Kashmir Tribunal Memorandum to CM Omar Abdullah

Conveners:
Dr. Angana Chatterji, Associate Professor, Anthropology, California Institute of Integral Studies
Advocate Parvez Imroz, Founder, Jammu and Kashmir Coalition of Civil Society
Gautam Navlakha, Editorial Consultant, Economic and Political Weekly
Zahir-Ud-Din, Vice-President, Jammu and Kashmir Coalition of Civil Society

Legal Counsel:
Advocate Mihir Desai, Mumbai High Court, Supreme Court of India, Co-founder, Indian People's Tribunal

Liaison:
Khurram Parvez, Programme Coordinator, Jammu and Kashmir Coalition of Civil Society


February 11, 2009

Re.: Memorandum on Human Rights, Peace, and Social Justice

Dear Mr. Omar Abdullah:

We write you today on behalf of the International People's Tribunal on Human Rights and Justice in Indian-administered Kashmir. [A brief on the Tribunal's premise and objectives may be found at: http://www.kashmirprocess.org/premise.html.]

We write, mindful that you have promised attentiveness and accountability to human rights issues in Kashmir, to bring to your attention the need for appropriate action with regard to the following:

1. Disappearances: You have raised issues of enforced disappearances in Kashmir in the past. We ask that you order a full-scale investigation under provisions of the Commissions of Inquiry Act, 1952, and/or other relevant laws, within a stipulated and reasonable timeframe.

We ask as well that all laws of Jammu and Kashmir incorporate the premise of the United Nations Declaration on the Protection of All Persons From Enforced Disappearance, the International Convention for the Protection of All Persons from Enforced Disappearance, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

2. Killing by Police Firings, Fake Encounter Killings, and Extrajudicial Killings: We ask that you use all authority granted you by law to take strong and effective preventive measures to ensure that these are not repeated. As well, we urge that the cases that have been pending in courts, and those that have not been filed, be expeditiously dealt with and the perpetrators be brought to justice. We ask that the Government of Jammu and Kashmir follow the cases pending for sanctions before the Government of India's Home Ministry under Section 7 of Armed Forces Special Powers Act, 1958, (AFSPA). We ask that the state make public the number of cases in which sanctions have been sought from the Government of India, and the number of cases in which the same have been granted.

3. Mass Graves: We note the existence of mass graves in Kashmir, as verified by the Association of Parents of Disappeared Persons and the International People's Tribunal for Human Rights and Justice in Kashmir in 2008. We note that there are connections between the number of persons disappeared and these unmarked, unidentified, nameless, and unknown graves. We also note that various international institutions and bodies, such as the European Parliament, have referred to this issue and made recommendations for action. We ask that your government offer protection to the sites to not permit their desecration or destruction, enable independent and transparent investigations drawing upon varied, credible, and international expertise, and institute an independent and transparent judicial commission of inquiry.

4. Torture: It has been acknowledged by international human rights organizations that the use of torture by military and paramilitary forces is widespread in Kashmir. [See documentations available at http://www.kashmirprocess.org/resources.html.] As well, the Government of India is yet to ratify the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, although it has been a signatory since October 1997. In this context, we ask that the Government of Jammu and Kashmir institute a comprehensive ban on practises of torture as defined by international law and humanitarian ethics.

5. Detention and Torture Centres: We ask that unlawful detention and torture centres, including in army camps, be identified, made public, and banned. Further, we ask that appropriate reparations be determined and undertaken with regard to unlawful and unconstitutional practises undertaken in these camps and centres. We ask that international institutions, such as the International Committee of the Red Cross (ICRC), be permitted to visit the above places to assess the situation independently.

6. Gendered and Sexualized Violences: We note the severity of gendered and sexualized violences that have been perpetrated in Kashmir in the last two decades. Women and children, and others, have been victimized by horrific forms of brutality, including rape, gang and collective rape, perpetrated on women. Other categories of victimization include women whose male partners are missing, labelled 'half-widows'. Women and children, and others, have been subjected to physical and psychological torture and trauma, and social and literal displacements. We note the urgency of undertaking ethical, transparent, and independent assessments of the above in conditions that ensure the safety and security of the survivors/victims, and undertaking requisite reparations and rehabilitation.

7. Prisoners Rights: We ask that prisoners' rights not be violated, and that medical aid be readily made available, and that the right to legal counsel, due process, fair and speedy trials be upheld.

8. Rights of Former Militants: We ask that the civil liberties of former militants and their families be respected. We note that the civic and political rights of former militants, who are now living different and committed lives, continue to be violated by personnel of the military and paramilitary forces. We note that some of them have been subjected to torture after serving sentences and deemed 'rehabilitated' by the justice system. We note that many still have to report to local camps of the security forces on a weekly basis. We note as well that former militants and their families continue to be subjected to maltreatment and denied access to social life, such as to institutions, employment, and pensions.

9. Juvenile Justice: We ask that youth not be taken into custody, held, or tried as adults, and that their rights to legal counsel, due process, and fair and speedy trials be upheld. We ask that a law be enacted that guarantees juvenile justice, that safeguards the rights of juveniles in conflict with law, and neglected and destitute juveniles.

We note that young people in general, particularly girls and young women, must be guaranteed an environment free of sexual harassment and violence.

We note that young people need to be guaranteed freedom from forms of harassment that undermine their right to education. Impediment to livelihood of adults creates economic insecurity that impacts youth. Family livelihood insecurity compels youth to earn income rather than foreground education and development. Proximity to systemic violence produces severe emotional trauma that manifests as depression, suicidal behaviours, self-medication through drugs, as well as retreat and isolation as coping strategies. There are inadequate provisions to address these issues and respond to these needs. We urge recognition of this reality and the allocation of resources to address these issues.

10. Access to Justice: We ask that all persons seeking to access institutions of law and justice be treated with respect and non-violence by law enforcement agencies. We note that, in countless instances, complaints are disregarded by the police, false first information reports (FIRs) filed, and people's request to file FIRS are met with disrespect, even force.

11. Landmines: We note that the placement of landmines along the border and other sensitive areas in Jammu and Kashmir continues to endanger lives, including those of children. While the Government of India is not a signatory to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, and has continued to justify landmine use in Jammu and Kashmir, we ask that the Government of Jammu and Kashmir institute a comprehensive ban on the use of landmines. We ask that an audit be conducted to ascertain the impact of landmines on local communities, to determine the extent of casualties, devastation, and displacement, and undertake rehabilitation of those affected and de-mining.

12. Transparency: We urge that the Government of Jammu and Kashmir ensure that international organizations and institutions, that have access to other places, are allowed to visit Jammu and Kashmir. We note that the ability of international institutions to work with local civil society institutions in Jammu and Kashmir is crucial to interrupting isolation and producing accountability.

We ask that thousands of families who have been denied passports, including human rights defenders and journalists, be provided the same.

We ask that, prior to contractual agreements and implementation, all development projects be assessed for their human rights implications.

13. Laws and States of Exception: We note your commitment to the revocation and withdrawal of security related legislation that has been in contravention of international humanitarian laws and norms, such as the Armed Forces Special Powers Act, 1958, (AFSPA), enacted in Jammu and Kashmir in 1990, the Disturbed Areas Act, 1976, enacted in Jammu and Kashmir in 1992, and the Jammu and Kashmir Public Safety Act of 1978. We reiterate the urgent need for the revocation of the Armed Forces Special Powers Act, 1958, the Disturbed Areas Act, 1976, the Unlawful Activities (Prevention) Act, 1967, and the Jammu and Kashmir Public Safety Act of 1978. We also note that continued criminal proceedings using the Prevention of Terrorism Act, 2002, and the Terrorist and Disruptive Activities (Prevention) Act, 1985, 1987, must be stopped.

While the safety and security of citizens must remain of paramount concern, we ask that you remain vigilant to the problematic parameters and consequences of certain national security laws used to proscribe political dissent and deny freedom of expression, freedom of speech, and freedom of assembly, and deny the democratic right to peaceful mobilization and dissent. We note that certain national security laws, in the name of retributive justice, have been/may be used to perpetrate state violence, subvert due process of law, undermine civil liberties, and freedom of the press, eroding rule of law, permitting torture and sexualized violence on those in state custody, criminalizing innocent persons, and, in effect, undermining the safety and security of citizens.

14. Commissions of Inquiry: We ask that the reports and/or findings of various Commissions of Inquiry that have been instituted to inquire into instances of gross violations of human rights, law, and social justice be made public and that these commissions be ordered to complete their charge. Further, from available information, we register our concern that between 2000-2007 only three statutory inquiries have been commissioned and that other inquiries instituted have been magisterial and administrative probes. We ask that, based on ethical assessments of gross violations of human rights, law, and social justice, relevant statutory inquiries be ordered, as appropriate, to investigate these crimes. We ask that various agencies, including military and paramilitary institutions, be required to cooperate with instituted commissions in order that they may carry out their investigations. We ask that the recommendations of the commissions be enacted.

15. Minorities: We note that peace and reconciliation requires commitment to minority rights and issues, and the ethical and transparent resolution of injustices. We ask that an audit be conducted to ascertain the status of minorities in Kashmir, and related to the displacement, dislocation, and rehabilitation of minorities in Jammu and Kashmir, to propose mechanisms for reparation and reconciliation.

16. Truth and Reconciliation Commission: We note your public commitment to instituting a 'Truth and Reconciliation Commission (TRC)'. We are hopeful that you will appreciate that such a process must facilitate the implementation of justice as a precondition to reconciliation. We further note that the viability and success of a TRC is only possible in a context where demilitarization has taken place, enabling a social context in which the will and freedom of the people of Kashmir can be exercised.

17. In conclusion, we write you today mindful of how the conditions for peace and prosperity are linked to the possibility and necessity of justice in Kashmir. We understand the work of the International People's Tribunal for Human Rights and Justice in Kashmir as enabling the work of justice. Toward that, we hope and expect that the Tribunal will continue to undertake its work in conditions that are not impeded.

Yours Sincerely,

Angana Chatterji, Parvez Imroz, Gautam Navlakha, Zahir-Ud-Din, Mihir Desai, Khurram Parvez

Contact:
Khurram Parvez
E-mail: kparvez [at] kashmirprocess [dot] org
T: +91-194-2482820
M: +91-9419013553