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United Nations Human Rights : The Manipur Experience
- Part 3 -

Babloo Loitongbam *

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(This write up is the speech delivered by Babloo Loitongbam at the 14th Arambam Somorendra Memorial Lecture organised by The Aramam Somorendra Trust held at Lamyanba Sanglen Palace Compound, Imphal East )

19. The Committee notes that the State party does not fully implement the right of ownership, collective or individual, of the members of tribal communities over the lands traditionally occupied by them in its practice concerning tribal peoples. It is also concerned that large scale projects such as the construction of several dams in Manipur and other north-eastern States on territories primarily inhabited by tribal communities, or of the Andaman Trunk Road, are carried out without seeking their prior informed consent. These projects result in the forced resettlement or endanger the traditional lifestyles of the communities concerned. (Art. 5 (d) (v) and 5 (e)).

The Committee urges the State party to fully respect and implement the right of ownership, collective or individual, of the members of tribal communities over the lands traditionally occupied by them in its practice concerning tribal peoples, in accordance with ILO Convention No. 107 on Indigenous and Tribal Populations (1957). The State party should seek the prior informed consent of communities affected by the construction of dams in the Northeast or similar projects on their traditional lands in any decision-making processes related to such projects, and provide adequate compensation and alternative land and housing to those communities.

Pursuant to Article 9, paragraph 1, of the Convention, and article 65 of the Committee's rules of procedure, as amended, the Committee requests that the State party inform it of its implementation of the recommendations contained in paragraphs 12, 15, 19 and 26 above, within one year of the adoption of the present conclusions.

The CERD Committee has also issued repeated communications to the Government of India on the Early-Warming Measures and Urgent Procedure of the Committee on Elimination of Racial Discrimination.2 But there is no response from the Government of India .

Committees on Elimination of Discrimination Against Women

Committee on the Elimination of All Forms of Discrimination Against Women recommended the review/repeal of the AFSPA in 2000, 20073 and 20144. Relevant abstract of the 2014 concluding observation on Violence Against Women in Border Areas and Conflict Zones contained in UN document CEDAW/C/IND/CO/4-5 dated 24 July 2014 in reproduced herewith:

12. The Committee is deeply concerned about the reported high level of violence, including rape and other forms of sexual violence, enforced disappearance, killings and acts of torture and ill-treatment, against women in conflict-affected regions (Kashmir, the north-east, Chhattisgarh, Odisha and Andhra Pradesh). It is particularly concerned about the:

a. Provisions of the Armed Forces (Special Powers) Act requiring prior authorization by the Government to prosecute a member of the security forces and the reportedly high risk of reprisals against women who complain about the conduct of the security forces;

b. Significant number of displaced women and girls, in particular in the north-east, including as a result of sporadic communal violence, their precarious living conditions and exposure to serious human rights violations and the lack of gender-sensitive interventions at all stages of the displacement cycle;

d. Lack of centres providing medical, psychological, legal and socioeconomic support to women and girls who are victims of sexual violence in conflict-affected areas;

e. Limited regulation of the arms trade and the proliferation of small arms and light weapons and their impact on the security of women;

f. Restrictions imposed on women human rights defenders, in particular those operating in conflict areas, including restrictions on international funding and the surveillance under which they are placed;

g. Absence of women in peace negotiations in the north-eastern states.

13. The Committee calls upon the State party:

a. To, in accordance with the recommendations of the Justice Verma Committee, promptly review the continued application of the Armed Forces (Special Powers) Act and related legal protocols and to enforce special powers protocols in conflict areas and assess the appropriateness of their application in those areas;

b. To amend and/or repeal the Armed Forces (Special Powers) Act so that sexual violence against women perpetrated by members of the armed forces or uniformed personnel is brought under the purview of ordinary criminal law and, pending such amendment or repeal, to remove the requirement for government permission to prosecute members of the armed forces or uniformed personnel accused of crimes of violence against women or other abuses of the human rights of women and to grant permission to enable prosecution in all pending cases;

c. To amend section 19 of the Protection of Human Rights Act and confer powers to the National Human Rights Commission to investigate cases against armed forces personnel, in particular cases of violence against women;

d. To ensure that the security sector is subject to effective oversight and that accountability mechanisms, with adequate sanctions, are in place, to provide systematic training on women's rights to the military and other armed forces involved in security operations and to adopt and enforce a code of conduct for members of the armed forces to effectively guarantee respect for women's rights;

e. To ensure the full and effective implementation of the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, as soon as it has been enacted;

g. To ensure that women in the north-eastern states participate in peace negotiations and in the prevention, management and resolution of conflicts in line with Security Council resolution 1325 (2000) and the Committee's general recommendation No. 30 on women in conflict prevention, conflict and post- conflict situations;

h. To remove restrictions on the work of human rights defenders, such as restrictions on their funding and by not placing them under surveillance.

Other Committees

The Committee on Economic Social and Cultural Rights also recommended repeal of AFSPA in 2008.

INTRODUCTION

Centre for Organization Research and Education (CORE) an NGO from Manipur has engaged with the Committee on Rights of the Child, and has also got some good recommendations from the Committee pertaining to the right of the indigenous children caught up in the situation of armed conflict.

A major limitation, working with the treaty body is that the monitoring mechanism will be triggered off only when the government access to the treaty. If the government does not become party to the treaty then no monitoring of the human right could take place. Moreover the review is only periodic, usually about five years, so in between these reviews the victims of human rights violations have not recourse.

ECOSOC 1503 PROCEDURE

Since the very creation of the UN Human Rights Commission, individuals and groups have been pouring with petitioning for help. But in the name of protecting 'sovereign immunity' and 'domestic jurisdiction' individual petitions are not entertained. But that did not deter the victims from seeking redress. With the constant pressure from victims, in 1970 ECOSOC passed resolution number 1508, which authorized certain petitions to be referred to the Commission of Human Rights particular situation, which appears to reveal a consistent pattern of gross violation of human rights requiring consideration.

The following year the UN Sub Commission opened the door still wider by determining that communication would be admissible if there are reasonable ground to believe that "they reveal a consistent pattern of gross and reliably attested violation of human rights and fundamental freedoms, including policies of racial discrimination and segregation and of apartheid of any form in any country, including colonial and other dependent countries and people".

In 1998 COHR made a detailed submission under this procedure pertaining to the consistent pattern of gross human rights violation under the prolonged imposition of the Armed Forces Special Powers Act, 1958. But since the procedure is confidential the fate of the petition is still unknown to the petitioners and the public. This is the major defect of this mechanism. It is like a dark hole, one can only up in sometime one does not know what is going on inside unless and until the compliant if accept and forward to the Commission or the Sub Commission. A much more open and transparent process of complaint handling evolved in the form of Special Procedures much latter.

ENGAGEMENT WITH SPECIAL PROCEDURES

When the activist minded Theo von Bowen from Netherlands becoming the Director of the Division of Human Rights in 1977 they successfully determined to implement their broader authority under resolutions to charges for gross violations on their agenda by creating new means. Over time, these have taken the form of various working groups composed of experts acting in their individual capacity known as special procedures.

They are to examine and publicly report on major phenomena of human rights worldwide (Thematic Rapporteurs) or on human rights situation of specific cases of greater public attention (Country Specific Mandates). At the end of 2018, there are 44 thematic mandates holding worldwide mandates on their specific themes, which can be engaged by anyone across the world.

The Government of India has extended a standing invitation to any of these mandate holders to visit India in 2011 and thereinafter a number thematic mandate holders made official visited India.

SR on the Situation of Human Rights Defenders

Ms. Sekaggya visited India from 10 to 21 January 2011. She did not come to Manipur but she came out to Guwahati and HRD from Manipur organized a whole delegation from the civil society of NE and organized a briefing meeting with her at Don Bosco Institute, Kharguli.

When the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggaya submitted to the General Assembly and Human Rights Council, contained in document number A/HRC/19/55/Add.1 dated 6 February 20121 she stated:

At the time of the visit, Manipur was reportedly the state worst affected by militarization with more than half a dozen human rights groups having been banned as terrorist due to their self-determination advocacy. Since 2000, Irom Sharmila, who has been on a hunger strike to demand the repeal of Armed Forces (Special Powers) Act, has been forcibly detained and force-fed in a hospital in Imphal. For 10 years, NHRC reportedly never visited Ms. Sharmila, despite repeated request by defenders. The Special Rapporteur thank Ms. Sharmila for her letter, read by her brother, during her visit to Guwahati.

In Geneva when she presented her report to the UN Human Rights Council, the Government of India strongly reacted as been biased and sub-standard and being informed by "ideological extremist".

In Manipur, follow the experience of the travelling together to Guwahati and to systematically engaged with the UN mandate holder, the human rights defenders and other civil society groups of Manipur organized themselves under CSCHR to stream line the work of the civil society engaging with the UN human rights procedures.

SR on Summary, Arbitrary or Extrajudicial Executions

Prof. Christof Heyns, UN Special Rapporteur on extra-judicial execution made an official mission to India from 19 to 30 March 2012. Despite of an invitation from the Extrajudicial Execution Victim Families Association, Manipur (EEVFAM) he could not make it to Manipur. But he did meet with a busload of families of victim of extrajudicial executions and other HRDs from Manipur at hotel Bramhaputra in Guwahati. CSCHR prepared a detailed memorandum listing 1528 cases of extrajudicial executions in Manipur from 1979 to 2012 under shadow of AFSPA.

In his report after his official visit to India in 2012 he observed:
(…) The NHRC shared with the Special Rapporteur its views in support of AFSPA's repeal … The Supreme Court of India ruled, however, in 1997 that AFSPA did not violate the Constitution. The Special Rapporteur is unclear about how the Supreme Court reached such a conclusion. … the powers granted under AFSPA are in reality broader than that allowable under the state of emergency as the right to life may effectively be suspended under the Act and the safe guards applicable in a state of emergency are absent.

The full text of his analysis on AFSPA and related legislation is reproduced herein below:
21. The situation regarding the use of force in India is exacerbated by what in effect though not in law could constitute emergency measures. In this regard, AFSPA, enacted in 1958, regulates instances of use of special powers by the Armed Forces in so-called "disturbed areas" of the country. In order for AFSPA to be applied in an area, the area must be defined disturbed or dangerous to the extent that the use of armed force is deemed necessary. AFSPA first found application in the north-eastern States of Manipur and Assam as a way to address the continued unrest in the area, and was also extended to other areas, including in Arunachal Pradesh, Meghalaya, Mizoram, Nagaland and Tripura. In 1990, the Jammu and Kashmir Armed Forces (Special Powers) Act, containing nearly identical provisions to those stipulated in AFSPA, was enacted in Jammu and Kashmir.

22. AFSPA provides wide-ranging powers to the Indian armed forces in respect of using lethal force in various instances, and fails to provide safeguards in case of excessive use of such powers, which eventually leads to numerous accounts of violations committed in areas where AFSPA is applied. The Special Rapporteur wishes to draw attention to two main concerns to which he was constantly alerted. Firstly, concerns were raised regarding AFSPA provisions regulating the use of lethal force.

Section 4 of AFSPA provides:
"Any commissioned officer, warrant officer, non-commissioned officer…may, in a disturbed area, (a) if he is of opinion that it is necessary to do so for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area…" Such provisions clearly violate the international standards on use of force, including lethal force, and the related principles of proportionality and necessity.

23. Secondly, Section 6 of AFSPA and 7 of the Jammu and Kashmir AFSPA, grant protection to the officers acting under these Acts and stipulate that prosecution of members of the armed forces is prohibited unless sanction to prosecute is granted by the central Government. Sanction is rarely granted in practice. In this context, the Special Rapporteur was informed of an application submitted in India under the Right to Information (RTI) Act in November 2011, requesting information on the number of sanctions for prosecution granted from 1989 to 2011 in the State of Jammu and Kashmir.

The response received from the authorities revealed that in none of the 44 applications brought was sanction not granted. In addition to AFSPA, the CPC also protects members of the armed forces from being prosecuted without prior sanction being granted, which will be examined in chapter V.


(To be continued.....)


* Babloo Loitongbam wrote this speech which was published at Imphal Times
This article was webcasted on July 12, 2019.



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