Human Rights Minister Dr Shireen M Mazari wrote a detailed letter to 18 UN Special Procedures mandate-holders (Special Rapporteur) on massive violations of International Human Rights Law by the Government of India in IOK.
In a letter, Dr Mazari drew the attention of the UN Special Rapporteurs to the massive human rights violations committed by India against the people of Kashmir, in a blatant and forceful attempt to deny the latter their right to self-determination including the Gender-Based Violence as a weapon of war, Communications shutdown, Imposition of a curfew, Arbitrary arrests and detentions; arrests of political leaders, Religious persecution and violations against children.
She showed her grave concern over the violations and threat of further gross violations of human rights alongside of ethnic cleansing and genocide.
Dr Mazari asked the United Nations Special Procedures mechanisms to intervene to stop the violations of International Human Rights laws in IOK, in accordance with their respective mandates, with the Government of India to request the following, inter alia: That the State of India reverse its illegal annexation of Jammu and Kashmir; That the State of India end the communications shutdown in the disputed region of Jammu & Kashmir; That the State of India ensure compliance with its international human rights obligations, specifically under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights; That the State of India ensure that the conduct of its security forces complies with the stipulations of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; That the State of India fulfill its due diligence obligation to investigate and prosecute all unlawful arrests, killings, detentions and uses of force by its security forces, particularly in excesses committed against unarmed women and children in the disputed Jammu & Kashmir region.
Draft of the letter wrote to the 18 UN Special Procedures mandate-holders (Special Rapporteur) is;
- The working group on arbitrary detention (pursuant to Human Rights Council resolution 33/30)
- The special rapporteur in the field of cultural rights (pursuant to Human Rights Council resolution 37/12)
- The special rapporteur on extrajudicial, summary or arbitrary executions (pursuant to Human Rights Council resolution 35/15)
- The special rapporteur on the right to food (pursuant to Human Rights Council resolution 40/7)
- The special rapporteur on the promotion and protection of the right to freedom of opinion and expression (pursuant to Human Rights Council resolution 34/18)
- The special rapporteur on the rights to freedom of peaceful assembly and of association (pursuant to Human Rights Council resolution 32/32)
- The special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (pursuant to Human Rights Council resolution 33/9)
- The special rapporteur on the situation of human rights defenders (pursuant to Human Rights Council resolution 34/5)
- The independent expert on the promotion of a democratic and equitable international order (pursuant to Human Rights Council resolution 36/4)
- The special rapporteur on minority issues (pursuant to Human Rights Council resolution 34/6)
- The special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance (pursuant to Human Rights Council resolution 34/35)
- The special rapporteur on freedom of religion or belief (pursuant to Human Rights Council resolution 40/10)
- The independent expert on protection against violence and discrimination based on sexual orientation and gender identity (pursuant to Human Rights Council resolution 41/18)
- The special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (pursuant to Human Rights Council resolution 34/19)
- The special rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights (pursuant to Human Rights Council resolution 36/10)
- The special rapporteur on violence against women, its causes and consequences (pursuant to Human Rights Council resolution 41/17)
- The working group on discrimination against women and girls (pursuant to Human Rights Council resolution 32/4)
- The special rapporteur on the right to education (pursuant to Human Rights Council resolution 35/2)
Subject: Human rights violations by the State of India in Indian Occupied Kashmir
Human rights violations have been ongoing in Indian-Occupied Kashmir for over seven decades now. There have been two reports issued by the United Nations Office of the High Commissioner for Human Rights (OHCHR), in June 2018 (First Report) and July 2019 (Second Report), on the disputed region of Kashmir.
The OHCHR, in these Reports, raised concern over the excessive use of force by Indian security forces in Indian-Occupied Kashmir, specifically highlighting the use of pellet guns by Indian Security Forces. This is not the only indiscriminate weapon India has used against the Kashmiri people. In this regard, on 5 August 2019, I communicated Pakistan’s concerns regarding India’s use of cluster munitions across the Line of Control (LoC) to the United Nations High Commissioner for Human Rights, Ms. Michelle Bachelet.
Since that time, instead of restraining itself from committing further human rights violations, the Government of India has taken the additional unilateral action of revoking Articles 370 and 35A of its Constitution, which safeguarded the special status of Kashmir, resulting in even further human rights abuses. Indian revocation of these provisions in its Constitution constitutes an annexation by force and is, therefore, illegal under international law, particularly taking into consideration Articles 2(3) and 2(4) of the United Nations Charter and the Fourth Geneva Convention.
Due to the illegal communications shutdown by the Government of India, it has become increasingly difficult to report violations from within Kashmir. However, despite this unlawful shutdown, several reports still do continue to emerge from the zone of occupation, highlighting clashes between Indian Security Forces and unarmed Kashmiris. In fact, Special Procedures mandate-holders have raised serious concern with India over its use of excessive force against the Kashmiri people: “India has the responsibility to use the minimum force necessary when policing protests. This means that the use of deadly force is a measure permissible only as last resort and to protect life”.
The Indian Cultural Forum undertook a fact-finding visit to Occupied Jammu & Kashmir between 9 and 13 August 2019, highlightinginter alia serious shortages of food, medicines and other basic necessities. Their fact-finding report also illustrates the specific targeting of peaceful civilians with pellet guns. One such case highlighted by the Forum includes the attack against Mr. Samir Ahmed, a graphic designer for the newspaper “Rising Kashmir”, on 6 August 2019. He reportedly received 172 pellet injuries.
It merits mention here that many of the victims of excesses by Indian Security Forces have been children. In December 2018, it was reported that Indian Security Forces had used pellet guns against an 18-month-old baby girl named Hiba Nasir. It was widely reported in international media that the baby girl would most likely permanently lose her vision. The cases of Hiba and Mr. Ahmed are just two of several continuing incidents of excessive use of force against peaceful and unarmed civilians, in clear breach of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
I would like to draw the attention of the United Nations Special Procedures mechanisms to the following human rights violations committed by India against the Kashmiri people, in a blatant and forceful attempt to deny the latter their right to self-determination:
Gender-Based Violence as a weapon of war
· A video surfaced around 6th August 2019 of the Bharatiya Janata Party’s (BJP) Vikram Saini, a Member of the Legislative Assembly, commenting as follows: “Muslim party workers should rejoice in the new provisions. They can now marry the white-skinned women of Kashmir”.
· On 10 August 2019, the Chief Minister of Haryana, Mr. Manohar Lal Khattar issued the following statement: “Some people are now saying that as Kashmir is open, brides will be brought from there. But jokes apart, if [the gender] ratio is improved, then there will be a right balance in society”.
· Since 5th August 2019, it has been reported that Google has experienced an increase in searches on “How to marry Kashmir women”. This misogyny, hypersexualization and objectification of women in a conflict zone is not new to the State of India: it has systematically used Gender-Based Violence (GBV) as a weapon of war in the disputed region of Kashmir. Such incidents of GBV have been widely reported in international print media, and can be traced back as far as 23 February 1991, when Indian soldiers raped over 30 women in Kunan and Poshpora villages in the Kupwara District. The OHCHR Second Report, in July 2019, recognized this GBV by India, stating: “There has been no progress in the Kunan Poshpora mass-rape case from 1991, and authorities continue to thwart attempts of the survivors to get justice”.
· The lack of investigation and prosecution of perpetrators in the Kunan and Poshpara cases is an alarming violation of the obligation of States to exercise due diligence in investigating crimes against women and girls and in providing adequate compensation to victims without delay.
· In a report to the Human Rights Council, namely A/HRC/7/3 (at para. 69), the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment emphasized: “rape and other serious acts of sexual violence by officials in contexts of detention or control not only amount to torture or ill-treatment, but also constitute a particular egregious form of it, due to the stigmatization they carry”.
· What should be of particular concern is the capacity for increased threats of GBV against Kashmiri women, taking into consideration the impunity for large-scale violations of this nature against Dalit women and girls across India, which have been previously taken up by many Special Procedures mandate-holders, including in AL IND 8/2018 of 23 May 2018. In this letter, the mandate-holders raised the following concern: “The violence Dalit women face is borne from multiple and intersecting forms of discrimination, such as gender, caste and poverty”. This is an equally concerning factor with respect to GBV in Indian Occupied Jammu & Kashmir, where the specific targets are Muslim women.
· The Human Rights Council, in its resolution 12/16, explicitly called upon States to recognize that the exercise of the right to freedom of opinion and expression is one of the essential foundations of a democratic society. As such, any limitations imposed upon this right must satisfy the threshold criteria established under international human rights law, i.e. limitations must be: (i) prescribed by law; (ii) in compliance with the strict tests of necessity and proportionality; (iii) applied only for those purposes for which they are prescribed; and (iv) directly related to the specific needs upon which they are predicated. The Government of India has not complied with this criteria for legality of restrictions on the right to freedom of opinion and expression.
· Since the early hours of 5th August 2019, mobile and Internet services have remained blocked in India for at least two weeks now, with a devastating impact on the right of the Kashmiri people to not only communicate with one other and express their opinions, but also their right to avail education and medical facilities, due to the inability to make contact within the region.
· The illegality of the Indian-imposed communications shutdown in Indian-Occupied Kashmir has been highlighted by several mandates of the UN Special Procedures on 22 August 2019: “The shutdown of the internet and telecommunications networks, without justification from the Government, are inconsistent with the fundamental norms of necessity and proportionality… the blackout is a form of collective punishment of the people of Jammu and Kashmir, without even a pretext of a precipitating offence”.
· India appears to rely on national security as a ground for unlawfully and excessively restricting the right to freedom of opinion and expression. In this regard, the State of India must be reminded that the onus is on it to establish that: (i) the expression it seeks to limit poses a grave threat to legitimate national security interests; (ii) the restriction on expression imposed is the least restrictive means possible for protecting national security interests; and (iii) the restriction is in conformity with democratic principles. A blanket communications shutdown would not satisfy this criteria and this perhaps explains the lack of attempts by the Indian Government to offer legal reasoning for its conduct.
Imposition of a curfew
· On 22 August 2019, with respect to the curfew imposed across Jammu & Kashmir, Special Procedures mandate-holders reminded Indian authorities “that the restrictions imposed by the Indian Government are intrinsically disproportionate, because they preclude considerations of the specific circumstances of each proposed assembly”.
· The curfew imposed by the Government of India acts as a blanket restriction on the rights of peaceful assembly and association, whilst also prohibiting the right to freedom of movement. It has the inevitable impact of associated violations of the right to religious freedom because of the nature of religious worship of Muslims, i.e. in congregation, including through Friday prayers.
· The freedom to worship has as an integral component the freedom to assemble in connection with religion and/or belief, including through access to places of worship, as established in the UN General Assembly’s Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief (A/RES/36/55, para. 6(a)).
Arbitrary arrests & detentions, including arrests of political leaders
· Former Chief Minister of Indian-Occupied Jammu & Kashmir, Ms. Mehbooba Mufti, tweeted, on 5 August 2019: “Today marks the darkest day in Indian democracy. Decision of J&K leadership to reject 2 nation theory in 1947& align with India has backfired. Unilateral decision of Government of India to scrap Article 370 is illegal & unconstitutional which will make India an occupational force in Jammu & Kashmir. It will have catastrophic consequences for the subcontinent. Government of India’s intentions are clear. They want the territory of Jammu & Kashmir by terrorizing its people. India has failed Kashmir in keeping its promises”. Ms. Mehbooba Mufti was swiftly arrested and detained shortly after the Rajya Sabha in India passed the unlawful bill. Similarly, Mr. Omar Abdullah, another former Chief Minister of Indian-Occupied Jammu & Kashmir, was also arrested and placed under house arrest between 4 and 5 August 2019.
· Apart from political leaders being arrested and detained, it is estimated that at least 2300 people have been detained in Kashmir, with the number of arrests rising as the clampdown against human rights by Indian Security Forces intensifies.
· The unilateral move by India in revoking Articles 370 and 35A of its Constitution have effectively infringed on the right to freedom of thought, conscience and religion of the Kashmiri people. Since the right to peaceful assembly has been unreasonably and excessively restricted by the Government of India, the Muslim population of Kashmir could not congregate, as per its religious requirements, for Eid.
· This prohibition on celebration of Eid ul-Azhais in clear breach of the right of the Kashmiri people to observe their religion freely, without persecution and in community with others. Over and above the unlawful limitation on this right, reports also surfaced from the occupation zone, noting violent repression of peaceful protests after Friday prayers in Srinagar prior to Eid-ul-Azha. Videos that have been shared from inside the conflict zone clearly demonstrate excessive use of force by Indian Security Forces, which have fired live bullets at protestors en masse in their attempts at crowd-control and dispersal.
· These, and other, acts of violence have even been acknowledged by mainstream politicians, such as the Leader of the Congress Party, Mr. Rahul Gandhi who has noted “people dying” in Jammu & Kashmir, in light of events “going very wrong there”.
· India is a State Party to the International Covenant on Civil and Political Rights (ICCPR), which safeguards in Article 27 the rights of minorities. Further, under Article 2 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, it is clearly stated that persons belonging to minorities have the right to enjoy their own culture, profess and practice their own religion, and to use their own language, in private and in public, freely, without any interference or any form of discrimination, thus securing effective participation of minorities in cultural,religious, social, economic and public life.Article 4.1 of the Declaration on Minorities additionally sets out that “States will take measures where required, to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law”.
· When the Kashmiri people are denied access to their mosques, or denied the right to observe and celebrate, in community, their religious festival of Eid, it is clear that the State of India is in breach of its international legal obligations on protecting and safeguarding the rights of minorities.
Violations against children
· Indian Security Forces have reportedly been arresting minor children across the occupation zone, in violation of India’s commitments under the Convention on the Rights of the Child. This is problematic enough in and of itself, however, there are other violations of the rights of children that also stem from the general clampdown climate in Occupied Kashmir. For instance, because of the communications shutdown, the imposition of a curfew and the volatile, explosive situation on-ground, schools in Occupied Jammu & Kashmir are practically deserted. This is yet another serious breach of international human rights law by the Government of India, which has, through its unilateral and arbitrary actions, denied Kashmiri children the right to attend school, a right guaranteed to them under international law, specifically under the International Covenant on Economic, Social and Cultural Rights (ICESCR).
· As mentioned in the preceding paragraphs, children have often been the targets of pellet guns used by the Indian Security Forces. The case of Hiba Nasir, highlighted above, is one such incident reflecting not only breaches of human rights law but also violations of the rules on targeting and principles of proportionality, necessity and distinction under International Humanitarian Law.
While the violations discussed above represent only a fraction of the total horrifying violations being committed by the State of India against the Kashmiri people, they are an apt illustration of the intensity of the conflict and gravity of rights violations currently on-going in the region. Recently, Mr. Rahul Gandhi, President of the Congress Party, and several other Indian opposition leaders, were forcibly returned from Srinagar Airport to New Delhi. This further nullifies claims by the Indian Government that the situation is “normal”. In this regard, it is worth mentioning here the statement by senior Congress Party leader, Mr. Ghulam Nabi Azad: “If the situation is normal, then why is the government restricting us from entering the Valley? On the one hand, the government says that things are normal and on the other they impose entry restrictions. Why so many contradictions?”
It is with grave concern over these violations, and the threat of further gross violations of human rights alongside a fear of ethnic cleansing and genocide, that I request the United Nations Special Procedures mechanisms to intervene, in accordance with their respective mandates, with the Government of India to request the following, inter alia:
(i) That the State of India reverse its illegal annexation of Jammu and Kashmir;
(ii) That the State of India end the communications shutdown in the disputed region of Jammu & Kashmir;
(iii) That the State of India ensure compliance with its international human rights obligations, specifically under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights;
(iv) That the State of India ensure that the conduct of its security forces complies with the stipulations of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials;
(v) That the State of India fulfill its due diligence obligation to investigate and prosecute all unlawful arrests, killings, detentions and uses of force by its security forces, particularly in excesses committed against unarmed women and children in the disputed Jammu & Kashmir region.’