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.

 

INDEX

[ Sign Our Guest Book ]  [ View Our Guest Book ]

Webmaster : Farhan Wilayat Butt