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| Long wait for justice |
Top rights organization Amnesty International’s recently-released report, even as attacking Government of India for failing to take cognizance of security forces’ alleged attacks on civilians in Jammu & Kashmir (J&K), has regretted that the Indian army has “dismissed" 96 per cent of the allegations of human rights violations brought against its personnel since 1993.
Making an analysis of the data with the Indian Army’s Human Rights Cell, the report states, “The army had received 1,532 allegations of human rights violations, 995 from Jammu and Kashmir, 485 from North-eastern states, and 52 complaints from other states.” Of these, it adds, “1,508 were investigated, and 24 investigations remained pending as of 2011.”
The report, which has already created a flutter, has called for an end to the use of the Armed Forces Special Powers Act (AFSPA) in J&K detailing 58 case studies of alleged excesses by armed forces in the state. Reacting to it, Union home minister Rajnath Singh has ruled out revocation of the AFSPA, saying the situation was not conductive for it.
“Out of a total of 995 complaints of human rights violations against the army in J&K, 986 have been investigated by the army to date, while 9 investigations currently remain pending”, the Amnesty report states, underlining, “The army says it found through internal enquiries that 961 of these allegations were false/baseless.”
While the report quotes the Indian Army data in the report to say that in 25 cases allegations were found to be true and 129 army personnel were punished, it regrets, when Amnesty sought details of how investigations and trials were conducted in nine cases it identified, “no replies were received.”
“Multiple applications for information under the Right to Information Act sent in 2013 to the Ministry of Defence and Ministry of Home Affairs regarding investigations and trials conducted by the military and security forces since 1990 in relation to Jammu and Kashmir also received no reply”, the Amnesty has said.
Pointing out that this runs contrary to the “growing acceptance internationally that military courts should not have jurisdiction to try security forces for human rights violations”, Amnesty insists, "Instead, the jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel, such as desertion or insubordination.”
To prove its point, Amnesty quotes a UN document, which states, “The jurisdiction of military tribunals must be restricted solely to specifically military offences committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts…”
Alleging that “the military justice system in India has been a key instrument in shielding alleged perpetrators of human rights violations, particularly those accused of custodial torture and extrajudicial executions, from prosecution and accountability”, Amnesty insists, they “suffer from particular structural flaws causing them to fall short of international fair trial standards, and rendering them unsuitable for prosecuting human rights violations.”
“The dominant role of the commanding officer of the unit, corps or department of the accused in their investigation and trial raises serious concerns about the independence of those appointed to dispense justice”, Amnesty points out, adding, “Each member of the court is appointed by the convening officer, and is their subordinate in rank.”
Amnesty quotes UC Jha, a former Wing Commander in the Indian Air Force, as saying, “[A convening authority] is not a lawyer and generally has no formal legal training. His power and discretion to make disciplinary decisions regarding his subordinates stem from his authority as a leader.This often clashes with another compelling military interest, which is maintaining a fair and impartial system of military justice.”
Pointing out that the current military justice system lacks of “transparency about the status and outcomes of military trials”, Amnesty quotes Tariq Ahmad Sheikh, killed by personnel of the Border Security Force (BSF) in 2000. The father and wife of Sheikh were summoned to testify before a General Security Force Court (GSFC) three times in 2011. But till mid-June 2015, “the family remains unaware of the final findings and any action taken against the alleged perpetrators.”
“Multiple applications for information under the Right to Information Act sent in 2013 to the Ministry of Defence and Ministry of Home Affairs regarding investigations and trials conducted by the military and security forces since 1990 in relation to Jammu and Kashmir also received no reply”, the Amnesty has said.
Pointing out that this runs contrary to the “growing acceptance internationally that military courts should not have jurisdiction to try security forces for human rights violations”, Amnesty insists, "Instead, the jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel, such as desertion or insubordination.”
To prove its point, Amnesty quotes a UN document, which states, “The jurisdiction of military tribunals must be restricted solely to specifically military offences committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts…”
Alleging that “the military justice system in India has been a key instrument in shielding alleged perpetrators of human rights violations, particularly those accused of custodial torture and extrajudicial executions, from prosecution and accountability”, Amnesty insists, they “suffer from particular structural flaws causing them to fall short of international fair trial standards, and rendering them unsuitable for prosecuting human rights violations.”
“The dominant role of the commanding officer of the unit, corps or department of the accused in their investigation and trial raises serious concerns about the independence of those appointed to dispense justice”, Amnesty points out, adding, “Each member of the court is appointed by the convening officer, and is their subordinate in rank.”
Amnesty quotes UC Jha, a former Wing Commander in the Indian Air Force, as saying, “[A convening authority] is not a lawyer and generally has no formal legal training. His power and discretion to make disciplinary decisions regarding his subordinates stem from his authority as a leader.This often clashes with another compelling military interest, which is maintaining a fair and impartial system of military justice.”
Pointing out that the current military justice system lacks of “transparency about the status and outcomes of military trials”, Amnesty quotes Tariq Ahmad Sheikh, killed by personnel of the Border Security Force (BSF) in 2000. The father and wife of Sheikh were summoned to testify before a General Security Force Court (GSFC) three times in 2011. But till mid-June 2015, “the family remains unaware of the final findings and any action taken against the alleged perpetrators.”
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