OHCHR releases second report on Jammu and Kashmir » Kashmir Media Service

India asked to respect Kashmiris’ self-determination

Geneva, July 08 (KMS): Office of the United Nations High Commissioner for Human Rights (OHCHR) in its second report on Jammu and Kashmir released in Geneva today has highlighted serious human rights violations by the Indian forces and patterns of impunity in occupied Kashmir.

India has been urged in the report to fully respect its international human rights law obligations in occupied Kashmir including the right of self-determination of the people. It asked the Human Rights Council to consider the findings of this report, including the possible establishment of a commission of inquiry to conduct a comprehensive independent international investigation into allegations of human rights violations in Kashmir.

The report also urged India to establish independent, impartial and credible investigations to probe all civilian killings which have occurred since July 2016 in the occupied territory. It also asked New Delhi to investigate all blanket bans or restrictions on access to the Internet and mobile telephone networks that were imposed in 2016, and ensure that such restrictions are not imposed in the future in the territory. It underlined the need to end restrictions on the movement of journalists and arbitrary bans of the publication of newspapers in Jammu and Kashmir.

It appealed India to urgently repeal the Armed Forces (Jammu and Kashmir) Special Powers Act as well as amend the Public Safety Act to ensure its compliance with international human rights law.

This second report of the OHCHR on the situation of human rights in Indian occupied Kashmir covers the period from May 2018 to April 2019. On 14 June 2018, OHCHR had released its first report on the human rights situation in the territory covering the period from July 2016 to April 2018. That report focused on the serious human rights violations, notably excessive use of force by the Indian forces that led to numerous civilian casualties, arbitrary detentions, impunity for human rights violations.

Today’s report said that India rejected the first report’s findings and recommendations, accusing the UN of violating its “sovereignty and territorial integrity”. Pakistan welcomed the report and supported the recommendation to establish a Commission of Inquiry to address allegations of human rights violations in occupied Kashmir.

The report maintained that there remains an urgent need to address past and ongoing human rights violations in occupied territory so that justice is delivered to the Kashmiri people.

The report advocated for ensuring independent, impartial and credible investigations into all unmarked graves in occupied Kashmir.

Some of the excerpts of the updated OHCHR report are as follows:

According to the Jammu and Kashmir Coalition of Civil Society (JKCCS), around 160 civilians were killed in 2018, which is believed to be the highest number in over one decade.Last year also registered the highest number of conflict-related casualties since 2008 with 586 people killed including 267 members of armed groups and 159 security forces personnel. According to JKCCS, 1,081 civilians have been killed by the Indian forces in extrajudicial killings between 2008 and 2018.

According to JKCCS, of the 160 civilians reportedly killed in 2018, 71 were allegedly killed by Indian forces. The Kashmir Valley, where most of the protests and armed encounters are reported to have taken place, accounted for 122 of these civilian killings. The 4 districts of South Kashmir – Pulwama, Kulgam, Shopian and Anantnag – recorded 85 of the 122 civilian killings in 2018.

In the first 3 months of 2019, 21 civilians were reportedly killed in occupied Kashmir. According to JKCCS, a total of 162 conflict-related casualties were recorded between January and March 2019.

In comparison, between July 2016 and March 2018, OHCHR reported around 165 civilian killings that took place in Kashmir. Civil society groups believe that a majority of the civilian killings recorded in 2018 were due to excessive use of force by Indian security forces against civilians. This is similar to the pattern found by OHCHR from July 2016 to March 2018. Similar to 2017, a majority of the killings reported in 2018 took place around sites of encounters between security forces and armed groups. While some of the civilians killed were protesters who may have been throwing rocks at security forces to help armed group members escape, there have been several cases of bystanders or civilians situated far from encounter sites. As in the past, security forces allegedly used live ammunition and pellet-firing shotguns to disperse such protesters resulting in serious injuries and deaths. For instance, on 5 May 2018, security forces allegedly killed five civilians and injured dozens of others after protests broke out near an encounter site where five members of an armed group were killed in a gunfight. The five civilians, including a minor, were allegedly shot dead by security forces in their action against the protesters. In another incident on 15 December 2018, seven civilians were reportedly killed near the site of an armed encounter in Pulwama district of South Kashmir where Indian security forces carried out actions in which three armed group members were killed. The seven civilians, including three minors, were killed when security forces allegedly opened fire on protesters who confronted them after the armed encounter ended. In 2018, at least 39 civilians, including 11 minors, were killed near armed encounter sites in the Kashmir Valley allegedly due to excessive use of force against protesters.

Despite the high number of civilians being killed near encounter sites in 2018, there is no information about any new investigation into excessive use of force leading to casualties. There is no information on the status of the five investigations launched into extrajudicial executions in 2016. The authorities in Jammu and Kashmir did not establish any investigations into civilian killings in 2017. No prosecutions have been reported. It does not appear that Indian security forces have been asked to re-evaluate or change their crowd-control techniques or rules of engagement.

Through several official communications addressed to the Government of India, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions has raised concerns about the alleged violations of the right to life in Jammu and Kashmir, especially since the 2016 unrest began. Since January 2018, the Special Rapporteur has sent three communications to India expressing concerns about “intentional, excessive or indiscriminate use of firearms” by Indian security forces and the failure to conduct “thorough, prompt and impartial investigations” into these cases in order to uphold rule of law and to ensure non-reoccurrence of the violations.

Taking note of OHCHR’s June 2018 report, a number of United Nations Special Rapporteurs issued a joint communication in which they noted: “We regret that, from the information received, it does not appear that efforts have been made to implement the recommendations, including in relation to the repeal the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990; to establish independent, impartial and credible investigations to probe all civilian killings which have occurred since July 2016; to investigate all deaths that have occurred in the context of security operations in Jammu and Kashmir following the guidelines laid down by the Supreme Court of India.

According to JKCCS, on 15 December 2018, Indian security forces used four civilians as human shields during a gunfight with armed group members in Pulwama district. One of the civilians said that they were ordered to remove logs scattered in an orchard to find the exact hideout of suspected armed group members. Seven civilians and three armed group members were killed in this armed encounter.

Continued use of pellet-firing shotgun

Indian security forces continue to use pellet-firing shotguns in the Kashmir Valley as a crowd-control weapon despite concerns as to excessive use of force and the large number of incidental civilian deaths and injuries that have resulted. It should be noted that this weapon is not deployed elsewhere in India. As noted in OHCHR’s June 2018 report, the 12-gauge pump-action shotgun firing metal pellets is one of the most dangerous weapons used in Kashmir. On 16 June 2018, a civilian was killed in Anantnag district of South Kashmir after being hit by metal pellets fired by security forces at protesters returning from Eid prayers. The deceased had pellet wounds in his neck and throat. In another incident a 19-month-old girl was hit by the metal pellets in her right eye on 25 November 2018. The metal pellets were successfully removed from her eye but doctors were unsure whether she would regain her eyesight completely.

According to information from Srinagar’s Shri Maharaja Hari Singh Hospital, where most pellet shotgun injured are treated, 1,253 people have been blinded by the metal pellets used by security forces from mid-2016 to end of 2018.

Cordon and Search Operations

So-called “cordon and search operations”, a much-criticized military strategy employed by the Indian security forces in the early 1990s, was reintroduced in the Kashmir Valley in 2017. During the peak of anti-India resistance in the 1990s, most extrajudicial killings were associated with cordon and search operations. Typically in a cordon and search operation, security forces order all the men of a neighbourhood to come out and assemble for an “identification parade in front of hooded informers”. According to national and international human rights organizations, cordon and search operations enable a range of human rights violations, including physical intimidation and assault, invasion of privacy, arbitrary and unlawful detention, collective punishment and destruction of private property. In a September 2018 statement, the Organisation of Islamic Cooperation contact group on Jammu and Kashmir expressed “grave concern over the cordon and search operations in which Kashmir youth are being targeted with impunity”. In 2018, civilian deaths were also reported due to excessive use of force during cordon and search operations. On 22 June 2018, a 55-year-old man, Mohammed Yousuf Rather, was allegedly shot when security forces entered his home in Nowshehra village of Anantnag district as part of a local operation. He died before reaching the hospital. On 26 September 2018, a 24-year-old man, Mohammed Saleem Malik, was killed during a cordon and search operation near his house in Srinagar’s Noorbagh area.

JKCCS also recorded 120 cases of destruction of civilian property during cordon and search operations in 2018 including 31 private houses being completely burnt down. Another 18 cases of destruction of civilian property were reported in the first 3 months of 2019. Persons affected have complained that they have not received any compensation.91

Arbitrary detention

Authorities in J&K continue to use various forms of arbitrary detention to target protesters, political dissidents and other civil society actors. A number of laws in Jammu and Kashmir provide the legal basis for arbitrary detention, but the one that is used most frequently to stifle protests and political dissent is the Jammu and Kashmir Public Safety Act (PSA) 1978. The PSA does not provide for a judicial review of detention, and state authorities have defied orders by the Jammu and Kashmir High Court to release people detained under this law by issuing successive detention orders. This practice has been used to keep people arbitrarily in detention for several weeks, months, and, in some cases, years. The Supreme Court of India has described the system of administrative detention, including PSA, as a “lawless law”.

Pro-freedom leader Masarat Alam, who was first detained under the PSA in 2010, was charged for the 37th time in November 2018. He was re-arrested under the PSA in apparent contravention of the Supreme Court’s orders that any new detention order against him would not come into effect for a week to help him prepare his legal defence. Despite being repeatedly detained under the PSA, Masarat Alam has never been convicted of any charges. Several pro-freedom political leaders were detained under PSA in 2018 and 2019 and continue to be imprisoned.

In July 2018, the J&K administration amended section 10 of the PSA, removing the prohibition on detaining permanent residents of Jammu and Kashmir outside the state. At least 40 people, chiefly pro-freedom political leaders charged under the PSA were transferred to prisons outside the territory in 2018. There are fears that the Government’s decision to transfer PSA detainees outside Jammu and Kashmir is a way to punish the detainees further, as this makes it harder for them to be visited by their family members or to meet with their legal counsel. In relation to this, some prisons even deny lawyers permission to meet their clients without special court orders. Prisons outside Jammu and Kashmir are also considered hostile for Kashmiri Muslims detainees, especially pro-freedom leaders, as they are treated as “terror suspects”. While protesters throwing stones or pro-freedom leaders are usually held initially for three months as a form of preventive detention, authorities extend their detention for three months at a time without producing any new evidence substantiating grounds for their continued detention.
A right to information (RTI) inquiry revealed that while the PSA Advisory Board confirmed almost 99 percent of the detention orders, the Jammu and Kashmir High Court reversed over 81 percent of these detention orders. In May 2018, the J&K Government further diluted the checks and balances in the application of the PSA by removing the need to consult Jammu and Kashmir High Court Chief Justice while constituting the Advisory Board. OHCHR was informed that despite the Jammu and Kashmir High Court setting aside numerous PSA detention orders, the authorities continue to detain people by imposing new PSA orders even before suspects leave prisons.

The United Nations Treaty Bodies and Special Procedures have called on India to amend the PSA to ensure it complies with its international human rights obligations. The Human Rights Committee has noted that the PSA contravenes the rights enshrined in the International Covenant on Civil and Political Rights, especially the rights to liberty and to a free and fair trial. While analyzing several cases of arbitrary detention under the PSA, the Working Group on Arbitrary Detention observed that, “[the] Government has not refuted the allegation that these persons were detained by security forces under the said Act without serving them with an arrest warrant, which constitutes a violation of due process in detention.”

Impunity for human rights violations

Indian authorities have made no attempt to address serious concerns about access to justice and impunity for human rights violations committed in Jammu and Kashmir. The Armed Forces (Jammu and Kashmir) Special Powers Act 1990 (AFSPA) remains a key obstacle to accountability. As described in the June 2018 OHCHR report, this Act grants broad powers to the security forces operating in Jammu and Kashmir and effectively bestows immunity on security forces from prosecution in civilian courts for their conduct, by requiring the Indian Government to sanction all prospective prosecutions against such personnel. Section 7 of the AFSPA prohibits the prosecution of security forces personnel unless the Government of India grants a prior permission or “sanction” to prosecute. In nearly three decades that the law has been in force in Jammu and Kashmir, there has not been a single prosecution of armed forces personnel granted by the central government. Moreover, the Indian Army has used section 7 to block prosecution of its personnel even by independent federal investigation agencies.

Despite repeated calls from national and international human rights experts to repeal the AFSPA, Indian authorities have given no indication that this law will be repealed or amended in Jammu and Kashmir. Despite allegations of serious human rights violations committed by the Indian security forces, especially, Indian authorities have consistently undermined efforts to hold members of security forces accountable. As of 1 May 2019, it does not appear that Indian authorities have changed their approach in addressing charges of impunity enjoyed by the security forces.
A staged or “fake encounter” near the Pathribal village in the Anantnag district of Jammu and Kashmir in March 2000 illustrates the means that have been used to ensure impunity for security forces until now.

The Indian Army has also been resisting efforts to release details of trials conducted by military courts150 where soldiers were initially found guilty but later acquitted and released by a higher military tribunal. In 2017, the Indian Army petitioned the Delhi High Court urging it to set aside a 2015 Central Information Commission’s order to release trial details to an individual who filed a right to information request. The case has since been adjourned several times in 2018 and has been now listed for July 2019.

There has been no progress in the Kunan Poshpora mass rape case from 1991, and authorities continue to thwart attempts of the survivors to get justice.

Restrictions on freedom of expression, censorship and attack on press freedoms

Jammu and Kashmir continues to face frequent barriers to internet access as the authorities continue to suspend arbitrarily internet services. According to a United Nations Educational, Scientific and Cultural Organization (UNESCO), South Asia reported the highest number of shutdowns in the world between April 2017 and May 2018 with India accounting for the highest level of shutdowns in the world. Half of all internet shutdowns in India were reported from the Kashmir Valley. UNESCO said that internet shutdowns “pose a threat to human rights and block the public’s right to know; and have emerged a significant tool of censorship by governments which are increasingly utilizing shutdowns under the guise of security”. A widely followed Indian civil society group that tracks internet shutdowns reports that 65 of the 134 incidents of internet shutdowns recorded in India in 2018 were in Jammu and Kashmir. In the first 4 months of 2019, Jammu and Kashmir experienced 25 instances of internet shutdown.

In 2018, several journalists and human rights defenders – mostly based in the Kashmir Valley – reported that social media platforms Twitter and Facebook had taken actions against a number of accounts for various Kashmir-related content, including removing such posts or suspending user accounts.

According to UNESCO, the Kashmir Valley continues to be an extremely dangerous place for journalists as 21 journalists have lost their lives in Kashmir Valley since 1990 in “targeted killings or caught in the cross-fire”. UNESCO noted that assaults by military, state-sponsored renegades and other groups had made journalism a hazardous profession during the 1990s. Abduction, parcel bombs and intimidation were not uncommon.

Press freedom groups reported several incidents of attacks and restrictions on journalists in the Kashmir Valley in 2018. On 2 June 2018, journalist Muheet ul Aslam allegedly was assaulted by Central Reserve Police Force personnel in Srinagar while on his way to cover the funeral of civilian who was killed after being run over by a Central Reserve Police Force truck.

On 27 August 2018, the authorities detained Aasif Sultan, Assistant Editor of Kashmir Narrator newspaper. On 1 September 2018, he was formally arrested for his alleged support to militant organizations. The Jammu and Kashmir Police told a local court that through his writings Aasif Sultan would often give coverage to Hizbul Mujahideen militants, especially Burhan Wani, to attract youth towards militant organisations. Aasif Sultan was charged under the Unlawful Activities (Prevention) Act 1967 with conspiracy, harbouring a “terrorist” and “support given to a terrorist organisation”. On 14 November 2018, a court denied his bail request and extended his detention until 7 December 2018, despite the fact that the police have failed to file formal charges against him. As of 1 May 2019, Aasif Sultan remains in detention. The Twitter account of Kashmir Narrator newspaper was blocked at the time of Aasif Sultan’s arrest; the official reason given by Twitter was: “Account withheld – @KashmirNarrator’s account has been withheld in India in response to a legal demand.”

During the local body elections organized in October 2018, media associations reported several cases of police assaults and severe restrictions against journalists from across the Kashmir Valley. These incidents included police preventing journalists from covering the local body elections by placing restrictions on their movement or preventing them from taking photographs, police stopping journalists from covering public funerals of armed groups members killed in gunfights with security forces, journalists beaten up by security forces while covering security operations, journalists getting hit by metal pellets and journalists assaulted for allegedly informing stone throwing protesters of police movement.

Foreign journalists based in India informed OHCHR that beginning in mid-2018 the Indian authorities introduced new restrictions on foreign media personnel reporting from Jammu and Kashmir including the need for special permission from the Indian government. According to the former South Asia Bureau Chief of The Washington Post, in May 2018 the Government of India sent official warnings to foreign journalists about travelling to “certain areas” without permission. This was interpreted by journalists to mean permission for going to Kashmir. OHCHR verified this new policy with multiple foreign correspondents, many of whom have been waiting for official permission to visit Jammu and Kashmir for several weeks. In December 2018, Reuters photojournalist Cathal McNaughton was denied re-entry into India for allegedly travelling to “restricted parts” of Jammu and Kashmir without “valid permission”.

Restrictions on freedom of assembly and association

On 28 February 2019, the Indian government declared religious-political organization Jamaat-e-Islami (Jammu and Kashmir) an unlawful association under section 3(1) of the Unlawful Activities (Prevention) Act 1967. The government banned the Jamaat-e-Islami, which runs schools and mosques in the territory, for five years for trying to “escalate secessionist movement” and providing material support to Hizbul Mujahideen. Days before the ban, authorities in Jammu and Kashmir arrested over 150 leaders and members of the Jamaat-e-Islami. On 22 March 2019, the Indian government declared Yasin Malik-led Jammu and Kashmir Liberation Front an unlawful association under the Unlawful Activities (Prevention) Act. Malik was detained on 22 February 2019 under the PSA and later arrested on 9 April 2019 by the National Investigation Agency (NIA) in a case related to funding of pro-freedom political parties in Jammu and Kashmir. Political leaders in Jammu and Kashmir criticized the ban on Jamaat-e-Islami and the Jammu and Kashmir Liberation Front as an attack on civil liberties and one that would have a “major social impact” in the territoyr.

Authorities in Jammu and Kashmir employ various means to disrupt the right to freedom of peaceful assembly and association of pro-freedom leaders. They are often placed under house arrest for several days in order to prevent them from participating or leading protests, public meetings and even religious congregations.

Torture
As a State Party to the International Covenant on Civil and Political Rights, which prohibits torture under any circumstances, India is obliged to ensure that no person is “subjected to torture or to cruel, inhuman or degrading treatment or punishment”. As described in the June 2018 report of OHCHR, there have been persistent claims of torture by security forces in J&K.

Rizwan Pandit, a school principal from Pulwama district aged 29 who died while in police custody between 18 and 19 March 2019, appears to have been tortured while in custody. He was picked up from his home in Awantipora allegedly by the National Investigation Agency on 18 March and was pronounced dead by Jammu and Kashmir Police on 19 March. A magisterial inquiry has been ordered into his death. Rizwan Pandit’s family told journalists that there were torture marks on his body and they have called for his exhumation for further investigations to be carried out. No security forces personnel accused of torture or other forms of degrading and inhuman treatment have been prosecuted in a civilian court since these allegations started emerging in the early 1990s. This includes the two cases of torture highlighted in OHCHR’s June 2018 report – the death of college lecturer Shabir Ahmad Mango due to alleged torture while he was in the custody of the Indian Army in August 2016,213 and the case of Farooq Ahmad Dar who was strapped to the front of a moving Indian Army vehicle for several hours in April 2017. The Indian Army officer implicated in the Farooq Ahmad Dar case was presented an award in May 2017.

Targeting of Kashmiri Muslims outside Jammu and Kashmir

The 14 February 2019 suicide car bomb attack on Indian forces in Pulwama triggered major protests across India. Following the attack several reports emerged of mobs targeting Kashmiri Muslims living and working in different parts of India. There were several reports of Kashmiri students and traders being beaten, threatened, and intimidated in different states of India. Amnesty International said ordinary Kashmiris were being targeted due to their identity.

On social media, individuals, journalists and even some political leaders were inciting hatred and violence against Kashmiri Muslims. In one instance, the Central Government-appointed Governor of Tripura state made a social media statement suggesting Indians consider a “boycott of Kashmiri Mulims”. No action has been taken against him or any others who incited hatred and violence against the Kashmiris.

According to JKCCS, there have been increasing cases of harassment and persecution of Kashmiris living and working in different parts of India over the last few years. The group compiled at least 22 such cases in 2018 in which 24 Kashmiri students were assaulted. JKCCS notes that “the rise in right-wing mob violence in India” has made the Kashmiris living in different parts of India insecure and fearful of being harassed and physically attacked.
Some of the recommendation of the OHCHR:

To the Human Rights Council:

• Consider the findings of this report, including the possible establishment of a commission of inquiry to conduct a comprehensive independent international investigation into allegations of human rights violations in Kashmir.

To the authorities in India:

• Fully respect India’s international human rights law obligations in J&K;

• Urgently repeal the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990; and, in the meantime, immediately remove the requirement for prior central government permission to prosecute security forces personnel accused of human rights violations in civilian courts;

• Establish independent, impartial and credible investigations to probe all civilian killings which have occurred since July 2016, as well as obstruction of medical services during the 2016 unrest, arson attacks against schools and incidents of excessive use of force by security forces including serious injuries caused by the use of the pellet-firing shotguns;

• Investigate all deaths that have occurred in the context of security operations in Jammu and Kashmir following the guidelines laid down by the Supreme Court of India;

• Investigate and prosecute all cases of sexual violence. Bring into compliance with international human rights standards all Indian laws and standard operating procedures relating to the use of force by law enforcement and security entities, particularly the use of firearms: immediately order the end of the use of pellet-firing shotguns in Jammu and Kashmir for the purpose of crowd control;

• Amend the Jammu and Kashmir Public Safety Act, 1978 to ensure its compliance with international human rights law;

• Release or, if appropriate, charge under applicable criminal offences all those held under administrative detention and ensure the full respect of standards of due process and fair trial guaranteed under International law;

• Investigate all blanket bans or restrictions on access to the Internet and mobile telephone networks that were imposed in 2016, and ensure that such restrictions are not imposed in the future;

• End restrictions on the movement of journalists and arbitrary bans of the publication of newspapers in Jammu and Kashmir.

• Ensure independent, impartial and credible investigations into all unmarked graves in the state of Jammu and Kashmir as directed by the State Human Rights Commission; if necessary, seek assistance from the Government of India and /or the international community. Expand the competence of the Jammu and Kashmir State Human Rights Commission to investigate all human rights violations and abuses in the state, including those allegedly committed by central security forces;

• Ensure people from Kashmir are not targeted or legally harassed in other parts of India on the basis of their actual or presumed identity;

• Ratify the International Convention for the Protection of all Persons from Enforced Disappearance, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol, (q) Introduce enabling domestic laws as recommended during India’s UPR in 2008, 2012 and 2017;

• In line with its standing invitation to the Special Procedures, accept the invitation requests of the almost 20 mandates that have made such requests; in particular, accept the request of the Working Group on Enforced or Involuntary Disappearances and facilitate its visit to India, including to Jammu and Kashmir; and (s) Fully respect the right of self-determination of the people of Kashmir as protected under international law.


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