TORTURE: ASIAN AND GLOBAL PERSPECTIVES | APRIL 2012
VOLUME 01 NUMBER 01


by SHEIKH SHOWKAT HUSSAIN

On March 29, 1976 Americo Pena and three other police officials kidnapped Joelito, a 17-year-old son of Paraguayan social worker Dr. Filartiga from his home. They took him to a police station where he was tortured for information concerning his father’s activities. His father was suspected to be supporter of Organization Politico Miltar (OPM) whose members, after infiltrating into the country from Argentina, were suspected to be involved in confrontation with Paraguayan forces.

Pena and the three other policemen beat and whipped the youth severely. They also resorted to the use of high voltage electric shocks administered to Jaelito through his fingertips and through a wire inserted in his penis. The electric shocks were ultimately increased to such a frequency and intensity that Joelito died of cardiac arrest.

In order to cover unexpected death of Joelito,

Pena took body of the victim to his own house. He placed the body on the bed of his seventeen-year-old daughter. His daughter’s husband was prepared to report the murder of Joelito, yet was made to confess to a crime he did not commit, and claim that the death was caused by him on provocation because the deceased had been seen in the bed of his wife. Pena and other police men associated with custodial killing reasoned that the son- in-law would escape severe sentence as the reason given (provocation) would constitute a valid defence for his act under criminal law. Failing to get redress from Paraguayan courts and receiving threats from Pena, Filartiga and his family fled and sought asylum in United States of America.

In July 1978, Pena also came to US as a tourist and was subsequently detained for overstaying. Dr Filartiga filed a suit under Alien Tort Statute, against Pena. Pena pleaded that the proper forum for such a hearing was the Paraguayan court, a plea that was accepted. After failing to secure a stay against the deportation of Pena, Filartiga decided to challenge the decision of the lower court in the Second Circuit Court of Appeals. Argument in Filartiga v Pena-Irala1 took place before Chief Justice Feinberg and Judges Kaufman and Kearse on 30th June 1980. The Judges unanimously held that officially sanctioned torture is a violation of international law. They therefore found that Alien Tort Statute of US provided basis for exercise of federal jurisdiction in a wrongful death action brought by Paragauyaon against the Paragauyaon defendant. In arriving at this decision, the court relied on the ground that prohibition against torture had become part of customary international law. This is reflected in the Universal Declaration of Human Rights (UDHR). For the purpose of civil liability, the court ruled that the person involved in torture has become enemy of mankind, much as pirates and slave traders are common enemies of humanity. In accordance with the findings of Court of Appeal, the District Court proceeded with the case and decided it on 12 Jan 1984. It announced the judgment against Pena and awarded damages worth one million US dollars to Filartiga. This was in spite of the fact that US was not a party to The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.

“International law has been sensitive to the problems of children ever since Hague Conventions were adopted towards the end of 19th century and in the beginning of twentieth century.”

case because facts of the case resemble the situation hundreds of thousands of children2 in Jammu and Kashmir find themselves in. They face same type of detention, torture and custodial killing as were experienced by Joelito. Police and security agencies often subject children to detention in order to extract information about their kith and kin involved or perceived to be involved in militancy. Paragauyaon police tried to cover up the act by concocting a story and implicating an innocent man. Security agencies in Kashmir are, on the other hand, not in need of fabricated stories because they are protected against any and all legal action by Section 6 of the 1997 Disturbed Areas Act and the 1958 Armed Forces (Special Powers) Act. These legislations authorize personal belonging to police and other security agencies to kill a person or destroy his property on mere suspicion of their involvement in breach of public order. Law provides blanket immunity; this breeds impunity and irresponsible use of authority and firearms. The state furthermore seldom gives permission for prosecution. According to a report published in ‘Mail Today’, “about three hundred cases against the army and other armed forces persons have been waiting the home ministries go ahead.” The Central Government has not granted approval for the investigation of even a single case even with the rare encouragement of the police. The Armed Forces (Special Powers) Act makes it mandatory for state-level administration to seek permission from the centre to prosecute armed personal found responsible for committing crimes during “counter insurgency operations”3.

I have narrated detailed account of this International law has been sensitive to the problems of children ever since Hague Conventions were adopted towards the end of 19th century and in the beginning of twentieth century. The protections guaranteed children during hostilities are now incorporated in Geneva Convention IV under Humanitarian Law. The Convention makes it obligatory for the parties to provide safety zones for children during hostilities4. The Convention also makes it compulsory for armed forces to provide maintenance for children5. Occupying powers are required to ensure the safety and protection of children6. Protocol I to the Geneva Convention expressly provides protection to children from any sort of assault during warfare. The Protocol even entitles children to special care in spite of their involvement in hostilities7. Yet India is not a party to these Protocols. So far as the Geneva Conventions are concerned, the Indian Supreme Court does not acknowledge such rights. This is despite the Geneva Conventions Act of 1960.8

Special rules relating to administration of Juvenile Justice were formulated in “UN Conference Relating to Juvenile Justice” in Beijing in 1985. Rule 17 (3) protects children from corporeal punishment. The Convention on Rights of Child (1989) provides protection to children from all forms of violence, injury, abuse, neglect or negligent treatment9. Article 37of the same Convention states that party shall ensure that no child shall be subjected to torture or any other form of cruel, inhuman and degrading treatment or punishment. Besides these specific instruments relating to the protection of children, other human rights laws protect all human beings from cruel inhuman and degrading treatment. Convention against Torture and Other Forms of Cruel, Inhuman and Degrading treatment or Punishment clearly states that no exceptional circumstances whatsoever whether a state of war or threat of war internal political instability or any other public emergency may be invoked as justification for torture10. The Convention makes it clear that an order from a superior officer or a public authority may also not be invoked as a justification for torture11. International Covenant on Civil and Political Rights declares that no one shall be subjected to torture, cruel inhuman or 12 degrading treatment or punishment . Article 4 of the same convention makes Article 7 a non-derogable right even in case of public emergencies. The Geneva Convention, which applies also to local armed conflicts, also outlaws torture, rape and hostage-taking13

Torture refers to any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession. Punishing a person for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity also constitutes torture14 .

The Indian Constitution does not have any specific provision which explicitly prohibits torture. The Supreme Court of India however, made it clear in its case law that protection against torture is inherent in right to life and personal liberty. In DK Basu v State of West Bengal15 Supreme Court made it clear that any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution: whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness. Every man would become law unto himself; such would lead to a state of anarchy. No civilized nation can permit this brutish existence to become the reality of the multitudes under their care. Does a citizen shed his fundamental right to life the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance upon his arrest? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic ‘No’ ”. In Neelabati Bahera v State of Orissa16 , the Supreme Court emphasized that the fundamental rights of prisoners and detainees according to Article 21 must in no way be abrogated.The court relied upon

Article 9 (5) of The International Covenants on Civil and Political Rights 1966 and granted a compensation of rupees one laks fifty thousand to the mother of a boy who had perished from severe torture while in police custody. The judgment was delivered despite the Indian state’s reservations to the provision of compensation under The International Covenant on Civil and Political Rights 1996. The 44Th amendment of the Indian Constitution has established that the presidential privilege to suspend the right to move the court for enforcement of fundamental rights during emergency cannot be exercised in respect to the fundamental rights secured by Article 20 and 21. It is clear that operation of Article 20 and 21 cannot and should not be suspended even in “emergencies” under Article 359. Protection against torture should instead be an integral part of the right to life and liberty (Article 21) is thus ensured even during “emergencies” such as war, external aggression or armed rebellion.

“Indian Constitution does not have any specific provision which explicitly provides protection against torture.”

While these Supreme Court judgments may be beneficial for children of mainland India, they ring hollow for minors in Kashmir. Despite these laws, children in Kashmir continue to be used as human shields during combat operations, a practice continues unabated17. On January 22, 2008 a four-year- child Qasim Bin Asiq was used as a shield by troops during encounter with militants18. Children are also used in same callous manner during mine clearing activities. Children continue to be detained for indefinite periods simply because authorities anticipate that they are likely to get involved in insurgency. Teenagers are forced to report to camps of security agencies at regular intervals. Families of children suspected or proven to be involved in militancy are often harassed. If the minor in question absconds, family members become targets of security agencies and are publicly shamed. During search operations, it is mostly boys below the age of eighteen who have to face repeated identification parades. When they leave the conflict-ridden state and move into other states they are often looked upon with suspicion and subjected to humiliating treatment. Examples of such abusive treatment are witnessed through electronic media19. It is children mostly who become targets of faked “encounters” between their parents and the armed forces. If the parents of a child are killed at the hands of security agencies they are not entitled to any relief or rehabilitation packages. If other family members are detained, the minors are left to fend for themselves and must bear the costs of hiring lawyers to secure the release of their relatives. In this traumatic process, many are compelled to abandon their studies.

Rape is frequently used as a weapon in order to force an absconding militant to surrender. Teenaged girls are often used in scandalous operations to apprehend militants. Even high-ranking officials in security agencies are found to have molested teenaged girls. One such officer, a former Director Inspector General of BSF called such acts part and parcel of counterinsurgency operations to trap the militants20. In 2009 a Grade 10 female student of Shopian accompanying her sister-

in-law while returning from her orchard was allegedly molested and killed by members of security agencies leading to huge agitation in Kashmir valley. Children growing up in the shadow of fear and restricted movement often manifest abnormal psychological behaviour. Children of dead, detained and missing family members also become vulnerable to sexual and economic exploitation. The minors are deprived of property and other avenues of development. Many others lose limbs to shell or mine fragments. On many occasions, children are specifically targeted21. During an uprising in 2010, 120 boys, mostly below the age of eighteen, were killed by various security agencies of the state. In the incident’s aftermath, thousands mostly school going boys were rounded up under Public Safety Act and subjected to various forms of torture. Even during public and legally organised marriage ceremonies, children are shot dead. This is despite the fact that information relating to celebrations had already been conveyed to the paramilitary forces ‘regulating’ the area22. School-going children, especially girls, are physically harassed while on their way to school. One such incident occurred in Awanti-Pora and is still under investigation by the state’s human rights commission. Yet people do not have faith in such investigations as the Commission according to its former chairman Justice AQ Parray is cowardly, ineffective and utterly unequipped to address mysterious disappearances and killings23. Even so-called relief and rehabilitation packages created by Indian security apparatus have ironically proved lethal to the children of Kashmir. One such gesture of “goodwill” ended in the drowning of 22 school children and their teachers at the hands of security personnel24. An enquiry commission established by the state has confirmed the negligence and mischief of the navy personnel in this incident.25

Massive emigration has been the frightened and desperate response of many children in Kashmir. However, their lives do not necessarily improve with the geographical distance put between themselves and their conflict-ridden homes. They experience discrimination elsewhere and are denied the relief and rehabilitation packages given to the children of other communities. They are harassed and humiliated, and lack social and familial networks that can protect them from such violence and discrimination. Homeless and lost in cities and towns, the displaced children become vulnerable to further physical and psychological trauma. Many are unable to cope with the cultural shock experienced when trying to survive in a new environment, and resort to drugs and other criminal activity.

The inaction of the Indian authorities to the plight of these orphaned and/or displaced children is contrary to international law, where states pledge to protect and provide for those under its care, especially the most vulnerable – children. Courts in Kashmir are preoccupied with noble but further removed environmental goals rather than the future generation for which they seek to preserve the environment. Numerous NGOs pretend to work for the good of children but deliver precious little besides employment (here synonymous with exploitation) for the children. The inquiries commissioned by the government often fail to provide remedy to victims. Children continue to suffer, and it appears the only way to rectify the situation is either to appoint a Special Rapporteur to monitor the plight of children in Kashmir (on behalf of UN Sub-Commission on Protection and Promotion of Human Rights or the newly created Human Rights Council) and make recommendations to and place diplomatic pressure on the government for future action.

The perception that the conflict in Kashmir is not an international armed conflict must not come in the way of appointment of such a tribunal. The tragedy in Rwanda that continues to assail the conscience of people around the globe is a precious lesson against such deliberate and unconscionable neglect. Increased publicity and public pressure may eventually pave way for the appointment of war crimes tribunal after the pattern of Bosnia and Rwanda to study the overall pattern of human rights abuse in Kashmir. This will be the first of many steps towards addressing the human rights violations and rehabilitating the shattered community in Kashmir.

1 Filartiga v Pena-Irala (1980) 630 F 2nd 896
2 Children Under UN Convention on Rights of the Child are those human beings who are below the age of 18 years (Article 1)
3 Mail Today, Justice in Kashmir at Delhi’s mercy, Nov 26, 2007
4 Article 14
5 Article 24
6 Article 50
7 Article 71 Protocol I
8 Rev. Mons. Sebastiao Francisco Zavier dos
Remedios Monteiro v The State of Goa. AIR 1970
SC 329
9 Article 19
10 Article 2 (2)
11 Article 2 (3)
12 Article 7
13 Common Article 3
14 Article 1 of The Convention Against Torture And Other Cruel, Inhuman or degrading Treatment or Punishment (19884)
15 AIR 1997 SC 610
16 AIR 1993 (2) SC 1960
17 The report about one such incident can be seen in
Greater Kashmir Jan 14,2007
18 Rising Kashmir, Jan 23, 2008
19 Ajj Tak telecast (A story relating to torture of a
Kashmiri boy by army personnel)
20 Times of India 11 June ,2006
21 Kashmir Times July 26,2006
22 Kashmir observer, The Tribune, the Excelsior 26 july,2006
23 Kashmir Times 10 Dec,2006
24 Kashmir Times Jammu and Greater Kashmir 31ist may,2006.
25 Greater Kashmir 10 Sep,2006

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Sheikh Showkat Hussain

Dr. Sheikh Showkat Hussain writes extensively on Kashmir in media and teaches human rights and international law at Kashmir University. Dr Hussain obtained his LLB, LLM and PhD degrees from Kashmir University and Aligarh Muslim University, Aligarh. Previously he taught at International Islamic University, Malaysia. Presently he is a professor at the Department of Law in Kashmir University, Srinagar where he is teaching international law & human rights. He is a columnist and author of four books on human and minority rights in Kashmir.