Excessive force, arbitrary detention, enforced disappearances, lack of access to justice, health: Extracts from the first-ever UN Report on Kashmir

The United Nations report noted that Indian security forces in Kashmir have used “excessive force” that led to “unlawful killings and a very high number of injuries.” TAUSEEF MUSTAFA/AFP/Getty Images
18 June, 2018

On 14 June, the Office of the United Nations High Commissioner for Human Rights (OHCHR) released a report on the human-rights conditions in Jammu and Kashmir as well as Pakistan-Administered Kashmir, and Gilgit-Baltistan. The report examines the conditions that have prevailed in the region following the killing of the militant leader Burhan Wani in July 2016 by Indian security forces, which triggered the fiercest protests the valley has seen since 2010. “Indian security forces responded to protests with force, which led to casualties and a wide range of alleged related human rights violations throughout the summer of 2016 and into 2018,” the OHCHR report noted. The report noted that the Indian security forces used “excessive force” that led to “unlawful killings and a very high number of injuries.” It added that laws such as the Armed Forces (Special Powers) Act, 1990, or AFSPA, and the Jammu and Kashmir Public Safety Act, 1978—or PSA—have “created structures that obstruct the normal course of law, impede accountability and jeopardize the right to remedy for victims of human rights violations.” Despite accusations of abuse including sexual violence, in the nearly 20 years that the AFSPA has been in force, the report noted, “there has not been a single prosecution of armed forces personnel granted by the central government.”

The OHCHR further called on the Indian authorities to, among other recommendations, “establish independent, impartial and credible investigations to probe all civilian killings which have occurred since July 2016,” as well as human-rights abuses committed by Indian security forces including the killing of minority Kashmiri Hindus; “to immediately order the end of the use of pellet-firing shotguns”; to “urgently repeal” the AFSPA; and to “fully respect the right of self-determination of the people of Kashmir as protected under international law.” The OHCHR recommended that the United Nations Human Rights Council consider establishing a commission of inquiry to examine the human-rights violations in Kashmir.

This is the first-ever United Nations report on the conditions in Jammu and Kashmir. The report is based on “remote monitoring”—the OHCHR noted that despite requests to both India and Pakistan, it was not allowed access to the region in order to conduct an investigation. It based its findings on credible and verified information present in the public domain, including news reports, RTI responses, and statements by the government of India.

The Indian government has rejected the OHCHR’s findings. The ministry of external affairs termed the report “fallacious, tendentious and motivated,” and described it as a “selective compilation of largely unverified statements.” The MEA said that the report “violates India’s sovereignty and territorial integrity.”

Below are some extracts from the report’s observations on human-rights violations in the region, including the excessive use of force, illegal detention and torture.

Excessive use of force:

The killing of civilians between 2016 and 2018 raises the question of whether security forces resorted to excessive use of force to respond to protesters, some of whom were throwing rocks. International human rights groups have accused Indian security forces of using excessive force and failing to adhere to applicable national and international standards on the use of force.

In responding to demonstrations that started in July 2016, Indian security forces used excessive force that led to unlawful killings and a very high number of injuries. The peak of the unrest occurred between July and December 2016. Civil society estimates are 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 in the same period. There have been conflicting estimates by authorities on the number of people killed during that period. In January 2017, Jammu and Kashmir Chief Minister Mehbooba Mufti told the state assembly that 78 people including 2 police officers were killed in the 2016 unrest. However, on 12 January 2018, the state government of Jammu and Kashmir informed the state assembly that 51 people had been killed during the unrest in the Kashmir region between 8 July 2016 and 27 February 2017. The state government also said that 9,042 people had been injured during protests in the same period including through injuries sustained from the use of bullets, metal pellets and chemical shells.

Civil society groups estimate that between 90 and 105 people were killed during the unrest between July and December 2016. According to Srinagar-based Jammu Kashmir Coalition of Civil Society (JKCCS), 105 people were killed in the period following protests that spread across the Kashmir Valley after 8 July 2016. It claims deaths were caused by injuries from pellet shotguns, bullets, tear gas shells, as well as by drowning, inhaling chemical shell fumes and shooting by unidentified gunmen. Amnesty International, Human Rights Watch and the International Commission of Jurists all claim there were over 90 fatalities in 2016.

Although not as intense and widespread as in 2016, protests across the Kashmir Valley continued throughout 2017 and into 2018, with several instances of violent clashes between protesters and security forces. Chief Minister Mehbooba Mufti told the state assembly on 23 January 2018 that 172 people had been killed since 2016: 105 in “law and order problems” (85 in 2016 and 20 in 2017); and 67 people in “militancy related incidents” (19 in 2016 and 48 in 2017).

JKCCS reported that 108 people were killed in 2017, including 19 near sites of armed encounters between security forces and armed groups. It claims that nine people were killed by security forces during clashes around the parliamentary elections in April 2017, and four died from pellet shotgun injuries.

In January 2018, the state government of Jammu and Kashmir informed the state assembly that five inquiries had been established to review the killing of civilians in 2016, but it did not specify whether the investigations were completed. The state government added that no inquiries were conducted into civilian killings that took place in 2017. JKCCS reported that until the end of 2017, none of the inquiries had been completed. No case of excessive use of force in Jammu and Kashmir has led to prosecution in civilian courts.

According to human rights groups, a large proportion of those killed during the 2016 unrest died from bullet wounds. According to JKCCS, 71 of the 105 people killed during the 2016 protests died of such wounds. Several cases of civilian deaths caused by live ammunition were also reported in 2017 and 2018. While Chief Minister Mehbooba Mufti testified that 20 people were killed in 2017 in “law and order incidents”, 107 the state government has not disclosed the details of how they were killed. According to JKCCS, 28 people were killed by security forces and 22 by unknown gunmen in 2017.

The “Standard Operating Procedures to deal with Public Agitations with Non-Lethal Measures” prepared by India’s Bureau for Police Research and Development recommend that security forces warn protesters before using non-lethal or lethal force. International standards on the use of force also note that law enforcement officials need to give clear warning of their intent to use firearms and give people sufficient time to react.According to Physicians for Human Rights, protesters and witnesses interviewed during the 2016 unrest said security forces did not give any warning before firing bullets or pellets at demonstrators.

There appear to be two distinct patterns concerning the casualties reported from “encounter sites”:

1) what authorities have called “accidental killings” involve people not taking part in protests who are “caught or hit in crossfire” or hit by a “stray bullet”, but Kashmiri civil society organizations and journalists have questioned the narrative of these supposedly accidental killings; and

2) authorities claiming that some of those killed were helping members of armed groups, including protesters throwing stones at security forces.

Security forces reportedly used pellet-firing shotguns and live ammunition in these situations. On 15 February 2017, the Chief of Staff of the Indian Army General Bipin Rawat warned protesters that security forces would use “tough action” against anyone intervening in security operations.

JKCCS reported 19 people were killed near armed encounter sites in 2017 including 4 women and 1 girl. However, no civilian investigations have been set up to look into these incidents. It is also unclear whether security forces launched any internal inquiries.

In July 2017, the Supreme Court of India made filing of First Information Reports (FIR) by police officials and a magisterial inquiry mandatory in every “encounter killing.”

On 9 January 2017, the Chief Minister told the state assembly that her government had directed the police to set up district level investigation teams under the Deputy Superintendent of Police for carrying out time-bound investigations into all cases of civilian deaths in the context of protests. However, the Government has reported no progress in terms of investigation or prosecution in any of these cases.

Use of the pellet-firing shotguns:

One of most dangerous weapons used against protesters during the unrest in 2016 was the pellet-firing shotgun, which is a 12-gauge pump-action shotgun that fires metal pellets. It was deployed by the Central Reserve Police Force and the Jammu and Kashmir Police against protesters, some of whom were throwing stones. According to human rights organizations, the shotgun cartridges contain 500 to 600 pellets that resemble ball bearings. The ammunition is made of lead alloy that is fired at a high velocity thereby dispersing the metal pellets over a large area. Experts claim that there is no way of adequately controlling the trajectory of these shotguns beyond a limited range, which makes them inherently inaccurate and indiscriminate. The pellet-firing shotgun was first used in Kashmir during mass protests in 2010; it is not known to have been used against protesters anywhere else in India.

The Central Reserve Police Force claims the pellet-firing shotgun is the “least lethal” option they have at their disposal for crowd-control. However, pellet shotgun use by law enforcement agencies resulted in multiple deaths and serious injuries of hundreds civilians between 2016 and 2018. According to official figures presented in the Parliament, 17 people were killed by pellet injuries between July 2016 and August 2017. According to information received by the Jammu and Kashmir State Human Rights Commission (SHRC) from 10 districts of the Kashmir Valley, 1,726 people were injured by metal pellets in 2016. In January 2018, Chief Minister Mehbooba Mufti stated before the state assembly that 6,221 people had been injured by pellet guns in Kashmir between 8 July 2016 and 27 February 2017; among the victims, 728 had eye injuries. The Chief Minister reported that 54 people suffered some form of visual impairment due to pellet injuries. Civil society organizations claim that the number of people partially or completely blinded due to pellet injuries is higher. A right to information query found that 16 personnel from the Jammu and Kashmir Armed Police were also injured by pellet-firing shotguns.

According to human rights groups and medical professionals in Kashmir, apart from physical injuries, many victims of pellet shotguns face serious mental health issues, including symptoms of psychological trauma.

Despite the public outrage over the deaths and mass blindings caused by the use of pellet-firing shotguns, the state government has only set up one special investigation into a death caused by pellet-gun injuries. On 9 January 2017, it ordered the Deputy General of Police-Central Kashmir Range to set up a Special Investigation Team to probe the killing of 21-year-old Riyaz Ahmad Shah, on 2 August 2016. A pellet cartridge shot at close range had penetrated and burst in his abdomen, leaving over 300 metal pellets in his body. The police had previously filed a FIR against “security forces” in relation to his death. However, there have been no investigations into determining whether the other deaths and serious injuries caused by pellet-firing shotguns are cases of excessive use of force by police and central paramilitary forces.

Indian security forces continue to use pellet shotguns in Kashmir today. On 1 April 2018, around 40 people were reportedly injured, including 35 hit in the eyes, by pellet shotguns used against people protesting against the killing of civilians in Shopian and Anantnag districts.

Arbitrary arrests and detention, including of children:

A right to information application found that over 1,000 people were detained under the Jammu and Kashmir Public Safety Act between March 2016 and August 2017. It also found that the state Government had not created any rules or standard operating procedures under PSA to guide the authorities while issuing a detention order. Issuing authorities – usually district magistrates or divisional commissioners – thus solely rely on dossiers prepared by the Jammu and Kashmir Police and reportedly do not verify facts. Additional work may be needed to verify this allegation.

For example, on 15 September 2016, prominent civil society advocate Khurram Parvez was arrested and detained under PSA, a day after being prevented from travelling to Geneva to attend the thirty-third session of the United Nations Human Rights Council. Several United Nations human rights experts publicly called for his immediate release, noting that the travel ban and his detention were “a deliberate attempt to obstruct his legitimate human rights activism”. He was released on 30 November 2016 after spending 76 days in detention.

Human rights groups had warned Jammu and Kashmir authorities that minors were being arrested under PSA in 2016 and 2017. Opposition parties raised the issue in the Parliament and state assembly, but authorities have regularly denied that minors were being picked up under PSA.

Enforced disappearances:

While JKCCS and the Association of Parents of Disappeared Persons claim over 8,000 people have been disappeared since 1989, the state and central governments say around 4,000 are missing, most of whom they allege crossed over to Pakistan-Administered Kashmir. In January 2017, Chief Minister Mehbooba Mufti told the Jammu and Kashmir Assembly that 4,008 “missing persons” from the state were in Pakistan-Administered Kashmir for arms training.

According to JKCCS, there were at least seven cases of enforced or involuntary disappearances reported in 2017. Of these, the bodies or remains of five people were found a few months later. Three cases were blamed on security forces, while perpetrators have not been identified in the other four.

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.

Violation of right to health:

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. According to human rights groups, the fear of being arrested inside the hospital led to a large number of injured patients fleeing before receiving medical attention. Human rights groups claimed that days-long curfews and communications blockades also had a major impact on people and their access to medical care in Kashmir. The Doctors Association Kashmir cautioned in 2016 that the communication blockade escalated conditions of anxiety and depression among patients.

According to JKCCS, around 200 ambulances were damaged by security forces and, in some cases, by protesters during the 2016 unrest. There are also independent accounts alleging ambulances and ambulance drivers were attacked by security forces. The Doctors Association Kashmir documented several instances of doctors, paramedics and ambulance drivers being obstructed and physically assaulted by security forces as well as by protesters. In one incident, security forces allegedly targeted an ambulance driver with a pellet-firing shotgun that injured him seriously while he was ferrying patients to the hospital. Due to several cases of medical services personnel being targeted during the 2016 unrest, the Doctors Association Kashmir appealed to the security forces and protesters to ensure free and safe passage to ambulance drivers and medical staff so that everyone could get access to health services.

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.

None of the attacks or obstructions on medical staff which occurred in 2016 have been investigated despite medical groups and local civil society organizations having documented such instances.