UN human rights report is a scathing indictment of India's role in Kashmir

Seventy years ago, on 1 January 1948, India took the matter of Jammu and Kashmir to the United Nations Security Council accusing Pakistan of having attacked the 'Indian territory'. It went on to ask the UN to prevent such action.

This followed the 1947 partition of the subcontinent into India and Pakistan, where Jammu and Kashmir, as a princely state, did not accede to either of the two. 

The Dogra Maharaja Hari Singh, who was ruling Kashmir at that time, was quite unpopular and it was under his command that the Jammu massacre of over 200,000 Muslims was carried out, as the Muslims of the Poonch area rose in rebellion. 

This led to the formation of a provincial Azad Kashmir government in Rawalpindi, and a 'tribal invasion' from Pakistan. The Maharaja, to curb a potential uprising, sought help from India, eventually signing an Instrument of Accession. 

This controversial document is at the heart of the conflict between India and Pakistan, and its very existence has come under question, as well as the apparent timing of when it was signed, and whether or not the Maharaja was under duress when signing it. Further, Pakistan maintains that the Maharaja had no right to sign an accession when a "standstill" agreement was already in place with Pakistan.

However, since the will of the subjects wasn't in the Maharaja's favour, the question over the legitimacy of accession, and if he had the right to decide on all Kashmiri's behalf, continues to this day.

A state of never-ending violations

On the 70th anniversary of the Universal Declaration of Human Rights—while Kashmiri's demands for the right to self-determination are met with brutal suppression—the United Nations has come up with its first ever human rights report on Kashmir. 

The report, 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 was released by the UNHCR in June, without a prior press release.

Over the years, the Indian state has attempted to curb the work of journalists as well as civil society groups like the Jammu Kashmir Coalition of Civil Society (JKCCS), by not allowing them to hold press conferences, or conduct talks, and going so far as to imprison a program coordinator under the Public Safety Act. 

In May 2015, after receiving remarks on its report from the Indian government, Amnesty International delayed the release of its report, before releasing it in July. Therefore, it is by no means a surprise if the UN chose to not make public their launch of the report, until it was officially released, in a bid to avoid any obstruction from India.

The 49-page report primarily covers the developments in India-administered Kashmir following the killing of the popular Hizb ul Mujahideen commander Burhan Muzaffar Wani in 2016 which resulted in unprecedented protests across the valley and unabated violence by the Indian forces. 

It also looks into the developments in Pakistan-administered Kashmir during the same period, although the primary focus is the India-administered territory of Jammu and Kashmir. 

The report acknowledges that, "there is an urgent need to address past and ongoing human rights violations and abuses and deliver justice for all people in Kashmir, who for seven decades have suffered a conflict that has claimed or ruined numerous lives."

The report draws attention to the structures of impunity in Jammu and Kashmir that operate under the command of the Armed Forces Special Powers Act (AFSPA) and the Public Safety Act (PSA). The military courts and the justice system serve within this skewed paradigm which denies a proper avenue to address civilian grievances, instead acting as an obstacle to any dispensation of justice and accountability. 

The report uses data from civil society groups, government statements, calls for inquiries and the subsequent (lack of) results. It is an exhaustive documentation of the killings, torture, the use of pellet shotguns that blinded countless Kashmiris, enforced disappearances, sexual violence, arbitrary arrests, illegal detentions of minors, civilian killings at encounter sites, targeting of ambulances, communication blockades, media gags, arrest of journalists and activists. It also highlights the impact of curfews and strikes on education, and killings by the militants of armed forces personnel not on active duty, killings and threats to Kashmiri Pandits, and of civilians accused of being informers. 

It also expresses concern regarding the ceasefire violations resulting in casualties on both sides of the Line of Control.

The report highlights the problems in Azad and Jammu Kashmir and Gilgit-Baltistan in Pakistan-administered Kashmir where people aren't granted the full rights afforded to all citizens in other parts of Pakistan. Freedom of expression in these areas is under attack and Pakistan's Anti-Terrorism Act is used to imprison those critical of the state. 

Noting how despite an autonomous government, the Government of Pakistan continues to exercise extensive control over AJK, the report however clarifies that these problems, compared to the issues in India-administered Kashmir, "are of a different calibre or magnitude and of a more structural nature."

An important clarification in the report is regarding Resolution 47 of the UN Security Council wherein Pakistan was to secure the withdrawal of tribesmen and Pakistani fighters from J&K. Indian commentators have often used the argument of Pakistan’s inability to abide by this to put the onus of the failure of a plebiscite on Pakistan. 

However, as the report notes, a later resolution had clarified that this meant 12,000 to 18,000 soldiers staying on the Indian side and 3,000 to 6,000 on the Pakistani side of the ceasefire line - a resolution rejected by both the countries.

In noting the Indian state’s response to the uprising following Burhan Wani killing, the report states, "the killing of civilians between 2016 and 2018 raises the question of whether security forces resorted to excessive use of force to respond to protesters, some of whom were throwing rocks." 

This narrative of determining ‘excessive force’ becomes problematic because it's designed to counter criticism of the Indian state's repeated use of pellet shotguns as a non-lethal means of crowd control. This is an attempt to justify its often brutal response and temper the criticism that it uses ‘excessive force’, even in ‘self-defence’, against otherwise violent ‘stone pelters’. 

Another point that the report highlighted is that while Kashmir had been independent between the period of partition and the signing of the Instrument of Accession, the subsequent UN resolution "did not provide an option for the people of Kashmir to choose independence." This statement has been made with no further comment and without addressing what it means in the present context. One is left to wonder why the cursory statement was included at all if it was going to be left without word of its current implications or any recommendations on how to proceed.

The report's prescription for India to deal with political prisoners is to "release or, if appropriate, charge under applicable criminal offences all those held under administrative detention," since most of the PSA detainees are never charged but languish in custody. 

In India-admnistered Kashmir laws are manipulated to create an evironment of lawlessness. How will charging people with criminal offences make life any better for those detained, and how does this ensure a fair system, when the very premise of the system is set up to ensure the Indian state's impunity and illegal control? 

Too little, too late

Since the release of the report, there have been a number of developments in Kashmir. The killing of a senior journalist, almost everyday killings of militants and civilians, the split of the ruling BJP-PDP coalition, and the Indian state openly declaring its plan of a ‘muscular policy’ in Kashmir. 

India's policy towards Kashmir has always been experienced by Kashmiris in the form of violence over their bodies and psyches, and the UN needs to openly acknowledge that these are war crimes against a people, while the manifestation of "the world's largest democracy" in Kashmir has an uglier form.

‌Of course the UN report has come a little too late. Seven decades of unfulfilled promises, killings, torture, enforced disappearances, sexual violence, everyday militarisation - all in the name of upholding the idea of India in Kashmir. 

Despite having been approached to play the role of a mediator, even seven decades later, a continuous request for the last two years for unconditional access to the India or Pakistan administered territories for monitoring purposes was not given to the UN and it had to instead rely on "reasonable grounds standard of proof." 

For human rights groups active in Kashmir, the report is significant despite the fact that organisations like Amnesty International, or JKCCS and the Association of Parents of Disappeared Persons (APDP) have been locally documenting these violations for a long time. The fact that it has come from the UN lends credence and weight to their work and gives the issue the international attention it deserves - even if the Indian state conveniently denies it. 

The recommendations in the UN report are what advocacy groups can employ as they put forth their demands to resolve the conflict. The press statement by APDP and JKCCS regarding the UN report, notes that "this report has deep symbolic value following years of silence by the United Nations."

For the people who have consistently appealed to the UN expecting an intervention for decades, it is, perhaps, a little too late. But at least unlike the reports of most NGOs and civil society groups that have reduced the Kashmir issue to a case of human rights violations without contextualising the historical and political realities—conveniently ignoring the larger political question—the UN report closes with a strong recommendation to both India and Pakistan: "fully respect the right of self-determination of the people of Kashmir as protected under international law." 

That the UN hasn’t over the years been able to get the Government of India to even consider moving beyond its "integral part of India" approach, is another critique altogether. 

Maybe in its next report on Kashmir, the UN could start with acknowledging its failures. The report notes that the Security Council resolutions on Kashmir cannot be terminated except by a decision of the Security Council itself, and this report should also be a wake up call for the Security Council itself.

How India has reacted

Unsurprisingly, in its initial response India's Ministry of External Affairs has "rejected" the report as "fallacious, tendentious and motivated", calling it "a selective compilation of largely unverified information . . . to build a false narrative." 

One look at the graffitied streets of Kashmir and the slogans that pour out from there tell a different tale - one that the Indian state has never acknowledged.

On the same evening when the UN report was released, one of Kashmir’s senior journalists, Shujaat Bukhari was shot dead by unknown gunmen outside the press enclave in Srinagar. Writing in the Hindustan Times in the aftermath of Bukhari’s killing, India’s leading journalist Barkha Dutt argued for a reboot in India’s Kashmir policy; others asked for the army to be given a free hand in Kashmir, as if it didn’t already have one.  

Dutt went on to praise the Indian state for rejecting the ‘airy-fairy’ UN report. Shekhar Gupta, President of the Editors Guild of India termed the report "idiotic, toxic and 'fatally flawed." Going one step further, Gupta considered debating the "accuracy, fairness, methodology or motives" as a waste of time. It's pertinent to mention here that Gupta, in 2016, failing to even acknowledge the crimes of Indian forces in Kashmir, spoke of Kunanposhpora mass rape allegations as merely stereotypes of the rough 90s. 

Sreemoy Talukdar of Firstpost questioned the very moral authority of the United Nations High Commissioner for Human Rights by labelling him a quasi-Islamist simply because of his Muslim identity. Terming the report mischievous, Talukdar accused it of creating a false equivalence vis-à-vis Pakistan. 

These journalists have either not gone through the sections on human rights violations in Pakistan-Administered Kashmir or they expect the report to blame Pakistan for all the violence that Indian forces have unleashed in Kashmir. 

The accusation speaks volumes about the state of journalism in India. As the report itself notes, it is not a fact-finding report and most of the information on Kashmir has been drawn from Right to Information (RTI) responses by the government of India, local, national and international NGOs, human rights defenders, parliamentary questions, court orders, and police reports, with the Press Trust of India being considered as a reliable source throughout the report. 

If the Indian state and its media call the report motivated or fallacious, it is an indictment of its own institutions which the report has so heavily relied on. When journalists question the reports reliance on remote monitoring rather than actual fieldwork, they deliberately ignore that the lack of fieldwork is a result of the refusal of permissions from the Indian state to do on-ground research. Are these accusations from the media coming from the journalistic quest for truth or from loyalty to India?

For Kashmiris, this only further solidifies the fact that India’s brutalities in Kashmir have always been accompanied by the Indian media's obfuscation of the ground realities in Kashmir; misappropriating it as a law and order issue; that it's "sponsored" by Pakistan, and just generally standing by the militaristic state. 

Why is the publication of a human rights report problematic for journalists whose primary goal is to speak truth to power? When Indian journalists speak of, and on behalf of Kashmiris, one wonders what base of expertise they have to do so. These journalists go out of their way to legitimise—in the supposed national interest—the violence of the Indian state in Kashmir, and are unable to come to terms with the fact that Kashmiris can, and will stand up for themselves.

The UN report is as damning an indictment of Indian institutions and the state as much as it is an indictment of the tragic environment created inside Kashmir.