Human Rights Violation in Kashmir and the Responsibility of International Institutions

Abstract

The international community’s endeavors to help resolve the Kashmir issue began only weeks after the dispute erupted in 1947. All have recognized that India, after increasing international pressure, plainly consented to the U.N mandated plebiscite, leaving the people of the state to decide their future political destiny. The United Nations passed a multitude of resolutions pressing upon Indian authority to desist from its adamant stance in order to have the conflict resolved. All have recognized that the continuing refusal of the Indian government to countenance a resolution to the Kashmir issue led to the outbreak of an insurrection against Indian rule in the Kashmir at the end of 1989. It is by the coercive and suppressive policies of India that Jammu and Kashmir and the life of its people have been reduced to that of two legged helpless creatures put under the ferocious clutches of barbaric army rule. India has ratified Geneva Convention and has even enacted Geneva conventions Act 1960, but in practice, India has decided to overlook common Article 3 in its special enactments, applicability and Supreme Court rulings. Moreover, it is normally and more extensively argued that no point has the situation in India met the thresh hold required for the application of common Article 3. Thus India has not accepted the application of Common Article 3 of the Geneva Conventions to the situations prevailing in the country. The reports on hundreds of mass graves in Kashmir, torture, hostage taking and rape have all been prominent abuses in the Kashmir conflict by security forces. Another example is Armed Forces (Special Powers) Act 1958. It enables security forces to “fire upon or other wise use force, even to the causing death” where laws are being violated. It says no criminal prosecution would lie against any person who has taken action under this act. While Article 3 prohibits killing of innocent civilians in non-international armed conflict. AFSPA under section 4(a) gives wide ranging powers to the armed forces to the extent of causing death on mere suspicion. Various reports, academic views as well as conferences have time and again highlighted the need for India to actually accept the common article 3 in practice. The judiciary has failed its duty in this context by overlooking Judicial guarantees as required by article. The situation of conflict that persists in Kashmir and the North-East explains the reason for the state’s anxiety that this matter of violence could be referred to the international criminal court. India continuously evades application of Common Article 3. Some help could have been taken from Additional protocol II were a lower threshold is found under Article 1(2) but India has not ratified the same .even, the inclusion of ‘armed conflict not of an international character’ defining war crimes in Article 8 of the statute of an ICC met with resistance from the Indian establishment. Further elements giving rise to India’s misgiving are the fear that the court might be used with political motives, the power conferred on the prosecutor to initiate investigation proprio motu and the role allotted to security council. Prosecution of Indian officers, leaders and army by ICC is an overstretch and the jurisdiction over India under the UNSC referral process is possible even if India stays out of ICC. This paper will discuss human rights violation in Kashmir and role of international institutions.