‘India failed international obligations, its own Constitution’

‘India failed international obligations, its own Constitution’

Amnesty report on J&K highlights rampant abuse and impunity

Srinagar: In a damning report, which asserts that not a single soldier has been tried in a civilian court till date in Jammu and Kashmir, Amnesty International India has said that 25 years after the Armed Forces Special Powers Act (AFSPA) was imposed in J&K, ‘the law continues to feed a cycle of impunity for human rights violations’.
The Amnesty report, “Denied: Failures in accountability for human rights violations by security force personnel in Jammu and Kashmir”, documents in detail the obstacles to justice existing both in law and practice and shows “how the government response has failed to deliver justice”. The report, Amnesty said, “focuses particularly on Section 7 of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (AFSPA), which grants virtual immunity to members of the security forces from prosecution for alleged human rights violations.”
Senior Director of Global Operations at Amnesty International Minar Pimple said that July 5, 2015, will mark 25 years since AFSPA came into force in J&K: “Till now, not a single member of the security forces deployed in the state has been tried for human rights violations in a civilian court. This lack of accountability has in turn facilitated other serious abuses.”
“The current Chief Minister of Jammu and Kashmir, Mufti Mohammed Sayeed, was the Union Minister for Home Affairs when AFSPA was enacted by the Indian Parliament in 1990. He now has a historic opportunity to work to remove this oppressive law,” Pimple added.
Amnesty interviewed 58 family members of victims of alleged human rights violations by security forces, analysed Right to Information applications, examined police and court records, and interviewed civil society groups, lawyers, and government officials to prepare the in-depth report.
The report states that the central government has denied permission, or ‘sanction’, to prosecute under Section 7 of the AFSPA every case brought against army men or paramilitary personnel or, in a small number of cases, has kept the decision pending for years. “Not a single family interviewed for the report had been informed by the authorities of the status or outcome of a sanction request in relation to their case,” said Research Manager at Amnesty International India Divya Iyer.
“Police and court records pertaining to nearly 100 cases of human rights violations filed by families of victims between 1990 and 2012 showed that the Jammu and Kashmir police often failed to register complaints or take action on registered complaints until they were compelled,” said Divya Iyer. “In some cases, army personnel have been reluctant or refused to cooperate with police investigations.”
The report states that the army has dismissed more than 96% of all allegations of human rights violations against its personnel in the state as “false or baseless”. It also said the evidence for finding the majority of allegations false is not publicly available: “Few details of investigations or military trials conducted by the security forces are available to the public.”
In a rare exception, in November 2014, said the report, the army had revealed that a court-martial had convicted and sentenced to life imprisonment five soldiers for shooting and killing three men in a ‘fake encounter’ – a staged extrajudicial execution – in Machil sector of north Kashmir’s Kupwara district in 2010. “The convictions in the Machil case were a welcome measure. But for justice to be consistently delivered, security force personnel accused of human rights violations should be prosecuted in civilian courts,” Divya Iyer said.
Amnesty stated that military courts in India suffer from particular structural flaws related to their competence, independence and impartiality, which render them unsuitable for prosecuting human rights violations: “By not addressing human rights violations committed by security force personnel in the name of national security, India has not only failed to uphold its international obligations, but has also failed its own Constitution. Impunity only breeds further violence and alienation, making it more difficult to combat abuses by armed groups”.
The human rights group, while making some recommendations to the state and central government, said all HR violations and crimes, under international law, committed by Indian security forces in J&K must be investigated by independent and impartial authorities.
It also said that the government should also remove all requirements of sanction or prior executive permission for prosecution of security personnel from all relevant legislation including ASFPA, the Code of Criminal Procedure, 1973 (operative in India), and the J&K Code of Criminal Procedure, 1989.

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