International Commission of Jurists' report,
1995 Human
Rights in Kashmir
Report of a Mission
by Sir
William Goodhart (United Kingdom) Dr. Dalmo de Abreu Dallari (Brazil Ms
Florence Butegwa (Uganda) Professor Vitit Muntarbhorn(Thailand)
Geneva, Switzerland
Conclusion
The members of the
ICJ Mission were the first representatives of any international human
rights organisation to be authorised by the Indian Government to visit
Kashmir in 1995, since the start of the popular upring in occupied
Kashmir in 1989..
After visiting
Delhi, the ICJ mission spent two days in Srinagar and two days in Jammu.
Regrettably, the Indian authorities severely restricted its movements in
Srinagar. The ICJ mission had been assured in Delhi that it would be
allowed to hold meetings in a hotel in central Srinagar, to which anyone
who wished to meet the mission would have access. However, this
assurance was overruled by Lt. Gen. Zaki, the Governor’s security
adviser in Srinagar, who also refused to allow the members to accept an
invitation to visit the Bar Association’s offices in the Court
precinct. As a result, the ICJ mission had to hold its meetings in a
State guesthouse in a military cantonment outside Srinagar.
Recent years
have been a tragedy for Kashmir. One aspect of the tragedy manifested
itself to us on a fine summer evening in Kashmir, looking out from an
empty Pari Mahal over an empty Dal Lake, once swarming with activity.
Another aspect manifested itself in the refugee camps of Jammu and Azad
Kashmir, where victims of the tragedy demonise each other and maimed men
and assaulted women are presented to tell their well-rehearsed stories.
International
standards of human rights pertain to Jammu and Kashmir as elsewhere.
Significantly, the 1948 Universal Declaration of Human Rights
establishes universal benchmarks in relation to civil, political,
economic, social and cultural rights for measuring the practices of
States against international norms.
In regard to
India, it is all the more significant that the country is also a party
to the 1966 ICCPR which reinforces universal standards in the civil and
political field, closely linked with the Rule of Law. The human rights
propounded in this instrument include the right to self-determination,
the right against arbitrary arrest, security of the person, freedom from
torture, and equality before the law. India is also a party to the 1966
ICESCR and the 1965 International Convention on the Elimination of All
Forms of Racial Discrimination. Regrettably, Pakistan has not become a
party to either the ICCPR or the ICESCR.
At the
time of accession to the ICCPR, India showed her reluctance to accept
the totality of human rights standards by entering reservations to
articles 9 (right against arbitrary arrest and detention), 19 (freedom
of expression), 21 (right of peaceful assembly) and 22 (freedom of
association). Articles 19, 21 and 22 were made subject to reasonable
restrictions referred to in article 19 of the Constitution of India.
Of particular
concern has been the failure of India to abide by the standards set by
the ICCPR because of a variety of legislative discrepancies dealt with
below. These have been aggravated by numerous malpractices on the part
of governmental personnel operating in Jammu and Kashmir, documented
extensively but both national and international sources.
India has
treated the situation of Jammu and Kashmir as a state of emergency but
has avoided classifying it as such in international terms, thereby
obstructing the call for accountability and transparency inherent in the
comments of the Human Rights Committee.
India has been
reluctant to classify the conflict in Jammu and Kashmir as a
non-international armed conflict under the Geneva Conventions for fear
of internationalising the Kashmir issue. At the time of the ICJ
mission’s visit to India, it had not allowed the International
Committee of the Red Cross (ICRC), a key international organisation,
offering protection and assistance in such situations, to operate in
Jammu and Kashmir. This has regrettably prevented access to affected
parties and has impeded the quest for assistance and protection of
innocent persons.
The special
status of Jammu and Kashmir has been eroded in recent times by
legislative and executive encroachment form India; article 370 has been
diluted by India so as to confer greater powers upon itself to
administer Jammu and Kashmir.
Jammu and
Kashmir Public Safety Act 1978
By this Act, the
Government may detain a person “with a view to preventing him from
acting in any manner prejudicial…to the security of the State and the
maintenance of public order.
Terrorist
and Disruptive Activities (Prevention) Act (TADA) 1987
The Act established
special courts or “designated courts” to try those arrested for
terrorist acts and disruptive activities. It confers broad discretion
upon the authorities to arrest persons and to try them.
Armed Forces
Special Powers Act 1990
This Act gives
the Governor or the Central Government power to declare the whole or
part of the State to be a disturbed area and to authorise the use of the
armed forces in aid of the civil power.
Other laws
Other laws have been
promulgated or revived recently with negative impact on human rights. In
February 1992, an ordinance was issued under Article 370 of the Indian
Constitution extending presidential rule in relation to Jammu and
Kashmir from the previous period of three years to four years; this
prolonged the use of presidential rule as opposed to reversion to an
elected system. In July 1992 the Indian Parliament passed the Jammu and
Kashmir Legislature (Delegation of Power) Bill which transferred
parliamentary powers to deal with that state to the President of India.
In 1992, the Jammu and Kashmir Government also recommended that the
central government should revive a variety of old laws so as to be able
to administer the region more closely. These included the Jammu and
Kashmir Criminal Law Amendment Act, which permitted the confiscation of
property of unlawful bodies without the need to seek approval from a
designated tribunal.
There have been grave breaches of human
rights
by
the Indian security forces in Kashmir.
Extra-judicial
executions
The deliberate
killing of people in police or military custody is simple murder and is
the most serious of all the allegations against the security forces. The
ICJ mission has no doubt that such killings have occurred on a
significant scale. What is far more difficult is to estimate the
numbers, particularly as the security forces often claim that the victim
has been killed in “crossfire”.
Torture
Numerous incidents
of torture committed by government personnel have been documented by a
variety of sources.
Torture is virtually
a matter of routine use in interrogation. The forms of torture range
from electric shocks to beatings, other forms of violence and sexual
abuse. To prevent hospitals from documenting torture evidenced by
patients’ symptoms, since 1990 medical records have been removed from
hospitals.
Disappearances
These practices
occur sporadically. Most of the disappearances do not involve killing
but arise because a detainee has been held incommunicado or been moved
out of the State without notice. This is compounded by the fact that the
applications for habeas corpus are not responded to effectively by the
courts.
Rape
The most serious
allegation relates to the village of Kunan Poshpora, where it is alleged
that at least 23 women were raped by soldiers of the 4th Rajputana
Rifles on the night of 23/24 February 1991.
The Indian
Government was initially slow to take action against members of the
security forces accused of rape, apart from one case where a Canadian
tourist was raped. In recent months, it appears that more action has
been taken. Many rapes took place in the course of crackdowns, where men
and women in the districts being searched were separated. Changes in
crackdown procedure - including the presence of women members of the
security forces with the units conducting the crackdowns - appear to
have had some effect in reducing the number of rapes. There is no
evidence that the government has encouraged rape or used it as a
deliberate policy. It would indeed have been insane to do so, as nothing
would be more calculated to strengthen support for the militants.
Assaults
Innumerable assaults
have been witnessed in Jammu and Kashmir. Many are in relation to the
cordon-and-search operations, which often end in violence. Particularly
vulnerable groups included women and children.
Doctors and
other medical personnel have also been assaulted and harassed by
security forces while trying to help the injured. The patients
themselves have been assaulted while undergoing treatment and have at
times been prevented from receiving medical care. These assaults have
taken place when security forces raid hospitals.
Destruction
of property and theft
There are many
incidents of arson by the security forces. These have led to hundreds of
houses and shops being burnt, along with other property such as barns
and haystacks. There have also been many cases of looting and theft.
Constraints
upon personal and family life
In substance, there
is a state of emergency in Kashmir and this undermines much of daily
personal and family life. The curfews and instances of violence already
noted prevent children from attending school. The abuses committed by
government forces against men and women disrupt personal and family life
continually. Health services have also been affected by raids and
curfews, resulting in depletion of health personnel, particularly in
rural areas. The situation is now aggravated by the fact that militants
are increasingly violent towards innocent civilians.
Conclusions
Regarding the
right of self-determination
The peoples of the
State of Jammu and Kashmir acquired a right of self-determination at the
time of the partition of India.
The right has neither
been exercised nor abandoned and therefore remains capable of exercise.
Full or limited independence for Kashmir is a possible option.
The parties should be
encouraged to seek a negotiated solution to be put to the peoples of the
state for ratification in a referendum.
Both India and Pakistan
should recognise and respond to the call for self-determination for the
people of Jammu and Kashmir within its 1947 boundaries, inherent in the
relevant United Nations resolutions. The United Nations should
re-activate its role as a catalyst in this process.
