Prosecute Soldiers in Kashmir ‘Encounter Killing’ Repeal Armed Forces Special Powers Act

Press Release, HRW

(New York, June 7, 2010) – The recent killing of three men by soldiers in Jammu and Kashmir in an apparent faked encounter with so-called militants underscores the urgency for the Indian government to repeal the Armed Forces Special Powers (Jammu and Kashmir) Act (AFSPA), Human Rights Watch said today. Under the Act, which has been in force in Kashmir since 1990, soldiers may not be prosecuted in a civilian court unless sanctioned by the federal government, which is extremely rare.

Police have accused Col. D.K. Pathania and Maj. Upinder Singh of the 4th Rajput Regiment of killing three Kashmiri villagers on April 30, 2010. The military men falsely claimed that the villagers were anti-government militants and shot at the Line of Control (LOC), the effective border separating the Indian- and Pakistani-administered regions of Kashmir. The army ordered an inquiry, suspended the major, and removed the colonel from command.

“We have seen too many army inquiries, supposed suspensions, and false promises of punishment whenever soldiers are implicated in killing civilians,” said Meenakshi Ganguly, senior South Asia researcher at Human Rights Watch. “But when the dust settles, the army obstructs prosecution under the Special Powers Act, and fails to deliver justice.”

The army claimed that it killed three militants after it foiled their attempt to infiltrate in the Machil sector of the Line of Control, and displayed AK-47 assault rifles, ammunition, and Pakistani currency allegedly recovered from the men. Police allege, though, that a member of the Territorial Army, Abbas Hussain Shah, deliberately lured the three men – Mohamad Shafi, Shehzad Ahmed, and Riyaz Ahmed, all residents of Nadihal in Baramulla district – into army custody with an offer of jobs.

Police arrested Shah, along with two alleged accomplices, after relatives reported that the three men were missing. The police said that Shah had admitted that he took the men to a village near the border, from which soldiers transported them to the Line of Control. Shah said he was acting under orders from Major Singh. The three bodies were later exhumed and identified by their relatives in the presence of a magistrate.

“The army’s narrative of shooting infiltrators is the same tired story used time and again to claim military glory,” Ganguly said. “The army’s special powers to operate in conflict areas are being repeatedly abused and should be withdrawn.”

A government-appointed review committee recommended repealing the act in 2004 because of repeated abuse. In 2009, the Indian government promised to revise the law to ensure human rights protections, but the bill has yet to be placed before parliament. The army has resisted any curtailment of its powers under the act, particularly its immunity from prosecution, saying that it will lead to frivolous complaints and will hurt troop morale.

Human Rights Watch has documented numerous cases of faked “encounter killings.”

For instance, in a 2000 case in Pathribal, the Central Bureau of Investigation filed murder charges against five army officers – Brig. Ajay Saxena, Lt. Col. Brajendra Pratap Singh, Maj. Saurabh Sinha, Maj. Amit Saxena, and Subedar Idrees Khan – for their role in abducting and killing five villagers in a staged armed encounter. The army challenged the charges under AFSPA since federal government approval had not been sought before the charges were filed. Court proceedings in the case still drag on, and none of the accused have been taken into custody or brought before a judge. According to some media accounts, some of the accused have continued to serve in the army and received promotions.

In 2007, five alleged militants killed in a joint operation in Gandherbal by the police and the army later proved to be civilians who had been abducted and murdered. Although charges were filed against the police officers involved, the army officers implicated were not handed over to the police for arrest and prosecution.

The army repeatedly claims that it prosecutes and punishes those found responsible for human rights violations in its military courts. Yet the army has never provided information to the public to support this assertion. The army has promised that the inquiry into the Machil incident will be transparent and that anyone found guilty will be punished.

“If the army is serious about punishing those responsible for this latest incident, it will transfer the suspects to the police for trial in a civilian court,” Ganguly said. “Given the army’s poor record in holding its soldiers accountable, there is no reason to believe that a military court can be trusted to deliver justice.”

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