Army Hides Behind Armed Forces Special Powers Act
(New York) – An Indian  army court of inquiry’s dismissal of all charges against five officers for the high-profile killing of civilians in Jammu and Kashmir state demonstrates the military’s continuing impunity for serious abuses, Human Rights Watch said today.
The Indian government should urgently act on the recommendations of several commissions and repeal the Armed Forces Special Powers Act (AFSPA), which provides effective immunity for military personnel implicated in human rights violations.
On January 24, 2014, the army said it was closing the case for lack of evidence against the army officers, who were accused in the March 2000 extrajudicial killings of five civilians in Pathribal and falsely claiming the civilians were terrorists who killed 36 Sikh villagers. The army’s case was only filed after it used the AFSPA to block the case brought by the civilian Central Bureau of Investigation against Brig. Ajay Saxena, Lt. Col. Brahendra Pratap Singh, Maj. Saurabh Sharma, Maj. Amit Saxena, and Subedar Idrees Khan.
“Five villagers were abducted and murdered, yet the army has been allowed to absolve itself,” said Meenakshi Ganguly , South Asia director at Human Rights Watch. “The Armed Forces Special Powers Act should be repealed so that soldiers who commit serious crimes against civilians face trial in civilian courts and can no longer be protected from prosecution.”
The AFSPA prohibits prosecutions of military personnel in civilian courts without government approval, allowing the government and its agencies to shield officers and soldiers from being tried for serious offenses. It grants the military wide powers to arrest, to shoot to kill, and to occupy or destroy property in counterinsurgency operations. Indian officials claim that troops need such powers because the army is only deployed when national security is at serious risk from armed combatants. The AFSPA, which has been in force for decades in Jammu and Kashmir and India’s seven northeastern states, has provided effective immunity to members of the armed forces for killings and other serious human rights violations.
In a 2006 report, Everyone Lives in Fear , Human Rights Watch documented the role of army personnel in the killings in Pathribal.
On March 20, 2000, on the eve of a visit to India by then-US President Bill Clinton, armed men entered the village of Chattisinghpora in Anantnag district at night, lined up male residents outside, and opened fire, killing 36 and wounding several others. On March 25, the security forces claimed that five militants responsible for the massacre had been killed in an armed encounter at Pathirabal. The army handed over the bodies to the police and filed a police report. The bodies were badly mutilated, with three completely charred and another that had been decapitated.
Meanwhile, five villagers from the district had been abducted on March 24, and reported missing to the local police station. Villagers went to the site of the killings of the alleged militants, where they found some items of clothing belonging to two of the five missing men. Local residents asserted that those killed were not militants but the abducted men who had then been murdered in a fake encounter. An army spokesman dismissed the allegations, saying: “Genuine terrorists have been killed. Do not give much credence to these reports about a fake encounter. People are twisting facts.”
The villagers held several protests and a judicial inquiry was eventually ordered. The bodies were exhumed and through DNA testing were identified to be the missing villagers. The Central Bureau of Investigation took over the investigation in February 2003 and in March 2006 filed murder charges against the five army officers. However, the army opposed any civilian prosecution. There was an appeal to the Supreme Court, which ruled that the army could choose between prosecution by a military court or a civilian court. In June 2012, the army agreed to a court martial.
“The Supreme Court gave the army a test as to whether it could hold its personnel accountable,” Ganguly said. “The army has now failed this test, showing yet again its inability to fairly prosecute abuses by its personnel.”
Victims, activists, and members of the public in Jammu and Kashmir and in the northeast have long campaigned for repeal of the AFSPA. Irom Sharmila, an activist in Manipur, has been on a decade-long hunger strike demanding repeal following a massacre of civilians by troops there. The government has responded by keeping her in judicial custody to prevent her from committing suicide and ordered her force-fed through a nasal tube.
In 2004, following widespread protests after the murder of Manorama Devi in Manipur, the Indian government set up a five-member committee to review the AFSPA. The review committee submitted its report on June 6, 2005, recommending the repeal of the law. In April 2007 a working group on Jammu and Kashmir appointed by Prime Minister Manmohan Singh also recommended that the act be revoked.
However, the cabinet has not acted on these recommendations because of strong opposition from the army. In February 2013, P. Chidambaram, the former home minister, said that the government wanted amendments to make AFSPA a more “humanitarian” law, but explained that the army “has taken a strong stand against any dilution of the AFSPA.” In 2012, during the Universal Periodic Review of India before the United Nations Human Rights Council, member states recommended that the AFSPA be repealed.
“The government has long indulged the army’s objections to civilian accountability by repeatedly ignoring the demands of official commissions, the United Nations, and many concerned citizens,” Ganguly said. “India needs to show it is committed to accountability and justice by repealing this terrible law.”
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