Odhikar believes that ‘democracy’ is a form of the State and not merely a process of electing a ruler. Democracy is the product of the peoples’ struggle for inalienable rights, which become the fundamental premise to constitute the State and to define collective aspirations and responsibilities. Therefore, the individual freedoms and democratic aspirations of the citizens – and consequently, peoples’ collective rights and responsibilities - must be the foundational principles of the State. The States failure to recognise this at the founding moment is a continuing curse that people are forced to carry. A State cannot be ‘democratic’ if the people do not realise and participate as ‘citizens’ in all sectors of the functioning of the state. The democratic legitimacy of the State is directly related to its commitment and capacity to ensure human rights, such as rights to life and livelihood, rights to environment and health; and the dignity and integrity of citizens. If all this is not ensured by the State, it cannot be called a ‘democratic’ state. These civil and political rights, as the foundational principles of the State, must remain inviolable; and accordingly, the Parliament, Judiciary and Executive cannot and should not have any power to abrogate them through any legislation, judicial verdict or executive order. The people’s inviolable rights are the foundational principles of the State.
This report, prepared over two years using information gleaned mostly from official State documents, portrays the state of impunity prevalent in Jammu and Kashmir. Where identities of individual perpetrators of crimes are known it seeks a process of accountability for institutional criminality.
In the highly militarized space of Jammu and Kashmir, it reveals an entrenched culture of impunity. Cases of human rights violations committed by members of various State forces are analyzed within the context of an occupation, an armed conflict, and a state of structural impunity. These have evolved within State institutions, including the armed forces, and traverse the application and interpretations of special laws, and finally the judicial system itself.
Asian Federation Against Involuntary Disappearances (AFAD)
The year 2005 will soon end with AFAD’s deep sense of fulfillment over the approval of the text of United Nations Draft International Convention on the Protection of All Persons from Enforced or Involuntary Disappearances.
Together with other organizations of families of the disappeared, AFAD celebrates the well-deserved victory. It was the greatest achievement of the international movement against involuntary disappearances of which AFAD is an integral part.
For the Asian families of the disappeared, there can be no other apt response to the continuing phenomena of enforced or involuntary disappearances in the region than the approval of the Convention’s text by the United Nations inter-sessional open-ended Working Group to draft a Legally-Binding Instrument for the Protection of All Persons from Enforced or Involuntary Disappearances. AFAD, who bore the brunt of persecution of its own human rights defenders, continues to work in the context of Asia’s intensifying human rights violations.
What has AFAD done during the year in order to concretize the three components of its work, e.g. lobby; campaign and public information; solidarity? Administratively, what was the situation that contributed to and/or hindered the Federation’s attainment of its mission, vision and goals?
I. ASIAN SITUATION
Significant strides in the past several years have been achieved in the context of popularizing human rights, especially in the campaign against enforced or involuntary disappearance.
In 2000 for instance, the United Nations Commission on Human Rights formally established an Inter-Sessional Open-Ended Working Group to Elaborate a Draft Legally-Binding Normative Instrument for the Protection of All Persons from Enforced or Involuntary Disappearances so as to expedite the study, review and eventual adoption of the UN Draft Convention on the Protection of All Persons from Enforced or Involuntary Disappearances.
For its part, the United Nations Working Group on Enforced or Involuntary Disappearances (UNWGEID) held its formal 75 TH session in May 2005 in Bangkok, Thailand. The first session to be held in Asia, such a decision was prompted by the growing concern over the sheer number of cases of enforced disappearance in Asia. Hence, such a move on the UNWGEID was both a deft diplomatic gesture and a slight reproach directed against the governments here in Asia which have dismissed the scourge of enforced disappearance as a purely Latin American phenomenon.
The said session also spawned a new global campaign for the immediate adoption of the above-mentioned UN Draft Convention dubbed as Convention Now! AFAD, as a federation of organizations of family members of desaparecidos support this campaign and is actively promoting its set objectives. But these tentative though highly significant victories are no excuse for us to rest on our laurels and throw caution to the wind. For even as this piece is being written, disappearances continue to occur in the Asian continent which now has the highest number of cases of enforced disappearance. Worse, even human rights workers are put in harm’s way, experiencing various threats and intimidations, sometimes leading to the loss of lives.
The first half of the year 2004 has been a very challenging period for the Asian Federation Against Involuntary Disappearances (AFAD). Challenging in the sense that while the phenomenon of enforced or involuntary disappearances remain unresolved and continue unabated especially in Kashmir, India and Indonesia, many untoward incidents occurred which affected AFAD.