UN should probe structure of torture in Kashmir

Dr. Ghulam Nabi Fai Secretary General

World Kashmir Awareness Forum

July 20, 2023

‘The Committee Against Torture’ which is headed by Ambassador Claude Heller of Mexico, is having its seventy-seventh session in Geneva which will continues until July 28, 2023. ‘The Committee Against Torture’, ‘The Subcommittee for the Prevention of Torture,’ ‘The Special Rapporteur on Torture’ and ‘The Voluntary Contribution Fund for Victims of Torture,’ issued a joint statement on 26 June 2023 on the occasion of the International Day to Support the Victims of Torture, and called on States “to respect and defend the complete prohibition of torture, especially in armed conflict; and recalled that the protections granted by international humanitarian law were applicable in situations of armed conflict.  The prohibition of torture was a fundamental principle that applied at all times, in all circumstances and to all parties in a conflict.”

The joint statement needs to be supplemented by some observations from the viewpoint of the people of Kashmir – which is one of the oldest international conflicts where torture by Indian occupation forces has been widespread. The pronouncement made in the joint statement have failed to sway few governments including Modi-led Indian government from its inhuman path. India continues to kidnap, detain, torture and murder Kashmiri youth with impunity because regrettably world powers have chosen to render only lip service to human rights.

No doubt there are several well-meaning laws that were adopted by the UN General Assembly, such as the’ Standard Minimum Rules for the Treatment of Prisoners’, ‘The Code of Conduct for Law Enforcement Officials’ and ‘The Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment’, but India has put them in the archives and forgotten about them. The Indian occupation authorities have devised special draconian laws such as ‘Armed Forces (Jammu and Kashmir) Special Powers Act’ (AFSPA), Public Safety Act (PSA) and ‘Unlawful Activities Prevention Act (UAPA) that provides it the so called ‘legal cover’ to violate all standards of humanity and morality with utter impunity.

The report issued by the UN High Commissioner on Human Rights on June 14, 2018, illustrates, “As a State party to the International Covenant on Civil and Political Rights, which prohibits torture under any circumstances (Article 7), India is obliged to ensure that no person is “subjected to torture or to cruel, inhuman or degrading treatment or punishment”. There have long been persistent claims of torture by security forces in Kashmir.

The UN report adds “Impunity for human rights violations and lack of access to justice are key human rights challenges in the state of Jammu and Kashmir,” the report says, noting that the Armed Forces (Jammu and Kashmir) Special Powers Act 1990 (AFSPA) and the Jammu and Kashmir Public Safety Act 1978 (PSA) have “created structures that obstruct the normal course of law, impede accountability and jeopardize the right to remedy for victims of human rights violations.”

The AFSPA prohibits prosecution of security forces personnel unless the Indian Government grants prior permission to prosecute. “This gives security forces virtual immunity against prosecution for any human rights violation. In the nearly 28 years that the law has been in force in Jammu and Kashmir there has not been a single prosecution of armed forces personnel granted by the central government,” the report says.

The UN and all the great democracies of the world acknowledge that Kashmir does not belong to India or any other member country of the UN and that it is a disputed territory whose final status has yet to be determined. Thus, the UN and the world community is under no obligation to accept the validity of India’s measures to change the demography of Kashmir through newly enacted Domicile Law or the abrogation of Article 370 and 35 A. Because these measures are a flagrant violation of international law and more than dozen UN Security Council resolutions. Thus, these measures cannot be condoned even in a territory that may even be the heartland of a country.

Human rights watch 2023 report about India says, “Allegations of torture and extrajudicial killings persisted, with the National Human Rights Commission registering 147 deaths in police custody, 1,882 deaths in judicial custody, and 119 alleged extrajudicial killings in the first nine months in 2022.”

The United States, Department of State, 2022 Country Reports on Human Rights Practices in India says, “The law prohibits torture and other abuses, but there were credible reports that government officials employed them.  The law does not permit authorities to admit coerced confessions into evidence, but some nongovernmental organizations (NGOs) reported authorities used torture to coerce confessions.  Authorities allegedly also used torture to extort money or as summary punishment.”

Sixteen human rights organizations, including Amnesty International, International Service for Human Rights, Non-Violence International and others on May 12, 2023, called on Indian authorities ‘to immediately stop the reprisals against human rights defenders and organizations in Jammu and Kashmir, especially Khurram Parvez, Irfan Mehraj, and the Jammu and Kashmir Coalition of Civil Society (JKCCS). Khurram Parvez has been arbitrarily detained since 22 November 2021 as a reprisal for his human rights work, including documentation and advocacy in Jammu and Kashmir.’ Khurram Parvez is an internationally known human rights defender. Time Magazine wrote that Khurram Parvez is one of the 100most influential people of 2022.

Khurram Parvez has documented a 549-page report entitled, “Torture: Indian State’s Instrument of Control in Indian Administered Jammu and Kashmir.’ The prologue to this report was written by Professor Juan E. Mendez, former UN Special Rapporteur on Torture. Professor Mendez writes, “I feel honored to be given the opportunity to comment on this significant report on torture in the Indian administered Jammu and Kashmir…I am convinced that a report, when it is as rigorous, evidence based and persuasive as this one is, constitutes a building block towards public awareness of the tragedy of torture.” However, the dreams of Professor Mendez were shattered when the world powers turned a blind eye to his expectation that “It (the report) can also spearhead democratic debate about measures of public policy needed to re-establish the rule of law in this extremely sensitive area.”

Khurram Parvez wrote in this report, “You cannot understand human rights if you don’t understand the context. Human rights abuses are taking place all around the world, in many places, including in India. But the difference is these are happening because of aberrations, deficiencies in governance, and because people transgress the law. What is happening in Kashmir is not an aberration, it is part of an institutionalized policy of the Indian government.”

Mr. Parvez pleaded for the international community, whose assistance to date had been ‘dismal’ and all the organizations working for Kashmir to bring pressure to lobby for a United Nations ‘probe’ on the situation in Kashmir. Without such intervention, he said, ‘we cannot proceed forward. We are now at a stage where it is a complete dead end. We have done everything; we have met everyone in the government, but nothing has changed.

Dr. Fai is the Chairman, ‘World Forum for Peace & Justice.’

He can be reached at: WhatsApp: 1-202-607-6435. Or.  gnfai2003@yahoo.com www.kashmirawareness.org