Lest we forget: Khurram Parvez – Part II
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The Structure of Violence (TSOV) report which was prepared by Khurram Parvez and his team emphasizes that the continuing denial of justice from the Indian State is a reason for appealing to the international community and justice mechanisms as domestic remedies have conclusively failed the people of Jammu and Kashmir. As recommended by this report, the international community must respond to the evidence presented in this report. Case studies, supported by official record or testimonies, of enforced disappearances, extra-judicial killing, sexual violence and torture must not be ignored. The report makes it abundantly clear that to ignore this evidence is to endorse the violence of the Indian State. There must be an immediate initiation of processes that collect and analyze this information to be used as a part of a formal procedure that records the truth and assigns responsibility.
As predicted by Dr. Gregory Stanton, Chairman, Genocide Watch, the TSOV report also predicts that “the cases documented in this report may constitute crimes of Genocide, Crimes against Humanity and War Crimes under international law. The relevance of this documentation is to therefore begin collecting Structures of Violence evidence and presenting it in a way that will enable future international processes to understand the violence in Jammu and Kashmir and the structure responsible for it. International criminal law does not limit responsibility to only the physical perpetrators of crime. The principles of individual criminal responsibility are based on the notion that those who do not physically commit the crime in question are still liable for other forms of participation. This could include, for example, ordering, instigating, or even inciting. In addition, courts have held that even the commission of a crime, the highest mode of liability, would not necessarily require the physical involvement in the perpetration of crime.”
Chapter 2 of the TSOV report understands operation of this structure of State through specific spectacles of “mass violence”. Five case studies, comprising eight different events/crimes including extra-judicial killing, torture and sexual violence, and a range of perpetrators [army, paramilitary, police, government gunmen] illustrate the extent of violence and the intended effect of this violence on communities. Once again, in keeping with the core intention of this report, this calculated violence cannot be understood as a consequence of individual actions independent and disconnected of the larger structure of violence. Further, this chapter also follows the cases through the Indian criminal justice system – from first information reports (FIR) at the police station to the Supreme Court of India. The violence, obfuscation and impunity at every step illuminates the system at work and reiterates the argument that there can be no justice from the same judicial system that is a part of the larger apparatus of occupation and employs mass violence as a strategic tool of political control.
Chapter 3 of the TSOV report highlights “a mechanism that specifically supports the military structure of violence: court-martial. Created to address disciplinary issues within the army, the court-martial has been used to effectively stall any public, transparent civilian process for justice. Widely accepted internationally to be an inappropriate judicial remedy in armed conflict, the court-martial in Jammu and Kashmir is found to be opaque, impossible to access, against principles of natural justice, and biased. In its functioning, result and impact, it serves as a tool for the armed forces to protect their own. Given the Indian army history of interference and abuse of the civilian judicial process, there can be no expectation from the opaque court-martial process.”
Chapter 4 of TSOV details “the case studies reiterate the lack of any will to provide justice. Despite overwhelming evidence, the Indian judiciary and executive [supported by the legislature through laws such as ‘Armed Force Special Powers Act, AFSPA] do not allow for fair and independent processes of investigation or prosecution. The list of alleged perpetrators, their ranks, units, and area of operations strongly suggests that the crimes listed within this report occurred across Jammu and Kashmir, by the various armed forces and police, and at various levels of the hierarchy of each of these armed forces and police. The Indian State narrative of human rights violations being mere aberrations is not substantiated on consideration of these cases. Crimes in Jammu and Kashmir have not been committed despite the Indian State but because of it. The structures of the Indian State, including the Government of Jammu and Kashmir, must be accused of not just standing by while human rights violations have taken place, but they carry a far higher culpability. They must be accused of willfully putting in place structures specifically meant to carry out these crimes. Some statistics reveal a horrifying picture.”
TSOV report underlines the fact that “this evidence, and attempt to assign responsibility, must not be ignored by the international community. In fact, in light of the unwillingness of the Indian State to provide justice, international processes must be put in place to receive and process this evidence. In the era of globalization, human rights are not the sovereign responsibility of States. The international instruments and mechanisms exist as guarantors of rights and freedoms transcending State boundaries. India's claim of being a functional democracy, and demand for a permanent seat in the United Nations Security Council, is belied by its unlawful conduct in Jammu and Kashmir and refusal to allow accountability. In July 2008, the European Parliament passed a resolution urging Government of India to investigate unmarked and mass graves (in Kashmir). But no action has been taken on this resolution. India's history of denying the applicability of international law to the Kashmir conflict, and its refusal to allow access to international humanitarian institutions, UN Special Rapporteurs, and independent human rights investigators to Jammu and Kashmir is well known. The international community must bring to bear moral and economic pressure on India to recognize the paramountcy of the rights of the people of Jammu and Kashmir in this armed conflict, and its obligations to them under international humanitarian and human rights law.”
In this context, TSOV urgently recommends the following:
i. Given India’s continuing non signing/ratification of the Rome Statute of the International Criminal Court, and its unwillingness to investigate human rights violations by its forces in Jammu and Kashmir, the UN security Council, exercise its power to refer the situation in Jammu and Kashmir to the Prosecutor of the International Criminal Court, under Article 13 (b) of the Rome Statute, acting under its obligations to maintain international peace and security.
ii. As an interim measure, pending or absent such referral, the United Nation Human Rights Council take cognizance of the findings, testimonies and documentary evidence presented in this report with regard to the existence of grave, widespread and systematic human rights violations, and pervasive structures of state violence in Jammu and Kashmir, and appoint a Special Rapporteur with a specific mandate to investigate India's violations under international law, international humanitarian law and international criminal law in Jammu and Kashmir.
iii. In support of the investigations of the Special Rapporteur referred to above, Government of India take immediate and concrete measures to protect and preserve all official records, physical sites, evidentiary materials in its custody or under its care pertaining to the occurrence of human rights violations, including all such items, sites and records mentioned in this report.
iv. Government of India ensure that material witnesses and individual with knowledge of the occurrence of such violations, including military, police and administrative officials and victims receive protection against threats and intimidation.
v. Government of India and Government of Jammu and Kashmir allow free access to Jammu and Kashmir, to the Special Procedures of the UN Human Rights Council for the purpose of carrying out investigations into allegations mentioned herein and receiving submissions from victims.
vi. Foreign governments, and their embassies/missions in India, record the names and identifying information of all alleged perpetrators listed in this report. Foreign governments ensure that these alleged perpetrators are not allowed to enter their territories. This blacklisting and travel ban would not only put pressure on India to accept its responsibilities to investigate and prosecute but would also ensure that these alleged perpetrators are not allowed to take sanctuary in foreign countries. In addition, any of these alleged perpetrators found to be in the territory of the foreign government should be immediately prosecuted [where universal jurisdiction laws exist] or extradited to India on grounds of being persons accused in crimes in Jammu and Kashmir.
vii. UN Department for Peacekeeping Operations [UN-DPKO] record the names and identifying information of all alleged perpetrators listed in this report. UNDPKO must ensure that these alleged perpetrators are not allowed to serve on UN-DPKO missions in any capacity. Further, on rejection of their applications to serve as peacekeepers, the UN-DPKO must specifically state the reason for such rejection to be their alleged involvement in crimes in Jammu and Kashmir.
After having read 799-pages report of TSOV, it becomes clear that even in today’s violent world, the behaviour of the Indian occupation regime in Kashmir is singular in so far as it has enjoyed total impunity from restrain imposed through international action or persuasions. No word of disapproval, much less condemnation, has been uttered by the international community. There has not been a call on India to cease and desist from the murderous course it has chosen for itself in Kashmir. Such passivity, such unfeeling and such indifference, let no one blame the Kashmiris for concluding, amounts to encouragement of tyranny.
Finally, we strongly endorse the joint statement of UN human rights experts including Mary Lawlor, Luciano Hazan, and several others released who "called on the Indian authorities to immediately release him (Khurram Parvez) and ensure his rights to liberty and security.”