The International Criminal Court (ICC) on 21 March 2016, convicted Jean-Pierre Bemba Gombo, for war crimes committed by soldiers under his effective control between 2002 and 2003 in the Central African Republic. He is yet to be sentenced. Radovan Karadzic, the ex Bosnian Serb leader and Supreme Commander of the armed forces was recently convicted and sentenced for 40 years by the International Criminal Tribunal for genocide, crimes against humanity and war crimes committed in Bosnia and Herzegovina between 1992 and 1995. Both the judgments reaffirm the principle that it is not only the person actually perpetrating a specific crime that is culpable, but those in charge and fail to stop crime are the true perpetrators and must be held accountable.
During the last three decades, Kashmiris have been subjected to all kinds of horrifying crimes by agencies of the State as well as some non-state actors. While the latter are often either killed or tried under the existing law, the authorities are shielded with legal impunity and from prosecution under international humanitarian law. Here we are talking about crimes against humanity, massacres, enforced disappearances, extrajudicial and custodial killings, rape and wide-scale torture of thousands of citizens. The number of victims is actually overwhelming.
Human rights groups have documented an immense amount of evidence, which has been presented to the top authorities both in J&K and in New Delhi, including the PM of India. The evidence severely indicts the entire chain of command going right up to the top of military and executive authority. Many reports about the extent of human rights violations in Kashmir have exposed structures of violence and legal impunity sustained not just by laws like AFSPA but also by certain systemic cooperation between the political executive and the judicial system. The victims as well as rights groups have exhausted almost all existing avenues as they are confronted with a system that appears designed to deny rather than ensure delivery of justice.
The only possible means for ensuring justice to the victims in Kashmir are available in the domain of the United Nations (UN) or the ICC in the Hague. But there also the ICC can be mobilised only if the UN Security Council refers to it the case of rights violations in Kashmir. India as part of the UN system should allow Special Rapporteurs into Kashmir and sign the Rome Statute and allow top political and military authorities to be tried, and justice ensured.