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



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The Applicable International Law

Human Rights Law

International human rights law prohibits the arbitrary deprivation of life under any circumstances. The government of India is a party to the International Covenant on Civil and Political Rights (ICCPR). Article 6 of the ICCPR expressly prohibits derogation from the right to life. Thus, even during time of emergency, "[n]o one shall be arbitrarily deprived of his life."99

The ICCPR also prohibits torture and other forms of cruel, inhuman and degrading treatment. Articles 4 and 7 of the ICCPR explicitly ban torture, even in times of national emergency or when the security of the state is threatened.100

The Indian army, Special Task Force, Border Security Force, and state-sponsored paramilitary groups and village defence committees-the principal government forces operating in Jammu and Kashmir101-have systematically violated these fundamental norms of international human rights law. Under international law, India's state-sponsored militias are state agents and therefore must abide by international human rights and humanitarian law. The government of India is ultimately responsible for their actions.

International Humanitarian Law

International humanitarian law, also known as the laws of war, apply when there is a situation of international and internal "armed conflict." Although Human Rights Watch has maintained that the struggle in Kashmir in the early 1990s did meet this threshhold, it is less clear that international humanitarian law applies to the conflict given the dimunition of fighting throughout much of Kashmir apart from the Kargil region, and the decreased capacity of the militant groups to conduct effective military operations. However, the fact that in Doda and in other border regions militant forces regularly engage Indian army troops, and the size of the armed forces deployed on both sides, suggests that international humanitarian law may still apply.

The international humanitarian law applicable to the conflict in Kashmir is found in Article 3 common to the four Geneva Conventions of August 12, 1949-known as "Common Article 3." Common Article 3 provides international law and standards governing the conduct of parties in an internal armed conflict, including government forces and insurgents. Common Article 3 provides that:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular

humiliating and degrading treatment; (d) the passing of sentences and the carrying out of
executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

However, Common Article 3 in no way precludes the government of India from punishing persons for crimes under its domestic laws. Indeed, Human Rights Watch believes that it is the Indian government's duty to do so. Thus, Kashmiri militants may be tried for murder, kidnapping or other crimes, so long as they are afforded the rights of due process.

Persons protected by Common Article 3 of the Geneva Conventions include all noncombatants, even if they have provided food, shelter or other partisan support to one side or the other, and members of the armed forces of either side who are in custody, are wounded or are otherwise hors de combat. If under these circumstances, such persons are summarily executed or die as a result of torture, their deaths are tantamount to murder.

Torture, hostage-taking, and rape have all been prominent abuses in the Kashmir conflict, and it is evident that Common Article 3 forbids each of them. Rape also violates the ICCPR and Common Article 3 prohibitions on torture.

99 Article 4, Article 6, International Covenant on Civil and Political Rights.

100 Article 4 states "In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed. . . no derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision." Article 7 states "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." International Covenant on Civil and Political Rights, U.N. General Assembly Resolution 2200 A (XXI) of 16 December 1966. India became a signatory on April 10, 1979.

101 The other security forces deployed in Kashmir, the CRPF and the BSF, have combat duties and sometimes conduct operations jointly with Indian army forces.



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