Kashmir – the state which has become a permanent state of emergency

Rafto Laureate 2017 Parvez Imroz explains what emergency law can lead to, the tragic case of Kashmir which was born out of a state of emergency in 1948, which was tightened progressively in the late eighties. The state of Kashmir was annulled by the Indian government, and a radical lockdown with severe restrictions on movement and communication was introduced on 5 August 2019. When the first death caused by Covid 19 was diagnosed in Kashmir 18 March 2020, the Kashmiri people had suffered a radical version of the state of exception now experienced by many others, for 32 weeks.

Jammu and Kashmir is one of the oldest disputes addressed by the United Nations. The UN has passed two main resolutions on 13th August 1948 and 5th January 1949 for resolving the conflict according to the will of the people expressed by the democratic method of a free and impartial plebiscite, which would be conducted under the auspices of the UN. It was followed by another resolution in 1952 for demilitarization of J&K by both countries.

The Government of India has not implemented the scores of resolutions passed by UN by saying that they are no more valid. How can one country decide that? India, which has herself taken the matter to UN, after the Indo-Pakistani war, under Chapter 6 of the UN Charter which relates to dispute, and not under Chapter 7 which relates to aggression. India is claiming that it is no more an international dispute and the UN resolutions have outlived themselves after the Shimla agreement of 1972 reached between India and Pakistan. India is unwilling to engage in a meaningful and purposeful dialogue with Pakistan with whom she has signed the agreement. To the tragedy of the Kashmiri people, the region is internationally perceived as a territorial dispute between the two countries, thereby, dehumanizing the people of Kashmir.

Any solution to Kashmir would be legitimate which is acceptable to people. Under International Humanitarian Law, any agreement between two parties which affects a right of the third party is invalid. How cab a bilateral agreement between two countries overwrite UN resolutions? And for the two countries the primary goal would be their own interests.

Since 1948, India is occupying Kashmir, conducting fraudulent elections since 1957, time to time admitted by the Indian politicians that the Kashmiris were not a part of the Indian democratic system.

Finally, after 1989 when the violence erupted in Kashmir by indigenous militant group, later joined by pro-Pakistani and pan-islamist groups, as a result of which more than 70,000 people have been killed, and more than 8000 subjected to enforced disappearance, massacres, torture, rapes, custodial deaths and other form of human rights violations which constitute as crimes against humanity have been perpetuated. Unprecedented number of the army, more than 6,00,000 have been given impunity under the emergency powers of the Armed Forces (Special) Powers Act (AFSPA) and Disturbed Area Act (DAA) and they can’t be prosecuted for anything they do in the line of duty.

The repression is systematic and institutional. Systematic, in that it is being practiced as a matter of policy under the Doctrine of Sub Conventional Warfare to break the will of the people under occupation; and institutional, i.e. all the institutions of the state, the army, police, executive, legislation and even judiciary is part and parcel of it. Besides legal impunity, the political and moral impunity has also been extended to the army by the Indian media and a section of the Indian civil society.

Since 1947, to consolidate the occupation in Kashmir, nearly 40 400 hectares of the land in J&K ( i.e. more than 400 square kilometer which in size is larger than 12 sovereign nations of the world) have been occupied by the army resulting in environmental disaster and adversarial effects on the culture, traditions, flora and fauna of Kashmir. More and more land is being acquired by the army, thereby shrinking the space for the local inhabitants for their residential purposes. The Government of India admits that there are only remnants of militancy left in Kashmir, i.e. 250-300 militants, then why this disproportionate number of force occupying every nook and corner of Kashmir, in streets, villages, fields, schools, using disproportionate force? The rationale behind it is to control the people of Kashmir who are seeking the right of self-determination according to the UN resolutions.

After the BJP government returned to power in 2019, the special status of the Jammu and Kashmir has unilaterally been withdrawn through a Re-Organization Act passed on August 5, 2019 which took even the Indian rationale and political thinkers to surprise. The status of J&K State was downgraded and divided into two Union Territories causing outrage internationally, particularly Pakistan which is party to dispute.

To avoid massive protests and demonstrations people were put in complete lockdown following the deployment of additional troops, arresting of politicians, even pro-Indian politicians and the civil society leaders under the Public Safety Act( PSA) under which a person can be detained without trial and charge sheet for more than a year. Some of them are still under incarceration including the President of the High Court Bar Association. Internet was snapped for a record-breaking 7 months and communications lines cut, disconnecting people of Kashmir from the rest of the world and themselves.

The present federal government in Kashmir is ruled by the BJP which believes in the Hindutva ideology and is anti-minority. It has been passing legislations like CAA (Citizenship Amendment Act) and NRC (National Register of Citizens) which has caused alarm worldwide with the fear that it will convert the minority into the stateless people. Even UNOCHR has intervened in this matter to the Supreme Court of India.

Neigborhood in Srinagar, Kashmir, destroyed by Indian airforceThe right-wing government has made it an agenda that Kashmir issue would be resolved through demographic changes and by heavy hand. In this case the government of the state which is represented by the Lt. General, an appointee of the President of India with the advisors/ bureaucrats from outside except one Kashmiri, who are passing laws in haste to help in the demographic changes. The so-called institutions meant for protection of human rights have been dissolved, even the judiciary which is not commanding respect by the people as it is compromised as it had approved legislations and anti-human right measures taken by the government.

India has the largest number of think-tank in the world after the United States, and there are opinion makers who are concerned about the facistisation of the Indian politics, eroding the image of India worldwide and the belligerency and anti- minority measures, particularly measures the present government has taken with regard to Kashmir which was always sensitive as it is an international issue. There is hostility between India and Pakistan, two nuclear countries and now even China has jumped in for Ladakh. Kashmir embargo is likely to explode anytime as happened in 2008, 2010 and 2016 when millions of people protested for the right of self-determination in states inviting further militarization and control by the state.

The Government of India has no policy on resolving the Kashmir dispute, only they are in a denial mode on everything, particularly on the human rights situation. It doesn’t allow UNMOGIP to monitor the ceasefire violations almost taking place daily. It refuses to allow the UN Office of the High Commsissioner on Human Rights to investigate the human rights situation in Kashmir, refuses the European Parliament’s resolution on mass graves. It has rejected the Organisation of Islamic Cooperation’s request to visit Kashmir. It has not permitted access for the UN Special mechanisms, particularly the UN Special Rapporteurs on Torture and on Enforced Disappearances, which have been permitted in other Asian countries. It has refused the European election monitoring groups to monitor elections in Kashmir. It has refused foreign journalists to visit Kashmir without permission. The work of the International Red Cross has been stopped in Kashmir. The Government of India has converted the area into an island and with this Covid-19 factor, since March, they are introducing the laws like domicile law which is meant to promote settlement of colonies and anybody opposing it, even journalists are being booked under UAPA (Unlawful Activities Prevention Act) has been assailed in India and anybody under the legislation can be booked as terrorists increasing the anger and frustration amongst the people is increasing.

It is the duty of the international community, particularly the civil society to take a position on the human rights violations in Kashmir and also to express its concern about the settlement colonialism which GOI is pushing and for non-violent conflict resolution of Kashmir.

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