The KASHMIRI WAR:
Human Rights
and Humanitarian Law

A Briefing Paper

OF

HUMANITARIAN LAW PROJECT
INTERNATIONAL EDUCATIONAL DEVELOPMENT
ASSOCIATION OF HUMANITARIAN LAWYERS

Prepared by
Karen Parker, J.D.

Presented to

The United Nations
Commission on Human Rights
1996 Session
March
Geneva

Humanitarian Law Project
International Educational Development
8124 West Third Street
Los Angeles, California 90048
tel. (213) 653-6583
fax. (213) 653-2741

Humanitarian Law Project/International Educational Development

(HLP/IED) is a non-sectarian, non-governmental organization granted consultative status at the United Nations by Dag Hammarskjold. IED was originally founded by Jesuit fathers to assist hospitals and schools in developing countries. In 1989 IED merged with the Los Angeles-based Humanitarian Law Project (HLP) and broadened its scope to advocate and promote world-wide compliance with human rights and humanitarian law.

Karen Parker, a director of HLP/IED, is an attorney at law specializing in human rights and humanitarian law. She is the organization's chief representative to the United Nations, Geneva and New York.

This report was funded by a grant from the Association of Humanitarian Lawyers.

INTRODUCTION

SYNOPSIS

BACKGROUND

UNITED NATIONS ACTION ON KASHMIR

THE KASHMIRI RIGHT TO SELF-DETERMINATION

THE KASHMIRI WAR AND HUMANITARIAN LAW

THE WAR -- EVERYDAY REALITY

SOME RECENT EVENTS

INDIA'S HUMANITARIAN LAW VIOLATIONS

VIOLATIONS OF RIGHTS OF DETAINEES IN KASHMIR

THE ECONOMIC DESTRUCTION OF KASHMIR

FINAL ASSESSMENT

WHAT SHOULD THE UNITED NATIONS DO

U.N. ACTION ON KASHMIR

BIBLIOGRAPHY

NTRODUCTION

The Humanitarian Law Project/International Educational Development (HLP/IED) and the Association of Humanitarian Lawyers have been concerned for many years about the Kashmiri war and the serious violations of humanitarian law and human rights in Indian-occupied Jammu and Kashmir. With grants from the Association of Humanitarian Lawyers we have undertaken 7 confidential missions to Kashmir, including one each in 1991 and 1992, two in 1993, and one in the Fall of 1994 of several months duration each and two in 1995 of shorter duration.

At the United Nations Commission on Human Rights and its Sub-Commission on Prevention of Discrimination and Protection of Minorities we have presented extensive written and oral statements on the Kashmiri war. In October 1995 we co-hosted a reception at UN Headquarters in New York for leaders of the Kashmiri people, with funds also provided by the Association of Humanitarian Lawyers.. This report is our fourth on Kashmir. 

SYNOPSIS

India seized much of Kashmir in 1947 during the break-up of British colonial rule in the region. In 1949, the United Nations Security Council and its Commission for India and Pakistan decided that Kashmiris themselves should determine their future rule, and authorized a UN-administered plebiscite of Kashmiris to determine their status. This plebiscite has not yet been held.

Kashmiris have resisted Indian rule all along, and there have been many periods of upheaval since 1947. The current crisis dates from 1988 and over its nearly 8 years has steadily escalated. At the present time, India has an occupation army of at least 600,000 military and paramilitary troops in Indian- occupied Kashmir. The Indian troops in turn face growing organized political and armed resistance by Kashmiri forces and a wide-spread popular uprising. A steadily escalating cycle of repression and resistance to repression has engulfed the area and there are rampant and widespread violations of the Geneva Conventions and human rights.

This report presents a background to the current crisis, including a summary of United Nations action on the Kashmir question. It then shows that the Kashmiri people have a right to self-determination, including the right to decide their political affiliation and concludes that India's claim to Kashmir is undefendable. The report then sets out violations of humanitarian law and human rights in the area. It concludes by recommending a course of action by the United Nations and the international community to restore full human rights to Kashmir, including the right to self-determination. Annexed to the report are citations to all major UN documents and a list of recent reports on Kashmir.

BACKGROUND

Kashmir, independent for much of its long history, is located between India, Pakistan, China and Afghanistan. During the British colonial empire in the sub-continent, Kashmir was set up as an autonomous State or principality headed by a maharajah but ultimately controlled by Britain. The maharajah was a descendent of a warlord who had been "sold" the area by the British East India Company in 1846.

In the 1930s a "Quit Kashmir" movement began with the aim of reestablishing independence through the withdrawal of the maharajah and the termination of British "paramountcy". The British and the maharajah brutally put down this movement, but it continued to exist secretly until 1947 when it became part of the newly-formed Azad (free) Kashmir movement.

When the British withdrew from colonial India in 1947, a settlement was reached between the British and the new States of India and Pakistan. Under the decolonization plan, the autonomous States such as Jammu and Kashmir were to be given the option of joining either India or Pakistan under the principle of partition or to become fully independent. The Kashmiri people are largely Muslims, so even though its maharajah was Hindu, it was widely assumed that they would choose independence or accession to Pakistan. In fact, the newly-formed Azad Kashmir or free Kashmir movement which strongly opposed accession to India was vigorously supported by the Kashmiri people. On the other hand, two autonomous States (Hyderabad and Junagadh) had Hindu majorities but Muslim maharajahs, strengthening India's resolve that any accession must be approved by the people in question.

The political leadership of the new India reiterated again and again to the Kashmiri people and the world that the Kashmiri people would be able to decide their own future. For example, in 1947 Indian Prime Minister Nehru stated:

We have declared that the fate of Kashmir is ultimately to be decided by the people. That pledge we give not only to the people of Kashmir but to the world. We will not and cannot back out of it.

However, at that same time Maharajah Hari Singh, a Hindu, sought help from Indian troops to quell the anti-maharajah and anti-India fervor in Kashmir. In exchange for the assistance of the Indian army to put down an escalating revolt, he signed an instrument of accession with India. The Indian army then took over from the maharajah's forces and it began fighting against Azad Kashmir forces. By 1947 the Azad Kashmir controlled one third of the State of Jammu and Kashmir but were unable to hold

the whole of it. A portion in the north came under Pakistan authority and another part under Chinese control. The largest part Kashmir including the valley and Srinagar fell to Indian forces.

UNITED NATIONS ACTION ON KASHMIR

In 1948 the United Nations began addressing the crisis in Jammu and Kashmir, and in January of that year the Security Council, with the agreement of both Pakistan and India, first passed a resolution urging measures to improve the situation followed by one setting up a Security Council Commission (later named the United Nations Commission for India and Pakistan) to defuse the armed confrontations. In April, 1948, the Security Council first addressed the question of a plebiscite to determine the future of the State of Jammu and Kashmir. Under Security Council resolution 47/48, the Security Council Commission was enlarged to five persons and ordered to travel to the area at once and

place its good offices and mediation at the disposal of the Governments of India and Pakistan with a view to facilitating the necessary measures, both with respect to the restoration of peace and order and to the holding of a plebiscite by the two governments.

On August 13, 1948, the Security Council Commission, now called the United Nations Commission for India and Pakistan, adopted a resolution mandating a cease-fire and withdrawal of troops. This was followed by another resolution which included principles regarding the plebiscite which was now to be under the authority of the Security Council itself. The Peace Plan proposed by the Commission for India and Pakistan and accepted by both parties had three stages: (1) a cease fire, (2) a truce involving an agreed plan for a balanced military withdrawal of both sides and (3) a plebiscite. The cease fire took effect on January 1, 1949.

Also in January 1949, the United Nations Military Observer Group in India and Pakistan (UNMOGIP) was established with a mandate "to supervise, in the State of Jammu and Kashmir, the cease-fire between Indian and Pakistan." It continues today, with 38 military observers.

India objected to the truce plan proposed by the Commission for India and Pakistan. The Commission proposed arbitration over the truce plan with Admiral Nimitz as arbitrator. Pakistan accepted this plan. However, even with strong appeals for this arbitration made by U.S. President Truman and United Kingdom Prime Minister Attlee, India refused to accept arbitration over the truce.

In exercise of his good offices, Security Council President

General McNaughton (Canada) issued a proposal (the McNaughton Proposal) in which the first of four principal considerations was the need for determination "of the future of Jammu and Kashmir by the democratic method of free and impartial plebiscite, to take place as early as possible." The proposal then sets out a plan called "Demilitarization Preparatory to the Plebiscite." In accordance with the McNaughton Proposal the Security Council, in its resolution 80/1950, noted the appointment of Admiral Chester Nimitz of the United States Plebiscite Administrator, appointed a United Nations Representative whose mandate was "to supervise the implementation of the programme of demilitarization" and set out other steps "for the expeditious determination of the future of the State [of Jammu and Kashmir] in accordance with the freely expressed will of the inhabitants."

Between 1950 and 1957, neither Admiral Nimitz nor a series of Representatives appointed by the United Nations Security Council (General McNaughton; Owen Dixon -- Australia; Frank Graham -- United States; Gunnar Jarring -- Sweden) were able to fulfil their mandate to demilitarize the area and arrange for the plebiscite. In 1965, tension between India and Pakistan increased dramatically due to, inter alia, the Kashmir question, and war broke out for a brief time. The matter was brought to the Security Council and with the efforts of the Secretary-General there was a cessation of hostilities and a return in force of the cease fire line. In 1971, war broke out again between India and Pakistan, although Kashmir was only a minor factor, and the United nations again responded. The Simla Agreement concluding that war, signed by Prime Ministers Indira Gandhi of India and Zulfikar Ali Bhutto of Pakistan, committed both countries to reach a "final settlement of Jammu and Kashmir", as yet unfulfilled. Several times since, India and Pakistan have again been poised for war, and since a near-war in 1990 there are growing concerns about the possible use of nuclear weapons. However, the General Assembly and United Nations human rights bodies have not acted on the question, in spite of voluminous testimony of serious violations of humanitarian law by governments and non-governmental organizations and several draft resolutions presented.

THE KASHMIRI RIGHT TO SELF-DETERMINATION

The United Nations itself promised the people of Kashmir the opportunity to express their wishes regarding their governance and the international status of their country. Even absent that express recognition of the right to determine their status, the Kashmiri people meet all international law tests for the right to self-determination.

The right to self-determination, a fundamental principle of human rights law, is an individual and collective right to

freely determine political status and to pursue economic, social and cultural development. The International Court of Justice refers to the right to self-determination as a right held by people rather than a right held by governments alone. The right to self-determination is indisputably a norm of jus cogens.

The two important United Nations studies on the right to self-determination set out factors of a people that give rise to possession of right to self-determination: a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self- governance.

The Kashmiri claim to the right to self-determination is exceptionally strong. The area had a long history of self- governance pre-dating the colonial period. The territory of Kashmir has been clearly defined for centuries. Kashmiri people speak Kashmiri, which, while enjoying Sanskrit as a root language as do all Indo-European languages, is clearly a separate language from either Hindi or Urdu. The Kashmiri culture is similarly distinct from other cultures in the area in all respects -- folk-lore, dress, traditions, cuisine. Even every day artifacts such as cooking pots, jewelry have the unique Kashmiri style.

Most important to a claim to self-determination, Kashmiris have a current strong common aspiration for re-establishment of self rule. The Kashmiri people resisted the British, and maintained a degree of autonomy throughout British rule. In 1931 a major uprising of Kashmiris against the British and the British-imposed maharajah was brutally put down. But the "Quit Kashmir" campaign against the maharajah continued into 1946, when the Azad Kashmir movement gained momentum. During the breakup of British India, the Azad military forces began armed attacks against the forces of the maharajah -- prompting the accession to India in exchange for Indian military protection. Resistance to India has continued unabated throughout Indian occupation, with major uprisings in 1953, 1964 and since 1988.

While resistance to India has played a major role in Kashmiri events, there is also forward-looking political leadership with a clear will and capability to carry on the governance of an independent Kashmir. There are a number of political parties in Kashmir that have been active for some time, even though at great risk. Many of the leaders of these parties have spent time in Indian jails, some for many years, merely because of their political views on Kashmir. In 1993 most of the Kashmiri political parties joined together to form the All- Parties Hurriyet Conference (APHC). According to its 1993 Mission Statement, the APHC seeks

to rebuild the Kashmiri peoples' belief in a peaceful resolution, by energetically pursuing such a settlement. Only such a settlement, reached through tripartite negotiations, can . . . provide lasting peace in the region.

Since it formation, the APHC has carried out its mission as promised, sending leaders around Kashmir and around the world to forward dialogue and peaceful resolution of the Kashmiri war. Leaders and representatives of the APHC have regularly attended United Nations human rights sessions, special conferences and the General Assembly. In addition to the exceptionally strong historical basis for self-determination, the Kashmiri people also have a claim based on the repeated agreement of the government of India during the de-colonization process and in the early days of Indian-occupancy that the final disposition of Kashmiri would be decided by the Kashmiri people themselves.

The Indian government backed up its promises that the future of kashmir would be decided by the Kashmiri people with a commitment to a plebiscite under the auspices of the United Nations. The Security Council resolutions cited above indicating United Nations action to settle the Kashmir question were all supported by India as were resolutions of the United Nations Commission for India and Pakistan. For example, on January 5, 1949, India agreed to a Commission resolution stating:

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.

In spite of its public commitment to the UN plebiscite, India has attempted to persuade the international community that the Kashmiri people effectively exercised their right to self- determination and chose to be a part of India. To defend this position, India proposes that its sponsorship of the "All Jammu and Kashmir National Conference" and a "Constituent Assembly" which agreed to accession to India constitutes the plebiscite as envisioned by the United Nations. The United Nations did not agree. The Security Council, in its resolution 91 of 30 March 1951, declared that action taken by the Constituent Assembly "would not constitute a disposition of the State [of Jammu and Kashmir] in accordance with the [United Nations plan]."

India also claims a number of events, including the acquiescence of the Kashmiri people to Indian rule, and validation of Indian rule by various "elections" add up to extinguishment of the right to self-determination. For example, in spite of the refusal of the United Nations to affirm acts of

the Constituent Assembly, India refers to Section 3 of the Constitution adopted by the State Constituent Assembly, which provides that Jammu and Kashmir is "an integral part of the Union of India" as being "inviolable and irrevocable." Additionally, India claims that the participation of residents in Jammu and Kashmir in the 1957 general election reinforces the acceptance of the Kashmiri people of accession to India. In light of the above-cited Security Council resolutions, this claim of India is untenable.

India also maintains that Sheikh Abdullah's election victory in what have been called free and fair elections in 1977 along with his so-called prior acceptance of the 1975 Kashmir Accord constitutes a plebiscite on the Kashmir question. HLP/IED is not persuaded. First of all, the Abdullah campaign did not present accession or the Accord to the voters. Secondly, acceptance of the Accord was not presented on the ballot. Third, there is much evidence that some other leaders of Abdullah's own party disagreed with him on the Accord. Therefore, accession to India cannot be considered to be an essential and absolute position of the National Conference Party at the time of that 1977 election.

HLP/IED is also not persuaded that the Kashmiri people have ever acquiesced to Indian rule and no longer as a people seek a UN-arranged plebiscite. As we set out above, political and armed resistance to Indian rule has continued unabated since 1947. Major mass revolts occurred in 1954 and 1964. Even during periods of less turbulence, there has always been protest. Since 1988 there has been a condition of almost continuous war with ever increasing numbers of Indian military personnel.

In 1996 the people of Kashmir are still under colonial or alien domination, and have not yet had the promised right to decide their governance. They will hold the right to self- determination until such time as they (1) indicate by way of plebiscite their wishes and (2) are afforded their wishes in fact.

Because the people of Kashmir have not yet exercised their right to choose their political status, the government of India does not presently have a permanent legal right to Kashmir. There has been no finding in the international community that grants India the legal right to Jammu and Kashmir currently occupied by Indian forces. On the contrary, the above-cited resolutions of various bodies of the United Nations deny any Indian claim to Jammu and Kashmir, and grant the Kashmiri people the right to decide their own status. Jammu and Kashmir must be considered a non-self-governing territory; India must be viewed in violation of Article 1 (3) of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Political Rights in its refusal to "promote the realization of the right to self-determination" of Jammu and Kashmir.


THE KASHMIRI WAR AND HUMANITARIAN LAW

The war in Kashmir between the Indian armed forces and Kashmiri resistance fighters automatically invokes humanitarian law. Humanitarian law will remain in effect for the duration of an armed conflict or as long as India occupies Kashmir -- a territory to which it has no legitimate claim. Humanitarian law became applicable in Kashmir in 1947 with the first military actions of the Azad Kashmir forces.

The Kashmiri War is a war of national liberation in defense of the right to self-determination. It is legally invalid to refer to this war as a civil war. Such a characterization would assume that India's occupation of Kashmir is legitimate and the Kashmiri resistance is composed of dissident or opposition groups within the meanings set out in the Geneva Conventions of 1949 Article 3 or Protocol Additional II to the Geneva Conventions. It is also legally incorrect to refer to resistance groups as "terrorists", given their status as military resistors to foreign occupation in a war of national liberation.

The Kashmiri people first formed military units in the late 1940s to defend themselves against the maharajah's forces and then the Indian forces and to vindicate their right to self- determination. At present there are several opposition military factions of Kashmiris resisting India of which the Jammu Kashmir Liberation Front (JKLF) is one of the oldest and widely supported. Our delegate reports that several other groups also enjoy wide following. Kashmiri armed militants operate under their own military commands.

Since the Indian forces entered into combat against the Azad Kashmir forces in 1947, military actions against the Kashmiri people has continued to the present. It worsens in response to renewed demands by the Kashmiri people for their self- determination. Recent renewals of the combat started as isolated acts of violence by the Indian army targeted at Kashmiri mass demonstrations but in 1990 turned into a systematic "reign of terror" with military actions directed at all in the valley. As stated earlier in this report, Indian military forces now number at least 600,000 with credible evidence indicating nearly 800,000 troops.

THE WAR -- EVERYDAY REALITY

The war reaches all parts of Indian-occupied Kashmir. An indication of the degree of military presence is that troops of

the Indian Army and Security Forces are seen everywhere -- frequently behind sandbag barricades. Troops line the roads, stopping vehicles of every type. Our delegates have on occasion been stopped and searched, sometimes two or three times in the same day. It is impossible to go anywhere in Jammu and Kashmir State without being overwhelmed by the sheer numbers of these troops.

During our delegates' long stays, bombing and crossfire was heard almost daily, usually at night but on occasion in daytime. The Kashmiri people are convinced that the Indian Army is trying to incite violent reaction from the armed opposition forces by carrying out military forays into different parts of the major urban areas. Recently, however, the JKLF called for the people to unite and not to react with violence. This resulted in new optimism and a serious call for opposition unity clearly supported by most Kashmiris. The people showed support: at night they banged on pots, pans, drums -- anything that made a noise -- whenever the Indian Army approached. One motive was to express their anger and contempt at the Army, but they have also been motivated out of a desire to protect their defenders. The loud banging alerts the JKLF and other defenders so that they or others suspected of being part of the forces can get away or seek adequate shelter. This "pots and pans" voting continues today.

Another common feature of this overwhelming military presence, witnessed by our delegates, is what are called "crackdowns", in which the Army will surround a particular area, literally sealing it off. The Army will then go through the private residences taking anyone they want (usually young men) and detaining them without formal charges. During these "crackdowns", which occur almost daily in the larger cities, there is frequent raping and looting. Detainees frequently disappear and are presumed murdered. Others who have been released report on and clearly show evidence of torture, commonly carried out by beatings, mutilations and electric shocking. During "crackdowns" the people of the area and those detained are denied medical treatment, even if elderly or pregnant.

A typical "crackdown" occurred September 4, 1993 when 60 young men were taken without charge. During another which took place September 29, 1993, the military forced a Shikara man to paddle all day without food or water. 25 men were rounded up and also denied food or water. Eventually, Army personnel did bring them bread, which they were forced to buy at twice the market price. Sixteen of those detainees were released; the others are being held for ransom. "Crackdowns" continue into 1996 -- in fact our delegates report that the presence of Indian troops is even more pervasive and threatening than in earlier years.

There is also an active arms trade -- the Indian Army confiscates weapons taken from detainees and sells them to the highest bidder. It is discussed as "common knowledge" by Kashmiris that the Border Patrol is bribed to allow arms to cross into Kashmir. This is identified as one of the reasons that the armed opposition to Indian occupancy of Kashmir has a number of different groups. India, of course, is carrying out a "divide and conquer" strategy.

It has become a way of life for the common people to do without the basic necessities of life. Electricity is limited to maybe three nights a week and is almost nonexistent in winter. People in Kashmir report that this is because the 600,000 or so Indian troops take most of the available electricity for their own use. There is also periodic interference with the water supply. On August 19, 1993 the Indian Army bombed the city water supply in the area near Nagin Lake.

Even simple chores such as marketing have become ordeals. People are routinely searched throughout Srinagar. During our most recent mission, our delegates were stopped many times each day and frequently searched. Vehicles of all kinds are stopped -- buses, auto rickshaws, taxis, private vehicles alike -- and the occupants searched. On one occasion, our delegates were returning from one of the local shrines with a friend, and were detained because they still had receipts from the shrines written in Urdu script. Army personnel claimed it was subversive propaganda from Pakistan, and our delegates were held until someone else could be found that could read the receipts. Others less fortunate have been arrested and then tortured under interrogation when found with a Pakistani rupee in their possession. People are also careful not to have any item with "USA" written on it.

Kashmiris rarely can obtain passports. The few that do typically pay exorbitant bribes. Postal service, telephone and fax services and other forms of communication are also severely restricted. The tourist industry is in a major slump, primarily because of the repression and the overall militarization of Kashmir. Those Kashmiris dependent on the tourist trade (tourism and tourism-related business has been a major source of income for many years there) are under extreme economic hardship, and many families try to send someone abroad to send back money so the rest can live.

Children suffer enormously, not the least because the crackdowns and curfews disrupt schools. Many of their schools have been damaged by the war. The Kashmiri people are also heavily concerned with their lakes. There is still a large oil slick on Dal Lake as a result of a bombing raid there several years ago. In that lake and in other lakes, water plants are rapidly filling them in. These plants had been pulled by the roots to clear them. Now, the Indian government does not want to pay for the cleanup, and some years ago brought in machines to cut back the plants. This process leaves the roots intact so that the plants are growing back even thicker. The lakes have not been properly tended since 1989, making future cleanup more costly. Dalal Lake is also reportedly nearly solidified with excess silt -- so much so that cattle can walk on it.

SOME RECENT EVENTS

In August 1994, Indian forces abandoned their bunkers surrounding the Hazratbal Shrine in Srinagar, thus concluding an episode that began in October 1993. Kashmiri groups had maintained that India must withdraw prior to the annual Hindu pilgrimages to the Hindu Amarnath temple.

In October, 1994 India released Shabir Shah from detention. There was great rejoicing in Kashmir, as Shabir Shah is considered by many the Nelson Mandela of Kashmir. Through long years of detention, Kashmiris have held him in high esteem and a symbol for their freedom. Our delegate observed a number of spontaneous celebrations in Kashmir on his release. At around the same time, India also released Abdul Gani Lone and Sayeed Shah Geelani (a leader of the Jamat-e-Islami) who are also political leaders of the Kashmiri people.

In November 1994, four tourists (3 British and 1 American) were released following a raid on villages near Delhi, in India. The tourists had been held for about two weeks, ostensibly to secure the release of some Kashmiris held in Indian jails. The Indian government claims to have received a ransom note from a group calling itself "Al Hadid", not known to have any activity in Kashmir. Our information makes us skeptical of Indian government assertions, and we point out that Kashmiris look to it as a typical Indian action to discredit the Free Kashmir movement.

The Charar-i-Sharief incident took place in May, 1995. Investigations have shown that the Indian forces burned about 3000 houses and 600 shops in ten neighborhoods of the town of Charar-i-Sharief. The Shrine of a highly revered Sufi saint, Shiekh Noor-ud-Din Noorani, was also destroyed, along with the adjoining mosque and religious compound. More than 15 civilians also died, some burned to death and others killed after having been used as human shields by the Indian forces. Fortunately, only about 300 persons were left in the area at the time of the burning, the rest having escaped at the beginning of the siege by Indian forces. An investigation of this incident was carried out by the Kashmir Commission of Jurists Joint Human Rights Committee for Charar-i-Sharief Incident.

During June and July, 1995, 13 rockets fell on Forward Kahuta and Hajira in the Pakistani-controlled side of the cease- fire line.

In the Summer of 1995 Al Faran, another previously "unknown" group, kidnaped five foreigners, and in August 195 executed one of them, Mr. Hans Christian Ostroe, a Norwegian tourist. As of this writing, the remaining persons are still being held. The kidnappers have continued to demand the release of 15 separatist militants from Indian jails. India has said it would consider releasing some militants, but not three Pakistanis who have been identified by the Indians as leading members of Harkat ul-Ansar, considered to be one of the most militant of the pro-Pakistan rebel groups. There are serious doubts about the origin, financing and affiliation of this group as there had been about "Al Hadid". According to extremely credible sources in India, there are Indian-created counterinsurgency groups that are formed and sent into the field to engage in terrorist acts to discredit the Kashmiri people and their leaders and groups. While it is not confirmed that "Al Faran" is one such group, their modus operandi and other factors support such a conclusion.

The All-Parties Hurriyet Conference (APHC) and other Kashmiri groups have condemned the kidnaping and killing and reiterate that they have no knowledge of the Al-Faran group, making more likely that the group has been created by India as part of its counterinsurgency operations. APHC leader Shabir Shah of the People's League called the killing "un-Islamic" and said the only beneficiary of the kidnapping and killing was the Indian Government, which has long accused separatists of human rights violations. He stated further:

"This is sabotage and betrayal of the struggle for which we have fought for so many years . . . "It is a heavy blow to our credibility."

APHC Chairman Mir Waiz Umar Farooq stated "the Hurriyet is shocked beyond words . . . [the murder] is an unpardonable sin and a crime against humanity." Yet another APHC leader, Syed Ali Shah Geelani announced that he has received threatening calls from people identifying themselves as Al-Faran for the denunciations of these events by the APHC. The Hurriyet called on Kashmiris to join a general strike to protest the killing of Hans Christian Ostroe.

Al-Faran has threatened to kill the remaining four hostages -- an American, two Britons and a German -- if New Delhi does not release 15 militants held in Indian prisons. At time of this writing, the hostages are still being held and there are no recent communications with Al-Faran.

In January 1996 there was a long-range rocket attack over the cease fire line into Azad Kashmir which destroyed a mosque in Forward Kahuta killing 19 worshipers and seriously wounding more than twenty others. The attack occurred in mid-day as worshippers were leaving the mosque after noon prayers. A large group had attended prayers because that day was India's Independence Day and the Kashmiris had called for a "Black Day" procession and special prayers for fellow Kashmiris in the Indian-occupied zone.

A second rocket fell away from the mosque and caused no damage. At the same time, a rocket fell on Hajira and killed one person.

On March 6, 1996, Shabir Shah just missed being injured by a gunfire and hand grenade attack by the Indian security forces. Mr. Shah was in Pampore at the time, to investigate destruction of a number of houses in the area and to console the victims. At time of writing there are also credible reports that he had been beaten and he was seen bleeding profusely from a head injury. According to confirmed reports, on March 8, 1996, Mr. Shah and ten associates were arrested in Soline apparently under "preventative custody" orders. They were released later the same day.

Also on March 8, 1996 the Indian Rashtriya Rifles abducted Jalil Andrabi, Chair of the Kashmir Commission of Jurists and one of our delegates to the 1995 session of the United Nations Sub- Commission on Prevention of Discrimination and Protection of Minorities. We hoped that he would be able to attend the 1996 session of the United Nations Commission on Human Rights to present current events to that body. At the time of writing, India denies any knowledge of Mr. Andrabi's whereabouts, in spite of the fact that his abduction by the Rashtriya Rifles was witnessed. However, we are deeply saddened to have just learned that Mr. Andrabi's body was foun on March 27 floating in the Jehlem River in Srinagar with his hands and feet bound up and his eyes gouged out. This was the second attack on Mr. Andrabi in one month: on February 14, 1996 Mr. Andrabi's home was attacked and he barely managed to escape. However, he did manage to photograph the assailants. We view this appalling event as yet one more example of the gross violations of international standards committed by the Indian occupiers of Kashmir.

The recent attacks on Shabir Shah and Jalil Andrabi as well as the obvious targeting of Syed Ali Geelani, Muhammad Yasin Malik and Abdul GAni Lone (all leaders of the Hurriyet Conference) has been denounced by memebrs of the Untied States Congress as "part of a concerted effort to harrass the leadership of the All-Parties Hurriyet Conference which represents the broad spectrum of politial opinion in Kashmir."

INDIA'S HUMANITARIAN LAW VIOLATIONS

Grave breaches of humanitarian law continued unabated in 1996. Civilian casualties mount and estimates now indicate over 25000 killed since January of 1990. Casualties include women, children (from infants to young boys and girls). Most of these deaths have direct humanitarian law implications: (1) they were perpetrated by military forces of India in the course of the conflict in Kashmir; (2) they are not "incidental civilian casualties" and must be viewed as violations of the right to life under humanitarian law.

Our investigations indicate no normalized treatment of POWs. There appears to be no known facility, and no international or national monitoring of such facilities that may exist clandestinely. All Kashmiris interviewed report that if the Indian Army captures a "militant" that militant will probably never be seen again alive -- only as a mutilated body found along a roadside.

Our investigations also indicate serious violations of the Geneva Conventions regarding protection of hospitals, medical personnel, sick or wounded persons and medical aid. Our investigations indicate that many hospitals and clinics are routinely raided. The Indian forces have entered operating rooms during operations, have abducted patients and seized medicines.

Humanitarian Law Project/International Educational Development is gravely concerned about the consistent pattern of violations of humanitarian law. In addition to our own clandestine monitoring of humanitarian law violations, we have also received information from a number of other credible reports and observers who shared their information with us. A list of some of our resources is annexed to this report. The information we provide is meant to be illustrative and does not pretend to set out all instances of these violations.

(1) murder and torture of captured combatants -- POWs. POWs have none of their rights under Geneva Convention and customary rules.

As we set out above, the Indian forces do not comply at all with humanitarian law provisions regarding treatment of prisoners-of-war. To our best knowledge, there are no publicly- acknowledged POW camps. No human rights investigator has ever found a POW camp. International monitoring in this area is non- existent. However, it is clear that the Indian forces are able to capture some opposition combatants, and it must be assumed that these POWs are tortured and killed in violation of the Geneva Conventions and customary standards.

(2) rape of Kashmiri women carried out on a large scale.

In our past reports, we set out examples of war-time rape of Kashmiri women. Since our last report, we have verified more than 200 such rapes in Doda and the valley in January 1994 alone. In some of the outlying areas, during the same period 5 women were found dead after dying under rape. Rape continues to be a major means of Indian oppression against Kashmiri people.

(3) constant and continuing armed attacks against the civilian population in Kashmir.

Our investigators consistently verify that the vast majority of casualties in the Kashmiri war are civilians, caught up in "crackdowns", "sweeps" or just gunned down or tortured to death. Other human rights investigations have also verified the same pattern of civilian casualties and large numbers of custodial deaths.

(4) the refusal by Indian authorities to allow public, independent, unfettered monitoring of the situation.

The Indian authorities have consistently refused permission for independent, international monitoring of the situation in Kashmir. Human rights organizations such as ours are routinely denied permission to investigate openly. Although India has permitted one assessment visit by the International Committee of the Red Cross and one by the International Commission of Jurists in recent years, apparently other organizations have had difficulty arranging open investigation. The International Federation of Human Rights and Amnesty International have been recently denied permission to visit.

(5) attacks on hospitals and medical personnel.

Our investigators have reported on the poor conditions in hospitals and clinics, in part because of forays by Indian troops into medical facilities. Some hospitals have noticeable bullet holes. A 1994 report by a British doctor contains eyewitnesses accounts that are similar to our investigators findings: there have been raids on Lal Ded Women's Hospital and doctors and medical personnel are "threatened beaten and detained." A colleague of that doctor told how Indian forces had beaten him, fracturing his arm.

(6) interference with communications and humanitarian assistance.

In 1995 there were numerous attacks on journalists and oncommunication in general. Journalist Mushtaq Ali (Agence France-Presse) was killed on September 7, 1995. Other journalists havebeen harassed, attacked and arrested. The media is severelyrestricted. Humanitarian aid is severely limited as outsidegroups are not allowed to provide medicine and other reliefmaterials.

(7) destruction of Kashmiri villages, cultural artifacts, etc..

This report sets out several of the many incidents of thedestruction of revered places, shrines and cultural places byIndian forces. Whole villages have been burned to the ground inthe course of the long war. Srinagar and other manor citiesclearly show the effects of repeated military operations.

(8) torture of POWs and civilians.

At time of writing there are approximately 60 interrogationcenters of the Indian forces in Kashmir where torture is anevery-day occurrence. The International Federation of HumanRights has been meticulous in its own clandestine investigationsand in its interviews with people outside of Kashmir who spenttime in the various centers to verify the existence and practicesof these centers. While our delegates have seen much evidenceof torture, we also point out that many of the reports of non-governmental organizations listed in the bibliography providedetained evidence of the practice of torture in Kashmir. TheUnited Nations Special Rapporteur on Torture also documentsincidence of torture in India-occupied Kashmir. The InternationalRehabilitation Council for Torture Victims (Copenhagen) have alsoverified torture of kashmiris by Indian forces.

(9) serious violations of the rights of civilian and military detainees.

Other reports on the situation on Kashmir (listed in thebibliography) provide compelling evidence of severe abuse ofcivilians and combatants while in custody, including prolongedarbitrary detention, torture and killings. Most detention inKashmir India is a result of the conflict and as India invokescertain legislative acts to justify that detention this reportnext analyses this legislation in light of human rights andhumanitarian law.

VIOLATIONS OF RIGHTS OF DETAINEES IN KASHMIR

Many of the human rights violations not yet discussed inthis report stem from abuse of power under repressive legislationand police and military force brutality against the people.People are arrested for engaging in acts protected byinternational human rights standards of free speech, freedom ofassociation freedom of assembly, and freedom of the press. Whilemany arrests are completely vicarious with no pretense offollowing laws established by the legislature, the occupationforces have relied on a number of legislative acts to answercriticism of human rights abuses. These acts are, however, inthemselves repressive, and cannot be relied on by India tojustify its arrests and treatment of detainees.

India also justifies detention in Kashmir by claiming itsterritorial rights over Kashmir, in part based on its de factocontrol of parts of Kashmir. Because Kashmiris seek independence,India claims it is entitled to defend its territorial integrity.Ignoring the objective application of international humanitarianlaw, in particular the definition of combatants, India claimsthat the Kashmiri defenders are terrorists, and has grantedits armed personnel "shoot-to-kill" powers. Four legislative actswidely invoked in Kashmir clearly violate international standardsand warrant special attention.

1. THE TERRORIST AND DISRUPTIVE ACTIVITIES ACT (TADA)

This law, repealed in 1995, allowed Indian forces to round up and detain citizens for up to one year without formal charges, due process of law or formal trial. When and if court hearings were held, they were held in secret. Victims did not allowed to confront their accusers, and "witnesses" kept their identities secret.

Confessions, often extracted through deliberate and brutal forms of torture were admissible if police affirm they were obtained "voluntarily".

This act clearly violates Article 9 of the InternationalCovenant on Civil and Political Rights (the Covenant), whichrequires that notice of charges be given promptly at the time ofthe arrest. Article 9 also requires that court actions be taken"without delay" regarding the lawfulness of detention. The actalso violates Article 14 of the Covenant, which provides for theright to counsel and the right to examine witnesses. To thedegree this act is used to criminalize resistance in defense ofthe right to self-determination or to punish persons whosympathize with the resisters, it violates both internationalhumanitarian law and Article 15 (penalties only for criminaloffenses) in conjunction with, inter alia, Articles 18 (freedomof thought), 19 (freedom of opinion), 22 (freedom of association)of the Covenant.

During our delegate's 1994 stay, the TADA was being debatedin the media, in particular, on television. According to manypeople interviewed, some of the debate in India centered on theviolations of international human rights standards inherent inthe act. While there was some celebration at its repeal in lateSpring 1995, many attorneys in Kashmir and India commented to ourdelegates that Indian forces will still carry out arrests andinterrogation as if it were still in force. They point out thatlegislation described below is still in force and will be reliedon by Indian forces to defend against arbitrary or illegaldetention and violations of procedural rights. They also pointout that Indian forces have always acted with impunity with orwithout legislative sanction, so the repeal of the TADA is notregarded as a significant deterrent to the Indian forces. Repealof the TADA is also not expected to be a deterrent to thewidespread use of torture by Indian forces.

2. THE JAMMU AND KASHMIR PUBLIC SAFETY ACT:

This law enables the Indian security forces in Kashmir to detain civilians for up to one year without trial or due process for a wide variety of reasons, including the exercise of free speech. For example, under this act, an individual whose child has been murdered by Indian security forces and speaks out publicly against India's campaign of terror can be detained for up to one year without trial for endangering "public safety". Also under this act an individual who produces pamphlets or newsletters that advocate the implementation of the U.N. resolutions calling for a plebiscite in Kashmir can also be arrested and detained without formal charge or due process.

This act contains the same defects as the TADA, and with therepeal of the TADA will most likely be invoked instead. Itscriminalization of rights protected by international human rightslaw is particularly glaring.

3. THE NATIONAL SECURITY ACT:

Under the act, the armed forces and the police can detain individuals for up to one year without charge or trial to prevent them from "acting in a manner prejudicial to state security".

Under this law, an individual does not even have to take a specific action to be detained. If the Indian authorities believe that he is about to do something, they can detain him without charge to prevent him from acting.

4. THE ARMED FORCES SPECIAL POWERS ACT (JAMMU AND KASHMIR):

This law was passed on September 10, 1990. It allows the Governor of the State of Jammu and Kashmir to unilaterally "declare the whole or any part of the state to be a disturbed areas". Once Kashmir is identified a "disturbed area", this act empowers the armed forces to search homes without warrant, arrest Kashmiri citizens without warrant, destroy entire homes and villages and shoot at unarmed civilians in the streets with intent to kill.

For any of the above actions, article 7 of the act, titled "protection of persons acting in good faith under this act" holds that "no prosecutions, suit or other legal proceeding shall be instituted...against any person in respect to anything done or purported to be done in exercise of the powers conferred by this act. This means that any member of the armed forces who conducts the above described human rights violations -- summary executions of unarmed civilians, burning down homes and villages, torture and arbitrary arrest -- can do so with complete immunity from prosecution.

The National Security Law and the Armed Forces SpecialPowers Act (Jammu and Kashmir) also violate Articles 9 and 14 ofthe Covenant as well as international law standards protectingspeech, press and information, association and democracy. TheArmed Forces Special Powers Act constitutes a per se violation ofthe Geneva Conventions of 1949 which require penal sanctions forviolators of them and do not allow any party to absolve itself ofliability for violations.

THE ECONOMIC DESTRUCTION OF KASHMIR

While much attention has been given to the war crimescommitted by Indian forces and the complete abrogation of civiland political rights in the area, little attention has been givento what our delegate refers to as the economic ruin of Kashmirand the tremendous drain on India's resources represented by themilitary oppression of Kashmir. India should free up theseresources to better address the overwhelming poverty andhardships faced by the people of India. And the cost ofmaintaining 600,000 troops in Kashmir provides such a daily drainof Rupees that international lenders and investors ought to beconcerned with India's overall ability to repay. Surely, the costof repressing Kashmir must far outweigh any gains India cananticipate. One thing is absolutely clear to our delegate --there is no chance that India can "pacify" Kashmir. Thus, Indiamust accept the huge financial drain of Kashmir in perpetuity oruntil such time as Kashmiri's choose their political statusthough the promised plebiscite.

FINAL ASSESSMENT

IED has been monitoring the situation in Kashmir for anumber of years and has carried out lengthy investigations. Wehave interviewed hundreds of Kashmiris in Kashmir, met withnumerous representatives of the Kashmiri people both in Kashmirand elsewhere and met with many others, including diplomats of avariety of countries. We have seen events as eye-witnesses. Wehave reviewed hundreds of pages of documents, including those ofthe United Nations bodies and those of other non-governmentalorganizations. We have studied and diligently tried to reflectaccurately on the law. Our final assessment comes from ourdelegate:

The people of Kashmir are in dire need of help. The country is in ruins! I was asked why the United Nations can help Somalia, Bosnia and Haiti -- yet has done nothing to help the Kashmiris. Kashmiris ask over and over why the United Nations does not implement their Plebiscite.

It will take years and millions of dollars to repair the damage. With proper assistance and with time, the wounds (physical, mental, emotional) can be healed. From my evaluation of the situation, Kashmir would be a free, independent, democratic country if given the right to self-determination as promised to them by the United Nations in 1948-49. It would be a prosperous nation, with its doors open to all. But first there must be peace and there will never be peace as long as India occupies Kashmir. Kashmiris have sacrificed much and now they will not stop short of freedom.

What does India Want with Kashmir?

There is very little money going into Kashmir through the tourist industry -- the main industry in Kashmir. It has been this way for six years, largely due to the ever-present Indian forces. Troops are deployed in almost every city and town and there is continual movement of troops all over Kashmir.

The Indian government interferes with all aspects of the tourist industry. Tourists are subjected to body searches and searches of personal belongings in all banks, post offices, public buildings, even the Tourist Center. Just traveling from one place to another anyone would be subjected to searches numerous times. Banks in Kashmir are not allowed to give cash on credit cards, making it impossible for tourists to obtain emergency money.

Business suffers tremendously. Merchants have great difficulty obtaining approval for purchases, and merchants often have to travel to Delhi to make credit card transactions. The Indian government is interfering with the economy of Kashmir in all ways possible. Until something changes, there will be little revenue going into India -- only tremendous drain of resources. Why does India fear the plebiscite when India claims to be the largest democracy in the world. In a democracy the free will of the people must always be attained with an absolute commitment to honor the integrity of the voting process and to accept and adapt to the outcome -- win or lose. Perhaps the Indian leaders making the decisions to continue the abuse, oppression, desecration, ignorance and destruction of this losing battle of their occupation of Kashmir should look into a mirror and into their own hearts and remember who they are. Remember what they and their families went through to gain their freedom from an occupying power. It is not serving anyone to continue this madness and it is an insult to those who lived and died for the freedom of India.

This is not a war between India and Pakistan. It is a war taking place in Kashmir between Kashmiri people and their occupiers. It is not a religious war -- it is a war to fight the oppression of the occupying invader and to gain freedom. It is a fight to gain the rights promised to the Kashmiri people by the United Nations many long years ago and as yet unfulfilled.

WHAT SHOULD THE UNITED NATIONS DO

The United Nations has sought settlement of the Kashmirsituation as indicated by the many resolutions and great pastefforts here. The UNMOGIP continues its presence in the area.Past failures to settle the question should not deter the UnitedNations from present efforts. Now more than ever, the UnitedNations must renew efforts to bring about the promisedplebescite. As a first step the United Nations human rightsbodies should require the immediate cessation of all violationsof humanitarian and human rights law, including theimplementation of the above laws.

The United Nations must bring to light the massiveviolations of humanitarian and human rights standards andcontribute to an immediate improvement of the situation. In thislight, the United Nations Commission on Human Rights should:

1. Demand that the Government of India agree to a cease fire and immediate end to its violations of the human rights and humanitarian law in Kashmir;

2. Urge the United Nations Secretary-General to send a fact-finding mission to Kashmir to assess the situation, or, in the alternative, ask the United Nations High Commissioner for Human Rights to undertake such a mission;

3. Demand that India grant permission for all international human rights and humanitarian organizations to enter Kashmir and to carry out investigative and assistance programs;

4. Call upon the United Nations Security Council to reinvoke peaceful dialogue between the Governments of India and Pakistan along with the legitimate representatives of the people of Kashmir in light of the resolutions of the Security Council and the United Nations Commission for India and Pakistan mandating a plebiscite.

ANNEXES

U.N. ACTION ON KASHMIR:

UNMOGIP -- The United Nations Military Observer Group for Indiaand Pakistan (UNMOGIP) maintains the cease-fire line.

S.C. Res. 307 (1971) S.C. Res. 215 (1965) S.C. Res. 214 (1965) S.C. Res. 211 (1965) S.C. Res. 210 (1965 S.C. Res. 209 (1965) S.C. Res. 126 (1957) S.C. Res. 123 (1957) S.C. Res. 122 (1957) S.C. Res. 98 (1952) S.C. Res. 96 (1951) S.C. Res. 91 (1951) S.C. Res. 80 (1950) S.C. Res. 47 (1948) S.C. Res. 39 (1948)

UN Comm'n for India and Pakistan resolution of 5 Jan 1949.UN Comm'n for India and Pakistan resolution of 13 Aug 1948.

Comm'n Decision 1994/109.

Note: Reports address India but not necessarily Kashmir.

Reports of the Working Group on Enforced or InvoluntaryDisappearances (E/CN.4/1990/13; E/CN.4/1991/29; E/CN.4/1992/18;E/CN.4/1993/25; E/CN.4/1994/26; E/CN.4/1995/36).

Reports of the Special Rapporteur on Torture: (P. Kooijmans: E/CN.4/1990/17; E/CN.4/1991/17; E/CN.4/1992/17; E/CN.4/1993/26). (Nigel S. Rodley: E/CN.4/1994/31; E/CN.4/1995/34).

Reports of the Special Rapporteur on Extrajudicial, Summary orArbitrary Executions: (S. Amos Wako: E/CN.4/1990/22; E/CN.4/1991/36; E/CN.4/1992/30). (Bacre Waly Ndiaye: E/CN.4/1993/46; E/CN.4/1994/7; E/CN.4/1995/61).

Reports of the Special Rapporteur on the Elimination of Religious Intolerance: (Angelo Vidal d'Almeida Ribeiro: E/CN.4/1991/56; E/CN.4/1992/52; E/CN.4/1993/62 & Corr.1). (Abdelfattah Amor: E/CN.4/1994/79; E/CN.4/1995/91).

BIBLIOGRAPHY

Humanitarian Law Project/International Educational Development "The Situation in Kashmir," U. Doc. E/CN.4/Sub.2/1990/26.

Parker, Karen "The Situation on Kashmir: Human Rights and Humanitarian Law" (Humanitarian Law Project/International Educational Development and Association of Humanitarian Lawyers)(1993 and 2d ed. 1994).

"The Kashmiri War: Human Rights and Humanitarian Law" (Humanitarian Law Project/International Educational Development and Association of Humanitarian Lawyers)(1995).

All India Revolutionary Students Federation "Kashmir: Rhetoric and Reality." (1990).

Amnesty International "India: Torture, Rape and Deaths in Custody." (1992). "Torture, Rape and Murder in kashmir." (1993).

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Asia Watch and Physicians for Human Rights "The Crackdown in Kashmir: Torture of Detainees and Assaults on the Medical Community." (1993). "The Human Rights Crisis in Kashmir: A Pattern of Impunity." (1993).

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Committee to Protect Journalists "Attacks on Press in 1995." (1996)

Freedom House "India - Violation of Political Rights and Civil Liberties in Kashmir." (1992, 1993).

International Federation of Human Rights (France) "Kashmir: A People Terrorized." (1992). "Report of Fact Finding Mission in Azad Kashmir." (1993).

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Lamb, Alastair "The Myth of Indian Claim to Jammu and Kashmir: A Reappraisal." (1994?).

Peoples Union for Civil Liberties, Citizens for Democracy,Radical Humanist Association and Manav Ekta Abhiyan (New Delhi) "Situation in Kashmir: An Indian Report." (1990).

Peoples Union for Civil Liberties "Kashmir Monitor." (newsletter)(1994 et seq.) "Report on Bandipora Killings." (1994?).

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Authors unknown (copies on file with author) "Violations of Human Rights in Occupied Kashmir: Reports by Indian Observers." (1990?). (Compilation of press clippings of Indian press). "Violations of Human Rights in Indian-occupied Kashmir." (1991?). (Compilation of press clippings from Indian and foreign press).