Wednesday, July 23, 2014

Military immunity from civilian prosecution in India: the Armed Forces (Special Powers) Act, 1958

Somehow we missed this July 19, 2014 article in The New York Times about the immunity of Indian military personnel from civilian prosecution in certain "disturbed" areas. Gardiner Harris writes:
[A] decade [after a particularly shocking murder], no one has been arrested or charged with a crime. Activists, lawyers and ordinary people here say they know exactly why: a colonial-era law in effect in India’s periphery that gives blanket immunity from prosecution in civilian courts to Indian soldiers for all crimes, including rape.
Human rights advocates have for years called for the repeal of the law, known as the Armed Forces [(]Special Powers[)] Act[, 1958]. Christof Heyns, the United Nations special rapporteur on extrajudicial, summary or arbitrary executions, wrote last year in a report to the United Nations Human Rights Council that the powers granted under the law “are in reality broader than that allowable under a state of emergency as the right to life may effectively be suspended.”
Yet it endures. As the world’s largest democracy and home of Mohandas K. Gandhi, a pioneer of nonviolent resistance, India has long been counted among the world’s most progressive nations, with robust anti-poverty programs and efforts to provide special benefits to marginalized communities. The country now has 168 state and federal rights organizations, including the National Human Rights Commission.
But a darker reality has always lurked beneath this progressive image, particularly in India’s hard to reach places. In Kashmir, there are thousands of unmarked graves in secret cemeteries created by the army and the police to hide their crimes. Even when civilian officials confirm that innocents were slaughtered, nothing is done.
“We have all these great human rights institutions, but still nobody in India gets justice when the state murders one of their family members,” said Henri Tiphagne, chairman of the Asian Forum for Human Rights and Development based in Bangkok. “That’s true all over the country, not just in Kashmir.”

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