Conflict Law Centre (CLC), Research Society of International Law (RSIL) Statement on Kashmir Day 2021
Kashmir Day marks a day of solidarity with the people of Jammu and Kashmir in their fight for self-determination against Indian occupation. The last year has been especially tumultuous in the valley with Kashmiris suffering under lockdown after lockdown in what remains one of the most militarised zones in the world. India has, since the abrogation of Article 370 on August 5, 2019, acted in furtherance of its objective to annex the state to its territory. It has done so in violation of international humanitarian law and international human rights law and has been subject to reproach by UN officials and human rights organisations. Yet still, the Modi administration continues undeterred with plans to further move non-locals into the valley, diluting local Kashmiris’ claim over their land, essentially putting Jammu and Kashmir up for sale, and all the meanwhile, ensuring its status along with Israel as a settler coloniser, one which the world must boycott, divest from, and sanction.
Three laws were passed in 2020 which aim to reshape the demographic and linguistic landscape of Jammu and Kashmir. These laws allow non-locals to permanently reside and buy property in the valley, allow non-locals to purchase land there, and include Hindi as one of the official languages of the territory. Domicile certificates have already been issued to retired soldiers who are now able to buy property and apply for jobs in the state. This is accompanied by reports that the Indian government is looking to acquire 15,000 acres of land in Kashmir for investors from outside the region and the government’s budget for 2021 includes a maiden gas pipeline project for Jammu and Kashmir. There are well-founded fears that these laws will lead to ‘demographic flooding’ and Israeli-style settler colonialism in which Indian settlements will be built on occupied Kashmiri land. India intends to make the valley an “investor-friendly ecosystem” – an auctioning which will come at the expense of Kashmiris right to self-determination.
The inclusion of Hindi as an official language, the passing of laws allowing non-locals to reside in and buy land in Jammu and Kashmir allows India to transfer its own civilian population into occupied territory in violation of Article 49 of the Fourth Geneva Convention by creating a favourable legal and factual framework for settlement. It is also an attempt by India to undermine the Kashmiri right to self-determination by diluting their status as a distinct ‘peoples’ with their own identity and characteristics who have a relationship with the territory. These laws will also have implications were a plebiscite to be held in accordance with Security Council Resolutions. Since respect for the right to self-determination is an obligation erga omnes, all States have a legal interest in protecting it. The international community must ensure that the right of Kashmiris to freely determine their political status and pursue their development is respected.
India has continued to violate human rights law in the name of quelling unrest, adopting measures which are neither necessary nor proportionate in a democratic society. According to the Legal Forum for Oppressed Voices of Kashmir, a total of 65 civilians were killed extra-judicially in 2020. This includes a staged gunfight in August 2020 in which Indian army officers were accused of planting weapons on the bodies of labourers to make it look like there was an altercation. 2,773 individuals were arrested and detained by Indian forces, 312 cordon and search operations were held, and 657 houses were vandalised by Indian forces during the course of the year. Another lockdown was imposed ahead of the anniversary of annexation in August 2020, with public movements completely restricted and a fresh curfew imposed. This prompted calls to end the crackdown with 17 UN-appointed independent human rights experts stating that the human rights situation in Jammu and Kashmir has been in “free fall”. UN special rapporteurs have expressed concern at the excessive use of force, arbitrary detentions, torture and other forms of ill-treatment, however, the Indian government has not yet replied to any letters sent to them so far.
Condemnation from the UN has fallen on deaf ears as later that month dozens were injured after police fired pellets and tear gas at religious processions for Muharram. District elections were also held in Jammu and Kashmir in December and journalists said that they were being harassed, intimidated and obstructed from reporting. Furthermore, arbitrary demolition drives were undertaken at the end of the year with the purported aim of evicting encroachers on illegal property. These drives have destroyed people’s homes and shops leaving many unemployed and homeless. This comes after a year which has reportedly left up to 500,000 jobless due to consecutive lockdowns in the region. It seems any investment or infrastructure that comes to Kashmir will not be for the benefit of Kashmiris.
India has also breached its international law obligations in responding to the coronavirus outbreak in the region. Jammu and Kashmir’s ability to respond to the pandemic is hampered by lack of resources. India has not fulfilled its obligations as an occupying territory as enshrined under Article 56 and Article 55 of the Fourth Geneva Convention which oblige it ‘to the fullest extent of the means available to it’ to ensure and maintain public health and hygiene in Occupied Territory. Moreover, it has also violated the right to health under human rights law for individuals within its jurisdiction as enshrined in the International Covenant for Civil and Political Rights and Article 12 of the International Covenant for Economic, Social and Cultural Rights.
There are only 97 ventilators in the region for 7 million people, an acute shortage of doctors and nurses with the doctor-patient ratio in Kashmir being 1:3866 compared to 1:2000 in the rest of India and WHO norms of 1:1000, and a lack of high speed internet which hinders doctor’s ability to download medical guidance and restricts their ability to provide telephone consultations. A letter written by 170 academics to the WHO and UN Special Rapporteurs asked for the restoration of high-speed internet in Kashmir. Whilst 2G internet services were restored in March, after 213 days without it, there were 141 instances of internet blockades recorded in 2020. India has also used the coronavirus lockdown as an excuse to vandalize villages and detain protestors. Whilst a vaccination drive has begun in the valley, apart from healthcare workers, the first recipients are the police, army, paramilitary and other security agencies. India must ensure that Kashmiris are inoculated and that they are given the required resources to be able to combat the pandemic, including high speed internet.
India’s plans indicate it is prepared to continue and even step up its violations of international law. Historic injustices which have gone unremedied may pave the way for future (worse) crimes unless the international community intervenes. Any involvement should exert significant pressure on India so that Kashmir does not become another Palestine. States must ensure respect for the rights violated by boycotting, divesting from and sanctioning India until it ends its occupation and annexation of Kashmir, recognises and protects the fundamental rights of Kashmiri citizens, and holds a plebiscite. As articulated by Judge Dillard in his separate opinion in the Western Sahara case, “it is for the people to determine the destiny of the territory not the territory the destiny of the people”. The Kashmiri struggle to determine their own destiny continues regardless of that territory’s status in Indian minds.
1 On March 31, 2020, India passed the Jammu and Kashmir Reorganization (Adaptation of State Laws) Order, 2020 and the Jammu and Kashmir Grant of Domicile Certificate Rules, 2020 which allow non-locals to permanently reside and buy property in the territory. On September 26, 2020, the Jammu And Kashmir Official Languages Act, 2020 was passed which adds Hindi as one of the official languages of the territory. On October 26, 2020, India passed the Union Territory of Jammu and Kashmir Reorganisation (Adaptation of State Laws) Fifth Order, 2020 which allowed non-locals to purchase land in Jammu and Kashmir.
2 Times of India, Many retired Gorkha soldiers in 6.6k to get J&K domicile, July 5, 2020
3 The Third Pole, Indian government looks to acquire land in Kashmir, December 20, 2019
4 Live Mint, Budget 2021: Centre announces maiden gas pipeline project for Jammu and Kashmir, February 1, 2021
5 Middle East Eye, Kashmiris equate India’s new domicile law with Israel’s ‘settler-colonial’ project, April 1, 2020
6 International Committee of the Red Cross (ICRC) (1949) Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, Article 49 and also see Andrew Clapham, Paola Gaeta, and Marco Sassòli, The 1949 Geneva Conventions, (OUP 2015), p.1564
7 See East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29
8 AA, 474 killed in Jammu and Kashmir in 2020: Report, December 30, 2020
9 Al Jazeera, Indian officer accused of planting weapons on Kashmir civilians, 28 December 2020
10 AA, 474 killed in Jammu and Kashmir in 2020: Report, December 30, 2020
11 UN News, Independent rights experts call on India to remedy ‘alarming’ situation in Jammu and Kashmir, August 5, 2020
12 International Crisis Group, Raising the Stakes in Jammu and Kashmir, August 5, 2020
13 Al Jazeera, Police fire pellet guns on Kashmir Muharram procession: Witnesses, August 29, 2020
14 VOA News, Jammu and Kashmir Elections Take Toll on Region’s Journalists, December 15, 2020
15 The Wire, Jammu and Kashmir: ‘Unexpected’ Demolition Drives Left Several Homeless, Jobless in 2020, December 25, 2020
17 DW, Kashmir: A year of lockdown and lost autonomy, August 4, 2020
18 See generally RSIL, The Coronavirus in Indian-Occupied Kashmir, April 26, 2020
19 Jacobin, In Kashmir, the Coronavirus Means Increased Police Powers, April 17, 2020
20 Al Jazeera, ‘We’ll die like cattle’: Kashmiris fear coronavirus outbreak, March 23, 2020
21 Foreign Policy, Slow Internet Is Speeding the Spread of the Coronavirus in Kashmir, April 13, 2020
22 Al Jazeera, ‘We’ll die like cattle’: Kashmiris fear coronavirus outbreak, March 23, 2020
23 AA, 474 killed in Jammu and Kashmir in 2020: Report, December 30, 2020
25 Hindustan Times, Covid-19 vaccination of cops, frontline workers begins in Kashmir, February 4, 2021
26 See Russia Today, Israel’s failure to inoculate Palestinians against Covid should be considered a war crime under international law, January 27, 2021
27 Western Sahara (Advisory Opinion of 16 October)  ICJ Rep 12, p. 122