Human Rights Violation in Kashmir

India and Pakistan have come close to ear again over terrorism and control of Kashmir

By Prasenjit Maiti

Kashmir is an area on the northern borders of India and Pakistan, officially own as Jammu & Kashmir. Kashmir has been the key to the dispute between India and Pakistan since their independence from the British in 1947. Each country claims Kashmir as a part of its territory. As a result of a rebellion in 1947 and the subsequent wars between India and Pakistan over Kashmir, the area is separated by a Line-of-Control (LOC or cease-fire line). To the east of the LOC lie the vale of Kashmir, Jammu, and Ladakh which are administered by India. To the west lies the area now known as 'Azad [Free) Kashmir' which is considered a province of Pakistan, albeit contested. Since 1989 the controversy over Kashmir has taken a violent turn in the valley; the Kashmiri people themselves have taken up arms against the Indian occupation. India is now deploying more than 700,000 troops in the valley to crush the Freedom Movement. The history of Kashmir has always been seen by the outsiders as a territorial dispute between two neighboring states. No one entertains the notion that the Kashmiri struggle is about the right of Kashmiri people to self-determination.

Most Kashmiris claim that the occupation of Kashmir by India is illegal. They do not want to be part of India nor do they want any Indian presence on their soil. The provisions of the Instrument of Accession, if genuine, stipulated that the accession to India was to be ratified by a plebiscite. Since 1947, India has occupied Kashmir and has stalled, by whatever means at her disposal, the progress towards the holding of a plebiscite - the original and the most universally accepted solution.

Saudi Arabian terrorist Osama bin Laden's Al-Qaeda (The Fort) had been working hand-in-glove with Pakistan's Inter-Services Intelligence to infiltrate India's Line of Control alongside Pakistan Occupied Kashmir by employing fanatic mujahideens (rebels) or plain mercenaries. Border crossing usually happens during the night under artillery fire cover by the Pakistani Rangers against Indian Army and Border Security Force positions. Mujahideens are supposed to fight the jihad (holy war) against "infidel" Hindus in Kashmir, whereas the dogs of war are simply paid to create subversion. Osama bin Laden 5 terrorist activities in Kashmir have all along been helped by the Taliban (student) rulers of Afghanistan who had been indoctrinated in medieval dogma by Pakistani ulema (clergy) and madrassahs (religious schools).

PAKISTAN AND TERROR IN KASHMIR

Kashmir is important in "the new international situation of terrorism and war against terror" as by now it qualifies as a standard of reference by which to judge issues related to escalated global terrorism. The Black Tuesday tragedy of 11 September 2001 is deplorable but it does not justify civilian casualties in Afghanistan caused by Allied military sorties. Worse, the United States has openly favored Pakistan - a rogue state largely responsible for terrorism in Kashmir -and has repeatedly asked India to exercise constraint along its international border! Such double standards would only jeopardize the cause of any war against terror worldwide. Kashmir is not a black-and-white problem, and the United States has to acknowledge the gray areas. India is a more democratic partner for the United States than Pakistan, though it has serious shortcomings in its commitment to human rights.

HUMAN RIGHTS

There have been repeated cases of violation of the Geneva Convention in Jammu and Kashmir. Indian security forces have consistently violated humanitarian law, and do not often comply with its provisions regarding treatment of prisoners-of-war. There were more than 200 incidents of rape in Doda in January 1994 alone. Rape continues to be a major instrument of Indian repression against the Kashmiri people while the majority of casualties in Kashmir are civilians. The Indian authorities have also steadfastly refused to allow any independent monitoring of the situation.

Human rights organizations are routinely denied permission to investigate in a free manner. Although India has recently permitted an assessment visit by the International Committee of the Red Cross and another by the International Commission of Jurists, other organizations have had difficulties conducting public investigation. The International Federation of Human Rights and the Amnesty International have also been denied permission to visit.

Newspersons have been attacked and arrested. Humanitarian relief is limited as external agencies are not being allowed to provide medical assistance and other relief materials. There are incidents of destruction of revered shrines and cultural places by the Indian forces. Villages have been razed to the ground.

Many cases of human rights violation stem from abuse of power under repressive laws and police/army brutality unleashed against the Kashmiri people. They are taken into custody for acts that are legitimized by international human rights standards of free speech, freedom of association and assembly, and freedom of the press. While many arrests are without any legal justification whatsoever, the Indian forces also depend on several laws to justify their acts of human rights violation.

Disregarding the mandates of international humanitarian law, especially the definition of combatants, India claims that the Kashmiri people are terrorists, and has even extended shoot-at-sight powers to its security forces. The following laws widely invoked in Kashmir violate international standards of humanitarian law:

1 The Terrorist and Disruptive Activities Act: Repealed in 1995, the TADA allowed Indian security forces to round up and detain citizens for up to one year without formal charges, due process of law, or any formal trial. This act violates Article 9 of the International Covenant on Civil and Political Rights, which requires that notice of charges be given promptly at the time of the arrest. The TADA also violates Article 14 of the Covenant, which provides for the right to counsel and the right to examine witnesses. Repeal of the TADA, however, has not prevented the widespread repression by the Indian security forces.

2. The Jammu and Kashmir Public Safety Act: This law helps the Indian security forces in Kashmir to detain civilians for up to one year without trial or due process for different reasons, including the exercise of free speech. For instance, under this act, an individual whose child has been murdered by the Indian security forces and speaks out publicly against India's repression can be detained for up to one year without trial for endangering public safety. Also under this act an individual who published pamphlets that support implementation of the United Nations' resolution in favor of a plebiscite in Kashmir can also be arrested and detained without formal charge or due process. This act contains identical drawbacks as the TADA, and with the repeal of the TADA is most likely to be invoked instead.

NATIONAL SECURITY

3. The National Security Act: Under the act, the armed forces and the police can detain individuals for up to one year without charge or trial to prevent them from acting in a manner prejudicial to state security. Under this law, an individual does not even have to engage in any specific act to be detained. If the Indian authorities believe that he I she is about to do indulge in any anti-India activity, they can detain him I her without any charges whatsoever.

4. The Armed Forces Special Powers Act (Jammu and Kashmir): This law was passed on 10 September 1990. It allows the Governor of the State of Jammu and Kashmir to unilaterally declare the whole or any part of the state to be a disturbed area. Once Kashmir is identified as a disturbed area, this act empowers the armed forces to search houses without warrant, arrest Kashmiri citizens without warrant, destroy houses and villages and shoot at unarmed civilians on the streets to kill. For any of these actions, Article 7 of the act, any member of the armed forces who conducts the above described human rights violations - summary executions of unarmed civilians, burning down homes and villages, torture and arbitrary arrest - can do so with immunity from prosecution.

The National Security Act and the Armed Forces Special Powers Act Jammu and Kashmir) also violate Articles 9 and 14 of the Covenant as well as international law standards of protecting speech, press and information, association, and democracy. The Armed Forces Special Powers Act is a violation of the Geneva Convention of 1949 that requires penal sanctions for its violators, and that does not allow any party to absolve itself of liability for any violation whatsoever.

Peace Magazine Jan-Mar 2002

Peace Magazine Jan-Mar 2002, page 18. Some rights reserved.

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