Making Amends for Amshipora

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It should be Army’s business to see that this time around justice is done 

ON Saturday, the bodies of the three young men including a minor – Imtiyaz Ahmed, Abrar Ahmed and Mohammad Ibrar, – killed recently by the Army in an encounter at Shopian were exhumed at Gantamula in North Kashmir.  Men with shovels went to the village to dig into the earth, triggering a deep sense of deja vu.

This is not the first time that such exhumations have taken place in Kashmir. Who can forget the killings of similar nature in encounters at Pathribal in South Kashmir in 2000, Ganderbal in central Kashmir in 2007 and Machil along the Line of Control in 2010 or the death of the two young women, Asiya and Neelofar at Shopian in 2009. The bodies of the victims in these incidents were exhumed too. But we also know that justice was done in none of the cases, albeit in Machil case, in which the Army came closest to delivering it but eventually backed out.

The verdict of the court martial in Machil case had showed the way. It had appeared that the Army will after all transcend the safeguards under Armed Forces Special Powers Act (AFSPA) and bring its erring personnel to book. Five army men including two officers convicted in the fake encounter of the three Kashmiri youth were sentenced to life imprisonment. But soon after they were released on bail and their life terms were suspended by the Armed Forces Tribunal. This reversed the public confidence generated by what was seen as a rare punishment.

Pathribal, arguably the most grotesque of such incidents, is a long story though. Five innocent civilians were killed in South Kashmir in 2000 and passed off as terrorists who killed 36 Sikhs at nearby Chittisinghpora. The case was first investigated by Central Bureau of Investigation which concluded that it was “cold-blooded murder” and recommended that “the accused officials deserve to be meted out exemplary punishment”. The CBI had pleaded that since the Pathribal fake encounter didn’t fall within the line of duty of the accused personnel, they couldn’t claim immunity under the AFSPA and hence no sanction was needed to prosecute them.

Deciding the case, the Supreme Court later ruled that the central government’s sanction was necessary to prosecute the security personnel involved in the human rights violations. And in doing so, the apex court upheld a critical feature of the AFSPA whose Section 6 makes the requisite sanction from the central government mandatory for prosecution of erring personnel. However, in regard to Pathribal, the court set a timeline. The army was given eight weeks to decide whether its personnel accused of fake encounter killings in J&K should be tried by court-martial proceedings or by regular criminal courts.

For once, it had almost appeared that the things had begun to head in the right direction. And exactly after the passing of the stipulated period, Army made a choice in favour of the court-martial.  But subsequently, Army’s decision to give itself the clean chit dashed all hopes of justice. If Pathribal with its sordid details a public knowledge could be “prima facie”  short of evidence against the accused personnel – more so with the CBI inquiry already nailing their role – there is no due process of Army law, no court martial that can establish the guilt in the case or any other similar case.

Now again, in a rare development of its kind, Army has again chosen to voluntarily dispense justice in a case where its personnel have in the words of Army itself “exceeded” the powers vested under the AFSPA. The Army has confirmed that the three youth killed in an encounter at Amshipora in Shopian were civilians from Rajouri in Jammu. The finding followed an internal probe into the incident.

In a statement issued to the press, the Army said that “the dos and don’ts of Chief of Army Staff (COAS) as approved by the Hon’ble Supreme Court have been contravened” in the course of the operation.

Earlier on July 18, the Army had claimed to have killed three unidentified militants in an orchard at Amshipora. But once their pictures were published in newspapers and circulated on social media, three families in Rajpouri claimed they were their children and insisted they had had no terror links.  According to the families, the trio had gone to Shopian to work as labourers. The Army was quick to order a high-level Court of Inquiry (CoI) into the encounter.

But nobody in Kashmir, even in their wildest imagination, believed that the Army would indict its own soldiers. This is why, when it happened, it came as a pleasant surprise to people.  But there are still doubts about the Army’s sincerity to take the probe to its logical conclusion

As the Amshipora case has once again showed, what matters is the accountability of the personnel responsible for gross excesses, not the revocation of the AFSPA per se. Best way out is the willingness among the security agencies to act fairly and speedily in case of rights violations. This is the only pragmatic solution under the circumstances. One can also ask what is stopping the centre from making necessary modifications in the law that makes the security personnel who commit human rights violations accountable for their actions. Such actions cannot be left entirely to the discretion of the Army. There has to be an inbuilt legal mechanism to punish the erring personnel irrespective of the institutional discretion of the security forces.

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Riyaz Wani

Riyaz Wani is the Political Editor at Kashmir Observer

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