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Maiden UN Report on Human Rights Status in Kashmir Attracts Criticism from New Delhi

Facilitating Kashmir as trade and tourist center with soft border so that people from both sides [of Kashmir] can come, visit places and engage in trade will be a win-win situation for both sides. Both countries [India & Pakistan] must try and subordinate their current perception of Kashmir as a hard political issue to other imperatives such as economic and cultural.

[Dr. Manoj Kumar Mishra | Oped Column Syndication]

The recently released 49-page report[i] by the Office of the UN High Commissioner for Human Rights (OHCHR) covering the period from July 2016 to April 2018 is the first of its kind and has been alleged to have been more critical of the role of the Indian army in violation of human rights in Kashmir.

New Delhi has argued that the report has implicated the Indian armed forces for the deterioration of human rights conditions in the Kashmir Valley at the expense of violation of human rights by various non-state actors. New Delhi further argued that the report failed to address the cross-border terrorism perpetrated by Pakistan.

The Indian government subscribes to the argument that the report has used the concept of ‘armed groups’ instead of using the unambiguous terminology of ‘terrorist outfits’ to India’s disadvantage. New Delhi draws attention to the issue that the report highlighted the protests and consequent human rights violations following the killing of Burhan Wani by the Indian armed forces, while the report has overlooked Indian claim that he was a Hizbul Mujahiddin terrorist.

Usage of terminologies like ‘Azad Kashmir’ and ‘Gilgit Baltistan’ in the report has been considered an onslaught on India’s sovereignty and territorial integrity and believed to have been framed tilting towards Pakistan, which is currently an elected member of the UNHRC (the United Nations Human Rights Council). New Delhi believes that the report —  by seeking repeal of the Armed Forces Special Powers Act, 1990 and removal of the requirement of the prior central government permission to prosecute Indian security forces accused of human rights violations in the Valley — has made a concerted attempt to tighten screws on the Indian government and pandered to the designs of Pakistan.

India rejected the report and considered it speculative. However, concerns have been expressed on the failure of the Indian diplomats to put in their concerns and views on Kashmir before such report came out, even though India maintains continued and active diplomatic presence at the UN Head Quarter.

Many scholars argue, on the other hand, that India’s overreaction to the report has been unwarranted. The report is based on the methodology of ‘remote monitoring’ in the absence of field research and direct communications with people without access to the Valley to UN observers. It has been alleged that India did not allow the OHCHR (the Office of the United Nations High Commissioner for Human Rights) access to Kashmir despite several requests and, therefore, pushed the UN office to rely on publicly available information, including parliamentary questions, media reporting, official statements, court orders and responses to RTI (Right to Information) applications.

It has been further argued that as Kashmir is still considered a disputed territory within the larger international community including the UN, India’s rejection of the report as an affront to its sovereignty and territorial integrity is unwarranted. India’s criticism of the words like ‘armed groups’ and ‘self determination’ which found their mentions in the report and which India rebuffed as attempts to legitimize terrorism under the garb of freedom struggle, is also considered to be driven by overreaction and unfounded fear.

It is argued that the territory-under-dispute cannot distance itself from such languages which are embedded in the international human rights laws. ‘Self determination’ may not mean legitimizing attempts to forcefully secede from a given territory rather it is also compatible with the idea of giving more freedom and political space to own citizens.

As the report covered a very limited period from July 2016 to April 2018, it seems out of the larger context and historical thrust. The division of the British India into India and Pakistan was materialized on the basis of two-nation theory underlining the idea that Hindus and Muslims formed two nations and be allowed to have their own state.

India considers Kashmir as its integral part which is mostly populated by Muslims, but it is consistent with the idea of secularism that post-independence India accepted as one of the basic features of its constitution and many Indian scholars prefer to substantiate the practice of secularism in post-independence India not only by citing the inclusion of more Muslims than many predominantly Muslim-populated countries into its democratic polity but they also eagerly point to extensive provision of minority rights in the Indian constitution.

From the Indian perspective, tribal incursions into the Kashmir region prompted by Pakistan (following closely on the heels of partition) led the then ruler of Kashmir Hari Singh to sign the Instrument of Accession — a legal document on October 26, 1947, agreeing to accede to the Dominion of India and thereby making Kashmir an integral part of India.

Regularly conducted free and fair elections in Kashmir are cited by India as expression of legitimate aspirations of Kashmiri people to remain within the Indian territory —  something that Pakistan incessantly rebuffs as rigged elections and violation of UN Security Council resolution, which mandated holding of plebiscite in the Valley and condemn these as acts of India’s shrewd attempt to avoid plebiscite.

India considers Kashmir as a bilateral issue by citing the Simla Agreement of 1972 to which both India and Pakistan are signatories. The agreement maintains that Kashmir is a bilateral issue and must be resolved through bilateral negotiations, denying any space for third party intervention. India continuously rebuffed the Pakistani attempts at internationalizing the Kashmir issue.

Pakistan, on the other hand, put forth the argument that the Simla agreement cannot override the UN Security Council resolutions that mandated plebiscite and that Kashmir has been recognized as a disputed territory by the UN Security Council resolutions as well as the bilateral agreement.

New Delhi has been constantly arguing and providing evidences of Pakistani sponsored cross-border terrorism, citing the mastermind of Mumbai terrorist attack and the attack on the Indian Parliament as a plot made in Pakistani soil. New Delhi puts forth the argument that it is the Pakistani army in collusion with its intelligence agency, ISI, has allegedly institutionalized the export of cross-border terrorism to foment insurgency and chaos in Kashmir in order to provide a veneer of independence struggle to continuing instability in the Valley.

Islamabad, on the other hand, implicated the Indian army in silencing the voice of Kashmiri people and violating human rights. Islamabad rebuffed the role of media in manipulating information and criticized the Indian government for its role in converting the genuine issue of independence struggle of Kashmiri people into an issue of cross-border terrorism.

Despite India’s long-standing concerns over the Kashmir issue, human rights are no more considered domestic concerns with the growing institutionalization of international human rights laws and norms and, therefore, the UN report falls squarely with the Pakistani attempt at internationalizing the issue. However, even after several Pakistani attempts in seeking international support on the Kashmir issue, the major powers of international politics have preferred to stay off the course.

India and Pakistan have suffered huge losses — both human and material — from the three wars these two countries had fought revolving around the Kashmir issue. It seems both countries look at the Kashmir issue from a realist and territorial perspective and are engaged in a zero-sum game.

However, the major headway to the seemingly intractable problem lies in the change in perspective.

Facilitating Kashmir as trade and tourist center with soft border so that people from both sides can come, visit places and engage in trade will be a win-win situation for both sides. Both countries must try and subordinate their current perception of Kashmir as a hard political issue to other imperatives such as economic and cultural.

[i] please click here to read the full report in pdf version

Dr. Manoj Kumar Mishra, Lecturer in Political Science, S.V.M. Autonomous College, Odisha, India. Previously worked as the Programme Coordinator, School of International Studies, Ravenshaw University, Odisha, India.

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