Kashmir and the Human Rights Implications of the Global War on Terror

Prof Richard Bonney




It has taken a long time coming. The report of Special Rapporteur Martin Scheinin dated 4 February 2009, released on 10 March, contained at long last the criticism of the United Nations against not only of the 'comprehensive system of extraordinary renditions, prolonged and secret detention' established by the United States but also of those 9 countries - including, I have to state with regret, the United Kingdom - which have collaborated with this system.

These 9 countries, the Special Rapporteur claims, 'have provided intelligence or have conducted the initial seizure of an individual before he was transferred to (mostly unacknowledged) detention centres in Afghanistan, Egypt, Ethiopia, Jordan, Pakistan, Morocco, Saudi Arabia, Yemen, Syria, Thailand, Uzbekistan, or to one of the CIA covert detention centres, often referred to as "black sites". In many cases, the receiving States reportedly engaged in torture and other forms of ill-treatment of these detainees.'

It has been known since 2005, in the case of the United Kingdom, that intelligence personnel had conducted or witnessed some 2,000 interviews in Afghanistan, Guantanamo Bay and Iraq, thus implicitly - I would argue, explicitly - condoning acts of torture which may have been carried out there. In Paragraph 71 of his the Special Rapporteur condemns the United Kingdom among other states for seeking to 'conceal illegal acts from oversight bodies or judicial authorities, or to protect itself from criticism, embarrassment and - most importantly - liability.' It is a matter of regret that only The Guardian among the serious British newspapers carried a notice on the report on its front page on 10 March.

In Paragraph 53 of his report, the Special Rapporteur reminds States that they are 'responsible where they knowingly engage in, render aid to, or assist in, the commission of internationally wrongful acts, including violations of human rights. Accordingly, grave human rights violations by States such as torture, enforced disappearances or arbitrary detention should … place serious constraints on policies of cooperation by States, including by their intelligence agencies, with States that are known to violate human rights. The prohibition against torture is an absolute and peremptory norm of international law. States must not aid or assist in the commission of acts of torture, or recognize such practices as lawful…'

This brings us to the relationship between the global war on terror, the abuse of human rights and the Kashmir conflict. It is well known that India, while not playing any comparable role to that of Pakistan as a front-line state in the global war on terror, has sought to exploit the opportunity provided by the lack of clarity in the goals of that war to depict all indigenous resistance to its military occupation of Kashmir as 'terrorism', and further to claim that all such 'terrorism' emanates from Pakistan or Pakistan-administered Kashmir.

It is also well known that India, the United States and Israel are engaged in a deep-seated, and largely secretive, intelligence and counter-terrorism co-operation. In effect, India wants to learn from Israel all the techniques of repression that it has used so 'successfully' against the Palestine people, so that it can apply them itself against the Kashmiri people. RSS spokesperson Ram Madhav stated this explicitly at the time of Sharon's visit to India in 2003: 'the entire world acknowledges that Israel has effectively and ruthlessly countered terror in the Middle East. Since India and Israel are both fighting a war against terrorism, therefore, we should learn a lesson or two from them. We need to have close cooperation with them in this field.' It is the RSS which, along with the BJP and other sections of the Hindutva lobby, advocates the repeal of article 370 of the Indian constitution and the complete integration of Indian-controlled Kashmir into the Indian Union.

Some of the Israeli tactics used against Hamas in Gaza - the deliberate assassination of its leaders, the indiscriminate use of firepower against civilians and the use of white phosphorous munitions as weapons of war in civilian areas (which is banned by the Geneva Conventions) - would be extremely dangerous if applied to the Kashmir context. The numbers of civilian casualties in the Kashmir conflict is already high enough. Though we cannot say with any certainty what the true figure of civilian fatalities is, we can reject the figure given by the Indian security forces - 14,504 between 1988 and 2008 - as far too low. Writing in the year 1999, Eric S. Margolis already noted that resistance groups claimed that 'at least 50,000 people have been killed by Indian forces since 1990', a figure denied by the authorities in Delhi. When forced to 'clarify' his position after some initial unwise remarks about Kashmir, President Asif Zardari stated: 'I started my political mission from Shaheed Benazir Bhutto's grave ... If I … keep her trust, how can I betray the trust of 90,000 other martyrs who have lost their lives in Kashmir?'

Comparing the number of civilian casualties in Iraq to those of Sri Lanka since 1982 and Kashmir since 1988, Professor Juan R. Cole suggests that the number of civilians killed in Kashmir has been about 70,000 persons, or about 3,500 persons a year: more than in Sri Lanka (2,800 a year) and far too many, though the number of civilian casualties in Iraq are higher still. As a proportion of the total civilian population, however - which is how the conflict is perceived by civilians - the number of casualties in Kashmir is certainly higher than in the other two conflicts because the population of Indian-administered Kashmir is small (13 million or so) compared with either Iraq (28.2 million) or Sri Lanka (21.1 million). The Kashmir Media Service puts the number of killings, including those in custody, between January 1989 and the end of February 2009 at 92,739. While this claim cannot be independently verified, it is a matter of regret that the usually reliable U.S. Congressional Research Reports are in this matter seriously flawed by relying in the 2009 update on India-U.S. Relations on the unreliable data of the Indian Institute for Conflict Management, New Delhi (itself reliant on newspaper reports and the official figures supplied by the Indian military and paramilitary occupation forces).

To be fair, the Congressional Research Service report does note elsewhere that 'at least 8,000 Kashmiris have "disappeared" during the conflict'; and that 'some of these may occupy the nearly 1,000 unmarked graves discovered near the LOC in early 2008'. However, it fails to make the point stressed by the UN Rapporteur that security service collaboration should be held in check when there are allegations of serious human rights abuses against another security service; and there is no mention of the European Union's expressions of concern at the Kashmiri 'disappeared' (or for that matter, of the contemptuous response of the Indian Ambassador to such expressions of concern). A specialist working group was set up under the terms of the Geneva Convention in September 2008. To date there has been no statement by the Indian Government or its Armed Forces that they take seriously the accusations against them of secret mass killings and the placing of corpses in unmarked mass graves and that they intend to identify and prosecute those guilty of such human rights abuses. As Human Rights Watch argued in its report of September 2006, impunity fuels the conflict in Jammu and Kashmir.

President Obama has spoken of the need to resolve the Kashmir dispute in the greater interests of prosecuting the war against violent extremism in Afghanistan. India immediately commenced lobbying against a Kashmir brief being added to the agenda of Richard Holbrooke, the President's special envoy for Afghanistan and Pakistan. Even though this lobby seems to have been successful, the more general need to move a significant part of the 300,000 troops deployed on Pakistan's southern to its northern borders to help sustain the coalition effort against the Taliban and al-Qaeda is likely to lead to some measure of American involvement with the Kashmir issue. Taking the traditional Indian line in Outlook India, Namrata Goswami argues that Obama's advisers - Richard Holbrooke and Bruce Reidel - lack South Asian experience; that the United States must be persuaded that 'the links existing between the Pakistan military, the Inter-Service Intelligence (ISI) and terror groups like the Taliban, al Qaeda, and the Lashkar-e-Taiba (LeT) must be dismantled'; and that 'Kashmir is an integral part of India and therefore third party mediation [read US] will not be appreciated. These arguments must be backed by the reality of an existing democratic space in Kashmir today and the improving socio-economic situation.'

Yet these arguments are specious. They are no more than a restatement of the Indian attempt to pillory Pakistan as a 'terrorist' state which showed some modest gains before 2001 until it became evident that in the post 9/11 world Pakistan was too important to the geostrategic interests of the United States to be treated in this way. It is clear that Richard Holbrooke has hands full in dealing with the problems of Afghanistan and Pakistan without getting involved at all in Kashmir. Were he to do so, he would be rebuffed by India in any case; but he could not prove an effective facilitator for dialogue between India, Pakistan and the Kashmir people. The only realistic facilitator for such a dialogue - and by facilitator we do not mean 'mediator', which has always been rejected by India - is the European Union, not the United States, because - unlike the US - the EU does not have a single 'state interest' which at a given moment in time might conflict with one of the parties' basic interests.

Even if India could be encouraged, induced or cajoled to enter into such a tripartite dialogue with neutral facilitation - and I am by no means sanguine it can be so encouraged at a time when it perceives that Pakistan is in a weakened position after the fall of President Musharraf (and the Kashmiri leadership is beginning to recognize that a weakened Pakistan removes any incentive for India to settle) - even if it could be so encouraged, I am by no means certain that any meaningful outcome can be achieved.

This is because of the entrenched viewpoint, expressed above by the journalist Namrata Goswami as recently as 6 March 2009 that 'Kashmir is an integral part of India', which ignores the special status of Kashmir reflected in the (largely disregarded) Article 370 of the Indian Constitution. Krishna Menon - a key figure in the Indian political elite between 1947 and 1962 - had said as much to Michael Brecher when interviewed forty years ago.

There is no other way [forward than either the status quo or war]. No settlement that would surrender Indian territory to Pakistan is constitutionally acceptable in India [sic: because within the Indian constitution there is no right of secession of any state]. There are many millions of people who feel this way. Kashmir is the one thing on which feeling [in India] is united. If I ask anyone, 'What do you want me to talk about?', they say, 'Kashmir'… The fundamental mistake lies in speaking and talking to outsiders as though Kashmir is another country! As for this two-nation theory, we never accepted it. We accepted the Partition and Pakistan merely as an ad hoc practical arrangement. It was a political settlement… Kashmir is said to be 'disputed' territory. We do not accept that. Part of Kashmir [i.e. Pakistan-administered Kashmir] is illegally occupied. That is the fact…

I quote Krishna Menon at length to reveal a deep-seated Indian mindset, not to condone it. (It is a matter of report that to date his 8-hour speech delivered to the United Nations Security Council on 23 January 1957 defending India's stand on Kashmir is the longest ever delivered to that body!) There was of course, no recognition by him of any right of Kashmiri self-determination, no allusion to the fact that the Maharaja had an obligation to consult the Kashmiri people in 1947 ('the best advantage to the ruler and his people' in Mountbatten's phrase), no recognition that the problem was taken by India to the United Nations and that is subject to resolutions of that body which envisaged a free and fair plebiscite of the people; or that Indian-controlled Kashmir should have the degree of autonomy recognized by Article 370 of the Indian Constitution.

Yet Krishna Menon conceded a very important point in the interview published in 1968. 'The problem of Kashmir', he added, 'is in the same category as divided Korea, divided Germany or divided Cyprus.' Dividing Kashmir across a cease-fire line was unacceptable and would be 'yielding to aggression'. Long after Menon gave his interview, and much to most commentators' surprise, Germany was reunited within the European Union. If there is a degree of comparability between the Kashmir situation, and the issue of German unification, and I believe there is, it lies in the wishes of the Kashmir people to regain a full expression of their identity - Kashmiriyat. It is only when the best efforts of all parties concentrate on allowing this to happen fully, and for all Kashmiris, that there will be the beginnings of a solution in place of the Kashmir dispute.

Krishna Menon argued correctly that 'in the interests of peace we [he meant India, but we can extend this to all sides of the conflict] should not try to change the situation - the de facto partition of Kashmir by armed action'. As Hans Köchler put it in his address last year to the European Parliament, 'police brutalities, rape and other human rights violations will have to come to an end and [will] have to be prosecuted with full determination and without bias. At the same time, deliberate attacks on civilians have to be terminated once and for all; no party to the dispute - whether state or non-state actor - has the right to engage in such kind of violence. A struggle for self-determination and political and civil rights must not be carried out by terrorist means - and must equally not be countered by acts of state terrorism.'


This means that most of the 700,000 or so Indian military and paramilitary officially recognized as present in Kashmir - or the 800,000 or so estimated by the Kashmiri political leaders - have no place in Indian-administered Kashmir. If there is any reality to the claims of an 'existing democratic space in Kashmir today', then it has to be a democratic space in which people are not cowed into submission but may freely express their political will without an overbearing military presence. This is one of the lessons of the Northern Ireland peace process. Alas, this seems no nearer for Kashmir today than it did on 1 January 1949 when the Line of Control was first enshrined sixty years ago.