Ghosts in the Valley

SRINAGAR, India — Mohammed Yusuf, a Kashmiri farmer, doesn’t want an apology from the Indian army for accidentally killing his 14-year-old son, Burhan. Nor does he want the money it has offered as compensation.

“Am I supposed to sell my son for 10 lakh rupees [about $16,240]? Is that his going rate?” asks Yusuf, 42, sitting on the floor in his home, nestled in an area called Nowgam in the Kashmir Valley, on the outskirts of the city of Srinagar. “I would rather pay the Indian army to make the soldiers stand trial in a court and let them be punished for their crime,” he said.

But Yusuf probably won’t be able to secure a trial for his son, who was killed on Nov. 3. For decades, the pursuit of justice for crimes allegedly committed by the military has been a futile pursuit for many Kashmiris. In part, this is because of a 56-year-old law that allows security personnel in “disturbed areas” — a broadly defined term that generally refers to any place facing unrest — to “fire upon or otherwise use force, even to the causing of death” to maintain public order. The law, the Armed Forces Special Powers Act (AFSPA), gives state or federal officials the authority to deem an area disturbed. After making such a declaration, they can then order the use of armed force to protect civilians against militants. AFSPA also protects military personnel from prosecution or legal proceedings without the permission of the central government.

Enacted in 1958 in response to the secessionist rebellions in the northeastern state of Assam, AFSPA was not enforced in Kashmir until 1990 — three years after New Delhi rigged state elections there, sparking a separatist uprising.

Claimed by both India and Pakistan, Kashmir is one of the most heavily militarized places in the world, a region reportedly patrolled by hundreds of thousands of Indian soldiers (there is no official count). For the past 24 years, India has battled an insurgency in the region carried out by separatist militants who New Delhi believes receive training and support from Islamabad. Pakistan, meanwhile, believes that if India held a referendum for the 12.5 million mostly Muslim residents of the state of Jammu and Kashmir (of which Kashmir is a part), they would choose to join Pakistan, a Muslim-majority state.

Retired Lt. Gen. Baljit Singh Jaswal, who led the Indian army in the region from October 2009 to December 2010, said in a Nov. 12 interview that AFSPA remains a necessary tool for India to fight the proxy war he says Pakistan unleashed in the region. “The intention of Pakistan to continue that proxy war has not changed,” he argued. “So why should the law be changed?” But the law has arguably made soldiers there more prone to violence, a worrying prospect in a restive region perpetually on the brink of bloodshed.

Today, Kashmir remains a low-intensity conflict zone, replete with soldiers, checkpoints, protests and stone pelting, and militant attacks against a stunning backdrop of lakes, fiery red leaves, and snow-capped mountains.

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On Nov. 3, Yusuf’s son, Burhan, and four of his friends piled into a white Maruti 800. They were driving to Chattergam, a town roughly two miles from their homes in Nowgam, to watch a procession of Shiite Muslims mourning the martyrdom of Hussain, the Prophet Mohammed’s grandson. As they approached a checkpoint, 11 Indian soldiers in Chattergam reportedly fired 118 rounds at their car; 28 hit the vehicle. Four boys were rushed to the hospital, where two of them, including Burhan, died; one managed to escape the scene.

Defense Ministry spokesperson N.N. Joshi said in a Nov. 12 interview that any legal action or prosecution — a court-martial or a civil trial, which the parents are demanding — would occur after the army’s investigation. On Nov. 27, the army announced that it had indicted nine soldiers allegedly involved in the attack, and would proceed to a court-martial “with unusual swiftness,” as the New York Times reported.

But in an interview on Dec. 3, another Defense Ministry spokesperson, Col. S. D. Goswami, claimed that these reports are “incorrect.” While the army’s initial investigations are complete, its legal advisors are still verifying their findings before reaching a final decision on the indictments. “They can find discrepancies in the initial findings and [may] want to speak with more witnesses,” Goswami said, adding that even the number of soldiers indicted could change.

According to Shailesh Rai, program director at Amnesty International India, no soldier has ever been prosecuted for human rights violations or on criminal murder charges in a civilian court in Kashmir. Information concerning the prosecution of security personnel in military courts is not freely available in the public domain, and the courts are generally closed to public scrutiny, Rai said. Victims, he added, are not informed about the status or outcome of military trials. These courts deal mostly with disciplinary matters, and their members belong to the armed forces. But in “disturbed areas” like Jammu and Kashmir, they also handle civil offenses like murder and rape for cases involving the military, which are normally heard in civil courts.

Vahida Nainar, a Mumbai-based international law expert and co-author of a 2013 book that examines impunity in mass crimes in India, is also a critic of the Indian military justice system. The Geneva Conventions, to which India is a party, deal largely with prosecuting war crimes committed during international conflicts. But Article 3 of the conventions concerns “conflict[s] not of an international character,” or internal conflicts. Applying Article 3 to Kashmir, Nainar argues, would allow for the killings of civilians in Kashmir to be treated as war crimes rather than murders.

But when India became party to the Geneva Conventions in 1950, it omitted any reference to Article 3, protecting its soldiers from prosecution for war crimes. “With the unrestrained powers of search, detention, and arrests under AFSPA, the circle of impunity that protects Indian armed forces from accountability is complete,” Nainar said.

In 2000, five army officers allegedly killed five civilians they claimed were militants in the Kashmiri village of Pathribal. In 2006, the Central Bureau of Investigation (CBI), India’s federal investigative agency (akin to the FBI in the United States), charged five army personnel with murder after conducting an investigation. But the Supreme Court prevented the CBI from pursuing its case after giving the army the option of a military court-martial in 2012. In January of this year, the army found no evidence against the five officers, effectively closing the case and setting them free.

Amnesty’s Rai notes a 2010 case in which troops with the Border Security Force (BSF), which patrols the borders of India, mistakenly shot and killed 16-year-old Zahid Farooq Sheikh as he walked home after playing cricket with friends in Kashmir. Rai said that the BSF accepted responsibility for Zahid’s death as wrongful and unnecessary. But when the boy’s parents appealed to the Supreme Court to have their case heard in a civilian court, they lost (they were offered compensation, but refused).

Still, those in the military who support AFSPA say it serves a vital purpose. During an operation, Indian soldiers must quickly decide whether someone is a militant, explained Gen. Jaswal. Soldiers must be able to both engage militants first as well as during a firefight without fear of false complaints from a populace that resents their presence. “These immunity laws are to cover soldiers, who are acting in good faith. Otherwise you’ll find half the Indian army in the court,” he said. (There is no known credible record of false complaints.)

There is some hope for the aggrieved. On Nov. 13, a military court handed down a rare verdict of life in prison to two army officers and three soldiers for killing three Kashmiri youths from the village of Nadihal in 2010. The soldiers claimed the boys were militants. The verdict was a “watershed moment,” according to Jammu and Kashmir chief minister Omar Abdullah. “No one in Kashmir ever believed that justice would be done in such cases. Faith in institutions disappeared,” he tweeted.

Back in Nowgam, the sisters of Mehraj Dar, a 17-year-old boy who was killed along with Burhan, pour a steaming cup of tea and biscuits as they tell about how their brother was a poor student but a good cricketer. They voice hope about getting justice since the army had already admitted its mistake. “If they have accepted that a wrong was done to us,” said Ariba, the younger sister, “then why should we not get a fair trial?”

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