December 26, 2012
People’s Union for Democratic Rights
Press Statement :: 26th December 2013
PUDR welcomes study on ‘Alleged Perpetrators’ on the culture of impunity in Jammu and Kashmir
Peoples Union for Democratic Rights (PUDR) welcomes the release of the study “Alleged Perpetrators” by the International Peoples’ Tribunal on Human Rights and Justice in Indian-Administered Kashmir (IPTK) and Association of Parents of Disappeared Persons (APDP) on the culture of impunity ubiquitous in the state of Jammu and Kashmir. PUDR acknowledges that this is the first ever study in India which has broken the cover of anonymity which protects the perpetrators by raising the principle of ‘individual criminal responsibility’ which is well established under International Criminal Law starting with Nuremburg Trials and several UN tribunals.
Equally it raises the principle of Command Responsibility and principle of Joint Criminal Enterprise which too forms part of International Criminal Law. The Indian State ‘authorizations’ to armed forces to carry out every kind of operation, often without adherence to laws and norms under draconian legislations such as AFSPA on the pretext of combating militant violence while simultaneously being in breach of bringing India’s domestic laws in line with International Conventions such as against Torture, Enforced Disappearance and Genocide compounds the impunity extended to India’s security forces because certain crimes are non-justiciable under Indian’s domestic law.
The study exposes the state of impunity through a study of 214 cases, using information garnered from official State documents. The documents include FIRs, statements before police and /or magistrates, police final reports, High Court petitions, objections, other documents forming a part of the court record such as compliance reports, status report, judicial enquiries, SHRC documents from complaints to objections, police submissions and final orders; the documents in custody of the State itself arraign the armed forces and the police of culpability in specific crimes. But the study also supplements these documents with testimonies of victims and other witnesses.
The study successfully refutes the claim of the Indian state that commission of crimes is an aberration than policy. It indicts the Indian State for pursuing a policy which engenders the state of impunity by listing 500 individual perpetrators, which include 235 army personnel, 123 paramilitary personnel, 111 Jammu and Kashmir Police personnel and 31 Government backed militants/associates. The list of perpetrators includes 2 Major Generals, 3 Brigadiers, 9 Colonels, 3 Lt. Colonels, 78 Majors and 25 captains of the Indian army as well as 2 Additional Director Generals of central para-military forces, 2 DIGs and 12 commandants. It also indicts a DG of Police and a serving IG of police.
The study shows how State violence is institutionalized through a culture of institutional impunity to the state forces where the police, the judiciary and other organs of the government perpetuate the state of human rights violation. This has resulted in enforced and involuntary disappearance of an estimated 8000 persons, besides more than 70,000 deaths, and disclosures of more than 6000 unknown, unmarked and mass graves as of November 2012. There is hardly any prosecution and conviction of the perpetrators. The unwillingness of the Indian State is revealed in the mass grave issue where the Kashmir Home Department on 19 October, 2012 expressed inability to carry out DNA tests because there are no more than “15-16 recognised labs in the Government as well as Private Sector”. And then turns the entire issue into a farce when they ask that the blood relative should indicate “with fair amount of certainty the exact location of the graveyard and the grave”!
The study highlight that the state structure specifically sanctions commission of crimes through provisions such as the system of cash incentives, awards and out of turn promotions for anti-militancy operations, and prioritizing for the victims the system of monetary compensation over justice. The venerable Supreme Court has also ended up shielding criminals by upholding in the Pathribal fake encounter case denial of sanction for prosecution under AFSPA thereby raising yet another wall to protect the perpetrators.
The recent Universal Periodic Review by UN agency tasked with human rights, on India, revealed that Indian Government has rejected 67 recommendations out of 168 made by the committee which had among other things asked the Indian State to repeal AFSPA, and to ratify and bring domestic laws in accordance with International Convention Against Torture, Enforced Disappearance and Genocide. This blatant refusal by the Indian state currently engaged in staking its claim to a permanent seat in the UN Security Council only lends credence to the study which concluded by indicting India State and establishing that victims of armed conflicts stand little chance to get justice from Indian state institutions because they are themselves implicated in the perpetuation of impunity.
PUDR in extending solidarity with IPTK/APDP demands:
# Adherence to domestic and international obligations and punishment to all perpetrators of human rights violations in Jammu and Kashmir.
# Withdrawal of security related legislations that are in contravention of international humanitarian laws and norms.
# Ratification of Convention Against Torture, Convention Against Genocide and the International Convention for the Protection of All Persons from Enforced Disappearance by the Government of India.
Ashish Gupta and D. Manjit