The year has begun on an ominous note in Kashmir with more killings of unarmed civilians. On January 28, at a time when Shopian district was under a shutdown, the Jammu and Kashmir police announced that an FIR for murder and attempt to murder had been lodged against Major Aditya of 10 Garhwal Regiment and his unit for the killings of two youths, Javed Ahmad Bhat and Suhail Lone, at Ganowpora a day before.
Whilst the army claims it fired in self-defence, the villagers allege that the army targeted those “resisting army’s efforts to remove banners” from the grave of a militant killed in an encounter. The state government has also ordered a magisterial probe.
These latest civilian killings come on the heels of a bloody 2017. Four days before this incident, in a reply to a written question, chief minister Mehbooba Mufti informed the House that in 2017, 20 civilians were killed in “law and order” problems and 48 others died in “militancy relegated” incidents. What is significant is the way the state government has chosen to make this distinction between killings near encounter sites or in cross-firing, and those of “law and order” related to protests and crowds.
Such a distinction comes in the wake of what has now become commonplace. Swathes of the local population, especially the youth, begin protests in the villages as soon as troop convoys begin moving in towards the site of an encounter. There have been cases of stone-pelting to try and help the holed-up militants escape.
In February 2017, General Bipin Rawat, chief of the Indian army, warned of tough action and “zero tolerance” towards those he claimed were creating hurdles in the army’s operations, as did top police officials. The army’s statements made it clear that such people, though not armed combatants, could be viewed as legitimate targets.
However, many Kashmiris vociferously state that contrary to official statements and initial media reports, the deaths in the vicinity of the encounter site are not necessarily a result of cross-firing or “collateral damage” but are “targeted killings” that occur a considerable distance away from the cordoned site.
What are the applicable laws? What is legitimate force? How does one fight for justice when, overwhelmingly, the police depends on the state-driven version?
Although Human Rights Watch specifies that “targeted killings” is not a technical legal term, it notes that the words can be used to refer to “a deliberately lethal attack by government forces against a specific individual not in custody under the colour of law”.
It adds that according to humanitarian laws, for a specific attack on a military objective to be lawful, it “must discriminate between combatants and civilians, and the expected loss of civilian life or property cannot be disproportionate to the anticipated military gain of the attack”.
Under the international humanitarian law, such civilian killings are problematic because those targeted are geographically far removed from hostilities and/or not necessarily directly participating in hostilities at the times they are targeted.
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Several villagers and media persons have argued that the site of an encounter is cordoned off in concentric circles and the outermost circle is manned by police and the CRPF who keep protesters away. Thus, the claim that the people killed were “interfering” or participating in hostilities is being viewed with scepticism.
Habeel Iqbal, a lawyer practising in Shopian, points out how even in dispersing crowds during protests or near encounter sites, excessive force is deployed. The intention, he says, is not to dispel but to shoot to kill.
Another crippling challenge to justice is the continuous internet shutdowns, lack of mobility and inaccessibility to these sites which are responsible for sketchy accounts of what actually transpired and the resultant media coverage.
In November 2017, along with a field researcher, I visited Kakpora in Pulwama district (described as a “hotbed of militancy”). We met with families of three victims, who categorically stated that the security forces had deliberately targeted them with intent to kill. Their narratives were distinctly different from state-driven ones or as those reported by the media.
We first met with the family of 18-year-old Owais Shafi Dar who died due to pellet injuries on August 13, during an extremely volatile period. All one could glean from the newspapers was that Owais suffered pellet injuries, sustained, according to security forces, when “dealing with a mob.” Mohammed Shafi Dar, the father, disputed this version and said there was no mob on that particular day.
He said that on August 13, the day of his son’s killing, there were no protesting crowds. “An encounter had taken place at Awneera in Shopian district, some 13 kilometres away in the preceding night during which two soldiers were killed. In the evening, at least seven CRPF vehicles went through the town, returning from the site. There must have been some jeering and booing along the way and possibly the mood was belligerent because of the killings of the soldiers. When a particular CRPF vehicle neared Kakpora bridge, close to the market, they came upon my son returning from the Jamia Masjid. He was alone and they targeted him with their pellet guns at very close quarters. An entire cartridge was lodged in the right side of his chest.”
Several shopkeepers, including Fayaz Ahmad Dar, were witness to this and ran to the aid of the youth. First taken to the Primary Health Centre, he was later rushed to the SMHS hospital in Srinagar on medical advice. But as the family was arranging for blood, Owais died in the operating theatre.
The body was brought back and an uncle, Noor Mohammed Shafi, approached the police to file an FIR against the CRPF. He was verbally assured of the same, however, the next morning, even as the funeral was taking place in the local graveyard, the police arrived in three vehicles. One vehicle entered the graveyard and police opened tear gas on the mourners, according to Mohammed Shafi and other relatives. The rites had to be rushed even as protests began and two more youths were injured in the tear gassing and use of pellet guns.
As a youth remarked later, it seems as if they do not even have the right to mourn.
Some five days later, the police came to Shafi’s home and took his statement, assuring him that the FIR would be lodged. The police also noted the statement of the shopkeepers who witnessed the incident. However, it took the intervention of the deputy commissioner for the FIR to be finally lodged, a copy of which had still not been given to the bereaved family.
Mohammed Shafi charges the police with delay tactics. He says they know the CRPF is involved, and if there weren’t any eyewitnesses, the police may well have tried to hide or even doctor the facts.
Grieving over the death of his son, who used to help him in handling the business, Shafi is clear that what occurred that day was “murder.”
Just a few kilometres away from Shafi’s home is the residence of 26-year-old Firdous Ahmad Khan, a vegetable seller who was shot dead in Hakripora on August 1 – the same day Lashkar-e-Taiba commander Abu Dujana was gunned down.
Local media reports and accounts of Firdous’s killing are ambiguous. In the national media, which had devoted its front pages to the killing of Dujana, the ‘escape artiste’, there is just a line or two on the civilian killing.
Outlook carried a small paragraph saying that “the police are concerned about the killings of civilians near encounter sites” but proffered nothing more than the police version that Firdous was killed in the firing against stone pelters.
When we visited three months later, the kitchen was crowded with women. Firdous’s pregnant wife, a two-year-old daughter in her lap, and mother Khatija gave us an account of what they believe had transpired.
“Firdous had left that morning on foot to collect vegetables which he would then transport to Jammu. The encounter with Dujana had got over in the early hours of the mornings and protests had begun. Firdous was later found lying on the ground in Hakripora, a considerable distance away from the site, with blood gushing out from a wound in the abdomen. Villagers rushed him to the district hospital in Pulwama where he was declared dead on arrival. Since Firdous was not from the village it was only his identity card that made it possible for our family to be traced and informed about his death.”
This killing led to widespread anger with hundreds attending Firdous’s funeral.
The women of the house said that after the funeral, late at night, the house was attacked and window panes smashed by armed personnel, who ordered them to pull down the black banners draped around the house as a visible sign of protest.
There have been no witnesses to the killing of Firdous and a number of agencies – the Special Operations Group, the army and CRPF were all present at the site. However, the family is clear he was targeted by one of them. “They had every intention of killing him even though he was not a stone pelter. He was out trying to earn a livelihood,” they said.
The family would like to file an FIR but don’t even have a death certificate since the hospital did not issue one, saying there was no admission card. The people who had rushed him there had not sought one in their urgency. The tyranny of bureaucracy also aids impunity.
It was at the tip-off given by the villagers that we then visited Begumbagh to speak with the family of 14-year-old Amir Nazir Wani, killed on March 9 at Golipora, at least two kilometres from Padgampora, where an encounter was underway.
Bilal Ahmed, the elder brother, narrated the sequence of events since his mother is still unable to talk about it.
“We thought Amir had left for school as usual and I was in college. At around 11 am we learnt that my young brother was among the crowd who was protesting and that the Special Task Force and police brought in from Awantipora had opened fire on them. A number of boys were injured. Amir was shot through the neck and he fell to the ground. Other protesters took him to the PHC where he was declared dead on arrival.”
Five months later, the father Nazir Ahmed and Bilal, were summoned to give their statements before the Awantipora police station. They learnt that an FIR had been filed under section 307 of the Ranbir Penal Code. The FIR was the young boy but, curiously in October, Nazir was summoned to the station yet again. This time he was told that a case was being prepared to forward the case for ex gratia to the DC.
“It is mind-boggling that my dead brother is an accused and at the same time the police say it is recommending ex gratia,” said Bilal, who wondered why it was necessary to use such lethal force against an unarmed young boy. “Was it necessary to shoot him in the neck at close range? The whole village was aghast when his body was brought home with a bullet in the neck that had exited through the chest.”
A Srinagar lawyer, commenting on this civilian killing, said that the practice of turning the victim into the accused, is common in Kashmir, especially during periods of turmoil and protests, as is the police assumption that the force unleashed on the victim was legitimate.
What is problematic, he explained, was the way police relied solely on the version given by the army or other security forces when filing the FIR and its refusal to record, leave alone investigate, information brought in by other people.
Under the criminal justice system, the crux is that there must be a genuine investigation but, when victims’ families come in with their statements and often rival versions, it seldom makes its way in the FIR, thereby effectively scuttling attempts at justice.
In fact, added the lawyer, a Supreme Court decision (Babubhai Versus State of Gujarat) has shown it is permissible to have recordings of two FIRs especially when there are two separate versions or incidents.
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In such a case “the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is affirmative, the second FIR is liable to be quashed.”
“However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted.”
But this lacuna on the part of the police makes accountability and the struggle for justice daunting. It is perhaps for this reason that the family of 14-year-old Amir says it has no plans to fight for justice. “People of Kashmir know the existing system makes justice an impossibility.”
Habeel Iqbal, Shopian lawyer, also dismisses any expectations of justice with the FIR filed against the army and announcement of the magisterial probe in the latest incident. “Shopian is a striking example of tired déjà vu. There was a probe ordered for the killings and rapes of Neelofar and Asiya. One probe said something and the CBI probe nullified that.”
He also gives the example of the report submitted by retired high court judge M. L. Koul on the killings of three youths by CRPF just before the concert by Zubin Mehta in September 2013. Upon learning that the report indicated the CRPF, the father of Tauseef Ahmad Bhatt, one of the victims, approached the chief minister and home department for a copy but was not given one. Nothing has happened since then.
“If the report of a high court judge does not lead to justice, why would one by a magistrate make any difference?”
Freny Manecksha is an independent journalist from Mumbai who is interested in human rights and development issues.