Report:U.N. High Commissioner for Human Rights on Kashmir Situation

March 17, 2014
Sir Nigel Rodley
UN Human Rights Committee
Office of the U.N. High Commissioner for Human Rights
United Nations Office at Geneva 
CH-1211 Geneva 10, Switzerland 
Fax: (41 22) 917 90 11 
Mr. Chairman and Members of the Committee:
I am grateful for the opportunity to submit this testimony on the state of human rights in Kashmir to the 110th session of the United Nations Human Rights Committee being held in Geneva, Switzerland, this week until March 28, 2014.  Much to my chagrin in light of the warming of diplomacy between India and Pakistan and incipient dialogue between India and Kashmiri leaders, the state of human rights in the disputed territory is chilling. Indeed, it shocks the conscience.
Indiscriminate killings: The best estimate of extrajudicial killings in Kashmir since 1989 approaches a staggering 100,000. That number dwarfs the killings in Northern Ireland, Palestine, Bosnia, Kosovo and Southern Sudan which have brought the world to tears and revulsion.  The 100,000 corpses also tops the death toll for United States forces in Vietnam over 10 years. 
Arundhati Roy, an Indian novelist, essayistthe Booker Prize and Sydney Peace Prize winner said that “Caught in the middle are the people of Kashmir. More than 100,000 people, mostly innocent civilians, have died in the 20-year conflict.”
Killings in Kashmir have become so commonplace that they are reported like car accidents in the United States.  Illustrative is a February 25, 2014 news report of a fake encounter wherein seven civilians were killed in Lolab area by Indian security forces. Agency France press (AFP) reported that “Hundreds of angry villagers clashed with police in Indian Kashmir on Tuesday (February 25, 2014) following suspicions that security forces shot dead seven civilians they mistook for rebels, a police officer and a witness said. The villagers torched a police station in the forested Kupwara region near the de facto border with Pakistan to demand security forces hand over the bodies for identification and for burial, the officer said.
AFP added “A local resident, Manzoor Ahmed, said by phone that a bullet wounded one villager before paramilitary reinforcements were called in to control the situation. He said villagers suspect that the seven killed late on Monday were locals rather than armed rebels who had infiltrated from across the border.
Human Rights Watch (HRW), in its 2013 report says that “Members of security forces implicated in serious rights abuses continued to enjoy impunity, in large measure due to India’s laws and policies.” It also adds that “The Indian defense establishment resisted attempts in 2012 to revoke or revise the Armed Forces Special Powers Act (AFSPA), which permits soldiers to commit serious human rights violations with effective immunity.”
The United States, Country Report on Human Rights Practices (USCRHRP), released on April 19, 2013 said, “Under the AFSPA, the government can declare any state or union territory a “disturbed area,” a declaration that allows security forces to fire on any person to “maintain law and order” and to arrest any person “against whom reasonable suspicion exists” without informing the detainee of the grounds for arrest. The law also gives security forces immunity from civilian prosecution for acts committed in regions under the AFSPA. There were no public records available of acts committed under the AFSPA.”
The USCRHRP added, “There were reports that government security forces committed extrajudicial killings, including staging encounter killings to cover up the deaths of captured militants. Human rights groups claimed that police refused to turn over bodies in cases of suspected staged encounters…The Jammu and Kashmir Coalition of Civil Society reported that eight extrajudicial killings by the armed forces took place during the year. The government failed to prosecute or conduct impartial investigations of these deaths by year’s end. NGOs reported that the armed forces continued to kill civilians with impunity provided under the AFSPA in Jammu and Kashmir.”
Torture:  Torture is a universal crime and creates a cause of action for damages under the United States Alien Tort Claims Act.  Torture with impunity, nonetheless, is widespread in Kashmir.
The U.N. Special Rapporteur on Torture said that the security forces systematically tortured persons in Jammu and Kashmir to coerce confessions to militant activity, to reveal information about suspected militants, or to inflict punishment for suspected support or sympathy with militants.  Information was not made public regarding any instances of action taken against security force personnel in Jammu and Kashmir for acts of terror.
The Special Rapporteur noted that methods of torture included beating, rape, crushing the leg muscles with a wooden roller, burning with heated objects, and electric shocks.  Because many alleged torture victims died in custody, and others were afraid to speak out, there were few firsthand accounts, although marks of torture often were found on the bodies of the deceased detainees.
The USCRHRP stated “The law prohibits torture, but many NGOs reported that such practices were common, especially in areas of conflict…The law generally does not permit authorities to admit into evidence confessions that have been coerced, but NGOs and citizens alleged that authorities used torture to coerce confessions, which in some instances were submitted as evidentiary support for death sentences. Authorities allegedly also used torture to extort money or as summary punishment.”
Extra-judicial killings: The USCRHRP recounts a chilling portrait of extrajudicial killings in Kashmir. It states “The most significant human rights problems were police and security force abuses, including extrajudicial killings, torture, and rape; widespread corruption at all levels of government, leading to denial of justice; and separatist, insurgent, and societal violence…There were reports that the government and its agents committed arbitrary or unlawful killings, including extrajudicial killings of suspected criminals and insurgents, especially in areas of conflict such as Jammu and Kashmir, the Northeastern States, and the Naxalite belt.”
Amnesty International reported on May 1, 2012, “The Central Bureau of Investigation (CBI), which investigated the Pathribal killings, has contended it has sufficient evidence to show that the killings (of five youth in Pathribal in March 2000) were extrajudicial executions and ‘cold-blooded murder’. It filed charges against the eight-army officials in local courts in Jammu and Kashmir. In response army officials invoked special powers stating that they need not appear for trial in a civilian court of law.”
Fake encounters: The USCRHRP noted, “Some encounter killings were staged. On the night of July 24, an army informant, after first alerting local army troops from the 27 Rashtriya Rifles that armed men were in the area, gave an AK-47 weapon to civilian Hilal Ahmed Dar and lured him to a location in Halmathpora Forests, Bandipora, Kashmir. The army troops opened fire when Dar reached the spot, killing him and injuring his friend. Authorities later arrested two informers for the Rashtriya Rifles. The army first claimed that Dar was a militant but later retracted the statement. On July 30, the public relations office for the Ministry of Defense announced that action would be taken against those found to be involved. On September 6, the Jammu and Kashmir police confirmed that the weapon allegedly owned by Dar was not his.”
The USCRHRP mentioned, “On May 1, the Supreme Court ordered the army to decide within eight weeks whether officers and soldiers accused by the Central Bureau of Investigation (CBI) of fake or staged encounters in May 2000 in Pathribal, Jammu and Kashmir, and in February 1994 in Saikhowa Reserve Forest, Assam, would face a court-martial or judicial trial. In September after the failure of the army to comply with the court’s order, the court ordered the army to issue courts-martial against officers and soldiers accused in the two alleged fake encounters.”
However, on January 24, 2014, the court-marshal mysteriously exonerated the military personnel involved in the Pathribal fake encounter. The civil society of Jammu & Kashmir termed the exoneration of Army officers involved in the Pathribal ‘fake encounter’ as reprehensible.
“We can understand the pain of the Pathribal victims as we have undergone through the same. Exonerating the Army officers who everybody knew killed innocent civilians in stage managed encounter is shameful,” said the Sikh victims’ families of Chattisinghpora where 36 Sikhs were killed on March 20, 2000 when President Bill Clinton visited India. The Sikh victims said that though justice continues to elude the Pathribal victims and those killed in Brakpora, but at least truth has come to fore that Army and police was responsible for these two incidents. “In our case, truth has been concealed for unknown reasons and no inquiry was conducted at all into the incident either by State or Central Government,” the Sikh victim families lamented.
Custodial Disappearances:  Kashmiris disappear into a dark Gulag as regularly as the sun rises in the east and sets in the west.  According to the Association of Parents of Disappeared Persons, since 1989, approximately 8,000-10,000 Kashmiris have disappeared into a black hole.  Even Muzaffar Hussain Baig, former Deputy Chief Minister of Kashmir under India’s auspices, confessed before the legislature that 3,931 persons had disappeared since 1990.  These numbers are horrifying, like the more notorious missing in Argentina regularly denounced by the grandmothers of Plaza de Mayo.
The USCRHRP highlighted, “Estimates of the number of missing persons varied. Human rights organizations stated that there were 8,000 to 10,000 persons missing but in custody in Jammu and Kashmir. On October 8, the Jammu and Kashmir state government stated that of 2,305 persons reported missing, only 182 FIRs had been filed, and Chief Minister Omar Abdullah stated that the discrepancy between reported missing persons and FIRs filed was due to ‘missing reports.’ Successive state governments have reported inconsistent figures on the number of missing persons during the 23 years of armed conflict, with no authoritative data to reconcile the different figures.”
Mass graves: HRW reported “…security forces responsible for serious rights abuses remain effectively immune from prosecution under the AFSPA” and “In September, the state government rejected calls for DNA testing of 2,730 corpses that a police investigative team found in unmarked graves at 38 sites in north Kashmir in July 2011. Some of the gravesites are believed to hold victims of enforced disappearance and extrajudicial execution by government security forces dating back to the 1990s.”
The USCRHRP quoted, “In a report submitted to the state government in July 2011, the Jammu Kashmir State Human Rights Commission (JKSHRC) had documented 2,156 unmarked graves at 38 different sites recommended an inquiry by an independent body. The report was the first time that a government entity confirmed that some of the bodies in graves were of civilians and not insurgents, an allegation made by independent human rights organizations. In December 2009, the International People’s Tribunal on Human Rights and Justice in Indian-Administered Kashmir documented 2,943 bodies in graves in Kashmir, 87 percent of which were unmarked.”
Rape:  Rape, a war crime recognized under international law and the Hague Tribunal, is a staple of India’s massive military and paramilitary forces in Kashmir.  It is employed to humiliate, degrade, and ostracize the victims. There was a systematic pattern of rape by military and paramilitary personnel in Kashmir which was used as a weapon of war.
The USCRHRP said, “There were reports that police raped women, including while in police custody. NGOs stated that the NHRC underestimated the number of rapes that police committed. Because of lack of oversight and accountability, some rape victims were unlikely to come forward and report the crime due to the victims’ feelings of shame and fear of retribution, especially if the perpetrator was a police officer or other official.”
The New Delhi based NGO, ‘The Citizen Bureau’ issued a report, published in ‘The Daily Citizen’ on February 24, 2014: “The rape of women in Kunan and Poshpora villages in the Kupwara district of Jammu and Kashmir is a 23 old saga of complicity, duplicity, and a massive cover up in which powerful institutions like the Army, the media, and the state and central governments were involved. The victim’s quest for justice has been deliberately blocked, with the perpetrators of the terrible crime getting completely away as a result. It has taken then Kupwara Deputy Commissioner SM Yasin 23 years to summon the courage and break his silence on the alleged rape of women by soldiers in the twin villages of Kunan and Poshpora. Yasin now said that he was threatened and cajoled with offers of promotions to change his report on the alleged mass rapes in the two villages of Jammu and Kashmir in February 1991.
The Citizen report is based on the findings of a fact finding team that visited Kunan and Poshpora last June. Other members included political leaders Mohammad Salim and Bhalchandra Kango, former DG, BSF EN Rammohan, former IAS officer Harsh Mander, National Integration Council member John Dayal, All India Democratic Women’s Association assistant secretary Sehba Farooqi and journalist Seema Mustafa.
The Citizen team was unanimous in its findings. The two villages came into the news in February 1991 when some soldiers were reportedly killed in a militant ambush. The villages before that had never had a problem with the military, but the situation changed dramatically on the night of February 23-24 1991 when an unspecified number of soldiers of the 4th Rajputana Rifles cordoned off the twin villages and carried out what the Army described as a ‘search operation.’ All the men were asked to come out of their homes and taken away to another location, where the survivors told the visiting team about the torture they were made to undergo to disclose the whereabouts of the terrorists involved in the ambush. The third degree torture included the famous “roller treatment” and electric shocks on their scalps and genitals. Many of them have been left permanently scarred. On the same night the soldiers went into the homes—there was no electricity in the villages then—and raped and abused the women through the night. The victims of this mass rape ranged from 13 to 80 years. The numbers have not been certified as later only the married women filed complaints and allowed medical examinations to be carried out. The unmarried girls, said to be over 40 in numbers, did not come forward for fear of the social stigma.
On March 17, 1991 a team led by the Chief Justice Mufti Bahauddin Farooqi interviewed 53 women to determine the facts of the case.
The fact finding team organized by the Centre for Policy Analysis last year observed, “a section of the media taking a cue from the security forces and the state government has, for two decades sought to project the Kunan-Poshpora crime as a conspiracy by militant groups to stigmatise the Indian armed forces. The state government, despite many of its officials and judge calling for further investigations has remained in a state of denial over the years. No Chief Minister has ever visited the twin villages.”
Arbitrary Arrests or Detentions:  India has authorized a police state reminiscent of the Gestapo in Kashmir.  The Prevention of Terrorism Act (POTA), the Jammu and Kashmir Public Safety Act, the Armed Forces Special Powers Act and the Disturbed Areas Act are illustrative.  Generally speaking, the law empowers the military and police in Kashmir to arrest, detain, search, wiretap, try, and punish without material restraints. The POTA, for instance, allows detention without charge for 3 months, punishes nondisclosure of information about terrorists, and authorizes the banning of organizations and seizure of assets.  It also permits summary trials, coerced confessions, and a presumption of non-bail before trial.  Preventive detention laws justify detentions for up to 90 days without charge.
The USCRHRP states, “The Public