Human Rights Violations in Kashmir

By Tariq Rizwan

A series of meetings that took place between the two countries top brass led to the resumption of stalled dialogue process between India and Pakistan, as announced by Sushma Suraj, India Foreign Minister on the occasion of Heart of Asia Conference in Islamabad on Wednesday, 9 December, 2015. A ‘chance meeting’ between the two Prime Ministers in Paris and surprise talks between their national security advisers in Bangkok led to a formal meeting between their top foreign policy officials which produced a major agreement to resume the comprehensive dialogue process. “I understand you all have been waiting for some big news, so we have big news for you…. Pakistan and India have decided to resume the composite dialogue,” India’s External Affairs Minister Sushma Swaraj told reporters after her two-hour-long talks with Prime Minister’s Adviser on Foreign Affairs Sartaj Aziz. The top Indian diplomat, who also met Prime Minister Nawaz Sharif, said the process would have a new name: ‘Comprehensive Bilateral Dialogue’.

According to a joint statement issued by the Foreign Office, it would cover peace and security, confidence building measures, Jammu and Kashmir, Siachen, Sir Creek, Wullar Barrage/Tulbul Navigation Project, economic and commercial cooperation, counter terrorism, narcotics control and humanitarian issues, people-to-people exchanges and religious tourism. This has raised a spark of activism across South Asia.

The political circles and intellectuals from both countries have kept their fingers cross to bear the fruits in the near future. Indeed, the human rights abuses in the Indian Occupied Jammu and Kashmir continued unabated. It includes mass killings, forced disappearances, rape, torture and sexual abuses. Apart, the last few months witnessed increased level of political repression and suppression of freedom of speech. Indian Army, Central Reserve Police Force and Border Security personnel have been carrying the worst kind of human rights abuses in the state. The number of civilian population killed in various military operations has been estimated to the range from 16,725 to 47,000 in Jammu and Kashmir. The incidents of violating ceasefire on Line of Control have witnessed an upward trend in the recent past. Diplomatic cables obtained by WikiLeaks revealed that the ICRC had been briefing foreign diplomats in New Delhi of brutalities but of no avail.

Despite repeated denial from Indian Army, human rights abuses in Jammu and Kashmir have been found “correct and motivated". Human Rights Watch regular annual reports revealed that Indian security forces "assaulted Kashmiri civilians during search operations, tortured and summarily executed detainees in custody and murdered civilians in reprisal attacks". Rape was regularly used as a means to "punish and humiliate" communities.  A 2010 US State Department report stated that the Indian Army in Jammu and Kashmir had carried out extrajudicial killings of civilians and suspected insurgents. The report also described killings and abuse being carried out by insurgents and separatists. In 2010, statistics presented to the Indian government's Cabinet Committee on Security showed that for the first time since the 1980s, the number of civilian deaths attributed to the Indian forces was higher than those attributed to terrorist actions. 

A working group to inquire into human rights violations in Jammu and Kashmir comprising Dr. Kamal Mitra Chenoy, Associate Professor, School of International Studies, Jawaharlal Nehru University, New Delhi, as Convenor; Dr. Ambrose Pinto, S.J., Executive Director, Indian Social Institute, New Delhi, and Shri Zafar Iqbal Manhas, columnist and cultural activist, Srinagar, as members; was constituted at the request of the Kashmir Foundation for Peace and Developmental Studies, Srinagar. The Group visited Srinagar, Chithisingpora, Pahalgam, Jammu, Akhnoor, Rajouri, Surankote and Poonch and endorsed the reports about wide spread abuses in Indian occupied J&k. The group report says that the continued misuse of this law, and the exemption from prosecution it provides to military personnel, is a major source of human rights violations by army formations in the State. They dedicated their report to the long suffering of the people of Jammu and Kashmir, with the fervent hope that it might contribute in ending of the tragedy.

The Kashmiris feel alienated from India and its puppet state government who are viewed as agents. State elections are generally believed to have been rigged in favour of the ruling party, the greater part of the autonomy given to the Indian occupied state of J&K was systematically taken away by successive Union governments. Regional dimensions of the state and various sub-regional aspirations therein have been always tended to be ignored or overshadowed by the priority of national integration. The major Act that governs military action in Jammu & Kashmir is the Armed Forces (Special Powers) Act, 1958 [as amended in 1972]. Human rights activists have long argued that this Act is unconstitutional and violates international humanitarian law. The Indian Supreme Court has, like in the earlier case of TADA, upheld the validity of the law, but in view of the potential abuse of human rights, has laid down some detailed guidelines for its use. Nonetheless, we believe this is a ''lawless law" which violates both the Constitution and international law.

Experts in the UN Human Rights Committee, which met in Geneva in March 1991, were categorical that this Act is volatile of several Articles of the International Covenant on Civil and Political Rights to which India is a signatory. In any case, human rights activists have consistently held that the Act is also volatile of the Constitution. It, like TADA, violates Articles 14 and 21 of the Fundamental Rights, and is derogation from Entry 1, List II of the Seventh Schedule. Article 13 which voids all laws inconsistent with the Fundamental Rights is infringed.  Human rights activists and others often argue, that since the militants do not accept either the Indian Constitution or Indian law, these do not apply to them, and as such their human rights violations, as it were, cannot be criticized, as violations as such, since they have not violated anything they themselves have accepted as law, or as a valid standard. In this vein, it is argued that violations by the militants, or individual terrorism, should not be the subject of study, since Indian law applies only to security forces and the Indian state, who are instead guilty of state terrorism. This betrays an ignorance of international humanitarian law all of which applies to all combatants, militant or statist. The international legal instruments including the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, Geneva Conventions, etc., which India has signed, apply to both the Indian forces as well as to the militants.

The resumption of ‘Comprehensive Bilateral Dialogue’ has provided a sigh of relief to the local populace across Kashmir. The only real political solution to human rights atrocities is the cessation of hostilities in Indian Jammu & Kashmir which can lead to a peaceful plebiscite in the volatile valley. Failing that some measures are possible that will reduce, but not completely eliminate, human rights violations. Some of the prime confidence building measures are to withdraw the 0.7 million Indian troops from the valley, Public Safety Act and other draconian laws. As the Armed Forces have sufficient powers under other laws to function adequately. Hold independent referendum or plebiscite under the supervision of international community to allow the people of Jammu and Kashmir joining either India or Pakistan. Moreover, enable the International human rights bodies including Amnesty International, Human Rights Watch and others to investigate alleged human rights violations in the State.

The writer is a free lance journalist based in London.