Introduction

In 2009 the International People’s Tribunal on Human Rights and Justice in Kashmir released a report entitled ‘Buried Evidence: Unknown, Unmarked and Mass Graves in Indian-Administered Kashmir’. The report documented the existence of 2700 ‘unknown, unmarked, mass graves’ containing over 2900 bodies in three districts across 55 villages in the part of the Kashmir region administered by India. 87.9 % of the bodies discovered could not be identified. In 2017, the State Human Rights Commission of Kashmir called for a detailed investigation to be completed within 6 months. Almost six years later, there has still been no political will to even initiate such an investigation, much less to uncover the truth and preserve evidence. Instead, in August 2019 the government revoked the special status accorded to the region by the Indian Constitution, a legal manoeuvre which most legal experts have termed unconstitutional. Hence, the questions the presence of these sites raises has been conveniently canopied within an official silence over the years. Article 34 (2) (b) of Additional Protocol I to the Geneva Convention requires the protection and preservation of grave sites in situations of armed conflict. Additionally, the convention categorically prohibits the mutilation and discretion of bodies. These grave sites not only require protection and preservation but also, require the intervention of ‘forensic expertise’ to uncover, collect and preserve evidence. Such forensic investigations have proved to be crucial in providing important evidence for successful prosecution of international crimes in the past. For example, forensic evidence from Bosnian mass graves greatly assisted in the conviction of Radovan Karadzic for genocide, war crimes and crimes against humanity in the International Criminal Tribunal for Former Yugoslavia. In this article, I firstly argue that the Indian state, by forgoing its responsibility to investigate these grave sites, suspends the dignity of those dead– combatants or otherwise – within a capricious form of necropolitical governance in a bid to obscure all questions of accountability and strongarm its political sovereignty. Secondly, I deconstruct the state discourse justifying such policies and refute its legal validity by employing provisions under International Human Rights and Humanitarian Law. 

Necropolitical Kashmir

In his seminal work, Necropolitics, Achille Mbembe extends Michel Foucault’s concept of biopower to include the sovereign power of the state to control, define and limit the mortality of its enemies, which often includes its own citizens. The romance of modern sovereignty, according to Mbembe, lies in the state’s power to categorize certain populations as the enemy, and thus to dictate who is able to live and who is to die. Categories of these enemy populations are divested of their political status and reduced to “bare life” causing their coercive removal from the ambit of ‘the rule of law’.  

In practice, necropolitics can be clearly and viscerally observed in contemporary Kashmir, where the Indian administration strictly controls and weaponizes many aspects of death and dying.  Starting in 2019, there has been a severe crackdown on the funerals of both foreign and local ‘militants’ in Kashmir, and since 2020, as many as 580 suspected rebels killed in encounters with Indian armed forces have had their bodies hastily buried in unmarked graves rather than returned to their families. The government has regularly used the rhetoric of national security to argue that such policies are necessary to ‘effectively’ mitigate law and order issues in the region. 

The crackdown is reflective of a state policy that authorizes blanket prohibitions against funeral gatherings for suspected militants, categorizing them as anti-national activities which threaten the security of the state. Individuals who participate in such funerals have been booked under draconian anti-terror laws such as the Unlawful Activities Prevention Act, 1967. In September 2022, the Jammu and Kashmir High Court notably rebuked such state policies; holding that offering funeral prayers for a slain militant cannot be construed as an anti-national activity so as to deprive these persons of their personal liberty guaranteed under Article 21 of the Indian Constitution.   

Notwithstanding the ruling, the continuance of blanket prohibitions on funerals reflects the Indian state’s necropolitical efforts to invisibilize the death of those who are engaged in an armed conflict with it. The government seeks to obscure their identity into something amorphous; a category of ‘an enemy’ who needs to be encountered in alleyways, or disappeared within revolving doors of detention. They no longer remain combatants entitled to protection under the laws of armed conflict. Instead, their death becomes a rhetorical device for the state to purportedly eradicate all challenges to its sovereignty by strong-arming its power in a way that makes any adherence to the rule of law irrelevant. 

State Discourse and its Legality

The report released by the Tribunal in 2009 highlights a detailed investigation into 50 alleged ‘encounter killings’ by the security forces in numerous districts of Kashmir, 49 of which were labeled as encounters with ‘local militants’ or ‘foreign insurgents.’ Following the enquiry, 47 of these encounters were proven to have been fake. The term ‘police encounter’ refers to the extra-judicial killing of individuals, usually already in custody, by police or security forces. More often than not, such killings are staged to look like an accidental confrontation, while in reality, they constitute the commission of unlawful killings by armed forces in the region. The lack of accountability for such killings in the region is not new, due to continued use of legislations such as the Armed Forces Special Powers Act (AFSPA) which grants additional power to the armed forces whilst safeguarding their impunity under law—with devastating effect. According to the Association of Parents of Disappeared Persons, over 8,000 persons have been subjected to enforced disappearances in the region since 1989. The majority of the cases remain un-investigated, with thousands of families still unsure if their loved ones are dead or alive. 

Whether it is enforced disappearances or the denial of proper burials, the Indian state’s narrative has rested upon the following two-fold claim, both elements of which have been identified by the tribunal in its report: Firstly, that the dead buried in unknown graves and the combatants targeted are ‘foreign militants’ who are infiltrating India from Pakistan, and secondly, that they are ‘rebel combatants’ residing in Indian administered Kashmir who are killed during encounter operations with the state. 

By categorizing those systemically targeted within these two categories, the government has sought to place them outside the ambit of the law, as though their very act of challenging state sovereignty can justify a complete and collective erasure of their humanity. Both these claims, I argue, are completely unfounded in law and only serve to further the necropolitical governance of the state machinery. 

First Contention: Foreign Militants

Common Article 2 to the Four Geneva Conventions recognizes the presence of an armed conflict between states when there is a resort to hostile armed forces by either party. Even if there is no current full-fledged war between the two countries as in the Indo Pakistani wars of 1947, 1965 and Kargil war of 1999, the incessant ceasefire violations since 2018, coupled with routine confrontations along the Line of Control, point to the presence of a continuing armed conflict.  Article 16 of the First Geneva Convention 1949, to which India is a signatory, records the obligation of every party to the conflict to take all possible measures to collect, search, preserve and evacuate the remains of the dead. If the remains are identified, the same needs to be shared with the other party to the conflict to ensure that families of the dead can be informed. In any case, parties are under an obligation to respect the remains of the dead and provide a decent burial according to their religious rites in ‘marked’ gravestones. (Customary IHL Rule 113). Therefore, even if the alleged militants can be targeted in accordance with the rules of international armed conflict, they cannot be denied proper funerals or buried in mass graves.  

Second Contention: Rebel Militants

The armed militancy from 1989 onwards has given rise to the mobilization of many local groups in the region, many of whom are armed and demand independence or accession with Pakistan. These groups have been involved in lethal confrontations with the state forces over the years– the frequency of which continued to rise in 2021 which led the government to arrest over a dozen members of these groups in January 2022.  Researchers monitoring the Kashmir conflict over the years have largely agreed that these confrontations have reached a certain threshold of intensity  so as to qualify them as a Non-International Armed Conflict under IHL. This means that the fact that the state is engaged in an armed confrontation with members of these groups does not absolve its responsibility of upholding the basic principles of humane treatment guaranteed to such persons under Common Article 3 to the Four Geneva Conventions. The section prohibits outrages upon personal dignity of persons. Additionally, substantive provisions of Common Article 3 are reflective of the principles embodied under Customary IHL which commands the  respectful treatment of the dead in an armed conflict, irrespective of whether they are combatants or not. Therefore, by categorizing them as rebel militants, the state cannot deny such persons the right to decent burial according to their religious customs. 

Conclusion

Any state’s treatment of those relegated to its margins is reflective of its commitment to the rule of law. There can be no poetry about a nation that camouflages the existence of mass graves within a culture of impunity. The government not only maintains an official silence on the issue but also weaponizes the same to construct a façade of normalcy in the region- evident in the way the government has attempted to obscure international scrutiny by hosting the G20 Summit in Kashmir, this year. Therefore, it becomes incumbent upon us to transcend these decades of silence, demanding accountability for the lives of those who have been disappeared and those who have been killed in combat—whether combatants or otherwise. Doing so is not a question of politics. It is a question about our commitment to human rights, even in the darkest hours.