The first case of coronavirus in Indian-Occupied Kashmir was reported on March 20, 2020.[1] Conflict-affected regions such as the Kashmir valley are acutely vulnerable to the spread of the virus and there are concerns that this could lead to serious humanitarian consequences in the region. This vulnerability is due to the fact that prolonged unrest often leaves health systems ill-equipped and inadequately supplied with a weakened capacity to deal with outbreaks.[2] Moreover, populations who have long suffered from war may be more susceptible to being infected.[3] This article will analyse the obligations owed by India as the Occupying Power to the Kashmiri population in the face of this pandemic. It is intended to be read in conjunction with our broader research on the conflict in which we conclude that the region has been occupied and unlawfully annexed by India.[4] This research also assesses the way India has handled the crisis thus far and the ways in which it risks violating its IHL obligations towards the territory.
The Applicable IHL Rules
India as the Occupying Power is responsible for the fight against coronavirus along with local Kashmiri authorities and is obliged to intervene wherever local health infrastructure falls short.[5] The following IHL rules are relevant to the crisis:
Article 56 of the Fourth Geneva Convention very particularly applies to this pandemic as it states that the Occupying Power has a duty ‘to the fullest extent of the means available to it’ to ensure and maintain public health and hygiene in Occupied Territory, in particular ‘prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics’. This is an obligation of diligent conduct[6] and, according to Pictet’s commentary, includes a number of measures which can be used to fight epidemics, including educating the public, distributing medicines, medical exams and disinfection, establishing stocks of medical supplies, sending medical teams, and accommodating patients in hospitals.[7] The provision also includes the obligation that the Occupying Power intervene only if the health infrastructure of the Occupied Territory fails to provide adequate healthcare.
Article 55 of the Fourth Geneva Convention also provides that ‘to the fullest extent of the means available to it’ the Occupying Power has the duty to ensure the medical supplies of the population and it should bring in medical supplies if the resources in the Occupied Territory are inadequate. Under Article 59, if the population in an Occupied Territory is inadequately supplied, the Occupying Power must agree to receive consignments of medical supplies offered by States or impartial humanitarian organisations.
These key provisions applicable to Occupied Territories under IHL are also supplemented by international human rights law. IHRL continues to apply in an occupation[8] and the point of confluence is Article 43 of the 1907 Hague Regulations which demands that the Occupying Power ‘restore and ensure public order and civil life’.[9] The applicable IHRL obligations on India under human rights treaties such as the ICCPR and ICESCR oblige it to ensure that those living in Kashmir have adequate medical care, supplies, and medicine under the right to health.
The Application of these Rules to Kashmir
Lack of Equipment
Kashmir’s ability to respond to the outbreak is significantly crippled due to its reduced intensive care capacity. There are only 97 ventilators in the region for 7 million people,[10] all of which are already in use.[11] This ratio is even ‘lower than that in besieged Gaza’.[12] Although the administrator of Kashmir’s Srinagar-based hospitals has requested more equipment from the central government, only 40 more ventilators have been promised, which would still result in a serious shortfall.[13] Doctors have also said that health authorities refused to send samples for tests stating that it was impossible for the coronavirus to have infected anyone in Kashmir.[14] Health workers have further complained about a lack of personal protective equipment. India, under the provisions mentioned above, must adequately supply Kashmir with ventilators, medical equipment and protective equipment and must conduct tests, or it must allow for consignments from humanitarian organisations of these provisions.
Lack of Healthcare Workers
Even prior to the outbreak, Kashmir faced an acute shortage of doctors and nurses. According to Al Jazeera, “[a]n official audit of healthcare facilities conducted in 2018 found that the existing manpower was “barely sufficient to run the health institutions in view of sustained increase of patient flow across the state””.[15] It noted that the doctor-patient ratio in Kashmir is 1:3866 compared to 1:2000 in the rest of India and WHO norms of 1:1000.[16] As mentioned above, the duty to take measures under Article 59 of the Fourth Geneva Convention includes the sending of medical teams. India must work in tandem with local authorities to ensure that hospitals in Kashmir are well-staffed and that the doctor-patient ratio is at least the same as that in the rest of India.
Lack of High Speed Internet
A major challenge faced by doctors and civilians in the valley is the lack of high speed internet. The abrogation of Kashmir’s special status in August 2019 resulted in India imposing the democratic world’s longest internet shutdown on Kashmir.[17] This was partially lifted on January 25, 2020 and Kashmiris now have 2G internet access. However, high speed internet access is still not available. This has not only hampered doctor’s ability to download medical guidance but also restricted their ability to provide telephone consultations. Whilst a telemedicine initiative was started by the Doctors Association of Kashmir, the lack of high speed internet prevents them from being able to video conference patients or analyse their reports or scans.[18]
It has also stymied awareness raising campaigns about the coronavirus among the public as well as residents’ ability to work from home and children’s ability to study while schools are closed.[19] A decision on the ban was taken as recently as April 3, when authorities ordered a continuation “in the interest of the sovereignty and integrity of India”.[20] This has led to a letter written by 170 academics to the WHO and UN Special Rapporteurs asking for the restoration of high-speed internet in Kashmir.[21] The unavailability of this resource in the time of a pandemic in which social distancing is required to combat the virus violates Article 59 as it is a necessary measure to limit the spread. Its use would allow doctors to continue to see patients through tele-consultations, download medical guidelines, and allow residents to stay at home.
Conclusion
On March 23, 2020, the UN Secretary General called for a global ceasefire stating that “it is time to put armed conflict on lockdown and focus together on the true fight of our lives”. Whilst an adequate response to the coronavirus has been a challenge in most countries, it is hoped that at this time of crisis, guns will be silenced in order to focus on containing the outbreak. India’s obligations as an Occupying Power in Kashmir require it to provide adequate medical equipment, send medical teams, and suspend the ban on high speed internet. This requires an emphasis on a humanitarian solution which prioritises the Occupied Population in accordance with IHL obligations and WHO guidelines.
[1] Al Jazeera, ‘We’ll die like cattle’: Kashmiris fear coronavirus outbreak, March 23, 2020, https://www.aljazeera.com/news/2020/03/die-cattle-kashmiris-fear-coronavirus-outbreak-200322151405218.html
[2] Crisis Group, COVID-19 and Conflict: Seven Trends to Watch, March 24, 2020, https://www.crisisgroup.org/global/sb4-covid-19-and-conflict-seven-trends-watch
[3] Opinio Juris, COVID-19 Symposium: COVID-19 in Conflict-Affected Areas–Armed Groups as Part of a Global Solution, Marcos Kotlik, April 4, 2020, https://opiniojuris.org/2020/04/04/covid-19-symposium-covid-19-in-conflict-affected-areas-armed-groups-as-part-of-a-global-solution/
[4] See RSIL, Legal Memorandum on the Status of Jammu and Kashmir, August 15, 2019, available at:
https://rsilpak.org/2019/08/legal-memorandum-the-status-of-jammu-kashmir-under-international-law/
[5] See EJIL Talk, The Duties of Occupying Powers in Relation to the Fight against Covid-19, Marco Longobardo, April 8, 2020, https://www.ejiltalk.org/the-duties-of-occupying-powers-in-relation-to-the-fight-against-covid-19/
[6] Ibid
[7] Jean Simon Pictet, Oscar M Uhler and Ronald Griffin, The Geneva Conventions Of 12 August 1949 (ICRC 1958), p.314
[8] Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, ICJ, 9 July 2004
[9] Kenneth Watkin, Use of force during occupation: law enforcement and conduct of hostilities, 94 Int’l Rev. Red Cross 267 (2012)
[10] Jacobin, In Kashmir, the Coronavirus Means Increased Police Powers, Umar, Rauf, Haroon, April 17, 2020, https://jacobinmag.com/2020/04/kashmir-coronavirus-covid-india-lockdown-jammu
[11] Foreign Policy, Slow Internet Is Speeding the Spread of the Coronavirus in Kashmir, April 13, 2020, https://foreignpolicy.com/2020/04/13/slow-internet-speeding-spread-coronavirus-kashmir-india-lockdown/
[12] Jacobin (supra n.10)
[13] Foreign Policy (supra n.11)
[14] The Telegraph, Coronavirus cases are being missed in Kashmir because of inadequate testing, claim doctors, March 6, 2020, https://www.telegraph.co.uk/global-health/science-and-disease/coronavirus-cases-missed-kashmir-inadequate-testing-claim-doctors/
[15] Al Jazeera (supra n.1)
[16] Ibid
[17] Foreign Policy (supra n.11)
[18] Ibid
[19] Al Jazeera (supra n.1)
[20] Foreign Policy (supra n.11)
[21] Al Jazeera (supra n.1)
