UN High Commissioner for Human Rights Kashmir Report

The United Nations High Commissioner for Human Rights has issued a detailed report on the Situation of Human Rights in Kashmir. It details incidents that have taken place in Kashmir between June 2016 to April 2018 in Jammu and Kashmir, Pakistan administered Kashmir and Gilgit-Baltistan. The heavily referenced report was made public on June 14 2018. The report that was welcomed by Kashmiri separatists was rejected by the Government of India. The report is being published here without references:

Acronyms

Office of the United Nations High Commissioner for Human Rights (OHCHR)
Nongovernmental organizations (NGOs)
United Nations Commission for India and Pakistan (UNCIP) United Nations Military Observer Group in India and Pakistan (UNMOGIP)
Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (AFSPA)
Jammu and Kashmir Public Safety Act, 1978 (PSA)
Jammu Kashmir Coalition of Civil Society (JKCCS)
Jammu and Kashmir State Human Rights Commission (SHRC)
First Information Report (FIR)
Azad Jammu and Kashmir (AJK)
Gilgit-Baltistan (G-B)
Human Rights Commission of Pakistan (HRCP)
Anti-Terrorism Act, 1997 (ATA)
China-Pakistan Economic Corridor (CPEC)

Executive Summary

On 8 July 2016, Burhan Wani, the 22-year old leader of the Hizbul Mujahidin, an armed group, was killed by Indian security forces during an armed clash in Bumdoora village in Kokernag area in the Indian state of Jammu and Kashmir. This triggered protests against his killing on a very large and unprecedented scale throughout the Kashmir Valley and in districts of Jammu. Indian security forces responded to protests with force, which led to casualties and a wide range of alleged related human rights violations throughout the summer of 2016 and into 2018. While Indian-Administered Kashmir has experienced waves of protests in the past—in the late 1980s to early 1990s, 2008 and 2010—this current round of protests appears to involve more people than the past, and the profile of protesters has also shifted to include more young, middle-class Kashmiris, including females who do not appear to have been participating in the past. Some of the root causes of the discontent fuelling protesters are addressed in this report.

Shortly after the outbreak of violence, the High Commissioner for Human Rights met with the representatives of the Governments of Pakistan and India who had differing narratives about the ongoing events and the general situation in Kashmir. From July 2016, the High Commissioner for Human Rights has on numerous occasions requested the Governments of India and Pakistan that his Office be given unconditional access to Kashmir to assess the human rights situation. India rejected this request, while Pakistan offered access should the Office obtain access to Indian-Administered Kashmir. Without unconditional access to Kashmir on either side of the Line of Control, the Office of the United Nations High Commissioner for Human Rights (OHCHR) has undertaken remote monitoring of the human rights situation. This first report on the situation of human rights in both Indian-Administered Kashmir and Pakistan-Administered Kashmir is based on such monitoring.

This report covers both the Indian state of Jammu and Kashmir (consisting of the Kashmir Valley, the Jammu and Ladakh regions) and Pakistan-Administered Kashmir (Azad Jammu and Kashmir and Gilgit-Baltistan). The focus of the report is on the situation of human rights in the Indian state of Jammu and Kashmir from July 2016 to April 2018 over which period allegations of widespread and serious human rights violations were received, notably excessive use of force by Indian security forces that led to numerous civilian casualties.

In responding to demonstrations that started in July 2016, Indian security forces used excessive force that led to unlawful killings and a very high number of injuries. Civil society estimates are that 130 to 145 civilians were killed by security forces between mid-July 2016 and end of March 2018, and 16 to 20 civilians were killed by armed groups in the same period. One of most dangerous weapons used against protesters during the unrest in 2016 was the pellet-firing shotgun, which is a 12-gauge pump-action shotgun that fires metal pellets.

In the same context, since the late 1980s, a variety of armed groups has been actively operating in the Indian state of Jammu and Kashmir, and there has been documented evidence of these groups committing a wide range of human rights abuses, including kidnappings and killings of civilians and sexual violence. The landscape of armed intervention by groups operating in Indian-Administered Kashmir has shifted over the years. In the 1990s, around a dozen significant armed groups were operating in the region; currently, less than half that number remain active. Despite the Government of Pakistan’s assertions of denial of any support to these groups, experts believe that Pakistan’s military continues to support their operations across the Line of Control in Indian-Administered Kashmir.

Between January 2016 and April 2018, civil society organizations have accused members of armed groups of numerous attacks against civilians, off-duty police personnel and army personnel on leave, including the killing of 16 to 20 civilians.

Impunity for human rights violations and lack of access to justice are key human rights challenges in the Indian state of Jammu and Kashmir. Special laws in force in the state, such as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (AFSPA) and the Jammu and Kashmir Public Safety Act, 1978 (PSA), have created structures that obstruct the normal course of law, impede accountability and jeopardize the right to remedy for victims of human rights violations.

Over 1,000 people were detained under the PSA between March 2016 and August 2017. Human rights groups had warned Jammu and Kashmir authorities that minors were being arrested under the PSA in 2016 and 2017.

During the 2016 unrest, there were numerous reports of attacks on, and obstruction of, basic medical services that had a severe impact on the injured and general civilian population in Kashmir. Human rights groups claimed that days-long curfews and communications blockades also had a major impact on people and their access to medical care in Kashmir.

The Kashmir region experienced frequent communications blockades during the 2016 unrest as the state Government suspended mobile and internet services on multiple occasions. In 2016, the authorities in Jammu and Kashmir imposed restrictions on freedom of expression, targeting media and journalists.

Widespread protests, long periods of curfew and frequent strikes in 2016 and 2017 had a cumulative impact on students and their right to education.

Impunity for enforced or involuntary disappearances in Kashmir continues as there has been little movement towards credibly investigating complaints including into alleged sites of mass graves in the Kashmir Valley and Jammu region.

Authorities have failed to independently investigate and prosecute allegations of sexual violence by security forces personnel.

While the main focus of the report is on the situation of human rights in the Indian state of Jammu and Kashmir from July 2016 to April 2018, the report examines the situation in Pakistan-Administered Kashmir within that timeframe. However, the human rights violations in this area are of a different calibre or magnitude and of a more structural nature.

Pakistan’s prime minister, the federal minister for Kashmir Affairs and Gilgit-Baltistan and the federal civil service have full control over all government operations in both Azad Jammu and Kashmir (AJK) and Gilgit-Baltistan (G-B). According to an international NGO, federal intelligence agencies are deployed across the two regions and have “considerable powers over local elected representatives and officials”. Given such a constitutional relationship with Pakistan, residents of AJK and G-B do not enjoy all the rights and protections available to those under the Pakistan Constitution.

The interim constitution of AJK has placed several restrictions on anyone criticizing AJK’s accession to Pakistan, in contravention to international standards on the rights to freedoms of expression and opinion, assembly and association.

A national NGO found that “hundreds of individuals” had been imprisoned under the Pakistan’s Anti-Terrorism Act, 1997 in G-B, and it was being used to target locals who have been raising issues related to the “rights of the people”.

A national NGO was informed that G-B authorities had forcibly evicted locals in Maqpoon Das area, while the Chief Secretary of G-B had allocated the same land to state authorities for the China Pakistan Economic Corridor. The displaced claimed they had not received compensation or relocation from the authorities. OHCHR has received information that indigenous people in G-B have complained of not being properly informed or consulted on decisions affecting them and their livelihoods.

Similar to the Constitution of Pakistan, AJK’s Interim Constitution also defines who may be considered to be a Muslim. This definition is used to declare members of the Ahmadiyya community as non-Muslims and is the basis of institutional discrimination against them. Pakistan’s blasphemy provisions are also reportedly in force in AJK and G-B.

According to figures provided by the Governments of India and Pakistan, ceasefire violations have been increasing between 2016 and April 2018. Increasing civilian casualties and injuries and a large number of people being displaced appear to be the consequence.

OHCHR recognizes the complexity of the historical background and political issues that has led to the current situation in Kashmir, which has been divided between India and Pakistan. People on both sides of the Line of Control have been detrimentally impacted and suffer from limitations or denial of a range of human rights.

There remains an urgent need to address past and ongoing human rights violations and to deliver justice for all people in Kashmir who have been suffering seven decades of conflict. Any resolution to the political situation in Kashmir should entail a commitment to ending the cycles of violence and accountability for past and current human rights violations and abuses committed by all parties and redress for victims. Such a resolution can only be brought about by meaningful dialogue that includes the people of Kashmir.

Introduction

On 8 July 2016, Burhan Wani, the 22-year old leader of the Hizbul Mujahidin, an armed group, was killed by Indian security forces during an armed clash in Bumdoora village in Kokernag area in the Indian state of Jammu and Kashmir. This triggered protests against his killing on a very large and unprecedented scale throughout the Kashmir Valley and in districts of Jammu. Indian security forces responded to protests with force, which led to casualties and a wide range of alleged related human rights violations throughout the summer of 2016 and into 2018. While Indian-Administered Kashmir has experienced waves of protests in the past—in the late 1980s to early 1990s, 2008 and 2010—this current round of protests appears to involve more people than the past, and the profile of protesters has also shifted to include more young, middle-class Kashmiris, including females who do not appear to have been participating in the past. Some of the root causes of the discontent fuelling protesters are addressed in this report.

Shortly after the outbreak of violence, the High Commissioner for Human Rights met with the representatives of the Governments of Pakistan and India who had differing narratives about the ongoing events and the general situation in Kashmir. From July 2016, the High Commissioner has on numerous occasions requested the Governments of India and Pakistan that his Office be given unconditional access to Kashmir to assess the human rights situation. India rejected this request, while Pakistan offered access should the Office obtain access to Indian-Administered Kashmir. Without unconditional access to Kashmir on either side of the Line of Control, the Office of the United Nations High Commissioner for Human Rights (OHCHR) has undertaken remote monitoring of the human rights situation. This first report on the situation of human rights in both Indian-Administered Kashmir and Pakistan-Administered Kashmir is based on such monitoring.

This report covers the Indian state of Jammu and Kashmir (consisting of the Kashmir Valley, the Jammu and Ladakh regions) and Pakistan-Administered Kashmir (Azad Jammu and Kashmir and Gilgit-Baltistan). The focus is the human rights situation in the Indian state of Jammu and Kashmir from July 2016 to April 2018, due to allegations of widespread and serious human rights violations, notably excessive use of force that led to numerous civilian casualties. Civil society estimates are that 130 to 145 civilians were killed by security forces between mid-July 2016 and end of March 2018, and 16 to 20 civilians killed by armed groups. The Government of Jammu and Kashmir in 2017 initially said 78 people including 2 police officers were killed in the 2016 unrest but in 2017 revised the figure down to 51 people killed and 9,042 injured between 8 July 2016 and 27 February 2017.

While the report examines the situation in Pakistan-Administered Kashmir within that timeframe, the human rights violations in this area are of a different calibre or magnitude and of a more structural nature.

Methodology

Without access to Kashmir on either side of the Line of Control, OHCHR has undertaken remote monitoring of the human rights situation. This report is the result of such monitoring, based on the mandate of the High Commissioner for Human Rights, as provided by United Nations General Assembly resolution 48/141. The mandate of the High Commissioner includes the full range of activities aimed at the promotion and protection of human rights, including monitoring and reporting.

The report largely draws on information that is mostly available in the public domain, some of which was obtained by various parties in India through the Right to Information Act,⁴ and also reflects the findings of research and monitoring carried out by local, national and international nongovernmental organizations (NGOs) and human rights defenders. Wherever possible, OHCHR has used official documents and statements, such as Parliamentary questions, court orders, and police reports. OHCHR considers the Press Trust of India—India’s largest news agency and managed by an autonomous trust—as a reliable source to quote Indian authorities and official statements. OHCHR conducted a small number of interviews to corroborate information; due to access issues and security concerns of witnesses, it was not possible for OHCHR within the timeframe available for producing this report to use direct witness testimony.

As OHCHR was denied access to Kashmir, it was not possible to directly verify allegations. OHCHR bases its findings on its methodology, using a “reasonable grounds” standard of proof. This implies that there are reasonable grounds establishing that an incident or pattern of conduct have occurred whenever OHCHR has obtained a reliable body of information, consistent with other material, based on which a reasonable and ordinarily prudent person would have reason to believe that such an incident or pattern of conduct had occurred.

The quantity and quality of information available on Indian-Administered Kashmir contrasts significantly to Pakistan-Administered Kashmir. Despite challenges, NGOs, human rights defenders and journalists are able to operate in the Indian state of Jammu and Kashmir, generating documentation on the ongoing human rights violations there. Restrictions on the freedoms of expression, opinion, peaceful assembly and association in Azad Jammu and Kashmir and Gilgit-Baltistan have limited the ability of observers, including OHCHR, to assess the human rights situation there. Nevertheless, OHCHR used the information that is available to address the human rights violations occurring in Azad Jammu and Kashmir and Gilgit-Baltistan.

In assessing the situation of human rights in Kashmir, OHCHR relied chiefly on the binding legal obligations that both India and Pakistan voluntarily assumed as State Parties to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention for the Protection of all Persons from Enforced Disappearance, as well as customary international law.

Background

Prior to 1947, under British rule, the Jammu and Kashmir region was one of the largest princely states in the Indian subcontinent. According to the India Independence Act, 1947, the princely states had the right to remain independent or accede to either of the then two new fully sovereign dominions of India and Pakistan. At the time, Hari Singh, the Hindu ruler of the Muslim-majority kingdom of Jammu and Kashmir, initially chose to remain independent. However, on 26 October 1947, under pressure from invading Pashtun forces, he signed the Instrument of Accession to India. An armed conflict involving Indian and Pakistani forces followed, which India brought to the attention of the United Nations Security Council on 1 January 1948. Pakistan raised its concerns on the same matter two weeks later.

On 20 January 1948, the Security Council through Resolution 39 established the United Nations Commission for India and Pakistan (UNCIP) to investigate the allegations made by the Governments of India and Pakistan and to assist with mediating the dispute.  On 21 April 1948, Security Council Resolution 47 expanded the mandate of the Commission and mandated it to facilitate a “free and impartial plebiscite to decide whether the State of Jammu and Kashmir is to accede to India or Pakistan.” Although Kashmir had been briefly independent between August and October 1947, the resolution did not provide an option for the people of Kashmir to choose independence.

Resolution 47 recommended that the Government of Pakistan should secure the withdrawal of tribesmen and Pakistani fighters from the state of Jammu and Kashmir and prevent any intrusions into the state or aid to those fighting. The plebiscite was to take place after the implementation of various measures foreseen in Resolution 47.

A ceasefire line was established in July 1949, and military observers were appointed by the Security Council to monitor it. In 1951, UNCIP was terminated, and the United Nations Military Observer Group in India and Pakistan (UNMOGIP) was established. It continued the work of military observers by Security Council Resolution 91.

The ceasefire line divided the former princely state, with Pakistan controlling the Muslim-majority western and northern areas of Jammu and Kashmir, called Azad (“free”) Jammu and Kashmir and Gilgit-Baltistan (previously called the Northern Areas) respectively; and India retaining control of the Kashmir Valley with its overwhelmingly Muslim population, the Hindu majority region of Jammu in the south and Muslim-Buddhist Ladakh in the east. These three areas together constitute the Indian state of Jammu and Kashmir. Part of the territory of the former princely state is under the control of China.

Although the “India-Pakistan Question” remained on the agenda of the Security Council until 1957, leading to several resolutions, the plebiscite never took place as the requisite conditions of withdrawal of forces was not fulfilled. In 1957, Security Council Resolution 122 noted about the convening of a constituent assembly, as recommended by the General Council of the All Jammu and Kashmir National Conference, “any action that assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire state or any part thereof, or action by the parties concerned in support of any such action by the assembly, would not constitute a disposition of the state in accordance with the principles” established by previous resolutions of the Security Council and UNCIP.

Minor changes to the ceasefire line in Kashmir followed a second war between India and Pakistan in 1965. Following another war in December 1971, it was eventually converted into the Line of Control, based on the December 1971 ceasefire positions, through the 1972 Simla Agreement signed between the Governments of India and Pakistan. The Simla Agreement calls for “the establishment of durable peace in the sub-continent, so that both countries may henceforth devote their resources and energies to the pressing task of advancing the welfare of their peoples” and “resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them.”

The Government of India has since claimed that the Simla Agreement made all previous Security Council resolutions redundant, while the Government of Pakistan has continued to call for the implementation of these resolutions. The United Nations Secretary-General’s position has been that UNMOGIP can only be terminated by a decision of the Security Council; as such a decision has not been taken, UNMOGIP has continued to operate.

In 1990, India introduced the Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA) to manage the armed groups that had emerged by the end of the 1980s over objections to Indian control over Kashmir. A large number of Indian security forces were subsequently deployed to Kashmir with allegations of resulting serious human rights violations. Civil society and media often cite the figure of 500,000 to 700,000 troops which would make Kashmir one of the most militarized zones in the world. The allegations of human rights violations include torture and custodial deaths, rape, enforced disappearances and extrajudicial executions. At the same time, armed groups are believed to have been committing significant human rights abuses, including hostage-taking, targeted killings, and indiscriminate attacks against civilians.  In addition to serious human rights violations resulting from the militarization of Kashmir, Kashmiris have also complained of high unemployment, interference with local elections, and denial of their right to self-determination.

Another war took place between India and Pakistan in 1999, albeit limited to the Line of Control in the Kargil area of Ladakh. Firing across the Line of Control by both sides has continued to today. Ceasefire violations have increased since 2016, causing a significant number of casualties and displacement reported on both sides of the Line of Control. The report addresses the human rights impact of these ceasefire violations.

Human rights violations in Indian-Administered Kashmir

Lack of access to justice and impunity

Impunity for human rights violations and lack of access to justice are key human rights challenges in the state of Jammu and Kashmir. Special laws in force in the state, such as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (AFSPA) and the Jammu and Kashmir Public Safety Act, 1978 (PSA), have created structures that obstruct the normal course of law, impede accountability and jeopardize the right to remedy for victims of human rights violations.

AFSPA 1990 was passed by the Parliament of India on 10 September 1990 but was “deemed to have come into force” retrospectively from 5 July 1990. This act grants broad powers to the security forces operating in Jammu and Kashmir and effectively bestows immunity from prosecution in civilian courts for their conduct by requiring the central government to sanction all prospective prosecutions against such personnel prior to being launched. It is almost identical to the Armed Forces (Special Powers) Act 1958 that is in force in several states of north-east India; however, a separate version of the same law had to be enacted specifically for Jammu and Kashmir due to its special status under article 370 of the Indian Constitution.

Section 7 of AFSPA 1990 prohibits the prosecution of security forces personnel unless the Government of India grants a prior permission or “sanction” to prosecute. This gives security forces virtual immunity against prosecution for any human rights violation. In the nearly 28 years that the law has been in force in Jammu and Kashmir, there has not been a single prosecution of armed forces personnel granted by the central government. In relation to this, the Indian authorities claim they follow a policy of “zero tolerance against human rights violations” and that military courts appropriately handle any allegations of human rights violations.

Section 4 of AFSPA 1990 allows any personnel operating under the law to use lethal force not only in cases of self-defence but also against any person contravening laws or orders “prohibiting the assembly of five or more persons”. This provision contravenes several international standards on the use of force and related principles of proportionality and necessity  including the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which requires law enforcement officials to use firearms only as a last resort, and to use them with lethal intent only when “strictly unavoidable in order to protect life”. According to the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Section 4 grants far-reaching powers to soldiers that violate the right to life and fail to build safeguards against excessive use of force.³⁷ Given the restriction imposed by Section 7 of AFSPA 1990, most cases of alleged excessive use of force have never been independently investigated or prosecuted.

While the Supreme Court of India upheld the constitutional validity of AFSPA in 1997, it has since passed orders challenging the restriction as provided in Section 7 that prohibits the prosecution of security forces personnel. In July 2017, the Supreme Court ordered the Central Bureau of Investigation to investigate alleged extrajudicial killings by security forces in the state of Manipur. However, there has been no such initiative in cases of alleged extrajudicial killings in Jammu and Kashmir.

In 2005, the Supreme Court appointed a committee to review AFSPA. The committee stated that the law had become “a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness”. While there has been no official position on this committee’s recommendations, in December 2015 media reports claimed that the Union Ministry of Home Affairs had rejected the committee’s proposals. In 2012, a committee, established by the Central Government to review laws against sexual violence, recommended that AFSPA be amended so that cases of sexual violence by members of the armed forces would be brought under the purview of ordinary criminal law. ⁴⁴ However, this recommendation has not been implemented. In 2012, in its submission in the context of India’s second Universal Periodic Review (UPR), the National Human Rights Commission of India stated that AFSPA “remains in force in Jammu and Kashmir and the North-Eastern States, conferring an impunity that often leads to the violation of human rights”. In November 2014, the Vice President of India, Hamid Ansari, recognized there were frequent complaints about the misuse of laws such as AFSPA and that “this reflected poorly on the State and its agents”.

International human rights experts and mechanisms, including treaty bodies have repeatedly called for the repeal of AFSPA. The Human Rights Committee noted that the requirement for the Central Government to sanction prosecutions against personnel operating under the AFSPA “contributes to a climate of impunity and deprives people of remedies,” and recommended that it should “be abolished and that it be left to the courts to decide whether proceedings are vexatious or abusive”. The Committee urged that “judicial inquiries be mandatory in all cases of death at the hands of the security and armed forces and that the judges in such inquiries, including those under the Commission of Inquiry Act of 1952, be empowered to direct the prosecution of security and armed forces personnel.”

During India’s UPR in 2008,⁵⁰ 2012⁵¹ and 2017,⁵² several United Nations Member States recommended that India repeal or revise the AFSPA. In the third cycle of the UPR, the Government of India admitted that concerns had been raised about AFSPA and that there was an “on-going and vibrant political debate” about whether “AFSPA should be repealed or the provision for sanctions should continue”. However, in March 2018, Union Minister of State for Home Affairs, Hansraj Gangaram Ahir, told the Parliament that there was no proposal to repeal or amend AFSPA in Jammu and Kashmir. He added: “[H]owever, a proposal is under consideration to make the Armed Forces (Special Powers) Act, 1958 more operationally effective and humane”.

The National Human Rights Commission of India has acknowledged that Section 19 of the Protection of Human Rights Act, 1993 severely restricts its powers to investigate incidents involving armed forces. The Human Rights Committee also observed that the National Human Rights Commission of India cannot investigate directly complaints against armed forces and that it is subject to a one year statute of limitations preventing investigation of past human rights violations. The Committee recommended that these restrictions be removed and that the Commission be authorized to investigate all allegations of violations by agents of the State.

Military courts and tribunals impeding access to justice

The Indian military justice system is based predominantly on three separate acts: the Army Act, 1950; the Air Force Act, 1950; and the Navy Act, 1950. The paramilitary or central police forces under the central government are governed by their own specific acts and rules. In 2007, the Armed Forces Tribunal was established to deal with “appeals from court martial verdicts and grievances related to conditions of service, including promotions, confirmations and appointments”.

According to an international NGO, there are slight variations in the justice systems governing each of the central police forces and that “to some degree the processes are less defined, providing for greater ambiguity in the administration of justice within these security forces.” Additional work may be needed to verify this assertion.

In February 2018, the Union Ministry of Home Affairs informed the Parliament that since 1990 the Jammu and Kashmir Government had sought the sanction of the central government for prosecution of members of the security forces in 50 cases. The central government refused to sanction prosecution in 47 cases, while decisions remained pending in relation to 3 cases as of April 2018.

The Indian authorities have insisted that any allegations of human rights violations by security forces are appropriately handled by the military justice system. ⁶⁴ However, according to the Special Rapporteur on Independence of Judges and Lawyers, military courts do not meet international fair trial standards and thus are not suitable to try offences committed against civilians.

In July 2017, the Armed Forces Tribunal suspended the life sentences and granted bail to five Indian Army personnel who had been convicted by an army court-martial on 12 November 2014 for the extrajudicial killing of three civilians in Macchil in Baramulla district in 2010.⁶⁶ The killings, which were perpetrated on the night of 29 April 2010, had triggered violent protests in Kashmir in the summer of 2010 and resulted in the deaths of over 100 protesters.⁶⁷ The Armed Forces Tribunal’s decision to suspend the life sentences has not been made public. Neither the state nor central authorities have challenged the Armed Forces Tribunal’s order.

In April 2013, the Supreme Court granted security forces the option to try their own personnel, and the Border Security Force exercised this option in a few instances to the benefit of its personnel. Thus, in June 2017, media reports indicated that the General Security Forces Court⁶⁹ had acquitted two members of the Border Security Force accused of the extrajudicial execution of 16-year old Zahid Farooq Sheikh on 5 February 2010. Human rights groups which have been in touch with his families stated they were unaware of the decisions of the military courts or the status of their cases. This had been one of the few instances where the state police conducted a swift investigation and filed a case against the Border Security Force personnel. Additional work may be needed to verify this case.

Administrative detention

Administrative detention appears to be used by the Jammu and Kashmir authorities to circumvent the protections of ordinary criminal procedure. Introduced in 1978 to primarily deal with timber smugglers, the Jammu and Kashmir Public Safety Act, 1978 (PSA) is the most commonly used law for the purpose of administrative detention.

PSA authorizes the authorities to impose an administrative detention order for a broad range of activities that are vaguely defined, including “acting in any manner prejudicial to the security of the State” or for “acting in any manner prejudicial to the maintenance of public order”. PSA allows for detention without charge or trial for up to two years in some cases. According to an international NGO, these “vague and broad definitions grant the authorities sweeping powers, whilst also seriously diminishing any real possibility for detainees to contest the legality of their detention.”

PSA has reportedly been widely used by the authorities in Jammu and Kashmir to stifle dissent. It has been used to target human rights defenders,⁷⁵ journalists, separatist⁷⁶ political leaders, suspected members of armed opposition groups and people involved in protests.⁷⁷

In 2012, the Jammu and Kashmir State Assembly amended PSA to prohibit the detention of people under 18 years of age. However, during the 2016 unrest, there were multiple cases of children under 18 years being detained under PSA.

PSA does not provide for a judicial review of detention, and state authorities have been countering orders by the Jammu and Kashmir High Court to release people detained under this law by issuing successive detention orders. This tactic has been used to keep people in detention for several weeks, months and, in some cases, years.⁸¹ The Supreme Court of India has described the system of administrative detention, including PSA, as a “lawless law”.

International Treaty Bodies and Special Procedures have called for the revision of PSA so that it meets India’s international human rights obligations. The Human Rights Committee has noted that it contravenes the rights enshrined in the International Covenant on Civil and Political Rights, especially the rights to liberty and to a free and fair trial.

While analyzing several cases of arbitrary detention under PSA, the Working Group on Arbitrary Detention observed that, “[the] Government has not refuted the allegation that these persons were detained by security forces under the said Act without serving them with an arrest warrant, which constitutes a violation of due process in detention”.

Excessive use of force

The killing of civilians between 2016 and 2018 raises the question of whether security forces resorted to excessive use of force to respond to protesters, some of whom were throwing rocks. International human rights groups have accused Indian security forces of using excessive force and failing to adhere to applicable national and international standards on the use of force.

In responding to demonstrations that started in July 2016, Indian security forces used excessive force that led to unlawful killings and a very high number of injuries.⁸⁷ The peak of the unrest occurred between July and December 2016. Civil society estimates are that 130 to 145 civilians were killed by security forces between mid-July 2016 and end of March 2018, and 16 to 20 civilians killed by armed groups in the same period. ⁸⁸ There have been conflicting estimates by authorities on the number of people killed during that period. In January 2017, Jammu and Kashmir Chief Minister Mehbooba Mufti told the state assembly that 78 people including 2 police officers were killed in the 2016 unrest. However, on 12 January 2018, the state government of Jammu and Kashmir informed the state assembly that 51 people had been killed during the unrest in the Kashmir region between 8 July 2016 and 27 February 2017.⁸⁹ The state government also said that 9,042 people had been injured during protests in the same period including through injuries sustained from the use of bullets, metal pellets and chemical shells.⁹⁰

Civil society groups estimate that between 90 and 105 people were killed during the unrest between July and December 2016. According to Srinagar-based Jammu Kashmir Coalition of Civil Society (JKCCS), 105 people were killed in the period following protests that spread across the Kashmir Valley after 8 July 2016. It claims deaths were caused by injuries from pellet shotguns, bullets, tear gas shells, as well as by drowning, inhaling chemical shell fumes and shooting by unidentified gunmen. Amnesty International, Human Rights Watch and the International Commission of Jurists all claim there were over 90 fatalities in 2016.

Although not as intense and widespread as in 2016, protests across the Kashmir Valley continued throughout 2017 and into 2018, with several instances of violent clashes between protesters and security forces. Chief Minister Mehbooba Mufti told the state assembly on 23 January 2018 that 172 people had been killed since 2016: 105 in “law and order problems” (85 in 2016 and 20 in 2017); and 67 people in “militancy related incidents” (19 in 201 6 and 48 in 2017).

JKCCS reported that 108 people were killed in 2017, including 19 near sites of armed encounters between security forces and armed groups.⁹⁵ It claims that nine people were killed by security forces during clashes around the parliamentary elections in April 2017, and four died from pellet shotgun injuries.⁹⁶

In January 2018, the state government of Jammu and Kashmir informed the state assembly that five inquiries had been established to review the killing of civilians in 2016, but it did not specify whether the investigations were completed. The state government added that no inquiries were conducted into civilian killings that took place in 2017. JKCCS reported that until the end of 2017, none of the inquiries had been completed. No case of excessive use of force in Jammu and Kashmir has led to prosecution in civilian courts.

Under international law, States must investigate and prosecute gross violations of international human rights law and serious violations of international humanitarian law. In order to fulfil this obligation, States are obliged to undertake prompt, rigorous and impartial investigations of such violations, and, whenever possible, to take judicial and other appropriate measures, in particular the provision of effective remedies to victims, including reparations. This has been explicitly affirmed by a plethora of case law of international and regional human rights bodies, as well as by States through the adoption of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Reparation Principles). Furthermore, there is a growing body of jurisprudence by human rights courts, treaty bodies and other mechanisms confirming the right to know the truth/the right to truth and the duty to preserve memory which emphasise the central importance of a thorough and effective investigative process in order to counter impunity effectively.

According to human rights groups, a large proportion of those killed during the 2016 unrest died from bullet wounds. According to JKCCS, 71 of the people killed during the 2016 protests died of such wounds. Several cases of civilian deaths caused by live ammunition were also reported in 2017 and 2018. While Chief Minister Mehbooba Mufti testified that 20 people were killed in 2017 in “law and order incidents”, the state government has not disclosed the details of how they were killed. According to JKCCS, 28 people were killed by security forces and 22 by unknown gunmen in 2017.

The ‘Standard Operating Procedures to deal with Public Agitations with Non-Lethal Measures’ prepared by India’s Bureau for Police Research and Development recommend that security forces warn protesters before using non-lethal or lethal force. International standards on the use of force also note that law enforcement officials need to give clear warning of their intent to use firearms and give people sufficient time to react. According to Physicians for Human Rights, protesters and witnesses interviewed during the 2016 unrest said security forces did not give any warning before firing bullets or pellets at demonstrators.

There appear to be two distinct patterns concerning the casualties reported from “encounter sites” 1) what authorities have called “accidental killings” involve people not taking part in protests who are “caught or hit in crossfire” or hit by a “stray bullet”, but Kashmiri civil society organizations and journalists have questioned the narrative of these supposedly accidental killings; and 2) authorities claiming that some of those killed were helping members of armed groups, including protesters throwing stones at security forces. Security forces reportedly used pellet-firing shotguns and live ammunition in these situations. On 15 February 2017, the Chief of Staff of the Indian Army General Bipin Rawat warned protesters that security forces would use “tough action” against anyone intervening in security operations.

JKCCS reported 19 people were killed near armed encounter sites in 2017 including 4 women and 1 girl. However, no civilian investigations have been set up to look into these incidents. It is also unclear whether security forces launched any internal inquiries. In July 2017, the Supreme Court of India made filing of First Information Reports (FIR) by police officials and a magisterial inquiry mandatory in every “encounter killing”.

On 9 January 2017, the Chief Minister told the state assembly that her government had directed the police to set up district level investigation teams under the Deputy Superintendent of Police for carrying out time-bound investigations into all cases of civilian deaths in the context of protests. However, the Government has reported no progress in terms of investigation or prosecution in any of these cases.

Killings perpetrated in 2018

Civilian killings near armed encounter sites and excessive use of force against protesters continued sporadically in 2018. These killings triggered several large protests across the Kashmir Valley that included long spells of strikes and demonstrations by college students. For instance, on 27 January 2018, three civilians were reportedly killed and several injured in Shopian district when Indian Army personnel fired at protesters, some of whom were reportedly throwing stones at security forces. An army spokesperson told the media on the same day that the soldiers fired at the protesters in self-defence. The Corps Commander of Srinagar-based 15 Corps Lieutenant General A.K. Bhatt stated his soldiers would only resort to firing in case of high provocation or danger to their lives.

The killings sparked large protests across southern Kashmir for several days. Chief Minister Mehbooba Mufti announced a magistrate-level inquiry, and the state police filed a FIR against army personnel of 10 Garhwal Rifles under sections 302 (murder) and 307 (attempt to murder) of the Ranbir Penal Code. One of the Indian Army officers involved in the incident petitioned the Supreme Court of India to cancel the FIR. Consequently, on 5 March 2018, the court ordered Jammu and Kashmir authorities to halt all investigations until its final verdict.

In another incident, on 4 March 2018, four civilians and two men suspected of belonging to an armed group were killed in a gun fight with the Indian Army in Pahnoo area of Shopian district.The Indian Army claimed the civilians killed in the incident were “linked with militancy”. This claim was disputed by several state assembly legislators and political parties who called for an independent investigation into the killings. Chief Minister Mehbooba  Mufti  said  she  was  “deeply  distressed”  by  the  civilian  deaths  in Shopian. The police are reportedly investigating the incident, but there is no information on the status of the probe.

On 1 April 2018, 4 civilians, 13 armed group members and 3 security forces personnel were killed in 3 separate gun battles between security forces and armed groups in Shopian and Anantnag districts. The civilian killings were followed by days of protests across the Kashmir Valley, including by students.

Use of pellet-firing shotgun

One of most dangerous weapons used against protesters during the unrest in 2016 was the pellet-firing shotgun, which is a 12-gauge pump-action shotgun that fires metal pellets. It was deployed by the Central Reserve Police Force and the Jammu and Kashmir Police against protesters, some of whom were throwing stones. According to human rights organizations, the shotgun cartridges contain 500 to 600 pellets that resemble ball bearings. The ammunition is made of lead alloy that is fired at a high velocity thereby dispersing the metal pellets over a large area.Experts claim that there is no way of adequately controlling the trajectory of these shotguns beyond a limited range, which makes them inherently inaccurate and indiscriminate. The pellet-firing shotgun was first used in Kashmir during mass protests in 2010; it is not known to have been used against protesters anywhere else in India.

The Central Reserve Police Force claims the pellet-firing shotgun is the “least lethal” option they have at their disposal for crowd-control.However, pellet shotgun use by law enforcement agencies resulted in multiple deaths and serious injuries of hundreds civilians between 2016 and 2018. According to official figures presented in the Parliament, 17 people were killed by pellet injuries between July 2016 and August 2017. According to information received by the Jammu and Kashmir State Human Rights Commission (SHRC) from 10 districts of the Kashmir Valley, 1,726 people were injured by metal pellets in 2016. In January 2018, Chief Minister Mehbooba Mufti stated before the state assembly that 6,221 people had been injured by pellet guns in Kashmir between 8 July 2016 and 27 February 2017; among the victims, 728 had eye injuries. The Chief Minister reported that 54 people suffered some form of visual impairment due to pellet injuries. Civil society organizations claim that the number of people partially or completely blinded due to pellet injuries is higher. A right to information query found that 16 personnel from the Jammu and Kashmir Armed Police were also injured by pellet-firing shotguns.

A few months after violent confrontations between protesters and security forces in Kashmir left over 100 people dead in the summer of 2010, the Union Ministry of Home Affairs commissioned a taskforce to produce standard operating procedures for the use of non-lethal measures in “public agitations”. The 12-gauge pellet-firing shotgun used in Kashmir was not listed in the Standard Operating Procedures issued by the Bureau of Police Research and Development in March 2011. A right to information application seeking to know the “efficacy and impact” of the pellet shotgun was rejected by the authorities on the grounds that this was sensitive information related to national security. In February 2018, the Union Ministry of Home Affairs told the Parliament that a state-run laboratory had conducted tests on the impact of metal pellets but has not published the results.

In December 2016, the Jammu and Kashmir High Court Bar Association petitioned the Supreme Court of India seeking an immediate ban on the use of the pellet-firing shotgun. Though a final verdict is awaited, the court observed during the hearing that it needed assurances from the authorities that pellet shotguns would not be used indiscriminately. The central government told the Supreme Court it continued to use pellet shotguns because all other alternatives such as tear gas, chili-based chemical shells and rubber bullets had failed to stop the protesters.  In March 2017, the Union Ministry of Home Affairs told the Parliament that an expert committee set up to explore alternatives to pellet shotguns had recommended the use of a chili-based munition PAVA (Pelargonic Acid Vanillyl Amide) shells, STUN-LAC (stun grenades and shells) and tear gas shells “to disperse rioters”.However, the Union Ministry of Home Affairs added that if these alternatives proved ineffective, security forces would resort to pellet shotguns.

According to human rights groups and medical professionals in Kashmir, apart from physical injuries, many victims of pellet shotguns face serious mental health issues, including symptoms of psychological trauma.NGOs have called for reparations in compliance with international standards for those injured.However, the state government of Jammu and Kashmir has so far announced small financial assistance packages for 54 people and promised government employment to 12 others.

Despite the public outrage over the deaths and mass blindings caused by the use of pellet-firing shotguns, the state government has only set up one special investigation into a death caused by pellet-gun injuries. On 9 January 2017, it ordered the Deputy General of Police-Central Kashmir Range to set up a Special Investigation Team to probe the killing of 21-year-old Riyaz Ahmad Shah, on 2 August 2016. A pellet cartridge shot at close range had penetrated and burst in his abdomen, leaving over 300 metal pellets in his body. The police had previously filed a FIR against “security forces” in relation to his death. However, there have been no investigations into determining whether the other deaths and serious injuries caused by pellet-firing shotguns are cases of excessive use of force by police and central paramilitary forces.

Indian security forces continue to use pellet shotguns in Kashmir today. On 1 April 2018, around 40 people were reportedly injured, including 35 hit in the eyes, by pellet shotguns used against people protesting against the killing of civilians in Shopian and Anantnag districts.

Arbitrary arrests and detention, including of children

As a State party to the International Covenant on Civil and Political Rights, India is obligated to ensure the principles of legality and the right to liberty and security. The right to liberty and security includes the right not to be subjected to arbitrary arrest or detention, the right to know the reasons for one’s detention and charges, if any, the right to be brought before a judge within a reasonable time following arrest or detention, and the right to appeal to a court of law to review the arrest or detention.

Commenting on the system of administrative detention in India, the United Nations Human Rights Committee recommended that anyone arrested or detained be informed of the reasons for their arrest and charges against them. It also recommended that “continued detention should be determined by an independent and impartial tribunal constituted and operating in accordance with article 14, paragraph 1, of the Covenant”.The Committee was of the view that “a central register of detainees under preventive detention laws be maintained and that the State party accept the admission of the International Committee of the Red Cross to all types of detention facilities, particularly in areas of conflict”.

A right to information application found that over 1,000 people were detained under the Jammu and Kashmir Public Safety Act between March 2016 and August 2017. It also found that the state Government had not created any rules or standard operating procedures under PSA to guide the authorities while issuing a detention order. Issuing authorities – usually district magistrates or divisional commissioners – thus solely rely on dossiers prepared by the Jammu and Kashmir Police and reportedly do not verify facts. Additional work may be needed to verify this allegation.

For example, on 15 September 2016, prominent civil society advocate Khurram Parvez was arrested and detained under PSA, a day after being prevented from travelling to Geneva to attend the thirty-third session of the United Nations Human Rights Council. Several United Nations human rights experts publicly called for his immediate release, noting that the travel ban and his detention were “a deliberate attempt to obstruct his legitimate human rights activism”. He was released on 30 November 2016 after spending days in detention.

Human rights groups had warned Jammu and Kashmir authorities that minors were being arrested under PSA in 2016 and 2017. Opposition parties raised the issue in the Parliament and state assembly, but authorities have regularly denied that minors were being picked up under PSA.

In 2014, the Committee on the Rights of the Child called upon India to review its security-related laws with a view to prohibiting criminal and administrative proceedings against persons under the age of 18. It recommended that all persons under the age of 18 be handled by the juvenile justice system in all circumstances, and that age verification procedures be consistently and effectively applied.

Torture

As a State party to the International Covenant on Civil and Political Rights, which prohibits torture under any circumstances (Article 7), India is obliged to ensure that no person is “subjected to torture or to cruel, inhuman or degrading treatment or punishment”. There have long been persistent claims of torture by security forces in Kashmir.

On 18 August 2016, a 30-year-old college lecturer, Shabir Ahmad Mangoo, died after being severely beaten in the custody of the Indian Army on 18 August 2016. He was among men picked up from their houses in Pampore of Pulwama district by the Indian Army and Special Operations Group of the Jammu and Kashmir Police. Due to public outcry, the Indian Army ordered an internal probe into his killing, and the police filed a FIR against soldiers of the 50 Rashtriya Rifles battalion of the Indian Army. There was no information or update on the status of the army’s investigation as of April 2018. In December 2016, responding to a petition in this case, the Jammu and Kashmir High Court asked the central and state governments why there should not be a “time bound” independent probe into the killing of Shabir Ahmad Mangoo. Responding to the court and to public pressure, the state government set up a special investigation team in January 2017, under the Deputy Inspector General of Police (South Kashmir Range). The state government has not issued any update on this investigation.

In a video that emerged on 14 April 2017, a Kashmiri man, Farooq Ahmad Dar, was seen strapped to the front of a moving Indian Army jeep, while a soldier can be heard shouting, “This will be the fate of those who throw stones.” Farooq Ahmad Dar later told journalists and human rights organizations that on 9 April while he was going to a neighbouring village, army personnel seized him and tied him to the front of an army jeep which drove around Budgam district for over 28 kilometres. The Indian Army claimed Farooq Ahmad Dar was leading stone-throwing protesters, and that they tied him to the jeep to use him to protect election officials.¹⁸⁹ Indian Army chief General Bipin Rawat and Attorney General of India Mukul Rohatgi defended the Army’s use of Farooq Ahmad Dar as a “human shield”. In May 2017, the Indian Army presented an award to the soldier accused of ordering the actions against Farooq Ahmad Dar.

In a decision issued in July 2017, SHRC found Farooq Ahmad Dar had been subjected to torture, humiliation and wrongful confinement, and directed the Jammu and Kashmir government to pay him Rs 1 million (approximately USD 15,600) as compensation. The state government refused to pay the compensation arguing that it was not responsible for this human rights violation and that it had met its responsibility by initiating an investigation into the case. SHRC did not send a notice to the Indian Army as it does not have jurisdiction over forces controlled by the central government operating in Kashmir. Farooq Ahmad Dar has not yet received any compensation.

Another case  of  torture  involving  the  Indian  Army  is  that  of  manual  labourer Nasrullah Khan who was allegedly detained and tortured at the Indian Army’s 27 Rashtriya Rifles camp on 31 August 2017.¹⁹⁵ He was later found near the army camp reportedly with physical injuries which were severe. The state police filed a FIR into the torture of Nasrullah, but there is no publicly available information on any progress in this investigation.

Enforced disappearances

While JKCCS and the Association of Parents of Disappeared Persons claim over 8,000 people have been disappeared since 1989, the state and central governments say around 4,000 are missing, most of whom they allege crossed over to Pakistan-Administered Kashmir. In January 2017, Chief Minister Mehbooba Mufti told the Jammu and Kashmir Assembly that 4,008 “missing persons” from the state were in Pakistan-Administered Kashmir for arms training. According to JKCCS, there were at least seven cases of enforced or involuntary disappearances reported in 2017. Of these, the bodies or remains of five people were found a few months later. Three cases were blamed on security forces, while perpetrators have not been identified in the other four.

Impunity for enforced or involuntary disappearances in Kashmir continues as there has been little movement towards credibly investigating complaints, including into alleged sites of mass graves in the Kashmir Valley and Jammu region.

India signed the Convention for the Protection of all Persons from Enforced Disappearance on 6 February 2007 but has yet to ratify it. While the Government of India has reiterated to the Human Rights Council several times that it is committed to ratifying the Convention, the National Human Rights Commission of India observed in 2012 that there was no evidence to show that the government was seriously planning to do so. The Commission added, “enforced disappearance was not codified as a criminal offence in domestic law, nor were extant provisions of law used to deter the practice.”  The Government of India has stated it is cooperating with the Working Group on Enforced or Involuntary Disappearances, but it has never allowed a visit by this mechanism despite having issued a standing invitation to all thematic special procedures in 2011. In 2014, the Committee on the Elimination of Discrimination against Women expressed deep concern about the reported high level of violence, including enforced disappearance, against women in conflict-affected regions, including Kashmir. ²⁰⁶On 24 October 2017, SHRC directed the Government of Jammu and Kashmir to complete investigations into 2,080 unmarked graves in Poonch and Rajouri districts of Jammu division within 6 months. It is believed that these graves come from earlier waves of security operations in Kashmir. SHRC Chairperson Bilal Nazki said that as the state government had previously admitted the existence of mass graves in these districts, the Commission was reiterating its call for the authorities to complete their investigations. In 2011, the SHRC had conducted its own investigation into mass graves in northern Kashmir and identified 574 bodies out of 2,156 bodies.

Cases of enforced disappearances continued to be reported in 2017, such as the case of Manzoor Ahmad Khan, a shopkeeper from Kupwara district. In September 2017, villagers in the Lolab area of Kupwara district demanded that the Indian Army reveal his whereabouts, alleging he had been detained at the 27 Rashtriya Rifles camp in Trimukh area on 31 August 2017. It is believed that Manzoor Ahmad Khan was detained along with Nasrullah Khan, who was later found near the army camp with physical injuries. Manzoor Ahmad Khan’s family filed a FIR at the Lal Pora police station and petitioned the Jammu and Kashmir High Court, seeking a judicial intervention in the case. After massive protests, the Indian Army established an inquiry into the disappearance. However, there has not been any publicly available information on the status of this inquiry or its findings. The Jammu and Kashmir Police reportedly set up an investigation into the disappearance in December 2017, but there has been no publicly available information on the progress of this probe.

Violations of the right to health

As a State party to the International Covenant on Economic, Social and Cultural Rights, India is obligated to respect, protect and fulfill the right to health. Moreover, the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials requires that security forces ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment.

During the 2016 unrest, there were numerous reports of attacks on, and obstruction of, basic medical services that had a severe impact on the injured and general civilian population in Kashmir. According to human rights groups, the fear of being arrested inside the hospital led to a large number of injured patients fleeing before receiving medical attention. Human rights groups claimed that days-long curfews and communications blockades also had a major impact on people and their access to medical care in Kashmir. The Doctors Association Kashmir cautioned in 2016 that the communication blockade escalated conditions of anxiety and depression among patients.

According to JKCCS, around 200 ambulances were damaged by security forces and, in some cases, by protesters during the 2016 unrest. There are also independent accounts alleging ambulances and ambulance drivers were attacked by security forces. The Doctors Association Kashmir documented several instances of doctors, paramedics and ambulance drivers being obstructed and physically assaulted by security forces as well as by protesters. In one incident, security forces allegedly targeted an ambulance driver with a pellet-firing shotgun that injured him seriously while he was ferrying patients to the hospital. Due to several cases of medical services personnel being targeted during the 2016 unrest, the Doctors Association Kashmir appealed to the security forces and protesters to ensure free and safe passage to ambulance drivers and medical staff so that everyone could get access to health services.

Doctors in Srinagar accused the security forces of firing tear gas near hospitals and, in some cases, inside the hospital, which affected their ability to work and further affected the health of the patients. Curfews in the Kashmir Valley also reportedly prevented medical staff of hospitals from reporting to work in prominent Srinagar hospitals as they were stopped by security forces.

None of the attacks or obstructions on medical staff which occurred in 2016 have been investigated despite medical groups and local civil society organizations having documented such instances.

Restrictions on the right to freedom of expression

The Kashmir region experienced frequent communications blockades during the 2016 unrest as the state government suspended mobile and internet services on multiple occasions. The authorities justified the complete bar on mobile internet facilities that affected nearly 7 million people in Kashmir for between 5 to 7 months “as [a] preventive measure to avoid any law and order problems and passing of rumours by miscreants/ anti-national elements.”

As a State party to the International Covenant on Civil and Political Rights, India is obliged to protect the right to freedom of expression and opinion. While Article 19(3) of the Covenant allows states to impose restrictions on certain grounds including protection of “public order”, the Human Rights Committee has warned that any such curbs must be necessary and proportionate and should not jeopardize the right itself. Similarly, the Committee has also noted that restrictions on the freedom of journalists or those wishing to travel to human rights-related meetings and restricting the entry of foreign journalists is not compatible with Article 19(3).

Restrictions on mobile telephony in the Kashmir Valley appear to have remained in place for significant periods in 2016. According to media reports, post-paid mobile phone connections were restored at the end of July 2016, while the more commonly used prepaid mobile phone connections were fully restored only in mid-October 2016. The state authorities also reportedly attempted a complete communications blackout in the Kashmir Valley in mid-August 2016, cutting broadband internet services for between three to six days, along with virtually all the mobile phone networks in Kashmir. Two private telecom industry bodies wrote to the Government of India on 15 July 2016 urging it to lift restrictions on voice services in Kashmir.

Communications blackouts seriously impact the right of people to seek, receive, and impart information, which is integral to the right to freedom of expression. The Doctors Association Kashmir said the indefinite communications blackouts had a profound impact on the right to health and right to life as civilians struggled to access medical services without phone or internet connections. The Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and other international human rights experts have reiterated that the shutting down of entire communications networks, as in Kashmir during the 2016 protests, cannot be justified under international human rights laws.

In 2016, the authorities in Jammu and Kashmir imposed restrictions on freedom of expression, targeting media and journalists. During the night of 15 July 2016, Jammu and Kashmir Police raided the offices of three prominent newspapers in the Kashmir Valley: Greater Kashmir, Kashmir Times and Rising Kashmir; copies of their newspapers were seized and some staff reportedly detained. The newspapers were not allowed to publish for three days. The editors were only informed of the decision orally and no written orders were provided. It is unclear if any judicial process was undertaken to look into this publication embargo, as the chief minister subsequently claimed that the situation was created by a gap in communication and was not intended as a ban.

The nearly three month ban on the Kashmir Reader newspaper was ostensibly for its critical coverage of the state government’s response to the 2016 protests. The district magistrate of Srinagar, who issued the order, provided vague reasons attempting to justify it such as the newspaper “contains such material and content which tends to incite acts of violence and disturb public peace and tranquility”. Several international groups working on media freedoms, including PEN International and the Committee to Protect Journalists, criticized the ban on the Kashmir Reader.

Restrictions on access to the internet continued in 2017. According to an internet freedoms group, internet services in Jammu and Kashmir were suspended 32 times in 2017, compared to 10 times in 2016.²⁴⁶ On 17 April 2017, the state government imposed a ban on social media networks and mobile services following widespread protests. In a 2017 press statement, the Special Rapporteurs on promotion and protection of the right to freedom of opinion and expression and on the situation of human rights defenders called for an immediate revocation of this ban while observing, “the internet and telecommunications bans have the character of collective punishment and fail to meet the standards required under international human rights law to limit freedom of expression.”

Reprisals against human rights defenders and restrictions on journalists

Human rights defenders who have tried to bring international attention to the human rights situation in Jammu and Kashmir have faced reprisals while access has been obstructed for some journalists.

As previously noted, prominent human rights defender Khurram Parvez was arrested and detained under PSA on 15 September 2016, a day after being prevented from travelling to the Human Rights Council in Geneva. Human rights lawyer Kartik Murukutla, who works with Khurram Parvez at JKCCS, was detained at the New Delhi airport immigration desk on 24 September 2016 on his return from Geneva after attending the same Council session; he was informed that there was a “look out” notice in his name which he alleges is a form of intimidation and reprisal against him for his engagement with the international human rights mechanisms.

Kashmiri photojournalist Kamran Yousuf was arrested on 5 September 2017 and charged with sedition for allegedly being involved in a “conspiracy against the nation”. In its special court in New Delhi, the National Investigative Agency accused Kamran Yusuf of being involved in “several stone-pelting incidents”, using as primary evidence that his mobile number was “persistently located at places where counter-terrorist operations were in progress”. The Agency argued that Kamran Yusuf was not a “real journalist” as he has not received “any formal training”, only covers “anti-national events” and has never covered the government’s development work. He was released on bail on 12 March 2018.

French journalist and documentary film-maker Paul Comiti was arrested on 9 December 2017 in Srinagar for allegedly violating Indian visa conditions. The FIR argued that he had violated his business visa conditions by meeting pro-independence leader Mirwaiz Umar Farooq and filming an event related to people injured by pellet-firing shotguns. Paul Comiti was released on bail on 13 December 2017.

Under Indian visa regulations, journalists travelling to India for professional activities are required to apply for a specific journalist visa. According to Reporters Sans Frontières, it is “nearly impossible” for foreign journalists to obtain Indian ‘journalist visas’ because of stringent conditions. Independent experts of the United Nations and regional organizations on freedom of expression have stated that “administrative measures should not be used to restrict the movement of journalists, including the entry of foreign journalists into a country, or media coverage of demonstrations or other events of public interest, unless this is strictly justified by the exigencies of the situation, in line with the three-part test.”

Violations of the right to education

Widespread protests, long periods of curfew and frequent strikes in 2016 and 2017 had a cumulative impact on students and their right to education. A media investigation claimed that schools and colleges were closed for nearly 60 per cent of the working days between July 2016 and May 2017. Confidential information received by OHCHR indicates an estimated 130 school days were lost in 2016 for approximately 1.4 million children. Local media reported that schools were closed for over four months after the protests started in 2016.

Nevertheless, the Union Government of India claimed in December 2016 that all schools in Kashmir remained opened during the 2016 unrest, attendance of teachers reached per cent in some districts and that around 95 per cent of students appeared for the board examination. However, in a decision that appears to contradict the central government’s claims, the state government of Jammu and Kashmir on 17 November 2016 announced mass promotion for students studying in “lower classes including eight, ninth and 11^th classes” due to the inability to complete the curriculum.

While there do not appear to have been lengthy school and college closures in 2017, curfews, strikes, protests and killing of civilians continued to impact their functioning. In April 2017, colleges across the Kashmir Valley were closed over a week following calls for protests by the banned Kashmir University Students Union after over 50 students were injured on 15 April in clashes with security forces at a college in southern Kashmir’s Pulwama district.

A large number of arson attacks on schools were reported in Kashmir during the 2016 unrest. The central government told the Parliament that 31 schools were damaged in such attacks, with 14 consequently fully damaged and 17 partially. It added that the Jammu and Kashmir Government had provided extra security to schools considered vulnerable and that arson attempts were thwarted as a result of such measures. The state government stated that 32 schools were damaged—14 fully and 18 partially. Almost all the schools attacked were state-run schools, and most of the attacks took place between August and December 2016. Jammu and Kashmir Police Chief Shesh Paul Vaid told a Kashmiri newspaper in December 2016 that 25 people had been arrested in connection with these attacks. However, there has been no publicly available information of any convictions in these cases.

The report of the United Nations Secretary-General on Children and Armed Conflict for 2017 referred to at least 30 schools burned and partially destroyed by armed groups in Jammu and Kashmir in 2016. There were no cases of attacks on schools reported in 2017.

In addition, government reports confirmed the military use of four schools by security forces in that region for several weeks. According to one civil society report, central police forces occupied at least seven schools in the Kashmir Valley between August and November 2016. The Security Council has consistently raised concerns about military occupation of schools worldwide, stressing this may render them as targets and endangers the lives of children and teachers. India’s National Commission for the Protection of Child Rights has stated that the use of schools by security forces “violates the spirit and letter of the RCFCE Act (Right of Children to free and Compulsory Education Act 2009) because it actively disrupts access to education and makes schools vulnerable to attacks.”

Sexual violence

Although this report specifically focuses on events since July 2016, without access, OHCHR was not able to confirm specific claims alleging incidents of sexual violence within this timeframe. However, there were some recent legal developments in past emblematic cases, and impunity for sexual violence remains a key ongoing human rights concern in Kashmir. Authorities have failed to independently investigate and prosecute allegations of sexual violence by security forces personnel. There is no record of allegations of sexual violence by security forces being prosecuted in a civilian court.

In February 2018, the Support Group for Justice for Kunan Poshpora Survivors filed a petition before the State Human Rights Commission, urging the investigation into all cases of alleged sexual assault by security forces and non-State actors as well as reparations for survivors. The group provided the Commission with documentation in 143 cases of alleged sexual violence committed between 1989 and 2017.

In the 2013 report on her mission to India, the Special Rapporteur on violence against women, its causes and consequences, said, “[W]omen living in militarized regions, such as Jammu and Kashmir and the north-eastern states, live in a constant state of siege and surveillance, whether in their homes or in public. Information received through both written and oral testimonies highlighted the use of mass rape, allegedly by members of the State security forces, as well as acts of enforced disappearance, killings and acts of torture and ill-treatment, which were used to intimidate and to counteract political opposition and insurgency.” The Special Rapporteur added that she was “not informed of any measures to ensure accountability and redress for victims”.

In 2014, the Committee on the Elimination of Discrimination against Women expressed particular concern about “the Provisions of the Armed Forces (Special Powers) Act requiring prior authorization by the Government to prosecute a member of the security forces and the reportedly high risk of reprisals against women who complain about the conduct of the security forces; and, the lack of centres providing medical, psychological, legal and socioeconomic support to women and girls who are victims of sexual violence in conflict-affected areas,” including Kashmir and the North-East.

One significant case that illustrates the state’s failure to investigate and prosecute allegations of sexual violence and addressing impunity for sexual crimes in Kashmir is the Kunan-Poshpora mass rape, which took place 27 years ago and for which attempts to seek justice have been denied and blocked over the years by the authorities at different levels.

According to survivors and a local administration official, on the night of 23 February 1991, soldiers from the 4 Rajputana Rifles regiment of the Indian Army gang-raped around 23 women of Kunan and Poshpora villages of Kupwara district. The Indian Army and Government of India have denied the allegations. In 1991, Wajahat Habibullah, who at the time was the divisional commissioner of the Kashmir region (a civil service position), filed a report with the state government addressing these allegations. In March 1991, former Chief Justice of Jammu and Kashmir High Court Mufti Bahauddin Farooqi led a fact-finding team that interviewed several survivors; he reportedly noted that “he had never seen a case in which normal investigative procedures were ignored as they were in this one”. The Jammu and Kashmir Police stopped its investigations by October 1991 after it declared the case was “untraceable”. In July 2013, Wajahat Habibullah accused the state authorities of deleting parts of the report where he had recommended a higher level investigation and a special order to ensure army cooperation.

Survivors and human rights groups have campaigned for an independent investigation into this case for many years. In October 2011, SHRC directed the state government to reopen and reinvestigate the case and to prosecute a senior official whom it accused of deliberately obstructing the investigation. On 18 July 2013, a court in Kupwara district ordered the state police to reinvestigate the case within three months.²⁸⁶ When no progress was made despite these orders, five survivors filed a petition in the Jammu and Kashmir High Court in October 2013. In July 2014, the High Court reportedly said the 2011 SHRC recommendations were supported by evidence and asked the state government to consider paying monetary compensation within three months. The state government has challenged this order in the Supreme Court of India.

On the AFSPA, the Special Rapporteur on violence against women said that it “allows for the overriding of due process rights and nurtures a climate of impunity and a culture of both fear and resistance by citizens”. She urged the Indian authorities to repeal the AFSPA as “a matter of urgency” and “ensure that criminal prosecution of members of the Armed Forces is free from legal barriers”. For its part, the Committee on the Elimination of Discrimination against Women urged India to amend or repeal the AFSPA “so that sexual violence against women perpetrated by members of the armed forces or uniformed personnel is brought under the purview of ordinary criminal law and, pending such amendment or repeal, to remove the requirement for government permission to prosecute members of the armed forces or uniformed personnel accused of crimes of violence against women or other abuses of the human rights of women and to grant permission to enable prosecution in all pending cases”.

Also, an expert committee established to review India’s laws against sexual assault in the aftermath of the landmark 12 December 2012 Delhi gang-rape case stated that the AFSPA legitimized impunity for sexual violence, and recommended its amendment to bring it under the purview of ordinary criminal law, thereby doing away with the need for sanction for prosecution. The central government did not accept this recommendation. However, the government did accept the committee’s recommendation to remove the need for government’s permission to prosecute civil public servants accused of rape and some forms of sexual violence.

Abuses by armed groups29

The Government of India accuses armed groups of committing human rights abuses in Jammu and Kashmir and holds them responsible for causing “disturbances in Kashmir”. India maintains that these armed groups are based in territories controlled by Pakistan and are actively supported by Pakistan. The Government of Pakistan categorically denies any allegation of involvement in stoking unrest in Indian-Administered Kashmir or of providing support to armed groups operating there.

Since the late 1980s, a variety of armed groups has been actively operating in the Indian state of Jammu and Kashmir, and there has been documented evidence of these groups committing a wide range of human rights abuses, including kidnappings, killings of civilians and sexual violence. The landscape of armed intervention by groups operating in Indian-Administered Kashmir has shifted over the years. In the 1990s, around a dozen significant armed groups were operating in the region; currently, less than half that number remain active. The main groups today include Lashkar-e-Tayyiba, Jaish-e-Mohammed, Hizbul Mujahideen and Harakat Ul-Mujahidin; they are believed to be based in Pakistan-Administered Kashmir.³⁰⁰ Hizbul Mujahideen is also part of the United Jihad Council, which began as a coalition of 14 armed groups in 1994, claiming to be fighting Indian rule in Kashmir, that was allegedly formed by Pakistan’s defence establishment. Despite the Government of Pakistan’s assertions of denial of any support to these groups, experts believe that Pakistan’s military continues to support their operations across the Line of Control in Indian-Administered Kashmir. Three of these armed groups (Lashkar-e-Tayyiba, Jaish-e-Mohammed and Harakat Ul-Mujahidin) are listed on the Security Council “ISIL (Da’esh) & Al-Qaida Sanctions List”³⁰³ for their activities in Indian-Administered Kashmir among other places.

Between January 2016 and April 2018, civil society organizations have accused members of armed groups of numerous attacks against civilians, off-duty police personnel and army personnel on leave, including the killing of 16 to 20 civilians. Some of the alleged attacks include the killing of activists of mainstream political parties and threats against their leaders.

A major episode of attacks against civilians by armed groups operating in the Kashmir Valley is that against the minority Hindus, known as Kashmiri Pandits. These attacks and threats from armed groups forced hundreds of thousands of Kashmiri Pandits to flee Kashmir and seek shelter in Jammu and other parts of India. According to the Union Ministry of Home Affairs, around 62,000 Kashmiri Pandit families live outside Kashmir and primarily left because of “disturbed conditions prevailing in the [Kashmir] valley during 1989-90”.  Other estimates of the number of displaced Kashmiri Pandit families vary.

Similarly, there are varying figures of the number of Kashmiri Pandits who were killed by armed groups since an armed insurgency started in the late 1980s. According to the Kashmiri Pandit Sangharsh Samiti, which represents the small Pandit population that has remained in Kashmir, approximately 650 Kashmiri Pandits have been killed by armed groups. Other Pandit groups, especially those based outside Kashmir, claim much higher figures. A 2008 Jammu and Kashmir Police report stated that 209 Pandits had been killed since 1989. In December 2017, the Union Ministry of Home Affairs told the Parliament that according to state government figures, 174 Kashmiri Pandits had been killed by armed groups. It added that the state police had filed charges in 30 cases while 142 cases had been reported as “untraced”.

Survivors, Kashmiri Pandit community groups and human rights organizations have been calling for independent investigations into the violence against the Pandit community and related displacement. However, no such investigations have been instituted by either the state or central government. In 2017, a Kashmiri Pandit group, ‘Roots in Kashmir’, petitioned the Supreme Court of India, calling for investigations into the killing of Pandits and their “exodus” from the Kashmir Valley. It sought to reopen 215 cases in which over 700 members of the Kashmiri Pandit community were killed in 1989-90. The Supreme Court dismissed the petition on the grounds that “…more than 27 years have passed…. no fruitful purpose would emerge, as evidence is unlikely to be available at this late juncture.” ³¹⁵ However, in 2017, the Court directed the Central Bureau of Investigation to probe 80 cases of extrajudicial killings committed in Manipur in 1979, reportedly stating that “crimes cannot be overlooked only because of the passage of time”.  On 27 October 2017, the Supreme Court rejected a review petition filed by ‘Roots in Kashmir’ urging it to revisit its July 2017 order.

In addition to the responsibility that armed groups bear for their conduct under international law, States retain the obligation to uphold international human rights law in relation to all persons in their territory and subject to their jurisdiction. This includes the obligation to exercise due diligence and to do everything in their capacity to protect all such persons from threats to the enjoyment of their human rights posed by non-State actors, including de facto authorities and armed groups. States must seek to hold the individual perpetrators of human rights violations accountable and guarantee the rights of victims, including the right to an effective remedy and reparation.

VII.    Human rights violations in Pakistan-Administered Kashmir

Constitutional and legal structures impacting the enjoyment of human rights

Pakistan-Administered Kashmir comprises two administrative regions: Azad Jammu and Kashmir (AJK) and Gilgit-Baltistan (G-B). In 1948, UNCIP acknowledged the existence of “local authorities” (as distinct from the Government of Pakistan) on the Pakistani side of the ceasefire line in Jammu and Kashmir. These two administrative regions have remained distinct “territories” since then and have not been formally incorporated into Pakistan as they are considered to be part of the disputed state of Jammu and Kashmir.

AJK officially has a parliamentary system with a prime minister, an autonomous government, and a president as the constitutional head of state, but it has been effectively controlled by the Government of Pakistan throughout its entire history. The “Azad Jammu and Kashmir Adaptation of Laws Act, 1988” adapts and enforces several Pakistani laws in AJK.³²⁰ Although most Pakistani laws are applied in AJK, AJK sends no delegates to the National Assembly of Pakistan. This position was denounced in the 2007 report of the European Parliament Committee on Foreign Affairs Rapporteur which noted Pakistan’s failure to fulfil its obligations to introduce meaningful and representative democratic structures in AJK.

According to an international NGO, while AJK has the “trappings of a sovereign state, it is only nominally independent.” It observed “the AJK Council, headed by Pakistan’s prime minister, formally has the power to override laws passed by AJK’s elected legislature, and the AJK judiciary cannot review its decisions. However, though the Council is ostensibly all-powerful, it has very little authority in practice, because the military exercises almost complete control over the territory.” Additional work may be needed to verify this allegation.

Known as the Northern Areas until 2009, Gilgit-Baltistan (G-B) is another part of the former princely state of Jammu and Kashmir, which was on the Pakistani side of the Line of Control in 1949. Under the 1949 Karachi Agreement between the Government of Pakistan and representatives of AJK and the All Jammu and Kashmir Muslim Conference, Pakistan’s administrative control over the Northern Areas was ratified. However, the Northern Areas was neither incorporated into Pakistan, nor was it given notional autonomy like AJK. In 1999, the Supreme Court of Pakistan directed Islamabad to extend fundamental freedoms to the Northern Areas within six months. The EU Parliament Rapporteur’s report in August 2007 identified “a total absence of constitutional identity or civil rights… people are kept in poverty, illiteracy and backwardness.” When Pakistani authorities promulgated the Gilgit-Baltistan Empowerment and Self-Governance Order 2009, the Government of Pakistan reportedly argued that this would establish full internal autonomy.

According to the United Nations Country Team in its submission to Pakistan’s 2012 Universal Periodic Review, G-B and AJK “spell out additional challenges with less stable constitutional and legislative framework”. 329 The Committee on the Elimination Racial Discrimination noted with concern that the laws of Pakistan are not applicable in these provinces to the same extent as in the other parts of the territory. In fact, Pakistan’s prime minister, the federal minister for Kashmir Affairs and Gilgit-Baltistan and the federal civil service reportedly have full control over all government operations in both AJK and G-B. According to an international NGO, federal intelligence agencies are deployed across the two regions and have “considerable powers over local elected representatives and officials”. Additional work may be needed to verify this allegation.

According to the prominent national NGO, the Human Rights Commission of Pakistan (HRCP), despite the 2009 Order superior courts in G-B cannot annul laws that violate fundamental rights, unlike in Pakistan. G-B’s highest court, the Supreme Appellate Court, does not have powers to act under suo moto jurisdiction unlike the Supreme Court of Pakistan. According to HRCP, the 2009 order does not guarantee the right to a fair trial, protection against double punishment and self-incrimination, right to information and right to education. HRCP found that the constitutional article that guarantees equal protection before the law does not prohibit discrimination on the basis of sex. The 2009 Order does not guarantee dignity of a person, and residents of G-B are not guaranteed the right to preserve their language, script or culture.

Restrictions on the rights to freedoms of expression and association

The interim constitution of AJK has placed several restrictions on anyone criticizing AJK’s accession to Pakistan, in contravention to international standards on the rights to freedoms of expression and opinion, assembly and association. It explicitly states, “[N]o person or political party in Azad Jammu and Kashmir shall be permitted to propagate against or take part in activities prejudicial or detrimental to the ideology of the State’s accession to Pakistan.” The AJK electoral law expands on this, disqualifying anyone running for elected office for propagating any opinion or acting contrary to “the ideology of the State’s accession to Pakistan.” No person can be appointed to a government position unless they take an oath of office, which includes that they “will remain loyal to the country and the cause of accession of the state of Jammu & Kashmir to Pakistan.”

According to international NGOs, the ban on political parties that do not support the eventual accession of Jammu and Kashmir to Pakistan has in effect silenced all kinds of dissent, including demands for greater transparency and accountability. Moreover, they allege that those who protest Pakistan’s position face threats and travel bans, and are subject to imprisonment and torture.

Human rights groups report that publishers of books or periodicals are also required to make a declaration of loyalty to accession to Pakistan. A number of books supporting Kashmiri independence were also reportedly banned by a government order in February 2016. To publish within AJK, media owners have to obtain permission from Government of Pakistan’s Kashmir Council and the Ministry of Kashmir Affairs.

The Gilgit-Baltistan Empowerment and Self-Governance Order 2009 imposes similar restrictions on freedom of expression and association of people under its jurisdiction. Article 9(2) under the fundamental rights section states, “No person or political party in the area comprising Gilgit-Baltistan shall propagate against, or take part in activities prejudicial or detrimental to the ideology of Pakistan.”

According to international NGOs, in both AJK and G-B, pro-independence political parties and activists are not allowed to participate in the political process, while political leaders who are seen to be opposing Pakistani rule have been subject to surveillance, harassment, and even imprisonment.

The Human Rights Committee has noted that the realization of right to self-determination is “an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights”.

Media organizations reportedly need permission from Pakistan’s Ministry of Kashmir Affairs and Gilgit-Baltistan to operate in AJK and G-B. In October 2016, authorities in G-B arrested journalist Daulat Jan Mathal on anti-terrorism charges because the publications he edited supported national autonomy for G-B. He is accused of “damaging the solidarity and integrity of Pakistan” by publishing material supporting the Balawaristan National Front, a local nationalist party.  In October 2017, a Pakistani anti-terrorism court summoned journalist Shabbir Saham after G-B authorities charged him of defaming a regional legislator. The summons were in response to Shabbir Saham’s article, in Pakistan’s Daily Times newspaper, in which he claimed members of a national political party were involved with a criminal gang responsible for human trafficking and prostitution.

According to international human rights groups, media houses in AJK and G-B are known to practice self-censorship to avoid harassment by state authorities. As the media is dependent on official advertisements for revenue, authorities have allegedly discontinued advertisements when media houses were deemed too critical.

Impact of counter-terrorism on human rights

According to HRCP, there has been “rampant misuse” of Pakistan’s Anti-Terrorism Act, 1997 (ATA) by G-B authorities particularly against young activists. Civil society groups and political activists told HRCP the misuse of ATA increased after the introduction of Pakistan’s National Action Plan for countering terrorism and extremism in December 2014. HRCP found that “hundreds of individuals” had been imprisoned under the ATA in G-B, and it was being used to target locals who have been raising issues related to the “rights of the people”.

In 2017, the Human Rights Committee in its review of Pakistan expressed concern at the “very broad definition of terrorism laid down in the Anti-Terrorism Act; the supremacy of this Act over other laws, including the Juvenile Justice System Ordinance, 2000, which enables the courts to try juveniles; the power of the authorities to detain a person for up to one year; and the admissibility of confessions made in police custody as evidence in court.” The Committee also raised concerns about the extensive jurisdiction of anti-terrorism courts and the absence of procedural safeguards in their proceedings.The Committee against Torture noted that the ATA “eliminates legal safeguards against torture that are otherwise provided to persons deprived of their liberty.”

According to HRCP, several political activists, especially from the Awami Workers Party, have been arrested and charged under the ATA. G-B residents told HRCP that the ATA has been used against people who have been protesting the acquisition of their lands for the China-Pakistan Economic Corridor (CPEC) project without receiving any resettlement or compensation. Prominent political activist Baba Jan was arrested and charged with 11 other protesters under the ATA for their environmental activism. All 12 activists were sentenced to life imprisonment by an anti-terrorism court in September 2011.They were then acquitted by G-B’s Chief Court on 9 April 2015.³⁶⁷ However, on 9 June 2016, G-B’s Supreme Appellate Court upheld their life-sentences.After his acquittal in April 2015, Baba Jan had filed nomination papers for a local election that pitted him against G-B Governor Mir Ghazanfar Ali Khan’s son Salim Khan. The election was cancelled and an appeal against his acquittal was immediately accepted, thereby rendering him ineligible for contesting elections.

Section 11 EE of the ATA, commonly known as the “Scheduled Four”, is meant to be used against “proscribed organizations” not directly involved in terrorism but suspected of sectarian violence.  However, in G-B, the Scheduled Four has been used for surveillance of youth activists, human rights defenders and political workers. Activists told HRCP that police do not share specific charges against them but expect them to report their whereabouts to the local police station regularly.In 2016, media reported that around 140 people from G-B had been placed under the Scheduled Four to avoid any protests against CPEC projects.

Violations of land rights

Several communities in G-B have been raising concerns about the impact of CPEC on their lives. HRCP was informed that G-B authorities had forcibly evicted locals in Maqpoon Das area, while the Chief Secretary of G-B had allocated the same land to state authorities for the CPEC.The displaced claimed they had not received compensation or relocation from the authorities. OHCHR has received information that indigenous people in G-B have complained of not being properly informed or consulted on decisions affecting them and their livelihoods. Additional work may be needed to verify these allegations.

Restrictions on the freedom of religion or belief

Similar to the Constitution of Pakistan, AJK’s Interim Constitution also defines who may be considered to be a Muslim. This definition is used to declare members of the Ahmadiyya community as non-Muslims and is the basis of institutional discrimination against them. On 6 February 2018, the AJK Legislative Assembly passed a constitutional amendment that declared the Ahmadiyya to be non-Muslims.

Pakistan’s blasphemy provisions are also reportedly in force in AJK and G-B. They have been criticized by several international Treaty Bodies and experts as they violate a range of international human rights principles and embolden those who instigate violence against religious minorities.

VIII.   Civilians killed and injured by increasing ceasefire violations

Following border skirmishes in 2002 and 2003, India and Pakistan re-established a ceasefire along the Line of Control and Working Boundary in November 2003. However, both countries have accused each other of repeatedly violating the ceasefire over the last 15 years. According to figures provided by the two governments, ceasefire violations seem to have been increasing between 2016 and April 2018. Media and civil society reports indicate incidents of cross-border shelling and firing have been increasing precipitously since January 2018. As a result there appears to have been increasing civilian casualties and a large number of people being displaced.

According to the Government of Pakistan, India committed 415 violations between 1 January and 2 March 2018, which led to the death of 20 civilians and injuries to 71 others; It claimed India committed 1,970 violations  in 2017 killing 54 civilians and injuring 174. The Government of India claims that Pakistan committed over 560 violations between January and 19 March 2018, killing 23 civilians and injuring over 70 people.  It blamed Pakistani forces for committing over 970 ceasefire violations killing 12 civilians and injuring over 70 others in 2017. While Pakistan accused India of 382 ceasefire violations in 2016,³⁸⁷ India blamed Pakistan for 449 violations.

According to UNMOGIP, the peacekeeping mission has received 141 alleged ceasefire violations complaints from Pakistan between the start of 2018 and 27 March 2018, complaints in 2017 and 115 complaints in 2016. UNMOGIP does not collect data on civilian casualties. India has not submitted complaints to UNMOGIP since 1972.

Conclusions and recommendations

This report highlights the wide range of ongoing serious human rights violations and patterns of impunity in Indian-Administered Kashmir particularly from July 2016 to April 2018. It also raises significant human rights concerns in Pakistan-Administered Kashmir.

OHCHR recognizes the complexity of the historical background and political issues that has led to the current situation in Kashmir, which has been divided between India and Pakistan. People on both sides of the Line of Control have been detrimentally impacted and suffer from limitations or denial of a range of human rights.

There remains an urgent need to address past and ongoing human rights violations and to deliver justice for all people in Kashmir who have been suffering seven decades of conflict. Any resolution to the political situation in Kashmir should entail a commitment to ending the cycles of violence and accountability for past and current human rights violationsand abuses committed by all parties and redress for victims. Such a resolution can only be brought about by meaningful dialogue that includes the people of Kashmir.

OHCHR is alarmed by the frequent reports of increasing infringements of the ceasefire agreement since the start of 2018, including shelling and shooting, that have resulted in civilian casualties and the forced the displacement of people living along the Line of Control. The Governments of India and Pakistan should immediately cease all shelling and firing along the Line of Control and Working Boundary and do all that is reasonable to ensure that the rights of civilians living in these areas are respected and protected.

Restrictions on access to Kashmir imposed by both the Governments of India and Pakistan impede the work of civil society organizations, journalists and independent human rights experts including OHCHR. Lifting those restrictions would be an important step towards greater transparency in Kashmir.

OHCHR recommends:

To the Human Rights Council:

Consider the findings of this report, including the possible establishment of a commission of inquiry to conduct a comprehensive independent international investigation into allegations of human rights violations in Kashmir.

To the authorities in India:

• Fully respect India’s international human rights law obligations in Indian-Administered Kashmir,
• Urgently repeal the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990; and, in the meantime, immediately remove the requirement for prior central government permission to prosecute security forces personnel accused of human rights violations in civilian courts;
• Establish independent, impartial and credible investigations to probe all civilian killings which have occurred since July 2016, as well as obstruction of medical services during the 2016 unrest, arson attacks against schools and incidents of excessive use of force by security forces including serious injuries caused by the use of the pellet-firing shotguns;
• Investigate all deaths that have occurred in the context of security operations in Jammu and Kashmir following the guidelines laid down by the Supreme Court of India;
• Investigate all cases of abuses committed by armed groups in Jammu and Kashmir, including the killings of minority Kashmiri Hindus since the late 1980s;
• Provide reparations and rehabilitation to all individuals injured and the family of those killed in the context of security operations;
• Investigate and prosecute all cases of sexual violence allegedly perpetrated by state and non-state actors, and provide reparations to victims;
• Bring into compliance with international human rights standards all Indian laws and standard operating procedures relating to the use of force by law enforcement and security entities, particularly the use of firearms: immediately order the end of the use of pellet-firing shotguns in Jammu and Kashmir for the purpose of crowd control;
• Amend the Jammu and Kashmir Public Safety Act, 1978 to ensure its compliance with international human rights law;
• Release or, if appropriate, charge under applicable criminal offences all those held under administrative detention and ensure the full respect of standards of due process and fair trial guaranteed under International law;
• Treat any person below the age of 18 who is arrested in a manner consistent with the Convention on the Rights of the Child;
• Investigate all blanket bans or restrictions on access to the Internet and mobile telephone networks that were imposed in 2016, and ensure that such restrictions are not imposed in the future;
• End restrictions on the movement of journalists and arbitrary bans of the publication of newspapers in Jammu and Kashmir.
• Ensure independent, impartial and credible investigations into all unmarked graves in the state of Jammu and Kashmir as directed by the State Human Rights Commission; if necessary, seek assistance from the Government of India and /or the international community. Expand the competence of the Jammu and Kashmir State Human Rights Commission to investigate all human rights violations and abuses in the state, including those allegedly committed by central security forces;
• Ratify the International Convention for the Protection of all Persons from Enforced Disappearance, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol, and introduce enabling domestic laws as recommended during India’s UPR in 2008, 2012 and 2017;
• In line with its standing invitation to the Special Procedures, accept the invitation requests of the almost 20 mandates that have made such requests; in particular, accept the request of the Working Group on Enforced or Involuntary Disappearances and facilitate its visit to India, including to Jammu and Kashmir;
• Fully respect the right of self-determination of the people of Kashmir as protected under international law.

To the Government of Pakistan:

• Fully respect international human rights law obligations in Pakistan-Administered Kashmir;
• End the misuse of anti-terror legislation to persecute those engaging in peaceful political and civil activities and expressions of dissent, and amend the Anti-Terrorism Act to bring it in line with international human rights standards, including by incorporating human rights safeguards;
• Federal and local authorities should amend sections of the Interim Constitution of Azad Jammu Kashmir and other relevant legislation that limit the rights to freedoms of expression and opinion, and peaceful assembly and association;
• Immediately release from prison or house arrest any political activists, journalists and other civil society actors who have been convicted for peacefully expressing their opinions;
• Federal and local authorities should amend the constitutions of Azad Jammu and Kashmir and Gilgit-Baltistan to end the criminalization of the Ahmadiyya Muslims and to allow to them to freely and safely exercise their freedom of religion or belief;
• Abolish blasphemy provisions in Azad Jammu Kashmir and Gilgit-Baltistan to facilitate the enjoyment of freedom of religion and belief by all people;
• Fully respect the right of self-determination of the people of Kashmir as protected under international law.