Law

Try Crimes Against Civilians in Civilian Courts, Amnesty Tells Army, Government

New Delhi: Calling on the Indian government to remove the requirement of ‘prior sanction’ before security forces personnel can be prosecuted for crimes against civilians, Amnesty International said the climate of impunity encourages human rights violations to continue. As a result it said, “faith in the government and judiciary is almost non-existent in Jammu and Kashmir.”

On Wedneday, the organization released a report, Denied: Failures in Accountability for Human Rights Violations by Security Force Personnel in Jammu and Kashmir, documenting the obstacles to justice faced in several cases of human rights violations alleged to have been committed by Indian security force personnel in J&K.

The prime focus of the report is on the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, especially Section 7, which grants soldiers virtual immunity from prosecution for human right violations committed by them.

The report reveals that the Central government has denied permission, or ‘sanction’, to prosecute under Section 7 of the AFSPA in almost every case brought against members of the army or the paramilitaries, or in a small number of cases, has kept its decision pending for years. The report also documents the lack of transparency in the sanction process.

Speaking to reporters, Minar Pimple, senior director of global operations at Amnesty International, said, “July 5, 2015 will mark 25 years since the AFSPA in effect came into force in Jammu and Kashmir. Till now, not a single member of the security forces deployed in the state has been tried for human rights violations in a civilian court. This lack of accountability has in turn facilitated other serious abuses”.

The report is based on in-depth research in Jammu and Kashmir, including interviews with 58 family members of victims of alleged human rights violations by security forces, Right to Information applications, examination of police and court records, and interviews with civil society groups, lawyers, and government officials.

“Not a single family interviewed for the report had been informed by the authorities of the status or outcome of a sanction request in relation to their case,” said Divya Iyer, research manager at Amnesty International India.

Mohammad Amin Magray, uncle of 17-year-old Javaid Ahmad Magray, who was killed in April 2003 by security force personnel, told Amnesty International India, “If the Army knew they would be charged, and will have to go to court and be prosecuted, they will think ten times before they pull their triggers on an innocent…The AFSPA is a like a blank cheque from the government of India to kill innocents like my nephew.”

Many families interviewed said that AFSPA also indirectly provides additional immunity for security force personnel.

“Police and court records pertaining to nearly 100 cases of human rights violations filed by families of victims between 1990 and 2012 showed that the Jammu and Kashmir police often failed to register complaints or take action on registered complaints until they were compelled,” said Iyer. “In some cases, army personnel have been reluctant or refused to cooperate with police investigations.”

The army has dismissed more than 96 per cent of all allegations of human rights violations against its personnel in J&K as “false or baseless”. However the evidence for finding the majority of allegations false is not publicly available. Few details of the investigations or military trials conducted by the security forces are available to the public.

In a rare exception, the army revealed in November 2014 that a court martial had convicted and sentenced to life imprisonment five soldiers for shooting and killing three men in a ‘fake encounter’ – a staged extrajudicial execution – in Machchil in 2010.

“The convictions in the Machchil case were a welcome measure. But for justice to be consistently delivered, security force personnel accused of human rights violations should be prosecuted in civilian courts,” said Iyer.

There is growing acceptance internationally that military courts should not have jurisdiction to try security forces for human rights violations, Amnesty said. Military courts in India also suffer from particular structural flaws related to their competence, independence and impartiality, which render them unsuitable for prosecuting human rights violations.

“By not addressing human rights violations committed by security force personnel in the name of national security, India has not only failed to uphold its international obligations, but has also failed its own Constitution,” said Pimple, adding, “The AFSPA should not be used to shield soldiers from prosecution any more. By bringing alleged perpetrators to justice, the Indian government can send a clear signal that nobody is above the law, and that every person’s right to equality and justice will be respected and protected.”