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Human Rights Abuses in Kashmir and the Role of the OHCHR

 By  Qasim Swati (United Kingdom)

The rights, which are believed to belong to every person, are known as ‘human rights.’ Human rights are the basic rights that it is, generally, considered all people should have, such as justice and the freedom to say what you think, the basic rights to fair and moral treatment that everyone is believed to have, etc. These rights are the fundamental and basic freedoms and rights belonging to everyone in the world, from birth until they die. Human rights can protect a person from mistreatment or wrongly being punished by the state, entitling them to the right of private and family, the right to education, the right to an expression of opinions, beliefs and such other basic human activities and roles.

‘Human rights’, as defined by the Office of the United Nations High Commissioner for Human Rights, ‘are rights inherent (existing as a natural and permanent quality or a basic part of something or someone) to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible (not able to be separated from something else or into different parts).’

Likewise, as stated in Article 1 of the Universal Declaration of Human Rights: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’

Human rights are defined and protected by law in every country of the globe in some way. For instance, the human rights of the people in the United Kingdom are protected by the Human Rights Act, 1998. It is an Act of Parliament of the UK, approved in 1998, but mostly came into force in 2000. The Act is, primarily, based on and incorporating the rights, contained in the European Convention on Human Rights, which was drafted in 1950, but entered into force in 1953, and formed on the inspiration of the Universal Declaration of Human Rights, 1948.

The Human Rights Act, 1998, consists of the basic and fundamental freedoms and rights of the people that everyone is entitled to, in the UK, but, as mentioned earlier that the Act contains the human rights we already have in the form of the European Convention on Human Rights, which came into being as a result of the Universal Declaration of Human Rights. Thus, the human rights contained in the Human Rights Act, 1998, are, basically, the rights of the people recognized internationally in one way or another.

The Human Rights Act, 1998, deals with various human rights, which we can refer to, while looking for what we are entitled to, as our rights as humans. The different human rights, included in the Act, are such, as abolition of the death penalty; right to participate in free elections; right to education; right to peaceful enjoyment of your property; protection from discrimination, in regards to these freedoms and rights; right to marry and start a family; freedom of assembly and association; freedom of expression; freedom of religion, belief and thought; respect for your correspondence, home, private and family life; no punishment without law; rights to a fair trial; right to liberty and security; freedom from forced labour and slavery; freedom from degrading or inhuman treatment and torture, and, above all, your right to life. All these rights and freedoms are, generally, known as ‘the Convention Rights’ and have been taken from the European Convention on Human Rights (ECHR), accordingly.

This is not only the Human Rights Act, 1998, of the United Kingdom that we can refer to for finding out and understanding our rights as human beings. Instead, there is a huge list of organizations, conventions, treaties and other bodies where we can find a lot about human rights. If we start searching for the various sources of human rights, we will be able to find a great amount of information on what rights we have as humans in the forms of different documents. Such documents, we can have in the name of, for example, the Universal Declaration of Human Rights, 1948, which is an international document, describing the fundamental and basic freedoms and rights that all human beings are entitled to, irrespective of whatever background or origin they do have.

Adopted by the General Assembly of the United Nations in 1948, the UDHR is based on fairness, equality, and dignity, and is described as the foremost, leading and principal statement of the freedoms and rights of all human beings. Almost all the countries of the world have accepted the Universal Declaration of Human Rights, and it has inspired more than 80 different international conventions, treaties and various domestic laws and regional conventions as well. Every year, on December 10, The Declaration of Human Rights Day is commemorated (marked or celebrated by doing or producing something) on the anniversary of the adoption of the Universal Declaration, known as ‘International Human Rights Day’ or ‘Human Rights Day’, in short, too.

Apart from the Universal Declaration of Human Rights, the European Convention on Human Rights and the Human Rights Act, 1998, in the UK, we can also gather a lot of information on our basic rights and freedoms, as humans, in such other documents, as (i) The 1993 Vienna World Conference on Human Rights; (ii) The International Convention on the Elimination of All Forms of Racial Discrimination (1965); (iii) The Convention on the Elimination of All Forms of Discrimination against Women (1979), and (iv) International Human Rights Law.

We also hear, most of the time, about The International Bill of Human Rights, which is made up and consists of the Universal Declaration of Human Rights (1948), along with the International Covenant on Civil and Political Rights, 1966 (ICCPR), and its two Optional Protocols, and the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR).

In light of the aforesaid various conventions, treaties, pacts, agreements, covenants, protocols and bills in favour and defence of human rights, can we say that the people of Kashmir (as humans) enjoy all the human rights mentioned in these Acts, laws, and bills? Are they given their rights to life, as human beings? Are they free from degrading and inhuman treatment and torture? Do they enjoy their right to liberty, security and fair trial in the courts? Are they not punished without law? Do they enjoy their right of respect for their correspondence, home, private and family life? Are they given their freedom of religion, belief, thought, expression, assembly, and association? Do they get their right to education, peaceful enjoyment of their properties and right to participate in free elections? Are they protected by the State from discrimination, in regards to these freedoms and rights?

The questions, asked above, and so many other such questions and concerns haunt our minds repeatedly when this comes to the situation that the people of Kashmir have been suffering from, for several decades. The answers to, almost, all of these questions are nothing, but ‘NO’, because the people of Kashmir suffer on both sides of the Line of Control between India and Pakistan, which has been designated in 1948, as a cease-fire line between the two countries. This is the same Line of Control which has split Kashmir into two parts and closed the route of the Jhelum Valley, the only entrance of the Valley of Kashmir.

The innocent people of Kashmir cannot enjoy their basic human rights in the disputed territory of Jammu and Kashmir, administered and controlled by India. Neither Muslims nor Hindus and any other religious groups or ethnicities are safe in the whole of Kashmir. On the one hand, the Muslims of Kashmir are the victims of the atrocities, persecutions, victimization, tyranny, oppression and inhuman or cruel treatment by the Indian security forces and the supporters of Bharatiya Janata Party (BJP) and other Hindu extremist groups. On the other hand, there are reports of human rights abuses at the hands of militants and Islamist groups and extremists against the Hindu Kashmiri Pandits’ minority.

The cases, stories and reports of sexual abuses and rapes are not new in the history of Kashmir, but they go back even to 1947, perpetrated and committed not only by the Indian security forces and the activists and supporters of the Hindu fanatical groups, but the Islamic militants, fighting in the area, are also reported to be responsible for the rapes of the Kashmiri women and female population. For example, it is reported that ‘the Pashtun militants (as they are called by the Indian authorities) or the freedom fighters (as named by the Pakistani authorities) raped women, including European nuns, when they invaded Baramulla in a Pakistan army truck on October 22, 1947 (Wilhelm von Pochhammer, 1981).’ Similarly, as stated by (Joshi, Manoj, 1999), it was in March 1990 that the wife of a Border Security Force (BSF) inspector was kidnapped, tortured, gang-raped for many days, and, then, her body was left on a road with broken arms and legs.’

Another report blames the Jammu Kashmir Liberation Front (JKLF) for the gang-raping and beating to death of a Kashmiri Pandit nurse from the Sher-i-Kashmir Institute of Medical Sciences in Srinagar, that took place on April 14, 1990. In the same way, there are many reports of rapes, sexual assaults, and other human rights abuses and violations, linked to different Islamist groups, fighting in the Valley of Jammu and Kashmir, like JKLF, Hizb-ul-Mujahideen, Al-Jihad, Lashkar-e-Taiba and so on.

On the other hand, the Indian security forces are not lagging behind the Islamic militants in perpetrating and conducting rapes, sexual assaults and such other abuses of human rights, as they have been accused by the Human Rights Watch (HRW) for using children as messengers and spies, targeting human rights activists and reporters and committing more than 200 rapes in order to frighten, terrorise and intimidate the local population (Karatnycky, Adrian, 2001). Similarly, ‘the International Committee of the Red Cross (ICRC) claimed and held the Indian security forces responsible for conducting torture and sexual abuses of the people of Kashmir. The report also stated that, when interviewed, 681 out of 1,296 detainees, reported against the torture, done by the Indian security forces, while 304 of those, who had been detained by the security forces, complained of sexual abuse and torture (Nick, Allen, 2010).’

If we carry on discussing the rapes and sexual exploitation, sexual harassment, and sexual abuses, committed by the state and non-state actors in Kashmir, it will need more time and resources to complete the list of such human rights violations and abuses, because this practice of inhuman treatment of the people of Kashmir has been going on for several decades. However, the sexual abuse of the innocent people of Kashmir is only one part of the human rights violations by the Indian security forces, militants and other relevant forces, involved in fighting in the State of Jammu and Kashmir. There are also several other human rights cases of abuse in this part of the world, ranging from torture, mass and extrajudicial killings, forced/enforced disappearances, targeting human rights activists and journalists, destroying properties and homes down to suppression of freedom of speech, political repression, and, most of the times, blockades and disconnection of communication and other basic human facilities.

Most of the aforesaid human rights abuses and violations have been highlighted and recommended to the Human Rights Council for consideration and solution by the Office of the United Nations High Commissioner for Human Rights in its recent report of June 2018.

As being a United Nations agency, working to promote and protect the human rights that are guaranteed under international law and stipulated in the Universal Declaration of Human Rights of 1948, the Office of the High Commissioner for Human Rights (OHCHR) has always been making every effort to make sure the existence of the universal enjoyment of all human rights. The main function of the OHCHR is to remove any barriers and hindrances in order to ensure the implementation of such global enjoyment of human rights effectively and, thus, boost the entire system of the United Nations for cooperating with and coordinating all the acts and activities, in connection with human rights.

The human rights violations in Jammu and Kashmir are so noticeable and colossal that the former United Nations High Commissioner for Human Rights, Navanethem Pillay, had also urged India to revoke and annul the Armed Forces Special Powers Act, 1990, and to investigate the disappearances in Kashmir, because the AFSPA gives the Indian security forces protection and immunity from the alleged human rights violations, committed by them.

The report on the situation of human rights in Kashmir from June, 2016 to April, 2018, prepared and issued by the Office of the United Nations High Commissioner for Human Rights, in June, 2018, is the essence and main source of unveiling, revealing, making public and disclosing the human rights abuses and violations in the State of Jammu and Kashmir. The report has covered and dealt with the human rights violations on both sides of the Line of Control, the Indian State of Jammu and Kashmir and the Pakistan-administered Kashmir. The report has shed light on all the developments of human rights abuses, including the history of various protests, held by the Kashmiri people for their right of self-determination in the late 1980s to early 1990s, 2008, 2010 till the protests of 2016 onward. The report has discussed the killings of civilians in 2016 to 2018, the use of lethal and dangerous weapons against the protesters by the Indian security forces, like the pellet-firing shotguns, the impunity for human rights abuses, the lack of access to justice, the enforcement of special laws in the State of Jammu and Kashmir, such as, the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, and the Jammu and Kashmir Public Safety Act, 1978 (PSA), the illegal detention of people in 2016 and 2017, the discontinuation of basic medical services during the disruption and disturbance of 2016 in the State, the frequent communications blockades during the 2016 unrest, frequent strikes and long periods of curfew in 2016 and 2017, exemption from punishment (impunity) for involuntary and enforced disappearances and alleged sites of mass graves in the State of Jammu and Kashmir, the failure of the authorities for not investigating and prosecuting the allegations of sexual abuses by the personnel of the security forces and intentional neglect of and non-compliance with the independent investigations into the violence against the Pandit community and their displacement, etc.

The OHCHR has recommended to both the authorities in India and Pakistan to address and deal with the plight of the people of Kashmir properly, responsibly and sincerely in order to bring an end to the human rights abuses in the Indian State of Jammu and Kashmir and the Pakistan-administered Kashmir.

The Office of the High Commissioner for Human Rights has urged the Indian authorities for completely respecting the international human rights law obligations and responsibilities, in association with human rights’ situation, prevalent in Kashmir under the control of India. The OHCHR also wants the Indian government to abrogate and nullify the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, as soon as possible and bring the criminals, offenders and culprits, accused of human rights violations in Kashmir, among the Indian security forces, to justice. This has also been recommended to the Indian authorities to impartially, independently and credibly investigate all the killings of civilians, the arson attacks on schools, the interruption of medical services and the unnecessary use of force by the Indian security forces, which resulted in severe injuries of the innocent people while using such weapons, as the pellet-firing shotguns, etc., during the unrest of 2016 in the region of Jammu and Kashmir.

The Indian government is also urged in the report to investigate all the killings during the operations of the security forces in the Jammu and Kashmir, the abuses and exploitation of the people of Kashmir, committed by the armed groups, the deaths of the minority Kashmiri Hindus since the late 1980s, along with investigating and prosecuting all cases of sexual violations and having free media in Jammu and Kashmir. All the victims and families of those, killed during the security operations, should be compensated and rehabilitated, too, as recommended by the report.

The report recommends to the relevant authorities in India for amending the Jammu and Kashmir Public Safety Act, 1978, by adapting it, in line with the international law on human rights. Similarly, all unmarked graves in the State of Jammu and Kashmir should be investigated credibly, impartially and independently. All the people detained under administrative detention should be set free or charged appropriately, if necessary, but should be provided with a fair trial, as guaranteed, according to International law.

It is recommended to the Indian government in the report, issued by the OHCHR, to accept the invitation requests of the nearly 20 mandates, in accordance with its standing invitation to the Special Procedures. The Indian government is asked to accept, specifically, the request made by the Working Group on Involuntary or Enforced Disappearances and also to cooperate with the Working Group on visiting India as well as Jammu and Kashmir for making an independent investigation.

The report has not turned a blind eye to the pivotal point of the Kashmir conflict, but has made a strong recommendation by asking the relevant authorities in India to thoroughly and completely give the people of Kashmir the opportunity to enjoy their legitimate and lawful right of self-determination, in line with the rules set by international law.

The report of the OHCHR, issued in June, 2018, on the situation of Human Rights in Kashmir, has also recommended to the authorities in Pakistan to fully accept and shoulder the responsibility of respecting the human rights of the people of Kashmir, administered and controlled by Pakistan, by redressing and rectifying the human rights abuses in the area and facilitating the Commission of Inquiry, as proposed in the report. The report has held both India and Pakistan responsible for the abuses and violations of the human rights of the people of Kashmir on both sides of the Line of Control and asked both of them to take responsibility for resolving this issue.

The report received two totally opposite and different reactions and responses from the two countries, as Pakistan has accepted the report by officially announcing its willingness to help and cooperate with the Commission of Inquiry, as proposed by the report of the OHCHR. However, India strongly rejected the report and dubbed it as false, untrue, wrong, flawed, partial and biased and the one having a particular motive or reason behind.

As being a United Nations agency, the Office of the United Nations High Commissioner for Human Rights, while keeping in mind its responsibilities as a responsible and an international body, should decide how to react to the reaction to its report from India, in order to bring an end to the sufferings, torture, hardships, problems and human rights abuses of the innocent people of Kashmir by the hands of those responsible for human rights violations in the State of Jammu and Kashmir for the last seven decades.

Qasim Swati is a freelance journalist, writer, and human rights activist, based in the UK, and can be reached at https://qasimswati.com or mailto:info@qasimswati.com.

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