Prosecution Past Due: Holding Human Rights Violators Accountable in Kashmir

Abstract

The international community considers human rights abuses as grave violations of international law. Nonetheless, the international community has done nothing to hold criminals and offenders accountable for committing grave violations of international law in India-administered Kashmir (“Kashmir”) and Pakistan-administered Kashmir (“Pakistan-Occupied Kashmir” or “POK” or “Azad Kashmir”). Since 1947, India and Pakistan have been at war over the disputed territory of Kashmir. The collateral damage to Kashmiri locals has been high; citizens of Kashmir have been assaulted, tortured, and killed. In 2018, the United Nations Office of the United Nations High Commissioner for Human Rights (“OHCHR”) published the first-ever report on the human rights situation in India-Administered Kashmir and Pakistan-Administered Kashmir. With the publication of this report and the Indian Prime Minister’s revocation of Article 370, which granted Kashmir special status to create its own constitution and citizenship, the international spotlight has been put on Kashmir. However, for seventy years, and even now, there has been no accountability or prosecution of the offenders who have committed these crimes against citizens of Kashmir. Now, more than ever, while the spotlight is on India and Pakistan, the international community should push both countries to hold their citizens accountable for the gross violations of human rights committed in Kashmir and Azad Kashmir. However, as observed by the second report published by the OHCHR, India and Pakistan have done nothing to acknowledge these human rights violations or prosecute offenders. This Note explores whether current international legal forums provide an adequate route for the citizens of Kashmir to hold Indian and Pakistani offenders accountable and proposes that, in light of the lack of India and Pakistan’s initiative to hold offenders accountable, the United Nations establish a tribunal for the purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of Kashmir and Azad Kashmir.