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Facts, Figures, Human Rights Violations
Background. Hr Violations International Law Govt Violations Summary Recmndations
Battered Bodies Shattered Souls.
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IV. APPLICABLE INTERNATIONAL LAW International Human Rights Law and Standards International human rights law prohibits the arbitrary deprivation of life under any circumstances. The government of India is a signatory 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."26 The International Covenant on Civil and Political Rights (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.27 The evidence gathered by Human Rights Watch/Asia indicates that the Indian army, Border Security Force, Special Task Force, Central Reserve Police Force, and state-sponsored paramilitary "renegade" groups— the principal government forces operating in Jammu and Kashmir28—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 In addition to internationally recognized human rights, Human Rights Watch/Asia believes that both the government of India and armed groups fighting against it in Kashmir are bound in this situation by international humanitarian law (the law of armed conflict) applicable in non-international (internal) armed conflict. The applicable law is found in Article 3 common to the four Geneva Conventions of August 12, 1949 ("Common Article 3"); additional authoritative standards are found in Protocol II (1977) Additional to the Geneva Conventions of 1949 ("Protocol II"). Common Article 3 and Protocol II each provide international law and standards governing the conduct of parties in an internal armed conflict, including government forces and insurgents. India has ratified the four Geneva Conventions of 1949, and is thus obliged to uphold Common Article 3.29 Human Rights Watch/Asia believes that, given the widespread and frequent fighting throughout Kashmir, recourse by the government to its regular armed forces, the organization of insurgents into armed forces with military commanders responsible for the actions of those forces and capable of adhering to laws of war obligations, the military nature of operations conducted on both sides, and the size of the insurgent forces and of the government's military forces, Common Article 3 is applicable to the conflict in Kashmir.30 Thus, each party is absolutely bound to apply the following provisions, irrespective of the behavior of other parties: (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: These principles apply to all parties to the conflict, both government and guerrillas. The obligation to comply with Common Article 3 is absolute and independent of the obligation of the other parties.32 Thus, the government of India, like other governments, is obliged to abide by these provisions and is responsible for violations committed by and attributable to its armed forces and state-sponsored paramilitary forces under its command or protection.33 It cannot excuse itself from complying with Common Article 3 on the grounds that the militants are violating Common Article 3, and vice versa. 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/Asia believes that it is the Indian government's duty to do so. Thus, Kashmiri militants may be tried for murder, kidnaping 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.34 Rape also violates the ICCPR and Common Article 3 prohibitions on torture.35 In addition to Common Article 3, Human Rights Watch/Asia also finds that the Code of Medical Neutrality in Armed Conflict applies to the Kashmir conflict. This code provides standards for the protection of medical workers and their humanitarian work during armed conflict.36 26 Article 4, Article 6, International Covenant on Civil and Political Rights. 27 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. 28 The other security forces deployed in Kashmir, the CRPF and the BSF have combat duties and sometimes conduct operations jointly with Indian army forces. 29 India has not ratified
Protocol II. Moreover, Human Rights Watch/Asia does not believe that the conflict in
Kashmir reaches the threshold necessary for Protocol II to apply, that is, an armed
conflict that takes place "in the territory of a High Contracting Party between its
armed forces and dissident armed forces or other organized armed groups which, under
responsible command, exercise such control over a part of its territory as to enable them
to carry out sustained and concerted military operations and to implement this
Protocol." Nevertheless, India and the insurgents are obligated to uphold 30 See generally Heather A. Wilson, International Law and the Use of Force by National Liberation Movements (Clarendon-Oxford, 1988), at 45-48, for a review of generally debated criteria and state practice; see also G.I.A.D. Draper, The Red Cross Conventions (Stevens and Sons, 1958), at 15-16. It is essential to acknowledge, however, that Common Article 3 carries no implications for the legitimacy of insurgent forces; the government is entitled to prosecute those captured in internal insurgency for the violation of domestic law. "The application of [Common Article 3] shall not affect the legal status of the Parties to the conflict." Common Article 3 to the Geneva Conventions of 1949. Current state practice is best reflected in Public Prosecutor v. Oie Hee Koi (Federal Court of Malaysia, 1968) (nationals of the Detaining Power are not entitled to protection as prisoners of war and may be tried under municipal law). See also Wilson at 46-48. 31 Common Article 3, subsections 1 and 2. 32 Common Article 2, The Geneva Conventions of 1949:" Although one of the Powers in a conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations." 33 The principal government forces operating in Jammu and Kashmir—the Indian army, the Central Reserve Police Force and the Border Security Force—are all entities of the central government in New Delhi. Army soldiers report, ultimately, to the Minister of Defense; the CRPF, BSF and other national paramilitary police forces report to the Home Minister. As such, the actions of these troops are governed by the international laws of war and international human rights law which bind the government of India. In addition, since January 19, 1990, the central government has ruled the state directly. 35 Rape is clearly prohibited by Common Article 3; it is customarily understood to constitute both cruel treatment and an outrage on personal dignity. Protocol II provides authoritative guidance for interpreting Common Article 3's prohibition on "outrages upon personal dignity." Protocol II outlaws "humiliating treatment, rape, enforced prostitution and any form of indecent assault." The commentary of the International Committee of the Red Cross explains that this article "reaffirms and supplements Common Article3 ... [because] it became clear that it was necessary to strengthen ... the protection of women ... who may also be victims of rape, enforced prostitution or indecent assault." Protocol II, article 4(2)(e). For a discussion of the status of rape in international humanitarian law, see Helsinki Watch, division of Human Rights Watch, War Crimes in Bosnia-Hercegovina, vol. II (April 1993), at 20. The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the acquiescence of a public official or other person acting in an official capacity. When any party to an armed conflict, internal or international, uses rape, or acquiesces in the use of rape by its combatants, with the intention of inflicting severe pain or suffering and for the purposes of coercing, punishing, or intimidating, or to obtain information or a confession, it constitutes torture. 36 The Code of Medical Neutrality in Armed Conflict is reproduced in full in the appendix.
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