Kashmir: APDP seeks SHRC intervention before High Court in unmarked and mass graves case

Hong Kong: APDP on 8 August moved an application before the J&K State Human Rights Commission (SHRC) on the issue of unmarked and mass graves in Jammu and Kashmir, and prayed that the SHRC approach the JK High Court to seek implementation of its 2011 and 2017 judgments. SHRC issued notice and sought responses from the JK police and Government of JK and will hear the case next on 17 September.

Jammu and Kashmir has seen an estimated 70,000 killed, 8000 disappeared, and countless tortured and victims of sexual violence. Unmarked and mass graves are directly connected to these widespread and systematic human rights violations as a part of the ongoing armed conflict. State forces (army, paramilitary, police and informal groups) have been the major perpetrators of this violence and have for decades failed to follow any protocol following the killing of civilians and/or militants whether in “legitimate encounters” or in cases of fake encounters, custodial killing, torture killings and other such crimes. In addition to not filing first information reports and carrying out fair and independent investigations, including on the bodies themselves, the State forces buried the bodies of the persons killed in unmarked graves, including on occasion in mass graves . Unmarked graves are sites of crime and their investigation would unearth the nature and extent of State violence. Crucially, families of the disappeared have a right to know the whereabouts of their loved ones and the investigation of unmarked graves may provide some answers in this respect.

APDP first highlighted this issue in a 2008 report titled Facts Underground (followed up by a 2009 report titled Buried Evidence). Subsequently, in two separate judgments (2011 and 2017) SHRC also confirmed the phenomenon and issued a series of recommendations for investigations and reparations for 4810 unmarked graves across five districts. On 19 October 2011, SHRC through its own investigations confirmed the presence of 2730 unidentified bodies in unmarked graves in districts Baramulla, Bandipora and Kupwara (of which 574 bodies were identified as being locals) and issued six recommendations including for identification of the unidentified bodies through DNA testing and forensic examinations, and for prosecution and reparations. Government was directed to file an action taken report, which was filed by communication dated 13 August 2012 wherein the Home Department of Government of JK refused to implement the recommendations of the SHRC. Specifically, on the important recommendation of investigations of the graves it was stated that due to lack of capacity and resources, and the time period already lapsed, investigation would not be possible except in limited cases where a family member is able to identify the exact location of the grave of their loved one (which is impossible in virtually all cases). On 26 October 2017 on a separate application by APDP on unmarked graves in districts Poonch and Rajouri, SHRC – based on government records – confirmed presence of 2080 unmarked graves and reiterated the same six recommendations. These directions were to be complied within six months but to date the government has not done so and neither has any action taken report, as mandated, been filed.

International bodies have also called for investigations into unmarked and mass graves in Jammu and Kashmir, such as the European Parliament through a resolution in 2008 where financial assistance was also offered, Office of the High Commissioner for Human Rights in June 2018, and international NGO’s Amnesty international and Human Rights Watch.

The categorical refusal of the State to comply with SHRC recommendations is a part of the consistent practice of the State to ensure impunity and protect perpetrators of violence. But, it also calls into question the very credibility of the SHRC that has been constituted – as per its statute - to protect human rights of the people of Jammu and Kashmir. The refusal of the State to investigate unmarked graves mirrors the past refusal to even acknowledge the crime of enforced disappearance (Government of India has signed but not ratified the Convention on enforced disappearance). Therefore APDP has approached the SHRC to ensure compliance of its own judgments by approaching the High Court, a measure that is within the power of the SHRC and has been exercised in other cases.

Today’s application by APDP forms the next step in its decades old struggle for justice on the issue of enforced disappearance. APDP will ensure that the memory of the disappeared remains alive until justice is done and the truth is made public. (Issued by Spokesperson, APDP and circulated by the Hong Kong-based The Asian Human Rights Commission)