Published On: Mon, Sep 18th, 2017

Amnesty International India Report – Kashmir

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Dr. Syed Nazir Gilani
nazir-gilaniIdeas have moved the world in all disciplines of life. Fifty six years ago, an article titled “The Forgotten Prisoners” published in The Observer London on 28 May 1961 by a British lawyer Peter Benenson gave birth to Amnesty International. Today AI has over 7 million members and supporters around the world. The stated objective of the organisation is “to conduct research and generate action to prevent and end abuses of human rights, and to demand justice for those whose rights have been violated.”
On Wednesday 13 September 2017 Amnesty International India launched its report titled “Losing Sight in Kashmir: The Impact of Pellet-Firing Shotguns”, on people injured in their eyes by pellets in Kashmir since 2014 to 2017. We do not have the likes of Justice V M Tarkunde (late) of Bombay High Court, H N Wanchoo (late) living today and others like Justice Rajinder Sachar of Delhi High Court have toned down their interest in the human rights situation of Jammu and Kashmir. Under these circumstances the report of Amnesty International India and its recommendations are a welcome effort. It should be appreciated and critically evaluated.
The first criticism of the report relates to the circumstances and behaviour of administration in the habitat. The report documents 88 cases and is based on the information collected by AI through RTI (Right to Information). It is admitted that “not many (officials) responded positively”. The report is based on an information control process of the State and as such its dignity suffers from fullness.

The report suggests that “The degree of possible harm (to the protestor) should be proportionate to the use of force,” “(but) there have been serious injuries, loss of vision… (which) shows (it) is not proportionate.” It has recommended “less harmful ways” to tackle stone-throwing protestors in Kashmir. It is a generic principle to stay proportionate in the use of force. In the case of Kashmir, the principle of proportionality is a misplaced belief. A citizen of the State and an aggrieved person from Kashmir can’t subscribe to the principle of proportionality. Nor can a Kashmiri endorse the recommendation of using “less harmful ways” to tackle stone-throwing, because?

Indian security forces remain under two sets of disciplines in Jammu and Kashmir. Amnesty International does not seem to have considered these two disciplines. Awarding them a role in this manner is, wrong at core. The State of Jammu and Kashmir has granted a temporary admission to these security forces, for a defined supplemental role to assist the State forces to defend the territory, protect life, property and honour of the people. Jammu and Kashmir State had pleaded for assistance to avert a ‘grave emergency’ in the State. These terms of discipline remain the terms of the agreement between Srinagar and Delhi, in granting a temporary admission to these security forces. Another discipline was introduced by United Nations in regard to the number, behaviour and location of these forces.

In principle these security forces have no role to engage themselves with the citizens of the State and cause this harm in their life. The military leadership should sit back and take a cool, dispassionate view of the situation. The politician in Srinagar and the politician in Delhi has prevailed and they are using these forces, against the people of Kashmir. It is not only a serious wrong, it is indiscipline, violation of human rights and at one point in future many such personnel in the security force may face war crimes.

Coming on the streets of Kashmir is not a new phenomenon. It has always carried a price tag. Sheikh Abdullah was charged and tried for sedition for his political views. Pandit Nehru, on his way to support the people of Kashmir was arrested at Kohala. There are no two opinions about the fact that the temporary admission of Indian forces in Kashmir and the question of temporary accession (limited) is pending approval or a disapproval under a UN supervised vote of the people. Therefore, expression of a desire to participate in a UN supervised vote on these two issues, should not be responded with the use of a pellet gun.

Jurists like V M Tarkunde (late) and others are very clear on the point that Indian Government cannot and should not use a bullet to deny the expression of a free will of the people. United Nations is very clear on the point of a democratic choice to be ascertained through a UN supervised free vote in all parts of Jammu and Kashmir.

The recommendation of using ‘less harmful ways’ in controlling the stone pelters, is acquiescing to accept an unacceptable fact, that the unwilling people need to be humbled by the use of a degree of force. It affirms the right to use force in Kashmir. India has fought against control and colonialism. It would be unfortunate if Indian Government surfaces with a colonial instinct in Kashmir. The people of Kashmir can’t be controlled by any degree of force. Any use of force, would continue to accrue a civil and a criminal liability.

The recommendation made by AI to “Provide relevant training on crowd control measures and the use of force and firearms to security force personnel of the central and state governments, as laid out in the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and UN Code of Conduct for Law Enforcement Officials,” needs to be improved as a recommendation..
These forces need to be updated on the terms agreed for their admission into Kashmir and informed on the second discipline that UN Security Council Resolution of 21 April 1948 has placed on them. Security forces need to be educated on their sub-ordinate and supplemental role, to aid the State forces. Since we have passed the point of ‘grave emergency’, the role of these forces might be regarded as redundant in law, unless Government of Jammu and Kashmir makes out a convincing case for their need during the conduct of a UN supervised plebiscite. Priorities have changed since Maharaja of Kashmir made a case of ‘grave emergency’ and pleaded for a military assistance.
These forces need to be informed that initially India had requested for a total strength of 21,000 military personnel and Pakistan would not accept a number over 18,000. There are issues that need to be reconciled before allowing these security forces on the streets of Valley of Kashmir. The UN brokered cease fire line is being supervised by UNMOGIP since 1949. There is no external threat to the State and the present strength of security forces has no merit.

Amnesty International India, needs to be appreciated for its recommendation to “Provide full reparation in line with international standards to those who have been injured by pellet-firing shotguns, and to the families of those killed. This must include adequate compensation and rehabilitation, including any medical and psychological care that may be needed.” It is an important recommendation. Hurriyat, Civil Society and other disciplines of life in Kashmir need to liaise with AI and look within and hunt beyond India for those companies, who supply this lethal weapon used in Kashmir. The element of reparation and compensation could be prosecuted against these companies and these countries. A list of such other officers involved in this crime could be made available to UN and other important capitals of the world. It would impact the future travel of these officers.

Pellet gun is a cruel weapon and the Kashmiri leadership by no stretch of imagination would have given a good character certificate to these Indian security forces at the UN, to practice cruelty on their people after sixty-nine years. National Conference carries a higher burden of responsibility in regard to the good behaviour certificate given to Indian security forces at the UN in February 1948 and their failure to keep up to this good reference.

Amnesty International India has misdirected itself on the question of finding whether arbitrary or excessive force was used by the security forces. Jammu and Kashmir does not fall under generic terms of the two definitions. The State reserves the right to keep these forces or ask them to vacate the territory. Indian government cannot force them on an unwilling people or a government which finds them out of control and at war with its people.
Government of India does not control the entire territory of the State. There are four other Kashmiris living in Azad Kashmir, Gilgit and Baltistan, 2.5 million refugees living in various provinces of Pakistan and a well spread Kashmiri Diaspora. The other two elements that remain in the loop are the Government of Pakistan and the United Nations. Use of military force of any manner and any other attempt to change the demography of the State under Indian administration is likely to fail.
If India wants to keep a constituency in the Valley, it shall have to vacate its forces from the Valley and address the question of wrong done to man, woman and child in Kashmir. India has to keep her fingers cross and endure the pain of going through a UN supervised vote. It has to toss the coin and see whether her wrongs have any future in the State or the anger at all levels seals its fate for ever. Even then, Indians shall have to learn to live and co-exist with Jammu and Kashmir.
The author is the President of JKCHR – NGO in Special Consultative Status with the United Nations. He is on UN Register as an Expert in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. Author could be reached at dr-nazirgilani@jkchr.com

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