APPKG on Kashmir in UK releases report on HR situation in IOK » Kashmir Media Service

London, June 20 (KMS): The All-Party Parliamentary Kashmir Group (APPKG) in the UK Parliament has released an interim report on the ongoing human rights situation of occupied Kashmir.

The report compiled after receiving various testimonies about the human rights violations perpetrated by the Indian troops in the occupied territory was released by Chairman of the APPKG, MP Chris Leslie, in a meeting of the Group held in London. The report has discussed in detail the draconian laws, Armed Forces Special Powers Act (AFSPA) and Public Safety Act (PSA) as well as enforced disappearances in the territory.

The report said, the AFSPA gives the Indian forces’ personnel discretionary powers to kill, use excessive force and detain any person without any fear of prosecution. It said that to prosecute an erring soldier of policeman in a civilian court requires approval from the Indian government which is rarely granted. It said that the government of occupied Kashmir had sought permission to prosecute in 50 cases since 2001; and strikingly, the Indian government had declined to provide it in 47 of these. The report said, laws matter, but the effect of the AFSPA is to erode rather than strengthen the rule of law across the territory. It militates against a return to a rule-governed society which incorporates respect for human rights, and its repeal should be a matter of priority, it said.

The report said, the Public Safety Act (PSA) is the most frequently used of several instruments which enable administrative detention by police and paramilitary forces in occupied Kashmir. The APPKG is convinced by Amnesty International’s contention that the detention under the PSA violates the principle of legality required by the International Covenant on Civil and Political Rights (ICCPR) – to which India is a party. “In 2014 a petition under India’s Right to Information Act revealed the extent of this practice: a total of 16,329 administrative detentions had been filed since 1988. Tellingly, rates of detention under the PSA were not correlated with levels of violence in the state, lending credence to the suggestion that administrative detention powers are being abused,” it said.

The report pointed out that the due process principles observed in the context of PSA detentions also appear to fall far below what could be thought of as an acceptable standard. The detainees are not permitted to request legal representation, and the Act sets out no mechanism for judicial review, it added.

The report said that the APPKG had considered a number of well-evidenced submissions alleging forced disappearances in occupied Kashmir. It said, by any reckoning this constitutes a gross violation of international law as well as Indian domestic law, and the Group is particularly troubled by the refusal of the Indian forces in occupied Kashmir to commit to investigating credible allegations when they are presented.

“While official data is of course not available to us, solid evidence of disappearances numbering in the thousands, is lent credence by the International People’s Tribunal on Human Rights (IPTHR)’s 2009 findings, which indicated 2,943 unidentified bodies across 55 villages in Kashmir. The IPTHR ‘fears that many of those bodies belong to the roughly 8,000 civilians believed to be victims of enforced disappearances by security forces in Kashmir’,” it said. The J&K Government posture, of wholesale refusal to investigate the identity of bodies deposited in mass graves, is in our view both morally indefensible and wholly at odds with international legal instruments which India is theoretically committed to upholding,” it added.

The report said, this, the first instalment of the report, offers an overview of the key issues which have emerged during the inquiry by the APPG so far, and some ad interim conclusions. It said that both would be supplemented by a full set of recommendations to follow the final stages in the evidence-gathering process. It added that what follows will give the members and supporters of the group a useful chance to take stock of the major questions at hand in advance of the eventual findings.

Following is the full text of the report:

Foreword
Chris Leslie MP

Chair, All-Party Parliamentary Kashmir Group

Over the past several months the All-Party Parliamentary Kashmir Group, which I have the privilege to chair, has considered extensive written and oral submissions on the human rights picture in Indian-administered Jammu and Kashmir (J&K).

Chief among the APPKG’s longstanding focuses has been to promote awareness of the systematic abuses which still frame life in the region. In this vein, the publication of our report will represent a significant moment for the group, and hopefully a rallying point for action on the Kashmir issue in Britain.

Due in no small part to the consciousness-raising efforts of the redoubtable Kashmiri diaspora which exists in many parts of Britain – whose tirelessness on this issue, and willingness to engage with the APPKG over the years, is hugely appreciated – the contours of the current situation will be familiar to our supporters in and outside Parliament. The MPs and Peers who have attended our events, and participated in the debates we’ve regularly secured, will have heard colleagues draw frequent attention to the issues canvassed in this report. Our findings build on their efforts and the work, in most cases over many years, of all those who have given evidence to the APPKG already. I want to begin by registering my gratitude to all of them.

This, the first instalment of our report, offers an overview of the key issues which have emerged during our inquiry so far, and some ad interim conclusions. Both will be supplemented by a full set of recommendations to follow the final stages in our evidence-gathering process. What follows will I hope give our members and supporters a useful chance to take stock of the major questions at hand in advance of our eventual findings.

The legal dimension

Central to any assessment of the dynamics which shape civilian life in Jammu & Kashmir is an appreciation of the distinct legal structure which governs the operation of the state’s vast per capita military presence, which is reliably pegged at c. 60,000 Army officers stationed, in addition to significant permanent armed deployments from the Central Reserve Police Force (CRPF) and Border Security Force (BSF).

This is a natural starting point not least because the distinctiveness of the legal picture in J&K is central both to pro-and anti-government perspectives.

For India, where the basic posture of successive central governments (and baldly that of the incumbent Modi administration) has been to view Kashmir ‘pre-eminently as a law and order problem, rather than an issue which is symptomatic of political alienation,’1 giving security forces the tools and freedoms they require is a matter of logic and proportion. Lt. Gen. B.S. Jaswal, the Chief of the Indian Army’s Northern Command, put the central issue in 2010:

‘For special circumstances you require special laws. There are special circumstances in Jammu and Kashmir … that require special laws to [empower] the Army to act firmly in certain circumstances that exist in this case’

From a critical standpoint, by contrast, the parallel legal apparatus in J&K, in both form and consequence, violates Kashmiris’ human rights. The crux of a 1993 Amnesty International report —

‘The pattern of grave human rights violations in Jammu and Kashmir … involves persistent reports of thousands of arbitrary arrests and prolonged arbitrary detentions under special laws curbing important legal safeguards and thus facilitating human rights violations; notably “disappearances”, routine torture of detainees so brutal that it frequently results in death, rape of women during search operations, and extrajudicial executions of unarmed civilians, often falsely labelled as having been the result of “encounters” or as having occurred in “cross-fire”; [and] security forces have … operated with virtual impunity’

— echoes with dispiriting precision the points raised by commentaries written two decades later. In 2012, the Crisis Watch Group summarised the legal picture in the following terms:

‘J&K remains heavily militarised, and draconian laws that provide legal cover for human rights abuses by security officials remain in force [, giving the] army widespread powers to search houses, arrest people without warrants and detain suspects indefinitely’

Attention has justifiably been given to two pieces of legislation in particular: the Armed Forces (Jammu & Kashmir) Special Powers Act (AFSPA); and the Public Safety Act (PSA) – whose combined effect, critics contend, is massively to broaden the discretionary powers given to security forces in J&K, and then shield them from legal scrutiny or attempt at prosecution.

A closer analysis of their provisions as written, and effects in practice, will shed some light on how these legal fixities systematically determine failures to uphold human rights in J&K.

The Special Powers Act, versions of which apply in other Indian states, is used to deploy the military in internal conflict scenarios. In its 2016 survey of the human rights picture in India, the U.S. State Department summarizes its provisions as follows:

‘Under the AFSPA, a central government designation of state or union territory as a “disturbed area,” authorizes security forces in the state to use deadly force to “maintain law and order” and arrest any person “against whom reasonable suspicion exists” without informing the detainee of the grounds for arrest. The law also provides security forces immunity from civilian prosecution for acts committed in regions under the AFSPA’

Second, the Public Safety Act, which applies only in J&K, gives state authorities permanent powers of administrative detention. Again, from the State Department’s 2016 report:

‘The Act … permits state authorities to detain persons without charge or judicial review for up to two years without visitation from family members. Authorities allowed detainees access to a lawyer during interrogation, but police in Jammu and Kashmir allegedly routinely employed arbitrary detention and denied detainees access to lawyers and medical attention’

In both instances there are parallel but distinct criticisms in relation to human rights. On the one hand, critics hold that the AFSPA and PSA constitute an immediate evidentiary violation of India’s international human rights obligations. On the other, it is pointed out that (well-evidenced) claims of abuse by police and security forces reflect a culture of disregard for human rights which is in practice systematized by the Acts themselves. In the APPKG’s judgement both of these propositions are amply justified.

The Special Powers Act

The first of several localised Armed Forces Special Powers Acts (AFSPA) came into force in 1958 in the Naga Hills in India’s northeast; subsequent iterations continue to have force in Nagaland, Manipur, Assam, and parts of Mizoram. In 1989, in response to the burgeoning armed insurgency there, the Act’s ambit was expanded to cover Jammu & Kashmir. This exigency was given permanent (and retroactive) legal force at the state level by the Armed Forces (Jammu and Kashmir)

Special Powers Act of 1990.

A number of humanitarian organisations as well as UN agencies consider AFSPA provisions to be in direct conflict with human rights directives to which India is itself a signatory.

A close reading of the legislation reveals the full extent of its application.

The effect of Sections 3, 3(a) and 3(b) is to invest both State and Union governments with the power unilaterally to designate ‘disturbed areas’ subject to quasi-martial provisions. Once a ‘disturbed area’ classification has been issued, Section 4 gives any serving member of the armed forces extremely broad discretionary power to do take whatever action they believe necessary in pursuit of maintaining ‘public order’ without the possibility of prosecution.

In practice, as one usefully thorough survey of the law’s implications suggests, these articles combine to give the entire military and security establishment in J&K extraordinary latitude:

Any commissioned or non-commissioned officer or any other person in the armed forces … may fire upon or use force, even amounting to death, against any person, if [they think] it necessary. [The] officer can destroy, any premises, public or private, from which armed attacks are made or are likely to be made [. The] officer can arrest, without warrant, any person who has committed acognisable offence or against whom a reasonable suspicion exists or is about to commit a cognisable offence. Moreover, the officer can enter and search, without warrant, any premises to make any arrest or to recover any person or any property suspected to be stolen or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises and seize any property. The said officer can stop, search and seize any vehicle reasonably suspected to be carrying any person who has committed a non-cognisable offence or against whom a reasonable suspicion exists that he or she has committed or is about to commit non-cognisable offences. [The] appointed officer also has the power to search and break open the lock of any door, almirah, safe, box, cupboard, drawer package or other thing.

The consequence of such a broadly defined ‘disturbed area’ designation, as a 2015 Amnesty International report suggests, has been to permanently change the operating logic and strategic limits of counter-insurgency for troops deployed in J&K:

‘The classification of “disturbed area” … has allowed the army and paramilitary forces to argue that they are on “active duty” at all times and that therefore all actions carried out in the state – including human rights violations – are carried out in the course of official duty, and are to be treated as service-related acts instead of criminal offences’

The Indian government, of course, contends that virtually every country affords serving military and police personnel some degree of leeway to make these real-time judgements. This is true – indeed it is virtually unexceptionable – but in our judgement misleads as a justification for the AFSPA. The breadth of the immunity provided for by the SPA places the legal regime it creates at a clear extreme among democratic states. Even, then, if we take the point that the difference is one of degree rather than category, the untrammelled carte-blanche afforded to Army officers in J&K, up to and including the use of legal force, cannot be justified by appeal to accepted international practice.

In this vein, it is Section 7 of the SPA – which mandates approval from central government in order for any attempt at prosecution of officers operating under its auspices to proceed in civilian courts – which most obviously gives the Act’s preceding provisions their teeth.

The text of the provision is striking in its breadth, extending this presumption of immunity to all ‘persons acting in good faith.’ Troublingly, appraisal of whether the ‘good faith’ criterion is satisfied is itself left to the agencies determining whether to issue permission to prosecute (the Ministry of Defence or Ministry of Home Affairs, depending on whether the case involves a serving Army officer).

This mechanism has not gone untested: the J&K state government has sought permission to prosecute in 50 cases since 2001; and strikingly, the Union government has declined to provide it in 47 of these.

Amnesty International highlight several cases in which ‘victims’ families … have argued that prosecuting civil offences such as murder or rape should not require sanction from central government as such offences do not fall under the “exercise of the powers conferred” by the AFSPA. In such cases, extraordinarily, the Army and security forces have ‘successfully countered that all acts must be considered done in “good faith” since security force personnel are constantly … under threat in “disturbed areas”.’

By any measure this is an extraordinary state of affairs, albeit one without obvious remedy in Indian domestic law, the Supreme Court having upheld the AFSPA’s constitutionality in a 1997 ruling (although the Court did not, as Amnesty reasonably points out, have to consider India’s obligations under international law).

Insofar as Indian security forces feel emboldened to act without restraint, then, the impunity granted by AFSPA is only partly responsible. Of equal weight is a political and legal culture on the part of Indian central government which tends toward fierce resistance to permitting prosecution even in rare instances where the J&K state government opts to pursue them.

It is worth restating that the APPKG does not reject in principle a more limited construction of the Indian Government’s case: armed soldiers engaged in counter-insurgency do obviously require additional legal protections in order to discharge their duties. But such an argument does not make the case for a law as expansive the AFSPA – either on paper or in the deeply disturbing context adumbrated hereabove.

Laws, after all, are only as effective as their enforcement mechanisms, and the absence of any legally enforceable standard for “good faith,” or statutory limitation on “powers conferred” under the Act, renders its references to such requirements virtually meaningless as a check on abuses.

It is vital that legislation which affords any measure of legal insulation to armed personnel, especially in domestic arenas, seeks equally to create a legal framework within which soldiers can make responsible decisions; the AFSPA does the opposite. The Act holds out the permanent prospect of blanket immunity, and in practice this immunity is underwritten by the consistent willingness of central Government to indulge excesses.

On evidence considered by the APPKG, this willingness is certainly not lost on serving personnel. A Human Rights Watch commentary on conditions in Kashmir in March 2018 framed the problem in the following terms:

‘Though protests in Kashmir can be violent at times, the response of the security forces should always be proportionate. Lethal force should be the last resort, used only when lives are threatened. Promptly investigating allegations of abuses and prosecuting those responsible is key to resolving this “mess”’

The above passage captures the essence of our frustration: laws matter, but the effect of the AFSPA is to erode rather than strengthen the rule of law across the state. It militates against a return to a rule-governed society which incorporates respect for human rights, and its repeal should be a matter of priority.

The Public Safety Act

The Public Safety Act (PSA), a state law promulgated in 1978, is the most frequently used of several instruments which enable administrative detention by police and security forces in J&K. A 2011 Amnesty International report on the PSA elaborates the theoretical effect of its provisions:

‘Chapter IV of the PSA is entitled “Power to Make Orders Detaining Certain Persons” and regulates such detentions. Unlike the National Security Act 1980 (NSA) – a similar law in force in other states of India, which limits detention to a maximum period of one year, the PSA provides for detention for a maximum of two years “in the case of persons acting in any manner prejudicial to the security of the State. Detention under the PSA can be ordered by either of two executive officers – the Divisional Commissioner or a District Magistrate. Once a PSA detention order has been issued, the grounds of detention must be provided to the detainee within five to ten days of the detention, but without the necessity to disclose facts that the detaining authority “considers to be against the public interest to disclose”’

From a human rights standpoint two central objections to the PSA emerge.

The first mirrors a criticism of the AFSPA canvassed above: clauses that ought to impose limitations on the law’s application – most obviously “manners prejudicial to the security of the State” – lack any legally enforceable standard, and so in practice broaden it to the point of sanctioning abuses. The APPKG is convinced by Amnesty International’s contention that ‘the possibility of detention on such broad and vaguely defined allegations violates the principle of legality required by Article 9(1) of the International Covenant on civil and Political Rights (ICCPR).’ India is a party to the ICCPR.

The second criticism turns on the demonstrable willingness of security forces in J&K to enforce the Act’s provisions in an arbitrary and abusive fashion, both by routinely relying on administrative detention powers rather than utilising conventional powers of arrest and by pursuing such detentions without any demonstrable cause.

In 2014 a petition under India’s Right to Information Act revealed the extent of this practice: a total of 16,329 administrative detentions had been filed since 1988. Tellingly, rates of detention under the PSA were not correlated with levels of violence in the state, lending credence to the suggestion that administrative detention powers are being abused.

Due process principles observed in the context of PSA detentions also appear to fall far below what could be thought of as an acceptable standard.

Detainees are not permitted to request legal representation, and the Act sets out no mechanism for judicial review.

Without the possibility of judicial review, commensurately little store is set by record-keeping or transparency, and as a consequence granular detail on individual cases is rarely available to us. But statistics at the periphery – for the most part collected in instances where PSA detention cases come into contact with the regular civilian judiciary – paint a consistent picture of ad-hoc, arbitrary justice, with prosecutions unable to pass legal muster.

Amnesty International’s report goes on to note that where PSA detention orders are supplemented by ‘allegations that equipment and ammunition have been recovered at the time of arrest (a commonplace ruse in the absence of substantive charges, of which more later) these allegations do not bear even superficial scrutiny in civilian courts. Their findings are stark: only 0.5 percent of the J&K residents thus charged and tried are actually convicted. ‘In the vast majority of the … cases studied for this report in which arms and ammunition were [purportedly] recovered, the detainees were also charged under the Arms Act and prosecuted in regular courts, [which] appear unconvinced by the evidence in such cases.’

Further malfeasances are in evidence when looking at routine enforcement practices under PSA aegis. In one particularly striking example, leaked minutes of a “special security meeting” held in Srinagar in 2005 reveal Army generals in command of counter-insurgency forces setting explicit targets for the detention of suspected militants.

The perverse incentive structure inevitably created by this ‘targets’ regime – which requires police to meet monthly and quarterly quotas for arrest and detention – is at profound odds with any recognisable standard of justice.

Indeed, in ‘at least 77’ cases of PSA detention studied in the report, ‘no reference … to any specific act, date or event’ is adduced at all. In such a climate, as the report reasonably notes, wholesale ‘fabrication and concoction … cannot be ruled out.’ But equally as troubling should be the more immediate and unavoidable consequence that in the absence of concrete allegations, detainees have no means of defending themselves. The APPKG notes with concern the United Nations Working Group on Arbitrary Detention’s finding, in a 2008 review of ten PSA cases, that these detentions failed to conform to a number of binding international obligations to which India is a signatory.

There is, of course, a familiar circularity to violence, in that demonstrations are offered as a pretext both for reprisals and for the preservation of such a draconian legal framework, and that these manifestations of state repression themselves inspire fresh cycles of militancy and resentment.

The same vicious logic has played out in the attitude of successive Indian governments both to revisiting the AFSPA and PSA and seeking to broker a peace. Dr Gareth Price at Chatham House described the catch-22 in late 2017: against a backcloth of protest, India is perpetually unwilling to open negotiations; but ‘when protests die down, governments have generally interpreted [it] as Kashmiri acquiescence towards the status quo,’ obviating any impetus for dialogue or reform.

Breaking this logjam is essential. As a first step, evidence of a sincere willingness on India’s part to bring policing and criminal justice in J&K in line with international norms would be hugely welcome.

Forced disappearances and a lack of transparency

The second article of the International Convention for the Protection of All Persons from Enforced Disappearance, signed but as yet not ratified by India, adopts the following definition:

For the purposes of this Convention, “enforced disappearance” is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”

The APPKG has considered a number of well-evidenced submissions alleging forced disappearances in J&K. By any reckoning this constitutes a gross violation of international law as well as Indian domestic law, and the Group is particularly troubled by the refusal of security forces in the state to commit to investigating credible allegations when they are presented.

While official data is of course not available to us, solid evidence of disappearances numbering in the thousands, is lent credence by the International People’s Tribunal on Human Rights (IPTHR)’s 2009 findings, which indicated 2,943 unidentified bodies across 55 villages in Kashmir. The IPTHR ‘fears that many of those bodies belong to the roughly 8,000 civilians believed to be victims of enforced disappearances by security forces in Kashmir.’

The Crisis Watch Group’s creditable reporting on the issue finds a similarly sobering picture:

During the last two decades, thousands of Kashmiris have disappeared as a result of security operations. An investigation conducted by the J&K State Human Rights Commission in 2011 found 2,156 bodies in unmarked graves at 38 sites in northern Kashmir. While the Indian government claimed that the bodies were all of unidentified, mostly Pakistani, militants that had had been given to village authorities for burial, at least 574 were identified as local Kashmiris’

In this contact, the APPKG is especially troubled by the seemingly deliberate opacity of the process mandated by the J&K Government for ascertaining the identity of a body located within a grave.

In order for an investigation to be opened, the petitioning family member must provide information including the precise date and circumstances of the death or disappearance, and evidence to justify ‘some degree of certainty of the grave believed to contain their loved one.’

It seems clear that these conditions are sufficiently onerous as to put due process beyond the reach of most Kashmiri citizens. They are also in tension with the relevant articles in the Convention for the Protection of All Persons from Enforced Disappearance.

Article 24 (2) provides that victims have “the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person,” and that the “State Party shall take appropriate measures in this regard.”

A number of the Convention’s articles deal with the right to truth, and their combined effect is clearly to place the burden for investigation and remedy on state actors, rather than victims or their families. The process followed in Jammu & Kashmir is almost laughably at odds with such an expectation.

The J&K Government posture, of wholesale refusal to investigate the identity of bodies deposited in mass graves, is in our view both morally indefensible and wholly at odds with international legal instruments which India is theoretically committed to upholding.


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