On 13th May 2011 I read a news item in Kashmiri local newspaper Greater Kashmir captioned ‘File status report on Major Avtar’s Extradition’. The news stated that Court directed police to file a status report on the progress made in the extradition of Major Avtar Singh, accused in the killing of prominent lawyer and human rights activist Jaleel Andrabi, who was kidnapped and killed by forces in 1996.’ Today this man is in California and was arrested in a domestic violence case but released on bail within hours. Avtar Singh is wanted in five murder cases including the kidnapping and killing of Andrabi. The current status of the extradition case of Singh shows that the Central Government of India is not interested in pressing for his extradition. The developments in this case since 1996 shows even if Singh is extradited from the US he will not be prosecuted in Indian courts. This is because the Central Government of India does not sanction prosecution in cases involving the military/army personnel’s. In this case the Jammu and Kashmir High Court Order of impounding Singh’s passport was flouted by the Indian government leading to his fleeing to California. Today India is pressing for Singh’s extradition but the victim family has no hopes for justice. (For more details see http://www.kashmirdispatch.com/headlines/28022114-govt-s-priority-national-interest-not-justice-says-jaleel-andrabi-s-family.htm ) This approach of evading justice in extrajudicial killing cases is worrying. It is a reminder that to obtain justice from India in thousands of the human rights violation cases in Kashmir demands the construction of truly democratic political institutions along with a robust ‘rule of law’- in the absence of this, justice is inconceivable. Filing a case for gross human rights violations related to war crimes, torture, crimes against humanity and disappearance in Kashmir against India in the International Criminal Court is not feasible as India is not party to the Rome Statute of 1998. Then people are left with a single option to try to attain justice and accountability from the courts of other jurisdictions, if perpetrator flees to other countries.
As far as I am aware in the US it is possible to hold a non-American citizen accountable for crimes committed in violation of international law even if committed outside the US. This is possible under two civil statutes i.e. the Alien Tort Statute 1789 and the Torture Victim Protection Act 1992. This is how justice was attained in the Filártiga case [see Filártiga v. Peña-Irala, (630 F.2d 876 2d Cir. 1980)]. Court, awarding the victim’s family compensation of $10.4 million, held Pena was liable for acts of torture and death committed in Paraguay and outside the United States. The circumstances of the Filártiga and Jalil Andrabi’s case are similar if not alike. In both the cases police was responsible for kidnapping and subsequent torture and death of victim. Also in both cases justice was not attained from the local courts. In the Filártiga Case, court found that Peña, by torturing and killing his victim violated wrongful death statutes, the U.N. Charter, the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, and other customary international law.
For the Andrabi Case, in attaining justice under the Alien Tort Statute in the US, I foresee a few difficulties. Firstly the family is not in the US and secondly, India and the US have signed an extradition treaty in 1997. The first problem could be solved if the family or relatives on behalf of the family could file a civil case in the USA. I think it may be possible then perhaps to press for criminal prosecution of Avtar Singh for gross human rights violations and crimes against humanity under the universal jurisdiction and violations of the law of nations. The second problem is the Indian-US extradition treaty of 25th May 1997. This is perhaps less problematic as the US could refuse extradition on the basis of ‘universal jurisdiction’ in this case despite the fact it has signed an extradition treaty. It goes without saying that it is a shame that Singh cannot be persecuted in the US without the victim family’s intervention.
Kashmir will continue to be a cauldron of human right violations until the international community assumes some responsibility and until perpetrators such as Avtar Singh are roaming freely without any consequences. Today there is no guarantee that Avtar Singh will be prosecuted in India even if the US extradites him. Avtar Singh during the time he was deployed in Kashmir as Major has committed heinous crimes against humanity including torture and disappearances which are no less atrocious than what Pinochet or Milosevic did. I am convinced that Jalil Andrabi’s case provides a chance to attain accountability and justice in the US courts for human rights abuse that is taking place in Kashmir. This case can advance the rights of victim’s families who are seeking truth, justice and redress.
This case is awaiting justice since last14 years. So what if the family of victim sued Avtar Singh in US court? Should the US Court hear the case? Should the Court assert jurisdiction? Or Should Avtar Singh be simply extradited? I urge readers to provide their comments on these issues or on other international law aspects concerning this case. Remember your thoughts matter and that could advance a speedy justice in this case.