30 Years Worth of Violations in a 49 Page Report

The report on Kashmir by the United Nations Office of the High Commissioner on Human Rights is probably the first serious report from an international statutory organisation on the restive state. The report, though short, summarises the realities of living under occupation on both sides of the Line of Control (LOC). The report states that in the region under Pakistan’s control, the human rights violations are 'structural', meaning that the law in Pakistan is used to deny the people civil liberties including democratic representation and freedom of speech as well as association. Whereas, the violations on the Indian side largely revolve around armed forces being used against a civilian population.

Though the Kashmir 'situation' on the Indian side of the LOC is often described in the mainstream media as a law and order issue, the report shows that such a view is far from the truth. Under the heading of 'Human right violations in Indian-Administered Kashmir', the report states 14 specific violations under corresponding sub-headings. The report begins with the death of Burhan Wani and the protests that followed. It then tells the story of the infamous 'pellet guns' – which the report correctly calls 12 gauge pump action shotguns – and the use of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (AFSPA) as well as the Jammu and Kashmir Public Safety Act, 1978 (JKPSA) to stifle dissent and hold the entire civilian population to ransom.

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The report came down heavily on the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (AFSPA) as well as on the Jammu and Kashmir Public Safety Act, 1978 (JKPSA). AFSPA was criticised for its twin provisions under sections 4 and 7 for denying justice to civilians and fostering State impunity. Section 4 empowers the security forces to use lethal force not only in self-defence, but also where their orders against assembly have not been complied with. Section 7, on the other hand, bars all prosecution against the forces without prior sanction from the Union Government. Reading these two provisions together makes it clear that unless there is a strong political will, in the absence of transparency and accountability, civilians can not expect justice when this law is in force. The JKPSA empowers the local civilian authorities to ban assembly and association and to enforce these bans through detaining all those violating the orders. The crux of this legislation is that such detention is not subject to judicial review.

The Military Courts and Tribunals have also been slammed for their inability to ensure justice to the aggrieved citizens. Being administrative in nature and exempt from civilian judicial oversight, it is clear that their functioning remains opaque. After the Supreme Court of India had allowed the armed forces to conduct their own investigations and prosecution for alleged human rights violations, their opacity became more apparent. In June 2017, the General Security Forces Court acquitted two members of the Border Security Force (BSF) for the extrajudicial killing of 16-year-old Zahid Farooq Sheikh in 2010. In the next month, the Armed Forces Tribunal suspended the life sentences and granted bail to five Army personnel despite their conviction by a Court Martial for the extrajudicial killing of three civilians in Machil, Baramulla District.

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The report also criticised the State's excessive use of force. The report indicated that the ‘Standard Operating Procedures to deal with Public Agitations with Non-Lethal Measures’ prepared by India’s Bureau for Police Research and Development recommend that security forces warn protesters before using non-lethal or lethal force; the recommendation has been completely ignored. The law enforcement agencies have used all kinds of force without any prior warning, chances are that this fuelled the already volatile public mood resulting in the protests lasting for more than a year.

The killings noted in 2018 occurred most commonly in two circumstances: near encounter sites, and during protests. Considering the mood that has prevailed in Jammu and Kashmir since Burhan Wani's death, it can be expected that the lethal force would be used in these circumstances. However, the report raised questions like whether the killings were extrajudicial or not. The State's position in these two circumstances would quite predictably be that those killed were impeding security forces from discharging their duties. The question then again is why it seems that the entire civilian populace is involved in this? What has pushed them this far?

The use of the pellet-guns has consistently been criticised throughout the report. The so called 'pellet-gun' has finally been called what it actually is: a 12 gauge pump-action shotgun. The report has noted that due to the nature of ammunition loaded, the trajectory of the pellets cannot be controlled beyond a particular distance. This means that even if the security forces were to aim low, one cannot ensure that the pellets will not end up in somebody's eye. Further, considering the fluid situation that prevails during 'stone-pelting', a person can come within lethal range of the gun in a matter of seconds, thus, even if it is determined a non-lethal option, it remains so only in theory.

Arbitrary arrests including those of children have also been noted in the report. The nature of these arrests violates the International Covenant on Civil and Political Rights (ICCPR) as well as the United Nations Convention on the Rights of Child (UNCRC). India is a signatory to both of these documents, thus in the case of Jammu and Kashmir, the Indian State appears to be violating its own self-imposed international obligations.

Torture is another action of the Indian State which violates the ICCPR. The report noted three instances of torture including the 'human shield' incident. First was the death of Shabir Ahmad Mangoo, a university lecturer who died after being beaten by security forces personnel. The 'human shield' incident which saw Farooq Ahmad Dar tied to an army jeep. Instead of taking note of the clear human rights violation – which incidentally is also a war-crime – the soldier, who used Dar as a shield, received an award. The third incident involved a manual labourer who was picked up by the 27 Rashtriya Rifles, tortured and released. In all of the cases of torture mentioned, no action was ever taken against the perpetrators other than a police investigation at the most.

Apart from torture, another colourful feature is the enforced disappearances. Civil society and human rights groups in Jammu and Kashmir allege that there are 8,000 cases of enforced disappearances. The government denies this and brings the number down to 4,000. The government's explanation is that these people have disappeared to receive arms training in Pakistan.  However, the report also took note of the mass graves that were unearthed in Northern Kashmir, where around 1,200 bodies were recovered.

The report also mentioned the violations to the right to health. On the one hand, it violates the International Covenant on Economic Social and Political Rights (ICESCR), yet another international agreement that India is a party to. The violations consist of both the State as well as civilians blocking ambulances from plying as well as the preventing medicines from reaching hospitals. The report also took note of the fact that many people who sustained 'pellet' injuries during the protests avoided hospitals for fear of being arrested within the premises.

The next violation dealt with concerned the restrictions on the right to freedom of speech and expression. This was manifested in the frequent blocking of mobile and internet services as well as the near three month ban on Kashmir Reader,allegedly due the stance critical of the government that the newspaper took during the protests.

The right to education has also been violated. On the one hand, the protests after Burhan Wani's death resulted in educational institutions being shut down due to the violence. On the other hand, the report mentioned that the security forces, on several occasions, occupied schools as staging grounds for their operations. In circumstances where the children were still attending the school despite the security forces' presence, a risk that the school could be a target for armed groups could become a reality.

Sexual violence in the report was almost exclusively discussed in the backdrop of Kunan-Poshpora. In February 1991, the 4th Rajputana Rifles allegedly gang raped around 23 women of the villages of Kunan and Poshpora in Kupwara district. Till date, the survivors are yet to receive justice. Appeals have been made to modify AFSPA so as to allow sexual violence to be investigated and prosecuted in civilian courts and to remove the requirement of sanction for sexual offences. However, the State seems intent on protecting the perpetrators of rape as no such proposals have ever been taken up.

The report was equally critical of the 'armed groups' operating in Jammu and Kashmir. Though, the Indian government has objected to terming them as 'armed groups' instead of 'terrorists', it still does not change the magnitude of the violence perpetrated on the people of Jammu and Kashmir. The report is deeply critical of the ethnic cleansing of Kashmiri Pandits during the initial phases of the armed insurrection in the late 1980s.

The significance of the report should not be lost in the din of objections over terminology and methodology. The UNOHCRH had repeatedly requested the governments of both India and Pakistan for unconditional access to Jammu and Kashmir and Gilgit Baltistan. The Indian government refused, and Pakistan government stated that access was conditional on India allowing the UNOHCHR into the India-administered areas. In this game of political posturing, as usual, it is the ordinary people who get crushed. The possibility that the government or the armed groups will act on the report and its recommendations is unlikely, however, the international community should take note, particularly mentioning it in the same breath as Palestine.