[KASHMIR REPORT - PART III]

INDIA'S HUMANITARIAN LAW VIOLATIONS

Grave breaches of humanitarian law continued unabated in 1996. Civilian casualties mount and estimates now indicate over 25000 killed since January of 1990. Casualties include women, children (from infants to young boys and girls). Most of these deaths have direct humanitarian law implications: (1) they were perpetrated by military forces of India in the course of the conflict in Kashmir; (2) they are not "incidental civilian casualties" and must be viewed as violations of the right to life under humanitarian law.

Our investigations indicate no normalized treatment of POWs. There appears to be no known facility, and no international or national monitoring of such facilities that may exist clandestinely. All Kashmiris interviewed report that if the Indian Army captures a "militant" that militant will probably never be seen again alive -- only as a mutilated body found along a roadside.

Our investigations also indicate serious violations of the Geneva Conventions regarding protection of hospitals, medical personnel, sick or wounded persons and medical aid. Our investigations indicate that many hospitals and clinics are routinely raided. The Indian forces have entered operating rooms during operations, have abducted patients and seized medicines.

Humanitarian Law Project/International Educational Development is gravely concerned about the consistent pattern of violations of humanitarian law. In addition to our own clandestine monitoring of humanitarian law violations, we have also received information from a number of other credible reports and observers who shared their information with us. A list of some of our resources is annexed to this report. The information we provide is meant to be illustrative and does not pretend to set out all instances of these violations.

(1) murder and torture of captured combatants -- POWs. POWs have none of their rights under Geneva Convention and customary rules.

As we set out above, the Indian forces do not comply at all with humanitarian law provisions regarding treatment of prisoners-of-war. To our best knowledge, there are no publicly- acknowledged POW camps. No human rights investigator has ever found a POW camp. International monitoring in this area is non- existent. However, it is clear that the Indian forces are able to capture some opposition combatants, and it must be assumed that these POWs are tortured and killed in violation of the Geneva Conventions and customary standards.

(2) rape of Kashmiri women carried out on a large scale.

In our past reports, we set out examples of war-time rape of Kashmiri women. Since our last report, we have verified more than 200 such rapes in Doda and the valley in January 1994 alone. In some of the outlying areas, during the same period 5 women were found dead after dying under rape. Rape continues to be a major means of Indian oppression against Kashmiri people.

(3) constant and continuing armed attacks against the civilian population in Kashmir.

Our investigators consistently verify that the vast majority of casualties in the Kashmiri war are civilians, caught up in "crackdowns", "sweeps" or just gunned down or tortured to death. Other human rights investigations have also verified the same pattern of civilian casualties and large numbers of custodial deaths.

(4) the refusal by Indian authorities to allow public, independent, unfettered monitoring of the situation.

The Indian authorities have consistently refused permission for independent, international monitoring of the situation in Kashmir. Human rights organizations such as ours are routinely denied permission to investigate openly. Although India has permitted one assessment visit by the International Committee of the Red Cross and one by the International Commission of Jurists in recent years, apparently other organizations have had difficulty arranging open investigation. The International Federation of Human Rights and Amnesty International have been recently denied permission to visit.

(5) attacks on hospitals and medical personnel.

Our investigators have reported on the poor conditions in hospitals and clinics, in part because of forays by Indian troops into medical facilities. Some hospitals have noticeable bullet holes. A 1994 report by a British doctor contains eyewitnesses accounts that are similar to our investigators findings: there have been raids on Lal Ded Women's Hospital and doctors and medical personnel are "threatened beaten and detained." A colleague of that doctor told how Indian forces had beaten him, fracturing his arm.

(6) interference with communications and humanitarian assistance.

In 1995 there were numerous attacks on journalists and oncommunication in general. Journalist Mushtaq Ali (Agence France-Presse) was killed on September 7, 1995. Other journalists havebeen harassed, attacked and arrested. The media is severelyrestricted. Humanitarian aid is severely limited as outsidegroups are not allowed to provide medicine and other reliefmaterials.

(7) destruction of Kashmiri villages, cultural artifacts, etc..

This report sets out several of the many incidents of thedestruction of revered places, shrines and cultural places byIndian forces. Whole villages have been burned to the ground inthe course of the long war. Srinagar and other manor citiesclearly show the effects of repeated military operations.

(8) torture of POWs and civilians.

At time of writing there are approximately 60 interrogationcenters of the Indian forces in Kashmir where torture is anevery-day occurrence. The International Federation of HumanRights has been meticulous in its own clandestine investigationsand in its interviews with people outside of Kashmir who spenttime in the various centers to verify the existence and practicesof these centers. While our delegates have seen much evidenceof torture, we also point out that many of the reports of non-governmental organizations listed in the bibliography providedetained evidence of the practice of torture in Kashmir. TheUnited Nations Special Rapporteur on Torture also documentsincidence of torture in India-occupied Kashmir. The InternationalRehabilitation Council for Torture Victims (Copenhagen) have alsoverified torture of kashmiris by Indian forces.

(9) serious violations of the rights of civilian and military detainees.

Other reports on the situation on Kashmir (listed in thebibliography) provide compelling evidence of severe abuse ofcivilians and combatants while in custody, including prolongedarbitrary detention, torture and killings. Most detention inKashmir India is a result of the conflict and as India invokescertain legislative acts to justify that detention this reportnext analyses this legislation in light of human rights andhumanitarian law.

VIOLATIONS OF RIGHTS OF DETAINEES IN KASHMIR

Many of the human rights violations not yet discussed inthis report stem from abuse of power under repressive legislationand police and military force brutality against the people.People are arrested for engaging in acts protected byinternational human rights standards of free speech, freedom ofassociation freedom of assembly, and freedom of the press. Whilemany arrests are completely vicarious with no pretense offollowing laws established by the legislature, the occupationforces have relied on a number of legislative acts to answercriticism of human rights abuses. These acts are, however, inthemselves repressive, and cannot be relied on by India tojustify its arrests and treatment of detainees.

India also justifies detention in Kashmir by claiming itsterritorial rights over Kashmir, in part based on its de factocontrol of parts of Kashmir. Because Kashmiris seek independence,India claims it is entitled to defend its territorial integrity.Ignoring the objective application of international humanitarianlaw, in particular the definition of combatants, India claimsthat the Kashmiri defenders are terrorists, and has grantedits armed personnel "shoot-to-kill" powers. Four legislative actswidely invoked in Kashmir clearly violate international standardsand warrant special attention.

1. THE TERRORIST AND DISRUPTIVE ACTIVITIES ACT (TADA)

This law, repealed in 1995, allowed Indian forces to round up and detain citizens for up to one year without formal charges, due process of law or formal trial. When and if court hearings were held, they were held in secret. Victims did not allowed to confront their accusers, and "witnesses" kept their identities secret.

Confessions, often extracted through deliberate and brutal forms of torture were admissible if police affirm they were obtained "voluntarily".

This act clearly violates Article 9 of the InternationalCovenant on Civil and Political Rights (the Covenant), whichrequires that notice of charges be given promptly at the time ofthe arrest. Article 9 also requires that court actions be taken"without delay" regarding the lawfulness of detention. The actalso violates Article 14 of the Covenant, which provides for theright to counsel and the right to examine witnesses. To thedegree this act is used to criminalize resistance in defense ofthe right to self-determination or to punish persons whosympathize with the resisters, it violates both internationalhumanitarian law and Article 15 (penalties only for criminaloffenses) in conjunction with, inter alia, Articles 18 (freedomof thought), 19 (freedom of opinion), 22 (freedom of association)of the Covenant.

During our delegate's 1994 stay, the TADA was being debatedin the media, in particular, on television. According to manypeople interviewed, some of the debate in India centered on theviolations of international human rights standards inherent inthe act. While there was some celebration at its repeal in lateSpring 1995, many attorneys in Kashmir and India commented to ourdelegates that Indian forces will still carry out arrests andinterrogation as if it were still in force. They point out thatlegislation described below is still in force and will be reliedon by Indian forces to defend against arbitrary or illegaldetention and violations of procedural rights. They also pointout that Indian forces have always acted with impunity with orwithout legislative sanction, so the repeal of the TADA is notregarded as a significant deterrent to the Indian forces. Repealof the TADA is also not expected to be a deterrent to thewidespread use of torture by Indian forces.

2. THE JAMMU AND KASHMIR PUBLIC SAFETY ACT:

This law enables the Indian security forces in Kashmir to detain civilians for up to one year without trial or due process for a wide variety of reasons, including the exercise of free speech. For example, under this act, an individual whose child has been murdered by Indian security forces and speaks out publicly against India's campaign of terror can be detained for up to one year without trial for endangering "public safety". Also under this act an individual who produces pamphlets or newsletters that advocate the implementation of the U.N. resolutions calling for a plebiscite in Kashmir can also be arrested and detained without formal charge or due process.

This act contains the same defects as the TADA, and with therepeal of the TADA will most likely be invoked instead. Itscriminalization of rights protected by international human rightslaw is particularly glaring.

3. THE NATIONAL SECURITY ACT:

Under the act, the armed forces and the police can detain individuals for up to one year without charge or trial to prevent them from "acting in a manner prejudicial to state security".

Under this law, an individual does not even have to take a specific action to be detained. If the Indian authorities believe that he is about to do something, they can detain him without charge to prevent him from acting.

4. THE ARMED FORCES SPECIAL POWERS ACT (JAMMU AND KASHMIR):

This law was passed on September 10, 1990. It allows the Governor of the State of Jammu and Kashmir to unilaterally "declare the whole or any part of the state to be a disturbed areas". Once Kashmir is identified a "disturbed area", this act empowers the armed forces to search homes without warrant, arrest Kashmiri citizens without warrant, destroy entire homes and villages and shoot at unarmed civilians in the streets with intent to kill.

For any of the above actions, article 7 of the act, titled "protection of persons acting in good faith under this act" holds that "no prosecutions, suit or other legal proceeding shall be instituted...against any person in respect to anything done or purported to be done in exercise of the powers conferred by this act. This means that any member of the armed forces who conducts the above described human rights violations -- summary executions of unarmed civilians, burning down homes and villages, torture and arbitrary arrest -- can do so with complete immunity from prosecution.

The National Security Law and the Armed Forces SpecialPowers Act (Jammu and Kashmir) also violate Articles 9 and 14 ofthe Covenant as well as international law standards protectingspeech, press and information, association and democracy. TheArmed Forces Special Powers Act constitutes a per se violation ofthe Geneva Conventions of 1949 which require penal sanctions forviolators of them and do not allow any party to absolve itself ofliability for violations.

THE ECONOMIC DESTRUCTION OF KASHMIR

While much attention has been given to the war crimescommitted by Indian forces and the complete abrogation of civiland political rights in the area, little attention has been givento what our delegate refers to as the economic ruin of Kashmirand the tremendous drain on India's resources represented by themilitary oppression of Kashmir. India should free up theseresources to better address the overwhelming poverty andhardships faced by the people of India. And the cost ofmaintaining 600,000 troops in Kashmir provides such a daily drainof Rupees that international lenders and investors ought to beconcerned with India's overall ability to repay. Surely, the costof repressing Kashmir must far outweigh any gains India cananticipate. One thing is absolutely clear to our delegate --there is no chance that India can "pacify" Kashmir. Thus, Indiamust accept the huge financial drain of Kashmir in perpetuity oruntil such time as Kashmiri's choose their political statusthough the promised plebiscite.

FINAL ASSESSMENT

IED has been monitoring the situation in Kashmir for anumber of years and has carried out lengthy investigations. Wehave interviewed hundreds of Kashmiris in Kashmir, met withnumerous representatives of the Kashmiri people both in Kashmirand elsewhere and met with many others, including diplomats of avariety of countries. We have seen events as eye-witnesses. Wehave reviewed hundreds of pages of documents, including those ofthe United Nations bodies and those of other non-governmentalorganizations. We have studied and diligently tried to reflectaccurately on the law. Our final assessment comes from ourdelegate:

The people of Kashmir are in dire need of help. The country is in ruins! I was asked why the United Nations can help Somalia, Bosnia and Haiti -- yet has done nothing to help the Kashmiris. Kashmiris ask over and over why the United Nations does not implement their Plebiscite.

It will take years and millions of dollars to repair the damage. With proper assistance and with time, the wounds (physical, mental, emotional) can be healed. From my evaluation of the situation, Kashmir would be a free, independent, democratic country if given the right to self-determination as promised to them by the United Nations in 1948-49. It would be a prosperous nation, with its doors open to all. But first there must be peace and there will never be peace as long as India occupies Kashmir. Kashmiris have sacrificed much and now they will not stop short of freedom.

What does India Want with Kashmir?

There is very little money going into Kashmir through the tourist industry -- the main industry in Kashmir. It has been this way for six years, largely due to the ever-present Indian forces. Troops are deployed in almost every city and town and there is continual movement of troops all over Kashmir.

The Indian government interferes with all aspects of the tourist industry. Tourists are subjected to body searches and searches of personal belongings in all banks, post offices, public buildings, even the Tourist Center. Just traveling from one place to another anyone would be subjected to searches numerous times. Banks in Kashmir are not allowed to give cash on credit cards, making it impossible for tourists to obtain emergency money.

Business suffers tremendously. Merchants have great difficulty obtaining approval for purchases, and merchants often have to travel to Delhi to make credit card transactions. The Indian government is interfering with the economy of Kashmir in all ways possible. Until something changes, there will be little revenue going into India -- only tremendous drain of resources. Why does India fear the plebiscite when India claims to be the largest democracy in the world. In a democracy the free will of the people must always be attained with an absolute commitment to honor the integrity of the voting process and to accept and adapt to the outcome -- win or lose. Perhaps the Indian leaders making the decisions to continue the abuse, oppression, desecration, ignorance and destruction of this losing battle of their occupation of Kashmir should look into a mirror and into their own hearts and remember who they are. Remember what they and their families went through to gain their freedom from an occupying power. It is not serving anyone to continue this madness and it is an insult to those who lived and died for the freedom of India.

This is not a war between India and Pakistan. It is a war taking place in Kashmir between Kashmiri people and their occupiers. It is not a religious war -- it is a war to fight the oppression of the occupying invader and to gain freedom. It is a fight to gain the rights promised to the Kashmiri people by the United Nations many long years ago and as yet unfulfilled.

WHAT SHOULD THE UNITED NATIONS DO

The United Nations has sought settlement of the Kashmirsituation as indicated by the many resolutions and great pastefforts here. The UNMOGIP continues its presence in the area.Past failures to settle the question should not deter the UnitedNations from present efforts. Now more than ever, the UnitedNations must renew efforts to bring about the promisedplebescite. As a first step the United Nations human rightsbodies should require the immediate cessation of all violationsof humanitarian and human rights law, including theimplementation of the above laws.

The United Nations must bring to light the massiveviolations of humanitarian and human rights standards andcontribute to an immediate improvement of the situation. In thislight, the United Nations Commission on Human Rights should:

1. Demand that the Government of India agree to a cease fire and immediate end to its violations of the human rights and humanitarian law in Kashmir;

2. Urge the United Nations Secretary-General to send a fact-finding mission to Kashmir to assess the situation, or, in the alternative, ask the United Nations High Commissioner for Human Rights to undertake such a mission;

3. Demand that India grant permission for all international human rights and humanitarian organizations to enter Kashmir and to carry out investigative and assistance programs;

4. Call upon the United Nations Security Council to reinvoke peaceful dialogue between the Governments of India and Pakistan along with the legitimate representatives of the people of Kashmir in light of the resolutions of the Security Council and the United Nations Commission for India and Pakistan mandating a plebiscite.

ANNEXES

U.N. ACTION ON KASHMIR:

UNMOGIP -- The United Nations Military Observer Group for Indiaand Pakistan (UNMOGIP) maintains the cease-fire line.

S.C. Res. 307 (1971) S.C. Res. 215 (1965) S.C. Res. 214 (1965) S.C. Res. 211 (1965) S.C. Res. 210 (1965 S.C. Res. 209 (1965) S.C. Res. 126 (1957) S.C. Res. 123 (1957) S.C. Res. 122 (1957) S.C. Res. 98 (1952) S.C. Res. 96 (1951) S.C. Res. 91 (1951) S.C. Res. 80 (1950) S.C. Res. 47 (1948) S.C. Res. 39 (1948)

UN Comm'n for India and Pakistan resolution of 5 Jan 1949.UN Comm'n for India and Pakistan resolution of 13 Aug 1948.

Comm'n Decision 1994/109.

Note: Reports address India but not necessarily Kashmir.

Reports of the Working Group on Enforced or InvoluntaryDisappearances (E/CN.4/1990/13; E/CN.4/1991/29; E/CN.4/1992/18;E/CN.4/1993/25; E/CN.4/1994/26; E/CN.4/1995/36).

Reports of the Special Rapporteur on Torture: (P. Kooijmans: E/CN.4/1990/17; E/CN.4/1991/17; E/CN.4/1992/17; E/CN.4/1993/26). (Nigel S. Rodley: E/CN.4/1994/31; E/CN.4/1995/34).

Reports of the Special Rapporteur on Extrajudicial, Summary orArbitrary Executions: (S. Amos Wako: E/CN.4/1990/22; E/CN.4/1991/36; E/CN.4/1992/30). (Bacre Waly Ndiaye: E/CN.4/1993/46; E/CN.4/1994/7; E/CN.4/1995/61).

Reports of the Special Rapporteur on the Elimination of Religious Intolerance: (Angelo Vidal d'Almeida Ribeiro: E/CN.4/1991/56; E/CN.4/1992/52; E/CN.4/1993/62 & Corr.1). (Abdelfattah Amor: E/CN.4/1994/79; E/CN.4/1995/91).

BIBLIOGRAPHY

Humanitarian Law Project/International Educational Development "The Situation in Kashmir," U. Doc. E/CN.4/Sub.2/1990/26.

Parker, Karen "The Situation on Kashmir: Human Rights and Humanitarian Law" (Humanitarian Law Project/International Educational Development and Association of Humanitarian Lawyers)(1993 and 2d ed. 1994).

"The Kashmiri War: Human Rights and Humanitarian Law" (Humanitarian Law Project/International Educational Development and Association of Humanitarian Lawyers)(1995).

All India Revolutionary Students Federation "Kashmir: Rhetoric and Reality." (1990).

Amnesty International "India: Torture, Rape and Deaths in Custody." (1992). "Torture, Rape and Murder in kashmir." (1993).

Asia Watch "Human Rights in India: Kashmir Under Siege." (1990). "Rape in Kashmir: A Crime of War." (1993). "India: Continuing Repression in Kashmir." (1994).

Asia Watch and Physicians for Human Rights "The Crackdown in Kashmir: Torture of Detainees and Assaults on the Medical Community." (1993). "The Human Rights Crisis in Kashmir: A Pattern of Impunity." (1993).

Committee for Initiative in Kashmir (New Delhi) "India's Kashmir War." (1990). "Kashmir Imprisoned." (1990). "Kashmir War, Proxy War (1993).

Committee to Protect Journalists "Attacks on Press in 1995." (1996)

Freedom House "India - Violation of Political Rights and Civil Liberties in Kashmir." (1992, 1993).

International Federation of Human Rights (France) "Kashmir: A People Terrorized." (1992). "Report of Fact Finding Mission in Azad Kashmir." (1993).

Jammu and Kashmir Council for Human Rights "Custodial Deaths, September 1992 - April 1993." (1993). "Women and Children: Rape and Torture." (1993).

Jammu and Kashmir High Court Bar Association "Report of Violations of Human Rights in Kashmir." (1994).

Lamb, Alastair "The Myth of Indian Claim to Jammu and Kashmir: A Reappraisal." (1994?).

Peoples Union for Civil Liberties, Citizens for Democracy,Radical Humanist Association and Manav Ekta Abhiyan (New Delhi) "Situation in Kashmir: An Indian Report." (1990).

Peoples Union for Civil Liberties "Kashmir Monitor." (newsletter)(1994 et seq.) "Report on Bandipora Killings." (1994?).

India Today "Kashmir: Shadows of Death." (photographic supplement)(1993?)

South Asia Human Rights Documentation Centre (New Delhi) "Kashmir Human Rights Up-date." (1993). "Report of the People's Commission of Inquiry on the Bibehara Massacre." (1993). (Report written by Mufti Bahauddin Farooqi, Ex-Chief Justice, Jammu and Kashmir High Court.

Physicians for Human Rights (UK) "Kashmir 1991: Health Consequences of the Civil Unrest and the Police and Military Action." (1991).

Authors unknown (copies on file with author) "Violations of Human Rights in Occupied Kashmir: Reports by Indian Observers." (1990?). (Compilation of press clippings of Indian press). "Violations of Human Rights in Indian-occupied Kashmir." (1991?). (Compilation of press clippings from Indian and foreign press).