No peace without justice

Following shelling by the security forces in Jammu & Kashmir, 11 people were killed on 18 September 1997 in Arin, in Bandipore of Baramullah district. Eleven years later, the victims' families in this little hamlet are still awaiting justice. This is just one of scores of such incidents to have taken place over the past two decades of conflict in J & K, where the issue of human rights has long occupied the centre of the political discourse..Kashmiri separatists have always used rights abuses as a central theme of their struggle against rule by New Delhi. Likewise, every major 'pro-India' political party has also demanded greater accountability for the armed forces, the repeal of draconian laws such as the Armed Forces (Special Powers) Act, and justice for the victims of abuse. During the recent election in J & K, both the ruling National Conference and the opposition Peoples Democratic Party again promised elaborate action plans to halt such violations. Yet in practice, human-rights defenders and other civil-society actors continue to be kept far from the negotiation table..Perhaps unsurprisingly, in J & K the lack of accountability of perpetrators and denial of justice to victims has become a norm. The reason for this lies in the exclusion of human-rights and justice agendas from both the wider peace process and negotiation mechanisms. In fact, the peace process and the demand for justice have run parallel courses, with little attempt being made by negotiators to integrate calls for justice into official procedures. Meanwhile, the government's response to human-rights violations has been knee-jerk: announcement of enquiries and compensation of INR 100,000 to victims' families, rather than working to bring perpetrators to justice. Given such a situation, the larger problem is the near-total breakdown of trust in any official move to provide succour to victims, and the fact that the human-rights debate has become mired amidst the complex political dispute within J & K and with New Delhi..Kashmiris often assert that the discourse on J & K has been shaped by New Delhi, and that it is rarely based on the realities of Kupwara, Anantnag or even Srinagar. Moreover, it is felt that the peace process has failed to engage with a broad range of stakeholders in the state itself. Foremost amongst those that have been marginalised from these incipient attempts at carving out peace is the Kashmiri civil society. In order to analyse the challenges that lie ahead for achieving peace, it is important to understand the underpinnings of the civil-society movement in J & K..Wanchoo and AndrabiCivil society continues to remain a potent force in Southasia generally, where insurgencies reflect distrust and a crisis of legitimacy with the formal institutions of politics and governance. A survey conducted in 2005 by the Delhi-based Centre for the Study of Developing Societies revealed that widespread dissatisfaction with electoral politics has led to new forms of civil activism throughout India in particular, while also concluding that these social movements have helped to deepen democracy..As elsewhere, however, the understanding of 'civil society' remains nebulous in this region. After significant activism in and around the Independence movement in India, by the 1960s the concept, which first emanated from Western classical theory, was in decline. That was a time when state-led modernisation dominated both liberal and Marxist discourse on social transformation and development. However, as these models collapsed during the 1970s and 1980s, the concept of civil society again revived. Since then, civil society throughout the region has come to be seen as essential to the building of an accountable and just society, as well as offering a platform on which to engage with public and representative forms of political power – a means of establishing a more cohesive relationship between socialism and democracy. This has been particularly crucial in pockets of India such as J & K, where the government faces a serious crisis of legitimacy..Today, the J & K civil society is comprised of a diverse spectrum of professional and other groupings. These include trade guilds; associations of lawyers, doctors and journalists; academics; and human-rights and victims' groups. Nearly all have come under strident attack from both state authorities and armed militants. Nonetheless, the mainstay of Kashmiri civil society has been its advocacy in national and international forums on human rights and accountability, and it is this specific section of civil society that requires some deeper exploration..The human-rights movement in J & K was kick-started on 3 December 1992, with the killing of the noted activist Hridaynath Wanchoo. In the following years, in response to growing human-rights violations by the state security forces, several groups emerged in the Kashmir Valley. While a few of these, such as the Jamaat-i-Islami-backed Institute of Kashmir Studies, clearly had political affiliations, others, such as the Association of Parents of Disappeared Persons (APDP), formed in 1994, were spearheaded by victims' families and lawyers. APDP anchored its advocacy in the language of international human rights and humanitarian law. Similarly, individual lawyers representing victims' families greatly contributed to the institutionalisation of the rights-based discourse. By employing legal remedies of habeas corpus and invoking international protections against violations of civil and political rights, they sought to institutionalise human rights in Kashmir..As the armed struggle continued, the state too intensified its response. Demands for accountability and justice were labelled acts of subversion, and all means, including brutal force, were used to suppress human-rights groups. The extension of draconian laws, which provided unbridled powers to the security forces, was subsequently projected as a legitimate way by which not only to curb secessionism, but also to eradicate political discontent. This led to widespread suppression, making human-rights activism practically impossible – a situation that was made more difficult by the fact that independent campaigns were also not considered acceptable by the militant groups. While the latter had no problems when the issue of security-force high-handedness was questioned by human-rights defenders, they would not tolerate any critique of their own actions. In this environment of fear, it was a long time before the rights campaigns were able to take on professional shape..In 1996, the disappearance and subsequent killing of the well-known activist Jalil Ahmad Andrabi by the security forces created an international uproar, and brought renewed attention to the ongoing serious violations in the state. On 8 March of that year, while returning from work, Andrabi was illegally detained by the paramilitary Rashtriya Rifles; his mutilated body was found three weeks later on the banks of the Jhelum River. A half-decade earlier, Andrabi had established the Kashmir Commission of Jurists, which sought to protect Kashmiris' human rights by using the guarantees stipulated in the Indian Constitution. Between 1990 and 1996, Andrabi filed several thousand habeas corpus petitions in the J & K High Court on behalf of victims of summary arrests and detentions, while also campaigning for the rights of those detained in prisons and the state's notorious interrogation centres. But while several such petitions were accepted by the High Court, the court made no attempt to punish the perpetrators..Andrabi's killing quickly became symbolic for the human-rights movement in Kashmir. Given the continued disappearances of thousands of individuals, victims' families began to organise into a collective, demanding that the government form an investigative commission and announce the whereabouts of their loved ones. Significantly, it was around this time, in the mid-1990s, that international norms regarding enforced disappearances were crystallising, and a UN working group was beginning to receive complaints from several countries, including India. Moreover, regional solidarity groups such as the Asian Federation against Involuntary Disappearances were also coming together. It was also during this time that J & K began to witness an increase in extrajudicial killings and enforced disappearances by the state. The security forces, assisted by government-sponsored militia or renegades (Ikhwans) and Special Police Officers, were focused on weeding out any form of dissent..Strategies of linking local rights groups with regional and international advocacy networks were effective in challenging state atrocities. While international groups such as Human Rights Watch and Amnesty International published intermittent reports and issued urgent actions on J & K, the continued advocacy by Kashmiri rights groups, lawyers and independent activists challenged the illegal, arbitrary actions of the state. In the absence of rule of law, continued documentation of violations ensured that the focus on human rights remained..Missed opportunitiesRecent developments in Kashmir point to the reluctance of the Indian state to concede space to individuals and groups working on issues of human rights. In fact, it has missed several opportunities to engage with these groups, perhaps most prominently following the devastating earthquake of October 2005. The magnitude of that tragedy forced New Delhi to relax travel restrictions across the Line of Control, providing unprecedented access to Kashmiris and non-Kashmiris to border areas and villages that had previously been closed to 'outsiders'. For the first time, Kashmiris and non-Kashmiris alike became familiar with the stories of immense suffering of those living in border villages of Uri and other districts. After the initial few weeks, however, New Delhi once again discontinued access to these areas, thus preventing the strengthening of spaces for exchange and dialogue within the districts of the Kashmir Valley..In 2006, in furtherance of the peace process, Prime Minister Manmohan Singh facilitated the formation of five working groups on Kashmir. Part of the mandate of the Working Group on Good Governance was ensuring "zero tolerance" for human-rights violations. Other than that, however, there was no mention of human rights or justice in the mandate of any one of the other groups. Economic exchanges and corruption dominated the agenda of these working groups, thus deflecting much-needed attention from issues of truth, justice and accountability. And, as usual, civil society – in particular individuals and groups representing the human-rights community – were wholly excluded from the discussions..Most recently, the arm-twisting tactics of government authorities have made it increasingly difficult for rights groups to operate in J & K. Through a variety of methods, state officials have attempted either to co-opt or pressure the human-rights community. As noted previously, the hope seems to be that by providing compensation to the next-of-kin, the demands for justice will be silenced. Furthermore, intimidation and harassment of rights defenders by the authorities has continued unabated. By refusing to issue passports to many such activists, academics and journalists, the government has successfully restricted the participation of these individuals in international forums. In numerous instances, rights defenders, journalists and others have been attacked and severely beaten up, after which the police tend to refuse to register cases. For its part, the rights movement in J & K must deal with internal challenges such as a lack of systematic and exhaustive documentation on human rights, the need to devise new strategies to advance the accountability agenda, and the training of new entrants to the movement..Learning from peace processes elsewhere, it is clear that reducing the space available to civil society, or threatening human-rights defenders, does not help the authorities in the search for sustainable peace. Rather, it is important that their demands be funnelled into ongoing negotiations. In this, examples from other regions can be useful. One of the primary reasons cited for the failure of the 2002 Ceasefire Agreement brokered by the Norwegians in Sri Lanka was the inability of the peace process to engage seriously with issues of justice and accountability. Furthermore, it was seen to be narrowly based on bringing an immediate end to the fighting, rather than on incorporating the needs of a broad range of stakeholders, including those who suffered human-rights violations. Civil society was completely kept out of the peace process. On the other hand, the Finnish-mediated peace accord in Aceh, Indonesia, included mechanisms that promoted accountability for gross rights violations. Indeed, the Acehnese civil society and human-rights NGOs influenced the peace process in various ways, including several meetings with the Finnish mediator, and ensured that issues of justice would be reflected in the commitments of the negotiating parties. It can be argued that the inclusion of mechanisms to address past violations contributed in part to the success of the peace process..Likewise, as the Nepali example shows, a proactive role by the civil society, especially that of human-rights groups, can prove significant in shaping peace. In Nepal, the peace process was supported, in part, by several civil-society initiatives, such as the Civic Solidarity for Peace and the Nepal Resource Center. Moreover, since early 2000, much of the groundwork in developing a discourse on human rights and challenging atrocities committed by both parties to the conflict was led by Nepali civil-society activists. Through effective advocacy, one of the early contributions of the Nepali civil society was in ensuring the primacy of human rights (Point 8) within the 12-point agreement of November 2005, the first formal agreement between the mainstream political parties and the Maoist rebels. By including this point, the Nepali civil society ensured that a commitment to human rights and justice would be reflected in subsequent agreements. Thereafter, five civil-society representatives were officially appointed as observers for the duration of the peace talks. Even though impunity remains a considerable challenge in Nepal, the inclusion of mechanisms to address past human-rights violations in the Comprehensive Peace Agreement (signed in November 2006) has bolstered groups advocating for justice and accountability..Meanwhile, there is a larger palette at work here as well. In the peace process between India and Pakistan, representatives of civil society and victim groups likewise remain excluded, despite their contributions to the struggle for truth and justice. The inclusion of civil society and victim representatives will invariably lead to a peace process that is attentive to the demands of accountability for serious rights violations. Several confidence-building measures have been initiated between the two countries in recent years, but there has been silence on agendas of justice and accountability. All the while, the political leaderships – perceived by many to be complicit in using human-rights issues for political gain – are still seen to be representing the voice for justice..If and when the peace process is resurrected in J & K, it must involve not only the political leadership but also representatives from civil society. With the recent advancement of criminal justice at the international level, in particular the recent indictment of the Sudanese President Omar al-Bashir by the International Criminal Court, one message is indisputable: Without accounting for past crimes and challenging structures that promote impunity, peace is simply not a possibility. Instead of marginalising and threatening the human-rights community in J & K, the government needs to create conditions that facilitate engagement with the civil society. As experiences elsewhere indicate, it is only by securing meaningful commitments to justice and providing opportunity to civil-society representatives to engage with the process can a real resolution to the conflict in Kashmir emerge Warisha Farasat is a lawyer working on human-rights issues, currently based in Kathmandu.