HUMAN RIGHTS WATCH Behind the Kashmir Conflict: Abuses by Indian Security Forces and Militant Groups Continue



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The Ongoing Problem of Impunity

Government officials have long claimed that security personnel in Kashmir have been disciplined for abuses. When Human Rights Watch met with Chief Secretary Ashok Jaitley on October 20, 1998, he expressed concern about reports of human rights violations, particularly custodial killings. He acknowledged, however, that while disciplinary action was taken against security personnel involved in large massacres in the mid-1990s, no prosecutions take place. He stated:

We ask the army and BSF for reports about incidents and allegations of violations, and people are punished. But it is disciplinary action only; it's impossible to prosecute in a court of law, as no witness will step forward.86

What action is taken is not made public.

Major P. Purushottam, public relations officer for the Indian army, described the army's internal monitoring procedures:

We have institutionalized the monitoring of human rights violations by establishing human rights cells at core headquarters and divisional headquarters. These cells carry out their own investigations even if no complaint is lodged. Moreover, new units coming to the valley now receive a three-week pre-induction training course in human rights. The people here are our own people. They must be treated with respect. We use the Delhi-based newspapers as a basis for starting an investigation of reported human rights violations. At a grassroots level, a certain amount of perceived violations happen. People say they have been roughed up...The delivery of the military system of justice in human rights violations is very fast and very harsh. We use it as a deterrent.87

He provided the following examples:

In 1996 in Anantnag, four jawans [soldiers] were convicted of gangraping a woman. The jawans were tried in a military court, court-martialed, and given the maximum sentence of ten years rigorous imprisonment in a civil jail. They were also dismissed from the service. If we had allowed this case to go to a civil court, it could have dragged on for ten-fifteen years. We do it in one year: We are the fastest in the world. The second case occurred in Kargil in mid-1997: A jawan was caught andwithin six months convicted of rape. He was given a sentence of seven years rigorous imprisonment and dismissed from the service. These are criminal acts.88

In the past, the Indian government has made public a number of prosecutions of members of security forces for rape. However, even these amount to no more than a handful; many other incidents of rape have never been prosecuted, and reports of rape and other sexual assaults in Kashmir persist. In many cases, these incidents are seldom investigated by judicial and medical authorities competent to determine culpability. In addition, other abuses, particularly torture and extrajudicial execution are rarely investigated. Human Rights Watch is not aware of a single prosecution in a case of the torture or summary execution of a detainee in the ten years since the conflict began.

Human Rights Watch interviewed members of the State Human Rights Commission (SHRC), including Justice Ghulam Ahmad Kuchhay, chairman of the commission. The commission began its work in January 1998 and by November 1998 had undertaken investigations in some 200 cases.89 Many of these involved complaints unrelated to human rights violations, including salary disputes and environmental concerns.

As is the case with India's National Human Rights Commission, the SHRC has limited powers: its recommendations are not binding, and it does not take up cases pending before the High Court. Although it can undertake an investigation on its own, it cannot directly investigate abuses carried out by the army or other federal forces. However, the commission can summon a representative from these agencies to report about the incident in question. At the time of the Human Rights Watch interview in October 1998, the commission had yet to make public its findings on any human rights case and it was too soon to say whether the commission would provide a significant check on abuses by the security forces.

The Andrabi Killing
The murder of Jalil Andrabi, a human rights lawyer and a leading member of the JKLF, illustrates the impotence of Kashmir's judicial institutions and the fraudulence of the government's claim that it has ensured greater accountability from its forces in Kashmir. The killing attracted international scrutiny and criticism largely because Andrabi was well known, a frequent caller at diplomatic missions in New Delhi, the U.N. Human Rights Commission, and the U.S. State Department. Outside pressure succeeded in forcing the government to conduct an investigation that ultimately indicted the army officer who detained Andrabi and apparently handed him over to be killed. But the officer has not been arrested. When Human Rights Watch interviewed Chief Secretary Ashok Jaitley about the Andrabi case, he acknowledged that it was "a bad case."

On March 8, 1996, Andrabi was detained in Srinagar by Maj. Avtar Singh, known as "Bulbul" (nightingale), of the 35th Rashtriya Rifles unit of the Indian army. Andrabi's wife was told repeatedly by senior police officials that Andrabi was in custody and would be released.90 Three weeks later, Andrabi's body was found floating in the Jhelum river; an autopsy showed that he had been killed days after his arrest. According to local sources, after his arrest, he was handed over to a countermilitant group to be killed, and the five men responsible were shot dead by Indian security forces a month later.91 Widespread international condemnation of Andrabi's killing prompted Indian authorities to initiate an investigation that ultimately indicted Maj. Avtar Singh. The High Court ordered Major Singhto appear before the court, but state counsel claimed in response that Singh was not a member of the armed forces but of the "Territorial Army," an irregular force that is under contract with the army, and that his contract had expired and he was nowhere to be found. The bar association has been unable to obtain further information because the case has been filed with the Register Judicial of the High Court and is open to only the court and the state counsel, not to the counsel for Andrabi's family-a highly unusual procedure. Because the case remained pending before the High Court, as of June 1999 the State Human Rights Commission had not conducted any investigation of its own.

86 Interview in Srinagar, October 20, 1998. 87 Interview in Srinagar, October 22, 1998. 88 Ibid. 89 The breakdown of cases was as follows: custodial deaths, twenty; "disappearances," thirty-two; "harassment" (including torture), sixty-five; rape, two; shifting detainees from one place to another, six; requests for releasing detainees, five. The remainder concerned land disputes, government services compensation, requests for conducting inquiries, and other matters. Interview in Srinagar, October 21, 1998.

90 For more details on the case see Human Rights Watch, "India's Secret Army in Kashmir," May 1996, p. 19.

91 Human Rights Watch interviews Rifat Andrabi and lawyers at the bar association, October and November 1996.



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