UN seeks international inquiry into Kashmir rights abuses

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Srinagar: A United Nations report has called for an international inquiry into human rights abuses committed by government forces in Kashmir and also advocated a ‘meaningful dialogue’ involving people of Kashmir, riling India that called it an assault on its sovereignty.

This is the first ever report UN has released on Kashmir and Pakistan-administered-Kashmir in the past 30 years of anti-India insurgency.

The UN High Commission for Human Rights, which had been denied access to both parts of Kashmir since 2016, has prepared the 48-page report by remotely monitoring the situation, especially the July 2016-April 2018 period.

The report urges both governments to “respect the right of self-determination of the people of Kashmir as protected under international law”.

The report’s focus is on the situation of human rights in Jammu and Kashmir from July 2016 to April 2018, during which widespread and serious human rights violations were received, notably excessive use of force by government forces on demonstrations that led to “unlawful” civilian killings and injuries.

The report notes:
“Civil society estimates are that 130 to 145 civilians were killed by security forces between mid-July 2016 and end of March 2018, and 16 to 20 civilians were killed by armed groups in the same period.

One of most dangerous weapons used against protesters during the unrest in 2016 was the pellet-firing shotgun, which is a 12-gauge pump-action shotgun that fires metal pellets, and is still being employed by the security forces.”

According to the official figures, 17 people were killed by shotguns pellets between July 2016 and August 2017, and 6, 221 people were injured by between 2016 and March 2017.

Civil society organizations believe that many of them have been partially or completely blinded.

The report further states the impunity for human rights violations and lack of access to justice are key human rights challenges in Jammu and Kashmir. “Special laws in force in the state, such as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (AFSPA) and the Jammu and Kashmir Public Safety Act, 1978 (PSA), have created structures that obstruct the normal course of law, impede accountability and jeopardise the right to remedy for victims of human rights violations,” the report said.

Over 1,000 people were detained under the Public Safety Act (PSA) between March 2016 and August 2017. Human rights groups had warned Jammu and Kashmir authorities that minors were being arrested under the PSA in 2016 and 2017, it said.

During the 2016 unrest, “there were numerous reports of attacks on, and obstruction of, basic medical services that had a severe impact on the injured and general civilian population in Kashmir. Human rights groups claimed that days-long curfews and communications blockades also had a major impact on people and their access to medical care in Kashmir,” says the report.

Also, the report said, “Kashmir region experienced frequent communications blockades during the 2016 unrest as the state Government suspended mobile and internet services on multiple occasions. In 2016, the authorities in Jammu and Kashmir imposed restrictions on freedom of expression, targeting media and journalists.”

“Widespread protests, long periods of curfew and frequent strikes in 2016 and 2017 had a cumulative impact on students and their right to education.”

The report said 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 Kashmir and Jammu regions.

“Chronic impunity for sexual violence also remains a key concern in Kashmir. An emblematic case is the Kunan-Poshpora mass rape 27 years ago when, according to survivors, soldier’s gang-raped 23 women. Attempts to seek justice have been denied and blocked over the years at different levels. The authorities have failed to independently investigate and prosecute allegations of sexual violence by security forces personnel,” the report said.

The report ends with a series of recommendations, the most crucial of which is a call for an independent international enquiry in the form of a “Commission of Inquiry” to be constituted by the UN Human Rights Council (Inter-governmental body established by the United Nations to monitor human rights).

Among its recommendations, the report calls on India and Pakistan to fully respect their international human rights law obligations in Indian-Administered and Pakistan-Administered Kashmir respectively.

“India should urgently repeal the AFSPA; establish independent, impartial and credible investigations to probe all civilian killings since July 2016 and all abuses committed by armed groups; and provide reparations and rehabilitation to all injured individuals and to the families of those killed in the context of security operations. Similarly, the PSA should be amended to ensure its compliance with international human rights law, and all those held under administrative detention should either be charged or immediately released,” the report said.

Report has also expressed concern over human rights violations on other side of the Line of Control, which it says, are of a different caliber and of a more structural nature.

Quoting international non-governmental organizations, the 49-page document claims that pro-independence political parties and activists are not allowed to participate in the political process in Pakistan administered Kashmir and “Gilgit -Baltistan”.

Further touching the issue, the report states that political leaders who are seen to be opposing Pakistani rule have been subject to “surveillance, harassment, and even imprisonment.”

It also says that 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 allege that those who protest Pakistan’s position face threats and travel bans, and are subject to imprisonment and torture,” the report states.

According to the report, publishers of books or periodicals are also required to make a declaration of loyalty to accession to Pakistan. “A number of books supporting Kashmiri independence were also reportedly banned by a government order in February 2016,” it adds.

On the issue of rights of the people living on other side of the LoC, the report claims that they do not enjoy all the rights and protections available to those under the Pakistan Constitution. “Pakistan’s prime minister, the federal minister for Kashmir Affairs and Gilgit-Baltistan and the federal civil service have full control over all government operations in both Pakistan administered Kashmir (PaK) and Gilgit-Baltistan (G-B),”reads the report.

“There are restrictions on freedoms of expression, peaceful assembly and association in PaK. The interim constitution of PaK has placed several restrictions on anyone criticizing PaK’s accession to Pakistan,” the report states.

It adds that these restrictions are ”in contravention to international standards on the rights to freedoms of expression and opinion, assembly and association.”

The report, quoting an NGO, states that “hundreds of individuals” have been imprisoned under the Pakistan’s Anti-Terrorism Act in Gilgit Baltistan and it was being used to target locals who have been raising issues related to the “rights of the people”.

The UN report has also expressed concern over “forcible eviction” of people for building the China–Pakistan Economic Corridor (CPEC). “The displaced claimed they had not received compensation or relocation from the authorities. Office of the United Nations High Commissioner for Human Rights has received information that indigenous people in G-B have complained of not being properly informed or consulted on decisions affecting them and their livelihoods,” the report reads.

From military courts to sexual violence, the report has detailed violations in Jammu and Kashmir. Following are some excerpts from the report:

Military courts and tribunals impeding access to justice
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 soldiers 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.

Administrative detentions
PSA has reportedly been widely used by the authorities in Jammu and Kashmir to stifle dissent. It has been used to target human rights defenders, journalists, separatist, political leaders, suspected members of armed opposition groups and people involved in protests.

In 2012, the Jammu and Kashmir State Assembly amended PSA to prohibit the detention of people less than 18 years of age. However, during the 2016 unrest, there were multiple cases of children under 18 years being detained under PSA.

PSA does not provide for a judicial review of detention, and state authorities have been countering orders by the Jammu and Kashmir High Court to release people detained under this law by issuing successive detention orders. This tactic has been used to keep people 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”.

Excessive use of force
The killing of civilians between 2016 and 2018 raises the question of whether security forces resorted to excessive use of force to respond to protesters, some of whom were throwing rocks. International human rights groups have accused Indian security forces of using excessive force and failing to adhere to applicable national and international standards on the use of force.

In responding to demonstrations that started in July 2016, Indian security forces used excessive force that led to unlawful killings and a very high number of injuries. The peak of the unrest occurred between July and December 2016. Civil society estimates are that 130 to 145 civilians were killed by security forces between mid-July 2016 and end of March 2018, and 16 to 20 civilians killed by armed groups in the same period.

There have been conflicting estimates by authorities on the number of people killed during that period. In January 2017, Jammu and Kashmir Chief Minister Mehbooba Mufti told the state assembly that 78 people including 2 police officers were killed in the 2016 unrest. However, on 12 January 2018, the state government of Jammu and Kashmir informed the state assembly that 51 people had been killed during the unrest in the Kashmir region between 8 July 2016 and 27 February 2017.

The state government also said that 9,042 people had been injured during protests in the same period including through injuries sustained from the use of bullets, metal pellets and chemical shells.

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 claim there were over 90 fatalities in 2016.

In January 2018, the state government of Jammu and Kashmir informed the state assembly that five inquiries had been established to review the killing of civilians in 2016, but it did not specify whether the investigations were completed. The state government added that no inquiries were conducted into civilian killings that took place in 2017.

However, JKCCS reported that until the end of 2017, none of the inquiries had been completed. No case of excessive use of force in Jammu and Kashmir has led to prosecution in civilian courts.

Killings perpetrated in 2018
Civilian killings near armed encounter sites and excessive use of force against protesters continued sporadically in 2018. These killings triggered several large protests across the Kashmir Valley that included long spells of strikes and demonstrations by college students. For instance, on 27 January 2018, three civilians were reportedly killed and several injured in Shopian district when army personnel fired at protesters, some of whom were reportedly throwing stones at security forces.

The killings sparked large protests across southern Kashmir for several days. Chief Minister Mehbooba Mufti announced a magistrate-level inquiry, and the state police filed a FIR against army personnel of 10 Garhwal Rifles under sections 302 (murder) and 307 (attempt to murder) 124 of the Ranbir Penal Code.125 One of the army officers involved in the incident petitioned the Supreme Court of India to cancel the FIR. Consequently, on 5 March 2018, the court ordered Jammu and Kashmir authorities to halt all investigations until its final verdict.

In another incident, on 4 March 2018, four civilians and two men suspected of belonging to an armed group were killed in a gun fight with the Indian Army in Pahnoo area of Shopian district. The Indian Army claimed the civilians killed in the incident were “linked with militancy”. This claim was disputed by several state assembly legislators and political parties who called for an independent investigation into the killings. Chief Minister Mehbooba Mufti said she was “deeply distressed” by the civilian deaths in Shopian. The police are reportedly investigating the incident, but there is no information on the status of the probe.

On 1 April 2018, 4 civilians, 13 armed group members and 3 security forces personnel were killed in 3 separate gun battles between security forces and armed groups in Shopian and Anantnag districts. The civilian killings were followed by days of protests across the Kashmir Valley, including by students.

Use of pellet-firing shotgun
One of most dangerous weapons used against protesters during the unrest in 2016 was the pellet-firing shotgun, which is a 12-gauge pump-action shotgun that fires metal pellets. It was deployed by the Central Reserve Police Force and the Jammu and Kashmir Police against protesters, some of whom were throwing stones.

The Central Reserve Police Force claims the pellet-firing shotgun is the “least lethal” option they have at their disposal for crowd-control. However, pellet shotgun use by law enforcement agencies resulted in multiple deaths and serious injuries of hundreds civilians between 2016 and 2018. According to official figures presented in the Parliament, 17 people were killed by pellet injuries between July 2016 and August 2017.

According to information received by the Jammu and Kashmir State Human Rights Commission (SHRC) from 10 districts of the Kashmir Valley, 1,726 people were injured by metal pellets in 2016. In January 2018, Chief Minister Mehbooba Mufti stated before the state assembly that 6,221 people had been injured by pellet guns in Kashmir between 8 July 2016 and 27 February 2017; among the victims, 728 had eye injuries. The Chief Minister reported that 54 people suffered some form of visual impairment due to pellet injuries. Civil society organizations claim that the number of people partially or completely blinded due to pellet injuries is higher.

Despite the public outrage over the deaths and mass bindings caused by the use of pellet-firing shotguns, the state government has only set up one special investigation into a death caused by pellet-gun injuries. On 9 January 2017, it ordered the Deputy General of Police-Central Kashmir Range to set up a Special Investigation Team to probe the killing of 21-year-old Riyaz Ahmad Shah, on 2 August 2016.

A pellet cartridge shot at close range had penetrated and burst in his abdomen, leaving over 300 metal pellets in his body. The police had previously filed a FIR against “security forces” in relation to his death. However, there have been no investigations into determining whether the other deaths and serious injuries caused by pellet-firing shotguns are cases of excessive use of force by police and central paramilitary forces. Indian security forces continue to use pellet shotguns in Kashmir today. On 1 April 2018, around 40 people were reportedly injured, including 35 hit in the eyes, by pellet shotguns used against people protesting against the killing of civilians in Shopian and Anantnag districts.

Arbitrary arrests and detention, including of children
A right to information application found that over 1,000 people were detained under the Jammu and Kashmir Public Safety Act between March 2016 and August 2017. It also found that the state Government had not created any rules or standard operating procedures under PSA to guide the authorities while issuing a detention order. Issuing authorities – usually district magistrates or divisional commissioners – thus solely rely on dossiers prepared by the Jammu and Kashmir Police and reportedly do not verify facts.

Additional work may be needed to verify this allegation. For example, on 15 September 2016, prominent civil society advocate Khurram Parvez was arrested and detained under PSA, a day after being prevented from travelling to Geneva to attend the thirty-third session of the United Nations Human Rights Council. He was released on 30 November 2016 after spending 76 days in detention.

Human rights groups had warned Jammu and Kashmir authorities that minors were being arrested under PSA in 2016 and 2017. Opposition parties raised the issue in the Parliament and state assembly, but authorities have regularly denied that minors were being picked up under PSA.

In 2014, the Committee on the Rights of the Child called upon India to review its security-related laws with a view to prohibiting criminal and administrative proceedings against persons under the age of 18. It recommended that all persons under the age of 18 be handled by the juvenile justice system in all circumstances, and that age verification procedures be consistently and effectively applied.

Torture
As a State party to the International Covenant on Civil and Political Rights, which prohibits torture under any circumstances (Article 7), India is obliged to ensure that no person is “subjected to torture or to cruel, inhuman or degrading treatment or punishment”. There have long been persistent claims of torture by security forces in Kashmir.

On 18 August 2016, a 30-year-old college lecturer, Shabir Ahmad Mangoo, died after being severely beaten in the custody of the Army on 18 August 2016. He was among 30 men picked up from their houses in Pampore of Pulwama district by the Army and Special Operations Group of the Jammu and Kashmir Police. In a video that emerged on 14 April 2017, a Kashmiri man, Farooq Ahmad Dar, was seen strapped to the front of a moving Indian Army jeep, while a soldier can be heard shouting, “This will be the fate of those who throw stones.” Farooq Ahmad Dar later told journalists and human rights organizations that on 9 April while he was going to a neighbouring village, army personnel seized him and tied him to the front of an army jeep which drove around Budgam district for over 28 kilometres. Indian Army chief General Bipin Rawat and Attorney General of India Mukul Rohatgi defended the Army’s use of Farooq Ahmad Dar as human shield.

Another case of torture involving the Indian Army is that of manual labourer Nasrulla Khan who was allegedly detained and tortured at the Indian Army’s 27 Rashtriya Rifles camp on 31 August 2017. He was later found near the army camp reportedly with physical injuries which were severe. The state police filed a FIR into the torture of Nasrullah, but there is no publicly available information on any progress in this investigation.

Enforced Disappearances
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. While the Government of India has reiterated to the Human Rights Council several times that it is committed to ratifying the Convention, the National Human Rights Commission of India observed in 2012 that there was no evidence to show that the government was seriously planning to do so.

Restrictions on the right to freedom of expression
The Kashmir region experienced frequent communications blockades during the 2016 unrest as the state government suspended mobile and internet services on multiple occasions. 227 The authorities justified the complete bar on mobile internet facilities that affected nearly 7 million people in Kashmir for between 5 to 7 months “as [a] preventive measure to avoid any law and order problems and passing of rumours by miscreants / anti-national elements”.

Reprisals against human rights defenders and restrictions on journalists
A prominent human rights defender Khurram Parvez was arrested and detained under PSA on 15 September 2016, a day after being prevented from travelling to the Human Rights Council in Geneva.

Kashmiri photojournalist Kamran Yousuf was arrested on 5 September 2017 and charged with sedition for allegedly being involved in a “conspiracy against the nation”. French journalist and documentary film-maker Paul Comiti was arrested on 9 December 2017 in Srinagar for allegedly violating Indian visa conditions. The FIR argued that he had violated his business visa conditions by meeting pro-independence leader Mirwaiz Umar Farooq and filming an event related to people injured by pellet-firing shotguns. Paul Comiti was released on bail on 13 December 2017.

Violations of the right to education
Widespread protests, long periods of curfew and frequent strikes in 2016 and 2017 had a cumulative impact on students and their right to education. A media investigation claimed that schools and colleges were closed for nearly 60 percent of the working days between July 2016 and May 2017. Confidential information received by OHCHR indicates an estimated 130 school days were lost in 2016 for approximately 1.4 million children. Local media reported that schools were closed for over four months after the protests started in 2016.

Sexual Violence
Although this report specifically focuses on events since July 2016, without access, OHCHR was not able to confirm specific claims alleging incidents of sexual violence within this timeframe. However, there were some recent legal developments in past emblematic cases, and impunity for sexual violence remains a key ongoing human rights concern in Kashmir. Authorities have failed to independently investigate and prosecute allegations of sexual violence by security forces personnel. There is no record of allegations of sexual violence by security forces being prosecuted in a civilian court.

Abuses by armed groups
The Government of India accuses armed groups of committing human rights abuses in Jammu and Kashmir and holds them responsible for causing “disturbances in Kashmir”. India maintains that these armed groups are based in territories controlled by Pakistan and are actively supported by Pakistan. The Government of Pakistan categorically denies any allegation of involvement in stoking unrest in Indian-Administered Kashmir or of providing support to armed groups operating there.

Between January 2016 and April 2018, civil society organizations 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 killing of activists of mainstream political parties and threats against their leaders. 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.

Mirwaiz thanks UN
Hurriyat (M) chairman Mirwaiz Umar Farooq on Thursday welcomed the first ever UN report on rights violations in Jammu and Kashmir, saying the inquiry into the rights violations in the region was long overdue.

Taking to micro-blogging website, Twitter, Mirwaiz wrote: “Welcome the first ever UN report on HR violations in #Kashmir recognition of the grave HR violations by the state taking place in Kashmir for past 30 years in particular and calling for inquiry into them was long overdue”. (GK)

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