Indian People’s Tribunal in New Delhi

From Countercurrents.org, “Report on Human Rights Violations in Kashmir

“Human Rights Law Network and ANHAD came together to offer a platform to the victims of gross human rights violations in the conflict-torn Kashmir Valley, which culminated in a comprehensive documentation of the anguish and grievances of a generation that has gone under the gun. The report of the two-day ‘Indian People’s Tribunal on Human Rights Violations in Kashmir’, organized in Srinagar in February 20-21, 2010, was released on September 8, 2010 in New Delhi.”

FINDINGS

I. Militarisation

“In Kashmir, there is one soldier for every twenty people. There are 5,00,000 armed troops, 3,00,000 army men, 70,000 Rashtriya Rifle soldiers, 1,30,000 central police forces as against the total population of 1 crore. In the past 20 years, a generation of Kashmiris has grown with soldiers at every street corner “often even in their living rooms” (Sunday Times of India, 13th June, 2010). The grievance of the people is that instead of confining the role of the military and security forces to that of external defence and as against militants, it is regularly and continuously used for domestic repression; and as Professor Hameeda Nayeem says : “that has transformed the Indian state into a source of deep insecurity for the citizens – as instruments of the persistent violator of human rights and converted the Indian military into an illegitimate agent of repression. Both in turn seriously undermine the democratic credential of the state.”

This excessive militarization has resulted in wiping out all space for the exercise of democratic rights by the people, the result being terrorization of the people at large. This has resulted in ruthless action on all dissent, and at the same time the military indulges in acts of violence against people with impunity.

We are of the view that all these acts of violence against innocent people are violations under the Geneva Convention, 1949, to which India is a party. The provisions of the Common Art.3 of the Four Conventions dealing with “armed conflicts not of an international character” occurring within a State require the parties to treat humanely all persons taking no part, or not being able to take active part in the hostilities….; and further the parties are prohibited from indulging in violence to life and person, in particular murder of all kinds, and cruel treatment and torture.”

II. Draconian Laws

Militarisation is invariably accompanied by Draconian laws. Together they have such a cascading effect that all human rights and democratic rights get washed away. This is what happened in Manipur, Assam, Kashmir and other places.

In Manipur, the Armed Forces (Special Powers) Act, 1958, has been in force for five decades. It was first enacted to contain Naga dissidence. It was introduced in Assam in 1980 and in Kashmir in 1987. Section 4 of the Act states that armed forces officers have only to form an “opinion” to consider what may be necessary, and then on the basis of such “opinion” they “can fire upon or otherwise use force, even to the causing death against any person” and they can “arrest, without warrant any person” and “enter and search without warrant any premises” at any time, and use force to achieve this objective. S.6 of the Act gives them full protection against any prosecution or legal proceedings in respect of anything done or “purported to be done” in exercise of the powers conferred by this Act. The result is that in all these States, and of course, in Kashmir, arbitrary arrests, detention, torture and custodial deaths, rape and midnight raids into homes and disappearances have become routine.

The other Act which is resorted to silence all protest and dissent is the Jammu and Kashmir Public Safety Act, 1978. This law is especially draconian in nature, falling far short of meeting international human rights standards, and has become notorious for its rampant misuse at the hands of the armed forces. Under this Act, the maximum period of detention is two years, without trial, for “persons acting in any manner prejudicial to the security of the State.” What would constitute such an action is again left to the better judgement of the arresting agency or official, thereby giving sweeping powers to the security forces to arrest and detain at their pleasure.

Prisons in Jammu and Kashmir and beyond are full of detainees booked under the infamous PSA, with reports suggesting that even minors have been arrested and detained under this law on a number of occasions. Furthermore, very often the PSA is slapped on a person again and again, at the end of successive periods of two years, thereby making the actual period of detention much longer. Farooq Ahmed Dar, one such detainee, had to spend sixteen years in prison before he was finally released in 2006. There have been various instances where political leaders and common people have been slapped with successive detention orders despite the fact that Courts keep on quashing them. This is done only with a purpose and intention not to release the detenue.

III. Disappearances

One other impact of militarization and arbitrary detention is large scale custodial deaths, extra-judicial killings and enforced disappearances. We have the testimony of M/s Parveena Ahangar, who is the Chairperson of the Association of Parents of Disappeared Persons (APDP), which clearly establishes that from about 1989, about 8-10,000 persons have just disappeared. Many of them were killed while in custody of the army or the security men. One Rashid Billa (SDPO) at Sowa is reported to have killed over 512 persons extra-judicially. Whenever and wherever the next of Kin went to the police stations or army camps to enquire, or to claim the bodies, they were either threatened or tortured. Some had to pay bribes to get information. What is important is that there has been no proper investigation to apprehend the culprits and to punish them.
Mohd. Yasin Malik (Chairperson of J&K Liberation Front – JKLF) says that he took 150 victims of disappearances to Delhi; but they were abused and black ink was thrown over him. The fact remains that no serious investigation was done even by the Central Government.

He also pointed out that the worst sufferers were women and children. He said : ‘they cannot say whether they are widows or whether their husbands are just missing. Neither can the children call themselves orphans or say that their father is still alive…this is what I conveyed to the PM of India. This is the primary case…the Kashmiri women; the ones who can neither say they are wives or widows. Tell what you are! Are you a widow or are you still married?'”

IV. Rape

“Militarised environments expose women to serious forms of dehumanization. The masculinity cult that pervades military establishments are intrinsically anti-female and therefore create a hostile environment for women. Rape becomes a common feature in such a situation. In all such cases there have been no investigations. There are complaints pending from 1991. it appears that in 1991 about 100 women, including minors and the elderly (between 13 to 80 years), the pregnant and disabled were raped in Kunan Poshpara, Kupwara by the 4th Rajputana Rifles, during a search operation. However, till today no action has been taken against the culprits, despite several reports in the newspapers and journals, and also by various NGO groups, both national and international.”

V. Plight of the Disabled

“Throughout the conflict, people have been maimed and disabled due to the indiscriminate firing of security forces during even non-violent protests. People have also been disabled during interrogations where torture was used. We heard the testimonies from Bijbehara, where forces had indiscriminately opened fire on peaceful demonstrators in 1993. Many injured persons have been disabled for life and have suffered mentally, physically, and financially. Hardly any steps have been taken for their rehabilitation.”

VI. Failure of all Democratic Institutions and Redressal Mechanisms

“Routine criminal investigations – a key function of the police – are among the first to deteriorate under militarization. All complaints against the army men just remain without any investigation. As we have seen above, under AFSPA, the army can shoot, kill, or do any heinous act, and they get protection; and the police become helpless. This also leads to a situation where the police acquire a taste for impunity, when they have to work within a military environment. This is exactly what has happened in Kashmir. Here, the rules do not operate as laid down in the statute books. For example, we heard testimonies from the victims, that FIRs filed by them were distorted by the police to accuse the victims themselves. In some cases, the police just refuse to record FIRs and the victims remain helpless. The police appear to be not bothered about the complaints from the victims, because they know that no one will question them.

This has also affected the Judiciary. No criminal court could be in a position to do proper justice, with impunity for the actions of the army, and with no investigation being possible by the police. It appears that in 1993 there were 7000 habeas corpus petitions pending in the Jammu & Kashmir High Court. Some of the petitions are still pending. In about 2001, there were 35000 civilians under detention and quite a number of them still continue to be inside, while the Courts remain judicially paralytic. In quite a number of cases where the victim had been killed, the courts have not even awarded any compensation to the next of kin. We have also some cases where the complainants have been made to go from one court to the other for nearly two decades, with no relief whatsoever. Many of them feel that they would get no justice through the courts.

Even the National Human Rights Commission (NHRC) and the State Human Rights Commission (SHRC) are not in a position to do anything, inasmuch as they have no power to investigate or to take any action on any complaint of violation o human rights by the army. Even when complaints were made to the SHRC, it has failed to exercise its powers proactively to provide justice to the victims.

Needless to say that the Executive and the Legislature were more involved in playing power politics than in rescuing the people from gross human rights violations.”

RECOMMENDATIONS

“1. Withdraw the Armed Forces (Special Powers) Act, 1958 (AFSPA) and the Jammu & Kashmir Public Safety Act, 1978 (JKPSA)”

“2. Minimise the number of Army men”

“3. The need for a Special Judicial Authority”

“4. No licence to kill”

“5. Need for rehabilitation”

“6. Establishment of Fast Track Courts”

“7. Release all detenues”

“8. Scheme for Witness Protection”

“9. Establish ‘Grievance Cells’”

“10. The need for dialogue with the people”

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