Acknowledging the ‘question of self-determination’ that OHCHR Kashmir report raises will be path-breaking

[dropcap]I[/dropcap]n June of 2014, I went for the first time to Sailan, a tiny hamlet in the Poonch military sector in the Pir Panjal region of Jammu, about 20 kilometres from the land-mined, mortar-shelled, bloodline that divides Jammu and Kashmir, to research a massacre that took place there in 1998. It was a profoundly disorienting experience. Besides the surveillance, the militarisation, the violence, the fractured families and missing people which I encountered everywhere (and which I had seen in different forms in my work as a human rights lawyer in Kashmir valley previously), what I experienced for the first time in Poonch was something that I only later identified as a vertiginous sense of cartographic and territorial confusion. Without realising it, every time I talked about the LoC, the “other-side”, Pakistan — I would instinctively glance(physically, or in my own head)upwards to my imaginary north. As an Indian, the border, the Himalayas, Kashmir, the war — always lay there, way up in the vast elsewhere from where I was. My interlocutors, the survivor families and local activists I was working with, would wordlessly turn me around, re-orient me to look in the other direction, pointing me south (or southwest) to the tiers of electrified fencing that lay below (yet sometimes high across the mountains above) us.  It felt like I had walked smack bang into the middle of the upside down map of my world.

This experience became imprinted in my memory as an embodiment of what it means to understand the history and political geography of Jammu and Kashmir, not from some imaginary centre (surely the capital of my imaginary map of pluriversalIndia did not lie in New Delhi?) looking always outwards from the mainland to a far away frontier, but to see the question of human rights violations in the Kashmir valley and the war at its borders as deeply intertwined, and at the heart of the question of what must happen if we want the suffering and carnage to end. Somewhere in that landscape of unmarked graves and buried landmines, I began to understand what it might truly mean to see Jammu and Kashmir not as an always and forever borderland of an unending war that had long since ceased to make any sense, but to see it as homeland, peopled with a profoundly different sense of history and cartography, a whole archive of forgotten maps, and an altogether different body politics from the one we have grown habituated to.

An unacknowledged question

Beyond the details of its well-evidenced account of the egregious human rights violations and denial of constitutional rights that respectively characterise the region’s two separate sovereign jurisdictions—Indian and Pakistani administered Jammu &Kashmir, the United Nations Office of High Commissioner for Human Rights (OHCHR) report displaces of our entrenched sense of cartographic and national certainties.

It does this by seeing things from a Jammu and Kashmir-centric point of view, explicitly foregrounding the Kashmiri people’s collective history and experiences of state violence, and their Right to Self Determination

It does this by seeing things from a Jammu and Kashmir-centric point of view, explicitly foregrounding the Kashmiri people’s collective history and experiences of state violence, and their Right to Self Determination—an acknowledgment that the divided peoples of the region have a collective right to freely choose their own political future, and to even as a last recourse rebel against tyrannical ruleBesides several glancing references in the body of the text, in its recommendations, it calls upon both the governments of India and Pakistan to ‘fully respect the rights of Kashmiris to self-determination as protected under international law’.The meaning of the right to self-determination—(which includes both internal and national dimensions of the right under international law)is a fraught and divisive question, especially as to whether such rights accrue to post-colonial entities. In 1995, a delegation of International Commission of Jurists, a body that consists of eminent scholars, judges and practitioners of International Law, found after a detailed examination of international law principles and the ground situation on both sides of Jammu and Kashmir, that the entirety of the peoples’ of Jammu and Kashmir had a right to self-determination at partition which had never been extinguished, and urged all parties “to seek a negotiated solution to be put to the peoples of the State for ratification in a referendum.”

The OHCHR report is the first time since the aborted UN mandated dispute resolution  and plebiscite process in the late 1940s and 50s, that a United Nations body has so deeply engaged with the situation in Kashmir, and the first time ever that it has explicitly recognised the right of the Kashmiri people’s self-determination, outside the scaffolding of Indo-Pak bilateralism.

Remembering a forgotten map

Rather than the more familiar Indian languages and legal frames of cross-border terror, counter-insurgency, national security and internal law and order, the report deploys

the lens and vocabulary of international conflict and armed groups the lens and vocabulary of international conflict and armed groups. It calls the regions in dispute “Azad Kashmir”, “Gilgit-Baltistan” and “Jammu and Kashmir”, the names that the people of these regions call themselves, rather than the belligerent, yet status-quoist vocabulariesIndia prefers (“low-intensity border skirmishes”, “state-sponsored proxy war”, “Pakistan-occupied Kashmir”). It draws us both backwards and forwards in time to the possibilities of a different map, one that existed at the moment of our own fateful tryst with freedom, when our own homelands first began to draw their bloodied and changing borders. A forgotten map that until ten years later in 1957, when the Indian state of Jammu and Kashmir enacted its own constitution ‘integrating’ itself territorially into India, was acceptable to the most official Indian gaze. Today, the map of the UN version of the Republic of India and its border areas is one that can get you criminally prosecuted for merely reproducing it.,

The report forces us to take seriously the idea that there can be no resolution, no peace, no justice without taking into account what the Kashmiri people want, the whole of an undivided Jammu and Kashmir as an entity, including all five territorial sub-regions (Jammu, Kashmir, Ladakh, Azad Kashmir and the Northern Areas) it is divided into within the two national jurisdictions that claim it, and all of the constitutions and legal frameworks (Indian, Pakistani, the Constitution of Jammu and Kashmir, and the Provisional Constitution of Azad Kashmir—there is also the Chinese, which it does not consider) that currently govern it.

It is a seditious map that is quite literally unspeakable and illegal in this part of the world

It is a seditious map that is quite literally unspeakable and illegal in this part of the world. It is a map that can only be alluded to in the highly coded tones of intrigue and international conspiracy as involving the dreaded K word’, a map censored by state, subject to erasure, confiscation and punishment as an act of cartographic aggression and fabrication. The report stages an act of political re-imagination that sees Kashmir not as war-ravaged residue of partition, not as violated lover torn between two rival suitors, or the grass crushed under the feet of warring elephants — all well worn metaphors for the conflict — but as a single though fractured entity imbued with political agency of its own, reframing the dispute not just as a political one over aggressively normalised claims to national territory, but one involving a continuing legal right to popular sovereignty, as a matter both of law (legal status determination) and of politics (representative democracy, warfare and diplomacy). It is thus perhaps best thought of not as a map at all, but an invitation to explore a roadmap—a journeytowardslegal processes and democratic mechanisms for truce,peace andtransitional justice that will undoubtedly be complex, but one that strives to be inclusive and under international law.The recommendation for an InternationalCommission of Inquiry, whose terms of reference would include the situation on both sides of Jammu and Kashmir, is a tiny but important first step in this journey.

Unspeakable anxieties

This unveiling of the dreaded public secret of India’s disputed sovereignity over the region, that we as Indians all know but have been taught to studiously ignore, and never speak of, even at the escalatingrisk of nuclear war—has not surprisingly caused near apoplectic levels of alarm for New Delhi — the government in power, the broader political establishment, the press corps and the national securitycommentariat.

India’s first official reaction was a glorious word salad of officious, outraged condemnation: (“Fallacious, tendentious and motivated”, the spokesperson of the Ministry of External Affairs thundered); coupledwith outright rejection: ‘There are no entities such as “Azad Jammu and Kashmir” and “Gilgit-Baltistan”. He pointed out that it was a “selective compilation of largely unverified information”. The UN High Commissioner on Human Rights in his farewell speech before the ongoing UN Human Rights Council session dwelt at length on the repeated and stubborn denial of unconditional UN access to the region by India and Pakistan — leading to the need for remote monitoring. He did not elaborate on the fact that India had unilaterally refused the UN High Commissioner’s requests, while Pakistan had made its acceptance conditional upon India’s. Nor did he say that Pakistan allows the UN Military Observers Group (UNMOGIP) to monitor ceasefire violations on their side of the disputed boundary line, as per UN resolutions, while India has refused them permission to do so since the Shimla Agreement of 1972. Perhaps in veiled reference to India’s charge of selective and false information, he stated: “If the government concerned fears there may be inaccuracies, it should permit us in to see the situation on the ground.”

Continuing blindness of security narrative

Not surprisingly, the Indian state is most visibly rattled by thereport’s use of the lexicon and “overtly prejudiced” and “false narrative”of international dispute and armed conflict, rather than its preferred narrative of “security and terrorism”. The report, as I said earlier, performs quite a deliberate and marked shift away from the politically intractable, belligerent and vitiated war vocabulariesof undisputed and absolutist state sovereignity and looks at the dispute through the prism of international law, the laws of armed conflict, and above all as aquestion in which Kashmiris have an independentand important stake.

Despite knee-jerk accusations by media commentators that the the report pretends terrorism does not exist and the MEA’s objections to its use of “armed groups” terminology to  “describe internationally designated and UN-proscribed terrorist entities”, it explicitly records that three of the armed groups operating(Lashkar-e-Tayyiba, Jaish-e- Mohammed and Harakat Ul-Mujahidin) are listed on the UN Security Council’s “ISIL (Da’esh) & Al-Qaida Sanctions List” for their activities in Kashmir. The report devotes a chapter to “Abuses by Armed Groups” focusing on reported Pakistani sponsorship of militant violence in Indian-held territory, including “numerous attacks against civilians, off-duty police personnel and army personnel on leave,including the killing of 16 to 20 civilians” between 2016 and 2018, and “a major episode of attacks against civilians”, specificallythe  targeting of the minority Kashmiri Pandit community and their consequent forced mass migration in the 1990s. Where it differs from Indian establishment is in refusing to seeing these abuses as any more egregious than 13 different forms of serious and widespread human rights violations that it details at length against the Indian state, ranging fromlegal impunity for crimes to extra judicial killings totorture and enforced disappearances.

Besides the official Indian MEA statement, there has been a range of other scathing hot-takes from almost every shade of the media and external affairs commentariat. Some judgments, like those by Barkha Dutt (“airy-fairy”) and Shekhar Gupta (“idiotic”), have been so blindingly instantaneous that they must have barely had time to read its 49 pages. Not surprisingly, both of them get the name of the UN mechanism that authored it wrong, stating that it is by the United Nations Human Rights Council, rather than the Office of the High Commissioner for Human Rights, as mentioned in the report’s title.

Others have been little more than ad hominem Islamophobic dog-whistles that personally attack the present UN High Commissioner, rather than deal with the substance of what the report says. The response by India’s former ambassador to the UN and the former vice president of the Human Rights Council, Dilip Sinha, holds the UN Human Rights High Commissioner personally responsible for the politicisation of the United Nations human rights institutions, and asks why he displays “the same obsession with Kashmir as the Organisation for Islamic Cooperation”, while also accusing the report of “a major factual error”. The intent of this latter objection, however, appears to be confuse and disinform, rather than critique. He states: “[The report]says that India is a state party to the international conventions against torture and enforced disappearance. A check on its own website would have confirmed to the office that India has not ratified either”.

This, when the report states quite clearly that “India has not ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention for the Protection of all Persons from Enforced Disappearance” in a footnote, andhighlights instead India’s legal obligationas a State Partyto theInternational Covenant on Civil and Political Rights, which prohibits torture under any circumstances (Page 26). With regard to the Convention against Enforced Disappearance (Page 27), it specifically notes that India has signed but not ratified the Convention. In fact, as the former Ambassador to the UN should know and as the report also mentions at several places,the universal prohibition of both the crimes of torture and enforced disappearance hasstatus ofcustomary internationallaw, which imposes binding obligations, whether or not a state has ratified a specific treatybanning them.

Evading the question of Kashmiri self-determination

A rather more measured, but just as disingenuous strand of responses has been that the report is not news, it is in fact

No Big Deal—the human rights violations it describes are well known, and previously documented, though their collation and indictment is nonetheless damning

No Big Deal—the human rights violations it describes are well known, and previously documented, though their collation and indictment is nonetheless damning. This set of responses is a gesture of almost pathological denial and evasion, a refusal to discuss the elephant in the room — the question of Kashmiri self-determination. It is a call for turning back of our gaze resolutely inwardsto New Delhi — to “Indian NGOs, media and Courts as this articlesuggests in Scroll. The Print asks Indian citizens to “forget the [shoddy] UN report” and focus our attentions instead on the far more appalling failures of one particular national institution, the National Human Rights Commission.The Ministry of External Affairs reminds us that “the fundamental rights and freedoms guaranteed under the Constitution to every Indian citizen, including in the state of Jammu & Kashmir, are protected […] by an independent judiciary, human rights commissions, free and vibrant media and an active civil society.”

The silencing of the report’s significance in terms of its recognition of Kashmiri political aspirations, is echoed even by veteran human rights activists who have worked on Kashmir like international human rights groups like Amnesty International and Human Rights Watch, whose statements asking India to act on the report, rather surprisingly fail to mention the unprecedented recognition of the human right to self-determination and in the case of Amnesty, even the demand for an international probe.

The report itself describes the many ways in which the media and civil society actors in Kashmir including journalists and human rights defenders are targeted and criminalised, and the overwhelming legal impunity, which makes domestic legal and constitutional recourses illusory and even dangerous for victims. Major Aditya’s case in which the Supreme Court ruled that even a police complaint could not be filed against military personnel in a case involving the killing of five civilians in open firing on a funeral gathering, is only the latest such instance.

The promise of constitutional sovereignty to Jammu and Kashmir inscribed into the Indian Constitution too has been such as Presidential Orders and judicial rulings, accompanied by coercive use of force

The promise of constitutional sovereignty to Jammu and Kashmir inscribed into the Indian Constitution too has been such as Presidential Orders and judicial rulings, accompanied by coercive use of force — political “coups”, incarceration of elected leaders and political dissenters,  and violently rigged elections. In fact, it would not be far-fetched to say that the Indian Constitution itself has been instrumentalised as a weapon of “lawfare” that sees Kashmiris as the enemies within, institutionalising a state of undeclared martial law and permanent emergency.

End of ceasefire and fall of J&K government

Since the report was released six days ago, the ceasefire in Kashmir (such as it was) has rather resoundingly ended and military operations have recommenced. The government at Srinagar has fallen, and direct Governor’s rule by New Delhi has been announced. At least five civilians have been killed in armed force’s firing, scores injured including in separate grenade blasts, and indiscriminate firing of pellet guns. There have been armed encounters with militants, nocturnal raids, the reported use of human shields, mass arrests and military assaults during cordon and searches and stop and frisk operations, curfew, general strikes, and intermittent and local internet shutdowns. A counter –insurgency operative belonging to Jammu and Kashmir Light Infantry has been kidnapped and killed by militants. There has been a sinister and spectacular public assassination of a well known journalist, more than one other mysterious attack of the more commonplace variety by namaloom afraad or unknown gun men. Both the mask of democratic representation and the gloves of ‘maximum military restraint’, it appears, are now officially off, as the defacement of national sovereignity brings some very angry gods out of hiding.

A roadmap for the people, not just a territory

Shekhar Gupta in his response to the report blamed “Western” criticism of the human rights situation Kashmir in the nineties, for the ever more gruesome violence that the Indian state enacted on Kashmiri bodies as its revenge. He writes of Kashmir as an unending blood feud between India and Pakistan, and the UN Report as an “idiotic” “provocation”, debating whose “accuracy, fairness, methodology or motives is a waste of time”.

I do not share his belief that the documentation of their human rights abuses and international legal obligations, must naturally or necessarily cause nations to go ballistic, lose their marbles altogether, and descend into paroxysms of national chauvinism, unalloyed territorial greed, and uncontrollable rage. But it appears the Indian state sees things exactly like Gupta.

Amidst its belligerent war cries, undemocratic and authoritarian actions, and punishingly violent military backlash, the door pried open by the UN report, the space clawed back for Kashmiris to be central to a conversation about their lives, closes in. With it, the faint glimmer of a dream, that it would give us Indians the courage to think the unthinkable, to reorient our moral and cartographic compasses, and begin to see Kashmir for once not as a question of their alienation from us, but of our own increasing alienation and isolation from the world at large.

[Editor’s note: The views expressed in this article are the author’s alone, and do not necessarily reflect that of The Leaflet.]