3rd May 2017
The last week of May every year is recognized internationally as the International Week of the Disappeared and is an opportunity to remember the disappeared, and acknowledge the struggle of their families. This year, tomorrow on 4th of May, India’s human rights record will be reviewed in the United Nations Human Rights Council (UN HRC) under the “Universal Periodic Review” (UPR) system by which States subject themselves to a review - by other States - of their human rights record. Since 2006, when the UPR process began, India has been reviewed twice - 2008 and 2012 and 4 May 2017 is India’s third cycle of UPR.
India’s UPR comes at a time of widespread and systematic violence in Indian-administered Jammu & Kashmir. In 2016, 383 people were killed (including 145 civilians). A majority of the killings of civilians took place between July and December 2016 when a popular uprising was met with brutal State violence. This year alone so far 98 people have been killed (including 35 civilians). The recent violence mirrors the overall situation over the last two decades in the region with an estimated 70,000+ persons killed, 8000+ enforced disappearances, widespread torture and sexual violence, arbitrary detentions, and curbs on fundamental freedoms including religion, opinion and association. Accompanying this violence has been near complete impunity for the State forces. Despite domestic law warranting investigations – and on occasion courts directing the State to act against forces accused of violations – the perpetrators continue to enjoy impunity of violence are protected.
India’s UPR provides yet another opportunity for the international community to stand by principles of truth, justice and rule of law. As directly relevant to Indian-administered Kashmir, in the past two UPR sessions recommendations have been made to: ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Convention for the Protection of All Persons from Enforced Disappearance (India has merely “Noted” these recommendations), become party to the Rome Statute of the International Criminal Court (“Noted”), review the law granting special powers to the armed forces (in the context of Jammu and Kashmir: Armed Forces Special Powers Act, 1990) (“Noted”), Cooperate with the Special Procedures (while India has “Accepted” this recommendation, neither the Special Procedures on Torture nor Enforced Disappearance have been granted a visit), and recommendations on justice for violations by security forces (“Noted”).
As evidenced by India’s conduct and past statements and reports, including its “National Report” for this years UPR, India refuses to allow for any discussion on the reality of the situation in Indian-administered Kashmir. A part of this refusal - often masked by rhetoric and generalizations – is the absence of any acknowledgement that that enforced disappearances are a widespread and serious phenomenon in Indian-administered Kashmir. In the past, India had similarly treated enforced disappearances in the State of Punjab. The resultant impunity had, to some extent, allowed for the continuation of the same phenomenon in Indian-administered Kashmir. In the National Report, it is stated that India is “concerned” with enforced disappearances and is “cooperating” with the Working Group on Enforced or Involuntary Disappearances”. In reality, not a single disappeared persons has been found or re-surfaced and successive governments have either flatly refused that enforced disappearances exist in Indian-administered Kashmir or they have made contradictory and vague statements regarding the number and fate of disappeared persons. Further, not a single State forces personnel has been prosecuted – let alone convicted – for the crime of enforced disappearance (that in its entirety is yet to be even legislated as a crime). The connected issue of unmarked and mass graves (7000+), recognized by the State Human Rights Commission (SHRC) in 2011 (2156 graves in three districts of North Kashmir), and the European Parliament in its resolution in July 2008, has not been addressed by the government. The government has refused to carry out any investigations into the graves citing, amongst other points, its inability to do so (despite the European Parliament offering financial assistance for the investigations).
Despite the conduct of the Indian State, and the limitations of the UPR process, APDP submitted a report in September 2016 with 17 recommendations for the UPR as it is vital that the international community continue to be engaged on the issue of Indian-administered Kashmir and APDP has urged that moral pressure be brought upon the Indian State to act as per principles of law and justice. Key recommendations include that a United Nations fact-finding mission or Commission of Inquiry be constituted and allowed access to Indian-administered Kashmir, and in addition, a permanent UN HRC Special Procedure be created to monitor all human rights violations in Indian and Pakistan administered Kashmir.