When gunshots are our morning alarm (Part - I)
Kashmir is a multi-layered topic. It is often becoming increasingly difficult for us to distinguish the legal nuances of the complexities associated with the topic. Through this article I shall try to trace the elements of International law that are relevant in Kashmir and the abrupt and unconstitutional scrapping of Article 370 and Article 35 A shall affect the International dispute over Kashmir. Issues within Jammu and Kashmir fall under different categories of international law, including international human rights law (laws of human rights which are applicable irrespective of conflict or peacetime); international humanitarian law (laws applicable during conflict), public international law (laws governing the conduct of states and their relationship with international organizations) and United Nations Law (the specific rules and obligations within the UN framework).
Colonization- Decolonization -Colonialists
The Second World War ended in 1945 with the death of over 85 million people, millions of refugees and a broken world economy. Globally, people were no longer fond of wars and a process of global democratization had begun. India became independent in the year 1947. Nehru and the Congress, chose to remain non aligned and their vision was towards democracy. India wanted to be a leader of the decolonized nations with the image of a secular and democratic nation. However, with the formation of Pakistan and the accession of the Princely States, the dynamics began to change in terms of India’s actions towards self determination, civil liberties and rights. In their rivalry to possess Kashmir for geopolitical and military advantage, both India and Pakistan became colonialists of Kashmir. Kashmir continues to face indiscriminate tragedy of human rights abuses from both Pakistan and India which the United Nations Committee for Human rights has also observed along with several other international human rights observers. Both India and Pakistan are nuclear states. Hence, the Kashmir dispute is probably the most difficult global crisis bordering the risk of a full blown nuclear crisis.
The Kashmir Conflict between India and Pakistan
Kashmir is an ethnically diverse and resourceful land. It’s geographical location is placed strategically in geopolitics with proximity towards China and Russia. It remained as a Princely State under the rule of the Dogra dynasty. In 1947, the British left India and India was partitioned to form two nations - India and Pakistan. Now, it was upon Jammu and Kashmir to decide about which of the two nations, they chose to join. The Dogra ruler, sustained nearly three months without acceding to any of the two nations. He signed a Standstill agreement with Pakistan and discussions continued with India. However, despite the agreement, Pakistan raided the borders of Kashmir, cut off food and other supplies to the region and caused a massive refugee outbreak and humanitarian crisis. This compelled the the Dogra ruler to seek military aid from India and he signed an instrument of accession with India. According to the instrument, the Indian Government would have their legislative powers limited to only three subjects - External affairs, defence and communications. However, Pakistan continued their claim on the land of Jammu and Kashmir and this eventually lead to three wars with India making the dispute over Kashmir an International Conflict. Since 1962, a portion of the disputed territory of Kashmir has been administered by China.
The United Nations Involvement
On January 1, 1948, India moved to the United Nations Security Council (UNSC), invoking Article 35 of the United Nations Charter, by which the member states could refer matters that may cause potential threat to international peace and security to the United Nations. India alleged that Pakistan had assisted Pathan warriors through military aid and training for the invasion of Kashmir. Pakistan denied all involvement whatsoever and counter alleged that India had taken part in the massacre of Muslims in Kashmir, India initiated aggression against Kashmir and Pakistan also disputed the instrument of accession that was drawn by Raja Hari Singh. While addressing these issues, the Security Council passed two particularly relevant resolutions by which the UNSC called for the establishment of a body called the United Nations Committee of India and Pakistan (UNCIP) to investigate and mediate the dispute between India and Pakistan. The UN passed another resolution by which the UNSC emphasised their support for the right to self determination of the Kashmiri people and urged the conduct of a plebiscite in order to assess the will of the Kashmiri people. The UNSC called for demilitarization and plebiscite. The UNCIP adopted a three part resolution by which, firstly, the opposing sides should have agreed upon a ceasefire, secondly, Pakistan must withdraw its troops from Kashmir and apply their best efforts for the withdrawal of the tribesmen who were fighting in Kashmir. And thirdly, that the future of Kashmir should be decided by a vote of its own people.
Indian and Pakistan agreed on a ceasefire agreement on January 01, 1949. The commission further recommended that following the fulfillment of the first two requirements, a plebiscite was a must to fulfill the aspirations of the people of Kashmir. Disagreements continued between India and Pakistan and there was never a unanimous acceptance of the solutions forwarded by the committee. The troops of Pakistan remained and the UNCIP ceased to exist in March 1950. Individual UN Rapporteurs and the United Nations Military Observer Group in India and Pakistan continued their efforts to resolve the conflict and the UN repeatedly called for demilitarization and the plebiscite. However, till date, there has been no resolution to this conflict. The resolutions of the United Nations and its committees, which repeatedly called for mutual settlement of the dispute and fulfilment of the commitments made by both India and Pakistan were not implemented by either nations.
International Human Rights Law in Kashmir
In 2018, the United Nations Office of the High Commissioner for Human Rights released their first ever human rights report on Kashmir. 3 The report recorded the unimaginable violations of human rights in Kashmir for over seven decades. It recorded the chronic impunity for these violations that the security forces enjoyed in Kashmir.The UN called for an international enquiry into the violations of human rights in both India India administered Kashmir and Pakistan administered Kashmir. India denied United Nations to conduct any enquiry in Kashmir and called it their internal matter and an invasion of their sovereignty. The United Nations maintained that they shall continue to monitor the happenings in Kashmir from distance. In 2019, the United Nations OHCHR published their second report on the human rights situation in Kashmir. According to the Jammu and Kashmir Coalition of Civil Society (JKCSS), over 160 civilians were killed in the last one year. The report detailed about the arbitrary detentions, disappearances, tortures and killings by the Security forces in Kashmir. The report observed that there has not been a single prosecution of any security forces granted by the Central government in any civilian court of India.
The Armed Forces Special Powers Act (AFSPA) enabled the security forces to detain prisoners on mere suspicion without a warrant and complete impunity to the security forces. The Human Rights Watch Report documented that rape has been used as tool of conflict to intimidate the people of Kashmir. According to the JKCSS, over 7000 cases of sexualised and gender violence have occurred without a single prosecution or accountability. According to a report published by the JKCSS and the Association of parents of disappeared persons (APDP), severe torture methods were used on Kashmiri Prisoners like waterboarding in chilli water, rape, sodomy, hanging against the ceiling. Detainees and prisoners were stripped naked and their bodies were burnt with iron rods, heaters and cigarette butts. Victims stated that rods were inserted through their rectum and their penises were burnt. According to the APDP, from 1992 until 2006, around 10,000 people have been disappeared, out of whom, most are minors and even children. The JKCSS has documented over 7000 unmarked graves. Many of these are bodies of the disappeared persons. Over 8000 families claim that their family members have disappeared over the last 25 years. The half widows of Kashmir are those brides whose husbands have disappeared and they continue to await their loved ones.
On the basis of these reports, the UN Human Rights Chief has called for the establishment of a Commission of Inquiry (COI) to conduct a comprehensive and independent international investigations into these grave violations of human rights. A COI is one of the UN’s most high level probes which was also conducted for the crisis in Syria.
Scrapping of Article 35 A and fears of Demographic Engineering
Through the scrapping of Article 35 A of the Constitution, the BJP government has opened the gates for the purchase of property in Kashmir by non resident Kashmiris. Mukesh Ambani, a businessman, close to the government has in fact, announced that he has several business announcements about Kashmir in the coming months. This has been done in the pretext of developing a poorly developed Kashmir. However, it has been repeatedly established that Kashmir is rather, more prosperous than many of the India States. One of the reasons behind the restriction in purchasing lands by non residents in Kashmir as stated by Nehru was that people with money would buy out most of the land, leaving no place for the poorer Kashmiris. The rising fear is that the government may now facilitate the sale of land to those favourable to their interests and to crony capitalists while displacing the resident Kashmiri Muslims (or disappearing them!).
These fears do not seem unreasonable as the memory of the brutal torture, rape and murder of an 8-year-old in Kathua, from the Muslim nomadic Bakerwal community in Kashmir. As Hindu supremacists shouted slogans in Kashmir in favor of the rapists, it was established quite clearly that the act was done to intimidate the Bakerwal community. With easy access to land in Kashmir, all these communities and the local residents remain in the danger of being landless and displaced. This would not just help create a favourable community for the government in Kashmir but would also eliminate all witnesses to the human rights violations, making it nearly impossible to bring accountability for the wrongful acts.
Law and Kashmir - International Armed Conflict and Non International Armed Conflict
Since 2015, there has been a steady increase of firing and shelling between India and Pakistan. Post the so called surgical strikes of the Narendra Modi Government in India, cross border violence has increased significantly between the two countries. With 700,000 paramilitary and security forces deployed in Kashmir, it is the most militarised zone in the whole world. According to the government statistics in 2018, there were just 150 militants in Kashmir. The amount of militarization of Kashmir is clearly excessive, violating the basic principle of necessity and proportionality in IHL. An international conflict arises when two countries are at war when the provisions of the Geneva Conventions become available. However, in the case of Kashmir, even in the absence of an international armed conflict, there exists a non international armed conflict. (NIAC). Common Article 3 of the Geneva Conventions of 1949, NIAC has been defined as conflicts in which one or more non state armed groups are involved. The situation may occur between the State and non State armed groups or between different non state armed groups.
The three requirements for a conflict to be classified as NIAC are: 1) a minimum level of intensity of the hostility 2) the conflict should include non state parties 3) they should demonstrate protracted violence. The situation in Kashmir fulfills all of these requirements and therefore, the Indian State is bound by the customary rules of International humanitarian law and the Geneva Conventions. Besides, India has alleged a proxy war being fought by Pakistan in Kashmir. In case of which, the non international armed conflict also becomes an internationalised armed conflict. Laws of war apply in this situation. Most actions of India have been questioned for severe violations of IHL, particularly during its use of lethal pellet guns on civilians which injured children as young as nineteen months. The primary principle of IHL is not hurt civilians. According to the JKCSS, in 2019, until June, 43 unarmed civilians were killed. In 2017, a civilian, who was out for voting was tied to a jeep and paraded for hours as a human shield against the stone pelters of Kashmir by the Indian Army. Instead of being held accountable, the Army personnel, Gogoi was rewarded for this clear act which was in violation of the basic principles of IHL. As an established customary rule of IHL human shield are forbidden in both international and non international armed conflict.
The series of human rights abuses in Kashmir are decades old. From the internal displacement of the Kashmiri Pandits from 1989 to the Gawkadal massacre in 1990, mass rapes of Kunan Poshpora in 1991 and the torture and murder of millions of Kashmiris are yet to find justice. India has not ratified the International Convention for the Protection of all Persons from Enforced disappearances or the UN Convention against Torture or other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT). However, India is bound by Customary International Law that strictly prohibits torture. India has repeatedly violated international instruments that they are a party to, including CEDAW, CRC and ICCPR in Kashmir. Most of the actions of the India in Kashmir account for crimes against humanity. It is absolutely necessary that an impartial and independent inquiry is done on all these grave violations in order to bring accountability and justice to Kashmir. The sudden deceitful abrogation of Article 370 has once again escalated the threat to peace and security in Kashmir. Not only is it being seen as an attempt to further persecute the Kashmiri people but also to invite tensions with Pakistan and China. Kashmir is seeing a complete blockage in all communications including internet. Most of Indian media, in sharp contrast to foreign media are reporting utter falsehoods in favour of the Indian government and cheering hate and mass killings. A situation of emergency has been imposed and Kashmir remains cut off from the world. As the United Nations has already expressed their concerns over the issue, they have highlighted that India’s actions are in violation of the International Covenant on Civil and Political Rights. Politicians from across the world have condemned this historic deceit with Kashmir which has once again exposed the treachery and anti human rights tendencies of India in Kashmir. The resentment of the people of Kashmir has been completely hidden from any kind of expression. Politicians and members of the opposition have been put under house arrest. Tensions in borders and apprehensions of further militancy has increased which shall lead to further militarization of oppression civilians and protestors. The tragic aspiration of decolonised India to become a colonizer has ironically made her into what she had once fought against. The values behind its constitution, democracy and ideals of liberty stand threatened by the monstrous greed and lust for a power struggle between two nuclear states.