Jammu and Kashmir dispute and the UN Report


Dr Shabir Choudhry
1. No matter how impartial or well written is a report, no report on earth can satisfy all parties to the dispute. Therefore, it is not expected that report of the UN Commissioner on Human Rights published on 14 June 2018 will satisfy everyone.

2. This report, first of its kind is titled: Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan.

3. The title itself is interesting, and somewhat controversial. It says: ‘Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018’. In other words, the title of report acknowledges that State of Jammu and Kashmir belongs to India. If the State of Jammu and Kashmir belongs to India, does it mean it is not disputed anymore in the view of the UN?

4. Since the areas of Jammu and Kashmir State controlled by Pakistan, namely Azad Kashmir and Gilgit Baltistan, are also legally and constitutionally part of the Princely State of Jammu and Kashmir, does it mean, in view of the UN, these areas are also part of ‘the Indian State of Jammu and Kashmir’?

5. Furthermore, whereas the author of the report wants to investigate human rights and developments in the Indian State of Jammu and Kashmir; he only wants to know, ‘General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan’.

6. As the title of the report clearly states it only deals with events between June 2016 to April 2018, it means readers won’t know that it was Pakistan which created this dispute by violating the Standstill Agreement with the Maharaja of Jammu and Kashmir, and attacking the small neighbour with intention of occupying it. The readers also won’t know that the tens of thousands of innocent people were butchered, women raped and kidnapped and property burnt and looted. It was this unprovoked attack that led to the first India Pakistan war and subsequent forced division of our motherland, hence all the suffering since October 1947.

7. Also, the readers won’t know that it was Pakistan which refused to implement terms of the UNCIP Resolution of 13 August 1948. Their refusal to withdraw Pakistani troops from areas of Jammu and Kashmir under their occupation resulted in impasse, and have led to violence, bloodshed, human rights abuses, imprisonment, kidnapping rapes and instability in Jammu and Kashmir and in the region.

8. As the United Nations, High Commissioner for Human Rights did not visit Indian controlled Jammu and Kashmir and the Pakistani controlled areas of the Princely State, one may not concur with everything in the report. India denied access to Kashmir on pretext that they are the largest democracy, and they have legal system in place to provide justice. Furthermore, they also have human rights organisations working and highlighting all aspects of human rights situation. One can argue, if you have nothing to hide, then why not provide them access that they can examine and confirm.

9. Pakistani government, on the other hand was clever. They agreed to provide unconditional access provided India did the same. Pakistan knew longstanding Indian argument with regard to providing access, so they wanted to be seen as a ‘good boy’, agreeing to provide access, but in reality, they also did not provide access. If everything was rosy on the Pakistani side of the divide and Pakistan was satisfied how they treated people of Gilgit Baltistan and Azad Kashmir, then why impose conditions.

10. Since the UN Commissioner wanted to investigate present and past human rights abuses, there was no way Pakistan could have allowed anyone to do this as Pakistani record on human rights is also atrocious. The Report said:

‘There remains an urgent need to address past and ongoing human rights violations and to deliver justice for all people in Kashmir who have been suffering seven decades of conflict. Any resolution to the political situation in Kashmir should entail a commitment to ending the cycles of violence and accountability for past and current human rights violations and abuses committed by all parties and redress for victims. Such a resolution can only be brought about by meaningful dialogue that includes the people of Kashmir’. 1

11. Pakistani writer and lawyer, Yasser Latif Hamdani, while writing on the UN Report said:
‘Obviously, from Pakistan’s perspective, we have less to lose than the Indians. Unlike their side of the LOC, there is no independence struggle being waged on our side. Though that doesn’t mean things are perfect either. Since neither side cooperated, the OHCHR proceeded with remote monitoring’. 2

12. The learned writer, who is also a Visiting Fellow at Harvard Law School in Cambridge MA, USA, further says:

Similarly, while most laws enacted by Pakistan are applied to AJK through the AJK Adaptation of Laws Act 1988, AJK has no representation in the Pakistani National Assembly. Therefore, the report says that while AJK has trappings of a sovereign state, it is only nominally independent, with power resting in AJK Council in Islamabad to override decisions taken by the centre. The same situation exists in GB, which only recently got its legislature. There are also restrictions in both regions on the right to freedom of expression and political association. All members of the legislatures have to take an oath supporting the accession of AJK to Pakistan. 3

13. Yasser Latif Hamdani, has been candid and courageous in acknowledging that what Pakistan does in Azad Kashmir and in Gilgit Baltistan is even against ‘Pakistan’s own commitment to human rights’. He asserts that because of the wrong doings by Pakistani agencies and the ruling elite, ‘the situation on the Pakistani side of Kashmir does not present a rosy picture’. 4

14. This is not to suggest that only Pakistan is culprit in Jammu and Kashmir. Despite lofty claims of democratic ideals and legal systems in place, India has committed human rights abuses and that must also be condemned. I know India and their supporters argue that these human rights abuses are taking place because of Pakistani sponsored militancy. They forget that it is India’s responsibility to defend LOC, and defend people of Jammu and Kashmir; and even those who are living on the Pakistani side of the divide. It is their obligations under the Treaty of Accession which we believe is provisional in nature.

15. Pakistan has worked hard to distort history of Jammu and Kashmir and hide facts. They have been propagating that Gilgit Baltistan had acceded to Pakistan, and that it was not disputed or even part of Jammu and Kashmir. Despite propaganda of Pakistani state, their agencies, their media, puppet governments and organisations established in various parts of Jammu and Kashmir, the UN Report refuted Pakistani claims on Gilgit Baltistan and Azad Kashmir; and once again confirmed that these areas are part of the former Princely State of Jammu and Kashmir.

16. Furthermore, the Report has clearly expressed its displeasure on the prevailing political situation in these regions controlled by Pakistan. The Report explains how Pakistan controls these regions in the following words:

Pakistan’s prime minister, the federal minister for Kashmir Affairs and Gilgit Baltistan and the federal civil service have full control over all government operations in both Azad Jammu and Kashmir (AJK) and Gilgit-Baltistan (G-B). According to an international NGO, federal intelligence agencies are deployed across the two regions and have “considerable powers over local elected representatives and officials”. Given such a constitutional relationship with Pakistan, residents of AJK and G-B do not enjoy all the rights and protections available to those under the Pakistan Constitution. 5

17. The report also endorsed our contention that militant groups or jihadi groups are also responsible for committing human rights abuses, and that Pakistan was sponsoring this militancy, which resulted in violence, intolerance and instability. The report says:

‘In the same context, since the late 1980s, a variety of armed groups has been actively operating in the Indian state of Jammu and Kashmir, and there has been documented evidence of these groups committing a wide range of human rights abuses, including kidnappings and killings of civilians and sexual violence. The landscape of armed intervention by groups operating in Indian-Administered Kashmir has shifted over the years. In the 1990s, around a dozen significant armed groups were operating in the region; currently, less than half that number remain active. Despite the Government of Pakistan’s assertions of denial of any support to these groups, experts believe that Pakistan’s military continues to support their operations across the Line of Control in Indian-Administered Kashmir’. 6

The Report further mentions that civil society organisations have accused these armed groups of attacking ‘civilians, off-duty police personnel and army personnel on leave, including the killing of 16 to 20 civilians’. 7

18. The Report was apprehensive of the application of Pakistan’s Anti-Terrorism Act in Gilgit Baltistan which resulted in imprisonment of “hundreds of individuals”. This Pakistani law is ‘being used to target locals who have been raising issues related to the rights of the people’. The UN Report acknowledged that one national NGO provided information that authorities in Gilgit Baltistan forcibly evicted locals in Maqpoon Das area; and the Chief Secretary of GB, a Pakistani officer allocated this land for the China Pakistan Economic Corridor without giving any compensation to the local people. The local people also testified that they are not ‘being properly informed or consulted on decisions affecting them and their livelihoods’. 8

19. Since the main focus of the Report is human rights situation in Indian controlled Kashmir, one finds more details about that region. The Report also talks about several restrictions in Azad Kashmir in ‘contravention to international standards on the rights to freedoms of expression and opinion, assembly and association’. As expected both India and Pakistan liked parts of the Report which were consonant with their agenda and views; and rejected the parts that they did not like.

20. Critics refute this report by saying that some of the information included was not verifiable. True, but how can everything be verified when practically both governments refused to provide access to visit the regions, investigate and interview people. In absence of this access, the UN Commissioner had to rely on information provided by representatives of both governments, which was contradictory. In this context, the government documents, official statements, court orders and reports of NGOs and human rights defenders were also helpful.

21. It is believed by some critics that Pakistan has used the forum of OIC to advance its agenda. They manipulated some members of the OIC, and facilitated their meetings with those Kashmiris who hold biased opinions, and are promoting Islamabad’s agenda on Kashmir. It is no secret that some of these members represent undemocratic and oppressive regimes who have no regard for human rights in their countries.

22. It must be pointed out that some ‘human rights defenders’ are part of Pakistan’s massive propaganda machinery. They are fully funded, employed, housed, and are facilitated access to various international fora. Their role is to read out statements prepared by officials of Islamabad and confuse the UN Human Rights Council, international community and other human rights defenders. Some of them are full of religious and cultural hatred and are compulsive liars who find it difficult to speak truth.

23. If the Report is mainly based on statements made by these ‘warriors of Islamabad’ in the UN Human Rights Council and their interviews with the OHCHR, then sadly, it is not credible. I want to give one example to elucidate my point. I attended one briefing arranged by these people in the UN Human Rights session, Geneva. The Chairman gave unverified information to the audience; and told them that APHC leaders were arrested and they are not allowed to offer their prayers. He also said, one such leader was in prison. After a few speeches, which were full of propaganda, the Chair announced, ladies and gentleman, we are lucky that we will be able to speak to the leader on skype and hear what he had to say. The person sitting next to me whispered to me and said:

I didn’t know Indian prisons were so advanced that they provide such facilities to the prisoners that they can address outside world and directly deliver speeches to the audience in Geneva on Skype.
Later on we learnt that he was under house arrest, and not in jail.

24. Once again, I must emphasise, I do not say that human rights violations are not taking place in Kashmir. Human rights violations are committed by both sides. It must also differentiate that these militant groups, and other groups are not responsible for protecting life, liberty and property of the people. This right exclusively rests with the government; and their job is not to commit human rights abuses, but to protect life, liberty and property of all the citizens. India’s human rights record was examined by the UPR process in September 2017, and out of 250 recommendations made by the UN Human Rights Council, India accepted 152, and made note of the rest.

25. New Delhi needs to seriously look in to the human rights abuses, and formulate a policy that wrong doings could be stopped; and culprits could be punished.

26. In conclusion, I welcome this initiative, and hope that it won’t be the last report on Jammu and Kashmir; and future reports will encompass all aspects of the Jammu and Kashmir dispute. Also, I expect the UN Human Rights Council to understand that what happens on the Indian side of the divide is known immediately because of the presence of media and human rights groups; but sadly, what happens on the Pakistani side of the divide is not known. Pakistani system of hiding wrong doings is much better than that of India. How many people have been killed and how many thousand houses have been flattened in various parts of FATA, KPK and in Balochistan, no one knows. In view of that, more attention needs to be given to find out what has happened to the people of Gilgit Baltistan and so called Azad Kashmir since 1947.