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"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." The 49-page report titled Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan , the first ever on Kashmir by the Office of the United Nations High Commissioner for Human Rights, is indeed a milestone.
Protesting against the report, the Ministry of External Affairs, India said: "It is fallacious, tendentious and motivated. We question the intent in bringing out such a report." It further went on to say that "individual prejudices are being allowed to undermine the credibility of a UN institution".
Mainly focusing on the human rights violation and the state excess in India Administered Kashmir after the killing of the Hizbul Mujahidin leader Burhan Wani in 2016, the report puts a number on civilians killed in the conflict in the past two years. "Civil society estimates 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." Although the numbers declared by the Jammu and Kashmir government in 2017 initially was 78 people, including two police officers in the 2016 unrest, it revised the figure down to 51 people killed and 9,042 injured between July 8, 2016 and February 27, 2017. The 49-page 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".
Protesting against the report, New Delhi has said: "The report violates India's sovereignty and territorial integrity. The entire state of Jammu and Kashmir is an integral part of India. Pakistan is in illegal and forcible occupation of a part of the Indian state through aggression. We have repeatedly called upon Pakistan to vacate the occupied territories. The incorrect description of Indian territory in the report is mischievous, misleading and unacceptable. There are no entities such as 'Azad Jammu and Kashmir' and 'Gilgit-Baltistan'."
The main Opposition party, Indian National Congress, has united with the ruling party – the Bharatiya Janata Party (BJP) in their opposition to the report. "We reject UN Human Rights Report as a prejudiced attempt by vested interests to hurt India's sovereignty and national interests," said Congress chief spokesperson Randeep Surjewala.
Similarly, Asaduddin Owaisi, the leader of the All India Majlis-e-Ittehadul Muslimeen (AIMIM) has rejected the report saying this amounted to the UN meddling in India's internal matters, but also said that the UN report was a sign of the "diplomatic failure" of the Narendra Modi government in the Centre.
Pakistan has welcomed the report. It states: "The report by Office of the High Commissioner for Human Rights (OHCHR) clearly stipulates that its main focus is on the Indian Occupied Jammu & Kashmir. The contents, scale and the narrative of killings, maiming, abuse and impunity articulated in the report is a reaffirmation of what Pakistan has long highlighted for the international community."
The report in its executive summary states that unlike previously, "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."
The report admits of not having access to either side of Line of Control, despite High Commissioner for Human Rights meeting with the representatives of the governments of Pakistan and India and on numerous occasions requesting them to give unconditional access to Kashmir. The OHCHR had to resort to remote monitoring of the human rights situation. "India rejected this request, while Pakistan offered access should the Office obtain access to Indian-Administered Kashmir", it says.
The report comments that the key challenges in the state of Jammu and Kashmir is "impunity for human rights violations and lack of access to justice." It states how laws like Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (AFSPA) and the Jammu and Kashmir Public Safety Act, 1978 (PSA) "contravene several international standards on the use of force and related principles of proportionality and necessity". These laws create "structures that obstruct the normal course of law, impede accountability and jeopardise the right to remedy for victims of human rights violations".
On AFSPA, the report notes how Section 7 of AFSPA protects the prosecution of security forces and provides "virtual immunity" for any human rights violation. It marks how despite several recommendations from various national and international committees to "abolish" AFSPA, it has gone more less unheeded by the lawmakers.
The report underlines how "PSA allows for detention without charge or trial for up to two years in some cases" and is used by the authorities in Jammu and Kashmir to "stifle dissent" and target "human rights defenders, journalists, separatist political leaders, suspected members of armed opposition groups and people involved in protests". It has also been used for detaining children under 18 years. Further, it states, "A right to information (RTI) application found that over 1,000 people were detained under the Jammu and Kashmir Public Safety Act between March 2016 and August 2017".
Concentrating on the impunity enjoyed by the personnel, the report gives various instances of the functioning of the military courts and tribunals which has delivered decisions in favour of army personnel denying justice to the civilians. The report states: "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". The report marks 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."
The report also points towards "persistent claims of torture by security forces in Kashmir". It further goes on to say how in May 2017, the Indian Army presented an award to the soldier accused of ordering the actions against Farooq Ahmad Dar, who was tied to the jeep as a "human shield".
The report asserts that "one of most dangerous weapons used against protesters during the unrest in 2016 was the pellet-firing shotgun" and it has not been known to be used anywhere else in India.
Talking about the enforced disappearances, the report underscores the contradicting numbers given by the civil society groups against those by the government. However, it also highlights that "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."
It points how "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… The Doctors Association Kashmir cautioned in 2016 that the communication blockade escalated conditions of anxiety and depression among patients… 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."
The report highlights how right to freedom of expression was curtailed by blocking communication through suspension of mobile and internet services on multiple occasions. It also underlines how "widespread protests, long periods of curfew and frequent strikes in 2016 and 2017 had a cumulative impact on students and their right to education."
The report also mentions the Government of India accusing "armed groups of committing human rights abuses in Jammu and Kashmir and holding 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." However, Government of Pakistan categorically denies any such allegations. However, the report points out that "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." It also points to the attacks against civilians by armed groups and those against Kashmiri Pandits in 1989-90.
Vehemently opposing the report, India has said: "Terrorism is the most egregious violation of human rights. Yet the authors have conveniently ignored the pattern of cross-border terrorism emanating from Pakistan and territories under its illegal control. Cross-border terror and incitement is aimed at suppressing the will of the people of Jammu and Kashmir, disrupting its political and social fabric and undermining India's integrity."
Pointing towards violations in Pakistan Administered Kashmir comprising of two administrative regions: Azad Jammu and Kashmir (AJK) and Gilgit-Baltistan (G-B), the report states: "According to an international NGO, while AJK has the 'trappings of a sovereign state, it is only nominally independent… the military exercises almost complete control over the territory." Talking about G-B, the report states: "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… 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." The report, pointing towards restriction on the rights of freedom of expression and association, states: "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."
The OHCHR report concludes: "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."
In its recommendation to the both Indian and Pakistan governments, the report asks them to "fully respect the right of self-determination of the people of Kashmir as protected under international law."
In its specific recommendation to the Indian government, it further talks about independent, impartial and credible investigations to probe all human rights violations. It suggests that AFSPA be immediately repealed, amendment of PSA "to ensure its compliance with international human rights law" and release of, or charge under appropriate criminal offence all those arrested under PSA. It also talks about preserving the rights of freedom and expression of the people of Indian Administered Kashmir.
It recommends Pakistan government to "end the misuse of anti-terror legislation", amend laws and legislations aimed at limiting freedom of speech and expression, freedom of religion and release of political activists, journalists and other civil society actors.
Many Kashmiris have hailed this report. It is the first international report which recognises that something is amiss in the State of Jammu and Kashmir. However, the glimmer of hope was snubbed hours later when Shujaat Bhukari, the veteran journalist and editor-in-chief of Rising Kashmir, a daily newspaper, was shot dead outside his office in Press Enclave in Srinagar by "unknown" gunmen.
UN High Commissioner for Human Rights Zeid Ra'ad Al Hussein, after publishing the report, said, "The political dimensions of the dispute between India and Pakistan have long been centre-stage, but this is not a conflict frozen in time. It is a conflict that has robbed millions of their basic human rights, and continues to this day to inflict untold suffering."
