Kashmir
Human Rights Violations in Jammu & Kashmir - A Report
Written for the Working Group on Kashmir by Dr. Kamal Mitra Chenoy, the work for this report was done under the auspices of the Kashmir Institute of Peace and Developmental Studies [Srinagar], before the declaration of Ceasefire by the government. A summary of this was published in their magazine New Hope [Srinagar].
COMMENTS PRINT

Introduction

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 in August 2000. The Group is grateful to Shri Somen Chaudhury for research assistance.

The Group visited Srinagar, Chithisingpora, Pahalgam, Jammu, Akhnoor, Rajouri, Surankote and Poonch, between August 26 and September 3, 2000. It met a wide cross section of officials including in the Army, paramilitary forces and police, citizens from various walks of life, and victims of the violence. We are deeply grateful to our informants who frankly shared their experiences and opinions with us, often despite the fear of the gun. But for them, this report could not have been written. We also record our appreciation of the Kashmir Foundation for Peace and Developmental Studies, Srinagar, which consistently gave unstinted support to our Group, while encouraging us to arrive at independent judgements at every stage. Hence, the views expressed herein are those of the Group, and the responsibility for all opinions as well as any shortcomings in the report is entirely our own.

For informed observers of Jammu and Kashmir, and many of its citizens, little of what this report contains is new. But much of what may seem common knowledge, particularly in the Valley, is not well known in the rest of India. We believe if the Indian public comes to realize the extent of human rights violations in the State, public pressure to curb such violations will mount. But this report is unusual on one specific count. Unlike most human rights reports, it also describes and indicts human rights violations by the militants. While the militants may reject the Indian Constitution and Indian law, they have no moral or legal right to violate the universally recognized canons of international humanitarian law. To the extent they do, they are also violators of human rights and must be criticized as such.

We dedicate this report to the long suffering people of Jammu and Kashmir, with the fervent hope that it may contribute its mite to the ending of this tragedy.

The Political Background

It is clear to any dispassionate observer, that the insurgency in Jammu and Kashmir is the result of the alienation of a substantial section of the population from the Indian state and from their own elected representatives, seen as agents of the former. As is well known, Jammu and Kashmir acceded to the Indian Union under very special circumstances in 1947, with Maharaja Hari Singh's hands being forced by the Pakistani-backed invasion of tribal raiders. To fight whom the maharaja needed the services of the Indian army.

Despite the role of Sheikh Abdullah, in rallying the Kashmiri people to support the accession to India, a suspicious Indian government incarcerated him for most of the 1953 to 1975 period until the Indira-Sheikh accord of 1975. In the interim period, making use of pliable governments elected in elections generally believed to have been rigged in favour of the ruling party, the greater part of the autonomy given to the State under Article 370 as enacted and as existing in 1952, was systematically taken away by successive Union governments.

Most of the remedial steps on the Kashmir issue were administrative. In the policy on Kashmir integrating the State into India remained the ultimate objective. The socio-psychological aspects and the aspirations of the Kashmiri communities until recently have not got prominence in the Kashmir policy. 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.

This has deepened the popular alienation in the Valley and increased anti-Indian sentiments. Though Pakistan continued to support secessionist forces in Kashmir from 1947 onwards, the critical event that led to a major insurgency in the Valley from 1989, is widely believed to be the elections of 1987.

There was a major challenge to the ruling National Conference from a coalition of parties grouped under the Muslim United Front [MUF] in the Valley. Contrary to popular expectations and predictions, the MUF was routed in elections believed to have been massively rigged by the National Conference [NC]. This sharpened popular alienation from both the Union government as well as the major pro-Indian party: the NC, and thus reportedly created the political and social base for the bloody insurgency that persists even today.

The insurgency and counter-insurgency operations by the Army, para-military forces, police and surrendered militants have created a vicious circle of violence in which, according to some estimates, as many as 60,000 people have died. The record of human rights violations is a direct consequence of this bloody, and in part, fratricidal conflict.

Counter-Insurgency Laws: Some Legal Questions

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 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.

The Act gives no precise definition of "disturbed area." The declaration of any area as 'disturbed' under Section 3 is the prerogative of the Governor of the State or the Central Government. The State legislature has absolutely no jurisdiction in the matter, though under the Constitution 'public order' is a State subject [Seventh Schedule, List II, Entry 1]. Under Section 4(a) of the Act, even a non-commissioned officer can order his men to shoot to kill "if he is of the opinion that it is necessary to do so for maintenance of public orderS" This gives very wide discretion to even very junior officers. Similarly, Section 4(b) allows such military personnel to destroy any shelter from which, in his opinion, armed attacks "are likely to be made" or which has been utilised as a hide-out by absconders "wanted for any offense." This latitude has permitted the destruction of large numbers of dwellings and other buildings in the State, including in collateral damage when buildings adjoining the one targeted have been damaged or destroyed.

Section 4(c) of the Act permits the arrest without warrant, with whatever "force as may be necessary" of any person against whom " a reasonable suspicion exists that he is about to commit a cognizable offence." This has provided the basis of indiscriminate arrests, and the use of brutal force including firing against innocent civilians. Section 4(d) authorises the entry and search, without warrant, of any premises to make arrests as sanctioned under Section 4 ©, or to recover any person "believed to be wrongfully restrained or confined," or any property "reasonably suspected" to be stolen property or any arms, ammunition or explosive substance "believed to be unlawfully kept in such premises" For military personnel operating in a culturally alien terrain, 'beliefs' and 'reasonable suspicions' are often wholly unfounded leading to human rights abuses, as we shall see below.

Though Section 5 of the Act explicitly lays down that, "Any person arrested and taken into custody under this Act shall be made over to the office in charge of the nearest police station with the least possible delayS," this has been repeatedly violated. Section 6 exempts Army personnel from prosecution, stating, "No prosecution, suit or legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of powers conferred by this Act." The exemption from prosecution is not only for what is done under this Act, but also for what is "purported to be done."

Experts in the UN Human Rights Committee, which met in Geneva in March 1991, were categorical that this Act is violative of several Articles of the International Covenant on Civil and Political Rights to which India is a signatory. Article 2(3) directs the state to ensure that any person whose rights have been violated "shall have an effective remedy, notwithstanding that the violation has been committed in an official capacity." While Article 4(1) permits State Parties to take measures derogating from their obligations in the time of national emergency, Article 4(3) lays down that any such derogation must be reported to other State Parties through the UN Secretary-General. The Indian government has made no such communication. In any case, as an expert in the UN Human Rights Committee pointed out, such an emergency must be a temporary measure, and cannot be in operation for decades, as this Act has been in various parts of India.

Further, Article 4(2) stipulates that no derogation from certain key Articles, including Article 6 [right to life], may be made under this provision. But Section 4 of the Act, as we have seen above, empowers firing, which may result in death, merely based on a relatively junior officer's opinion or suspicion. This violates Article 6(1) of the Covenant which inter alia states that, "No one shall be arbitrarily deprived of his life." Under international law, once India has signed this Covenant, its provisions can even supersede the Constitution. In other words, the Armed Forces [Special Powers] Act cannot be upheld as legal and valid on the ground that it is consistent with the Constitution, even if it violates the Covenant.

In any case, human rights activists have consistently held that the Act is also violative of the Constitution. It, like TADA, violates Articles 14 and 21 of the Fundamental Rights, and is a derogation from Entry 1, List II of the Seventh Schedule. Article 13 which voids all laws inconsistent with the Fundamental Rights is infringed. Article 19, which protects freedoms of speech and expression, of peaceful assembly, and the right to form associations and unions, is also violated. Though the Supreme Court has upheld the Act, after laying down detailed guidelines to curb misuse, it should be remembered that the apex court also upheld TADA, to be overruled later by parliament.

The Group is of the firm opinion 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.

Blood & Death in Jammu & Kashmir

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 criticised, 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.

Militants, and the Pakistan government, have argued that in the Kashmir case, the special concept of 'jihad' or holy war applies, which supersedes all international humanitarian law, not to speak of Indian law. Pakistan, an Islamic state, does not itself govern its own international relations on the basis of such a controversial reading of Islamic law, but on the basis of internationally accepted secular international law. Islamic scholars have also argued, that this interpretation of 'jihad' itself is not in consonance with either Prophet Mohammed's own life or preachings. The Prophet's life was marked by a reverence for peace and mercy towards His enemies. Be that as it may, in a world of myriad religions and ways of life, no one religious interpretation can substitute for internationally accepted standards and law. The Indian state may argue, as it does, that its own excesses are justified or at least excusable, because it fights foreign 'terrorists.' This argument too is specious, and is a violation of international humanitarian law. State terrorism is neither a legal nor humane response to religiously fundamentalist individual terrorism.

Thus in this report, as indicated at the outset, the Group has criticised human rights violations by both sides, security forces and militants alike. This is, unfortunately, unusual, but for the reasons cited above, in keeping with the core, internationally accepted precepts of human rights and impartial judgement.

Since 1990, there has been substantial militant activity in the State. According to police sources, there were 5,153 incidents of violence and other militant activities in that year. These rose sharply to 7,315 incidents in 1992, and amounted to 7987, 8784, 8731 and 6633 incidents in 1993, 1994, 1995 and 1996 respectively. After this, with an elected National Conference government taking office in October 1996, militant activity declined to 4702, 4150, and 4326 incidents in 1997, 1998 and 1999 respectively. In the 10 year period from January 1990 to December 1999, there were a total of 63,387 incidents involving the militants, signifying a high level of activity, which was however, significantly reduced after 1996.

The militants also targeted political activists. In 1996, as many as 61 were killed, of which 36 were from the NC, and 19 from the Congress. In 1997, 1998, and 1999, 57, 52, and 47 political activists, of which 121 were from the NC, and 18 were from the Congress, were killed by militants. The plan by the militants was obviously to discourage 'over-ground' political activity, particularly by the major parties: the NC and the Congress which bore the brunt of the killings. But the killing of 217 political activists over a period of just 4 years, is a premeditated assault on legitimate political activity and is as such a clearly politically motivated human rights atrocity, allegedly planned by the ISI and other agencies across the border.

The pattern of destruction of property by militants was similar to the total incidents of militant activity. For instance, in 1990, according to official sources, as many as 802 public buildings including 129 schools, 172 bridges and 501 other buildings, were destroyed or extensively damaged allegedly by militants. By 1991, this total plummeted to 93, going up by 1994 to 337. By 1996, public buildings destroyed came down to 122, falling further to only 29 in both 1997 and 1998, to a low of 18 in 1999. In 1996, 602 private buildings were destroyed, of which 432 were stated to belong to the majority community, and 170 to the minority community. By 1997, this came down to a total of 437 private buildings of which 303 and 134 were owned by the majority and minority communities, respectively. In 1998, the total dropped to 273, of which 189 and 84 were majority and minority community owned, respectively. There was a slight increase in 1998, the total going up to 284, of which 233 and 51 were buildings belonging to the majority and minority communities respectively.

Human rights activists question these figures arguing that some of this damage is collateral damage, caused by the security forces in the course of their counter insurgency operations. Even if this was so, and these would be human rights violations, systematically deflated figures would still indicate the widespread damage to public and private property by militant activity, causing grave damage and grief to the civilian population.

Other attacks by militants include the use of explosions through mines, IEDs using RDX, and so on. There were as many as 1280 such attacks in 1990, reduced to 358 in 1996, 255 in 1997, 264 in 1998, and 293 in 1999.

Between 1990 and 1999, i.e. in a period of 10 years, there have been 4,013 such attacks. In this case, this particular form of militant activity is unfocussed in its choice of victims. Apart from the security forces who often, though not always, appear to be the main target, innocent civilians, including hapless women and children, are also killed. Since these explosions are often set off by remote control, this form of militant activity is the most violative of the human rights of innocents, whose only fault was that they were in the wrong place at the wrong time, even if that place was their home, and the assailant was a foreigner.

Another form of militant activity has been through grenade attacks, which from 242 in 1990, rose to 821 in 1994, going down to 444, 168, 187, and 201 in 1996, 1997, 1998, and 1999 respectively. In the 10 year period of January 1990 to December 1999, there have been a total of 4,231 such attacks. In these attacks also, both security forces and innocent civilians are killed. Often such attacks are followed by indiscriminate firing and even arson by security forces, in violation of both international and Indian humanitarian law, according to media and human rights reports. But such attacks themselves, while an act of terror directed against the Indian state, are also a violation by the militants of the human rights of innocent civilians.

By far the largest violation of human rights are in so-called 'cross firings' between militants and security forces, in which a very large number of innocent civilians are killed and wounded. In 1990, there were only 475 such incidents. These peaked at 1891 in 1995. In 1996, 1997, 1998 and 1999, there were 1089, 959, 1126 and 1205 such incidents. In other words, these have increased since 1997. In all, between 1990 and 1999, there were as many as 13,129 such incidents. While it is true that in many such incidents, the firing is initiated by the militants, a large proportion of the casualties are caused by indiscriminate, and often panic stricken, firing by the security forces.

To cite only one recent instance, in the August 1, 2000 cross firing between two alleged foreign militants and the CRPF guarding the Amarnath pilgrims in Pahalgam, 35 civilians, apart from the two alleged militants, were killed. Media reports, as well as the CRPF personnel we interviewed in Pahalgam concede, that a large proportion of the Amarnath yatris and local porters who were killed, were killed not by the two militants who were killed in the first 10 minutes of the firefight, but by the panic stricken CRPF jawans who continued firing for another 20 minutes. Despite the national furore over the episode, no judicial enquiry has been ordered. Almost all analysts we interviewed claim that up to 80% of the civilians killed in cross firing are killed by the very same security forces who are supposed to protect them. Civilian casualties in the cross firing have been verified by the high level administrative enquiry headed by Lt. General J.R. Mukherjee, Corp Commander, Kashmir.

Civilians are also killed in random firing, which increased from 744 incidents in 1990 to peak at 1428 in 1996. In 1997, 1998 and 1999, there were 950, 795 and 838 such incidents, respectively. There were a total of 9,829 such incidents in the 10 year period from 1990 to 1999. Civilian loss of life and limb in such instances of militant firing are also a human rights violation.

The Indian Express reports the following facts of killings in the current year [the reference is to the year 2000 -- Ed.] in the Valley:

Death Count

Killings in J&K since January 1 is 1800. [i.e. between 1.1.2000 to 13.9.2000]
Civilians today 05 total 563 [Men(501), Women(54), Children(63)]
Militants today 02 total 959
Security men today 04 total 278
(Indian Express, 13.9.2000)

We could get no authentic figure of disappearances. According to official figures, abductions increased from 169 in 1990, to a peak of 666 in 1996, before tapering off to 448, 298 and 241 in 1997, 1998 and 1999, respectively. The total number of abductions in the 10 year period from January 1990 to December 1999 amounted to 3,658. Despite official claims to the contrary, not all these are abductions by militants but include kidnappings by counter insurgency forces including surrendered militants. Because of their very nature, the agency behind these abductions is very difficult to prove, but there is no doubt that apart from the abductions by militants, a significant number of kidnappings can be attributed to counter insurgency forces. These consolidated figures are not available from unofficial sources. The official figures are discussed below. Of course, when the kidnapped are found dead, the blame is apportioned to the militants though this is, on a significant number of occasions, not the case.

The most tragic human rights violation in the valley has been the forced exodus of the Kashmiri Pandits. The Pandits were an integral part of Kashmiri society and had made major contributions to its literature and culture. Several Kashmiri Muslim saints like Sheikh Nooruddin were worshipped also by the Pandits who called him Nund Rishi. This brotherhood which was an essential part of 'Kashmiriyat' was rent asunder once the insurgency started. BJP State Vice President Tikalal Tiploo was killed by militants on September 14, 1989, followed by retired justice Neelkanth Ganjoo [he had sentenced Maqbool Butt to death] on 4th November the same year. While these two prominent Kashmiri Pandits were killed on political and not 'ethnic' grounds, their assassinations alarmed the community. Murderous attacks on other Kashmiri Pandits followed. With their neighbours unable to protect them from well armed militants, tens of thousands fled not only their homes, but the Valley itself. Large numbers of them now live in miserable conditions in Jammu, Delhi and wherever they can find shelter anywhere in the country. Despite repeated promises, no viable measures have yet been made to bring the Pandits back. Even today Pandit homes are occupied by others in rural and metropolitan areas, even in Srinagar. Arguably no single community given its size has contributed as much to Kashmiriyat and Kashmiri culture, but none has suffered as greatly. There appears to be no great urgency on the part of State or central agencies to end their suffering, or to significantly ameliorate it.

Villagers from border areas of the State, especially in a radius of 5 kilometres of the Pakistan-India border, have had to flee their homes because of Pakistani shelling, and live in makeshift refugee camps. Thousands of them too are suffering, and will continue to do so, until there is a political solution involving Pakistan.

The political instability in the state has created havoc on the community life. In a recent survey by the Department of Sociology of the Kashmir University it is revealed that after the death of their husbands, 40 out of 300 women respondents had to go outside their homes for earning money which was required for the day-to-day expenditure. After the death of their husbands women commonly developed three sets of problems. "The first set of problems included emotional stress, denial of inheritance rights, sexual harassment and social undesirability. The second set of problems are related to mis-management of home affairs, loosing control over children and inferiority complex. The third set of problems were associated with loneliness, physical insecurity, over burden of domestic and other works and compulsion for remarriage". The report also reveals that the problems of orphans are increasing. Their problems include "no education, no regular income, negative social attitudes, health deterioration, negative personality growth, undesirable socialisation, no career making, lesser bright chances in the marriage market, denial of property rights, change of residence, social deviation and halting of hobbies".

State Recorded Allegations of Human Rights Violations

On the basis of official figures complied from the complaints made to the National Human Rights Commission [NHRC] and to the Jammu & Kashmir State Human Rights Commission [SHRC], a total of 708 allegations of human rights violations were received between 1996 and 1999. But these figures exclude the security forces apart from the police, since neither the NHRC nor the SHRC is empowered to investigate either the Army or the paramilitary forces, who have their own courts and internal corrective mechanisms which are not open to public scrutiny. Thus, since alleged human rights violations committed by the Army, and in particular the Rashtriya Rifles [RR], the BSF and the CRPF, i.e. by the bulk of the forces in action in the State, are not included in these figures, these must be a very substantial underestimate of the total number of serious allegations made.

The largest number of violations, 256, relate to custodial killings, of which 61, 115, 45 and 35 were allegedly committed in 1996, 1997, 1998 and 1999, respectively. Killings of innocents totaled 157 in this 4 year period with 25, 40, 83 and 9 killings alleged in 1996, 1997, 1998 and 1999, respectively. Allegations of disappearances totaled 103, of which 27, 43, 18 and 15 were reported in 1996, 1997, 1998 and 1999, respectively. Cases of rape and molestation amounted to 75, with 16, 30, 13 and 16 cases reported in 1996, 1997, 1998 and 1999, respectively. 54 cases of torture were alleged of which 7, 37, 6, and 4 were reported in 1996, 1997, 1998, and 1999, respectively. Allegations of beating\harassment totaled 63, of which 14, 18, 14, and 17 were made in 1996, 1997, 1998 and 1999.

From all accounts in the media and by human rights investigators, these are gross underestimates of the actual incidence of these human rights violations. A very large number of cases do not even reach the stage of investigation, on the basis of which the above official figures were compiled. For instance, according to the figures compiled by Amnesty International, based on media reports and local sources, there have been as many as 10,000 disappearances since 1990.

Security Forces & Human Rights Violations

The Indian security forces have little training in counter insurgency; even less on human rights, especially in the lower ranks. Officers have been specifically instructed to minimise their casualties, with their future prospects depending on low casualty rates. This leads to officers and non-commissioned officers using maximum fire power to reduce losses, leading to excessive use of force and unnecessary collateral damage. Report after report of firefights with militants shows that houses neighbouring the ones where militants fire from are also damaged, if not destroyed, by Army and paramilitary fire. Often, innocent civilians are also killed or maimed in this so-called cross fire. The protection provided by the Armed Forces [Special Powers] Act, insulates Army personnel from action in these cases of violations. BSF, CRPF and ITBP personnel are also not subject to the scrutiny of the NHRC or SHRC.

Very senior Army officers have gone on record to say that they would not capture foreign militants alive. The argument presumably being that foreigners were mercenaries and thus not entitled to the protection of Indian law or even the Geneva Convention. It is indeed deplorable that no action was taken against such officers for such outrageous and illegal statements. On occasion when the Army has suffered casualties including from 'fedayeen' strikes they have even misbehaved with the police forces suspecting them of collusion. There are repeated complaints of arson against the army and paramilitary forces, particularly after the latter have suffered casualties after a firefight. In very few cases has any action been known to have even been initiated.

Two very serious sets of complaints were made against the security forces to the Group when it visited Surankote and Poonch, where foreign militants are the dominant non-state actors. Firstly, it was claimed that Army patrols assigned to open roads in the mornings were forcing local civilians to walk ahead of the minesweepers, to function as virtual human minesweepers. This was done, it was alleged, because RDX and other commonly used plastic explosives were not detectable by the minesweepers, and since 'sniffer dogs' were in short supply, local civilians were coerced to act as human mine detectors. A second major allegation, which we also heard in Srinagar, was the use of local civilians as human shields by the security forces, while approaching suspected militant hideouts.

The natural tendency in all the security forces is to play down allegations against them. Of course, to maintain some discipline within their ranks and some public credibility, some action is taken within the service through their own internal mechanisms, including court martial. But this information is confidential, and not available for public scrutiny. Under the circumstances, it is hardly surprising that the overwhelming public sentiment is that human rights violators in the RR, BSF and CRPF get away unchecked and unpunished. Since counter insurgency critically involves winning over public sentiment, in purely military terms, such a public perception is a major victory for the militants, the 'enemy. '

The reports of the Amnesty International and the Commission on Human Rights on Kashmir bear evidence of the excesses by the armed personnel. The report also reveals that even democratic protests by the people and their freedom of expression are often suppressed in the Valley. "Hundreds of people have over the past decade been arbitrarily detained in Jammu and Kashmir. Under International Human Rights Law, no one may be subjected to arbitrary arrest, detention or imprisonment. Many of those arbitrarily detained in Jammu and Kashmir have been deprived of their freedom without reference to any legal grounds for detention at all, many others have been held under preventive detention legislation of the state, the Public Safety Act (PSA) which falls short of international standards and some have been arrested on criminal charges only to be repeatedly re-arrested on some other charges when courts ordered them released on bail. Many are detained under a combination of these different methods of detention".

"Those arbitrarily arrested under the preventive detention law include political activists of all political hues. Its most recent victims have included almost the entire leadership of the All Parties Hurriyat Conference and other peaceful campaigners for political change like Shabir Ahmed Shah, president of the Jammu and Kashmir Democratic Freedom Party".(India Punitive Use of Preventive Detention Legislation in Jammu and Kashmir, Amnesty International, AI Index: ASA 20/10/00, May 2000)

"The authorities continued to use the lapsed TADA to detain people in Jammu and Kashmir by linking them to ongoing cases filed before 1995. Hundreds of people remained in detention under the TADA despite Supreme Court orders of the review of all cases". "In September and October, 25 members of the All Party Hurriat Conference, including its chairman Syed Ali Gilani; senior members Mohammad Yasin Malik, Javed Ahmed Mir and Abdul Gani Bhat; and their associates were detained under the Act after they peacefully called for a boycott of elections". (Amnesty International Report 2000) "The arbitrary arrest and detention of those peacefully voicing dissent appears to have become more widespread in Jammu and Kashmir with the Public Safety Act increasingly being used to punish those who speak out against the government". (Amnesty International Report, India: Abuse of Public Safety Act in Jammu and Kashmir, AI Index : ASA 20/13/00, 5 April 2000)

"Special Operations Group of the Jammu and Kashmir Police in firing on apparently unarmed demonstrators in Anantnag. Their actions led to the death of seven protestors and the serious injury of at least six others. The protestors were calling for the return of the bodies of five alleged militants who had earlier been killed by security forces. Protestors claimed they had been arrested before being killed in custody while security forces claim they were killed in an encounter,. Protestors were also called for the disclosure of the whereabouts of 12 other youth who have reportedly been arrested in recent days as part of investigations into the deaths of 35 Sikhs in the nearby village of Chatti Singpura on 20 march". (Amnesty International, News Plash; 5 April 2000)

"During the detention the All Party Hurriyat Conference leaders have been denied prompt and regular access to medical attention, family members and lawyers. In the first few weeks of detention, while being shifted from police to police station, they were held incommunicado". (Amnesty International, India/Kashmir: Remaining prisoners of conscience should be released immediately, 5 May 2000)

"By letter dated 5 July 1999, the Special Rapporteur informed the Government that she had received information concerning Ms. Raja Begum, Ms. Giulshana Bano (her daughter), Ms. Razia and Ms. Shaheena Dano, all allegedly detained and raped by Indian army officers on 15 March 1999. They were reportedly kept in the house of one of the officers on 15 March 1999 when they were released. On 31 May 1999, Ms. Begum and Ms. Bano, from Doda district, Kashmir, were returning from Jammu when they were stopped by soldiers near Reggi Nala. The soldiers allegedly planted two grenades in Ms. Bano's bag, and then arrested her and her father, Mohammad Shafi Wani. It is believed they were targeted in order to pressure the women to withdraw complaints filed against the army officers for the sexual assaults".(Commission on Human Rights, United Nations; Circular No. E/CN.4/2000/68/Add.1)

"Repeated assurances, notwithstanding, the state Government has failed utterly in putting a stop to the custodial deaths in fake encounters. But all the utterances till date, have fallen on the deaf ears of the security agencies and custodial deaths, extra-judicial killings, disappearances and other human rights violations continue unabated". (Jammu and Kashmir Human Rights Awareness and Documentation Centre Human Rigths Division of The Institute of Kashmir Studies (IKS) Srinagar; Circular No. IKS/221/00 Dated 21/08/Y2)

"On July 17, 2000, 21 Bihar Regiment of BSF (Border Security Force) claimed to have killed four dreaded militants near Line of Control (LoC) and recovered some weapons and ammunition from them. Their photographs were flashed and on keen observation of the photographs the people of Baramulla town rebutted the claim of the BSF and said that the slain youth were civilians and not militants. They also alleged that the slain youth were arrested from their homes some ten days back and were done to death at Nambla Bihama near LoC, what they called in a fake encounter".(Jammu and Kashmir Human Rights Awareness and Documentation Centre Human Rigths Division of The institute of Kashmir Studies (IKS) Srinagar; Circular No. IKS/222/00 Dated 05/09/Y2)

In the J & K police, the special operations group [SOG] better known as the special task force [STF] is particularly notorious for human rights violations. Modeled on the Punjab pattern, the J & K STF suffers from the same ills as its predecessor. The Punjab SOG was found guilty of repeated human rights violations, and civil courts are still investigating unaccounted for deaths and disappearances. Like in Punjab, STF officers and ranks are given out of turn promotions and large financial rewards proportionate to the number of militants they kill, force to surrender, and the arms they recover. In such an environment, [fake encounters, the killing of civilians, including petty criminals claiming that they are militants, are bound to occur, and even be rewarded. The Group repeatedly heard allegations that seized arms and explosives had actually been purchased from the black market, in order to further career prospects and to obtain financial rewards.

Sometimes the incentives policy coupled with pressure to show quick results can have devastating implications for human rights. To cite just the latest instance, the joint STF-Army operation after the Chithisingpora massacre, after which five innocent civilians were allegedly picked up and butchered, is a case in point. It is significant that the Justice Pandian Commission was set up only to investigate the firing on the protest demonstration that followed, not the killing of the five civilians.

The most notorious counter insurgency force is the surrendered militants backed by the Army. Popularly known as 'renegades' they are widely believed to be guilty of every conceivable human rights violation. Some believe they were behind the massacre at Chithisingpora.

These surrendered militants have never been given human rights education. In their earlier role as militants they had shown scant respect for human rights. Now when their unlicensed weapon is replaced by a licensed one, what is there to ensure that they will respect human rights including of their former comrades, as a retired police officer asked the Group?

Human Rights 'Restrictions' & Harassment

What is perhaps most humiliating and galling to the local citizenry is the regular harassment and mistreatment they regularly face in the course of ordinary, non-vilent checking and enforcement by the security forces and police. Roadblocks, road patrols and other checks result in brusque even rude questioning, frisking, and in the case of women, even physical humiliation when, for instance, their veils are lifted to ensure that they are actually women and not men in disguise. Any protest under such circumstance leads only to aggravated behaviour, even to violence. Is this how the world's largest democracy treats its citizens, many anguished Kashmiris ask.

In some rural areas a `lights out' is enforced at 10 P.M. sharp. This is particularly damaging for students who need to burn the midnight oil, but can only do so at the risk of the lives of the entire household. In Poonch town, the Committee was told of the case of the owner of a rice mill, who was tortured and harassed by the Army in 1999 for operating his mill at night. The army claimed he did so, to give the milled rice to the militant under cover of darkness. His pleas that he worked at night because of regular power supply, that was not available during the day, fell on deaf ears. He later committed suicide, blaming Army torture and harassment for his health.

The Valley of Fear

What is more striking and depressing in what is, arguably the most beautiful State in India is the atmosphere of fear and despair. Civil life is so disturbed that minimum basic needs of the commoners are not meted out and none has time to look into these matters seriously. Children constitute about 38% of the J& K state's population and out of these children we have 2 to 3% children who are either orphan, destitute or neglected one and who do not get basic needs for protection, healthcare, food, education and especially as well as for love and affection, security, learning, through exploration and safe environment. (The Kashmir Times, 31.10.2000).

Intellectuals including journalists and faculty in Kashmir University are wary and even scared of speaking openly, particularly against the militants and the Army. While some general statements may be permissible, any specific comment has had on occasion serious, even fatal, consequences.

The fear coupled with rampant alienation perhaps leads to a special kind of `political correctness'. For instance, several local people and a J&K police constable on duty during the massacre on August 1, 2000 who were interviewed by members of the Group insisted that the CRPF firing was caused by a panic reaction to the sound of a back fire, and that the two alleged militants who killed, were innocent civilians. About Chithisingpora, there is a widespread belief that the massacre of 35 Sikhs was carried out by the Army itself. The Group interviewed several survivors in Chithisingpora, and though the witnesses were extremely wary, their statements clearly indicated that they suspected militants of being responsible. But the very fact that contrary perceptions are widespread shows how much the security forces have alienated themselves from the very people they are supposed to protect. In this context the judicial enquiry ordered by the State government into the massacre should be welcomed.

Recommendations

The only real solution to human rights atrocities is the cessation of hostilities. But for this to occur, and last, a political solution is imperative. Failing that some measures are possible that will reduce, but not wholly eliminate, human rights violations. Some of the most major are briefly listed below:

1. Withdraw the Armed Forces [Special Powers] Act, Public Safety Act and other draconian laws from operation in the State. The armed forces have sufficient powers under other laws to function adequately.

2. Amend the Acts under which the NHRC and SHRC function to enable them to inquire into allegations against the Army and paramilitary forces. The NHRC and SHRC must be provided with sufficient investigative staff to inquire into such complaints.

3. All such NHRC and SHRC reports and recommendations should be binding on the concerned governments and forces, subject only to judicial review. These should be public documents.

4. Since amendments to these Acts will not be retrospective, action taken by the Army and paramilitary forces on earlier complaints should be made public. An enabling law should be passed facilitating judicial review of these earlier decisions\actions.

5. All incentive schemes in the security forces and police that reward the killing of militants, must be withdrawn. Under both international and Indian law, militants should be captured alive if possible. Financial rewards for killing tantamount to 'blood money' are repugnant to civilized values and societies.

6. Peace committees must be set up in all localities in the insurgency affected areas. Counter insurgency forces must coordinate with these committees when carrying out their operations in these areas.

7. Counter insurgency forces and the civil administration must coordinate to reduce harassment to civilians in the course of 'normal' everyday patrolling and checking. A coordination committee should be set up to examine complaints and take remedial action.

8. All counter insurgency forces must be trained in human rights and gender sensitivity. They must be aware of the requirements of international humanitarian law. Consequently, ranks must be instructed that orders that violate these laws are illegal.

9. Surrendered militants should be removed from counter insurgency operations. If absolutely necessary, they may be used as 'spotters' but should not be deployed in armed formations.

10. Urgent measures should be taken to facilitate the return of the Kashmiri Pandits. Until then the relief and rehabilitation packages officially made available to them should be drastically increased, with Central government assistance.

11. International human rights agencies like Amnesty International, Human Rights Watch and others should be allowed to investigate alleged human rights violations in the State.

12. Militants, as 'non-state actors,' should sign the Optional Protocols 1 and 2 of the Geneva Conventions.

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