UN and The Kashmir Dilemma
June 18, 2018 | Expert Insights
The United Nations released the first ever report on human rights violations in Kashmir, asserting that the Indian armed forces have used excessive force in Kashmir with many civilians killed and wounded since 2016.
The report, released on 14th June, details human rights violations on both sides of the Line of Control, urging Pakistan to end its “misuse” of anti-terror legislation to persecute peaceful activists and quash dissent.
BACKGROUND:
Jammu and Kashmir is the northernmost state of India bordered by China, Pakistan and Afghanistan. The Himalayas divide the Kashmir Valley from Ladakh while the Pir Panjal range, which encloses the valley from the West and the South, separates it from the Great Plains of northern India. Natural mountain barriers have created biospheres unique to the state, such as the cold deserts of Ladakh.
Kashmir’s economy is based around agriculture owing to suitable soil and temperature conditions. Kashmiri wool, archaically known as “Cashmere,” is world renowned. The Indian-administered portion of Kashmir is believed to have potentially rich rocks containing hydrocarbon reserves.
During the Indian Medieval period, the region saw the development of Buddhism and Hinduism (particularly Kashmiri Shaivism) which declined under Mughal rule in the 15th century. It was a centre for debate amongst the various branches of Hindu philosophy, literature and music. Islamisation gave the land a distinct culture, fusing existing philosophies with indigenous practices; Kashmiri Sufi music is testament to this fact.
In 1819, the Kashmir Valley passed from the control of the Durrani Empire of Afghanistan to the conquering armies of the Sikhs under Ranjit Singh of the Punjab, thus ending four centuries of Muslim rule. Hari Singh was the Hindu ruler of the Princely State of Kashmir in 1947 whose chose independence from India and Pakistan. However, Pashtun tribesmen and Pakistani forces launched a guerrilla war which led to Maharaja Singh signing the Instrument of Accession, thereby allowing Indian armed forces to defend the state.
India has sought resolution of the conflict at the UN, but the territory is now administered by India, Pakistan and China following wars in 1962, 1965 and 1971. Jammu and Azad Kashmir lie outside Pir Panjal range and are under Indian and Pakistani control respectively. ‘The Northern Areas’ or Gilgit Baltistan’s residents expressed their desire to join Pakistan which is why it was shifted from Azad Kashmir’s administration to Pakistan. However, they have long been treated as “barbaric and uncivilised” under colonial-era Frontier Crimes Regulations. They are not represented in Parliament either.
A disputed election in 1987 became the stimulus that led to the rise of many of the modern insurgent groups. Opposing factions have pledged allegiance to either India, Pakistan or the movement for an independent sovereign state. India has claimed that Pakistan aids the insurgency, but the latter has denied those charges.
Violence in the valley increased after the death of Burhan Wani, a rich young Muslim who joined the Hizbul Mujahideen, in 2016. Nearly 50,000 protestors took to the streets in the Shopian district, with some throwing rocks, and were met with metal pellet firing by the Indian armed forces resulting in multiple deaths and injuries. Reparations for the injured have been dismal as many are yet to receive compensation.
ANALYSIS
INDIA:
UN Office of the High Commissioner for Human Rights released the 49-page report focusing on the use of reported “excessive force” by soldiers in the Indian state of Jammu and Kashmir, although it also examines a range of rights violations in Pakistan-Administered Kashmir. Zeid Ra’ad Al Hussein noted his intention to ask the Human Rights Council in Geneva to set up a Commission of Inquiry (COI) at its next session, beginning on 18th June.
India and Pakistan have ratified numerous UN conventions and treaties of which they have been in gross violation.
Article 370 of the Indian Constitution provides for separative governance of the Kashmir Valley, while the Armed Forces (Jammu and Kashmir) Special Powers Act of 1990 (AFSPA) grants special powers to the armed forces in the “disturbed area.” This tailor-made legislation has prevented for 28 years the persecution of a single armed personnel for any violation. AFSPA requires central government sanctioning of any case to be tried in court. Moreover, military courts and tribunals have failed to address violations owing to ambiguity in their mandate.
According to the report, the excessive use of lethal force by Indian armed forces has violated international standards regarding the proportionality and necessity of force in a conflict. Metal pellets used to disperse protestors have blinded many; one case saw the pellet burt in an individual’s abdomen causing 300 pieces of metal to lodge in his body. Union legislation has not prevented the use of these shot guns even with the existence of other riot dispersing material such as tear gas.
The report further states that sexual violence in the Valley has been on the rise since 1947. In 1992, the Kanun Poshpora mass rape of 150 women and torture of 200 men was dismissed by the authorities as “baseless.” In 2012, a Supreme Court mandated committee reviewed AFSPA and recommended that sexual violence be brought into the purview of criminal law. It has not been implemented.
Arbitrary arrests and detention, including that of children, is rampant, according to UN sources. Those accused of violence against the state have been detained for as long as a year in some cases. Detainees are routinely tortured and those accused of being separatists disappear without a trace.
Through series of strikes and communication blockades, Kashmiri citizens have limited access to necessary healthcare, a violation of the fundamental right to health. Children and the youth have discontinuous access to education. Students, in primary schools till university levels, have abandoned hopes of attaining basic and higher education as infrastructure has been damaged and few remaining teachers have moved from the conflict areas to the relatively stable plains.
According to Reporters Sans Frontières, it is “nearly impossible” for foreign journalists to obtain Indian ‘journalist visas’ because of stringent conditions. Indian and foreign journalists have also been detained on grounds of associating with Pro-Independence activists or for or allegedly being involved in a “conspiracy against the nation.”
Under “Abuses by Armed Groups,” the report details existence of a variety of armed groups and activists involved in death or violence against civilians. A major episode of attacks against civilians by armed groups operating in the Kashmir Valley is that against the minority Hindus, known as Kashmiri Pandits. Psychologist Waheeda Khan, explaining the rebellious nature of the Kashmiris, says that because of the tense situations in the valley from the 1990s, the generation gap between parents and young generations has increased. Young generations tend to blame their parents for failing to do anything about the political situation, hence, they experiment with aggressive methods to show their curbed feelings by rebelling against authority.
PAKISTAN:
In 1948, the UN Commission on India and Pakistan (UNCIP) acknowledged the existence of “local authorities” on Pakistan’s side of the ceasefire line which has been distinct from Pakistan’s government, thus, isolating them further. In Gilgit-Baltistan (G-B) and Azad Jammu and Kashmir (AJK), administrative authorities have limited roles and are secondary to Pakistan’s envoys, largely viewed as a violation of democratic principles. Furthermore, Gilgit-Baltistan has not been given notional autonomy unlike Azad Kashmir. The Committee on the Elimination Racial Discrimination noted with concern that the laws of Pakistan are not applicable in these provinces to the same extent as in the other parts of the territory Expression of dissent by any political party has been silenced in the aforementioned territories. In order to publish any work, media houses must obtain permission from the Government of Pakistan.
Pakistan’s Anti-terrorism Act (ATA) of 1997 has been widely regarded as incapable of controlling or exterminating the existence of non-state actors in furthering their political or religious ideology. Pakistan is the state with the fifth highest cases of terrorism, only three spots ahead of India. Simultaneously, however, they rank very low on the World Justice Index. This vacuum formed between the proliferation of terrorism and an adequate justice system has been exasperated by the ATA. Language of the law has given the definition of terrorism a very broad meaning, brining into its scope, for example, heinous crimes like kidnapping without the explicit purpose of achieving an ideological goal. Thus, Anti-Terrorism Courts (ATC) face innumerable delays, high number of acquittals (upto an average of 75% of registered cases), and unwarranted persecution of common criminal cases as acts of terrorism. UN OHCHR has acknowledged the existence and misuse of the ATA against youth in G-B and AJK.
Displacement is common within the disputed territories on either side of the ceasefire line. Progress of the China-Pakistan Economic Corridor (CPEC) through territory of Gilgit-Baltistan, while violating international laws of sovereignty and territory, has displaced the entire village of Maqpoon Das overnight and infringed on the freedom of movement of nomadic groups and tribes indigenous to the area.
The interim constitution of AJK defines “Muslims” without including those of the Ahmadiyya community. Provisions regarding prosecution for “blasphemy,” or using derogatory remarks against the Holy Prophet, has emboldened armed religious groups by suppressing freedom of speech.
COUNTERPOINT:
India has rejected the report with the Ministry of External Affairs (MEA) stating that the first-ever UN report on human rights situation was “fallacious.” However, Kashmiri human rights activist Khurram Parvez welcomed the report and the recommendation for a commission of inquiry by the U.N. Human Rights Council.
Experts pointed out that the report was in breach of the mandate for the High Commissioner for Human Rights provided in the UNGA Resolution 48/141 as it violated India’s sovereignty and territorial integrity by acknowledging Pakistan’s illegal occupation and administration of G-B and AJK. There are no entities such as ‘Azad Jammu and Kashmir’ and ‘Gilgit-Baltistan’,” the MEA statement said.
According to a report by Al Jazeera, Pakistan’s foreign office welcomed the report, saying it was consistent with Islamabad's demands for an investigation into "gross and systemic violations, including pellet guns excessive use of force, arbitrary arrest and detentions...".
ASSESSMENT:
Our assessment is that constitutional fallacies have protected, on both sides of the Line of Control, individuals who commit crimes including but not limited to rape, torture, arbitrary arrest and assault.
The existence of The Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA) has been a point of contention across the many states it is imposed upon and the Union of India itself. Certain provisions, such as sexual violence and the need for Central government sanctioning for persecution of officers, ought to have necessary clauses that bring heinous crimes on part of the armed forces under the Indian Penal Code.
The Anti-Terrorism Act (ATA) of Pakistan has ambiguities which has hampered judicial proceedings in persecuting terrorists as well as halting any future activities. The ATA requires changes in definition alongside addition of provisions to protect witnesses and judges, keeping in mind that drawn-out cases result in possible influence of the witness. Greater intelligence coordination between Pakistan’s civilian, military, and police agencies is necessary.
Lack of comprehensive cybersecurity laws in both countries has allowed for not only the propagation of violence via the internet but also for funding to many armed groups. It is imperative for both countries to acknowledge the existence of internet-based crimes which can affect intelligence and operations.
The recommendation is to urge the Human Rights Council, to consider establishing a Commission of Inquiry (COI) to conduct a comprehensive independent international investigation into allegations of human rights violations in Kashmir cannot be dismissed as trivial. COI is one of the UN's highest-level probes, generally reserved for major crises like the conflict in Syria.
Journalism and media plays an important role as the fourth pillar of governance and democracy. Both governments ought to acknowledge the necessity of free press in conflict areas so that the laity is aware of the nature and extent of mental, physical and social depravation of the Kashmiri people.
Isolation of Kashmiri citizens has augmented instances of rebellion against the state. With limited access to education over long periods of time, the youth of Kashmir, G-B and AJK have resorted to the use of drugs and participation in anti-state activities. Families who can afford to move out of the state have already settled elsewhere, but countless others face chronic unemployment and astonishingly low wages in an economy crippled by strikes and blockades.