the DNA samples. On March 15, he also ordered an inquiry headed by retired High Court Judge G. A. Kuchai, and promised that all those found responsible for tampering with evidence would be prosecuted and punished.[220] Dr. Kaur and five others were suspended, pending the Kuchai Commission report.[221]

On July 16, 2002, Chief Minister Abdullah released a final report from the Central Forensic Science Laboratory in Kolkatta stating: "It has been clearly established that the deceased were not foreign terrorists as claimed by the forces who led the operations, but they were innocent civilians."[222]

The chief minister recommended an investigation by the Central Bureau of Investigation into the entire Pathirabal operation, "in view of the gravity of the offence as well as the attempt made by certain officials to destroy evidence."[223]

The commission under G.A. Kuchai submitted its report on December 12, 2002, but it was not made public.[224] According to press reports, the inquiry found that Senior Superintendent of Police Farooq Khan may have organized the manipulation of DNA samples, noting that he "might have managed behind the scene that blood samples collected turn fake by indirect methods."[225]

The Kuchai Commisison also questioned the conduct of Deputy Superintendent of Police Abdul Rahman, who had been responsible for organizing the collection of DNA samples from relatives of the killed men. The donors were not properly identified by the paramedical staff escorted by Rahman. The conduct of the police, the paramedical staff and the doctors, the commission found, "gave enough opportunity to fudge the material."[226]

In March 2003, a newly elected state government led by Mufti Mohammad Sayeed set up a three-member ministerial committee to consider the findings of the Kuchai Commission. The committee found that "only those persons related to the killings [of the five civilians] would be interested in the destruction or falsification of evidence."[227] Based on the committee recommendations, disciplinary action was ordered against Deputy Superintendent Rahman for subverting proper evidence gathering. Strong displeasure was conveyed to Dr. Balbir Kaur, who had headed the team of forensic experts for the government medical college that collected the samples, blaming them for "lack of proficiency and diligence."[228]

Senior Superintendent of Police Farooq Khan, a federal government employee and therefore beyond the jurisdiction of the state government, was suspended for his actions in Pathirabal.Assistant Sub Inspector Bashir Ahmad, who belonged to the Jammu and Kashmir state police, was dismissed from service.[229] Khan, who had earlier received the President's Police Medal for Gallantry, denied any involvement in the case.[230] He contested his suspension and was reinstated.[231]

However, many Kashmiris believe that Farooq Khan knows what happened, even if he did not take part in the faked armed encounter, and has therefore obstructed justice. They base their opinion on an earlier report of a commission headed by Justice S. R. Pandian set up to inquire into the Barakpora incident described below[232] which said that the security forces had deliberately obliterated evidence of the Pathirabal operation

by completely charring three of the five bodies and leaving one of the remaining with missing of the entire upper portion of the body over and above the chest including the head-all with a malafide intention of getting rid of even the last traces of physical identity and finally burying all the dead bodies in various places within a radius of 2 to 2 km and far away from the scene of the alleged encounter.[233]

During inquiries by Justice Pandian, Senior Superintendent Farooq Khan said that the police could not be held responsible for the events at Pathirabal.[234]The operation in which the five villagers were killed, he said, was conducted by the army.[235] On questioning, he clarified that although the operation at Pathirabal had been conducted jointly by the police and the army, police representatives had "accompanied the Army, but [had] not necessarily [taken part] in the actual shoot out."[236]He said that although representatives of the police had been with the commandant of the unit, "Army operations are always led by their officers."[237]

Khan, who had made the statement to the media claiming that five militants responsible for the Chattisinghpora massacre had been killed, told the inquiry commission that his statement was based on the briefing he had received from the army.[238]It is true that when there are joint operations by the police and the army, it is usually the army that is in command.

Assistant Sub Inspector Bashir Ahmad had told the commission that he had received a telephone call from a shopkeeper informing him of the presence of foreign militants in the neighborhood. Ahmad claimed that he was part of an operation led by the 7th Rashtriya Rifles and had fired twenty to twenty-five rounds of ammunition. Eventually, the firing stopped and he found charred bodies on the ground.[239] The state government decided to prosecute Ahmad for his role in the Pathirabal killings, in addition to terminating his services.[240]

In September 2005, the Central Bureau of Investigation, which had been asked to take over the investigation in February 2003, exonerated Senior Superintendent of Police Farooq Khan.[241]

While there have been investigations, albeit unsatisfactory, into the role of police in the events surrounding the Pathirabal killings, what had largely been ignored was that the army's Rashtriya Rifles had also been involved in the operation and, according to Superintendent Khan, had actually led it. As described above, an army spokesman had insisted that "genuine terrorists have been killed." The daily update for that day on the official website managed by the 15thCorps headquarters in Srinagar still claims that "5 AK rifles, 12 magazines with 44 grenade launcher attachments, 4 timer devices and 2 radio sets recovered."[242]Yet this information has been found to be false by government inquiry commissions.

A major development in the case occurred on May 11, 2006, when the Central Bureau of Investigation completed its investigations and filed murder charges against five army officers, Brig. Ajay Saxena, Lt. Col. Brajendra Pratap Singh, Maj. Saurabh Sinha, Maj. Amit Saxena and Subedar Idrees Khan, before the Chief Judicial Magistrate in Srinagar. Interestingly, the CBI took the position that filing these charges was not a violation of Section 197(2) of the Criminal Procedure Code (see Section III above), since these cases involved murder and could not be attributed to actions taken in the course of performing official duty. The CBI concluded that:

The army unit 7 Rashtriya Rifles (RR) which was then stationed in Anantnag came under tremendous psychological pressure and in order to show quick results these five Army personnel and their under command, whose identity could not be established, entered into a criminal conspiracy to pick up some innocent persons and stage manage an encounter to create and impression that the militants responsible for [the Chattisinghpora] killings had been neutralized.[243]

The CBI also said that the "accused showed fake recovery of arms and ammunition from the five deceased after obtaining signatures of two local civilians on blank papers and subsequently filling in details on a typewriter."[244]

The Chief Judicial Magistrate, after reading the charges, said on May 11, 2006 that the "accused persons were subject to military law," and directed the army to decide whether it wished to exercise the option of a court martial.[245] This is an inexplicable decision that undermines the principle of equality before the law and further entrenches the military as being above the law.

In Jammu and Kashmir, there are fears that the army will take charge of this case and process it through a court martial. Given the army's poor record in holding its soldiers accountable, and considering that the army had taken no internal disciplinary action until the charges were filed, it is unlikely that a military court can be trusted to deliver justice. Indeed, a CBI officer told the Indian Express that the army had not cooperated with the investigations, and that "[w]henever the CBI asked for files or documents, there was no response. It was exasperating."[246]

According to the Indian Express, Brig. Amit Saxena, one of the accused, has written a letter of protest to the director general of military operations saying that he and the other officers were being singled out for "harassment, ignominy, humiliation, agony and financial strain."[247]The army, in its response to the charges, filed a petition since the operation took place in an area notified as "disturbed," the officers were eligible for protections provided by the Armed Forces Special Powers (Jammu and Kashmir) Act. The army sought to quash the charges on the grounds that the CBI did not have prior permission from the federal government to file them. In its petition, the army claimed: "The incident in question occurred during the military operation conducted officially, with the full concurrence and knowledge of superior authorities. The said acts of encounter cannot be viewed as individual acts of the alleged accused persons because there was no motive or ill-will on their part and the entire military operation was launched in good faith to apprehend the terrorists involved in the Chittisinghpora massacre."[248]

In its response, the CBI responded that since this was not a genuine encounter, "The acts of the accused do not come under the purview of discharge of official duties as provided by the act."[249]

There was no decision from the court at the time of writing. Despite the seriousness of the charges against the five men, they have not been taken into custody.

The CBI's investigation and charges could be an important precedent, or simply a case in which political considerations carried more sway than legal ones. If the five accused were in fact responsible for the killings, are successfully prosecuted, and no other responsible senior officer or official is protected from prosecution, this case could prove to be a watershed in Jammu and Kashmir. But the decision of the magistrate to allow the army to handle the case through a court martial and the refusal of the army to cooperate with the CBI investigation indicate that this might be yet another missed opportunity to show Kashmiris that justice is possible for human rights violations and the law will be applied equally to all.

Most independent investigations by human rights groups have concluded that the Sikh villagers at Chattisinghpora were killed by militants. [250]

Barakpora killings

After the March 25, 2000 killing of the five alleged foreign militants in Pathirabal, villagers went to the site of the encounter. As described above, villagers immediately began a protest, insisting that the encounter was faked and that five innocent villagers had been killed.[251] They persisted in challenging the "encounter" and demanded that the bodies be exhumed, insisting that the police had picked up and "disappeared" ordinary citizens; their demands over the following few days led to the Chief Judicial Magistrate's offer to exhume the bodies.[252]

On April 3, 2000, several hundred demonstrators set out on a march to the district headquarters in Anantnag to present a petition to the deputy commissioner to speed up the exhumation.[253] At a junction of three streets was the Brakpora Camp, composed of one building housing police personnel, and another the 54th Battalion of the Central Reserve Police Force, who were jointly involved in combating militancy in the area.[254]

The police and Central Police Reserve Force at the camp opened fire on the procession, killing eight people and injuring at least fifteen.[255] The police claimed that they had opened fire because the protesters had hurled stones at them and that some militants, posing as unarmed demonstrators, had fired on the military camp prompting return fire.[256] The police also blamed the deaths of unarmed protestors on militants, stating that those killed had been shot from behind,[257] a claim disputed by eyewitnesses.[258]

There were angry protests in the state assembly, with legislators insisting that those responsible for firing on the demonstration be punished.Chief Minister Farooq Abdullah, after visiting Brakpora, suspended several police officers implicated in the shooting and also ordered that three senior officers from the district, including the deputy inspector-general of police, senior superintendent of police and the deputy commissioner, be transferred.[259]He also promised a judicial inquiry.

Former High Court judge S.R. Pandian was asked to head the commission set up to investigate the police shooting.[260] His report, issued on October 27, 2000, concluded that:

There can be no second opinion that the incident that had taken place in front of the SOG [Special Operations Group] and CRPF Camp at Brakpora/Bulbul Nowgam, Anantnag is nothing but a sort of butchery [by the troops] in which eight innocent persons had laid down their lives and 14 persons sustained injuries, some of them very seriously. The loss to life is irrevocable.[261]

Justice Pandian, who also examined the causes that led to the incident at Brakpora, said that its "direct root causes" were linked to the Chattisinghpora massacre and the faked encounter killings in Pathirabal.[262] His commission fixed responsibility on seven people: three policemen and four members of the CRPF.[263] Both officers in-charge, Ashok Kumar of the state police and R. P. Roy of the CRPF, were held responsible. The commission findings were unequivocal, stating that the shooting was "nothing short of an unwarranted brutal attack amounting to murder, attempt to murder and causing grievous and simple hurt, without any justification and authority."[264]

The Pandian Commission report was placed before the state cabinet on October 31, 2000. The Chief Minister Farooq Abdullah, accepting the findings, said that the cases relating to the four CRPF personnel would be forwarded to the central government for appropriate action.[265] Murder charges, he said, would be brought against the police personnel found responsible for the shooting.[266] Nearly six years on, the three policemen have yet to be arrested or charged. There is no information available about any action taken against CRPF personnel.

[122] The Human Rights Committee, in its Concluding Observations to Argentina in 2000, stated that with respect to human rights violations during military rule, gross human rights violations "should be prosecutable for as long as necessary, with applicability as far back in time as necessary to bring their perpetrators to justice." Concluding observations of the Human Rights Committee: Argentina (Nov. 3, 2000), CCPR/CO/70/ARG, para. 9.See also the Convention against Torture, Arts. 4, 5 & 7 and other human rights treaties. The Human Rights Committee has stated that states are "under a duty to investigate thoroughly alleged violations of human rights, and in particular forced disappearances of persons and violations of the right to life, and to prosecute criminally, try and punish those held responsible for such violations." Bautista de Arellana v. Colombia, Communication No. 563/1993, U.N. Doc. CCPR/C/55/D/563/1993 (1995), para. 8.6.

Under international humanitarian law, states must investigate war crimes allegedly committed by their armed forces or on their territory and prosecute as appropriate. See International Committee of the Red Cross (ICRC), Customary International Humanitarian Law (Cambridge: CambridgeUniv. Press, 2005), pp. 607-10.

[123]Akbar, Kashmir: Behind the Vale, p. 218.

[124]See footnote 36.

[125]Constitution of India, [online] http://lawmin.nic.in/coi.htm (retrieved April 17, 2006).

[126]Puri, Kashmir: Towards Insurgency, p. 60.

[127]Jagmohan, My Frozen Turbulence in Kashmir, p.15.

[128]Akbar,Kashmir: Behind the Vale, p. 218

[129]Joshi, The Lost Rebellion, p. 41.

[130]Asia Watch, Kashmir Under Siege, p. 27.

[131]Chindu Sreedharam's interview with photojournalist Meraj-ud-din, "A lensman's record of the vale of violence," in "Blood in the Snow: Ten Years of Conflict in Kashmir," December 11, 1999, [online] http://www.rediff.com/news/1999/dec/11blood.htm (retrieved May 10, 2005).

[132]Asia Watch, Kashmir Under Siege, p. 27.

[133]Puri, Kashmir: Towards Insurgency, p.61. There are other estimates that nearly one hundred people were killed; see Singh, Kashmir: A Tragedy of Errors.

[134]Tony Allen-Mills, "The Secret Massacre of Srinagar," The Independent (London), January 28, 1990. Several other foreign magazines and newspapers reported the incident. See also Victoria Schofield, Kashmir in the Crossfire (London: I.B. Tauris & Co Ltd., 1996) [online excerpts] http://www.kashmirpoint.com/Bookexerts.htm (retrieved May 26, 2005).

[135]Human Rights Watch interview, name withheld, Srinagar, July 29, 2005.

[136]Asia Watch, Kashmir Under Siege, p. 14.

[137]Asia Watch, Kashmir Under Siege, pp. 147-153.

[138]Kanchan Gupta, "The Pandits: Dole and Despair," rediff.com, February 3, 2005, [online] http://www.rediff.com/news/2005/feb/04kanch.htm (retrieved February 16, 2006).

[139]Asia Watch, Kashmir Under Siege, p. 26.

[140]Puri, Kashmir: Towards Insurgency, p. 62.

[141]Asia Watch, Kashmir Under Siege, p. 28.

[142]Human Rights Watch email interview with Parvez Imroz, Jammu and Kashmir Coalition of Civil Society, Srinagar, March 17, 2005.

[143]Puri, Kashmir: Towards Insurgency, p. 61.

[144]"Kashmir's First Blood," The Indian Express, May 1, 2005, [online] http://in.news.yahoo.com/050430/48/5yd80.html (retrieved June 10, 2005).

[145]Ibid.

[146]Human Rights Watch interview with the father of a JKLF militant who surrendered in 1994, Srinagar, July 30, 2005.

[147]Akbar, Kashmir: Behind the Vale, p. 219.

[148]Report from J.N. Saxena, director general of Police to Jagmohan, governor of Jammu and Kashmir, reproduced in Jagmohan, My Frozen Turbulence in Kashmir, pp. 587-589.

[149]"Cleric Killed, 30 Mourners Slain in India," Los Angeles Times, May 21, 1990, p.2.

[150] Joshi, The Lost Rebellion, p. 72.

[151]David Devadas, "Will CRPF Overcome Memories of Excesses that Haunt Kashmiri Minds?" The Tribune (Chandigarh), November 23, 2003, [online] http://www/tribuneindia.com/2003/20031123/edit.htm#4 (retrieved June 1, 2005).

[152]Report from India Today, June 15, 1990, cited in Singh, Kashmir: A Tragedy of Errors, p. 158.

[153]Asia Watch, Kashmir Under Siege, p. 58.

[154]Akhila Raman, "India's Human Rights Record in J&K", November 2002, indiatogether.org, online] http://www.indiatogether.org/peace/kashmir/articles/indhr.htm (retrieved June 14, 2005); Puri, Kashmir: Towards Insurgency, p. 63.

[155]Human Rights Watch interview with Yusuf Jameel, journalist, Srinagar, August 3, 2005.

[156]Akbar, Kashmir: Behind the Vale, p. 219.

[157]"Cleric Killed, 30 Mourners Slain in India,"Los Angeles Times, May 21, 1990.

[158]Report reproduced in Jagmohan, My Frozen Turbulence in Kashmir, p. 588.

[159]Human Rights Watch, Kashmir Under Siege, p. 58.

[160]Joshi, The Lost Rebellion, p. 74.

[161]Praveen Swami, "Mutfi's Turn," Frontline, Volume 19, Issue 23, [online] http://www.flonnet.com/fl1923/stories/2002112006200400.htm (retrieved July 16, 2005).

[162]David Devadas, "Will CRPF Overcome Memories of Excesses that Haunt Kashmiri Minds?" The Tribune, November 23, 2003, [online] http://www.tribuneindia.com/2003/20031123/edit.htm#4 (retrieved June 1, 2005).

[163]Puri, Kashmir: Towards Insurgency, p. 63.

[164]Memorandum from senior officials to Governor Girish Saxena, May 28, 1990, as reproduced in Singh, Kashmir: A Tragedy of Errors, p. 156.

[165]Singh, Kashmir: A Tragedy of Errors, p. 159.

[166]Jagmohan, My Frozen Turbulence in Kashmir, p. 16.

[167]Ibid. p. 590.

[168]Ibid. p. 18.

[169]Ibid. p. 589.

[170]Singh, Kashmir: A Tragedy of Errors, p. 134.

[171]Ibid. p. 161.

[172]"10 years on, Bejbehara massacre victims await 'healing touch,'" Kashmir Times, October 20, 2003, [online] http://kashmir.ahrchk.net/mainfile.php/news/200210/294/ (retrieved March 17, 2005).

[173]Human Rights Watch interview, name withheld, Beijbehara, August 1, 2005.

[174]"10 years on, Bejbehara massacre victims await 'healing touch,'" Kashmir Times, October 20, 2003, [online] http://kashmir.ahrchk.net/mainfile.php/news/200210/294/ (retrieved March 17, 2005).

[175]U.S. Department of State, "Country Reports on Human Rights Practices: India", January 31, 1994, [online] http://dosfan.lib.uic.edu/ERC/democracy/1993_hrp_report/93hrp_report_sasia/India.html (retrieved March 17, 2005).

[176]Under the Border Security Force Act and BSF Rules, offenses by members of the force are examined by the Staff Court of Inquiry and those found responsible face trial by a Security Force Court.

[177]National Human Rights Commission, Annual Report, 1993-94, Annexure V.

[178]Ibid.

[179]Ibid.

[180]Ibid.

[181]Siddharth Varadarajan and Manoj Joshi, "BSF record: Guilty Are Seldom Punished," The Times of India, April 21, 2002, [online] http://timesofindia.indiatimes.com/articleshow/7503214.cms (retrieved October 30, 2004).

[182]AsianCenter for Human Rights, "Holy Cows, Chained Watchdog and a Banana Republic," January 28, 2004, [online] http://www.achrweb.org/Review/2004/0504.htm (retrieved March 17, 2005).

[183]A.G. Noorani, "Audit of Human Rights," Economic and Political Weekly, 3-9 November 2001, Vol. XXXVI, No. 44; "Bijbehara Killings, India's NHRC: The Best Case is Quite the Worst" in "Commissions and Conflict: Briefing Papers on the Role of the National Human Rights Institutions in Conflict Situations", AsianCenter for Human Rights, September 11, 2004, p. 27.

[184]National Human Rights Commission, Section 3.6, Annual Report, 1998-1999, [online] http://nhrc.nic.in/ (retrieved July 4, 2005).

[185]Ibid.

[186]AsianCenter for Human Rights, "Holy Cows, Chained Watchdog and a Banana Republic," ACHR Review,January 28, 2004, [online] http://www.achrweb.org/Review/2004/0504PF.htm (retrieved February 9, 2005).As described in Chapter III, under Section 19, the NHRC cannot independently investigate abuses committed by the armed forces. The NHRC has repeatedly demanded amendments to certain provisions of the HRPA, particularly of Section 19, which "has resulted in instances of a lack of accountability and indeed, opacity in respect of complaints relating to the violation of human rights by members of the armed forces."National Human Rights Commission, Annual Report, 2001-2002.

[187]South Asia Human Rights Documentation Center, Human Rights Features, "Justice And Accountability in Kashmir-Chasing the Mirage," April 24, 2000, [online] http://www.hri.ca/partners/sahrdc/hrfeatures/HRF19.html (retrieved July 2, 2005).

[188]Siddharth Varadarajan and Manoj Joshi, "BSF record: Guilty Are Seldom Punished," The Times of India, April 21, 2002, [online] http://timesofindia.indiatimes.com/articleshow/7503214.cms (retrieved October 30, 2004). "10 years on, Bejbehara massacre victims await 'healing touch,'" Kashmir Times, October 20, 2003, [online] http://kashmir.ahrchk.net/mainfile.php/news/200210/294/ (retrieved March 17, 2005).

[189]Human Rights Watch, "Behind the Kashmir Conflict."

[190]Amnesty International, "India: Impunity Must End in Jammu and Kashmir," April 2001, AI Index: ASA 20/023/2001, [online] http://web.amnesty.org/library/index/ENGASA200232001 (retrieved March 17, 2005).

[191]The Territorial Army is part of the regular army and its role is to relieve regular army from static duties and assist civil administration. Territorial Army units have taken part in active combat including the Indo-Pakistan wars of 1965 and 1971, the Indo-China war in 1962 and the peacekeeping mission to Sri Lanka in the late 1980s. The Territorial Army has also been deployed in situations of internal conflict including operations in the northeast and in Punjab. For details, see [online] http://indianarmy.nic.in/arcar.htm (retrieved July 2, 2005).

[192]Amnesty International, "Impunity Must End in Jammu and Kashmir."

[193]Human Rights Watch interview with Arshid Andrabi, lawyer and brother of Jalil Andrabi, Srinagar, May 19, 2005.

[194]Amnesty International, "Submission to the Human Rights Committee Concerning the Application of the International Covenant on Civil and Political Rights," July 1997, [online] http://web.amnesty.org/library/Index/ENGASA200271997?open&of=ENG-IND (retrieved June 14, 2005).

[195]National Human Rights Commission, Complaints Before the Commission, Case of Jalil Andrabi, (Case No. 9/123/95-LD), Annual Report 2002-2003.

[196]National Human Rights Commission, Annual Report, 2001-2002, p. 29.

[197]Amnesty International, "Impunity Must End in Jammu and Kashmir."

[198]"Jaleel Andrabi Murder Case; SIT submits final report," Informative Missive, Vol. 46, March 2001, p. 4.

[199]Human Rights Watch interview with Arshid Andrabi, Srinagar, May 19, 2005.

[200]Human Rights Watch interview with Mian Abdul Qayoom, Srinagar, August 2, 2005.

[201]Human Rights Watch, "Behind the Kashmir Conflict."

[202]Celia W. Dugger, "Pall Cast by Sikh Slaying Settles Over Clinton Visit," The New York Times, March 22, 2000; Sonia Jabbar, "A Spring in Kashmir: First Hand Report from South Asia Citizen's Web," SACW, April 2000, [online] http://bridget.jatol.com/pipermail/sacw_insaf.net/2000/000613.html (retrieved May 26, 2005).

[203]Balraj Puri, "Aftermath of Chhitisinghpora Massacre of Sikh," [online] http://www.pucl.org/reports/JammuKashmir/chhitisinghpora.htm (retrieved April 20, 2005).

[204]"Two Main Accused in Chattisinghpora Arrested," Press Trust of India, August 31, 2000, [online] https://www.rediff.com/news/2000/aug/31jk.htm (retrieved April 6, 2006). The Ministry of External Affairs said that two Pakistani men were arrested in the case. One of them, Mohd. Suhail Malik of Sialkot, Pakistan, reportedly confessed to having been part of the group of militants that had put on army uniforms and carried liquor bottles to falsely give the impression that the Chattisinghpora massacre had been carried out by the Indian Army. The other militant, Zahid Hussain of Gujrnawalla, reportedly admitted that he was also part of the same militant group but did not take part in the killings. See [online] http://meaindia.nic.in/searchhome.htm (retrieved June 2, 2005).

[205]National Human Rights Commission, "Killing of 35 Members of Sikh Community in Anantnag District of Jammu & Kashmir by Militants", Case No. 206/9/1999-2000, Annual Report, 2000-2001, [online] http://www.nhrc.nic.in/ar00_01.htm (retrieved May 26, 2005).

[206]Praveen Swami, "The Massacre at Chattisinghpora," Frontline, Volume 17, Issue 07, April 1-14, 2000, [online] http://www.frontlineonnet.com/fl1707/17070340.htm (retrieved June 13, 2005). See also Farooq Khan's testimony as described in the Report of the Inquiry Commission led by Justice S.R. Pandian, October 27, 2000, p. 12.

[207]"Troops Kill 5 Rebels Linked to Massacre in Kashmir," Chicago Tribune reproducing New York Times News Service, March 26, 2000.

[208]"Army in Kashmir, Events in Jammu & Kashmir as on March 25, 2000," [online] http://www.armyinkashmir.org/updates/25032000.html (retrieved July 2, 2005).

[209]Praveen Swami, "In Search of the Truth," Frontline, Volume 19, Issue 07, March 30-April 12, 2002, [online] http://www.frontlineonnet.com/fl1907/19070320.htm (retrieved June 17, 2005).

[210]Report of the Inquiry Commission led by Justice S. R. Pandian, October 27, 2000.

[211]"Massacre Perpetrators Killed by Army were Ordinary People," The Times of India, March 31, 2000.

[212]Amnesty International said that: "Local observers, however, disbelieved the official account; they pointed out that if armed men hidden in a hut on a hilltop had indeed been involved in a gunfight as claimed by the authorities, they would have injured some of the security force personnel attacking them from the valley - but none was injured. Moreover, security forces could have exchanged fire until those trapped in the hut ran out of ammunition and then arrested them instead of using heavy weapons to blast the hut killing those inside." Amnesty International, "A Trail of Unlawful Killings in Jammu & Kashmir: Chattisinghpora and Aftermath," AI Index: ASA 20/024/2000, June 15, 2000, [online] http://web.amnesty.org/library/Index/engASA200242000 (retrieved June 14, 2005).

[213]"Massacre Perpetrators Killed by Army were Ordinary People," The Times of India, March 31, 2000.

[214]Informative Missive, July 2003, p. 20.

[215]Report of the Inquiry Commission led by Justice S.R. Pandian, October 27, 2000, p. 15.

[216]Siddharth Varadarajan, "State of Discontent," Newsline, June 2002, [online] http://www.newsline.com.pk/NewsJune2002/cover3june.htm (retrieved March 15, 2005); Praveen Swami, "Outrage in Anantnag," Frontline, Volume 17, Issue 08, April 15-28, 2000, [online] http://www.frontlineonnet.com/fl1708/17080340.htm (retrieved June 13, 2005); Praveen Swami, "In Search of the Truth," Frontline, Volume 19, Issue 07, March 30-April 12, 2002, [online] http://www.frontlineonnet.com/fl1907/19070320.htm (retrieved June14, 2005).

[217]Ibid.

[218]The Times of India reported on March 7, 2002, that forensic samples had been tampered with, creating a national furor, with the NHRC calling for immediate action. A Srinagar-based newspaper, Al Safa, had reported this earlier, but local Kashmir journals are not always considered credible and that report had been ignored. See Praveen Swami, "In Search of the Truth," Frontline, Volume 19, Issue 07, March 30-April 12, 2002, [online] http://www.frontlineonnet.com/fl1907/19070320.htm (retrieved June 13, 2005).

[219]"NHRC issues notice to the government of Jammu & Kashmir," National Human Rights Commission, [online] http://www.nhrc.nic.in/disparchive.asp?fno=149 (retrieved March 17, 2005).

[220]"Farooq Apologizes for DNA fudge," The Times of India, March 9, 2002, [online] http://timesofindia.indiatimes.com/articleshow/3202180.cms (retrieved June 14, 2005).

[221]Praveen Swami, "In Search of the Truth," Frontline, Volume 19, Issue 07, March 30-April 12, 2002, [online] http://www.frontlineonnet.com/fl1907/19070320.htm (retrieved June 14, 2005); Mukhtar Ahmad et al, "I Don't Need DNA Tests To Recognize My Son," The Rediff Special, March 12, 2002, [online] http://www.rediff.com/news/2002/mar/12spec.htm (retrieved August 20, 2005).

[222]Nazir Masoodi, "DNA nails Pathribal Lie but Farooq Touches Raw Nerve," The Indian Express, July 17, 2002, [online] http://www.indianexpress.com/full_story.php?content_id=6156 (retrieved June 14, 2005).

[223]Shujaat Bukhari, "Security Forces Killed Civilians," The Hindu, July 17, 2002, [online] http://www.thehindu.com/2002/07/17/stories/2002071705451100.htm (retrieved June 1, 2005).

[224]National Human Rights Commission, Case Details of File Number: 206/9/1999-2000, [online] http://nhrc.nic.in/display.asp (retrieved July 4, 2005).

[225] "DNA Case Lands Mufti Government In Trouble," The Times of India, August 16, 2003, [online] http://jammu-kashmir.com/archives/archives2003/kashmir20030816d.html (retrieved August 20, 2005); "Pathribal victims get healing touch," Informative Missive, July 2003, p. 19.

[226]Informative Missive, July 2003, p. 20.

[227]Mukhtar Ahmad, "DNA Test Tamper Stick For Cops," The Telegraph (Calcutta), July 24, 2003, [online] http://www.telegraphindia.com/1030724/asp/nation/story_2195233.asp (retrieved July 14, 2005).

[228]"Fudging of DNA Samples: Police Official Suspended," The Tribune (Chandigarh), July 24, 2003, [online] http://www.tribuneindia.com/2003/20030725/j&k.htm#8 (retrieved February 16, 2006).

[229]Ibid.

[230]"DNA Case Lands Mufti Government In Trouble," The Times of India, August 13, 2003, [online] http://jammu-kashmir.com/archives/archives2003/kashmir20030816d.html (retrieved August 20, 2005).

[231]"CAT Quashes Suspension of Former Anantnag SSP," The Hindustan Times, November 2, 2004, [online] http://www.hindustantimes.com/2004/Nov/03/5922_1087272,0015002000020002.htm (retrieved August 20, 2005).

[232]See section on Barakpora firing, below.

[233]Justice S.R. Pandian, "One Man Commission of Inquiry Report on the Firing Event at Brakpora/Bulbul, Nowgam, (Anantnag) on April 3, 2000," Srinagar, October 27, 2000, p. 2.

[234]Amnesty International, "Impunity Must End in Jammu and Kashmir."

[235]"Army Killed Anantnag Vilagers, Ex-SP Tells Panel," The Times of India, September 1, 2000, [online] http://www.jammu-kashmir.com/archives/archives2000/kashmir20000901b.thml (retrieved June 14, 2005).

[236]Justice S. R. Pandian, Report of the Inquiry Commission, October 27, 2000, p. 12.

[237]"Army Killed Anantnag Vilagers, Ex-SP Tells Panel," The Times of India, September 1, 2000, [online] http://www.jammu-kashmir.com/archives/archives2000/kashmir20000901b.thml (retrieved June 14, 2005).

[238]Justice S. R. Pandian, Report of the Inquiry Commission, October 27, 2000, p. 13.

[239]"Pathirabal Victims Get Healing Touch," Informative Missive, July 2003, p. 20.

[240]"Fudging of DNA Samples: Police Official Suspended," The Tribune (Chandigarh), July 24, 2003, [online] http://www.tribuneindia.com/2003/20030725/j&k.htm#8 (retrieved February 16, 2006).

[241]"SSP Suspended for Pathribal Killings Reinstated," Press Trust of India, September 15, 2005, [online] http://www.kashmirlive.com/full_story.php?content_id=54737&type=ei (retrieved May 27, 2006).

[242]"Army in Kashmir, Events in Jammu & Kashmir as on March 25, 2000," [online] http://www/armyinkashmir.org/updates/25032000.html (retrieved July 2, 2005).

[243]Central Bureau of Investigation, "CBI Files Charges Against Four Commissioned and One JCO of 7 RR In the Pathribal Encounter Case," May 11, 2006, [online] http://cbi.nic.in/PressReleases/PRelease2006/p11_1May06.htm (retrieved May 17, 2006).

[244]Ibid.

[245]Riyaz Wani, "CBI Charges 5 Army Officers With Murder in Pathribal Case," The Indian Express, May 11, 2006, [online] http://www.expressindia.com/fullstory.php?newsid=67537 (retrieved May 17, 2006).

[246]Ibid.

[247]Ritu Sarin, "Blame J-K Cops, Not Us For Pathribal: Brigadier to DGMO," The Indian Express, May 14, 2006, [online] http://www/indianexpress.com/story/4462.html (retrieved May 17, 2006).

[248] "Army Seeks to Quash Charges Against Men," South Asian Media Net, August 10, 2006 [online] http://www.southasianmedia.net/cnn.cfm?id=316392&category=Security&Country=INDIA (retrieved August 22, 2006).

[249] Ibid.

[250] For example Kamal Mitra Chenoy, in "Frameworks for Peace: A Symposium on Efforts to Broker Peace in Kashmir," said that: "About Chithisingpora, there is a widespread belief that the massacre of 35 Sikhs was carried out by the army itself. The group interviewed several survivors and residents in Chithisingpora, and though the witnesses were extremely wary, their statements clearly indicated that they suspected militants of being responsible. But the very fact that contrary perceptions are widespread, shows how much the security forces have alienated themselves from the very people they are supposed to protect." Kamal Mitra Chenoy, "Frameworks for Peace: A Symposium on Efforts to Broker Peace in Kashmir," December 2000, [online] http://www.india-seminar.com/2000/496/496%20report.htm (retrieved May 25, 2005).

[251]Amnesty International, "A Trail of Unlawful Killings in Jammu and Kashmir."

[252]"Fresh Probe Into Sikh Massacre," BBC News, November 1, 2000, [online] http://news.bbc.co.uk/1/hi/world/south_asia/1001479.stm (retrieved June 14, 2005).

[253]Celia W. Dugger, "7 Villagers in Kashmir Slain During Anti-Police Protest," The New York Times, April 4, 2000. The Pandian Commission said that there were different accounts of the number of people in the procession. While some estimated it at six hundred to eight hundred, others said that there were over two thousand.

[254]Justice S. R. Pandian, Report of the Inquiry Commission, October 27, 2000, p. 21.

[255]Amnesty International, "Impunity Must End in Jammu and Kashmir."

[256]"Police Suspended Over Kashmir Deaths," BBC News, April 4, 2000, [online] http://news.bbc.co.uk/1/hi/world/south_asia/701016.stm (retrieved April 27, 2004).

[257]Celia W. Dugger, "7 Villagers in Kashmir Slain During Anti-Police Protest," The New York Times, April 4, 2000. In affidavits filed before the Pandian Commission, security officials claimed that they had initially fired in the air to disperse the crowd. Some people then attempted to snatch weapons from the troops. Shots were also fired by some marchers.

[258]In affidavits filed before the Pandian Commission, eyewitnesses said that police and CRPF officials came out of their bunkers outside the camp, blocked off the marchers from three sides and opened fire on the demonstration.

[259]"Police Suspended Over Kashmir Deaths," BBC News, April 4, 2000, [online] http://news.bbc.co.uk/1/hi/world/south_asia/701016.stm (retrieved April 27, 2004).

[260]"Fresh Probe into Sikh massacre," BBC News, [online] http://news.bbc.uk/1/world/south_asia/1001479.stm (retrieved September 19, 2004).

[261]Justice S. R. Pandian, Report on the Inquiry Commission, October 27, 2000, p.108.

[262]Ibid. p. 103.

[263]Ibid. p. 104.

[264]Ibid. p. 104.

[265]The CRPF comes under the jurisdiction of the federal government in New Delhi. Complaints are investigated and prosecuted internally by the CRPF. The results are never made public. Criminal prosecution of CRPF personnel requires sanction from New Delhi.

[266]Amnesty International, "Impunity Must End in Jammu and Kashmir."