[Aqeel]

The right to self-determination is the cornerstone of the international world order and established human rights under the UN Charter. It is applicable to all peoples whose self-determination has been suppressed. It is recognized as one of the pre-emptory norms of international law. The United Nations Resolution 1514 (XV) of December 14, 1960, on the “Declaration on the granting of independence to colonial countries and peoples,” states in its salient operative paragraphs:

1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and cooperation.

2. All peoples have the right to self-determination, by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

3. UN Resolutions 2625 (XXV) of October 25, 1970, and 55/85 of December 4, 2000, reiterate these principles. The International Covenants on Civil and Political Rights (the ICCPR) and on Economic, Social and Cultural Rights (the ICESCR), identically state in Article 1 of each of the Covenants:

I. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. . . .

Kashmir— A Test Case

The most important test case for the international community to meaningfully face up to state terrorism, politically in terms of addressing a grave threat to international peace and security, legally in terms of fulfilling the letter and spirit of the post–September 11 Security Council resolutions against terrorism, is to redress the political and humanitarian and human rights crisis of the thirteen million Kashmiri people struggling for their right of self-determination for fifty-six years under alien and foreign domination in contravention of Security Council Resolutions, by implementing the Security Council Resolutions, and by extending the necessary application of existing humanitarian law and practice, and thereby progressing towards a peaceful and just resolution of this longstanding dispute in accordance with the wishes of the Kashmiri people.

The genesis of this crisis lies in the fact that when in 1947 British India was divided, Muslim majority areas were to go to Pakistan, and Hindu majority areas to India. The state of Jammu and Kashmir was one of 584 princely states of British India, with a Muslim majority, ruled by a Hindu Maharaja. He requested and concluded a stand-still agreement with Pakistan, but unleashed a reign of terror against the Muslim population, who revolted. To save his personal rule, he requested Indian assistance, which was only given on condition that he sign a so-called Instrument of Accession with India, against the wishes of the Kashmiri people. Even in his provisional acceptance, Indian Governor General Lord Mountbatten, wrote back adding an important rider namely, “The question of the State’s accession shall be settled by a reference to the people.” Kashmir was thrown into turmoil, and this led to a brief armed conflict between India and Pakistan. India referred the dispute to the UN Security Council. A special Commission (United Nations Commission on India and Pakistan—UNCIP) was constituted to investigate the matter independently and help the contending parties reach a negotiated settlement.
The most important outcome of the deliberations of the commission were two resolutions, passed on August 13, 1948, and January 5, 1949. The first inter alia called upon both governments “to reaffirm their wish that the future status of Jammu and Kashmir shall be determined in accordance with the will of the people.” The second declared that both governments in their communications had accepted a set of principles, the most important of which was that: “The question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite.” These resolutions therefore called upon the governments of India and Pakistan to arrange for the holding of a plebiscite in order to enable the people of Kashmir to themselves decide their fate, that is, whether to join India or Pakistan. UN Security Council Resolution 122 of January 24, 1957, provides that, “the final disposition of the state of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations.” The modalities of such a plebiscite have been spelled out in the Security Council Resolution 47 of April 21, 1948.

India initially agreed to hold the plebiscite. Indian then–Prime Minister Jawaharlal Nehru pledged to the people of Kashmir an affirmation of the Kashmiri peoples right to self-determination.

India later reneged on its commitment. Since then, it has contemptuously disregarded the various UNCIP and Security Council resolutions calling for the plebiscite and continues to occupy Kashmir by force against the wishes of its people. The Kashmiri self-determination struggle is founded on these Security Council decisions, which arose from the events and circumstances briefly outlined above. In terms of international law it is clear that the Kashmiri people’s right to self-determination remains, and has not been extinguished by any subsequent Indian constitutional measure, or local elections. Since the territory remains in dispute, there is no question of its right of self-determination being confused with the issue of secession from India. The issue of the competence of an elected body such as Constituent Assembly to adopt decision on the dispensation of the state of Jammu and Kashmir on behalf of the people of Kashmir as an alternative to UN administered plebiscite has been effectively dealt with in the UN Security Council Resolution 122 of 1957, which declares that the convening of a Constituent Assembly as recommended by the General Council of the “All Jammu and Kashmir National Conference” and any action that Assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire State or any part thereof, or action by the parties concerned in support of any such action by the Assembly, would not constitute a disposition of the State.

This epic struggle of the Kashmiri people for the realization of their internationally acclaimed and inalienable right to self-determination has been labelled as terrorism by the Indian government to justify its brutal repression of the Kashmiri people. For four decades the Kashmiri people tried through peaceful means to persuade India to grant them their right of self-determination, and they continued to expect the international community to assist them through the realization of the UN Security Council Resolutions. However, the Indian response was to unleash a reign of state terror against the captive and occupied Kashmiri people. The killing of over 100 demonstrators on January 21, 1990, in Srinagar by indiscriminate firing of the Indian forces on peaceful Kashmiri demonstrators set the stage for the Kashmiris to opt for a direct action. Since then over 80,000 Kashmiris have been killed, of these 5,000 died in judicial custody about 8,000 Kashmiri women and girls were raped, and at least 100,612 houses and shops were gutted by fire. A huge Indian army of over 700,000 troops is deployed in Kashmir. This is the highest troops-to-inhabitants ratio in any occupied territory in the world throughout history. In the last 12 years scores of massacres against the innocent people of Kashmir have been perpetrated by the Indian military and security forces. In 2001, Kashmiris numbering 4,677 were killed, 682 died in custody, 2,395 children were orphaned, 871 women were widowed, 519 women and girls were raped or molested, 6,058 illegal arrests were made, 8,002 were tortured and injured, and 1,988 shops, houses, and schools were damaged.

It is evident that the longstanding and increasingly serious political, humanitarian and human rights situation in Indian-occupied Jammu and Kashmir has precipitated the Kashmiri self-determination struggle in this disputed and occupied territory. India’s refusal to allow a plebiscite and its brutal repression are among the fundamental causes of the popular Kashmiri revolt against India. The installation of puppet governments accompanied by the enforcement of direct rule from New Delhi and disempowerment of the people of Kashmir has led to a political vacuum.

India continues to enforce highly restrictive laws, which undermine the fundamental human rights of the Kashmiri people. The special repressive laws extended to occupied Kashmir, include the Armed Forces Special Powers Act (1995) and the Jammu and Kashmir Public Safety Act (1978). Equally, although the Terrorist and Disruptive Activities (Prevention) Act (TADA), lapsed in 1995, the authorities still use it to detain people in Jammu and Kashmir by linking them to ongoing cases filed before 1995. Hundreds of people remain under detention under TADA despite Indian Supreme Court Orders for review of all cases. Finally, there is the Prevention of Terrorism Ordinance (POTO) 2001, which is to replace TADA.

Widespread Violations of International Humanitarian Law

The recently released report of the Human Rights Watch for the year 2001, has most recently documented incidents of human rights violations of the civilian population in occupied Kashmir, part of a consistent pattern. It has taken note of the fact that the newly formulated Prevention of Terrorism Ordinance (POTO) to replace the notorious Terrorist and Disruptive Activities (Prevention) Act, allowed preventive detention for three months without any charge. The ordinance came under sharp attack in India from civil rights groups, academics, lawyers, opposition parties, media organizations and both religious and secular institutions as well as the National Human Rights Commission. The constitutional safeguards providing for equality before the law, the right to life, and the right against arbitrary detention have been jeopardized by various draconian laws to the detriment of the human rights of the people of Jammu and Kashmir.

India has also not permitted the International Committee of the Red Cross to offer the full protection and assistance it is entitled to operationalize in the situation obtaining in occupied Jammu and Kashmir, in terms of the Geneva Conventions and Protocol-I and -II, whose application has been justified under international humanitarian law and practice by the prevailing situation. In 1995 the International Committee of Red Cross (ICRC), undoubtedly shocked by the unfolding grave humanitarian and human rights violations and crisis in occupied Jammu and Kashmir, after an internal discussion, decided that it had no option but to intervene and to offer its services under its mandate and duty under the Geneva Conventions. Probably for pragmatic reasons, the ICRC did not make a formal declaration that Protocol-II was now applicable, and did not issue any declaration on the applicability of the Geneva Conventions and Protocol-I pertaining to self-determination struggles. However, on June 22, 1995, the ICRC signed a memorandum of understanding with the Indian government, permitting it to visit security detainees in the Indian-occupied territory. The ICRC, apart from visiting detainees since then, has also held a series of presentations on basic humanitarian rules for combatants for the Indian security forces in occupied Kashmir, and in New Delhi.

It is clear that whether or not India de jure accepts the fact that the legitimate struggle of the Kashmiri people for their inalienable right of self-determination, by all available means, attracts the applicability of the Geneva Conventions and Protocol-I, or a non-international armed conflict attracting the applicability of Protocol-II, the very fact that the ICRC was impelled to intervene—and that this partial intervention was accepted by India—demonstrate that even if India is not ready to extend the protection offered and assume the obligations it should have undertaken under the Geneva Conventions and Protocols. India has defacto recognized since 1995 that there is a serious human rights and humanitarian crisis.

When the international community under the lead of the Security Council has already actively intervened in Rwanda, Bosnia, and Kosovo, under the doctrine that large-scale violations of human rights and international humanitarian law and the ensuing magnitude of human suffering constitutes a threat to international peace and security and gives rise to measures under Chapter VII of the UN Charter, it is clear that the international community no longer accepts the doctrine of sovereign inviolability, and indeed has a legal and moral duty to take effective notice of such situations, which must lead to steps towards amelioration.

A partial glimpse of numerous international and Indian human rights reports on the growing human rights and humanitarian crisis in Indian occupied Jammu and Kashmir, demonstrates the magnitude of the problem and its implications for the conscience of the world community.

The situation will continue to deteriorate unless India ends widespread human rights violations by its security forces in Kashmir. . . . encourage the Indian government to ensure that all reports of extra-judicial executions, “disappearances,” deaths in custody, torture, and rape by 11 See UN Security Council Resolution 794 (1992)on Somalia, Resolution 929 (1994) on Rwanda, Resolution 770 (1992)on Bosnia and Herzegovina, Resolution 1244 (1999) on Kosovo, Resolutions 808 (1993) and 827 (1993), setting up the International Criminal Tribunal for Yugoslavia, and Resolution 955 (1994) establishing Arusha Tribunal for Rwanda; Schindler, “Significance of the Geneva Conventions.” security forces and unofficial paramilitary forces in Kashmir are promptly investigated and prosecuted. (Human Rights Watch World Report: November 20, 2001)

If those violations had been seriously addressed at any time over the last ten years, the risk of a military confrontation between India and Pakistan might have been reduced. The escalation in fighting has made it urgent that the international community put pressure on India to end widespread human rights violations by its security forces in Kashmir. . . . In their effort to curb support for pro-independence militants, Indian security forces have resorted to extra judicial executions, “disappearances,” torture, and rape. Widespread arbitrary arrests and collective punishments have further alienated many Kashmiris. . . . Respect for human rights must be at the center of any effort to resolve the conflict . . . . By ignoring the human rights dimension of the conflict, international diplomacy to end the fighting in Kashmir is bound to fail. (Human Rights Watch Report, 1999)
Impunity has been and remains a serious problem in Jammu and Kashmir. (US Department of State Report on Human Rights, 1999)

The Government of India provides impunity to its agencies under various legislation. The Government of India sanctioned impunity to the armed forces through an amendment of Section 197 of the Criminal Procedure Code in 1991. (South Asian Human Rights Documentation Center report of July 1997)

Many impartial observers have noted that in recent years, some important incidents in India-occupied Kashmir and within India itself, have surprisingly tended to coincide with high-level visits between India and the United States, and on other important occasions, and have been used by India to portray itself as a victim of terrorism sponsored from abroad. In one such case, the Chattisinghpora Sikhs killings, Pakistan called for an impartial investigation, and in another case, the attack on the Indian Parliament, Pakistan called for a joint investigation, but India refused. Amnesty International noted that the Chattisinghpora incident had not been investigated, and this was confirmed by the US Department of State report on Human Rights Practices—2000. An independent inquiry carried out by two Indian NGOs, the Punjab Human rights Organization (PHRO) and the Movement Against State Repression (MASR), reached the conclusion that renegade elements, in the pay of Indian agencies, were responsible for the Chattisinghpora massacre.

Deployment of Renegades

Throughout history oppressive regimes faced with popular resistance, have overtly and covertly armed and utilized irregular individuals, groups and forces, to cow the resistance movement through a campaign of terror, in an ultimately vain attempt to deny official complicity. Hence, another complicating factor in occupied Kashmir is the presence and operation of Indian government–sponsored counter militants/renegades. These dark forces are responsible for many acts of brutal terrorism, which serve the double purpose of both spreading indiscriminate terror and of severely damaging the image of the Kashmiri self-determination movement. Only India has benefited from such terrorist incidents. Therefore, some observers believe that these terrorist acts in Kashmir are the handiwork of Indian security and intelligence agencies, using such “agents provocateurs.”

Again many International and Indian human rights organizations have drawn attention to the activities of such Indian-sponsored “irregular” forces.
Renegades, while usually acting in conjunction with any of these agencies are also reported to have actively taken people into their custody and “disappeared” them. (Amnesty International Report,1999).

Government agencies fund, exchange intelligence with, and direct operations of counter-militants as part of the counterinsurgency effort. (US Statement Department Report on Human Rights, 1999).

This policy of arming private gangs and protecting their criminal acts must be condemned unequivocally. The terror it has created in Kashmir has to be seen to be believed. . . . These uniformed sarkari militants go around with their not-yet-uninformed friends and commit murder and loot and torture at will. There cannot be a more shameful outrage on law and lawful authority than this policy being pursued in Kashmir by the State and Central governments. (Press release by Andhra Pradesh, Civil Liberties Committee, July 1997).

Indian forces have in effect subcontracted some of their abusive tactics to groups with no official accountability. The extra-judicial killings, abductions and assaults committed by these groups against suspected militants are instead described as resulting from “inter-group rivalries.” Since the conflict in Kashmir began in 1990, the Indian government has attempted to discredit militant organizations by claiming that the uprising was provoked by Pakistan and was not indigenous in origin. (Human Rights Watch Report, 1996).

Those opposing state terrorism are not terrorists

Three facts are clear. First of all, that there is a self-determination struggle in Kashmir. Secondly, if there is any terrorism in Kashmir, it is Indian state terrorism. India projects the mantra of terrorism, as a carte blanche to continue its oppression of the Kashmiri people, to continue its illegal occupation of Jammu and Kashmir, and to be able to curb the civil, political, economic and self-determination rights of the Kashmiri people. Thirdly, although the graveyards of Kashmir are full of Kashmiri graves, India tries to use the issue of terrorism, particularly in the post September 11 scenario, to allege that Pakistan is supporting terrorism in Kashmir and India, in an attempt to isolate Pakistan and to curtail its principled policy of moral, political and diplomatic support for the oppressed Kashmiri people.

The Way Forward

In conclusion, I submit that to effectively combat the scourge of terrorism, and the threat that it poses to both individuals and the world community, the international community must also tackle the causes of terrorism, and must include state terrorism in this campaign. When we examine only the forms of terrorism and not the realities, we are doing a disservice to our collective task and objective. In combating state terrorism, the first priority of the international community should be to actively intervene in regional causes of tension. Security Council Resolution 1377 (201) of November 12, 2001, adopted a declaration on the global effort to combat terrorism. I draw attention to this resolution’s preamble paragraphs 4 and 8, which provide the definitive foundation of our collective task:

Reaffirms its unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed.

Secondly, just as the right of an individual’s self-defence is recognized under all national legal systems, the right of a people under oppressive alien or foreign domination to struggle for their self-determination cannot and must not be curtailed, provided that this struggle is within the parameters of what is permissible under international law and international usage and customs. The justified struggle against terrorism should not be used to victimize already oppressed and occupied peoples and to prolong their agony. If the international community, as it should, wishes to end such cycles of violence and counter violence in such struggles for self-determination, then it must actively intervene, however powerful the oppressor. While international behaviour has unfortunately often been conditioned by the dictates of realpolitik, instead of being grounded on international and humanitarian principles and morality, it should be recalled that in the Court of Equity, the guiding maxim is that, “Whoever comes to the Court of Equity, must come with clean hands.” Combating terrorism, also includes combating state terrorism, however difficult.
Thirdly, as I have briefly tried to show, the rapid pace of the evolution and development of international humanitarian and human rights laws, customs and practice, coupled with the willingness of the Security Council to actively intervene to redress grave violations that constitute an immediate or long-term threat to international peace and security, provide modalities and mechanisms to address humanitarian and human rights vulnerabilities and abuses, in a variety of ways. If these are actively pursued on different levels, the perpetrators of these abuses, however powerful or hidden they may be, would be subjected to the very real possibility of international condemnation and intervention. Individuals, in some cases, would run the risk of international trials. These credible possibilities would act as a powerful deterrents. No state, and no official of any state, can now afford to flout the intransgressible principles of international humanitarian and human rights laws.

In cases of internal conflict, and in cases of conflict and insurgency in occupied territories, the international community must demand that the safeguards of the Geneva Conventions and the additional Protocols be applied to mitigate such grave situations, while actively exploring modalities for long term political solutions.

Fourthly, in this essay I have emphasized the case of occupied Kashmir, where self-determination is pitted against state terrorism. Kashmir calls for what it had lacked so far, adequate international recognition, focus, and effective involvement towards a solution. How long will the people of Kashmir have to wait before the conscience of the international community is stirred. How long will Kashmir remain a humanitarian crisis and nuclear flashpoint, constituting a threat to international peace and security. When will the Security Council act, as it has done in Rwanda, Bosnia and Kosovo, and in countering terrorism.

Fifthly, however justifiably proud a civilization, a society, or a country may be of its past and cultural heritage, however impressive its current achievements, technological grasp, economic and military prowess, and however positive its future and world role may appear, the world community has an imperative duty to impress upon them the salutary fact and reality, that despite all these attributes, if they are going against the currents and dictates of international humanitarian law, human rights and the civilized behaviour of states expected in the modern world, they will always be held to account, their behaviour will inevitably provide the prism through which they are viewed, and their full potential will never be achieved, unless they mend their ways.

It is sad to note that hundreds of Indian minority Muslims have been massacred and burned alive in the Indian state of Gujarat. If this is how Indian Muslims are treated and protected five decades after independence, it is no wonder that the oppressed Muslims in occupied Kashmir continue to feel that they have no choice but to strive for their right of self-determination.