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GENERAL E/CN.4/2003/NGO/259

20 March 2003

Original: ENGLISH

English only

COMMISSION ON HUMAN RIGHTS

Fifty-ninth session

Item 5 of the agenda

THE RIGHT OF PEOPLES TO SELF-DETERMINATION AND ITS APPLICATION TO PEOPLES UNDER COLONIAL OR ALIEN DOMINATION OR FOREIGN OCCUPATION

Written statement* submitted by International Educational Development,

a non-governmental organization on the Roster

The Secretary-General has received the following written statement which is circulated in accordance with Economic and Social Council resolution 1996/31.

[5 February 2003]

Human rights in Kashmir

1. It has been nearly thirteen years since International Educational Development/Humanitarian Law Project prepared a written statement (U.N. Doc. E/CN.4/Sub.2/1990/NGO/26) on the situation in Indian-occupied Kashmir. At that time, an escalation of human rights and humanitarian law violations at the hands of the military forces in Indian-occupied Jammu and Kashmir was exceptionally serious, brought about by renewed insistence by the people of Jammu and Kashmir that the UN-mandated plebiscite be carried out as soon as possible. United Nations Security Council Resolution 39 of 20 January 1948 established a Security Council Commission (later named the United Nations Commission on India and Pakistan) to resolve the crisis in Jammu and Kashmir at the end of the colonial rule of the United Kingdom. Both the Commission and the Security Council as a whole subsequently decided that the future of Jammu and Kashmir would be decided by a plebiscite of the people in that area. See, for example, Resolution of the United Nations Commission of India and Pakistan, adopted 5 January 1949, reprinted in United Nations Document S/1196 of 10 January 1949. The Security Council, in its resolution 80 (1950), set up a number of steps, as yet unfulfilled, "for the expeditious determination of the future of the State [of Jammu and Kashmir] in accordance with the freely expressed will of the inhabitants." In 1949 the Security Council had established a "line of control" (the LOC) between the part of Kashmir forcibly seized by India in 1948 and the part of Kashmir under Pakistani influence (Azad Kashmir). The United Nations Military Operations Group for India and Pakistan (UNMOGIP) was established in 1949 and still is in place along the LOC. The United Nations determined that, consonant with the principle of self-determination, the Kashmiri people have the right to determine their own political future. The Security Council also rejected the notion that elections held unilaterally in Jammu and Kashmir (or in "Azad Kashmir" for that matter) are the equivalent of the plebiscite, holding instead that only a plebiscite administered by the United Nations would qualify as the "UN-mandated" plebiscite. Security council resolution 122 of 24 January 1957,

2. Since our first statement there has still been no action by the Commission on Human Rights in spite of a continuing deterioration of all aspects of the "Kashmir question" and well-documented, massive and flagrant violations of human rights and humanitarian law in the Indian-occupied section. Indian-occupied Jammu and Kashmir is essentially under a continual state of siege. India's military forces include the Indian Army, the Border Security Forces, the Rashtriya Rifles, the Special Operation Groups and nearly 80,000 state police. Grave breaches of the Geneva Conventions occur with alarming frequency: assassination of political leadership, disappearances, murder and torture of POWs, torture (including rapes) and custodial deaths of civilians, military attacks on the civilian population, attacks on hospitals and medical aid providers, restriction on medical aid and the like. Refugees continue to flee. The United Nations Security Council resolutions regarding the plebiscite remain unimplemented.

3. It is clear that the international community has failed the people of Jammu and Kashmir. No one seriously involved in international affairs can claim ignorance of this tragic situation. But rather than take necessary action, the States that could play a vital role in resolving this situation and achieving the necessary conditions to carry out the plebiscite hide behind the false analysis that this is a "bilateral" problem between India and Pakistan. Nothing could be farther from the truth -- this is an international issue in which both the will and ability to implement Security Council resolutions are at stake. The political and military situation is made even more volatile by the Indian government's constant repetition of the term "Islamic terrorist" as if it were synonymous with "Kashmiri." Yet even under India's description of the legal status of Kashmir, that government is not thereby excused for either Geneva Convention violations or violations of human rights. India is and remains liable for all these acts and the international community should condemn them. In this light we must state again that the focus of the international community should be on the disposition of Kashmir in conformity with the realization of the right to self-determination of the Kashmiri people -- not the religion of some (actually most) of the Kashmiri people. The vast majority of Kashmiri people want the plebiscite not because they are Muslim but because they are Kashmiri and were promised this plebiscite by the United Nations Security Council.

4. Worse, some of the very States and people who should play a positive role in implementing the Security Council resolutions instead criticize the victims -- the Kashmiri people and their representatives -- for even daring to present their plight here. And worse still, this criticism is laced with racist innuendo or even outright racism that if employed with other groups and situations would be severely chastised. It may be that desperation has lead more and more Kashmiri people to attend sessions of the human rights bodies. It may be that most of them have the same thing to say -- "help us." It may be that some are political leaders of their people who act within their cultural framework when they come before the international community. But they should be respected and their plea to implement the UN's own plan should be honored. That it is not is unprecedented.

5. Our organization has paid a high price during the course of our long insistence that Security Council resolutions regarding the disposition of Jammu and Kashmir be implemented. We have had numerous investigators in Indian-occupied Jammu and Kashmir, at great cost and at great risk. We sadly lost some of our representatives to Indian violence. We have prepared and circulated reports. We have raised this issue more than thirty times since 1990 at sessions of both the Sub-Commission and the Commission. We have participated in NGO forums and international conferences on this topic. We have brought key Kashmiri legal and human rights leaders to sessions of both the Sub-Commission and the Commission. We have represented Kashmiri asylum seekers -- all of whom were grated political asylum.

6. The risk of another war between India and Pakistan will remain high as long as the Kashmir question is unresolved. At time of writing (January 2003) there is renewed tension between India and Pakistan along the LOC. Both India and Pakistan have nuclear weapons in their arsenals and either side could be sufficiently provoked to use them. Use of nuclear weapons would ravage the whole world with nuclear fallout. To compound the dangers in the area, remnants of Al Qaeda groups have been infiltrating into Indian-occupied Jammu and Kashmir, playing on the restlessness of Kashmiri youth. While all the participant parties and groups in the All Parties Hurriyet Conference (APHC - the main multi-party coalition in Indian-occupied Jammu and Kashmir) have now decided to abandon the use of force to realize the right to self-determination, not all Kashmiri groups have, and these groups are increasingly vulnerable to pressures from Al Qaeda. This is occurring in spite of the vastly different cultural and religious practices between typical members of Al Qaeda and the predominantly Sufi Kashmiris. These two elements alone, out of the many factors in the overall situation, make Jammu and Kashmir one of the greatest threats to stability, peace and security in the world.

7. We urge the Commission to address this issue under agenda item 5 as a matter of overwhelming urgency. Such action could include requesting the Security Council to undertake renewed efforts to bring about the plebiscite. We especially urge the Commission to stress the importance of the participation of the Kashmiri people, through their leadership, in any action undertaken to afford them the right to vote regarding their political future and indeed in any discussions or consultations regarding Jammu and Kashmir. We also urge the Commission to assess and address the overwhelming number of humanitarian and human rights violations that have accumulated in Indian-occupied Jammu and Kashmir

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* This written statement is issued, unedited, in the language(s) received from the submitting non-governmental organization(s).

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