By Mushtaq A. Jeelani
On Saturday October 27th, 2012, the people of Kashmir all across the world observed 65th anniversary of Indian occupation of Kashmir as a Black Day. It was exactly 65 years ago, on October 27th, 1947, when the Indian troops invaded and occupied a sovereign nation of Jammu and Kashmir by deceit. The government of India proclaimed that her forces would help to restore normalcy in the state of Jammu and Kashmir and allow the people to exercise the right of self-determination in accordance with their freely expressed will, unhindered by any threat of internal disorder or external aggression.
Fraudulently, India did the exact opposite. Those who have followed developments in Kashmir know that the ongoing struggle for freedom began in 1931 when people came out in open revolt against then autocratic and tyrannical regime; they had nearly succeeded in over-throwing the regime when India stepped in 1947 to take over the tyrant disposed regime, faced with stiff resistance from the locals against the occupation India transformed Kashmir into a purely military camp, killing hundreds of civilians.
The first war between India and Pakistan over Kashmir broke out in 1947. In 1948 India took the Kashmir issue to the United Nations Security Council, which constituted a special commission the United Nations Commission for India and Pakistan with the mandate to independently investigate the matter and help the contending parties reach a negotiated settlement. The most important outcome of the deliberations were two resolutions passed by the Security Council on August 13th, 1948 and January 15th, 1949 respectively, calling upon the governments of India and Pakistan to hold a free, fair and impartial plebiscite under UN auspices in order to enable the people of Kashmir to decide whether they wanted to join India or Pakistan.
This was followed by commitments on part of the Indian leadership to allow the people of Kashmir to determine their future. In a statement to the Indian parliament on February 12th, 1951, Prime Minister Jawaharlal Nehru said: We had given our pledge to the people of Kashmir and subsequently to the United Nations. We stood by it and we stand by it today. Let the people of Kashmir decide.
Failing to legalise its occupation, on August 9th, 1953, New Delhi arrested then prime minister of Jammu and Kashmir and popular leader Sheikh Abdullah in a coup détat the occupying forces killed more than 1,500 defenceless Kashmiri civilians to silence the massive revolt against its occupation. Since then, India has tried to gradually strengthen its grip over the occupied region by means fair and foul unmindful of its constitutional commitment about the future status of the occupied state.
To this date, the people of Kashmir continue to be deprived of their inalienable right of self-determination and also the UN Security Council resolutions have remained unimplemented.
1987s rigged elections and Indias refusal to honour her commitment about the right of self-determination pushed the people of Kashmir from passive resistance to militancy against state-sponsored terrorism.
Since October 1989, Kashmir has become the most highly militarised zone in the world; more than 700,000 Indian soldiers are deployed there. During 23 years, the occupying Indian forces have killed more than 100,000 civilians many more scarred and wounded, to silence the peoples demand for justice, respect for human rights, and the right of self-determination. They continue to carry out arbitrary detention, summary executions, custodial killings, extrajudicial executions, enforced disappearances, rape, sexual exploitation, torture and fake encounters. The United Nations Childrens Fund, UNICEF estimates that there are as many as 100,000 orphans in Kashmir. Also, more than 800,000 are suffering from PTSD and various kinds of mental disorders. Generations of Kashmiris have grown up under the shadow of the gun; not a single family is unaffected; property worth hundreds of millions of dollars has been destroyed and the suffering and devastation continues unabated that has inflicted loss of life and destruction on an unprecedented scale, sadly drawing no significant attention from the international community.
Further, Indian forces operate under the Public Safety Act (PSA) and Armed Forces Special Powers Act (AFSPA), also known as black laws, which give them wide-ranging authorisation to arrest, search, and shoot without questions. Impunity has become a licence for the Indian occupation forces to wreak havoc with the lives of Kashmiris. The deliberate and unprovoked attacks and other patterns of abuse have all become too frequent to report. No perpetrator has ever been prosecuted in a real manner, despite the fact that such crimes have been widely documented by many international human rights organisations including Human Rights Watch and Amnesty International.
In March 2011, Amnesty International published the report A Lawless Law on administrative detentions under the PSA. The report documented the various ways in which the use of the PSA violated international human rights law. This new briefing reviews the impact of the PSA on the human rights of individuals in J&K [Jammu and Kashmir] since the publication of that report. It finds that despite legal and policy developments, Amnesty Internationals key human rights concerns with the PSA and its application remain unchanged: the PSA is still a lawless law.
The status of the state of J&K has been politically controversial for decades. Since 1989, there has been a turbulent political movement in the Kashmir Valley for self-determination and independence given the political context in J&K, the PSA was used to detain, among others, political leaders, lawyers, and individuals who challenged the state through political action or peaceful dissent. The report found that the PSA provides for arbitrary detention, which violates the right to liberty under human rights law binding on India. Furthermore, the report found that state authorities also used the PSA to facilitate other human rights violations, including incommunicado detentions, torture and other cruel, inhuman or degrading treatment or punishment (other ill-treatment) in custody, and detention on vague grounds. Amnesty International found that, in some instances, the PSA was used as an informal justice system, that is, to secure the long-term detention of individuals instead of charging and prosecuting them in a court of law, Amnesty International report: Still a Lawless Law published October 13th, 2012.
The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, told reporters in New Delhi on Friday Mach 30th, 2012, at the end of his two-week mission to India: Evidence gathered confirmed the use of so-called fake encounters in certain parts of the country [India]. Where this happens, a scene of a shoot-out is created, in which people who have been targeted are projected as the aggressors who shot at the police and were then killed in self-defence. He further added: The high level of impunity that the police and armed forces enjoy, due to the requirement that any prosecutions require sanction from the central [Indian] government something that is rarely granted.
United Nations Secretary-General Ban Ki-moon should make human rights a central part of his discussions with government officials during his visit to India… to press the Indian government to address serious human rights violations, such as extrajudicial killings, abuses in conflict areas, and widespread torture… Ban should in particular press the Indian government to repeal the Armed Forces Special Powers Act. The law provides effective immunity to soldiers responsible for serious human rights violations and has led to widespread abuses in Jammu and Kashmir… Ban should also call for the repeal of archaic sedition laws that have been used to silence peaceful dissent, Human Rights Watch April 25th, 2012.
The Kashmiri Association of Parents of Displaced Persons (APDP) has been protesting for several years about finding more than 10,000 missing persons. These people could have been targets of militants, or of the Indian army, or both. After the discovery of unmarked graves in north Kashmir, APDP now, suspects many more unmarked graves exist in other areas of Kashmir.
The [Jammu and Kashmir] state human rights commissions investigation of 38 sites in north Kashmir and the discovery of 2,730 unmarked graves was a good first step for providing justice to the victims, Human Rights Watch said. While the government maintains that most of the bodies are those of unidentified Pakistani militants, many Kashmiris believe that victims of fake encounter killings or enforced disappearances may also have been buried in those graves. Although the government has promised a thorough inquiry, a credible investigation is impossible without the cooperation of the [Indian] army and federal paramilitary forces, which hide behind the immunity provisions of the Armed Forces Special Powers Act [AFSPA] and other laws, Human Rights Watch World Report 2012.
The International Convention on the Protection of All Persons from Enforced Disappearances defines enforced disappearances as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the state or by persons or groups of persons acting with the authorisation, support or acquiescence of the state, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.
The convention grants all persons directly harmed by an enforced disappearance, such as family members of the disappeared, a right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person.
The convention prohibits states from claiming a lack of resources to justify refusing to investigate a possible enforced disappearance by placing a duty on states to guarantee those resources. Security cannot justify refusal to release information related to enforced disappearances. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.
The fact remains that India is a signatory to the International Convention for the Protection of All Persons from Enforced Disappearances, but enforced disappearances continues to be an explicit state policy for over 20 years absolute disregard for International law?
For the past 23 years, the occupation forces have been using rape as a weapon of war against civilians in Kashmir a deliberate military strategy to punish or dehumanise the women and persecute the entire population for demanding the right of self-determination like in Darfur, the former Yugoslavia and many others areas in recent memory. The effect of rape is being felt by women, children, men, wives, husbands, family structures and communities.
Moreover, under the Rome Statute, rape is an international crime, identified as both a war crime and a crime against humanity, but in Indian-administered Kashmir it continues to be the state policy designed to silence the people of Kashmir.
Indian Prime Minister Manmohan Singhs promise of zero tolerance of human rights violations by the armed forces has been challenged by the zero accountability of the perpetrators of mass abuses against civilians in Indian-administered Kashmir.
The Hindu, Indias national daily, in an Op-ed Siddharth Varadarajan questions the so-called zero tolerance promise: This is not zero tolerance, Mr. Prime Minister – The Central [Indian] governments professed commitment to human rights is worth nothing so long as it wont allow the soldiers indicted for murdering innocent civilians in Kashmir to be prosecuted for their crimes And, in the context of the recent exposé of fake encounters, they reveal a pattern of impunity that ordinary Kashmiris will be condemned to endure until India gets a Prime Minister brave enough to put a stop to it the promise of zero tolerance of human rights violations is just an empty slogan.
Unfortunately, the international community is turning a blind eye to gross and systematic human rights abuses in Indian-administered Kashmir. It is high time the world community help India to understand that violence is not and cannot be the answer to popular demands for justice, freedom and the right of self-determination. A plebiscite under the United Nations supervision to determine the future status of Kashmir is the only answer to resolve the issue. The world community can demand an immediate end to widespread human rights violations in Kashmir, and to bring the perpetrators to justice.
The 15 million people of Kashmir are craving for peace. They want a just and dignified peace that guarantees total freedom from foreign occupation and alien domination. Their struggle to achieve the right of self-determination will not extinguish until India and Pakistan accept its exercise by the people of Kashmir.
The perception that the Kashmir issue is a bilateral matter between India and Pakistan is totally unfounded. Kashmir is not a territorial or bilateral issue. It is about the future of 15 million people with their own history of independence; their own language and culture. Indian and Pakistani bilateralism has totally failed to resolve the Kashmir issue: the 65 years of on-again and off-again bilateral dialogue: one step forward, two steps back is an explicit explanation that the Kashmir issue has nothing in common with Indian, Pakistani bilateralism! The people of Kashmir are tired of an endless process that has not produced an outcome; furthermore, they have lost complete faith in the bilateral process of India, Pakistan and their ability to resolve the issue.
The right of self-determination is the cornerstone of the United Nations system that underpins the contemporary international order. Its unquestioned acceptance has been established by core international instruments including the Charter of the United Nations, the two Covenants on Civil and Political and Economic, Social and Cultural rights and the declaration adopted by General Assembly resolution 1514.
The International Covenant on Civil and Political Rights imposes specific obligations on all nations not only in relation to their own population but vis-à-vis all people, who have not been able to exercise, or have been deprived of the possibility of exercising their right of self-determination. It urges nations to take positive action to facilitate the realisation of, and respect for the right of people to self-determination.
Effective exercise of a peoples right of self-determination is an essential pre-requisite for the genuine exercise of other human rights and freedoms. Only when self-determination has been achieved can a people take the measures necessary to ensure human dignity, the full enjoyment of all rights including political, economic, social and cultural progress without any form of discrimination.
The conflict in Kashmir is a political and human tragedy and the world community, including India and Pakistan, have overlooked this critically important human dimension of the issue. The Kashmiris demand is simple and in accordance with international law: implementation of the UN Security Council resolutions for a plebiscite to determine the future status of the disputed region in a peaceful and democratic way. Whatever the outcome, it will be impartial and binding for all the three parties the people of Kashmir, India and Pakistan.
The unprecedented sacrifices and suffering experienced by the people against this volte-face in terms of death and destruction, life and property, torture and persecution, rape and repression over the years, particularly during the past 23 years, is much too great to go unrewarded. The Kashmiri freedom movement is now entering in its twenty-forth year with firm and unwavering courage and determination in the face of unspeakable suffering and injustices to achieve the right to self-determination. The ground reality is very encouraging as the people are determined to achieve freedom, therefore, the struggle is in full momentum and the demand for a UN supervised plebiscite is at an all-time high.
It is high time India realised the fact that control over a region alone does not mean sovereignty over a chunk of land. It is the people who make up a nation and if they are perpetually alienated, any territorial supremacy achieved through brute force alone can never guarantee long-term peace.
The International communitys help can encourage India and Pakistan to transform the Kashmir issue from being a bone of contention to a bridge of understanding for lasting peace and prosperity of South Asias billion plus people. A peaceful solution of the dispute will help to bring stability in the South Asian region, including in Afghanistan and eliminate a potential threat of another major war. This would further help lay the foundation for a new era of coexistence between India and Pakistan.
The cause for which the people of Kashmir are struggling is a just one, and deserves support from all those who cherish peace and justice.
Mushtaq A. Jeelani is Executive Director of Toronto-based Peace and Justice Forum, a non-profit, non-governmental organisation, dedicated to protection and promotion of human rights, democracy and international justice.