UN Report on Human Rights ‘Violations’ in Jammu & Kashmir: Countering Machinated Allegations against the State

Credibility and impartiality are supposed to be the highest considerations for the United Nations (UN) or any of it multiple bodies when it comes to any investigative reportage about events it wishes the international community to take note of. Correctly it must also consult the government in question on any issue which could adversely affect the image and standing of that state. That is because ‘fake news’ may be a recent phenomenon but ‘disinformation’ as a strategy of information warfare is a long existent one.

The 49 page report of the UN’s Office of the High Commissioner of Human Rights (OHCHR) which addresses the handling of Jammu & Kashmir (J&K) by India and by Pakistan (of its occupied Indian territory) has been roundly condemned by India’s Ministry of External Affairs as ‘fallacious and motivated', and presenting 'unverified information'. It does not do any good to the UN’s credibility as the report is seen to be largely researched from dubious sources without an attempt to go deeper into the ground situation or investigate through unbiased interaction with personalities who have an ear to the ground. India has directly targeted the outgoing UN High Commissioner for HR Zeid Ra’ad Al Hussein after he called on the Human Rights (HR) Council to set up an international investigation following the release of the first ever UN report on HR violations in Kashmir. The report includes Pakistan’s role and handling of Pakistan Occupied Kashmir (PoK) but is much more muted on these aspects, leading to the reinforcement of the belief that it was motivated by some circles with a purpose. This information strategy is also a well-known one where the main target (India) is blasphemed robustly while the subsidiary target at whose behest the campaign is launched is also included in the criticism but at a muted level.

Pakistan’s record in attempting to paint India red internationally stems from its own more than imperfect dispensation. It professes to be a democracy and yet remains under control of its powerful Army for whom raising the specter about India is big business as it helps keep it in the driver’s seat. ‘Pakistan under threat’ and ‘Islam in danger’ are its slogans in perpetuity which help divert attention from the plethora of embarrassing internal imperfections.

Diplomatic aspects involved with the release of the report have much significance and have been commented upon by analysts. However, it is the actual disinformation that the report contains in terms of HR which has largely been the focus of the propaganda against India. There is a need to understand these aspects from an informed point of view as the core aspects are insufficiently contested and placed in public space for a holistic view by both the Indian public and the international community.

The issue often in the eye of the storm is India’s Armed Forces Special Powers Act, 1958, or AFSPA, a legislation which remains very much at the center of criticism in the report. The provocateurs exploit the lack of knowledge about this legislation which not only exists in the international community but also within many of the internal stakeholders. It is given the color of being a draconian law which empowers the Army to kill anyone at will without any judicial scrutiny of its actions that might have been taken. The language of the law which is in seven sections dwells on powers such as arrest without warrant, firing upon or otherwise using force, even to the causing of death, against any person who is acting in contravention of any law or order, and protection of soldiers from prosecution unless sanctioned by the Central Government. Little is it realised that AFSPA, 1958, was applied to J&K in 1990 to meet conditions in which it was necessary to give the Army additional powers to battle the then raging militancy. The spirit of the law and its implementation has progressively changed over a period of time. Being conscious of the monitoring of the record of HR, the Army ensured two things. One, it set up training and awareness facilities to educate troops on HR at the central level. In the battle schools in the operational areas, it instituted an entry cadre for training all inducting troops on aspects of respecting HR and being sensitive to it. Two, it created special appointments at Division and Corps headquarters (HQ) to exclusively deal with the HR domain.

There are five other aspects about the development of sensitivity towards HR as related and perceived under an AFSPA regime which need to be known. First, that it was enacted to enable the Army to respond with virtual police powers along with a protection clause because the central laws, which otherwise provide such protection, are not applicable in J&K. The issue twisted out of shape is the protection clause; it is made out to be a carte blanche to act at will without scrutiny; this is not true. Any case of misdemeanor is to be investigated but the approval for initiation of prosecution lies with the Central Government. This clause bears scrutiny of the highest judicial authority of India, the Supreme Court whose credibility is internationally recognised. It is to ensure non-partisan decisions away from the environment of occurrence of an incident.

Second is the fact that from 1994 a standard operating procedure (SOP) was adopted by the Army making it mandatory that while undertaking counter-terror operations, any search of a house with women inmates would need the presence of either women police, a cleric or an elderly person. Third, in 1996, elections were conducted to form a representative government, one of the earliest returns to democracy in a counter-militancy campaign anywhere in the world. Fourth, immediate upon the formation of the representative state government, a Central Government initiative was launched in 1997 by allotting the Army certain funds for its military civic action (MCA) program, a deliberate effort towards the humanisation of conflict; the program was called Operation Sadbhavana (Goodwill) and presently continues to the day in its 22nd year. The program looked at the medical, education, veterinary, infrastructure and women empowerment domains and contributed to the local administration’s efforts in the same domains even as it sensitised men in uniform of their responsibility towards the civilian populace in a proxy conflict. 28 Goodwill schools were set up, and now all are self-sustaining to continue to provide enviable quality of education to local children; this includes at least two residential schools.

Fifth was the Supreme Court’s review of AFSPA in 1997 in which it drew up a list of ‘Do’s and Don’ts’ for the Army to adhere to. Among these was a direction that no operation would be conducted by the Army outside the 15 km wide belt along the Line of Control (LoC) without the presence of local police representatives. Sixth was a measure adopted to remind every soldier of his HR obligations. It was referred as the ‘Ten Commandments’, a booklet with the strict directions of the Army Chief regarding good behavior, conduct and character. All these are functional in letter and spirit today under constant monitoring by higher formations of the army.

Those provoking allegations against India’s HR record attempt to paint a perception that provisions of AFSPA are exploited to the limits of empowerment must remember that the Indian Army follows the principle of minimum force. There may be a thousand soldiers deployed to target two or three terrorists but at the point of contact much discretion is exercised in the choice of weapons and the methodology of finally tackling a hideout. The option of surrender is almost always given to terrorists and SOPs exist to ensure that all civilian inmates in a house under terrorist occupation are evacuated prior to undertaking operations.

The Army has not inducted a single armored fighting vehicle into Kashmir for conduct of operations; even armored personnel carriers are not made available. Only mine protected vehicles (MPVs) which are defensive in nature and unarmed are the specialist vehicles used. Employment of armed helicopters, as is usually done by many armies in pursuit of counter-terrorist operations, has never ever been considered by the Indian Army.

The issue of HR allegations against Indian security forces (SF) in J&K revolves around a couple of other well-spoken of and well written about cases. The Indian side of the story is rarely carried by international media or taken cognisance of by the HR activists. One of these issues is about ‘unmarked graves’ in the vicinity of the LoC. Our explanation for these has always been based upon the argument that in 1989-90 many perceived that J&K would pass into the hands of Pakistan as India would perhaps not be able to control the supposed popular movement. A large number of people resorted to illegal criss-crossing of the LoC. The LoC is a dangerous border and is turbulent by nature due to which a number of people were killed while attempting such crossings. Identification being near impossible due to the origins of the people being unknown, and there being no system of computerisation of records, little can be done to trace those who died and were buried by local villagers in the vicinity of the LoC.

There are issues related to a couple of landmark HR related events which carry allegations against the Indian SF. Kunan Poshpora (1991) and Pathribal (2000) are at least two of these cases. Little is it known that investigations into these incidents did not throw up sufficient evidence to commence prosecution of alleged offenders. The Pathribal case was even investigated by the Central Bureau of Investigation (CBI). The demand of the HR activist community is that there must be prosecution of alleged culprits. However, the rule of law applies equally to soldiers and without necessary evidence none can be punished. This aspect is rarely highlighted in reports of this nature. Another well-known event, the Machil incident, saw a General Court Martial of six offenders, including a Colonel, for the alleged murder of three young Kashmiris at the LoC by the troops in April 2010. The Army legally took over the case and the six alleged offenders above were prosecuted under military law. However, a higher court (Armed Forces Tribunal) overturned the sentences and released all six accused. This case too has been referred in the UN Report. Perhaps the last of the judicial process on this case is not yet over and even if the same is not challenged in the Supreme Court, the finality should be respected as part of the judicial system of a democratic nation such as India.

The use of the term ‘armed groups’ while referring to notorious terror groups such as the Lashkar-e Taiyaba (LeT) is in itself highly questionable and casts doubts on the impartiality of the authors of the report. The UN has designated Hafiz Sayeed of the LeT as a terrorist and indicted the LeT as a terrorist organisation. How then can its sub-arm refer to the LeT as an ‘armed group’, a terminology normally reserved for a variety of actors, including opposition and insurgent movements, pro-government militias, and community-based vigilante groups, but not terrorist organisations.

The report refers to arbitrary bans on newspapers and restrictions on access to the internet and mobile networks. Perhaps the sponsors have little information that almost 30 English newspapers are published in Kashmir every day. There is never a short supply of newsprint or facilities so as to allow freedom of the press. A large number of young men are employed in the print media and locals continue to report for mainstream media with full openness. The internet mobile networks are sometimes switched off to deny the capability to violent agitators or others to assemble as flash mobs at encounter sites. This is done for brief moments to retain the initiative by the SF and is a legitimate security measure.

On incidents in Kashmir since 2016, the UNHRC chief asked Indian security forces to exercise “maximum restraint” and abide by “international standards” on use of force to counter future protests. “It is essential the Indian authorities take immediate and effective steps to avoid a repetition of the numerous examples of excessive use of force by security forces in Kashmir,” he said. While even a single violent death of a non-combatant or civilian is despicable, the nature of violence is something the UNHRC will need to examine much more closely. Issues related to violence cannot be judged by norms existing in developed societies alone. Threats from internal violence, especially sponsored violence, need to be seen in the context of how best these have to be countered on the basis of its intensity and control.

The lesson for India, its strategic community and the Government is important. Pakistan has adopted ways of telling its story to the world and making it credible and believable. It’s a smart strategy for a smaller nation at odds with a bigger neighbor who it wishes to harm through a spectrum of strategies, mostly under radar. It has spread its tentacles of misinformation far and wide through cultivation of formal diplomacy and informal caucus with different segments around the world. It’s an element of strategic communication and that is something Pakistan puts its bet upon to keep India targeted.

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