Did you say Geneva Conventions?

ONE

After a MiG-21 Bison fighter plane piloted by Abhinandan Varthaman, a Wing Commander in the Indian Air Force, was shot down by Pakistan Air Force in Azad Kashmir, and he was arrested by Pakistani military personnel, mainstream Indian media and civil society suddenly remembered that there was this thing called international law and hastily brushed decades-old dust off their copies of the Geneva Conventions, before waxing eloquent on the established principles of treatment of civilians and combatants under international humanitarian norms in TV studios and newspapers columns and on social media.

Diplomatic Conference of Geneva, 1949

However, when it comes to Kashmir, the same people turn into Gandhi’s three monkeys—they do not see, hear or speak any evil.

But laws cannot operate according to the convenience of parties supposed to be governed by them. Uniformity is a prerequisite for the proper performance of any law. A party cannot ask for the operation of a certain law when it benefits it while questioning its very validity when it doesn’t.

Here we present brief glimpses of India’s attitude towards international laws and norms in the part of Jammu and Kashmir it controls. Brevity has been preferred because we do not want the reader to be overburdened with brutal images; outrageous and enraging statements by high ranking Indian civilian and army administrators and officers vis-à-vis Kashmir; and the frustrating, genocidal attitude of a jingoistic, maniacal media and public sphere in India. The crimes demonstrated in each of the “exhibits” presented have been repeated ad nauseam in Kashmir. If you want to know more, the internet is your friend.

News stories that have appeared in mainstream Indian media have mostly been used to compile this list to avoid charges of bias.

Notes: India’s Geneva Conventions Act (1960) provides that,

If any person within or without India commits or attempts to commit, or abets or procures the commission by any other person of, a grave breach of any of the [1949 Geneva] Conventions he shall be punished

Treatment of the dead

Article 15, Geneva Convention

Search for Causalities. Evacuation: At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to … search for the dead and prevent their being despoiled.

Rule 113, International Humanitarian Law

Rule 113. Treatment of the Dead: Each party to the conflict must take all possible measures to prevent the dead from being despoiled. Mutilation of dead bodies is prohibited.

Rule 115, International Humanitarian Law

Rule 115: The dead must be disposed of in a respectful manner and their graves respected and properly maintained.

Exhibit A

When questioned about such practices, Indian military officers contend that insurgents sometimes booby trap the bodies of their fellow insurgents, so bodies are dragged to prevent any mishaps. The body in the exhibit has been moved from the place where it must first have been found (so lever-based booby traps can be ruled out) and its proximity to the soldiers and civilians means they would be within the impact area if there were any explosives inside the body, giving lie to the claims made by the officers.

Treatment of civilians

International Humanitarian Law

Rule 1: The Principle of Distinction between Civilians and Combatants.

Rule 5: Civilians are persons who are not members of the armed forces. The civilian population comprises all persons who are civilians.

In 2012, in a statement during a UN Security Council open debate on the protection of civilians in armed conflict, the permanent representative of India stated:

The principle of protection of civilians must be applied in a uniform manner to all parties to a conflict.

In the same year, in a statement during the UN Security Council debate on Libya and the International Criminal Court, the permanent representative of India stated:

India strongly condemns all acts of violence committed against civilians.

Geneva Conventions

Protocol I: The use of human shields is forbidden by Protocol I of the Geneva Conventions

International Humanitarian Law

Rule 97: The use of human shields is prohibited.

Exhibit B

The Indian army is facing a “dirty war” in Jammu and Kashmir which has to be fought through “innovative” ways, Army Chief General Bipin Rawat has said, stoutly defending the use of a Kashmiri as a human shield by a young officer.

Return of dead bodies

Geneva Conventions

Article 34 of Additional Protocol I of the Geneva Conventions, which is reflective of customary international law, provides that states must “facilitate the return of the remains of the deceased and of personal effects to the home country upon its request, or unless that country objects, upon the request of the next of kin.” (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 34. Not ratified by India.

International Humanitarian Law

Rule 114: Parties to the conflict must endeavor to facilitate the return of the remains of the deceased upon request of the party to which they belong or upon the request of their next of kin. They must return their personal effects to them.

Exhibit C

In this age of superfast communication, information about the decision to execute Afzal Guru’s was sent to his family through speed post which, of course, did not reach them in time, denying them one last meeting. His body was buried without their consent inside the jail where he was imprisoned.

Bombardment of civilian areas

Geneva Conventions I, II and IV

According to Article 50 of the 1949 Geneva Convention I, Article 51 of the 1949 Geneva Convention II and Article 147 of the 1949 Geneva Convention IV, “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” are grave breaches.

Hague Regulations

Article 23(g) of the 1907 Hague Regulations, it is especially forbidden “to destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war” (not ratified by India).

International Criminal Court (ICC) Statute

Under Article 8(2)(a)(iv) of the 1998 ICC Statute, “Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” is a war crime in international armed conflicts.

Under Article 8(2)(b)(xiii), “Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war” is also a war crime in international armed conflicts (not ratified by India).

Exhibit D1

A police official who has supervised several counterinsurgency operations in recent years said there are “no idealistic rules” in wars, pointing to a war strategy that has been around “since times immemorial”. “Why do you bomb cities?” he asked. “To break the will of the people”.

Exhibit D2

Indian army chief Bipin Rawat said the army is capable of using drones to attack hostile targets inside Jammu and Kashmir and across the Line of Control, and sees “no problem” in using them provided the nation is willing to accept “mistakes” and “collateral damage.

Treatment of children

International Humanitarian Law

Rule 135: Children affected by armed conflict are entitled to special respect and protection.

Exhibit E1

The widespread use of pellet guns against protesters in recent years has led to an estimated 3,000 people in the region sustaining eye injuries – locals call it a “dead eye epidemic”. Despite the public anger, Indian security forces have stepped up their use of pellet guns.

Exhibit E2

Indian paramilitary soldiers force a Kashmiri child to perform sit-ups, a form of humiliating punishment in South Asia.

Medical facilities and hospitals

International Humanitarian Law

Medical units, such as hospitals and other facilities that have been set up for medical purposes, must be respected and protected in all circumstances. Medical units may not be attacked and access to them may not be limited. Parties to an armed conflict must take measures to protect medical units from attacks, such as ensuring that they are not situated in the vicinity of military objectives.

Medical transports: Any means of transportation that is assigned exclusively to the conveyance of the wounded and sick, medical personnel and/or medical equipment or supplies must be respected and protected in the same way as medical units. If medical transports fall into the hands of an adverse party, that party becomes responsible for ensuring that the wounded and sick in their charge are cared for.

Photos, videos and eyewitness accounts of security forces allegedly attacking ambulances have flooded the Valley with many activists saying reports of the brutal crackdown on protesters across Kashmir are unprecedented even in war.

TWO

When his plane was shot down, Abhinandan Varthaman was involved in a dogfight with Pakistani fighter jets that had attacked Indian military installations inside Indian-controlled Kashmir.

The Pakistani attack came in response to the Indian Air Force’s bombing of a forest area in Balakot, Pakistan a few days earlier. Pakistan had vowed to retaliate, and the possibility of a nuclear war did not appear bleak.

The bombing of Balakot by India, in turn, had been in response to a suicide bombing by the 22-year-old Kashmiri militant Adil Ahmed Dar in Lethpur, Pulwoam, in Indian-controlled Kashmir, in which about 50 Indian soldiers were killed. Adil, like the thousands of militants who have been killed by Indian armed forces in Kashmir over the last three decades, had taken up arms to fight against what a significant majority of Kashmiris feels is a military occupation of Kashmir by India. Pakistan provides overt and covert support to the militants of Kashmir, as it is a party to the Kashmir dispute under international law, and believes it has as much of a right to have an armed presence in Kashmir as India has to send its military and paramilitary forces to the disputed region.

Indian authorities were quick to describe the suicide attack as “cowardly” and “terrorism”. A young man deciding to lay down his life in the prime of youth for a cause he believes in can hardly be described as cowardly. (Perhaps it was for this reason that the epithet was later changed to “dastardly”.)

Of course, it suits India’s narrative on Kashmir to brand everything Kashmiris do in the pursuit of their political goal of freedom from India as “terrorism”. Many foreign governments were also quick to jump the gun as describe the attack as “terrorist”, not surprisingly, since India is a “market” for the goods of many of them. (Not the least for France, which even decided to move a resolution in the Security Council to ban Jash-e-Mohammed, the organization Adil was part of. Pertinently, the Indian government is battling charges of corruption regarding a multi-billion dollar purchase of Rafale “omnirole” aircrafts from the French aviation company Dassault.) Countries across the world want to sell India stuff, and since justice is not a very marketable community, it is not part of the deal.

But the question remain, can an attack by a combatant on adversarial combatants in a conflict zone be described as terrorism?

Combatants and non-combatants

International Humanitarian Law

Who is a Combatant?

Rule 3: All members of the armed forces of a party to the conflict are combatants, except medical and religious personnel.

International Humanitarian Law on the distinction between Combatants and Non-Combatants

Rule 1: The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.

In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, India concluded:

The use of nuclear weapons in an armed conflict is unlawful being contrary to the conventional as well as customary international law because such a use cannot distinguish between the combatants and non-combatants.

‘Terrorism’ in Kashmir

Although, there is no consensus on what exactly “terrorism” means and entails, and its various definitions are closed tied to the interests of the groups, organizations and states that have formulated them, one of the basic points of convergence and concurrence between all these definitions is that terrorism must be directed, wholly or partially, towards non-combatants with the intention of terrorizing the masses. The attack on Indian soldiers in Pulwoam was not directed at non-combatants, and it clearly did not intend to terrorize the people of Kashmir. For the brutalities Indian forces have committed and continue to commit in Kashmir, there is no love lost between them and the Kashmiri people, so an attack on Indian soldiers always has quite the opposite effect in Kashmir.

Things the Indian state calls terrorism in Kashmir

1. Insurgency

Armed groups in Kashmir may be defined as “insurgents” under various international laws and conventions, but they cannot be called “terrorists” all the time for the simple reason that while some of their actions are directed against civilians suspected of spying for or “collaborating” with the Indian state, most of their actions are purely directed against India’s military complex in Kashmir. They do not seek to terrorize the general public or intend to shape political opinion by using fear as a weapon.

However, the Indian state always refers to them as terrorists.

2. Political activism

A UN Report, 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, says more than 1,000 Kashmiris were held under the notorious Public Safety Act (PSA) between March 2016 and August 2017. The powers granted to the police by the PSA are so broad, and its provisions so draconian, that Amnesty International as described it as a “lawless law.”

3. Stone pelting

On death of jawan Rajendra Singh in stone-pelting in Jammu and Kashmir’s Anantnag district, Gen. Rawat reiterated his earlier stand that the stone-pelters are nothing but over ground workers of terror outfits.

still say the same… If they (stone-pelters) can kill people with such acts, are they not becoming like terrorists.

4. Mass protests

Lt. General (Retd.) Syed Ata Hasnain (who also commanded an Indian army corps in Kashmir): The advent of stone throwing and street turbulence in 2008 was a ploy employed when terrorist numbers plummeted after the LoC fence came into being in 2004 and enabled far more effective counter infiltration. This created another domain sometimes referred as “agitational terrorism”.

5. Socio-religious organizations

Mehbooba Mufti (former Chief Minister of Indian-controlled Kashmir) said:

Democracy is a battle of ideas. The crackdown, followed by the banning of Jammat-e-Islami is condemnable and another example of high handedness and muscular approach of Government of India to deal with the political issue of J&K.

6. Writing

The police in Kashmir filed a series of FIR’s against the journalist Aasif Sultan for “writing against uniformed forces, supporting militancy,” as GV Sundeep Chakravarthi, superintendent of police, Srinagar South, described it.

He’s written against the state. We are planning to file a separate case but not now…

7. Use of social media platforms

Three Kashmiri students booked for sedition for criticizing Indian army.

The list goes on.

THREE

Kashmir is a “nation” as per established definitions under international law, with its own history, culture, languages and sense of identity and belonging. Therefore, like every nation in the world, it has an inviolable right to self determination.

Besides this, Jammu and Kashmir is a “disputed territory” according to international law, and as testified by numerous United Nations Security Council Resolutions. India and Pakistan have promised, and international bodies have recorded, that the fate of the region will be determined through a plebiscite.

UN Security Council Resolutions

There are numerous Security Council Resolutions on Kashmir, calling for holding a plebiscite to determine the future of the state.

Resolution adopted at the meeting of the United Nations Commission for India and Pakistan on 5 January, 1949. (Document No. 5/1196 para. 15, dated the 10th January, 1949).

THE UNITED NATIONS COMMISSION FOR INDIA AND PAKISTAN

Having received from the Governments of India and Pakistan in Communications, dated December 23 and December 25, 1948, respectively their acceptance of the following principles which are supplementary to the Commission’s Resolution of August 13, 1948;

  1. The question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite;
  2. A plebiscite will be held when it shall be found by the Commission that the cease-fire and truce arrangements set forth in Parts I and II of the Commission’s resolution of 13 August 1948, have been carried out and arrangements for the plebiscite have been completed;
  3. (a) The Secretary-General of the United Nations will, in agreement with the Commission, nominate a Plebiscite Administrator who shall be a personality of high international standing and commanding general confidence. He will be formally appointed to office by the Government of Jammu and Kashmir.

(b) The Plebiscite Administrator shall derive from the State of Jammu and Kashmir the powers he considers necessary for organising and conducting the plebiscite and for ensuring the freedom and impartiality of the plebiscite.

(c) The Plebiscite Administrator shall have authority to appoint such staff or assistants and observers as he may require.

  1. (a) After implementation of Parts I and II of the Commission’s resolution of 13 August 1948, and when the Commission is satisfied that peaceful conditions have been restored in the State, the Commission and the Plebiscite Administrator will determine, in consultation with the Government of India, the final disposal of Indian and State armed forces, such disposal to be with due regard to the security of the State and the freedom of the plebiscite.

(b) As regards the territory referred to in A 2 of Part II of the resolution of 13 August, final disposal of the armed forces in that territory will be determined by the Commission and the Plebiscite Administrator in consultation with the local authorities.

  1. All civil and military authorities within the State and the principal political elements of the State will be required to co-operate with the Plebiscite Administrator in the preparation for and the holding of the plebiscite.
  2. (a) All citizens of the State who have left it on account of the disturbances will be invited and be free to return and to exercise all their rights as such citizens. For the purpose of facilitating repatriation there shall be appointed two Commissions, one composed of nominees of India and the other of nominees of Pakistan. The Commissions shall operate under the direction of the Plebiscite Administrator. The Governments of India and Pakistan and all authorities within the State of Jammu and Kashmir will collaborate with the Plebiscite Administrator in putting this provision to effect.

(b) All persons (other than citizens of the State) who on or since 15 August 1947, have entered it for other than lawful purpose, shall be required to leave the State.

  1. All authorities within the State of Jammu and Kashmir will undertake to ensure in collaboration with the Plebiscite Administrator that:

(a) There is no threat, coercion or intimidation, bribery or other undue influence on the voters in plebiscite;

(b) No restrictions are placed on legitimate political activity throughout the State. All subjects of the State, regardless of creed, caste or party, shall be safe and free in expressing their views and in voting on the question of the accession of the State to India or Pakistan. There shall be freedom of the Press, speech and assembly and freedom of travel in the State, including freedom of lawful entry and exit;

(c) All political prisoners are released;

(d) Minorities in all parts of the State are accorded adequate protection; and

(e) There is no victimization.

  1. The Plebiscite Administrator may refer to the United Nations Commission for India and Pakistan problems on which he may require assistance, and the Commission may in its discretion call upon the Plebiscite Administrator to carry out on its behalf any of the responsibilities with which it has been entrusted;
  2. At the conclusion of the plebiscite, the Plebiscite Administrator shall report the result thereof to the Commission and to the Government of Jammu and Kashmir. The Commission shall then certify to the Security Council whether the Plebiscite has or has not been free and impartial;
  3. Upon the signature of the truce agreement the details of the foregoing proposals will be elaborated in the consultation envisaged in Part III of the Commission’s resolution of 13 August 1948. The Plebiscite Administrator will be fully associated in these consultations; Commends the Governments of India and Pakistan for their prompt action in ordering a ceasefire to take effect from one minute before midnight of first January 1949, pursuant to the agreement arrived at as provided for by the Commission’s resolution of 13 August 1948; and Resolves to return in the immediate future to the sub-continent to discharge the responsibilities imposed upon it by the resolution of 13 August 1948, and by the foregoing principles.

The UNCIP unanimously adopted this Resolution on 5-1-1949. Members of the Commission: Argentina, Belgium, Colombia, Czechoslovakia and U.S.A

Self determination in international law

Charter of United Nations, 1947: According to Article 1 (2) of the Charter, one of the purposes of the United Nations is to “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples…”

Article 1 of the Universal Declaration of Human Rights declares: All human beings are born free and equal in dignity and rights.

The International Covenants for Human Rights comprise of the International Covenant for Economic, Social and Cultural Rights (ICESCR) and the International Covenant for Civil and Political Rights (ICCPR) and the norm of self-determination is common in Article I of both documents

The people of Kashmir under international law have the right to determine their own political future.  Right of self determination of the people of Kashmir has been recognized in several UN Resolutions. The Indian Representative, in his letter to the president of Security Council, regarding the status of the state, clarified that finally, “Its people would be free to decide their future by the recognized democratic method of plebiscite or Referendum which, in order to ensure complete impartiality, might be held under international auspices.” Furthermore, the UN Security Council discussions led to the resolutions of August 13, 1948 and January 5, 1949 clearly laid down that, the question of accession of the state of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite.

According to Article 103 of UN Charter, the Member States obligations under the Charter primacy over obligations under a bilateral agreement. Presence of United Nations Military Observes Group in India and Pakistan (UNMOGIP) at the Line of Control in Kashmir is a clear evidence of UN’s involvement in the Kashmir issue. It, therefore, has become a principal subject of International relations and international human rights law. The right of self-determination has been taken from jus cogens doctrine. It is a norm of jus cogens which are one of the highest laws of International Law that has to be observed strictly. According to the cases ruled by International Court of Justice and Inter American commission it has been clearly stated that right of self-determination has the legal status of erga omnes.

FINALLY

Only two paradigms of law can lay claim to being just—uniformity or the protection of the weak. But if the strong take recourse to laws when they need them, and dismiss the same laws summarily when the weak want to seek protection under them, the arrangement cannot claim to be legal, it is simply an exercise of power.

At the present moment, when India has polished its copies of various international laws, it should look into them as if they are a mirror. Perhaps it will finally realize that by holding the people of Jammu and Kashmir against their will and in using fear as an instrument of state policy, India is pigeonholing itself into the classical definition of terrorism. Perhaps it will also realize that self-determination is not only the internationally recognized right of every nation, but also the very basis of the democracy to which India’s government, civil society, academia and media never tire of singing paeans.

It is time India begins to respect international law, all of it, not only the part that suits its interests. It is time India ends its subscription to Geneva Convenience.

This compilation recognizes the absolute copyright of the photographers whose photos have been used here for demonstrative purpose.

 

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