Since 1989, the wails of family members mourning their dead have become ubiquitous to life in Jammu and Kashmir state.
Kashmiris are trapped in an armed conflict between abusive Indian government forces and armed militant groups waging a brutal separatist struggle with the backing of the Pakistani government. Most Kashmiri families have lost a relative, friend, or neighbor in the violence. At least twenty thousand Kashmiri civilians have been killed (Kashmiri groups say that the number is much higher). Tens of thousands have been injured. Hundreds of thousands have been internally displaced, including some three hundred thousand Hindu Kashmiris. Approximately thirty thousand Muslim Kashmiris have fled to neighboring Pakistan as refugees, while thousands have crossed that same border to train as fighters. Ordinary, day-to-day life has been upended and degraded.
Suspicion and fear continue to permeate the Kashmir valley. A knock on the door late at night sends spasms of anxiety through households, afraid that a family member will be asked by the security forces or militants to step outside for a minute and then never return. The bombs of militants go off in crowded markets without any warning. Psychological trauma related to the violence has been enormous, as life itself is constantly under threat.
Over the years a conflict over Kashmiri identity and independence has slowly but visibly mutated into an even more dangerous fight under the banner of religion, pitting Islam against Hinduism, and drawing religious radicals into its heart. Indian security forces claim they are fighting to protect Kashmiris from militants and Islamist extremists, while militants claim they are fighting for Kashmiri independence and to defend Muslim Kashmiris from a murderous Indian Army. In reality, both sides have committed widespread and numerous human rights abuses and violations of international humanitarian law (the laws of war), creating among the civilian population a pervasive climate of fear, distrust, and sadness.
In this report we document serious abuses, especially the targeting of civilians, by both government forces and militants in Jammu and Kashmir. Those abuses continue, despite a tentative peace process that includes talks between New Delhi, Islamabad, and some of Kashmirs separatist leaders, modest confidence-building measures between India and Pakistan, and the 2002 election of a state government with an avowed agenda to improve the human rights situation. Particular attention is given in this report to the problem of impunity from prosecution, whereby those responsible for abuses rarely get investigated, let alone tried and convicted.
Indian army and paramilitary forces have been responsible for innumerable and serious violations of human rights in Kashmir. Extrajudicial executions are widespread. Police and army officials have told Human Rights Watch that alleged militants taken into custody are often executed instead of being brought to trial because they believe that keeping hardcore militants in jail is a security risk. Most of those summarily executed are falsely reported to have died during armed clashes between the army and militants in what are euphemistically called encounter killings. A well-known example is the murder of five men who were identified by the police and army as the militants responsible for the massacre of thirty-six Sikhs in Chattisinghpora in 2000 and then killed in a supposed armed encounter. Forensic tests ordered by the state government later showed them to be local villagers who were innocent of the Sikh massacre.
In many other cases Indian security forces have shot civilians under the authority of laws such as the Jammu and Kashmir Disturbed Areas Act and the Armed Forces (Jammu and Kashmir) Special Powers Act, which allow lethal force to be used against any person who is acting in contravention of any law or order for the time being in force in the disturbed area. For example, on February 23, 2006, soldiers in Handwara shot at a group playing cricket, suspecting that a militant was hiding among them, and killed four boys, including an eight-year-old. Even the army has admitted that the extraordinary powers to shoot have led to mistakes. The army described as an error of judgment the July 2005 killing of three teenage boys in Kupwara who had sneaked away to smoke a cigarette at night and were shot without warning by troops. Such mistakes, which are not uncommon, greatly inflame public passions in Jammu and Kashmir.
Indian security forces have long been responsible for enforced disappearancesthat is, they deny having custody of an individual, typically in conjunction with their torture or extrajudicial execution. Kashmiri human rights defenders say that at least eight thousand people have disappeared since the conflict began; most were last seen in the custody of troops. While the state government has admitted that nearly four thousand people are missing in Jammu and Kashmir, it claims that many of them actually crossed into Pakistan-administered Azad Kashmir to join the militants. While the number of new disappearances appears to have decreased in the past few years from the huge numbers that characterized the early years of the conflict, that they continue at all is shameful for the worlds largest democracy. Moreover, there is still no information about the fate of thousands of individuals disappeared by Indian security forces since the beginning of the insurgency.
Interviews conducted by Human Rights Watch show that torture of detainees, in particular severe beatings during interrogations of suspected militants and their supporters, remains the norm. Kashmiris also complain of a form of punishment in which individuals are picked up for questioning and tortured in order to obtain information about a family member believed to be a militant. Militants who have surrendered said that they are treated with suspicion and often brutally interrogated. One former militant told Human Rights Watch that when he disappeared for over a month in 2004 he had actually been in army custody, where he was blindfolded, tied up, and beaten while his interrogators asked him for information about his former comrades. Despite claims of a new campaign by the army to train members of the security forces in public relations, army, paramilitary and police behavior towards the public is usually aggressive, distrusting, and rude. Slaps and kicks have become a form of greeting for the security forces, observed one villager in Kupwara district.
Kashmiris are often arbitrarily and illegally detained. The Additional Advocate General told the Srinagar High Court recently that there were 4,500 suspected militants in jail, awaiting trial. Many of them, say human rights lawyers, have been in custody for ten or more years and some have never been produced in court. Without evidence to secure a conviction or to prevent them from being released on bail, they are often held under a draconian preventive detention law called the Jammu and Kashmir Public Safety Act (PSA). The PSA allows for detention without trial for up to two years to prevent an individual from acting in any manner prejudicial to the security of the state or the maintenance of public order. The detention period is often renewed at the end of the two-year period by issuing a new PSA arrest warrant, meaning individuals spend years in detention without ever having the chance to appear before a court and contest the allegations against them.
As part of the current state governments healing touch policy and the ongoing peace talks between New Delhi and some of the separatist groups, dozens of alleged militants, including some who served more than two years under the PSA, have been released. The state government claims that of the nearly 1,200 held in detention when it came to power in November 2002, three years later only 376 alleged militants remain in custody under the PSA, including nearly two hundred foreigners, most of them Pakistani. Human rights defenders insist the number of those in custody is larger, but since no central record is maintained, it is impossible to independently verify the claims. One indication of the current scope of the problem is that 443 habeas corpus (produce the body) petitions were filed to challenge detentions in 2005.
Kashmiris have also been subjected to human rights abuses and humanitarian law violations by secessionist armed groups, commonly referred to as militants. Often intentionally ignored by supporters of Kashmiri independence or its accession to Pakistan are the numerous massacres, bombings, killings, and attacks on schools attributed to the militants.
Throughout the conflict, militant groups have targeted civilians, including women and children, whom they consider to be traitors to the cause or for expressing views contrary to those of one or another armed group. Alleged militants have murdered nearly six hundred Kashmiri politicians since the conflict began, usually as retribution for joining in the electoral process. Officials conducting the polls have been killed or tortured, some with their noses or ears chopped off. Militants have violently assaulted Kashmiris, including women, by chopping off ears or noses, as a means of punishing their relatives whom they consider to be traitorsinformers, security personnel, or surrendered militants. In several cases children have been abducted or executed.
Militants have been implicated in bomb attacks even outside Jammu and Kashmir. After a series of bomb blasts in Indias capital New Delhi on October 29, 2005, which killed over fifty civilians, a little-known group called Islami Inqilabi Mahaz claimed responsibility. In March 2006, a series of bomb blasts in Varanasi killed twenty people. Once again, an unknown group called Lashkar-e-Qahar called journalists in Jammu and Kashmir to claim responsibility and threaten more attacks. The July 2006 serial blasts in Bombays commuter trains that killed nearly two hundred have also been attributed to militants sympathetic to the Kashmiri struggle for secession, though as of this writing no evidence has been produced.
Militant groups have attacked religious minorities in Kashmir such as Hindus and Sikhs, as well as ethnic minorities such as the Gujjars and Bakarwals whom the militants target because they believe them to be government informers. Militants have committed at least twenty massacres of civilians from minority groups, usually in the middle of the night when they were asleep. Even as Kashmiris were climbing out of the rubble and mourning their dead after the October 8, 2005 earthquake, militants decapitated ten Hindus in Rajouri district. In May 2006, thirty-five Hindus were killed in the remote hamlets of Doda and Udhampur districts; police blamed the Pakistan-based Lashkar-e-Toiba. In recent years, as the conflict has increasingly taken on religious overtones, many militant groups have also begun to impose a more fundamentalist version of Islam in predominantly Sufi Kashmir. Some women have been punished for not adopting Islamic dress codes as demanded by some militant groups, while cable television operators and Internet centers have been targeted for promoting immorality. Recently, the Pakistan-based Harkat-ul-Jihadi Islami has even asked women to stop using mobile phones or visiting public parks.
Although many of the militant groups currently operating in Jammu and Kashmir have become increasingly unpopular, Kashmiris are afraid to speak out against them. A Kashmiri journalist who requested anonymity explained to Human Rights Watch in July 2005:
There is considerable evidence that over many years Pakistan has provided Kashmiri militants with training, weapons, funding, and sanctuary.Officially, Pakistan denies ever arming and training militants. However, real decision-making authority and management of the Kashmir struggle has long rested firmly with the Pakistani military and its Inter Services Intelligence (ISI) agency and the militant organizations it has supported and mentored. Under pressure from Washington after the September 11, 2001 attacks on the United States, Pakistan banned several militant groups in January 2002, including the Jaish-e-Mohammad and the Lashkar-e-Toiba, although they have continued to operate after changing their names. India blames these groups for many armed attacks.
Yet Pakistan appears to be keeping its options open should peace talks collapse. Former militants told Human Rights Watch that Pakistans army and intelligence services, in particular the ISI, continue to support armed groups operating in Jammu and Kashmir. In July 2005, as the snow melted and mountain passes opened, the Indian armed forces claimed to have killed at least forty armed militants in just one week as they attempted to cross into Jammu and Kashmir from Pakistan-administered Kashmir. Recent reports in the Pakistani media have also stated that many training camps are still functioning. After the 2005 earthquake, several armed groups conducted significant emergency relief operations in Pakistan-administered Kashmir, handing out weatherized tents even before the Pakistani government could mobilize.
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Under international humanitarian law (the laws of war), the conflict in Jammu and Kashmir is considered to be a non-international (internal) armed conflict. Applicable law, to which both state armed forces and opposition armed groups must abide, includes Article 3 common to the 1949 Geneva Conventions and customary international humanitarian law. This law prohibits attacks against civilians and civilian objects, and requires that civilians and captured combatants be treated humanely at all times. Serious violations of the laws of war are war crimes, which states have a duty to prosecute.
Indian security forces are also bound by international human rights law, such as is found in the International Covenant on Civil and Political Rights, which India ratified in 1979. Human rights law prohibits extrajudicial executions, torture and other mistreatment, enforced disappearances and arbitrary arrest and detention. States have a duty under international law to investigate and prosecute serious violations of human rights.
Throughout the conflict in Jammu and Kashmir, impunity from prosecution for serious crimes has been a common thread. Impunity occurs when the state consistently fails in its responsibilitybecause of a lack of capability or political will or laws shielding state abusersto hold perpetrators of human rights violations accountable. This creates an atmosphere in which violators believe that they can get away with the most serious crimes. As stated by the United Nations (U.N.) General Assembly in its March 2006 resolution on the right of victims of human rights abuses to a remedy, states must [i]nvestigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law.
Although India has internal systems of inquiry and punishment, Human Rights Watchdespite several letters requesting the information from the Indian governmenthas received no details of any cases in which members of the Indian security forces have been prosecuted and convicted for serious human rights violations. In March 2006, Chief Minister Ghulam Nabi Azad said that 134 army personnel, seventy-nine members of the Border Security Force, and sixty policemen have been punished for committing human rights abuses since the insurgency first began. However, as no details of these incidents are available and the chief minister claimed at the same time that there were only 122 complaints of human rights violations since 2002, these figures cannot be taken at face value, and the commitment to transparently investigate, prosecute and punish individuals responsible for abuses remains in doubt. Instead, soldiers, paramilitaries, and police are routinely shielded by both their uniformed and civilian superiors in Jammu and Kashmir and New Delhi and by laws that make it extremely difficult to prosecute members of the armed forces in civilian courts.
Indian and Kashmiri policemen watch as shooting breaks out following an attack by suspected Pakistani Islamist militants in the center of Srinagar's business district, July 29, 2005. © 2005 Robert Nickelsberg
Indian law offers a remarkable amount of legal protection to members of the armed forces and civilian officials implicated in criminal offenses. Section 45 of the Criminal Procedure Code of 1973 protects any member of the armed forces from arrest for anything done or purported to be done [emphasis added] by him in the discharge of his official duties except after obtaining the consent of the Central government. Section 197(2) of the Criminal Procedure Code is a sweeping impunity provision that applies throughout India. It makes it mandatory for a prosecutor to obtain permission from the federal government to initiate criminal proceedings against public servants, including armed forces personnel. And both the Jammu and Kashmir Disturbed Areas Act and the Armed Forces Special Powers Act provide effective immunity from civilian prosecution, stating, in identical language, that:
Military personnel are also subject to the Manual of Military Law and Regulations, which details the rules and procedures for the investigation, prosecution, and punishment of military offenses and crimes in the armed forces. There is little evidence that the military has shown any greater interest in prosecuting its own for human rights violations in Jammu and Kashmir than has the civilian justice system.
This impunity has an impact that spreads well beyond the original crime, encouraging other abuses. For instance, a Kashmiri man whose son was disappeared told Human Rights Watch that police warned him that if he failed to pay a bribe or complained to the authorities, not only would the son be killed, but he himself would be taken into the jungle, killed, and identified as a foreign militant.
In this report we trace impunity for the most serious abuses dating back to the beginning of the conflict. We describe how in 1990 the Central Reserve Police Force shot and killed at least thirty-five Kashmiri demonstrators (according to some reports, as many as one hundred) as they reached the Gawakadal Bridge on Srinagars Jhelum River. A similar number of demonstrators protesting the killing of religious leader Mirwaiz Maulvi Mohammad Farooq were gunned down by security forces on May 21, 1990. In October 1993 at least thirty-seven people were killed when personnel from the 74th Battalion Border Security Force opened fire to disperse more than ten thousand people demonstrating in Beijbehara against an earlier incident of indiscriminate firing in Srinagar. And then there is the case of the murder of human rights lawyer Jalil Andrabi in 1996 by the army. No one has been arrested let alone prosecuted in such cases, which have seared the consciences of many Kashmiris and taken on almost legendary status as proof that the Indian state is fighting a war not to protect Kashmiris, but to subjugate them.
Impunity continues to the present. In May 2003, Javed Ahmad Magray, a seventeen-year-old student, was murdered one night near his home in Srinagar. An investigation by the district administration concluded that Magray had been abducted and killed by the army. Although the investigation identified the officer responsible, he was never arrested or even compelled to testify during the inquiry, because the army claimed that his unit had been moved out of Jammu and Kashmir. This is where the immunity provisions in the law kicked inunder the Armed Forces (Jammu and Kashmir) Special Powers Act, the state government must seek permission from the central government to prosecute members of the armed forces. As is almost always the case, as of May 2006 that permission had not been granted. Despite several requests to the army for information, there is no evidence that the Indian army has sought to prosecute the officer under the military justice code.
Pakistan has never held any militant accountable for crimes committed in Jammu and Kashmir. Instead, many militants enjoy the sanctuary of Pakistani soil after they commit abuses across the border. Leaders of militant groups have never made any public statements renouncing their policy of attacks upon civilians, or given any indication that those responsible for such abuses should be held to account.
Impunity not only affects the victims and their families. In Jammu and Kashmir, impunity has bred cynicism and distrust of authority. It has led to divisions in society that will take a long time to heal. Many Kashmiris told us that impunity for human rights violations is the single biggest obstacle to a restoration of normality in the state. They made it plain that no peace or ceasefire will be meaningful or enduring without an end to the almost complete impunity that the Indian security forces and the militants have enjoyed.
Many in Jammu and Kashmir believe that if the Indian government had taken action against abuses, ordered immediate investigations, and transparently prosecuted and punished those found responsible, many lives might ultimately have been spared. Public willingness to overlook brutal crimes by the militants might have been much lower. Instead, government abuses have acted as a recruiting sergeant for the militants and, throughout the conflict, provided a platform to garner support for the insurgency.
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When the armed rebellion first began in 1989, most Kashmiris believed it would be a short struggle. As militants started a campaign of bombings, grenade attacks, and killings of civilian officials, almost every day there were demonstrations. Kashmiris were out in the streets in the tens of thousands, calling for azaadi, or independence. Local government came to a halt and, taken aback by the scale of the protests, it scrambled futilely to restore order, deploying nervous, ill-trained troops who used unnecessary lethal force, killing scores of unarmed demonstrators. Separatist leader Abdul Ghani Bhat, recalling those days to Human Rights Watch, said:
All this violence has brought immense suffering to Kashmiris. It has even almost led to war between nuclear-armed India and Pakistan. After a deadly attack on Indias parliament in December 2001 that left twelve people, including the five gunmen, dead, India blamed Pakistan-based militant groups operating in Jammu and Kashmir. All five gunmen, according to the police, were Pakistani. After the attack, the two countries deployed over a million troops to the border. There was frightening talk of a nuclear war until, under international pressure, the troops were pulled back.
A cautious peace process ensued, begun by Indias then Prime Minister Atal Bihari Vajpayee and Pakistans leader, General Musharraf. It has been sustained by international pressure driven by the post-September 11, 2001 war on terror and fear of nuclear war between countries that have gone to war three times since independence in 1947, plus a certain amount of Kashmir fatigue on both sides of the border, and the desperate yearning of most Kashmiris for an end to the conflict.
Elections in India in 2004 brought a coalition led by the Congress party to power in New Delhi and the two governments have continued to meet, albeit at a languid pace and with a modest agenda. While both Prime Minister Manmohan Singh and General Musharraf say they are committed to the peace process, progress has been slow.
Although the two governments may not have found an immediate solution to Kashmir, they are encouraging people-to-people contact by easing visa regulations and providing cheap bus and train services across the border. However, because of a history of distrust, the process is still tenuous and all sides can point to abuses by the other as a reason to continue the fight. However, more and more voices are beginning to point to the same atrocities as a reason to stop.
Many observers believe that there is an unprecedented opportunity to reach a final settlement that addresses Kashmirs critical human rights situation. The United States, the worlds sole superpower and a proponent of a settlement, is for the first time considered a friend of both India and Pakistan. In Jammu and Kashmir, a coalition government between the Peoples Democratic Party (PDP) and the Congress party is in power after defeating a discredited state administration in 2002 elections. The coalition had made human rights one of its main campaign planks. Though it has little power over the national security services, the state government has repeatedly called for an end to chronic problems such as disappearances and custodial killings.
Perhaps most important, there has been a significant change in both the Indian and Pakistani governments attitudes, with senior Indian officials admitting human rights violations (as opposed to earlier flat denials) and some Pakistani officials admitting their role in influencing and supporting the militants. Kashmiri rebel political leaders also admit that armed groups have committed human rights abuses. That, too, is a significant shift from the early years of the conflict.
Although the process is inordinately slow, India has also begun to talk to Kashmiri rebel political leaders, though it is yet to initiate talks with the Pakistan-based militant leaders. New Delhi is demanding a convincing end to Pakistani support to the militants. There have been some proposals towards a possible solution, including the demilitarization of Kashmir and eventual self-rule for Kashmiris, who are presently separated by the Line of Control that divides Indian- and Pakistan-administered Kashmir. Most analysts believe this to be premature because neither country will want to relinquish its military presence in the areas under their control. India also says that with militants still attacking civilians, it cannot risk withdrawing troops. Pakistan and the rebel groups say that if India only agreed to work honestly towards an honorable settlement, there would be no need for an armed struggle and militancy would end.
Perhaps the greatest impetus for a settlement is weariness on all sides with a conflict that has brought so much misery but no victory for either the Indian army or the militants. Nor has it resolved Kashmirs future as part of India, Pakistan, or as an independent entity. It is noteworthy that many Kashmiris in favor of independence have come to this view not just as a political statement, but because of the constant abuse that they have witnessed and suffered.
Many ordinary Kashmiris are beginning to say that they are paying too heavy a price in this conflict and that it is the militants, and not just the Indian security forces, that are to be blamed. According to the Mumbai-based International Center for Peace Initiatives, nearly 85 percent of those killed in militant attacks since the conflict started have been Kashmiri Muslims. Many Kashmiris told Human Rights Watch that they have a desperate hope for peace and, feeling let down by those claiming to represent them, including mainstream politicians, Kashmiri nationalists and militant leaders, seek new leadership. They believe that without authentic local leadership, they will not be adequately represented in negotiations. But they are concerned that independent Kashmiri voices with priorities inconsistent with established militant agendas will be branded as traitors and targeted for attack.
Abdul Ghani Lone was one of the first moderate leaders of the All Party Hurriyat Conference to become a vocal advocate of dialogue and compromise. He was killed on May 21, 2002. His son Sajjad Lone believes that Pakistan-backed militant groups murdered his father because he advocated a settlement with India. Sajjad Lone described what he said had become the greatest tragedy in the Kashmir conflict, that Kashmiris were being killed by their professed liberators:
Just as human rights abuses and impunity have been a cause and fuel for the conflict, human rights protections and accountability can be key ingredients for a solution. There can be no better confidence building measure than an end to abuses on both sides and the beginnings of an effort to address the crimes of both the past and present. With strong and committed political leadership in India, Pakistan, and Jammu and Kashmir, and pressure and support from the United States and other key international actors, substantial progress can be made in a short period of time. Then all this violence may begin to become part of Kashmirs past, instead of its future.
Human Rights Watch conducted research for this report by sending teams to both Jammu and Kashmir and Azad Kashmir. Research in Jammu and Kashmir was conducted from 2004 to February 2006 and in Azad Kashmir in 2005 and 2006. Additional research was conducted by telephone, email and in meetings with nongovernmental organizations (NGOs) and officials in New Delhi, Islamabad and elsewhere. Human Rights Watch interviewed government officials, army officers, police officials, politicians, journalists, human rights defenders, members of the international and diplomatic community, militants, and victims of human rights violations. Information here about unresolved or ongoing cases is at least as reported at the time of Human Rights Watchs most recent research in Jammu and Kashmir, in February 2006. Wherever possible, efforts have been made to provide more up-to-date information in such cases. Despite several letters requesting the information from the Indian government, at the time of writing Human Rights Watch had received no details of any cases in which members of the Indian security forces have been prosecuted and convicted for serious human rights violations.
In order to protect victims and others who might face reprisals by either side for speaking against them, names and any information that might identify them, such as places where interviews were held or specific dates of those meetings, have been withheld in certain cases.