Commission of Jurists' Report,
Rights in Kashmir
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.
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
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
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.
have been grave breaches of human rights
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.
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.
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.
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.
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.
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