Portal de Periódicos da CAPES

REPRODUCING REGIMES OF IMPUNITY

2010; Routledge; Volume: 24; Issue: 1 Linguagem: Inglês

10.1080/09502380903221117

1466-4348

Haley Duschinski,

Global Security and Public Health

Abstract In India, the phrase 'fake encounter' refers to the extrajudicial killing of a civilian followed by the official claim that the victim was a Pakistani infiltrator killed in a legitimate military encounter with police or army forces. This article explores the widespread pattern of fake encounters in Kashmir Valley in order to shed light on the processes through which violence and terror become fictionalized and fantastic, with Kashmiri bodies gaining a heightened visibility in a falsified form within a cultural imaginary of national security interests and public safety concerns. Identifying Kashmir Valley as a state of exception, I examine how the suspension of the rule of law gives rise to new agents and hierarchies of power and authority and new patterns of criminalization and paramilitarization throughout Kashmiri society. I also consider how the informalized practices of forced disappearance, fictionalized terror, and impunity for violence are produced and reproduced through the strategic manufacturing of public consent for violence against Kashmiris throughout Indian society at large. Keywords: violencelawimpunityexceptiondisappearancesjustice Acknowledgements First and foremost, the author thanks Kashmiri community members, especially human rights lawyers and activists, who so graciously and patiently shared their stories and perspectives to make this research possible. The author is grateful to the following colleagues for offering very useful critical commentary on earlier drafts of this article: Victoria Bernal, Michelle Brown, Diane Ciekawy, Elizabeth Collins, Chris Fahl, Bruce Hoffman, Lisa Howison, Ruhi Khan, Richard Kraince, Cynthia Mahmood, Ann Tickamyer, Edna Wangui, and Risa Whitson, and two anonymous reviewers at Cultural Studies. All shortcomings in this article remain the sole responsibility of the author. Notes 1. Human rights organizations have provided extensive documentation of faked encounter killings in various parts of India. See Human Rights Watch (2008b Human Rights Watch 2008b 'These Fellows Must Be Eliminated': Relentless Violence and Impunity in Manipur , September New York , Human Rights Watch . [Google Scholar]) on Manipur, PUCL (2003 People's Union on Civil Liberties (PUCL) 2003 Fake Encounter in Sammelan Market, Aashiaanaa Nagar, Patna , Delhi , PUCL , [online] Available at: http://www.pucl.org/Topics/Police/2003/ashiana-report.htm (accessed 11 November 2008) . [Google Scholar]) on Bihar, Human Rights Watch (2008a Human Rights Watch 2008a ' Being Neutral Is Our Only Crime': Government, Vigilante, and Naxalite Abuses in India's Chhattisgarh State , July New York , Human Rights Watch . [Google Scholar]) on Chhattisgarh, and Amnesty International (2007 Amnesty International 2007 Five Years On: The Bitter and Uphill Struggle for Justice in Gujarat , ASA 20/007/2007, March , London , Amnesty International . [Google Scholar]) and PUCL (2004 People's Union on Civil Liberties (PUCL) 2004 One More Encounter for Modi's Sake? , Delhi , PUCL , [online] Available at: http://www.pucl.org/Topics/Religion-communalism/2004/ahmedabad-encounter.htm (accessed 11 November 2008) . [Google Scholar]) on Gujarat. Human Rights Watch (1999 Human Rights Watch 1999 Broken People: Caste Violence against India's 'Untouchables' , March New York , Human Rights Watch . [Google Scholar]) highlights fake encounters targeting Dalits in relation to the Naxalite threat. The 2006 Annual Report of the Asian Centre for Human Rights (2007 Asian Centre for Human Rights 2007 Indian Human Rights Report 2006 , S. Chakma , Delhi , ACHR , [online] Available at: http://www.achrweb.org/reports/india/AR06/INDIA-AR2006.pdf (accessed 10 November 2008) . [Google Scholar]) documents fake encounters in Andhra Pradesh, Karnataka, Manipur, Maharashtra, Meghalaya, Punjab, Tripura, and Delhi, in addition to Jammu and Kashmir (J&K). On encounter killings, PUCL (2007 People's Union on Civil Liberties (PUCL) 2007 Encounter Culture and Accountability of Police , Dehli , PUCL , [online] Available at: http://www.pucl.org/Topics/Police/2007/encounter_culture.html (accessed 11 November 2008) . [Google Scholar]) states that 'according to National Human Rights Commission all over the country (barring Jammu and Kashmir) 83 people died in encounters with police in 2002–03 while in 2003–04 there were 100 deaths. The number reached 122 by 2004–05. Uttar Pradesh maintained an upward trend with 41, 48 and 66 deaths respectively in three years followed by Andhra Pradesh that had 41 deaths during this period. Even a peaceful state like Uttrakhand reported 12 encounter deaths in these three years.' 2. Specifically, Benjamin writes that 'the law's interest in a monopoly of violence vis-à-vis individuals is not explained by the intention of preserving legal ends but rather by that of preserving the law itself; that violence, when not in the hands of the law, threatens it not by the ends that it may pursue, but by its mere existence outside the law' (Benjamin 1978, p. 281). 3. The amended Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, submitted to the United Nations Commission on Human Rights on February 8, 2005, defines impunity as: 'the impossibility, de jure or de facto, of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.' 4. An example is the Jammu and Kashmir Prevention and Suppression of Sabotages Act of 1965. 5. It is important to note here that Jammu and Kashmir maintains 'special status' under Article 370 of the Indian Constitution. Over the decades, there has been a pattern of constitutional changes designed to erode the provisions that frame the 'special status' of the state. 6. A particularly notable event took place when the Jammu Kashmir Liberation Front (JKLF) carried out the kidnapping of Rubiyya Sayeed, the daughter of the newly-elected Home Minster in the Indian government. Indian security forces responded to the kidnapping and other escalating acts of violence by carrying out a brutal house-by-house search operation on the night of January 19. When Kashmiris gathered together in the streets of Srinagar to protest against this warrantless – and therefore illegal – state action the following day, state security forces opened fire on the demonstrators, killing at least 35 people. Human Rights Watch (2006 Human Rights Watch 2006 Everyone Lives in Fear: Patterns of Impunity in Jammu and Kashmir , 18 , no. 11 (C), , September New York , Human Rights Watch . [Google Scholar]) cites this act of state repression as the turning point in the conflict, emphasizing that no known action has been taken against the security force officers who ordered and conducted the shootings, and that no public inquiry has been taken in regards to the incident. 7. The AFSPA is a critical mechanism through which the colonial technology of jurisprudence of emergency has been written into and embedded within the normative structure of the post-colonial state. For further reading, see Hussain Nasser's (2003 Nasser, H. 2003. The Jurisprudence of Emergency: Colonialism and the Rule of Law, Ann Arbor, MI: University of Michigan Press. [Google Scholar]) discussion of the way in which the British colonial government in ideology and practice utilized the rationale of supreme necessity not covered by regular law as a justification of legal exceptionalism. 8. Dilnaz Boga and Aliefya Vahanvaty portray the Indian army occupation of schools in the Kashmir countryside in their film Invisible Kashmir (2005). 9. This was not the first time that public attention had turned to these issues. In the Pathribal case, the army claimed to have killed five 'terrorists' who they said were responsible for massacre of Sikhs in Chittisinghpora, on the arrival of then US President Bill Clinton on March 25, 2000, to New Delhi. The killings were later revealed to be fake encounters. Several similar stories have captured brief media attention in recent years.