Custodial killings Time to Reset the Human Rights Agenda

Army Specialist Jeremy Morlock, 22, has pleaded guilty to three charges of murder [REUTERS] Two US army soldiers allegedly involved in a 12-man "kill team"accused of murdering Afghan civilians for sport have been shown in leaked photographs posing with one of their victims. Specialist Jeremy Morlock and Private Andrew Holmes are shown holding up the head of a man identified by Germany's Der Spiegel newspaper as Gul Mudin, an unarmed Afghan they are accused of killing on January 15, 2010. The newspaper first released the images behind a pay-wall online on Sunday night and then published them on Monday. Their release coincides with an anticipated speech on Monday by Hamid Karzai, the Afghan president, that will announce the beginning of a transfer of security from international to Afghan control. The photos are said to be among a number seized by Army investigators looking into the deaths of three unarmed Afghans last year. Der Spiegel uncovered around 4,000 photos and videos taken by the so-called kill squad. The images released on Sunday were covered by a judicial order from a military court prohibiting their dissemination, and it was unclear how the newspaper obtained them. "Today Der Spiegel published photographs depicting actions repugnant to us as human beings and contrary to the standards and values of the United States Army," the army said in a statement released by Colonel Thomas Collins. "We apologise for the distress these photos cause." Their publication has sparked fears of a backlash against armed forces in Afghanistan. Many organisations with foreign staff, including the United Nations, ordered a "lockdown" on Sunday night and told employees to stay in their compounds, anticipating violent protests in response to the release, the Guardiannewspaper reported. Murder charges Morlock has pleaded guilty to three charges of murder and will be sentenced at a court martial on Wednesday. Holmes has also been charged with Mudin's death. Three other soldiers are charged with murder, while seven are charged with trying to block the investigation, using a controlled drug and "wrongfully photographing and possessing visual images of human casualties." All 12 men belonged to the 5th Stryker Briagde, 2nd Infantry Division. Holmes and Morlock were on guard at the edge of a poppy field on one side of a wall when Mudin began to approach from the other side, according to reports. Another member of the squad, Staff Sergeant Calvin Gibbs, allegedly handed a grenade to Morlock, who then armed and dropped it on the other side of the wall. Holmes opened fire on Mudin, the grenade exploded, and then other soldiers opened fire as well. Morlock told investigators he and Holmes shot Mudin without cause, but Holmes has said that he fired when Morlock told him to, believing that Morlock had perceived a legitimate threat. Holmes and his lawyer said the incident occurred in the dark, but the images were shot during the day. Geoffrey Nathan, a lawyer for Morlock, has also questioned the authenticity of the photographs, saying they do not have a time or date stamp and the identity of the corpse was unverifiable.

By Bashir Assad

With the unearthing of the recent scandal of custodial killings and the exhumation of those killed in fake encounters, there is constant fear in the minds of the relatives of the missing persons and the newspapers carry wooing stories of custodial killings in their own style through cross examination of official versions and handouts coupled with the hearings of the relatives of the deceased and recorded testimonies of the victims.

The immense miseries inflicted upon the grief stricken, strife torn people of this conflict zone have such a terrible impact on the society which reminds the past dark story of genocide of nation states by the invaders or tyranny. The horrific abuses inflicted upon the people by the state forces and the unlawful killings in the name of liberation struggle have ruined the society with the destruction of the social and secular fabric of the state.

The recent episode with all its magnitude has once again furthered the alienation of the people and has added to their disbelief in the political system of the state. Killings of innocent people across the state by the security forces and the militants, the massacres, the custodial killings, custodial disappearances, fake encounters, political killings were continuing unabatedly in the state followed by setting of official/judicial enquiries in individual cases and punishing the guilt in few cases.

However in each case the truth seeking process in the state lacks public version on one hand and the state machinery blocking the process of elucidating the truth of the past on the other. Official history skips over the massive abuses and systematic crimes. This, by no means, is an accusation but a reality which people come across day in and day out.

Under these precarious circumstances ordering probe and holding enquiries seems as deceptive as the offense itself. oppression of the people under the garb of insurgency and counter-insurgency with state forces empowered by oppressive laws, moreover the state claiming punish the erring security and police officials/officers through the criminal justice system is something which could not  abridge  the sufferings of victims in the  state. 

The state in an attempt to minimize the level of human rights abuses in the state and to compensate the victims, half- heartedly, through an enactment empanelled State Human Rights Commission but empowering the commission could not be translated into reality, hence making it a toothless body. Given the situation people rely on what is known as seeking truth from un-official stances. These stances, however, could not be pervasive and reliable given the infiltration of external bureau in our society. Anyway, distortion of truth, as for as human dignity goes, dates back to 1989 when the state came under the grip of militarism with the inception of militancy.   The situation is as depressing today as was in early nineties. 

Custodial disappearances even custodial deaths of thousands of Kashmiri youth are shrouded by mystery and the truth is yet to be ascertained.  What encourages the state agencies in hiding the truth is the fact that a number of missing youth have gone to the other side of LoC for receiving armed training. So seeking truth has become a very complex issue-as complex as the Kashmir problem itself. There is one more problem in regard to ascertaining the truth i.e. neither the government agencies nor  un-official truth seeking human rights organizations  go to the genesis of the abuses issue. My point is that an incident of human rights abuses is not merely an incident but correlated with the gruesome acts of past.  Whatever is being perpetrated from both the sides is planned and systematic. So punishing one police officer or booking one militant could not solve the problem.

What is needed is to provide a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all, in an often quoted passage that states: There is a need for understanding but not for revenge, a need for reparation but not for retaliation. This objective could be achieved on the likeness with the conflict zones across the world  through  setting up of truth commission in the state which could act independent of state influence and the influence from the outside. There are often enormous social and political pressures, or pressures that stem from the interests of specific groups and individuals, to turn the page and leave the past behind, in the name of peace or reconciliation.

However, experience tells us that, generally, this will not make painful memories recede or allow a society to claim that it effectively recognizes the equal rights of all. Truth commissions generally refer to what are usually temporary bodies, officially sanctioned, authorized or empowered by the state. They are non-judicial in nature, and operate independently of government and other outside influences. Usually, truth commissions are created within some moment of political transition, focusing on the past and investigating patterns of abuse that have occurred over time, usually referring to violations of human rights.

Generally, Truth Commissions are established to research and report on human rights abuses over a certain period of time in a particular country or in relation to a particular conflict. Truth commissions allow victims, their relatives and perpetrators to give evidence of human rights abuses, providing an official forum for their accounts. In most instances, truth commissions are also required by their mandate to provide recommendations on steps to prevent a recurrence of such abuses.

Truth Commissions did exemplary investigation in conflict zones like Argentine,Bolivia, Chili, East Timor, Ecuador, Germany, Ghana, Nepal, Panama, Peru,Philippines, Serbia, South Korea, Sri Lanka, Uganda, Zimbabwe and Spain. But the South African TRC brought home to the world the reality of the horrific abuses inflicted upon thousands of victims. Through public hearings, family members, victims and perpetrators gave voice to their experiences of the violence against individuals that was part of the apartheid system.

The TRC published a lengthy report in 1996 that contains the cumulative weight of thousands of testimonies, stories that taken together make it impossible to deny the patterns and structures underlying the atrocities – both those committed by the state against people who were standing up to apartheid, and the unlawful killings done in the name of the liberation struggle. Such commissions are ‘unofficial’ in the sense that they emerge from, and remain located in, civil society. They are ‘truth projects’ in the sense that they share with truth commissions the logic that by confronting the legacy of past human rights abuse and atrocity by elucidating the truth of the past, societies can build more just, more stable, and more democratic futures.

The Indian government’s failure to end widespread impunity for human rights abuses committed both by its security forces and militants is fueling the cycle of violence in Jammu and Kashmir. Human Rights Watch in its report has said that extrajudicial executions by Indian security forces are common. The Indian security forces often execute alleged militants instead of bringing them to trial in the belief that keeping hardcore militants in detention is a security risk. Most of those summarily executed are falsely reported to have died during armed clashes between the army and militants in encounter killings.

The Indian government has effectively given its forces free rein, while Pakistan and armed militant groups have failed to hold militants accountable for the atrocities they have committed. Through documentation of the failure to prosecute in recent cases and some older, key cases, the report shows how impunity has fueled the insurgency. If the Indian authorities had addressed these abuses seriously when they took place, public confidence in the authorities would have increased and future abuses may have been substantially reduced. Instead, India failed to prosecute or discipline the perpetrators. Impunity has been enabled by Indian law.

There is no denying the fact  that  Indian security forces have shot civilians under the authority of laws such as the Jammu and Kashmir Disturbed Areas Act and the Armed Forces (Jammu and Kashmir) Special Powers Act. These laws, enacted near the beginning of the conflict, allow lethal force to be used “against any person who is acting in contravention of any law or order for the time being in force in the disturbed area.” Other laws offer state agents effective immunity from criminal prosecution.  Under the given situation, anger of Kashmiri people is justified because of the fact that the state apparatus are distorting the facts and exaggerating the events so much so that Kashmiris –one and all – are being christened  as anti-national and are extended a treatment given to the war mongers.

While the truth provides a strong foundation for forging new lines of trust and a commitment to respect for all, it is not a guaranteed result, what is essential is that  the people of Kashmir, would, at least repose faith in  and endorse credibility to the Commission  which in itself would be an achievement. What is required is the recognition of this hard reality. Reciprocity and flexibility of approach would lead to a policy of restraint and reassurance. Acknowledging and recognizing people’s feelings, including feelings of loss, guilt, shame, anger and fear and helping facilitate changes in social consciousness and in the institutions that were consciously or unconsciously complicit in these events, thus aiding in the prevention of similar events in the future would be a great service towards the nation and an equally great confidence building measure.

Political parties in Kashmir, since recent past, have been raising this issue but for their own vested interests as the polity in J&K like the conflict itself, has turned into a production house of exaggeration and gimmicks.  What is required are  the concerted efforts to restore the confidence of people in the system that of course has to play a pivotal role in addressing the problems inherited from the conflict in the state.

There was a time when the very phrase "human rights" represented, for a great number of world leaders, an insidious "western," not to say "Zionist," plot to undermine their titanic efforts to build utopia. Some of these leaders were communists, a few were Ba'athists, many more were populists and revolutionaries of one stripe or another, to be found reigning over countries from central America to southern Africa to north-east Asia.

There were important differences between all these colonels and generals and Secretary-Generals. What united them, though, was a contempt for those societies whose political arrangements encourage their citizens to look the state in the eye without fear, rather than nervously gazing up from a respectful distance. Indeed, the use of fear as a political tool by the state is what best distinguishes "closed" societies from -- flaws and all -- "open" ones.

These days, the rulers of closed societies have to think more creatively. Since talk of "human rights" has become too common to be rejected wholesale, they are obliged to co-opt and twist its language and concepts. The sorriest example of where such sophistry can lead is the UN Human Rights Council, whose membership roster includes Cuba and Russia, as well as three Arab states who have recently distinguished themselves by employing varying degrees of deadly violence against opposition movements: most egregiously, Libya, elected less than a year before the Gadhafi regime embarked on its current rampage, along with Bahrain and Saudi Arabia.

The Saudis, along with fellow Council member Qatar, have sent troops into Bahrain toquell the protests there. Anyone who stands up in Jeddah and declares the Saudi intervention in Bahrain to be an "occupation" is unlikely to see daylight again for a while. Ghastly as that is for the people who live there, that fact serves as a useful reminder to those of us living in open, liberal societies that the nature of human rights, for all the antics at the UN Human Rights Council, has not changed.

It is with the individual person, and not a nation, or a social class, or a religious faith, that human rights begins. If an individual is denied the political conditions to think, speak, write and act freely, then everything else in the human rights universe -- be it the right to food, or the right to live free from foreign occupation -- is rendered meaningless.

That conviction was what guided western human rights organizations during the Cold War. Arguably, it's needed even more now, as regimes such as Ivory Coast and Yemen engage in target practice against their own people in much the same way that East Germany's Stasi and Romania's Securitate did, while long-established offenders, like the Kim dynasty in North Korea and Robert Mugabe in Zimbabwe, seem as entrenched as ever.

It was a conviction that was manifestly clear in this congressional testimony from 1988, in which the human rights NGO Helsinki Watch criticized the Reagan Administration for having too "narrow a view of democracy," and for missing opportunities to promote the kinds of associations and institutions that free-thinking people create, namely, "an independent judiciary, a free press, functioning trade unions, opposition political parties."

Contrast that with the much-criticized 2009 report on Libya penned by Sarah Leah Whitson, a leading official with Helsinki Watch's successor, Human Rights Watch. Whitson identified the foundation run by Colonel Gadhafi's son, Seif al Islam, amusingly described by her as a "quasi-governmental organization," as the principal channel for reform in Libya. If one was being charitable, that conclusion could be described as misjudged, as Whitson herself recently admitted. Authentic change, as the dissidents of the Cold War period knew only too well, emanates from civil society.

That a significant segment of the human rights community has lost sight of the original purpose of human rights advocacy can be explained, at least in part, by the resurgence of "anti-imperialist" rhetoric in the years since the 9/11 atrocities. No less than John Dugard, a UN Human Rights rapporteur, declared that the three regimes most inimical to human rights were "colonialism, foreign occupation and apartheid." One can just imagine Mugabe and Gadhafi nodding eagerly in agreement.

There is, however, a new organization on the human rights map that might just be capable of resetting the moral compass. Advancing Human Rights, which announced its formation last month, is explicit that its focus will be, in the spirit of Helsinki Watch, upon "authoritarian countries without free speech or corrective mechanisms."

The Helsinki Watch connection is not a coincidence. The founder of Advancing Human Rights is Robert Bernstein, who for many years was the moving force behind Helsinki Watch and then Human Rights Watch. Bernstein very publicly broke with that organization in 2009, objecting to the disproportionate attention paid by Human Rights Watch's Middle East division to Israel, at the expense of research and reporting of the wider region. The current upheavals in the Arab countries are a tragic confirmation of the moral error he identified.

Because Bernstein's dispute with Human Rights Watch was triggered by the matter of Israel, there will doubtless be a chorus of critics who will accuse him of hijacking the human rights agenda to promote Israel's cause. Hyperbole like that, sadly, goes with the territory. What matters is the wider mission: aiding those struggling to convert closed societies into open ones. I can think of few causes more noble.