On March 29, 1976 Americo Pena and three other police officials kidnapped Joelito 17 year’s old son of Paraguayan social worker Dr. Filartiga from his home. They took him to a police station. He was tortured in order to force him to disclose information about 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 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 into the bed of his seventeen year old daughter. Husband of the daughter was prepared to confess the killing of Joelito. The reason for killing that he was made to divulge was that the death was caused by him on getting provoked because the diseased was seen by him in the bed of his wife. Pena and other police men associated with custodial killing perceived that their son in law will also be saved as the reason (provocation) would constitute a valid defense for his act under criminal law. Failing to get redressal from Paraguayan courts and receiving threats from Penna, Filartiga along with his family migrated and sought asylum in United States of America.
In July 1978 Penna also came to US as a tourist. He was detained for over staying in US. Dr Filartiga filed a suit under Alien Tort Statute, against Pena. Pena pleaded that proper forum for such a hearing was Paraguayan court. This plea was accepted. Flartiga after failing to secure a stay against deportation of Pena from US decided to challenge decision of the lower court in the Second Circuit Court of Appeals.
Argument in Filartiga v Pena-Irala took place before Chief Justice Feinberg and Judges Kaufman and Kearse on 30th June 1980. The Judge’s 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 to this decision the court relied on the ground that prohibition against torture has become part of customary international law, Which is reflected in the Universal Declaration of Human Rights (UNDHR). For the purpose of civil liability the court ruled that the person involved in torture has become enemy of mankind like a pirate and slave trader. In accordance with the findings of Court of Appeal the District Court proceeded with the case decided it on 12 Jan 1984. It announced the judgment against Pena and awarded damages worth one million US dollars to Filartiga. This was so inspite of the fact that US was not a party to The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.
I have narrated detailed account of this case because facts of the case resemble with the situation of hundreds and thousands of children of our state, Jammu and Kashmir. 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 get information about their kith and kin involved or perceived to be involved in militancy. Paragauyaon police tried to cover up their act of custodial killing by cooking and concocting a story. Security agencies in Kashmir are not in need of any fabricated story because they are protected against any sort of legal action relating to such incidents by virtue of section 6 of Disturbed Areas Act of 1997 and Armed Forces Special Power Act. These legislations after authorizing personal belonging to police and other security agencies to kill a person or blast his premises on the basis of suspicion of their involvement in breach of public order and immunize them from any suit or legal proceeding unless permitted by the state . The state seldom gives permission for prosecution. According to a report published in ‘Mail Today’ “about three hundred cases against army and other central forces persons have been waiting the home ministries go ahead.” The center has not granted approval even in a single case even after instigations regarding these cases were completed by the police. The Armed Forces Special Powers Act makes it mandatory for the sate administration to seek the centers permission for prosecuting central forces person found responsible for committing crimes during counter insurgency operations .
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 granted to child during hostilities are now incorporated in Geneva Convention IV relating to Humanitarian Law. The Convention makes it obligatory for the parties to provide safety zones for children during hostilities . The Convention also makes it compulsory for them to provide maintenance for children . Occupying power is required to ensure safety and protection of children . Protocol I to the Geneva Convention expressly provides protection to children from any sort of assault during warfare. The Protocol entitles children to special care inspite of their involvement in hostilities . India is not a party to the Protocols. So far as the Geneva Conventions are concerned India has ratified these conventions but Indian Supreme Court perceives that these do not confer any rights upon a person despite Geneva Conventions Act of 1960 .
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 treatment . Article 37 of 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 punishment. Besides these specific instruments relating to children general laws relating to human rights also protect Children along with other 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 torture . The Convention makes it clear that an order from a superior officer or a public authority may not be invoked as a justification for torture . International Covenant on Civil and Political Rights provides that no one shall be subjected to torture, cruel inhuman or degrading treatment or punishment . Article 4 of the same convention makes Article 7 a non derogable right even in case of public emergencies. The provisions of the Geneva Conventions which apply to non international armed conflicts also make torture, rape and hostage taking unlawful .
Torture means 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 torture .
Indian Constitution does not have any specific provision which explicitly provides protection against torture. The Supreme Court of India however, has made it clear in so many cases that protection against torture is inherent in right to life and personal liberty. In DK Basu v State of West Bengal 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 and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilized nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on 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 Orissa , the Supreme Court pointed out and emphasized that the prisoners and detainees are not denuded of their fundamental rights under Article 21.The court relied upon Article 9 (5) of The International Covenants on Civil and Political Rights 1996 and granted a compensation of rupees one laks fifty thousand to mother of a boy who had been killed as a result of torture in police custody. The judgment was delivered despite Indian reservation to the provision of compensation under The International Covenant on Civil and Political Rights 1996.44Th amendment of the Indian Constitution has laid down that presidential power to suspend the right to move the court for enforcement of fundamental rights during emergency can not be exercised in respect to the fundamental rights secured by Article 20 and 21. It is clear that operation of Article 20 and 21 can’t be suspended during operation of emergency under Article 359. Protection against torture being part and parcel of right to life and liberty (Article 21) is thus a right that can’t be taken away even during emergency on account of war, external aggression or armed rebellion.
It is obvious that adequate safeguards do exist for protection of children under law from any sort of degrading or inhuman treatment .Despite these laws children in Kashmir continue to be used as human shields during combat operations . This practice continues till date on January 22 a four year child Qasim Bin Asiq was used as a shield by troops during encounter with militants . They are also used in same 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 asked to report to camps of security agencies at regular intervals. Incase a boy is involved in militancy his family is often harassed. If he is absconding his family members become target of security agencies and get humiliated. During search operations it is mostly the boys below 18 years who have to face identification parades again and again. When they leave the conflict ridden state and move to other states they are often looked upon with suspicion and subjected to humiliating treatment. Examples of such a vulgar treatment were witnessed several times on TV channels.. It is children who mostly become targets of fake encounters. If parents of a child get killed at the hands of security agencies they are not entitled to any relief and rehabilitation package. In case their elders or family members get detained they have to maintain themselves, they have to pay the lawyers in order to secure release of their relatives and in this process most of the time they have to abandon their studies. Rape is used as a weapon of war in order to force an absconding militant to surrender. Recent sex scandal has made it obvious that teen aged girls are often used in scandalous operations to apprehend militants. Even high officials of security agencies get involved in molesting teen aged girls. One such officer former DIG of BSF terms such acts as part and parcel of counter insurgency operations to trap the militants . Children on account of restrained movements and fear often display abnormal psychological behaviour. Children of dead detained and missing family members also become vulnerable to exploitation. They also suffer from deprivation of properties and other avenues of development. So many children have lost their limbs because they get splinters of a shell or a mine. On many occasions they are deliberately targeted. Killing of four boys while playing cricket is an instance of such deliberate killing. On occasions children were shot dead during marriage ceremonies inspite of the fact that information relating to celebrations had been conveyed to the paramilitary forces within the area . School going children especially the girls are harassed while on their way to schools. One such incident occurred in Awanti-Pora and is under investigation by the state human rights commission. People do not have much hope from such investigations as the Commission according to its former chairman Justice AQ Parray is tooth less as well as tail less and those who approach to it for redressal either disappear mysteriously or get killed . Even so called relief and rehabilitation packages of Indian security apparatus have proved to be lethal for children of Kashmir. On such “goodwill” gesture led to drowning of twenty two school children and their teachers at the hands of security personnel . An enquiry commission established by the state has confirmed the negligence and mischief of the navy personnel in this incident. There are so many children in Kashmir who had to migrate because of harassment within their native places. While migrant children of a particular community were showered upon a lot of relief and rehabilitation packages children belonging to other communities were not perceived to be worthy of any attention other than harassment and humiliation. Once they move to cities and towns they become vulnerable to both physical as well as psychological trauma. Restrained movements impede their physical growth. New habitat exposes them to a cultural shock. Sometimes they are unable to adjust with their new surroundings and end up with addiction to drugs. This state of affairs is quite contrary to international law. Courts in Kashmir seem to be too much worried about environment rather than the future generation for which it is sought to be preserved. So many NGO’s which pretend to work for children do not deliver much besides providing avenues of employment and exploitation for those who manage and run them. The probes ordered by the government often fail to provide any sort of redressal to the victims. Children continue to suffer, the only way to rectify the situation is either to appoint a special rapporateur to monitor and look over the plight of children in Kashmir on the part of UN Sub Commission on Protection and Promotion of Human Rights or the newly created Human Rights Council. Any sort of indifference in this direction may pave way for appointment of war crime tribunal on the pattern of Bosnia and Rwanda to look into overall abuses of human rights and humanitarian law. The perception that the conflict in Kashmir is not an international or non-international armed conflict will not come in the way of appointment of such a tribunal as in case of Rwanda it was appointed despite the fact that the conflict was between two tribes and no state was involved as such.
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 into the bed of his seventeen year old daughter. Husband of the daughter was prepared to confess the killing of Joelito. The reason for killing that he was made to divulge was that the death was caused by him on getting provoked because the diseased was seen by him in the bed of his wife. Pena and other police men associated with custodial killing perceived that their son in law will also be saved as the reason (provocation) would constitute a valid defense for his act under criminal law. Failing to get redressal from Paraguayan courts and receiving threats from Penna, Filartiga along with his family migrated and sought asylum in United States of America.
In July 1978 Penna also came to US as a tourist. He was detained for over staying in US. Dr Filartiga filed a suit under Alien Tort Statute, against Pena. Pena pleaded that proper forum for such a hearing was Paraguayan court. This plea was accepted. Flartiga after failing to secure a stay against deportation of Pena from US decided to challenge decision of the lower court in the Second Circuit Court of Appeals.
Argument in Filartiga v Pena-Irala took place before Chief Justice Feinberg and Judges Kaufman and Kearse on 30th June 1980. The Judge’s 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 to this decision the court relied on the ground that prohibition against torture has become part of customary international law, Which is reflected in the Universal Declaration of Human Rights (UNDHR). For the purpose of civil liability the court ruled that the person involved in torture has become enemy of mankind like a pirate and slave trader. In accordance with the findings of Court of Appeal the District Court proceeded with the case decided it on 12 Jan 1984. It announced the judgment against Pena and awarded damages worth one million US dollars to Filartiga. This was so inspite of the fact that US was not a party to The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.
I have narrated detailed account of this case because facts of the case resemble with the situation of hundreds and thousands of children of our state, Jammu and Kashmir. 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 get information about their kith and kin involved or perceived to be involved in militancy. Paragauyaon police tried to cover up their act of custodial killing by cooking and concocting a story. Security agencies in Kashmir are not in need of any fabricated story because they are protected against any sort of legal action relating to such incidents by virtue of section 6 of Disturbed Areas Act of 1997 and Armed Forces Special Power Act. These legislations after authorizing personal belonging to police and other security agencies to kill a person or blast his premises on the basis of suspicion of their involvement in breach of public order and immunize them from any suit or legal proceeding unless permitted by the state . The state seldom gives permission for prosecution. According to a report published in ‘Mail Today’ “about three hundred cases against army and other central forces persons have been waiting the home ministries go ahead.” The center has not granted approval even in a single case even after instigations regarding these cases were completed by the police. The Armed Forces Special Powers Act makes it mandatory for the sate administration to seek the centers permission for prosecuting central forces person found responsible for committing crimes during counter insurgency operations .
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 granted to child during hostilities are now incorporated in Geneva Convention IV relating to Humanitarian Law. The Convention makes it obligatory for the parties to provide safety zones for children during hostilities . The Convention also makes it compulsory for them to provide maintenance for children . Occupying power is required to ensure safety and protection of children . Protocol I to the Geneva Convention expressly provides protection to children from any sort of assault during warfare. The Protocol entitles children to special care inspite of their involvement in hostilities . India is not a party to the Protocols. So far as the Geneva Conventions are concerned India has ratified these conventions but Indian Supreme Court perceives that these do not confer any rights upon a person despite Geneva Conventions Act of 1960 .
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 treatment . Article 37 of 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 punishment. Besides these specific instruments relating to children general laws relating to human rights also protect Children along with other 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 torture . The Convention makes it clear that an order from a superior officer or a public authority may not be invoked as a justification for torture . International Covenant on Civil and Political Rights provides that no one shall be subjected to torture, cruel inhuman or degrading treatment or punishment . Article 4 of the same convention makes Article 7 a non derogable right even in case of public emergencies. The provisions of the Geneva Conventions which apply to non international armed conflicts also make torture, rape and hostage taking unlawful .
Torture means 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 torture .
Indian Constitution does not have any specific provision which explicitly provides protection against torture. The Supreme Court of India however, has made it clear in so many cases that protection against torture is inherent in right to life and personal liberty. In DK Basu v State of West Bengal 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 and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilized nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on 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 Orissa , the Supreme Court pointed out and emphasized that the prisoners and detainees are not denuded of their fundamental rights under Article 21.The court relied upon Article 9 (5) of The International Covenants on Civil and Political Rights 1996 and granted a compensation of rupees one laks fifty thousand to mother of a boy who had been killed as a result of torture in police custody. The judgment was delivered despite Indian reservation to the provision of compensation under The International Covenant on Civil and Political Rights 1996.44Th amendment of the Indian Constitution has laid down that presidential power to suspend the right to move the court for enforcement of fundamental rights during emergency can not be exercised in respect to the fundamental rights secured by Article 20 and 21. It is clear that operation of Article 20 and 21 can’t be suspended during operation of emergency under Article 359. Protection against torture being part and parcel of right to life and liberty (Article 21) is thus a right that can’t be taken away even during emergency on account of war, external aggression or armed rebellion.
It is obvious that adequate safeguards do exist for protection of children under law from any sort of degrading or inhuman treatment .Despite these laws children in Kashmir continue to be used as human shields during combat operations . This practice continues till date on January 22 a four year child Qasim Bin Asiq was used as a shield by troops during encounter with militants . They are also used in same 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 asked to report to camps of security agencies at regular intervals. Incase a boy is involved in militancy his family is often harassed. If he is absconding his family members become target of security agencies and get humiliated. During search operations it is mostly the boys below 18 years who have to face identification parades again and again. When they leave the conflict ridden state and move to other states they are often looked upon with suspicion and subjected to humiliating treatment. Examples of such a vulgar treatment were witnessed several times on TV channels.. It is children who mostly become targets of fake encounters. If parents of a child get killed at the hands of security agencies they are not entitled to any relief and rehabilitation package. In case their elders or family members get detained they have to maintain themselves, they have to pay the lawyers in order to secure release of their relatives and in this process most of the time they have to abandon their studies. Rape is used as a weapon of war in order to force an absconding militant to surrender. Recent sex scandal has made it obvious that teen aged girls are often used in scandalous operations to apprehend militants. Even high officials of security agencies get involved in molesting teen aged girls. One such officer former DIG of BSF terms such acts as part and parcel of counter insurgency operations to trap the militants . Children on account of restrained movements and fear often display abnormal psychological behaviour. Children of dead detained and missing family members also become vulnerable to exploitation. They also suffer from deprivation of properties and other avenues of development. So many children have lost their limbs because they get splinters of a shell or a mine. On many occasions they are deliberately targeted. Killing of four boys while playing cricket is an instance of such deliberate killing. On occasions children were shot dead during marriage ceremonies inspite of the fact that information relating to celebrations had been conveyed to the paramilitary forces within the area . School going children especially the girls are harassed while on their way to schools. One such incident occurred in Awanti-Pora and is under investigation by the state human rights commission. People do not have much hope from such investigations as the Commission according to its former chairman Justice AQ Parray is tooth less as well as tail less and those who approach to it for redressal either disappear mysteriously or get killed . Even so called relief and rehabilitation packages of Indian security apparatus have proved to be lethal for children of Kashmir. On such “goodwill” gesture led to drowning of twenty two school children and their teachers at the hands of security personnel . An enquiry commission established by the state has confirmed the negligence and mischief of the navy personnel in this incident. There are so many children in Kashmir who had to migrate because of harassment within their native places. While migrant children of a particular community were showered upon a lot of relief and rehabilitation packages children belonging to other communities were not perceived to be worthy of any attention other than harassment and humiliation. Once they move to cities and towns they become vulnerable to both physical as well as psychological trauma. Restrained movements impede their physical growth. New habitat exposes them to a cultural shock. Sometimes they are unable to adjust with their new surroundings and end up with addiction to drugs. This state of affairs is quite contrary to international law. Courts in Kashmir seem to be too much worried about environment rather than the future generation for which it is sought to be preserved. So many NGO’s which pretend to work for children do not deliver much besides providing avenues of employment and exploitation for those who manage and run them. The probes ordered by the government often fail to provide any sort of redressal to the victims. Children continue to suffer, the only way to rectify the situation is either to appoint a special rapporateur to monitor and look over the plight of children in Kashmir on the part of UN Sub Commission on Protection and Promotion of Human Rights or the newly created Human Rights Council. Any sort of indifference in this direction may pave way for appointment of war crime tribunal on the pattern of Bosnia and Rwanda to look into overall abuses of human rights and humanitarian law. The perception that the conflict in Kashmir is not an international or non-international armed conflict will not come in the way of appointment of such a tribunal as in case of Rwanda it was appointed despite the fact that the conflict was between two tribes and no state was involved as such.
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