Human rights and the law in Indian-controlled Kashmir

SRINAGAR (Reuters) - Both the United Nations and the International Criminal Court consider the way civilians said they were used by the Indian army to search houses in south Kashmir to be illegal under international law, experts said.

Bilal Ahmad Naikoo, a civilian, stands by the grave of his brother Hilal, a separatist militant, and Mushtaq Ahmad Bhat, a civilian, who were both killed in a gun battle with Indian army in Pinglan village in south Kashmir's Pulwama district March 21, 2019. REUTERS/Stringer

However, the soldiers involved were unlikely to have committed crimes under Indian law, they said.

Many residents of Pinglan village in south Kashmir told Reuters they were used as shields for soldiers as they searched for militants during a crackdown in February.

The UN’s Geneva Convention states that “the presence of a protected person may not be used to render certain points or areas immune from military operations”.

The ICC’s Rome Statute, that covers armed conflict “not of an international character”, states that “utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” constitutes a war crime.

Human rights and legal experts said that taken as a whole, the army’s behavior in Pinglan was illegal under international law. The military denies the charge.

“These are extremely serious allegations,” said Aakar Patel, the head of human rights group Amnesty International in India, in response to Reuters’ findings in Pinglan.

“Actions which deliberately endanger the life of ordinary persons – for example, by using them as ‘human shields’ - can amount to cruel, inhuman and degrading treatment under international human rights law.”

But India denies that the Geneva Convention, designed for international conflicts, applies to its operations in Indian-controlled Kashmir, and it is one of the few major countries not party to the Rome Statute.

Experts in laws governing Indian military operations said that soldiers were allowed to use a range of powers – including lethal force – with impunity in Kashmir.

“If it is used for the public (good) at large then it can be justified,” said Ajit Kakkar, a military lawyer who formerly served as a judge advocate general, one of the top legal roles in the Indian armed forces, regarding the army’s use of human shields.

The laws, known as the Armed Forces Special Powers Act (AFSPA), have been the subject of furious debate in India because they also protect soldiers from arrest or any proceedings in a civilian court.

Kakkar said any soldiers at the Pinglan encounter would likely be protected from prosecution by AFSPA.

“This law in Indian context has been through judicial scrutiny and upheld by Supreme Court of India,” said Dinkar Adeeb, a lawyer who has also served as a judge advocate general.

India’s opposition Congress Party has pledged to rewrite the act if it wins power to protect the human rights of Kashmiris. The ruling Bharatiya Janata Party says the law is essential to maintaining order in the disputed territory.

“Sometimes army officers overuse it to get results, but it is very difficult to distinguish whether he has used the power as he is required to,” Kakkar said.

Lieutenant Colonel Mohit Vaishnava, an army spokesman, said AFSPA had checks built in to ensure no human rights abuses take place. “It only provides soldiers working in difficult circumstances certain operational legal safeguards,” he said.

Reporting by Alasdair Pal and Fayaz Bukhari; Editing by Martin Howell and Raju Gopalakrishnan