[Reader-list] Memorandum on Human Rights, Peace, and Social Justice

Sat Feb 14 12:14:15 IST 2009

Dear
Friends,

Below is the text of the memorandum on Human Rights, Peace, and
Social Justice sent to the Chief Minister of Jammu and Kashmir Mr. Omar
Abdullah on behalf of International People's Tribunal on Human Rights and
Justice in Indian Administered Kashmir.

Regards,

Khurram

=====================================

To: Mr. Omar Abdullah 

Chief Minister

Jammu and Kashmir

From: The International People's
Tribunal on Human Rights and Justice in Kashmir

Conveners:

Dr. Angana Chatterji, Associate Professor,
Anthropology, California Institute of Integral Studies

Advocate Parvez Imroz, Founder, Jammu and Kashmir Coalition
of Civil Society

Gautam Navlakha, Editorial Consultant, Economic and
Political Weekly

Zahir-Ud-Din, Vice-President, Jammu and Kashmir
Coalition of Civil Society

Legal Counsel:

Advocate Mihir Desai, Mumbai High Court,
Supreme Court of India, Co-founder,
Indian People's Tribunal

Liaison:

Khurram Parvez, Programme Coordinator, Jammu and
Kashmir Coalition of Civil Society

February 11, 2009

Re.: Memorandum on Human Rights,
Peace, and Social Justice 

Dear Mr. Omar Abdullah:

We write you today on behalf of the
International People's Tribunal on Human Rights and Justice in
Indian-administered Kashmir. [A brief on the
Tribunal's premise and objectives may be found at: http://www.kashmirprocess.org/premise.html.]

We write, mindful that you have promised attentiveness
and accountability to human rights issues in Kashmir, to bring to your
attention the need for appropriate action with regard to the following:

1. Disappearances: You have raised issues of enforced
disappearances in Kashmir in the past. We ask that you order a full-scale
investigation under provisions of the Commissions of Inquiry Act, 1952, and/or
other relevant laws, within a stipulated and reasonable timeframe. 

We ask as well that all laws of Jammu and
Kashmir incorporate the premise of the United Nations Declaration on the
Protection of All Persons From Enforced Disappearance, the International
Convention for the Protection of All Persons from Enforced Disappearance, and
the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment.

2. Killing by Police Firings, Fake Encounter
Killings, and Extrajudicial Killings: We ask that you use all authority granted you
by law to take strong and effective preventive measures to ensure that these
are not repeated. As well, we urge that the cases that have been pending in
courts, and those that have not been filed, be expeditiously dealt with and the
perpetrators be brought to justice. We ask that the Government of Jammu
and Kashmir follow the cases pending for sanctions before the Government of
India's Home Ministry under Section 7 of Armed Forces Special Powers Act, 1958, (AFSPA). We ask that the state make public
the number of cases in which sanctions have been sought from the Government of
India, and the number of cases in which the same have been granted.

3. Mass Graves: We note the existence of mass graves in
Kashmir, as verified by the Association of Parents of Disappeared Persons and
the International People's Tribunal for Human Rights and Justice in Kashmir in
2008. We note that there are connections between the number of persons
disappeared and these unmarked, unidentified, nameless, and unknown graves. We
also note that various international institutions and bodies, such as the
European Parliament, have referred to this issue and made recommendations for
action. We ask that your government offer protection to the sites to not permit
their desecration or destruction, enable independent and transparent
investigations drawing upon varied, credible, and international expertise, and
institute an independent and transparent judicial commission of inquiry. 

4. Torture: It has been acknowledged by international human
rights organizations that the use of torture by military and paramilitary
forces is widespread in Kashmir. [See documentations available at
http://www.kashmirprocess.org/resources.html.] As well, the Government of India
is yet to ratify the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, although it has been a signatory since
October 1997. In this context, we ask that the Government of Jammu and Kashmir
institute a comprehensive ban on practises of torture as defined by
international law and humanitarian ethics.

5. Detention and Torture Centres: We ask that unlawful detention and
torture centres, including in army camps, be identified, made public, and
banned. Further, we ask that appropriate reparations be determined and
undertaken with regard to unlawful and unconstitutional practises undertaken in
these camps and centres. We ask that international institutions, such as the
International Committee of the Red Cross (ICRC), be permitted to visit the
above places to assess the situation independently.

6. Gendered and Sexualized Violences: We note the severity of gendered and
sexualized violences that have been perpetrated in Kashmir in the last two
decades. Women and children, and others, have been victimized by horrific forms
of brutality, including rape, gang and collective rape, perpetrated on women.
Other categories of victimization include women whose male partners are
missing, labelled ‘half-widows’. Women and children, and others, have been subjected
to physical and psychological torture and trauma, and social and literal
displacements. We note the urgency of undertaking ethical, transparent, and
independent assessments of the above in conditions that ensure the safety and
security of the survivors/victims, and undertaking requisite reparations and
rehabilitation.

7. Prisoners Rights: We ask that prisoners’ rights not be
violated, and that medical aid be readily made available, and that the right to
legal counsel, due process, fair and speedy trials be upheld.

8. Rights of Former Militants: We ask that the civil liberties of
former militants and their families be respected. We note that the civic and
political rights of former militants, who are now living different and
committed lives, continue to be violated by personnel of the military and
paramilitary forces. We note that some of them have been subjected to torture
after serving sentences and deemed 'rehabilitated' by the justice system. We note that many still have to report to local camps of
the security forces on a weekly basis. We note as well that former militants and their
families continue to be subjected to maltreatment and denied access to social
life, such as to institutions, employment, and pensions. 

9. Juvenile Justice: We ask that youth not be taken into
custody, held, or tried as adults, and that their rights to legal counsel, due
process, and fair and speedy trials be upheld. We ask
that a law be enacted that guarantees juvenile justice, that safeguards the
rights of juveniles in conflict with
law, and neglected and destitute juveniles.

We note that young people in general,
particularly girls and young women, must be guaranteed an environment free of
sexual harassment and violence.

We note that young people need to be guaranteed
freedom from forms of harassment that undermine their right to education.
Impediment to livelihood of adults creates economic insecurity that impacts
youth. Family livelihood insecurity compels youth to earn income rather than
foreground education and development. Proximity to systemic violence produces
severe emotional trauma that manifests as depression, suicidal behaviours,
self-medication through drugs, as well as retreat and isolation as coping
strategies. There are inadequate provisions to address these issues and respond
to these needs. We urge recognition of this reality and the allocation of
resources to address these issues.

10. Access to Justice: We ask that all persons seeking to
access institutions of law and justice be retreated with respect and
non-violence by law enforcement agencies. We note that, in countless instances,
complaints are disregarded by the police, false first information reports
(FIRs) filed, and people's request to file FIRS are met with disrespect, even
force.

11. Landmines: We note that the
placement of landmines along the border and other sensitive areas in Jammu and
Kashmir continues to endanger lives, including those of children. While the
Government of India is not a signatory to the Convention
on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on their Destruction, and has continued to justify
landmine use in Jammu and Kashmir, we ask that the Government of Jammu and
Kashmir institute a comprehensive ban on the use of landmines. We ask that an
audit be conducted to ascertain the impact of landmines on local communities,
to determine the extent of casualties, devastation, and displacement, and
undertake rehabilitation of those affected and de-mining.

12.
Transparency: We urge that the Government
of Jammu and Kashmir ensure that international organizations and institutions,
that have access to other places, are allowed to visit Jammu and Kashmir. We
note that the ability of international institutions to work with local civil
society institutions in Jammu and Kashmir is crucial to interrupting isolation
and producing accountability. 

We ask
that thousands of families who have been denied passports, including human
rights defenders and journalists, be provided the same. 

We ask
that, prior to contractual agreements and implementation, all development
projects be assessed for their human rights implications.

13. Laws and States of Exception: We note your commitment to the
revocation and withdrawal of security related legislation that has been in
contravention of international humanitarian laws and norms, such as the Armed
Forces Special Powers Act, 1958, (AFSPA), enacted in Jammu and Kashmir in 1990,
the Disturbed Areas Act, 1976, enacted in Jammu and Kashmir in 1992, and the
Jammu and Kashmir Public Safety Act of 1978. We reiterate the urgent need for the revocation of the
Armed Forces Special Powers Act, 1958, the Disturbed Areas Act, 1976, the
Unlawful Activities (Prevention) Act, 1967, and the Jammu and Kashmir Public
Safety Act of 1978. We also note that continued criminal proceedings using the
Prevention of Terrorism Act, 2002, and the Terrorist and Disruptive Activities
(Prevention) Act, 1985, 1987, must be stopped.

While the safety and security of citizens must
remain of paramount
concern, we ask that you remain vigilant to the problematic parameters and
consequences of certain national security laws used to proscribe political dissent and deny freedom of
expression, freedom of speech, and freedom of assembly, and deny the democratic
right to peaceful mobilization and dissent. We note that certain national security laws,
in name of retributive justice, have been/may be used to perpetrate state
violence, subvert due process of law, undermine civil liberties, and freedom of the press, eroding rule of law,
permitting torture and sexualized violence on those in state custody,
criminalizing innocent persons, and, in effect, undermining the safety and
security of citizens. 

14. Commissions of Inquiry: We ask that the reports
and/or findings of various Commissions of Inquiry that have been instituted to
inquire into instances of gross violations of human rights, law, and social
justice be made public and that these commissions be ordered to complete their
charge. Further, from available information,
we register our concern that between 2000-2007 only three statutory inquiries
have been commissioned and that other inquiries instituted have been
magisterial and administrative probes. We ask that, based on ethical
assessments of gross violations of human rights, law, and social justice,
relevant statutory inquiries be ordered, as
appropriate, to investigate these crimes. We ask that various agencies,
including military and paramilitary institutions, be required to cooperate with
instituted commissions in order that they may carry out their investigations.
We ask that the recommendations of the commissions be enacted. 

15. Minorities: We note that peace and
reconciliation requires commitment to minority rights and issues, and the ethical
and transparent resolution of injustices. We ask that an audit be conducted to
ascertain the status of minorities in Kashmir, and related to the displacement,
dislocation, and rehabilitation of minorities in Jammu and Kashmir, to propose
mechanisms for reparation and reconciliation.

16. Truth and Reconciliation Commission: We note your public commitment to
instituting a 'Truth and Reconciliation Commission (TRC)'. We are hopeful that
you will appreciate that such a process must facilitate the implementation of
justice as a precondition to reconciliation. We further note that the viability
and success of a TRC is only possible in a context where demilitarization has
taken place, enabling a social context in which the
will and freedom of the people of Kashmir can be exercised.

17. In conclusion, we write you today mindful of how the
conditions for peace and prosperity are linked to the possibility and necessity
of justice in Kashmir. We understand the work of the International People's
Tribunal for Human Rights and Justice in Kashmir as enabling the work of
justice. Toward that, we hope and expect that the Tribunal will continue to
undertake its work in conditions that are not impeded.

Yours
Sincerely,

Angana
Chatterji, Parvez Imroz,
Gautam Navlakha, Zahir-Ud-Din, Mihir Desai, Khurram
Parvez

Contact:

Khurram
Parvez

E-mail:
kparvez at kashmirprocess.org

T: +91-194-2482820

M:
+91-9419013553