publications

VII. Recommendations

To the government of India

  • Establish an independent and impartial commission of inquiry into serious violations of international human rights and humanitarian law by Indian security forces since the beginning of the conflict. The findings of the commission should be made public and the commission should be empowered to recommend the prosecution of persons implicated in abuses.

  • Repeal all legal provisions providing effective immunity to the security forces. These include Section 45 of the Criminal Procedure Code, which prohibits the arrest of members of the armed forces without permission of the central government, and Section 197(2) of the Criminal Procedure Code, which prohibits the prosecution of members of the armed forces without permission of the central government.

  • Amend the Human Rights Protection Act to allow the National Human Rights Commission to independently investigate allegations of abuse by members of the armed forces.

  • Publicly release detailed information on all arrests, prosecutions, and convictions against army troops, paramilitaries, police, and public officials for human rights violations since the beginning of the conflict. Release the same information on an annual basis in the future.

  • 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 twenty-four hours. A centralized register of detainees, accessible to lawyers and family members, should be established. 

  • Respond promptly to habeas corpus petitions in cases of “disappearance” and those filed to challenge detentions. Take swift and public action against all state officials who have obstructed or ignored judicial orders to produce detainees in court.

  • Allow the International Committee of the Red Cross to undertake the full range of its protection activities in Jammu and Kashmir, including giving it full access to all army and paramilitary interrogation and detention centers.  Take all feasible measures to account for persons reported missing as a result of armed conflict and provide information to their family members.

  • As a member of the United Nations Human Rights Council and therefore bound to cooperate with its mechanisms, issue a standing invitation to relevant U.N. special rapporteurs and working groups to visit Jammu and Kashmir and conduct independent investigations into abuses by all parties to the conflict. Should the Human Rights Council appoint a special rapporteur on the human rights situation in Jammu and Kashmir and Azad Kashmir, cooperate fully with the special rapporteur, including allowing any necessary visits and implementing all the rapporteur’s recommendations.

  • Apprehend and prosecute Maj. Avtar Singh of the 35th Rashtriya Rifles for the March 1996 murder of human rights lawyer Jalil Andrabi. Prosecute Subedar Surinder Sinha for the May 2003 murder of student Javed Magray. Prosecute Brig. Ajay Saxena, Lt. Col. Brajendra Pratap Singh, Maj. Saurabh Sinha, Maj. Amit Saxena and Subedar Idrees Khan, identified by the Central Bureau of Investigation as those responsible for the killings at Pathribal.

  • Establish a credible witness protection program to allow witnesses to safely participate in prosecutions of members of the armed forces and militants.

  • To the state government of Jammu and Kashmir

  • Establish an independent and impartial 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.

  • 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. 

  • 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.

  • 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 twenty-four hours. A centralized register of detainees, accessible to lawyers and family members, should be established.

  • To prevent “disappearances,” require arresting officers of all security agencies to provide signed receipts for all detainees to family members, village elders, or persons of similar status. The receipt would be retrieved when the person is released.

  • Establish a civilian review board to oversee the detention of surrendered militants. Such a review board should ensure that alleged militants are not arbitrarily detained,  tortured or otherwise mistreated, or compelled to serve in the state security forces, including paramilitary forces.

  • Adopt the Juvenile Justice (Care and Protection) Act that requires separate detention facilities for juveniles and adults.

  • Cooperate with appropriate humanitarian agencies to create rehabilitation and reintegration programs for former child soldiers.

  • To militant groups

  • Take all necessary steps to ensure compliance with international humanitarian law, specifically common article 3 to the 1949 Geneva Conventions and customary international humanitarian law.

  • Desist from attacks on civilians and treat all persons in custody humanely. 

  • Desist from attacking civilian objects including schools.

  • Publicly denounce abuses committed by any militant group and ensure that there is appropriate accountability for such abuses.

  • Desist from using antipersonnel landmines or otherwise conducting attacks that do not discriminate between military objectives and civilians.

  • Allow all Kashmiris displaced by the conflict, including Kashmiri Hindus, to return safely to their homes.

  • Immediately end all recruitment of persons under the age of eighteen and demobilize combatants under age eighteen. All adults recruited before they were age eighteen must be given the option to leave.

  • Permit civil society organizations to undertake the full range of protection activities including investigations of abuses committed by militants.

  • Provide an independent organization with details of those militants killed in combat so that families can be informed.

  • To the government of Pakistan

  • Stop providing arms, finance, sanctuary, and training to militant groups that have failed or are unwilling to abide by international humanitarian law. Continuing to provide assistance to such militant groups will make Pakistan complicit in the resulting abuses.

  • Stop providing landmines and other intrinsically indiscriminate weapons to militant groups.

  • Assist efforts of independent humanitarian organizations to obtain access to all Pakistani citizens detained in Indian prisons for taking part in militant activities. Collaborate with the Indian government in identifying Pakistani citizens killed in armed encounters so that their families can be informed.

  • As a member of the United Nations Human Rights Council and therefore bound to cooperate with its mechanisms, issue a standing invitation to relevant U.N. special rapporteurs and working groups to visit Azad Kashmir and to conduct independent investigations into abuses by all parties to the conflict. Should a mandate be given by the Human Rights Council, appoint  a special rapporteur on the human rights situation in Jammu and Kashmir and Azad Kashmir, cooperate fully with the special rapporteur,  including allowing necessary visits and implementing all the rapporteur’s recommendations.

  • To the United Nations

  • The High Commissioner for Human Rights, and the Human Rights Council (of which both India and Pakistan are members, and thus bound to cooperate with its mechanisms), should encourage both India and Pakistan to issue a standing invitation to relevant U.N. special rapporteurs and working groups to visit Jammu and Kashmir and Azad Kashmir and conduct independent investigations into abuses by all parties to the conflict.

  • The Human Rights Council should appoint a special rapporteur with an ongoing mandate to publish regular and public reports on the human rights situation in Jammu and Kashmir and Azad Kashmir. The governments of India and Pakistan should publicly commit to full cooperation with the special rapporteur, including with any necessary visits.

  • To the international community, in particular those states with significant influence on India, Pakistan, and militant groups

  • Encourage the United Nations Human Rights Council to appoint a special rapporteur with an ongoing mandate to publish regular and public reports on the human rights situation in Jammu and Kashmir and Azad Kashmir. Encourage the governments of India and Pakistan to publicly commit to full cooperation with the special rapporteur, including with any necessary visits.

  • Urge the government of India, the government of Pakistan, and all militant and Kashmiri groups to place human rights protection mechanisms at the center of any attempt to resolve the conflict. Press these parties to ensure responsibility for abuses, thereby bringing impunity to an end, without which no sustainable settlement will be possible. All parties should accept responsibility for the excesses committed by each of them, and ensure that an end to impunity and accountability for abuses is the touchstone for a sustainable end to the conflict.

  • Condemn violations of human rights and humanitarian law by the Indian security forces. Make future military aid and sales and all programs of military cooperation with India conditional on India taking significant steps to end abuses by and impunity for its forces in Jammu and Kashmir.

  • Condemn Pakistan’s support for abusive militant groups operating in Jammu and Kashmir. Make future military aid and sales and all programs of military cooperation with Pakistan conditional on Pakistan taking significant steps to end abuses by and impunity for militants operating in Jammu and Kashmir.

  • Press the World Bank and other multilateral agencies to publicly speak out on human rights violations and condition their lending and grants on each government taking significant steps to end abuses and impunity in Jammu and Kashmir.