Chief Minister Omar Abdullah
Government of Jammu and Kashmir
Jammu and Kashmir
Dear Chief Minister,
Congratulations on your recently taking office as Chief Minister. You face an enormous set of economic, political, and human rights challenges.
In 2006, when your party was in opposition, Human Rights Watch shared with you our report on the human rights situation in Jammu and Kashmir. We found that both government forces and militants were responsible for numerous and serious abuses. We would like to remind you of some of our recommendations, updated to reflect the current situation, in the hope that you will act swiftly to address the human rights concerns of Kashmiris.
While we understand that many of the human rights violations in Jammu and Kashmir are committed by security forces that operate under the jurisdiction of the central government, it is important that your state government ensures better protections for the Kashmiri people and demands that those who commit abuses are investigated and, where appropriate, prosecuted for their crimes. This is a crucial confidence building measure.
Thousands of people remain victims of enforced disappearances in Jammu and Kashmir. The practices of "disappearances" and extrajudicial executions violate basic human rights, including the right to life, the right to liberty and security of the person, the right to a fair and public trial, as well as the prohibition on torture and cruel, inhuman, and degrading treatment or punishment. Under international law, an enforced disappearance is a continuing crime until the "disappearance" is resolved.
While previous governments have admitted that many persons are missing, it was claimed that they had crossed the border into Pakistan to become militants. Yet, as you are aware, unmarked graves of those deemed to have been unidentified foreign militants are scattered all over Jammu and Kashmir. Many believe that these graves contain the remains of their loved ones who were picked up by security forces, killed in custody, and then falsely identified in police reports to be foreign militants, usually Pakistani citizens. In many cases, when relatives have succeeded in their demand to have graves exhumed, their claims have been found to be correct.
We urge you to set up an independent, transparent, and time-bound commission where relatives and others can provide information about cases of enforced disappearance. This commission should be empowered to summon members of the security forces who might have been responsible, even if they are no longer posted in Jammu and Kashmir or have retired from service.
Laws such as the Jammu and Kashmir Disturbed Areas Act and the Armed Forces (Jammu and Kashmir) Special Powers Act, which prohibit the arrest of members of the armed forces without permission of the central government, should be repealed. These laws have allowed security forces to torture, arbitrarily arrest, and extrajudicially execute people with effective immunity. As you are aware, the extraordinary power to shoot-to-kill conferred by the Armed Forces (Jammu and Kashmir) Special Powers Act, has led to what the army itself describes as "errors of judgment." Many people have been killed without regard to international legal restrictions on the use of lethal force, including many completely innocent of any involvement in the conflict. The law has led to the proliferation of bogus "encounter killings" where people are taken into custody, tortured, and then executed by security forces. In the vast majority of such cases-including the extrajudicial killings in Pathribal in 2000 where your National Conference party, then in power, requested an inquiry by the Central Bureau of Investigation-there has been a failure to prosecute and punish the perpetrators who hid behind immunity provisions in the law.
During the October 2008 hearings in Ghulam Nabi Magrey vs Union of India, the state government told the court that from 1990 to 2007 it had requested permission from New Delhi to prosecute members of the army or paramilitary for killings and other human rights violations in at least 458 cases. The Principal Secretary of the Home Ministry told the court that in 270 cases the state government had received sanction (authorized permission) to prosecute. If this is accurate, your government should act immediately to initiate proceedings in these cases. If the army fails to cooperate by producing those accused, citing as it routinely does the protections offered under the Armed Forces (Jammu and Kashmir) Special Powers Act, your government will be able even more strongly to justify the need for the central government to repeal of the law. The failure to deliver justice where the police have found that criminal acts have occurred is an obvious indictment of the Armed Forces (Jammu and Kashmir) Special Powers Act.
While a new law may be required if your government believes that the security situation merits the continued deployment of the army for operations against militants, this law should not provide the wide range of powers under the existing Armed Forces (Jammu and Kashmir) Special Powers Act. Specific clauses such as section 6 of the act, which provides effective immunity to soldiers and protects them from prosecution when they commit human rights violations, should not be included in future legislation. The United Nations Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions specify that under no circumstances, including a state of war or public emergency, shall immunity from prosecution be granted to alleged perpetrators of extrajudicial executions.
We also urge you to repeal the Public Safety Act, which allows preventive detention for two-year renewable periods for offenses defined by vague and overbroad terms, and violates international due process standards. This law has been used to keep people in custody without trial for decades, with fresh detention orders issued when the two-year period lapses. If people are responsible for crimes, they should be prosecuted in accordance with international fair trial standards, but cannot be held indefinitely based on a presumption of guilt.
It is through the efforts of some courageous human rights defenders that the plight of civilians caught in the middle of the conflict has been exposed. Attempting to silence dissent or critics is the sign of an abusive regime. Numerous human rights activists have been killed in the two decades of conflict in Jammu and Kashmir. Human rights lawyer Pervez Imroz, in June 2008, survived a grenade attack outside his home allegedly by members of the police. We urge you to ensure all such cases are immediately investigated, appropriate criminal cases are filed, and that human rights defenders receive necessary protection from the state.
Human Rights Watch urges you and your government to take the following steps:
- Immediately establish an independent, impartial and transparent commission of inquiry into serious violations of international human rights and humanitarian law by security forces in the state since the beginning of the conflict. In particular, an immediate investigation should be started on all allegations of enforced disappearance.
- Repeal all legislation, including the Jammu and Kashmir Disturbed Areas Act and the Armed Forces (Jammu and Kashmir) Special Powers Act, that prohibits the arrest of members of the armed forces without permission of the central government.
- Repeal all legislation, including the Jammu and Kashmir Disturbed Areas Act and the Armed Forces (Jammu and Kashmir) Special Powers Act, that authorizes the excessive use of force, including deadly force, beyond that allowed by the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
- Repeal the Public Safety Act, which allows preventive detention for two-year renewable periods for offenses defined by vague and overbroad terms, and violates international due process standards.
- Given the continuing failure of the military justice system to fully prosecute members of the armed forces for human rights abuses, prosecute fairly in civilian courts members of the army and other security forces of all ranks implicated in serious rights abuses. Prosecutions should not be limited to those directly responsible for abuses, but should include persons implicated as a matter of command responsibility, when superiors knew or should have known of ongoing crimes and failed to take action.
- Strengthen the State Human Rights Commission by empowering it to independently investigate allegations of abuse by the security forces and militants. The commission should be empowered to investigate even those cases under review by a court so that in "disappearances" cases a family is not forced to choose between trying to find their relatives, or settling for the compensation that the human rights commission would recommend. The state and national governments should take appropriate action based on the commission's recommendations.
- Strengthen and enforce laws and policies that protect detainees from torture and other mistreatment, including strict implementation of requirements that all detainees be brought before a magistrate or other judicial authority empowered to review the legality of an arrest within 24 hours. A centralized register of detainees, accessible to lawyers and family members, should be established.
- Immediately respond to requests for necessary measures to ensure the protection of human rights defenders and civil society activists.
We hope that you will act soon on these recommendations. Human rights abuses and the failure to deliver justice serve as a recruiting agency for militancy and perpetuate the cycle of violence. It is crucial that your government shows its determination to deliver justice and ensure that all Kashmiris can once again dream of a prosperous, secure, and peaceful future.