A mission of the International Commission of Jurists (IC J) visited India and Pakistan, and both the Indian and Pakistani controlled sections of the State of Jammu and Kashmir, from 16 to 30 August 1993. The members of the ICJ mission were: Sir William Goodhart QC (United Kingdom), Dr. Dalmo Dallari (Brazil), Ms Florence Butegwa (Uganda), and Professor Vitit Muntarbhorn (Thailand), all distinguished jurists, chosen for their integrity, learning, and independence of mind. 

The impetus for the appointment of the mission came from the concern felt by the IC J over the reports of human rights abuses committed in the course of the current disturbances in Jammu and Kashmir. These disturbances, which are centred in the Valley of Kashmir, began in 1988. By the end of 1989 they had become, in effect, a low-level civil war which has continued with no great change of intensity up to the present day, and which has cost several thousand lives.

The ICJ regrets that the Indian Government has chosen to interpret the serious criticisms of its actions in the Report as evidence of bias on the part of the members of the Mission.

The ICJ also regrets the assertion by the Government of Pakistan that the final text of the Report lacks objectivity. It is not the case that, as alleged, the original draft has been drastically changed. While it is true that the final text is somewhat more critical of Pakistan - particularly in relation to constitutional rights m Azad Kashmir and the Northern Areas - it is no less critical of India.

Recent years have been a tragedy for Kashmir. One aspect of the tragedy manifested itself to us on a fine summer evening in Kashmir, looking out from an empty Pari Mahal over an empty Dal Lake, once swarming with activity. Another aspect manifested itself in the refugee camps of Jammu and Azad Kashmir, where victims of the tragedy demonise each other and maimed men and assaulted women are presented to tell their well-rehearsed stories. It is hoped that this report will make some contribution to the easing and eventual ending of that tragedy.

Select excerpts:

The cumulation of these statutes and related practices imply that the authorities can act very subjectively and w ith impunity in arresting and detaining persons, thereby derogating from international human rights standards and the Indian Constitution. This has been aggravated by the fact that when there have been petitions for habeas corpus, the court proceedings have been slow and ineffective. Thousands have been held Incommunicado since the recent spate of troubles started in 1990; according to one estimate, some 5,000 persons were detained in the Kashmir valley in 1993.

The judicial system in Jammu and Kashmir is almost dysfunctional. Courts face long delays and have failed to address many bail applications; they are fearful of governmental pressure, on the one hand, and of that of militant groups, on the other. According to the Kashmir Bar Association, from 1989 to 1993 more than 5,000 habeas corpus petitions were filed, but fewer than 500 cases were decided by the High Court of Jammu and Kashmir. As the time limit for detention is generally two years, the period of detention lapses after this time. Yet, in practice, in many cases the person continues to be detained.

At the time of the visit of the IC J mission, not a single trial of anyone charged with an offence arising out of the disturbances had yet taken place, in spite of the fact that some (for example, those charged with the murder of the Air Force officers in January 1990) had been under arrest for well over three years.

On another front, the authorities may seek to circumvent the local judiciary by moving the accused out of the region to another State in India.

The executive and parliamentary powers in Jammu and Kashmir are, in effect, exercised by India through the appointed Governor. As there is currently no operational electoral system and no Parliament, it is the executive which governs Jam m u and Kashmir, and the creeping jurisdiction of the Indian Union is ever-present. For instance, in 1993 the Indian Parliament passed the budget bill for Jammu and Kashmir and extended presidential rule over the region by means of Article 356 of the Constitution of India, even though this eroded the special status of Jammu and Kashmir stipulated in Article 370 of that Constitution.

Law enforcement is shared between the army and para-military personnel, primarily the BSF and the CRPF. The local police are relegated to menial roles rather than law enforcement in security-related situations.

In recent years, the complaints concerning human rights violations have targeted the army and para-military personnel, especially the BSF and CRPF. The Army has become increasingly conscious of the need to improve its image, and has placed greater emphasis on human rights education with various «do’s and don’ts», e.g. there is a prohibition against torture and brutalisation of operations; there is a call to use minimum force, respect the Rule of Law and fully respect the rights and duties of all citizens, and only employ police women to search women. The ICJ mission was also shown extracts of instructions on human rights given to army personnel as part of their training. Recent complaints have been against the para-military rather than the military, particularly in those situations where they cordon off areas and subject civilians and civilian property to search and resultant abuses. A great failing concerning those who perpetrate crimes is that the culprits enjoy a degree of immunity under the national laws mentioned earlier, which diverge markedly from international standards.

Extract from Response of the Government of India:

The ICJ Mission’s report ostensibly on «Human Rights in Kashmir» transgresses by tangents into blatantly political areas and partisan conclusions. It starts with a pre-determined conclusion, basically on the issue of so-called «self-determination» in Jammu & Kashmir (J&K), and cuts and tailors every aspect of history and the situation to demonstrate it as a proposition of law. It ends up making sweeping generalisations and the most arbitrary determinations on a most difficult, controversial and complex subject of international law, regardless of the possible dangerous and destructive consequences on given situations. The report comes through as a document of patent and pronounced bias, lacking in objectivity, historical perspective and accuracy, and one where the pre-conceived conclusion is sought to be established through contrived and artificial reasoning and sometimes by apparently simplistic naivety.