PRESS RELEASE:13-12-2018 “The Right to Self-Determination and Human Rights Violations in Kashmir – Post HRC Report”.
On the occasion of International Human Rights Day, a seminar was held today in District Court Complex, Moominabad Batamaloo, Srinagar. The topic for discussion was “The Right to Self-Determination and Human Rights Violations in Kashmir – Post HRC Report”.
The proceedings of the seminar were conducted by Mr. Adil Asimi, Joint Secretary of the Bar Association and the proceedings were started with the recitation of beautiful verses from the Holy Qur’an by Arshad Andrabi, Advocate.
While introducing the topic, Adil Asimi, the Joint Secretary of the Bar Association stated that once again the Bar Association is observing the International Human Rights Day, in the background of Human Rights Violations that are taking place in the State of J&K, to suppress the demand of the exercise of right to self-determination and the effect of the recent report of Human Rights Council published on 14.06.2018 regarding Human Rights Violations, which are taking place in the State.
Arshad Andrabi, Advocate, while giving the background of the dispute, stated that it was India, which went to United Nations for the resolution of the dispute and on 05.01.1949 a resolution, which is the basic document was passed regarding the referendum/plebiscite in the State of J&K. The said resolution is a consent resolution and it is how the United Nations Observers Group came into the both parts of Kashmir. While, highlighting the importance of 10th December, 1948, when the Human Rights Declaration was adopted, post World War-II because of the havoc created by the war, the people of the world wanted to bring in peace and that resulted in culmination of Universal Declaration of Human Rights. He also stated that in terms of Article 30 of the Declaration, which says that to strive for a free and fair world and maintenance of peace through international cooperation, as such the nations of the world are obliged under International Law to implement the said resolution and when it is applied to our state, we find arrest, killings, mayhem and what not. He also stated that pellet guns are being used with impunity and pellets are being pumped in the eyes of our children. Buildings are being burnt and disproportionate use of force is being used against the peaceful citizens of the state and there is no mechanism to ascertain these facts. He also stated that the fact that fake encounters are taking place, is also recognized by the Supreme Court, which observe that number of officers are expert in conducting in fake encounters. He said that we are living in the State, where there is institutional denial of justice. Regarding Human Rights Commission report, he stated that the same is an eye opener for the whole world and it is for the first time such a report has come, which contains more than 20 points.
Z. A. Qureshi, Senior Advocate, while supplementing the historical facts brought in by Mr. Andrabi, stated that every person in Kashmir has sacrificed, one way or the other. He stated that violations in the year 2018 have gone to a very high level after publishing the Human Rights Violations report. He also stated that India has planted its exploitation forces in the State in the shape of BSF, CRPF, SSB, etc. He suggested that we should expose and publish more reports of Human Rights Violations, for that we need to find out a way and impress upon young lawyers, who are expert in using modern gadgets to feed every day on the social media and other sources about the human rights violations taking place all over the State and let us spread it, to the world. He said every institution is being used against us and achieving self-determination presupposes that there will be human rights violations, such violations need to be reported and published regularly, for which he requested the Bar Association, as to how to communicate with the outside world. He also stated that there are number of cases pending in the judiciary, which are being deliberately delayed and justice denied.
M. S. Reshi, Advocate, also spoke about the history of Kashmir on the occasion and claimed that the person who is being said to have entered into a sale deed regarding Kashmir, had no such right as he himself was an occupier and such sale deed in itself is non-est in law. He stated that our struggle started before 1947 and continues till date. He also stated that the world foras who claim themselves to be the world protectors, where are they, don’t they see, what is happening in Kashmir. There are killings, tortures, all types of human rights violations happening in the State of J&K. While saluting the people of Kashmir for their steadfastness, he hoped that the people of Kashmir will reject the forcible occupation.
Mian Abdul Qayoom, the President of the Bar Association in his concluding address stated that the Human Rights Commission Report, published on 14.06.2018 relates to the excesses being committed in J&K from June, 2016 to April, 2018. He also stated that as per report from July, 2016 the High Commissioner, had on numerous occasions requested the Govts. of India and Pakistan that his office be given unconditional access to Kashmir to assess the human rights situation. India rejected his request, but Pakistan offered access, should the office obtain access in Indian Administered Kashmir. Without unconditional access to Kashmir on either side of the LOC, the Office of United Nations High Commissioner for Human Rights (OHCHR) has undertaken remote monitoring of the human rights situation. This is the first report on the situation of human rights in both Indian Administered Kashmir and Pakistan Administered Kashmir and is based on such monitoring. He also stated that this report is based on the mandate of the High Commissioner for human rights, as provided by United Nations General Assembly Resolution 48/141. The mandate of High Commissioner includes the full range of activities aimed at the promotion and protection of the human rights including monitoring and reporting. He also stated that though the Kashmir question remained on the agenda of Security Council from 1947 onwards leading to the passing of several resolutions, the plebiscite never took place as the request of the withdrawal of forces was not fulfilled. He also stated that the report reveals that impunity of human rights violations and lack of access to justice are key human rights challenges in the State of J&K. He also stated that the special laws in force in the State like AFSPA, J&K PSA etc. have created structures that obstruct the normal course of law, impede accountability and jeopardize the right to remedy for victims of human rights violations. He also stated that such acts as per report also have given the security forces virtual impunity against prosecution for any human rights violation as unless the Govt. of India grants a proper permission or sanction to prosecute they can’t be brought to book and nearly in 28 years of remaining such law in force, not a single prosecution of armed forces personnel, was granted by Central Govt. He also stated that in 2005 the Supreme Court appointed a committee to review AFSPA which stated that the law has become symbol of oppression, an object of hate and an instrument of discrimination and highhandedness. He also stated that the report has also mentioned the administrative detention appears to be used by J&K authorities to circumvent the protections of ordinary criminal procedure and about the 36th detention order of Masarat Alam Bhat, who after the said report has been detained under a fresh order of detention being the 37th. He also stated that the report has effectively covered the excessive use of force being used in the State and killing perpetrated more particularly in the year 2018, use of pellet firing shotguns, arbitrary arrest and detention of children including, torture, enforced disappearances, violations of the right to help, restrictions on the right to freedom and expression, violations of the right to education, reprisals against human rights defenders and restrictions on journalists, sexual violence, abuses by armed groups. He also highlighted the recommendations made by OHCHR at the end of the report to the authorities of India, which include: –
(a) Fully respect India’s international human rights law obligations in Indian Administered Kashmir, Urgently repeal the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990;
(b) and, in the meantime, immediately remove the requirement for prior central government permission to prosecute security forces personnel accused of human rights violations in civilian courts;
(c) Establish independent, impartial and credible investigations to probe all civilian killings which have occurred since July 2016, as well as obstruction of medical services during the 2016 unrest, arson attacks against schools and incidents of excessive use of force by security forces including serious injuries caused by the use of the pellet-firing shotguns;
(d) Investigate all deaths that have occurred in the context of security operations in Jammu and Kashmir following the guidelines laid down by the Supreme Court of India;
(e) Investigate all cases of abuses committed by armed groups in Jammu and Kashmir, including the killings of minority Kashmiri Hindus since the late 1980s;
(f) Provide reparations and rehabilitation to all individuals injured and the family of those killed in the context of security operations;
(g) Investigate and prosecute all cases of sexual violence allegedly perpetrated by state and non-state actors, and provide reparations to victims;
(h) Bring into compliance with international human rights standards all Indian laws and standard operating procedures relating to the use of force by law enforcement and security entities, particularly the use of firearms: immediately order the end of the use of pellet-firing shotguns in Jammu and Kashmir for the purpose of crowd control;
(i) Amend the Jammu and Kashmir Public Safety Act, 1978 to ensure its compliance with international human rights law;
(j) Release or, if appropriate, charge under applicable criminal offences all those held under administrative detention and ensure the full respect of standards of due process and fair trial guaranteed under International law;
(k) Treat any person below the age of 18 who is arrested in a manner consistent with the Convention on the Rights of the Child;
(l) Investigate all blanket bans or restrictions on access to the Internet and mobile telephone networks that were imposed in 2016, and ensure that such restrictions are not imposed in the future;
(m) End restrictions on the movement of journalists and arbitrary bans of the publication of newspapers in Jammu and Kashmir;
(n) Ensure independent, impartial and credible investigations into all unmarked graves in the state of Jammu and Kashmir as directed by the State Human Rights Commission; if necessary, seek assistance from the Government of India and /or the international community. Expand the competence of the Jammu and Kashmir State Human Rights Commission to investigate all human rights violations and abuses in the state, including those allegedly committed by central security forces;
(o) Ratify the International Convention for the Protection of all Persons from Enforced Disappearance, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol, and introduce enabling domestic laws as recommended during India’s UPR in 2008, 2012 and 2017;
(p) In line with its standing invitation to the Special Procedures, accept the invitation requests of the almost 20 mandates that have made such requests; in particular, accept the request of the Working Group on Enforced or Involuntary Disappearances and facilitate its visit to India, including to Jammu and Kashmir;
(q) Fully respect the right of self-determination of the people of Kashmir as protected under international law.
While concluding the lecture, he stated that this is the fourth generation of Kashmir, people who are seeking the resolution of Kashmir dispute as per aspirations of the people and we must ponder upon as to why the world doesnot take notice of such violations of human rights happenings in Kashmir. He stated that one of the reasons is that in every important institution of the world, every third person is an Indian, which definitely affects the working of the said institutions in upholding the human rights in Kashmir, more particularly the right to self-determination as mentioned by the Human Rights Commission in the recommendations at para (q), impressing upon India to, fully respect the right of self-determination of the people of Kashmir as protected under international law. He stated that we should appeal the International Community to play their role in getting the UN Security Council Resolutions implemented so that peace and tranquility is established in the sub-continent and people live a life, free from scourge of war or any kind of disturbance for which purpose the United Nations has been created.