In recent years, government forces in Indian Occupied Kashmir have burnt down civilian property during and after gunfights between security forces and militants.[1] This policy marks a change in approach whereby security personnel now opt to burn down homes where they suspect militants are hiding rather than holding prolonged gunfights. They argue that material damage is more acceptable to the public than loss of life. Whilst army personnel have in the past also burnt down homes as a form of collective punishment or in retaliation for attacks on their own forces, these have increased in frequency in the last few years. These actions are a violation of the laws of war which include substantial provisions to protect property in occupied territory. This was because protection of civilian property was an important means to reduce human suffering, especially in light of scorched-earth tactics which had been employed by military commanders in previous conflicts. These laws further provide for financial liability against armed forces who intentionally destroy civilian property in war. However, civilians in Kashmir are not provided any prophylactic from suffering, with their homes punitively burnt to the ground by security forces, little to no compensation paid, and their rights under international humanitarian law breached with impunity.
Destruction of Property in Indian-Occupied Kashmir
The Jammu and Kashmir Coalition of Civil Society (JKCCS) notes that the destruction of civilian property by the armed forces has become normalised.[2] Kashmiris accuse Indian forces of setting civilian homes on fire and looting valuables including cash and jewellery.[3] There have even been instances where the security forces have forced families to pour kerosene on their own homes and set them on fire after encounters.[4]
A total of 114 homes were destroyed during military operations in 2020.[5] In May 2020, 22 homes were burnt down in Srinagar during a 12-hour gunfight between Indian police and paramilitary forces and rebels, leaving dozens of families homeless during the coronavirus outbreak.[6] JKCCS’s report from 2019 noted that there were 18 homes destroyed in the first quarter of 2019, after that, restrictions as well as the communications blockade meant that destruction was not reported.[7] According to data collected by IndiaSpend, at least 105 homes were destroyed following gunfights between 2015 and March 2018 in Kashmir’s Pulwama district.[8] Residents accounts and videos on social media show Indian security forces setting fire to houses after tracking militants and then standing by and watching them burn.[9] The security forces claim that an announcement is made after a house where militants are suspected of hiding is besieged so that residents have the option to surrender.[10] Villagers meanwhile state that it is punitive, a form of collective punishment for the militant’s actions. Police officials have said that they now burn down homes using explosive devices or flamethrowers instead of holding prolonged gunfights with militants arguing that material damage is more acceptable to the public over the loss of life.[11]
Whilst burning down homes has been used more frequently in recent years, it is not a new method of warfare by the Indian army. In September 1990, 83 houses and 50 shops were set on fire in the northern town of Sopore in retaliation for an attack on the Border Security Forces convoy.[12] Similarly, in 1993 the town’s market was set aflame to avenge the killing of one their men, burning down 300 shops, 100 homes, and killing 53 civilians.[13]
The destruction of property, and particularly homes, can result in a great deal of loss which is often of great value and irreparable.[14] Some of those who had their homes burnt down recalled that “[f]or more than 50 years, I have invested my blood and sweat to build my home. Now everything is lost, even housing and bank documents.”[15] A student wishing to pursue postgraduate studies said “I don’t know how I can continue my studies without a home to live in.”[16] Homes can contain art, written records, historical artefacts, all of which are lost when a house is burnt to the ground. For instance, in March 2018, the Indian army burnt down the home of a poet, Ghulam Mohammad Bhat, who lost 30 years of literary work in the fire.[17] He says he has since lost his resolve to write as well, “[t]oday, I write a line and then think of all that was lost. It stops me right there.”[18]
The International Law Applicable to Property in an Occupation
There are substantive protections for civilian property in armed conflict under international humanitarian law. This was to deter scorched-earth tactics which have been a much indulged in method of warfare by military commanders.[19] The U.S. delegate at the Geneva Conferences stated that the Fourth Convention needed to protect property “to spare civilian populations the sufferings which might result from the destruction of their houses, clothes, foodstuffs and the means of earning their living, as had happened at Oradour and Lidice.”[20] The value placed on property was due to its protection being an important means to reduce human suffering, as is indicated in the Commentary to the Fourth Geneva Convention which states that “[t]he purpose of this Convention is to protect human beings, but it also contains certain provisions concerning property, designed to spare people the suffering resulting from the destruction of their real and personal property (houses, deeds, bonds, etc., furniture, clothing, provisions, tools, etc.).”[21]
IHL protects civilian property as it serves as a prophylactic between civilians and suffering and has done so for over a hundred years. Article 25 of the Hague Regulations 1907 prohibits attacking buildings which are undefended and Article 46 states that private property is to be respected and cannot be confiscated. The need to protect property in occupied territories was to ensure that property would be turned over back to the population.[22] This is because the law of occupation merely recognises that the Occupying Power is the administrator of the territory does not imply a transfer of sovereignty over that territory to the Occupying Power.[23]
According to Article 53 of the Fourth Geneva Convention, the occupying power is prohibited from destroying any property belonging individually or collectively to private persons or to the state except where it is absolutely necessary for military operations. Doing so would constitute a grave breach of the Geneva Conventions as per Article 147. Moreover, under Article 8(2)(a)(iv) of the Rome Statute, “[e]xtensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” is a war crime in international armed conflicts.
The destruction of property has been prosecuted at international criminal tribunals. In the Karadžić and Mladić case before the International Criminal Tribunal for the Former Yugoslavia, the accused were charged with grave breaches of the Geneva Conventions, for having “individually and in concert with others planned, instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of the extensive, wanton and unlawful destruction of Bosnian Muslim and Bosnian Croat property, not justified by military necessity”.[24]
In the Prosecutor v. Blaškić case, the ICTY’s Trial Chamber held that the property of Bosnian Muslims was protected under the Fourth Geneva Convention due to the fact that the property was in the hands of the occupying power.[25] According to Bing, this links the law of occupation to the concept of protected persons in the Fourth Geneva Convention, perhaps establishing a notion of protected property.[26] Civilian property in occupied territories is then protected property unless its destruction was necessary for military reasons. The Indian army has destroyed property in Kashmir punitively, to punish the population for the actions of militants, in retaliation as revenge attacks, and to burn houses down where militants are suspected of hiding instead of prolonging gunfights. This is a violation of international humanitarian law and causes unnecessary civilian suffering.
Compensation
Article 3 of the Hague Convention 1907 provides for financial liability against armed forces who intentionally destroy civilian property in war.[27] Whilst the laws of war do allow for temporary use of private property, they allow for it with the added requirement that compensation be provided after use.[28] Moreover, the Regulations consider the failure to protect private property to be a violation of the law and the failure was to be remedied by way of restitution or compensation.[29]
Whilst those whose homes are destroyed in gunfights are eligible for compensation, this is rarely provided in practice. In Kashmir, the district administration is to seek a police report on whether the owner harboured militants willingly or under duress.[30] The process to claim this compensation is long and cumbersome with residents saying that while they have applied for it, nothing has been done or that they have only been compensated a fraction of the loss they have suffered.[31]
Ironically, instead of prosecuting its armed and security forces personnel, India passed the Jammu and Kashmir Public Property (Prevention of Damage) (Amendment) Ordinance, 2017 which criminalises acts by individuals which result in damage to public and private properties.[32] The legislation states that those who call for direct action in the form of protests, strikes and demonstrations which result in damage to such property will be punished with imprisonment of up to two or five years and can be imposed with a fine equivalent to the market value of the property damaged or destroyed.[33] Meanwhile, security forces who intentionally burn down homes leaving Kashmiris homeless on the supposed basis that there are militants in them are dealt with impunity.
Conclusion
International humanitarian law recognises that property rights are to be respected and protected even in the context of armed conflict. This was so that armed and security personnel would avoid recourse to a ‘scorched earth’ policy wherein occupying forces would carry out deliberate destruction in combat zones. However, in Kashmir, the Indian army has engaged in the unlawful and wanton destruction of homes which is leaving people homeless. This policy of burning down homes is a punitive one which is not carried out by reason of military necessity, and families are not compensated for their loss of residence and valuables. These encounters are a violation of the laws of war and cause civilian suffering which is easily avoidable in a strife-torn region which has already suffered much in its eight decades of occupation.
References
[1] Scroll.in, ‘Breaking people’s will’: In Kashmir, gunfights leave a trail of destroyed homes and rising anger, September 20, 2018
[2] JKCCS, Annual Human Rights Review 2019, December 13, 2019
[3] Al Jazeera, In Pictures: Kashmir homes reduced to rubble during gun battle, May 20, 2020
[4] The Print, Houses caught fire in Shopian encounter ‘because of stacked dry grass’, not us, says Army, March 21, 2021
[5] AA, Military operations rendering people homeless, hopeless in Kashmir, June 22, 2021
[6] TRT World, In pictures: Indian forces set ablaze a Kashmiri neighbourhood — locals, May 20, 2020
[7] JKCCS, Annual Human Rights Review 2019, December 13, 2019
[8] Scroll.in, ‘Breaking people’s will’: In Kashmir, gunfights leave a trail of destroyed homes and rising anger, September 20, 2018
[9] ibid.
[10] ibid.
[11] ibid.
[12] ibid.
[13] ibid.
[14] Bing Bing Jia, ‘Protected Property and Its Protection in International Humanitarian Law’ (2002) 15 LJIL 131
[15] Foreign Policy, In Kashmir, a Year of Exploding Memories, August 2, 2020
[16] ibid.
[17] ‘Breaking people’s will’: In Kashmir, gunfights leave a trail of destroyed homes and rising anger (supra n.1)
[18] ibid.
[19] Lea Brilmayer and Geoffrey Chepiga, ‘Ownership or Use – Civilian Property Interests in International Humanitarian Law’ (2008) 49 Harv Int’l LJ 413
[20] ibid.
[21] Int’l Comm. Of The Red Cross, Commentary: IV Geneva Convention Relative To The Protection Of Civilian Persons In Time Of War 226-27 (Jean S. Pictet ed., Ronald Griffin & C.W. Dumbleton trans., 1958)
[22] Vitaliy Yarotskiy and Denys Spiesivtsev, ‘Evolution of the Forms of Threats to the Inviolability of Property Right during Interstate Military Conflicts’ (2019) 10 J Advanced Res L & Econ 2170
[23] Vaios Koutroulis, The Beginning and End of Occupation, UN Audiovisual Library of International Law, available at: http://legal.un.org/avl/ls/Koutroulis_LAC_video_1e.html
[24] ICTY, Karadžić and Mladić case, First Indictment, 24 July 1995, ss27, 29, and 41
[25] ICTY, Prosecutor v. Tihomir Blaškić, Judgement, Case No. IT-95-14-T, T.Ch. I, 3 March 2000, para. 157
[26] Bing Bing Jia, ‘Protected Property and Its Protection in International Humanitarian Law’ (2002) 15 LJIL 131
[27] Convention Respecting the Laws and Customs of War on Land art. 3, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631
[28] Bing Bing Jia, ‘Protected Property and Its Protection in International Humanitarian Law’ (2002) 15 LJIL 131
[29] ibid.
[30] ‘Breaking people’s will’: In Kashmir, gunfights leave a trail of destroyed homes and rising anger (supra n.1)
[31] Ibid; AA, Military operations rendering people homeless, hopeless in Kashmir, June 22, 2021
[32] The Jammu And Kashmir Public Property. (Prevention Of Damage) Amendment Ordinance, 2017. (Ordinance No. III of 20 17.)
[33] Hindustan Times, Damaging property in Jammu and Kashmir will now attract fines and prison term, October 27, 2017
