The democratic freedom that India prides itself has been missing from the Indian Held Kashmir (IHK) since 1947. The voice of Kashmiris has been portrayed as a threat to its territorial integrity, rather than treating it as a whistle-blower’s call to mend the ways. IHK has, indeed, been an open cage for the last six decades or so.
The AFSPA has been in force in different parts of India since 1958 and is currently enforced in IHK, Manipur and Nagaland. Human rights workers have accused the Indian troops of illegally detaining, torturing and killing rebel suspects; sometimes even staging gun battles as a pretext to kill. The law also prohibits soldiers from being prosecuted for alleged violations, unless permitted by the federal government. According to official documents, the IHK government sought permission to try soldiers in 50 cases in the last two decades, but New Delhi has refused the request.
“Immunity provision effectively blocks any prosecution of members of the armed forces…….During my visit to Kashmir, the AFSPA was described to me as ‘hated’ and ‘draconian’. It clearly violates the international law. A number of UN treaty bodies have pronounced it to be in violation of international law as well…….The main finding in my report is that despite constitutional guarantees and robust human rights jurisprudence, extrajudicial killings continue in India and it is a matter of serious concern…….The guidelines laid down by the Supreme Court, many of which have been incorporated through amendments in the Code of Criminal procedure, are not sufficiently complied with,” Heyns claimed. Also, the prevalence of communal violence, encounters, custodial deaths and the plight of dalits and adivasis are other areas of concern mentioned in the report.
He has proposed a number of provisional steps to be taken to address these concerns, including the establishment of a Commission of Inquiry, consisting of respected lawyers and other community leaders. “India also should ratify a number of international treaties, including the Convention Against Torture and the International Convention for the Protection of All Persons from Enforced Disappearance,” he maintained. His final recommendations, however, will be submitted as a comprehensive report to the Human Rights Council. Earlier on, successive UN Special Rapporteurs have demanded investigations to trace thousands of missing persons in the occupied valley and account for the mass graves of 2,700 Kashmiris.
Moreover, Amnesty International has urged India to scrap the Public Safety Act (PSA) that allows the police to detain a person up to two years without charge or trial if he or she is deemed a threat to the state. “Kashmir authorities are using PSA detentions as a revolving door to keep people they can’t or won’t convict through proper legal channels locked up and out of the way,” said Sam Zarifi, Amnesty’s Asia-Pacific Director. A new report from the group said that up to 20,000 people had been held under the law, since the start of insurgency in 1989. The Indian authorities detained hundreds of people each year without charge or trial in order to “keep them out of circulation,” it said. According to an official count, 47,000 people have died in over two decades of rebellion. Amnesty has called for “an independent, impartial and comprehensive investigation” into reports of torture and ill-treatment of detainees.
In January, Special Rapporteur on human rights defenders, Margaret Sekaggya, too, demanded a repeal of the draconian laws. India’s record about human rights violations in Kashmir also came under scrutiny in December 2011, when the leaked diplomatic cables said that the International Committee of the Red Cross (ICRC) had evidence of systematic torture by Indian security forces. The ICRC, according to Wikileaks, told US diplomats in 2005 about 177 visits it had made to Kashmir’s detention centres that revealed “stable trend lines” of prisoner abuses.
Stanley Wolpert. in his book entitled India and Pakistan, writes: “The people of Kashmir themselves must be permitted to choose their own leaders in free and fair elections, as do the Indians in other states in that union, and New Delhi solemnly commit to supporting Kashmir’s provincial autonomy and rights of its people, as it does to the autonomy and rights of the people of Punjab, Maharashtra or West Bengal.”
Nevertheless, the UN is squarely to be blamed for the miseries of the Kashmiris, since it has failed to hold a plebiscite in the disputed valley. Meanwhile, Pakistan has supported them at various stages in varying degrees to wrest their freedom from India. Its support may have been inefficient, but was not illegal. In the post-colonial period, for instance, international law has evolved instruments and articulations on decolonisation that make it legal to support, even militarily, the struggle of the people under foreign occupation. Pakistan, indeed, lost several strategic opportunities for securing Kashmiri rights and freedom; Its effort to evolve a bilateral solution through ‘back channel’ diplomacy was a strategic fiasco. Such a ‘solution’ would have legitimised the status quo and forsaken the rights of the Kashmiris for good.
Pakistan should continue to publicly express and uphold its legitimate position on Kashmir. That a final settlement must be based on the UNSC resolutions, agreed by and, hence, binding upon Pakistan and India. Its articulations must be bold and recurring. As settlement of Kashmir dispute is likely to take indefinite time, therefore, without prejudice to the final settlement, it needs to work out a provisional mechanism to ensure representation of the people of AJK and Gilgit-Baltistan in the National Assembly and Senate.
Here, an appeal is in order to the collective conscience of the American people that before casting their votes in the upcoming presidential elections, they must scrutinise President Barack Obama’s actions towards fulfilling his Kashmir-related pledges during his previous campaign. Moreover, an urging is due to the American Senators and Representatives to take notice of the human rights abuses in Kashmir and hold a hearing on this pressing issue. Sanity demands that Representative Dana Tyron Rohrabacher should focuses on HR situation in Kashmir, which is a UN recognised conflict, instead of wasting his breath in pressurising Pakistan via Balochistan.
n The writer is a retired Air Commodore and former assistant chief of air staff of the Pakistan Air Force. At present, he is a member of the visiting faculty at the PAF Air War College, Naval War College and Quaid-i-Azam University.