International human rights law prohibits the arbitrary deprivation of life under any circumstances. The government of India is a signatory to the International Covenant on Civil and Political Rights (ICCPR). Article 6 of the ICCPR expressly prohibits derogation from the right to life. Thus, even during time of emergency, "[n]o one shall be arbitrarily deprived of his life.
The International Covenant on Civil and Political Rights (ICCPR) also prohibits torture and other forms of cruel, inhuman and degrading treatment. Articles 4 and 7 of the ICCPR explicitly ban torture, even in times of national emergency or when the security of the state is threatened.
The evidence gathered by Human Rights Watch/Asia indicates that the Indian army, Border Security Force, Special Task Force, Central Reserve Police Force, and state-sponsored paramilitary "renegade" groups- the principal government forces operating in Jammu and Kashmir have systematically violated these fundamental norms of international human rights law. Under international law, India's state-sponsored militias are state agents and therefore must abide by international human rights and humanitarian law. The government of India is ultimately responsible for their actions.
In addition to internationally recognized human rights, Human Rights Watch/Asia believes that both the government of India and armed groups fighting against it in Kashmir are bound in this situation by international humanitarian law (the law of armed conflict) applicable in non-international (internal) armed conflict. The applicable law is found in Article 3 common to the four Geneva Conventions of August 12, 1949 ("Common Article 3"); additional authoritative standards are found in Protocol 11 (1977) Additional to the Geneva Conventions of 1949 ("Protocol II"). Common Article 3 and Protocol II each provide international law and standards governing the conduct of parties in an internal armed conflict, including government forces and insurgents. India has ratified the four Geneva Conventions of 1949, and is thus obliged to uphold Common Article 3.
Human Rights Watch/Asia believes that, given the widespread and frequent fighting throughout Kashmir, recourse by the government to its regular armed forces, the organization of insurgents into armed forces with military commanders responsible for the actions of those forces and capable of adhering to laws of war obligations, the military nature of operations conducted on both sides, and the size of the insurgent forces and of the government's military forces, Common Article 3 is applicable to the conflict in Kashmir.
Thus, each party is absolutely bound to apply the following provisions, irrespective of the behavior of other parties:
These principles apply to all parties to the conflict, both government and guerrillas. The obligation to comply 31 Thus, the government with Common Article 3 is absolute and independent of the obligation of the other parties. of India, like other governments, is obliged to abide by these provisions and is responsible for violations committed by and attributable to its armed forces and state-sponsored paramilitary forces under its command or protection. " It cannot excuse itself from deploying with Common Article 3 on the grounds that the militants are violating Common Article 3, and vice versa. However, Common Article 3 in no way precludes the government of India from punishing persons for crimes under its domestic laws. Indeed, Human Rights Watch/Asia believes that it is the Indian government s duty to do so. Thus, Kashmiri militants may be tried for murder, kidnaping or other crimes, so long as they are afforded the rights of due process.
Persons protected by Common Article 3 of the Geneva Conventions include all noncombatants, even if they have provided food, shelter or other partisan support to one side or the other, and members of the armed forces of either side who are in custody, are wounded or are otherwise hors de combat. If under these circumstances, such persons are summarily executed or die as a result of torture, their deaths are tantamount to murder.
Torture, hostage-taking, and rape have all been prominent abuses in the Kashmir conflict, and it is evident that Common Article 3 forbids each of them. " Rape also violates the ICCPR and Common Article 3 prohibitions on torture.
In addition to Common Article 3, Human Rights Watch/Asia also finds that the Code of Medical Neutrality in Armed Conflict applies to the Kashmir conflict. This code provides standards for the protection of medical workers and their humanitarian work during armed conflict.