T he outbreak of chauvinistic fury, which burst forth in India on June 14, 2018, explains fully the 70-year-old impasse in a solution to the Kashmir dispute. Kashmir arouses colonial emotions, not unmixed with Hindutva. On that day was published the “Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit–Baltistan” by the Office of the United Nations High Commissioner for Human Rights (OHCHR).
The subtitle itself should indicate its even-handedness. U.N. Secretary-General Antonio Guterres did well to declare on July 13 that “all the actions of the Human Rights High Commissioner is an action that represents the voice of the U.N. in relation to that issue”. This is what the aspersions cast on the integrity of the universally respected High Commissioner Zeid Ra’ad Al Hussein “accomplished”. He has won high praise for his consistent record of impartial and thorough pronouncements on violation of human rights. India’s Deputy Permanent Representative to the U.N. Tanmaya Lal’s assertion that the report “relies on unverified sources of information” is a brazen falsehood. Its 49 pages have 388 footnotes, citing, mostly, Indian records such as official statements in Parliament. It is dishonest to deride the report for its “remote monitoring of the human rights situation” while refusing the U.N’s repeated requests for on-site inspection. This is of a piece with India’s basic policy on the U.N’s oversight on human rights. China and Russia have a better record.
The outbursts are akin to those on the publication of books which go against the “national” consensus by people who had not, perhaps could not, read it. One is astonished at the Kashmiri Pandits’ complaint, on June 26, that the report ignored their plight ( The Tribune, June 27). The report has a whole page of three paragraphs, 137, 138 and 139, on their sorry plight beginning with these words: “A major episode of attacks against civilians by armed groups operating in the Kashmir Valley is that against the minority Hindus, known as Kashmiri Pandits. These attacks and threats from armed groups forced hundreds of thousands of Kashmiri Pandits to flee Kashmir.” It proceeds to set out the details with documentation.
Pakistan is censured very strongly. So are armed groups. “Since the late 1980s, a variety of armed groups has been actively operating in the Indian state of Jammu and Kashmir, and there has been documented evidence of these groups committing a wide range of human rights abuses, including kidnappings, killings of civilians and sexual violence. The landscape of armed intervention by groups operating in Indian-Administered Kashmir has shifted over the years. In the 1990s, around a dozen significant armed groups were operating in the region; currently, less than half that number remains active. The main groups today include Lashkar-e-Tayyiba, Jaish-e-Mohammed, Hizbul Mujahideen and Harakat Ul-Mujahidin; they are believed to be based in Pakistan-Administered Kashmir. Hizbul Mujahideen is also part of the United Jihad Council, which began as a coalition of 14 armed groups in 1994, claiming to be fighting Indian rule in Kashmir, that was allegedly formed by Pakistan’s defence establishment. Despite the Government of Pakistan’s assertion of denial of any support to these groups, experts believe that Pakistan’s military continues to support their operations across the Line of Control in Indian-Administered Kashmir. Three of these armed groups (Lashkar-e-Tayyiba, Jaish-e-Mohammed and Harakat Ul-Mujahidin) are listed on the Security Council ‘ISIL (Da’esh) & Al-Qaida Sanctions List’ for their activities in Indian-Administered Kashmir among other places. Between January 2016 and April 2018, civil society organisations have accused members of armed groups of numerous attacks against civilians, off-duty police personnel and army personnel on leave, including the killing of 16 to 20 civilians. Some of the alleged attacks include the killings of activists of mainstream political parties and threats against their leaders” (paragraphs 135-136).
Zeid Ra'ad Al Hussein, U.N. High Commissioner for Human Rights.
Pakistan demands a plebiscite in Kashmir while ruling it out by law in the part of the State it administers. “The interim constitution of AJK [Azad Jammu and Kashmir] has placed several restrictions on anyone criticising AJK’s accession to Pakistan, in contravention to international standards on the rights to freedoms of expression and opinion, assembly and association. It explicitly states, ‘[N]o person or political party in Azad Jammu and Kashmir shall be permitted to propagate against or take part in activities prejudicial or detrimental to the ideology of the State’s accession to Pakistan’. The AJK electoral law expands on this, disqualifying anyone running for elected office for propagating any opinion or acting contrary to ‘the ideology of the State’s accession to Pakistan’. No person can be appointed to a government position unless they take an oath of office, which includes that they ‘will remain loyal to the country and the cause of accession of the state of Jammu & Kashmir to Pakistan’.
“According to international NGOs, the ban on political parties that do not support the eventual accession of Jammu and Kashmir to Pakistan has in effect silenced all kinds of dissent, including demands for greater transparency and accountability. Moreover, they alleged that those who protest Pakistan’s position face threats and travel bans, and are subject to imprisonment and torture.”
Pakistan censured
The report censures Pakistan for recourse to torture, press control, arbitrary arrests and imprisonment, abuse of anti-terrorism laws in Azad Kashmir as well as Gilgit-Baltistan. “Similar to the Constitution of Pakistan, AJK’s Interim Constitution also defines who may be considered to be a Muslim. This definition is used to declare members of the Ahmadiyya community as non-Muslims and is the basis of institutional discrimination against them. On 6 February 2018, the AJK Legislative Assembly passed a constitutional amendment that declared the Ahmadiyya to be non-Muslims. Pakistan’s blasphemy provisions are also reportedly in force in AJK and G-B. They have been criticised by several international Treaty Bodies and experts as they violate a range of international human rights principles and embolden those who instigate violence against religious minorities.” No Indian exposure of these wrongs has exposed them as thoroughly, with full references.
It is absurd to say, as an Indian diplomat to the U.N. did, that the report lacks a mandate. “Without access to Kashmir on either side of the Line of Control, OHCHR has undertaken remote monitoring of the human rights situation. This report is the result of such monitoring, based on the mandate of the High Commissioner for Human Rights, as provided by United Nations General Assembly resolution 48/141. The mandate of the High Commissioner includes the full range of activities aimed at the promotion and protection of human rights, including monitoring and reporting.
“The report largely draws on information that is mostly available in the public domain, some of which was obtained by various parties in India through the Right to Information Act, and also reflects the findings of research and monitoring carried out by local, national and international non-governmental organisations (NGOs) and human rights defenders. ... As OHCHR was denied access to Kashmir, it was not possible to directly verify allegations. OHCHR bases its findings on its methodology, using a ‘reasonable grounds’ standard of proof. This implies that there are reasonable grounds establishing that an incident or pattern of conduct has occurred.”
It is hard to imagine a more even-handed report. “The quantity and quality of information available on Indian-Administered Kashmir contrasts significantly to Pakistan-Administered Kashmir. Despite challenges, NGOs, human rights defenders and journalists are able to operate in the Indian state of Jammu and Kashmir, generating documentation on the ongoing human rights violations there. Restrictions on the freedoms of expression, opinion, peaceful assembly and association in Azad Jammu and Kashmir and Gilgit-Baltistan have limited the ability of observers, including OHCHR, to assess the human rights situation there. Nevertheless, OHCHR used the information that is available to address the human rights violations occurring in Azad Jammu and Kashmir and Gilgit-Baltistan.” Quite a compliment to India, this. And proof of animus?
The report hurts because it places in a U.N. document lapses that are common knowledge in India but on which, bar a few, the nation prefers to shut its eyes. The Armed Forces Special Powers Act (AFSPA) is a glaring instance. Of the 50 requests for prosecution of Army men, 47 were rejected; three others are “pending”.
AFSPA and use of lethal force
Section 4 of the AFSPA, 1990, allows any personnel operating under the law to use lethal force not only in cases of self-defence but also against any person contravening laws or orders “prohibiting the assembly of five or more persons”. This provision contravenes several international standards on the use of force and related principles of proportionality and necessity, including the U.N. Code of Conduct for Law Enforcement Officials and the U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which requires law enforcement officials to use firearms only as a last resort, and to use them with lethal intent only when “strictly unavoidable in order to protect life”. According to the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Section 4 grants to soldiers far-reaching powers that violate the right to life and fails to build safeguards against excessive use of force. Given the restriction imposed by Section 7 of the AFSPA, 1990, most cases of alleged excessive use of force have never been investigated independently or prosecuted.
While the Supreme Court of India upheld the constitutional validity of the AFSPA in 1997, it has since passed orders challenging the restriction as provided in Section 7 that prohibits the prosecution of security forces personnel. In July 2017, the Supreme Court ordered the Central Bureau of Investigation to investigate alleged extrajudicial killings by security forces in the State of Manipur. However, there has been no such initiative in cases of alleged extrajudicial killings in Jammu and Kashmir. (Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, Mission to India (A/HRC/23/47//Add.1.), April 26, 2013, p.6. Parliament of India, Rajya Sabha, Unstarred question No.1463.) Since 2008, India has faced criticism in the U.N. Human Rights Committee for this black law.
“In February 2018, the Union Ministry of Home Affairs informed the Parliament that since 1990 the Jammu and Kashmir government had sought the sanction of the Central government for prosecution of members of the security forces in 50 cases. The Central government refused to sanction prosecution in 47 cases, while decisions remained pending in relation to 3 cases as of April 2018....
“In July 2017, the Armed Forces Tribunal suspended the life sentences and granted bail to five Indian Army personnel who had been convicted by an army court-martial on 12 November 2014 for the extrajudicial killing of three civilians in Macchil in Baramulla district in 2010. The killings, which were perpetrated on the night of 29 April 2010, had triggered violent protests in Kashmir in the summer of 2010 and resulted in the deaths of over 100 protesters. The Armed Forces Tribunal’s decision to suspend the life sentences has not been made public. Neither the State nor Central authorities have challenged the Armed Forces Tribunal’s order.
“In April 2013, the Supreme Court granted security forces the option to try their own personnel, and the Border Security Force exercised this option in a few instances to the benefit of its personnel. Thus, in June 2017, media reports indicated that the General Security Forces Court had acquitted two members of the Border Security Force accused of the extrajudicial execution of 16-year-old Zahid Farooq Sheikh on 5 February 2010. Human rights groups which have been in touch with his families stated they were unaware of the decisions of the military courts or the status of their cases. This had been one of the few instances where the State police conducted a swift investigation and filed a case against the Border Security Force personnel. Additional work may be needed to verify this case.”
Burhan Wani’s killing
Kashmir’s Public Safety Act (PSA) is more draconian than the laws on preventive detention elsewhere. The report’s criticism applies to all such laws.
The report begins with Burhan Wani’s killing in July 2016. Creditably, it was widely criticised in India’s print media. “Civil society groups estimate that between 90 and 105 people were killed during the unrest between July and December 2016. According to Srinagar-based Jammu Kashmir Coalition of Civil Society (JKCCS), 105 people were killed in the period following protests that spread across the Kashmir Valley after 8 July 2016. It claims deaths were caused by injuries from pellet shotguns, bullets, tear gas shells, as well as by drowning, inhaling chemical shell fumes and shooting by unidentified gunmen. Amnesty International, Human Rights Watch and the International Commission of Jurists all claim there were over 90 fatalities in 2016.”
Paragraph 69 of the report is very relevant to the situation throughout India. It should alert the courts to their duty. “Under international law, states must investigate and prosecute gross violations of international human rights law and serious violations of international humanitarian law. In order to fulfil this obligation, states are obliged to undertake prompt, rigorous and impartial investigations of such violations, and, whenever possible, to take judicial and other appropriate measures, in particular the provision of effective remedies to victims, including reparations. This has been explicitly affirmed by a plethora of case law of international and regional human rights bodies, as well as by states through the adoption of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Reparation Principles). Furthermore, there is a growing body of jurisprudence by human rights courts, treaty bodies and other mechanisms confirming the right to know the truth/the right to truth and the duty to preserve memory which emphasise the central importance of a thorough and effective investigative process in order to counter impunity effectively.” Footnotes 103 and 104 contain a wealth of case law in support of these propositions.
Recourse to pellet guns
The recourse to pellet guns was criticised by all. The report cites the law comprehensively. “There appears to be two distinct patterns concerning the casualties reported from ‘encounter sites’: (1) what authorities have called ‘accidental killings’ involve people not taking part in protests who are ‘caught or hit in crossfire’ or hit by a ‘stray bullet’, but Kashmiri civil society organisations and journalists have questioned the narrative of these supposedly accidental killings, and (2) authorities claiming that some of those killed were helping members of armed groups, including protesters throwing stones at security forces. Security forces reportedly used pellet-firing shotguns and live ammunition in these situations. On 15 February 2017, the Chief of Staff of the Indian Army General Bipin Rawat warned protesters that security forces would use ‘tough action’ against anyone intervening in security operations.” No wonder he attacks the report. Arrests of minors are ably documented.
The relative of a “disappeared” person takes part in a protest to mark International Human Rights Day, in Srinagar in December 2017. The protest was organised by the Association of Parents of Disappeared Persons.
Kashmir is blessed with human rights activists whose commitment is backed by ability. “Prominent human rights defender Khurram Parvez was arrested and detained under the PSA on 15 September 2016, a day after being prevented from travelling to the Human Rights Council in Geneva. Human rights lawyer Kartik Murukutla, who works with Khurram Parvez at JKCCS, was detained at the New Delhi airport immigration desk on 24 September 2016 on his return from Geneva after attending the same Council session; he was informed that there was a ‘look out’ notice in his name which he alleges is a form of intimidation and reprisal against him for his engagement with the international human rights mechanisms. Kashmiri photojournalist Kamran Yousuf was arrested on 5 September 2017 and charged with sedition.”
‘Missing persons’
Why don’t our civil libertarians help Kashmiris? “While JKCCS and Association of Parents of Disappeared Persons claim that over 8,000 people have disappeared since 1989, the State and Central governments say around 4,000 are missing, most of whom they allege crossed over to Pakistan-Administered Kashmir. In January 2017, Chief Minister Mehbooba Mufti told the Jammu and Kashmir Assembly that 4,008 ‘missing persons’ from the State were in Pakistan-Administered Kashmir for arms training.
“According to JKCCS, there were at least seven cases of enforced or involuntary disappearances reported in 2017. Of these, the bodies or remains of five people were found a few months later. Three cases were blamed on security forces, while perpetrators have not been identified in the other four. Impunity for enforced or involuntary disappearances in Kashmir continues as there has been little movement towards credibly investigating complaints, including into alleged sites of mass graves in the Kashmir Valley and Jammu region. India signed the Convention for the Protection of all Persons from Enforced Disappearance on 6 February 2007 but has yet to ratify it.”
Typical of New Delhi. It has done the same thing on the Convention Against Torture—sign but not ratify. Of all the democracies, India has by far the worst record on respect for international conventions and norms. The Ministry of External Affairs (MEA) pins the blame on the Home Ministry from which has surfaced, after retirement, ardent Bharatiya Janata Party (BJP) men.
Kunan-Poshpora mass rape
The report records: “One significant case that illustrates the state’s failure to investigate and prosecute allegations of sexual violence and addressing impunity for sexual crimes in Kashmir is the Kunan-Poshpora mass rape, which took place 27 years ago and for which attempts to seek justice have been denied and blocked over the years by the authorities at different levels.
“According to survivors and a local administration official, on the night of 23 February 1991, soldiers from the 4 Rajputana Rifles regiment of the Indian Army gang-raped around 23 women of Kunan and Poshpora villages of Kupwara district. The Indian Army and Government of India have denied the allegations. In 1991, Wajahat Habibullah, who at the time was the Divisional Commissioner of the Kashmir region (a civil service position), filed a report with the State government addressing these allegations. In March 1991, former Chief Justice of Jammu and Kashmir High Court Mufti Bahauddin Farooqi led a fact-finding team that interviewed several survivors; he reportedly noted that ‘he had never seen a case in which normal investigative procedures were ignored as they were in this one’. The Jammu and Kashmir Police stopped its investigations by October 1991 after it declared the case was ‘untraceable’. In July 2013, Wajahat Habibullah accused the state authorities of deleting parts of the report where he had recommended a higher level investigation and a special order to ensure army cooperation.”
The Press Council of India had no right or jurisdiction to conduct a probe in this matter (see the writer’s article “Exceeding the brief”, Frontline , October 25, 1991). The best, if saddening but devastating reputation, of the army’s apologists’ lies. Over a time a Srinagar daily carried reports of efforts by the village elders to get the victims married off since stigma attaches to victims of rape.
There appeared recently a meticulously documented work on the gruesome crime, Do You Remember Kunan Poshpora, by Essar Batool, Ifrah Butt, Samreena Mushtaq, Munaza Rashid and Natasha Rather (Zubaan, New Delhi, pages 228, Rs.395). Zubaan is an independent feminist publishing house in the tradition of Kali for Women. The book documents sexual violence and impunity in Kashmir with ample proof. Appended are the full texts of contemporary official report, including the one by Wajahat Habibullah. His credibility is demolished.
The authors write that the “government official who, in our opinion, played a criminal role in hushing up the Kunan Poshpora mass rape/torture was Wajahat Habibullah, then Divisional Commissioner. Mr. Habibullah visited the village on 18 March and filed a confidential report to the government, which was later brought into the public domain. His report begins with the admission that: ‘The news of the alleged offence had attracted strong adverse comment from the local and national press and denials issued had failed to carry conviction. After discussion with the DGP and Corps Commander therefore it was decided that the undersigned might visit the village and also talk with concerned army officers to determine the course of action required to be followed to allay doubts and restore confidence.’
“It is clear from this sentence that the real motivation of his inquiry was not to find out the truth but only to allay doubts and restore confidence in army.
“‘While the veracity of the complaint is thus highly doubtful, it still needs to be determined why such a complaint was made at all. The people of the village are simple folk and by the Army’s own admission have been generally helpful and even careful of the security of the Army officers. It is possible that they have acted under militant pressure and that the long delay in making [the] report was a result of their not being able to withstand this. That elements wishing to discredit the Army as brutal, the civilian administration as ineffective and the Government of India as uncaring have orchestrated a campaign on the issue is also evident. This comes in the face of growing goodwill for the Army among the public and improved civil-military liaison. But at this stage and at the present level of the enquiry it is not possible to rule out the possibility of isolated incidents having occurred which have antagonised the villagers. Unlike Brig Sharma I found many of the village women with whom I spoke in Kashmir genuinely angry.’
“Interestingly, the authors noted 22 years after having recorded these statements, Wajahat Habibullah spoke out in public, claiming that the government ‘deleted important portions of his confidential report’ on the Kunan Posphora mass rape case in which he had recommended ‘a police probe, upgradation in the level of investigation, entrusting the case to a gazetted police officer and seeking an order from the 15 Corps Commander to ensure Army cooperation in the probe’. He added that he had also recommended several measures that the Army needed to take during operations. He also claimed that he protested about the deletions when the report was made public. He never explained why he had cast doubts, on such flimsy grounds, about the veracity of the victims, nor why he had accused them of delays, when he was well aware that they had left no stone unturned.
Wajahat Habibullah. He has been accused of indulging in doublespeak on the Kunan Poshpora incident.
“In response to Mr. Habibulla’s statement, Jammu Kashmir Coalition of Civil Society and Support Group for Justice for Kunan Poshpora issued a press statement: ‘The silence of Wajahat Habibullah following the deletion of parts of his report further implicates him. His silence for 22 years makes him culpable of the cover-up.’
“Wajahat Habibullah could have revealed the supposed truth about parts of the report being deleted while holding an important position in the administration in Kashmir when his report was first made public. But he chose to remain silent and protect his position for 22 years, at the cost of the credibility of the victims. His denials now are simply a convenient and belated excuse (pages 122-125).
Other reports on Kashmir
Why the furore over the U.N. report? For, since 1990 there have been published several reports on this sad affair. An outstandingly able report on human rights has been sadly neglected. It was by the scholar Patanjali (now Tunku) Varadarajan on the legal set-up and the abuses, published under the auspices of the International League for Human Rights in Paris. Amnesty International and Human Rights Watch have published several reports. Capping them all are the reports published by the JKCCS.
Here is a list of a few of them:
1. “Denied”: Failures in accountability for human rights violations by security force personnel in Jammu and Kashmir, Amnesty International, 2015.
2. The Human Rights Crisis in Kashmir: A Pattern of Impunity, Asia Watch, Human Rights Watch and Physicians for Human Rights, 1993. It was preceded by Rape in Kashmir: A Crime of War; The Crackdown in Kashmir and Kashmir Under Siege.
3. “Everyone Lives in Fear”: Patterns of Impunity in Jammu and Kashmir, Human Rights Watch, 2006.
4. Human Rights in Kashmir: Report of a Mission, International Commission of Jurists, Geneva, 1995.
5. Alleged Perpetrators: Stories of Impunity in Jammu and Kashmir, 2012.
6. Structures of Violence: The Indian State in Jammu & Kashmir, 2015.
Reports 5 and 6 are by International Peoples’ Tribunal on Human Rights and Justice in Indian-Administered Kashmir and the Association of Parents of Disappeared Persons. The latter is a massive documented report. Pervez Imroz, Khurram Parvez, Kartik Murukutla and Parvaiz Mata are the moving spirits behind these bodies (The Bund, Amira Kadal, Srinagar).
7. Widows and Half-Widows: Saga of Extra-judicial Arrests & Killings in Kashmir by Afsana Rashid, Pharos Media, New Delhi, 2011.
8. Kashmir: Will the Pain Never End? By a team comprising K. Balagopal and 10 others in Andhra Pradesh and Karnataka, 2007.
9. Kashmir Imprisoned: A Report, Committee for Initiative for Kashmir, 1990, by Premila Lewis Sequira Hasan, Nandita Haskar and Suhasini Mulay.
10. Blood on My Hand: Confessions of Staged Encounters by Kishalay Bhattacharjee, HarperCollins.
To these add press reports by some Indian correspondents of repute. The U.N. report has two omissions. One is the state-sponsored terrorist groups formed in the 1990s led by Kuka Parray and the likes. The other is torching and blowing of houses. It began in the 1990s. It persists still. A variant is breaking doors and windowpanes.
Muzaffar Raina of The Telegraph exposed these techniques recently (May 12, 2018). So did Peerzada Ashiq of The Hindu on June 1, 2018. This despicable tactic, used in Kashmir for over 25 years, was never used in other areas like Punjab and Nagaland. Zeid Ra’ad Al Hussein rightly said that accountability for human rights abuses cannot be suspended until the Kashmir dispute was resolved. The Indian state seeks to solve the dispute by crushing the people.
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