What prevents India from ratifying Convention against Torture (CAT)
Advocate Nasir Qadri
Rizwan Asad Pandit, a 28-year-old school principal, was last year detained under Public Safety Act (PSA) — a detention without trial for having affiliation with socio-religious-organization Jama’at-e-Islami (JeI) in Jammu and Kashmir, claims family1. His detention was rendered illegal by the state High Court and directed his immediate release.
Rizwan’s Brother, Zulkarnain said that the state authorities instead of releasing his brother, booked him under FIR No 146/2018 in police station Awantipora in district Pulwama in southern Kashmir under alleged offences 7/27 Arms Act, 18,20,38 Unlawful Act.
The family of Rizwan approached the court and obtained bail order from the local trial court but despite court order he was kept under police custody illegally for next 20 days.Barely, after two and half months, Rizwan was picked up on March 17, 2019 (Sunday) night from his residence for questioning in a case.
The local police in Awantipora, Zulkarnain said, handed him over to India’s federal investigating agency — NIA — which operates from Kashmir police’s counter-insurgent Cargo police station Srinagar, where he died during the intervening night of Monday and Tuesday.
Although police have ordered for magisterial inquiry under section 176 of criminal procedure code, the same is feared to meet the fate of 7,081 custodial killings of Kashmir in which no police or army officer was prosecuted.
The preliminary autopsy report in the death has revealed that “Rizwan died on Monday evening, a day after he was picked up on February 17, and the family was informed on Tuesday morning about the death.” The report prima facie shows “excessive bleeding caused by deep wounds on his body” as “excessive bleeding can lead to fatal shock.”
As per the autopsy report submitted by Government Medical College, Srinagar, the “external wounds have been suspected to be caused by some sharp object.
In past 30 years of conflict, Kashmir has witnessed plethora of custodial deaths due to torture. It was confirmed through WikiLeaks that torture is rampant in the state of Jammu Kashmir in India and is commonly used against civilians.
The various forms of torture enumerated in the WikiLeaks include rollers, electric shocks, sexual abuse, beating, suspension from ceiling, crushing of muscles and other forms of physical assaults.
The US embassy cables leaked are based on information gathered by the International Committee of Red Cross through interviews of 1296 detainees.
Of these 65% reported ill treatment, 52.54% complained about being subjected to torture, 38.42% had being suspended from ceiling, 23.3% subjected to sexual assault and 22.68% has sufferedfrom crushing of muscles during torture.
All these interviews were conducted in different jails. Detention centers other than jails did not remain open to the delegations of Red Cross.
There are hundreds of other methods and forms of torture in Kashmir which have been and are consistently used.
There are many instances of Rhabdomyolysis (a disease caused by torture) in Kashmir. Occurrences of the disease in Kashmir even surpass the numbersthat were infested by it during Second World War.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Article 5 UDHR &Article 7 ICCPR). Moreover, there is a Convention against Torture (CAT) which prohibits any form of physical or mental suffering to a person under custody.
India has stayed away from being party to such convention because of the high rate of torture cases in Kashmir and some parts of North India. The International Commission of Jurists and Project 39 A from the National Law University, Delhi, conducted the conference “The Senior Supreme Court advocate and human rights activist Colin Gonsalves while addressing two days conference On Strengthening Legal Protection Against Torture inIndia” on October 26 and 27, 2018, took a very strong view of excesses by police and paramilitary forces across the country –especially in vulnerable areas such as Kashmir or Chhattisgarh, where torture is rampantly used by the state as a weapon against dissent.
American Anthropologist who Kashmir visited Kashmir Valley in 2016 said, “torture is practiced as a means of extracting information or confession or for punishing person who are believed to be supporter of pro freedom movement. Methods used are brutal which physically and psychologically impair the victim’s health. The concept of modern policing is still a hallucination in Kashmir, where police are expected to function as a tool for social control rather to serve the society. The increasing incident of torture and death in custody has assumed such alarming proposition that it undermines the rule of law and the administration of criminal justice system.”
In 2011, for example, the State Human Rights Commission (SHRC) of Jammu Kashmir found 2730bodies dumped in unmarked graves in 38 sites in North Kashmir.
Among them, 574 bodies were identified as those of native Kashmiris.
Civilians suspected of having information about militants, many of them innocents, are routinely detained, tortured and killed in custody, besides militants.
In 1995 Amnesty International documented 706 of custodial killings in the period 1990–1994, nearly all after gruesome torture.
In its response to Amnesty international, the Government of India said that 519 out of 706 cases in an evasive manner, dismissing half of them as “Encounter killings” without supporting evidence despite eye-witness reports to the contrary.
The Government indicated that there was prima facie evidence of human rights violation in 85 other cases which were said to be under investigation, however, no one has been brought to justice till date.
On 26 April 1993, the Kashmir Times Newspaper carried a report of police records listing 132 persons to have been killed in custody in the preceding 33 days alone.
The International Commission of Jurists a non-governmental organization (NGO) defending human rights and the rule of law world wide criticized India’sfailure to tackle issues of torture and unaccountability of armed forces.
It asked India to adopt the reforms suggested by the convention.
Out of 80 countries which participated in the second periodical review of human rights record, 22 states urged India to immediately ratify the torture convention.
According to the Report of the Working Group on Human Rights in India, torture and ill-treatment are widespread in India. The report has also called for immediate intervention by the government against torture.
India is among the only nine countries worldwide which are yet to ratify the United Nations’ Convention against Torture (CAT).
This fact has been taken strong note by Supreme Court of India in May 2017 when it asked the Union of India: “What stops them making a good faith commitment about bringing domestic legislation in the matter?”
“We do understand that the legislative process can take time, but tell us why you (Centre) can’t make a ‘good faith commitment’ on the law before us,” a bench headed by Chief Justice J S Khehar
“This is an extremely important issue in the national interest and moreover, there is no conflict,” the bench, also comprising Justices D Y Chandrachud and S K Kaul, said.
These observational remarks were made when Indian National Congress leader and India’s ex-law Minister Ashwani Kumar pointed out that India was among the only nine nations left in the world which have not yet ratified the treaty despite signing it.
India Continues to Resist Ratifying CAT and other IHL Treaties
India cannot afford to be part of any such treaty which will make it accountable for “war crimes” in Kashmir. India is engaged in every kind of war crimes denounced by international humanitarian law.
Indian forces employ inhumane tactics on an everyday basis. The narrative of “violation of human rights” in Kashmir disguises what are essentially warcrimes in an asymmetric war between 700,000 Indian forces, and 10 million unarmed people, among whom a few hundred have taken up arms.
The Geneva Convention, commonly known as war laws, provides a framework of conduct for international states during war. India remains a signatory to the above laws, yet its forces have committed mass rape, killed civilians and destroyed the bodies of armed fighters in Kashmir.
Geneva Conventions which proscribe specific rules for the treatment of detainee during armed conflicts, establish the primary legal duties by India towards battle field detainees.
The India’s apprehension could be that if it accedes to these treaties, it would be under obligation to extend their protections to those who are involved in armed conflict with the Indian state and that would inturn give these insurgents political legitimacy.
Another major concern could be additional protocol’scategorization of self-determination movements as international armed conflicts as India was not in favor of accepting the category of non-international armed conflict itself.
But the position no longer remains valid as India hasbecome a party to other international treaties which govern non-international armed conflict situations.
An example of this is the Convention on Certain Conventional Weapons of 1980.
Torture is clearly regarded as an affront to human dignity and thus proscribed by the international human rights law. Reflecting the seriousness of this, system of checks and in situ visits undertaken by theinternational and regional rights bodies monitor situation in, for example, various detention units.
There are indications that the prohibition of torture, whether it is committed on wide spread and systematic basis, a crime against humanity or committed against a single victim constitute a norm of Jus Cogens (overriding principle of international law)
Though India has not ratified the CAT but it cannot usher the principle of Jus Cogens. Furthermore, India is party to two major conventions, i.e. UDHR and ICCPR which prohibit torture.
The major distinguishing feature of the rule of jus Cogens is its indelibility. It is a norm of customary law which cannot be set aside by the treaty or acquiescence but only by the formation of subsequent rule or another norm of jus Cogens of contrary effect.
This article was originally published by Oracle in 2019.