By Haifa Ahmad
Enforced disappearance is involuntary disappearance in which the state or its agents pick up a person against his will and thereafter deny any involvement in the said act and conceal information or give away wrong information, thereby denying the whereabouts or the fate of the said person.Enforced disappearance is usually considered a crime against humanity under international laws and conventions. Documentation of enforced disappearances reveals that in the past four decades such cases have been reported from over 80 countries. Data also shows that the majority, 70 to 94%, of those whose disappearance has been caused are men.
Over the past 28 years when an armed uprising broke out against Indian rule in Kashmir, enforced disappearances have been rampant here. As recent as November 2015, three people from the Kupwara district of North Kashmir were subjected to enforced disappearance. Like previous cases, whereabout of these three persons are not known till date with the State denying any knowledge about them.
Enforced disappearance has been stated as a continuing offence in the general comments of the Working Group on Enforced Disappearances, as it continues till the whereabouts of the person are not known or determined. Enforced disappearances violate multiple rights and not just the rights of the person whose disappearance has been caused. Rights of the families and relatives of such persons also stand violated by this act of enforced disappearance.
Enforced disappearance has not been criminalised in India so the special nature and circumstances in which such crimes are committed remain ambiguous, violating legality. Highlighting the issue of enforced disappearances is critical for creating awareness as a part of a campaign against enforced disappearances and also the larger issue of self-determination as far as the case of Kashmir goes.
Enforced Disappearance in Kashmir and Right of Self-Determination:
Enforced disappearances have taken place in Kashmir in a particular context. Ever since the armed uprising in 1989, the State has sought to continuously recalibrate its control over Kashmir with a brutal counter-insurgency mechanism. This has resulted in serious human rights violations, as grave as crimes against humanity and war crimes. In countering the popular rebellion, the Indian state has violated its own laws and constitutional guarantees on upholding freedom, life and dignity of an individual. The State has also been in gross violation of international human rights standards and conventions to which it is signatory. This has obviously led to Kashmiris losing faith in the Indian system and at the same time galvanized their desire to change the status quo by exercising their inalienable right of self-determination.
In this context of unmitigated violence perpetrated by the State and the resultant unending cycle of human rights infringements, the armed rebellion and unarmed public uprising in Kashmir against Indian rule have become increasingly intense in a prototypical spiral effect.
Use of State violence under the guise of “counter-insurgency warfare” and “maintaining law and order” has inevitably created an atmosphere of fear and terror among the local populace The very notion of counter-insurgency warfare is predicated on the premise that the ‘enemy’ which takes the form of political organisation is hidden amidst the civilian population. So the only way to confront that ‘enemy’ is by infiltrating into these areas for gathering information. This is done through arresting or detaining legally or illegally masses of civilian population on mere suspicion, interrogating them and if necessary even torturing them in brutal ways, with the hope of extracting some relevant information. Counter insurgency operations also include psychological warfare for trying to keep an entire nation under the State’s heel and thereby hoping to control of the situation in favour of the occupying State.
In the wake of very heavy militarisation and State violence to quell a popular freedom movement, Kashmir has seen large scale institutionalised human rights violations being perpetrated by the State which includes — among other transgressions — enforced disappearances. Here the State often justifies its harsh actions by categorising armed rebellion and even popular civilian dissent against the State as ‘terrorism’. This is done to serve a variety of purposes as ‘terrorism’ and counter-insurgency are inextricably linked. The State then justifies all these human rights violations by its forces under the garb of fighting ‘terrorism’ and, in Kashmir’s case, its various variants like ‘cross-border terrorism’, ‘extremism’, ‘religious radicalism’, etc.
These violations are basically the symptom of a larger political problem of the ongoing people’s struggle for self-determination. Since the State cannot suppress the people’s desire to exercise the right to self-determination, it therefore seeks to quell all forms of dissent with brute force violating all the fundamental rights as incorporated in Section 10 of the Constitution of Jammu and Kashmir as well as in the Constitution of India.
Here a distinction needs to be made between the right of self-determination and the struggle for realising it as a human right and respect for human rights as right of self-determination. In the context of Kashmir, the former primarily revolves around external self-determination while the latter revolves around internal self-determination. In the former, regard for human rights forms a part of the larger political struggle, while the latter per se only emphasises on bringing a closure to the victims of crimes against humanity perpetrated by the State. This does not include the struggle for self-determination and independence, as we see it in the discourse created by the state of Jammu and Kashmir. The latter, which is respect for human rights, per se has been further diluted in the context of Kashmir by seeking to make political issues and the resultant human rights violations synonymous to or a consequence of developmental problems like poverty, unemployment, etc.
Legalities in Enforced Disappearances – International and Domestic:
The Human Rights Committee, in the case of Mr. S. Jegatheeswara Sarma v. Sri Lanka noted that: Any act leading to disappearance under Article 7 (2) (i) of the Rome Statute constitutes a violation of several rights enshrined in the International Covenant on Civil and Political Rights (ICCPR). This includes the right to liberty and security of person, the right not to be subjected to torture or, to cruel, inhuman or degrading treatment or, punishment and the right of all persons deprived of their liberty to be treated with humanity and also the right to life. Therefore the Committee was of the view that, where an act of disappearance is established, every individual inflicted with such harm has a right to be adequately compensated and it is the State’s duty to provide the victims with effective and enforceable remedy.
The discourse around human rights in the context of Kashmir has become State-dominated, wherein the State is trying to project that the people are not seeking justice and prosecution of those found guilty of crimes against humanity but are interested in money and jobs instead. This argument negates the very core of the concept of upholding human rights, thus freeing the State of any culpability at least in its own eyes. Such a line of thought is also used to downplay or nullify the larger political issue in Kashmir which is about the exercise of self-determination.
In any case, seeking justice from the oppressor seems contradictory to the self-determination claims. But it is important that these cases of human rights violations are documented and archived as part of our collective memory, which symbolises and provides evidence for this struggle against the political disenfranchisement of the people in Jammu and Kashmir. Consequently, there also seems to be a deliberate attempt on part of the State to erase memory of enforced disappearances from the hearts and minds of people by merely passing them off as cases of ‘the missing’. This also violates the right to know the truth with respect to enforced disappearances. From right to know flows the right to justice.
The right to know the truth about the whereabouts of the disappeared persons was first judicially recognised in the Rodriguez’s case in 1989 by the Inter-American Court of Human Rights. It was observed that the state cannot make the argument that enough evidence has not been produced and therefore in some cases the court can rely on circumstantial evidence and make presumptions on the very act of disappearance. It also denoted that not only the very act of disappearance is a crime but also the inaction on part of the State would be equally culpable because this cannot be done without the support from the State.
Due to this judicial recognition of enforced disappearances, the entire emphasis was on seeking truth by: Exhumations, Reparations and Trials. But, very less emphasis was given on the indirect victims of enforced disappearances, which has now been judicially recognised in many cases. Like in 1994 in the case of Al-Megreisi v. Libyan Arab Jamahiriya, the United Nations Human Rights Committee denoted that being subjected to prolonged incommunicado detention in a secret location amounts to torture, ill-treatment and inhuman treatment. It was also underlined that even the families and relatives of the direct victim are inflicted with severe pain and suffering amounting to torture, which is clearly barred in the Declaration on International Convention of All Persons from Enforced Disappearances.
Since enforced disappearance is not criminalised in the Indian domestic legal system, the cases that go through the formal court procedures are filed under the “abduction” and “kidnapping” clauses of the Penal Code (Sections 364 and 365). This is a common pattern with other cases of enforced disappearances, in other parts of the world as well. This violates legality in so far as ambiguity associated with these provisions is concerned, as it fails to bring out the special nature and circumstances in which these crimes are committed. This includes failing to implicate the State for the crime committed as well as not recognising that the rights of the families and relatives of the victims of enforced disappearances also get violated, especially that of women and children.
Nevertheless, in 2015 International Centre for Transitional Justice (ICTJ) released a report where it was reflected, as to how women suffer due to the enduring nature of the crime of enforced disappearance which is neglected to a very large extent and is not adequately addressed by the government and societies.
In Kashmir, families and relatives of direct victims of enforced disappearances have been falsely implicated in cases and undergone custodial torture which also crosses all thresholds. There has been unwillingness on part of the State authorities to entertain complaints against the “security forces” and that has been a trend in the judicial decisions also, invoking ‘national security’ and ‘morale of the armed forces’. Apart from this, in terms of determining the whereabouts and fate of the disappeared persons and prosecuting the guilty through formal court procedures, also has not borne fruitful results. In this context, draconian legislations like AFSPA, 1990 encourage impunity and give blanket immunity to the ‘security forces’.
Section 7 of AFSPA-1990, states that: Without the sanction from the Central Government no armed forces personnel can be prosecuted even if found guilty without the prior permission from the Central Government, in civilian courts. In most of the cases, sanctions for prosecution are not given. However, the legal aspect of AFSPA – 1990, is in itself disputed as Disturbed Areas Act, 1992, by virtue of which AFSPA was imposed, lapsed in 1997. Also for the last 10 years under Section 3 of AFSPA no notification with respect to reviewing continuation of AFSPA – 1990 has come out, which is a legal prerequisite for continuation of AFSPA, to be done after every 6 months, as per the Supreme Court of India judgment in Naga’s case – 1997, which upheld the constitutionality of Armed Forces Special Powers Act, 1958.
The Indian Supreme Court in 2016 passed a judgment in the fake encounter cases filed by Extra-Judicial Execution Victims Association (EVAM), in which it held that under Armed Forces Special Powers Act, 1958 there is no concept of absolute immunity from trial by a criminal court and disallowed complete immunity to the ‘security forces’. Subsequently a review petition was filed by the Government of India in 2017 against this decision but the apex court upheld its previous judgment. However, many human rights defenders argue that irrespective of AFSPA – 1990, human rights violations do take place in Kashmir as the State resorts to use of violence against civilians as a means of controlling them.
Apart from this, there are also procedural delays as well as absence of adequate legal remedies that add to the problem. This violates the Right to Adequate Reparation and Guarantees of non-repetition. Owing to this discourse, the relatives and families of the victims of enforced disappearances have to face insurmountable challenges in following up their cases in courts, which go on for an indeterminate period of time and in most of the cases with no substantial outcome.
In so far as compensation in cases of enforced disappearances is concerned, it is hardly given. Ex-gratia relief is passed off as compensation. This relief does not contain an acknowledgment on part of the State, of having committed this crime. It’s given as a form of relief to victims who have suffered any human rights violations, from any source which could mean anything, as it does not squarely hold the State responsible for having committed this crime. In Kashmir, as a norm, people who get ex-gratia relief or employment on compassionate grounds, are made to believe that after this they cannot ask for compensation or justice in terms of prosecuting the guilty, which has been reflected in the report titled, “Denied” by Amnesty International India. This negates the larger notion of Reparative Justice in International law which includes Restitution, Rehabilitation, Compensation, Public Apology and Guarantees of Non-Repetition – all put together.
Moreover, families can get ex-gratia relief only after the person is presumed dead for which they have to wait for 7 years and in most of the cases due to financial hardships, people are forced to get the death certificate much earlier and accept this fact, against their will. Also, ex-gratia relief in Kashmir is only available for those who have died as a consequence of militancy-related activity and not being involved in any such ‘subversive’ activity. The disappeared persons in such cases are deprived of their right of being recognised as a legal person before law. The General Comments on Enforced Disappearances on the right to be recognised as a legal person, also states that the certificate of absence may be granted to the relatives of the disappeared, till the whereabouts are not known so that the legal difficulties of the relatives and families of such persons are alleviated.
Not only this, it violates the rights of the person associated with the disappeared person, especially women and children as regards inheritance rights and management and governance of their kin’s property, which is also the case in Kashmir.
Last but not the least, every such disappearance gives rise to a broken family, thereby violating the right to family life as a direct consequence of the disappearance caused, which is also recognised as a legal right. The knock-off effects of that entail huge psychological, social and societal ramifications which in some cases even become irreparable, to which we generally pay less heed.
India signed the International Convention against Enforced Disappearances in 2007. Universal Periodic Review, UPR, is a peer review process of the United Nations where the member states of the United Nations review each other’s human rights record. This review is repeated after every four and half years. During UPR-1 in 2008, India accepted a recommendation to ratify the International Convention against Enforced Disappearances which was later rejected in UPR-2. In 2008 India even stated that it is in the process of ratifying the Convention but in UPR-2 the same recommendation was rejected.
During the UPR-3 session in May 2017, only 2 to 3 countries recommended ratification of International Convention against Enforced Disappearances. This disturbing trend clearly shows not just a decline in regard for human rights in India but also rest of the world in such grave crimes against humanity.
Due to these reasons and the struggle of people against enforced disappearances, it is mandatory to ratify the International Convention on Protection of All Persons from Enforced Disappearances and to make an enabling provision in the Indian Penal Code, which would criminalise enforced disappearances. But unwillingness on part of India to ratify the Convention clearly shows a trend of how the State is an accomplice in giving blanket immunity to its security agencies to perpetuate structural impunity and thereby institutionalise it.