APPEAL FOR INTERNATIONAL JUDICIAL AND INVESTIGATIVE INTERVENTION
The last week of May every year is recognized internationally as the International Week of the Disappeared. This week provides an opportunity to remember the disappeared, acknowledge the struggle of their families, recommit to the fundamental right not to be subjected to enforced disappearances, the right to know the truth, the right to justice and reparation, and to demand that governments sign, ratify and implement the International Convention for the Protection of All Persons from Enforced Disappearance.
This year, the International Week of the Disappearedcomes shortly after an important international intervention in the region that must have consequences for the disappeared of Jammu and Kashmir: the ongoing International Court of Justice (ICJ) proceedings in the dispute between India and Pakistan on the question of consular access for a specific individual (Kulbhushan Jadhav) tried by military court in Pakistan. Through this appeal, APDP draws attention to the urgent need for a similar judicial intervention by the ICJ on questions of international law and its violation in Jammu and Kashmir.Domestic remedies stand exhausted and/or unable/unwilling to provide justice. The international institutions, specifically those with power to investigate and adjudicate, must be allowed to act in Jammu and Kashmir.
According to conservative estimatesmore than 8000 people have been subject to enforced disappearances in Jammu and Kashmir since 1989. These cases vary from disappearances of civilians by armed forces personnel, by militants and cases where militants themselves have been disappeared by the armed forces. Numerous cases have been filed before the courts, including the High Court, and the State Human Rights Commission (SHRC). The state institutions have failed to provide justice to the disappeared. On the contrary, through delay, denial and outright lies, the State negates any hope for justice. For example, in a majority of cases, the State responds by stating that the persons alleged to be disappeared have in fact crossed over into Pakistan to receive arms training as militants. Bereft of any sources or details, this general response is an attempt to evade the truth on disappearances. In fact, even the government’s have themselves publicly accepted the phenomenon of disappearance in the past (though they choose to mask this admission by references to the “missing”)but refuse to do so in any context that could lead to justice and the return of the disappeared. Meanwhile, thousands of mothers, half-widows and half-orphans continue to suffer including, in the case of children, by discontinuing their education and having to work to support their families.
Connected to the issue of enforced disappearances is the phenomenon of unmarked and mass graves (7000+ documented cases in five districts) wherein unidentified bodies are buried in unmarked graves. These bodies bear bullet wounds and/or other forms of violence.APDP began work on this important issue and released reports in 2008 and 2009 that detailed the phenomenon in certain specific regions of Kashmir and found prima facie evidencethat some of these unidentified bodies belonged to those disappeared civilians (of 53 exhumations of bodies conducted by the government, 49 were found to be civilians and 1 that of a local militant). Subsequently, in 2011, following its own police investigation, the SHRC also confirmed the presence of unmarked graves in three districts of North Kashmir (the SHRC is presently considering further complaints by APDP of unmarked graves in Poonch and Rajouri districts of Jammu). The SHRC decisionis a formal and quasi-judicial affirmation of the presence of unmarked graves. The recommendations, including for DNA and forensic investigations, would help to identify the bodies and assist in answering the crucial question posed by APDP and its members: where are the disappeared? But despite the recommendations of the SHRC, the government refused to carry out any investigations and in fact responded by stating that “all those killed were combatants” (in reference to the bodies in the unmarked graves).The government even disregarded an offer by the European Parliament in 2008 to provide financial assistance for the investigation of unmarked graves. This reluctance to allow international intervention was mirrored last year when India refused to accede to the request of the UN High Commissioner for Human Rights for a UN fact-finding mission to both parts of Jammu and Kashmir.
Despite a consistent campaign in Jammu and Kashmir against enforced disappearances for 27years, no effective measures have been taken. No Commission of Inquiry as demanded was set up unlike other countries such as Sri Lanka and Nepal. Further, India has signed but not ratified the Convention. The Indian State continues to deny the phenomenon of disappearances and unmarked graves. For both, in addition to making contradictory statements, the government chooses to respond by blaming Pakistan i.e. that the disappeared have crossed the border into Pakistan and that the unidentified bodies in the unmarked graves are mostly those of Pakistani militants.
The phenomenon of enforced disappearances is neither “local” nor a mere question of “law and order”. The phenomenon is widespread, systematic and systemic and is a crime against humanity and war crime. Its occurrence is a violation of international law and the Indian State must be held legallyresponsible for the same. The international dimension of the issue is apparent as India repeatedly alleges the connection between Pakistan and the disappeared and those in unmarked graves. There is clearly a legal dispute between India and Pakistan and the solution must come from the available international judicial and investigative institutions. On one hand India blames Pakistan and foreign militants, and yet it refuses to accept the application of international humanitarian law. APDP believes that mere rhetoric is unacceptable and the parties to the dispute must take the issues of disappearances and unmarked graves before the international institutions. Further, Pakistan’s silence over the accusation of the Indian state needs public clarification.
In addition to the intervention of the ICJ, APDP also demandsand appeals international community to urge government of India to allow access of UN Human Rights Council (UNHRC) Special Procedure on enforced disappearances, a constitution of a UNHRC Special Procedure exclusively for Jammu and Kashmir, and a fact-finding or commission of inquiry by the Office of the UN High Commissioner for Human Rights (as in the cases of Sri Lanka and Myanmar where despite local government opposition the inquiries were instituted). These international interventions of “investigation” must be allowed to function pending a judicial determination by the ICJ on the role of the Indian State in Jammu and Kashmir particularly on violations of international law through the phenomenon of enforced disappearances.