Political Violence in Kashmir as a Response to Terrorism

Armed Forces (Special Powers) Act continues to remain in force in a few states of India. Recently (as in November 2018) the Act was withdrawn from Meghalaya and among the eight Northeast states AFSPA is now applicable only in Nagaland, Manipur (excluding Imphal), Assam and parts of Arunachal Pradesh. (The Indian Express, 24 April 2018) The operation of AFSPA in Arunachal Pradesh is restricted to a few bordering districts. According to S. K. Ghosh, insurgency in Northeast India arose in the background of infiltration of foreigners leading to demographic transition and transfer of landholdings and jobs from the local tribal youth population in the region giving opportunity to foreign powers to support the insurgents in terms of training, arms and funds. (Ghosh 1995: 243-45) The Indian government blames militant groups supported by Pakistan for the continuance of insurgency in Northeast India. In order to tackle the menace government introduced laws such as Armed Forces (Special Powers) Act (AFSPA) in the states of Northeast but the law operating has been ―the law of jungle‖ as Kuldip Nayar points out. (Nayar 1988: 04) A Naga human rights activist remarked, ―the only freedom we know is the freedom to obey and submit to the military authorities…but none of us love this freedom. We hate it bitterly because this freedom means the freedom to be insulted, tortured, raped and executed in public and in isolated places‖. (Desai 1986: 149) A Supreme Court-appointed Judicial Commission in 2013 noted that the AFSPA Act not only failed to tackle insurgency in Northeast India but also led the by former judge Santosh Hegde with former Chief Election Commission J.M. Lyngdoh and retired IPS officer A.K. Singh as its members, was formed by the Supreme Court to investigate alleged cases of extra judicial killings in Manipur after the Extrajudicial Execution Victim Families‘ Association (EEVFAM) along with Human Rights Alert (HRA) submitted a list of 1,528 cases of killings in Manipur since 1979 before the apex court to demand investigation into the deaths. The report cited, ―Though the Act gives sweeping powers to security forces even to extent of killing a suspect with protection against prosecution, it does not provide any protection to the citizens against its possible misuse…Normally, the greater the power, the greater the restraint and stricter the mechanism to prevent its misuse or abuse. But in case of the AFSPA in Manipur this principle appears to have been reversed‖. (ibid.) In Jammu and Kashmir, the AFSPA was applied in 1990 and continues till date (as in November 2018). Amnesty International in a report alleged human rights violation by the armed forces and called for an end to the use of AFSPA in Jammu and Kashmir. (The Hindu, 1 July 2015) The report based on 58 case studies brings out the human rights violations committed in the cloak of AFSPA which gives unaccountable powers to security force personnel. According to Jammu and Kashmir state government reports, between 1990 to 2011, out of over 43,000 people killed – 21,323 were militants, 13,226 civilians killed by armed groups, 3,642 civilians killed by security forces and 5,369 security force personnel killed by armed groups. (Amnesty International 2015: 08) Amnesty International research recorded more than 800 cases of torture and deaths in the custody of security forces in the 1990s, and hundreds of other cases of extrajudicial executions and enforced disappearances between 1989 and 2013. (ibid.) The reason for such human rights violations is absence of accountability and impunity for security force personnel under provisions like Section 7 of Armed Forces Special Act (AFSPA), 1990 which shields the members of the security forces are from prosecution for alleged human rights violations such as rape, torture and fake encounters. While the government has dismissed such reports as ―grossly exaggerated or false‖ and fabricated with the sole aim of ―discrediting the security forces and internationalising the issue‖. (Amnesty International 1995) The objective of the government is to protect the citizens against the militants and the terror-related activities but the use of excessive power and authoritarianism to control such a precarious security situation often leads to exploitation of human rights of the civilians and the state ends up committing state terrorism. In 2013, more than 96 percent of all complaints brought against the army in Jammu & Kashmir have been dismissed as measures adopted by government of India with the objective to counter militancy sponsored and supported by Pakistan to ensure security has further aggravated the internal security situation of the country and exploited the human rights of its citizens. According to Paula Newberg, ―Pakistan's support for Kashmiri insurgents, founded on its geo-strategic self-interest more than its concern for Kashmiris has provided India additional justification for counter-insurgency.‖ (Newberg 1995: 183) She is of the opinion that the Kashmiris have ―protested the terror unleashed on their lives by insurgents and security forces alike‖ and because of the violations of human rights by the Indian security forces, they have drawn to ―independence or a much stronger kind of autonomy‖. (ibid.) The access to effective legal remedies for victims of human rights violations and their relatives in the disturbed areas with AFSPA has been very limited. A research by Amnesty International in Jammu and Kashmir reveals that the criminal justice system have now become more accessible to the people in comparison to the 1990s with introduction of measures such as an increase in the number of police stations, the establishment of the Jammu & Kashmir State Human Rights Commission in 1997 and increased stability in the region. The measures have made it easier to report human rights violations in recent times, but justice has been meted out in a very few cases with government‘s efforts to protect the member of security forces from prosecution as well as by the military justice system. (Amnesty International 2015: 10) The report blames legislations such as ASFPA under which the security forces operating in Jammu and Kashmir ―have exacerbated this situation by routinely failing to cooperate with criminal investigations, civilian courts and government-ordered enquiries, and subjecting those pursuing complaints to threats, intimidation and harassment‖. (ibid.: 11) In most of the cases reported, the authorities have not made public any prosecutions or punishments of security personnel.

The killing of Burhan Wani, a young Kashmiri militant leader of Hizbul Mujahideen (HM) by Indian security forces in July 2016 triggered rife protests in Kashmir valley. Kashmir has in the past experienced protests in the late 1980s, 2008 and 2010 but the protests post-2016 saw participation of more young and middle-class Kashmiris including participation of large number of females. Total number of killing in 2016 alone stood at 383 (including civilians and

33 Kashmiri youth pelt or throw stones on the Indian Armed Forces and Jammu and Kashmir Police during protests. The stone pelting incidents became prominent in Kashmir from the 2008 Kashmir protests. After the year 2008, stone pelting incidents in the valley were reported on regular basis, the prominent among them were recorded in 2010 Kashmir Unrest and 2016-17 Kashmir Unrest. Source: https://en.wikipedia.org/wiki/Stone_pelting_in_Kashmir.

of these 383 killed, 145 were civilians killed by security forces while only 16 to 20 civilians by armed groups. (ibid.) Of the 145 civilians killed by security forces, 71 civilians died due to bullet injuries and 8 civilians were killed after being hit with tear smoke shells. Of the injured, 243 were under the age-group of 1-12 and 1,005 under the age-group of 12-15 while the majority (7762) belonged to the age group of 16-25. (ibid.) The protesters resorted to stone-pelting (kanni jung) on the security forces which was strongly responded by armed security forces who used bullets, pellets and teargas shells leading to unlawful killings, casualties and a wide range of alleged related human rights violations. (United Nations OHCHR 2018) The government of India alleges Pakistan army of supporting and financing the stone pelting activity in Kashmir in order to create disturbance. The Pakistan army‘s publicity office, Inter-Services Public Relations (ISPR) produced an anthem for celebrating and encouraging the stone pelters (The Washington Post, 6 February 2017) which was also tweeted by the Major General Asif Ghafoor. (The Times of India, 8 February 2017) The security forces used pellet-firing shotgun34 against the stone-pelting protesters which led to serious injuries, partial or permanent loss of eyesight and in some cases even death. The pellets were introduced in Jammu and Kashmir in 2010. According to a report by a civil society in Jammu and Kashmir, 15,000 people got injured as a result of the protests in 2016 out of which 1178 persons received pellets in their eyes that rendered 52 persons blinded and 300 persons partially lost vision including 150 minors while 4664 persons received bullet injuries in different parts of the bodies. (Jammu Kashmir Coalition of Civil Society 2017) Dr. S. Natrajan, a Padma awardee who has served in several conflict zones across the world said he had never seen a situation where ―so many people are liable to lose their eyesight‖. (NDTV, 30 July 2016) The Supreme Court of the India also criticised the government authorities of ―indiscriminately‖ using pellet guns. (The Indian Express, 14 December 2016) Around 9,000 arrests were made in the year 2016 and 2,602 FIRs (First-

34 The shotgun cartridges contain 500 to 600 pellets that resemble ball bearings. The ammunition is made of lead alloy that is fired at a high velocity thereby dispersing the metal pellets over a large area. Experts claim that there is no way of adequately controlling the trajectory of these shotguns beyond a limited range, which makes them inherently inaccurate and indiscriminate. The pellet-firing shotgun was first used in Kashmir during mass protests in 2010. It is not known to have been used against protesters anywhere else in India. Source: United Nations Office of the High Commissioner for Human Rights (OHCHR) (2018), ―Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan‖, 14 June 2018, [Online: web] Accessed 30 October 2018, URL: https://www.ohchr.org/Documents/Countries/IN/DevelopmentsInKashmirJune2016ToApril2018.pdf.

Act (PSA), 197835, out of which PSA warrants were executed against 524 persons. (ibid.) The Jammu and Kashmir Public Safety Act, 1978 has been criticised by international human rights watchdogs for arbitrarily detaining people, including children which ―violates a range of human rights‖. (Human Rights Watch, International Commission of Jurists and Amnesty International 2016) Most of the civilians, particularly the youth were subjected to torture in the jails. (ibid.) During the same period the Kashmir region experienced frequent communication blockades. The Jammu and Kashmir government choked freedom of expression by imposing a press emergency. The police raided press and placed restrictions on media and journalists. The government ordered printing presses to stop printing and publication of Kashmir Reader, one of the largest circulating English newspapers of the Valley was stopped for a few days. (India Today, 2 October 2016) The government also suspended mobile (except BSNL post-paid) and internet services (except the state owned broad band service) in the Kashmir region. (Hindustan Times, 20 August 2016) Approximately after 100 days of communication blockade the pre-paid mobile services were restored by the government. During the widespread protests, government imposed long periods of curfew between 2016 and 2017 which impacted students and their right to education on a large scale. According to a report by OHCHR, an estimated 130 school days were lost in 2016 for approximately 1.4 million children (United Nations OHCHR 2018) while the schools were close for over four months after the protests began in 2016.

The Government of India ratified the International Covenant on Civil and Political Rights (ICCPR) which prohibits torture and other forms of cruel, inhuman and degrading treatment. India has also ratified the four Geneva Conventions of 1949 and Common Article 3 of the Geneva Conventions, which applies to internal conflicts, prohibits rape along with murder, torture and ill-treatment of non-combatants by both government and militant forces. Despite, there are numerous reports that throw light on the incidents of rape and gang-rape by military and paramilitary troops especially in the ―disturbed areas‖ of northeast states (Asia Watch 1993) and Jammu and Kashmir. (Asia Watch and Physicians for Human Rights 1990)

35 Jammu and Kashmir Public Safety Act, 1978 (PSA) is an administrative detention law that allows detention without charge or trial for up to two years in some cases. Following an amendment in 2012, the PSA expressly prohibits the detention of anyone under 18. Source: Human Rights Watch, International Commission of Jurists and Amnesty International (2016), ―India: Cease Wrongful Detention in Jammu and Kashmir‖, 15 October 2016 [Online: web] Accessed 31 October 2018, URL: https://www.hrw.org/news/2016/10/15/india-cease-wrongful-detentions-jammu-and-kashmir

internal and international conflicts by insurgents as well as by security forces as a tactics is well known in all parts of the world. Rape has been widely reported during counterinsurgency and counterterrorism operations in India. The reports show rise in the incidents of rape and gang rape in Kashmir during the early 1990s when insurgency and militancy were at the zenith and the armed forces received protection by law under the Armed Forces (Special Powers) Act, 1990. (Asia Watch and Physicians for Human Rights 1990; Amnesty International 1992; Asia Watch 1993; Asia Watch and Physicians for Human Rights 1993; Amnesty International 1995; Amnesty International 2015; United Nations Human Rights Office of the High Commissioner 2018) The Act confers unlimited and unaccountable powers to the military personnel which allows them to ―crackdown‖ without warning and search the houses to fret out the militants. (The New York Times, 7 April 1991) Such ‗cordon and search operations‘ by the military gives the opportunity to empty the premises and segregate the men from the women. While citing one such operation by the Indian military forces in Kupwara district of Kashmir, S. M. Yasin, the district magistrate of Kupwara wrote in a report, ―A large number of armed personnel entered into the houses of villagers and at gunpoint they gang-raped 23 ladies, without any consideration of their age, married, unmarried, pregnancy etc‖. (ibid.) Sometimes tactics such as rape of the women folks is used by the security forces to humiliate and break the morale of the supporters of the militants. (Asia Watch and Physicians for Human Rights Report 1990) Such incidences in the conflict areas not only invites apathy of the citizens towards the state but also invites communal colour added by the political or militant outfits to forward their political objectives. Mushtaq ul-Islam, the local guerrilla commander of the Hizbi Islami organization36 in the Kupwara district gave call to Hindu soldiers to convert to Islam. (ibid.) Justice Verma Committee, in its report setting forth measures to curb sexual violence, had also highlighted the misuse of the AFSPA by Army personnel to exploit modesty of women in ―disturbed areas‖. The Verma report highlighted that ―impunity for systematic or isolated sexual violence in the process of Internal Security duties is being legitimised by the AFSPA‖. (The Hindu, 17 July 2013) According to the report, ―It must be recognised that women in conflict areas are entitled to all the security and dignity that is afforded to citizens in any other part of our country‖ and recommended ―sexual violence against women by

36 Hizbi Islami organization was an Islamic fundamentalist group in Kashmir during the 1990s, wanting to join Pakistan. Source: Crossette, Barbara (1991), ―India Moves Against Kashmir Rebels‖, The New York Times, 7 April 1991.

Pakistan‘s hostility with India arises out of its flawed national identity construct based on two-nation theory and search for parity with India. This has coupled with the desire to avenge the 1971 humiliation over separation of Bangladesh and Kargil War of 1999. Pakistan, after the defeat in conventional wars adopted the strategy to wage proxy-war against India since the 1980s which with the growth of Islamic extremism and terrorism in Pakistan has proved to be a potent threat to the internal security of India. The Taliban success in Afghanistan led to rise in number of jihadi groups which proliferated from Afghanistan and Pakistan to the bordering states which pose a serious threat to the national cohesiveness of India. These groups of religious fanatics indulging in subversive activities have expansionist designs.

Pakistan has been pursuing multi-pronged strategy to destabilize India. Militancy and terror-related activities is a direct consequence of efforts of Pakistan‘s ISI which has caused enormous human and economic losses to India besides endangering its internal security. Supporting insurgency and sponsoring terrorism has been part of state policy of Pakistan to internally dissect India. Pakistan‘s footprint has been found in the Khalistan movement in Punjab in the 1980s which was supported by the ISI. Many pro-Khalistan militants continue to enjoy shelter in Pakistan and there are reports about plans of ISI to revive militancy in Punjab. There are intelligence reports which suggests Pakistan‘s involvement in the northeast India insurgency. The numerous training camps in Pakistan occupied Kashmir (PoK) and Afghanistan provide for training to the militants with the help of ISI to export terrorism to Kashmir and other parts of India. The Pakistan released special postage stamp portraying ―martyred Kashmiri youth leader‖ Burhan Wani in July 2018 as ―freedom fighter‖. (Pakistan Today, 20 September 2018) On India raising its concern with the issue of stamp by Pakistan post, the Pakistan Foreign Minister Shah Mehmood Qureshi said, ―hundreds of thousands of people are fighting in Kashmir, not all of them are terrorists.‖ (The Indian Express, 24 September 2018) This celebration of a terrorist and comment made by foreign minister of Pakistan explicitly reflects the stand of the state on the terrorists, distinguishing between ‗bad terrorists‘ and ‗good terrorists‘ and confirms India‘s accusations about the role of Pakistan in instigating and fuelling the insurgency in Kashmir. The United States has exercised influence over Pakistan but failed to restrain Pakistan from supporting terrorism. The US policy towards Pakistan has oscillated between cajoling and punishing by using the pay-offs. Recently (in September 2018), the US announced cancellation of $300 million in military aid to 2018) The military presence of the United States in Afghanistan makes it dependent on communication and supply routes through Pakistan. But it is unable to change Pakistan‘s policy towards supporting terror outfits because it doesn‘t suit the interests of the security establishments in Pakistan. Thus, Pakistan‘s involvement in the religious extremism, trans-national and cross-border terrorism poses threat to internal security of India with politico-security implications for India with the most pertinent and explicitly visible implication being the deteriorating Kashmir situation in the past decade.

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Research Fellow, Jawaharlal Nehru University, New Delhi