India's crimes in Kashmir
Weekly Pulse
28 Sept-4 Oct 2012
It was, indeed, a privilege to be a co-panellist with Mirwaiz Umer Farooq, the leader of All-Parties Hurriyat Conference, and other Kashmir activists at some human rights advocacy events held on September 18-20 during the 21st session of the UN Human Rights Council at Palais des Nations in Geneva. The launch of an International Human Rights Council publication, titled Human Rights in Flames: Kashmir Report 2012, was the highlight of these events, which included seminars on India’s conduct vis-à-vis UN conventions on the prevention of torture and enforced disappearances and the volatile issue of mass graves in the disputed region of Jammu and Kashmir, hereafter mentioned as Kashmir.

Each year, India’s human rights track-record, especially in Kashmir, comes under scrutiny at the UN Human rights Council annual session. However, this year was significant. In May-June, the Council’s Working Group on India’s second Universal Periodic Review (UPR) had made 169 recommendations to rectify the state of human rights in India, including Kashmir. India was to offer its response to these recommendations at the annual session of the Council in September, thereby giving deliberations on this occasion by independent groups of human rights activists and experts on the state of human rights in India an added significance.

For Mirwaiz, Kashmir is a political issue and tacking its grave human rights crisis requires amicable resolution in accordance with Kashmiri wishes. Karen Parker, another fellow speaker, who has participated in UN human rights debates on Kashmir for almost 30 years, considers Kashmir as international issue whose settlement cannot be bilateral or even trilateral. My own contention is that the Kashmir issue is essentially about people, and giving it a purely territorial, ethnic or religious colour amounts to trivialising its humanitarian dimension.

Barrister Majeed Tramboo and Prof Nazir Shawl, who respectively run the Kashmir Centres in Brussels and London, also argue that Kashmir’s human rights situation cannot be seen in isolation from such broader dimensions of the dispute. India’s machinations to cover up its deadly spree in Kashmir, and the world community’s indifference towards the plight of innocent Kashmiris, are subjects that perhaps no one else than these two long-standing champions of Kashmiri rights at world forums like the UN and the EU could highlight better.

Since 1948, the UN Security Council has failed to implement its resolutions that call for the holding of a plebiscite to determine the wishes of the Kashmiri people. India itself had taken the case of Kashmir to the UN, only to subsequently flout the will of the international community by refusing to hold the plebiscite. India also refuses to accept any other settlement of the dispute, beyond the one mandated by the world body, including bilaterally with Pakistan or trilaterally with Pakistan and Kashmiris.

Unsurprisingly, therefore, India’s dehumanising conduct in Kashmir remains a matter of grave concern for human rights organisations at forums such as the UN Human Rights Council. The audience of Kashmiri human rights advocacy events during this year’s session of the Council also watched a moving documentary, Kashmir’s Torture Trail, produced by UK’s Channel Four, besides listening to various perspectives on Kashmir’s human rights situation. The interactive debates on the occasion brought to the fore a number of critical points on the human rights situation in Kashmir, which are worth summarising below:

One of the consensual points that emerged from the discussions spanning three days was that India’s violations of human rights in Kashmir are not only endemic but also systematic. The culture of state-sponsored violence and its deniability by state authorities are an outcome of the decades-on presence of hundreds of thousands of Indian army, paramilitary and police forces in the disputed region, as well as the existence of a host of draconian laws, particularly the Armed Forces Special Powers Act (AFSPA).

Together with Criminal Procedure Code, Jammu and Kashmir Public Safety Act, Prevention of Terrorism Act and National Security Act, AFSPA has allowed Indian army and paramilitary with sweeping powers to arbitrarily arrest, torture and even undertake extrajudicial executions of the accused without any fear of prosecution. The Prevention of Terrorism Act is rigorously used to victimise innocent people since the 90’s, when it was originally coined, on the flimsy charges of terrorism. If this is not enough, under the National Security Act, a person can be detained by the Indian security forces for a year without disclosing the reason for detention.

For the past over two decades, international human rights organisations such as Amnesty International and Human Rights Watch, and India’s own National Human Rights Commission, have reported recurrent instances of arbitrary arrests, torture in detention, enforced disappearances, custodial deaths and summary executions. Tens of thousands of Kashmiris have been killed, tortured or disappeared. Rather than taking due notice of the human rights concerns voiced by these global and local groups, and reforming the state approach on the matter, India continues to steadfastly subscribe to a campaign of state terror in Kashmir.

Slowly but surely, however, the voices of the valiant freedom fighters of Kashmir, including from those who are buried in graves, have started to resonate at the international level—exposing the paradox between India’s external perception as a secular democracy and its internal reality of a security state. Also lies exposed is India’s manifested claim that the struggle for self-determination in Kashmir was not indigenous but sponsored by Pakistan.

In ar recently-published pioneering work, titled The Meadow, British journalists Adrian Levy and Cathy Scott-Clark have established through first-hand sources the involvement of a rogue unit within Indian security forces in prolonging the issue of the kidnapping of five Western hostages in Kashmir to justify official Indian stance that the 90’s violence in Kashmir was orchestrated by Pakistan. “The prolonged hostage crisis served a strategic purpose: to show the western powers that Pakistan, the ‘epicentre of terrorism’, was behind the insurgency in Kashmir,” the authors argue. The killing of 30-plus Sikhs in Kashmir on the eve of US President Bill Clinton’s 2000 visit to South Asia could be described as another such instance.

The recent discovery of mass graves and unmarked graves in several districts of the Valley of Kashmir is another issue that has overcome become volatile and unveils India’s heinous approach towards Kashmir since 1989, when the uprising became violent due to a peculiar regional security environment caused in turn by the sudden abandonment of post-Soviet Afghanistan by the world community. Indian security forces have continued their killing spree in Kashmir despite the fact that for the last decade violent conflict is replaced by yearly upsurge of stone-pelting youth facing the brute Indian force in Kashmir.

In December 2009, after years of following hundreds of cases of enforced disappearances in Kashmir, the independent International Peoples Tribunal on Kashmir published a voluminous report titled Buried Evidence. The report listed evidence of the existence of some 2700 unknown, unmarked, and ‘mass graves’, holding more than 2,943 bodies across 55 villages in three Kashmiri districts. In 2011, the disputed state’s Human Rights Commission also certified the existence of 38 burial sites in northern Kashmir, containing 2,156 unidentified bodies. Some 574 other bodies found in these graves were identified as those of local residents. The Commission urged the authorities to undertake DNA testing of the dead bodies, a request that was reportedly turned down by the state authorities in September 2012.

On the issue of mass graves in Kashmir, India’s leading critic Arundhati Roy wrote in a September 2011 issue of The Guardian: “While the government goes about trying to silence the living, the dead have begun to speak up…Perhaps it is insensitive of the unmarked graves to embarrass the government of India just when India's record is due for review before the UN human rights council.”

The Indian National Human Rights Commission (NHRC) has also reported over 17,000 custodial deaths across the country at the hands of police during a 14-year period from 1992 to 2008, with significant spike in such killings occurring each year since 2000. The estimate does not include the innocent victims of army brutality, whose number in the case of Kashmir should be in thousands. The Association of Parents of Disappeared Persons, a Srinagar-based advocacy group, puts the number of enforced disappearances in Kashmir's long and brutal war at around 8,000 men and boys.

While mass graves and missing persons are grave issues by themselves, they have led to an equally grave phenomenon of ‘half widows.’ These are thousands of women who do not know whether their loved ones are alive or dead, and, therefore, even if they want to move on with their lives, they can’t—sometime for the fear of being socially stigmatized in Kashmir’s traditional normative structure.

While the Kashmiris continue to bear all of these consequences of India’s deadly gambit in Kashmir, the international community has, thus far, come up with no tangible initiative to take to task its political leadership, or the military commanders in Kashmir acting with impunity. India continues to defy the will of the international community by flouting all the principles of the Universal Declaration of Human Rights and International Covenant of Civil and Political Rights, which are a founding stone of the UN Charter and UN member-states’ commitment to preserve human rights in accordance with these principles.

Rather than moving along with the rest of the developing world in taking due political and legal steps for the prevention of torture, the preference of successive Indian regimes in the last nearly three decades has been to look for excuses for not ratifying the UN Convention against Torture and other cruel, inhuman or degrading treatment. In the words of Justice K G Balakrishnan, the chairman of NHRC, “India not having ratified the Convention against Torture, its citizens do not have the opportunity to find recourse in remedies that are available under international law. Indian practices with respect to torture do not come under international scrutiny. Access to the UN Committee against Torture, and other mechanisms, is effectively denied to people. Since the country has also not signed the Optional Protocol to the International Covenant on Civil and Political Rights, its citizens also do not have the right to make individual complaints to the UN Human Rights Committee.”

Why India is unwilling to be part of a global legal and normative regime guaranteeing fundamental human rights, including prevention of torture by state authorities, thus, becomes quite obvious. A number of draconian laws permit the Indian state machinery to practice torture with impunity, especially in the disputed valley of Kashmir where people have long waged a legitimate struggle for liberation. A direct implication of India ratifying the said UN Convention will be that the victims of these laws, including those of torture by state officials, will henceforth have an international recourse to redress their grievances—an eventuality that those at the helm of affairs in India want to avoid at all costs.

It was no surprise, therefore, to see India accepting just over 40 recommendations of the member-states at the UN Human Rights Council session in September 2012—out of 169 recommendations that were made as part of its second Universal Periodic Review earlier in May-June. Like before, India indicated at the Council’s UPR session its willingness to ratify the UN Convention against Torture. But there is no guarantee, however, that India will be able to take the necessary steps, like repealing the draconian laws such as AFSPA, so that its human rights practices in Kashmir do not run contrary to the world body’s fundamental human rights regime.

India’s dilly-dallying on the issue of torture is clear from the legislative measures taken since 2010, when the lower house of parliament, Lok Sabha, had passed after a couple of hours debate the so-called Prevention of Torture Bill. A Select Committee of the upper house, Rajya Sabha, did later revise the bill—but it has been sitting on it subsequently. The International Committee of the Jurists finds a number of flaws in this bill, even in its revised form. In retrospect, the prospects for Indian leadership adopting serious reforms to address the human rights crisis in Kashmir any time soon do not seem bright—unless, of course, the world community exerts due pressure on India to change course in Kashmir both in terms of improving human rights and resolving the lingering dispute.

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