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Volume 3, No. 6 - November 2003 |
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ASIAN-EURASIAN HUMAN RIGHTS FORUM
Dr. K.N.
Pandita To,
Mr. L.K.
Advani, Sir, In the first week of September 2003, Observer Research Foundation (ORF), a reputed Delhi-based NGO organized a 2-day seminar in New Delhi on the theme ‘Kashmiri Pandits: Problems and Prospects’. Many senior leaders, public figures and opinion makers were present at its deliberations. It is understood that the NGO in question would be deputing a delegation to apprise you of the shades of opinion that have emerged on the subject of Internally Displaced Persons (IDPs) from Kashmir. We know of your concern about the return and rehabilitation of the members of Pandit minority of Kashmir who have been visibly and invisibly forced out of their ancestral homeland over half a century in the past. Of these, the largest chunk numbering about 300,000 was forced out of the valley in 1990 with the outbreak of Islamist terrorism. Ever since, most of them are living in refugee camps or at other places in the country. In this connection, our organization would like to draw you attention to some of the aspects of the issue. We do so in order to help you view the situation not only in local background but also in terms of resolutions and recommendations of the UN and its various subsidiary bodies particularly the UN Commission on Human Rights. The purpose in doing so is to help you and your administration, including the authorities in the federating State of Jammu and Kashmir, to deal with this particular situation in a manner that the principles of the United Nations Charter, the Covenant on UN Human Rights and the recommendations of other UN subsidiary bodies like the UN Commission for Refugees are given due regard. Therefore, we venture to concretize our submission as follows: 1. The religious minority of the Pandits of the valley formed nearly 7 % of the total population of the province of Kashmir in J&K State at the time of Kashmir’s accession to the Indian Union in 1947. Owing to discriminatory policies of successive regimes in J&K ever since, a good percentage of the Pandits was forced to leave Kashmir and seek livelihood in other parts of the country. As a result of eruption of armed insurgency in late 1989, the Islamists made the Pandits their selective targets and killed nearly a thousand innocent members within a couple of months of insurgency. Their objective was to enforce ethnic cleansing of Kashmiri Pandits from the valley in order to pave the way for Islamic homogenization with sharia replacing secular democratic dispensation. Radical and Wahhabi Islamic ideologues in Saudi Arabia and Pakistan who have sponsored the jihadi movement world over, consider Kashmir integral to the concept of Islamic Caliphate. In his biography, Shiekh Abdullah branded the Pandits as Indian spies and they were considered a symbol of India’s secularist presence in Kashmir. In this connection we are prompted to enclose for your information and knowledge a booklet authored by a senior cabinet rank minister, namely Abdu’r- Rahim Rather of NC in the previous cabinet of Dr. Farooq Abdullah. 2. In 1990, the popularly elected Congress+NC coalition Government of Jammu and Kashmir failed to protect life and property of this religious minority against lawless Islamic brigands. Not only that, in stead of facing dire threat to law and order in the state, in fact to its stability, with courage and determination, the then popularly elected government quit the office and abandoned the people, particularly the defenseless minority, to armed Islamic insurgents. In doing so, it facilitated space for the insurgents to indulge freely in acts of pogroms and violence against the Pandit minority. Protection of life is the foremost constitutional and moral duty of any government. It is also the first article of the UN Charter on Human Rights. 3. Abandoned by the popular government, surrounded by an atmosphere of unrelenting threat to life and honour relayed through loudspeakers from mosque tops and in vernacular media, targeted by the gun-wielding marauders and ignored by the national press and mainstream political parties, the miniscule religious minority was left with no option but to abandon, albeit most unwillingly their homes and hearths. Then ensued their mass exodus to unfamiliar places and environs. By April 1990, almost 99 per cent of their population had to depart from the valley. 4. The Government of India, in its official note to the International Commission of Jurists, (ICJ), an international NGO of repute, communicated in writing the story of ethnic cleansing and exodus of the Pandits. It is fully reproduced in its published report on Kashmir, 1995. 5. Extirpated people sought refuge in another region of the State, Jammu, and other places in the country like Delhi, Bombay, Chandigarh etc. They did not cross the borders of the Indian State but remained as refugees within the confines of their own country. 6. Paragraph 2 of the report of the representative of the UN Secretary General pursuant to the UNHRC resolution 1997/39, dealing with the scope and purpose of the Guiding Principles defines the IDPs as this: For the purpose of these Principles, internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human made disasters, and who have not crossed an internationally recognized State border. (E/CN: 4/1998/53/Add.2. page 5) 7. Section A paragraph 9 of the Report of the representative of the UN Secretary General. to the Commission on Human Rights states Loss of life, brutality, violence and threats thereof that create a climate of insecurity frequently force people to flee their homes: for instance, in cases of direct or indiscriminate attacks on civilian sites. In fact, violence and threats affecting life and personal security are a particularly effective and frequently used means of inducing displac3ement and are often also employed in the course of displacement. In some cases the forced movement of persons may amount to genocide, including “ethnic cleansing”, or to inhuman and degrading treatment. (E/CN.4/1998/53/Add.1. p.5) 8. In the matter of “ethnic cleansing” of the Pandits of Kashmir, a situation which the Government of India has conceded in its report to the ICJ, (to which allusion has been made above), the report of the representative of the Secretary General observes in paragraph 73: “Ethnic cleansing” is never admissible. The Committee on the Elimination of Racial Discrimination in its concluding observations on the report of the Republic of Bosnia and Herzegovina (CERD/C/247/Add.1), condemned “ethnic cleansing” because it constitutes “ a grave violation of all basic principles underlying the international convention on the Elimination of All forms of Racial Discrimination”. (E/CN.4/1998/53/Add.1 p. 17) 9. We have already stated that by April 1990 over a thousand members of the Pandit the armed Islamists had gunned down religious minority. In regard to genocide, the report of the representative of the Secretary General states in paragraph 74 as follows: Certain forms of forced removal, in particular in the context of “ethnic cleansing” or extreme suppression of ethnic or indigenous peoples may amount to genocide. Genocide constitutes an especially grave form of violation of the right to life, as discussed in detail in the Compilation and analysis of legal Norms (paras 73 -74). Article 1 of the Genocide Convention recognizes genocide, committed at any time, to be an international crime. Article 11 of the Genocide Convention defines genocide as “ … any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part …(E/CN.4/1998/53/Add.1. p. 18)
10. Despite this ground reality, the Government of India has, so far, refused to declare the Pandits of Kashmir as IDPs. Indian National Human Rights Commission seems to have followed the policy of the government. 11. We do understand that response to internal displacement worldwide, frequently resulting from civil war, is, in the words of the representative of the UN Secretary General, ”often constrained by ruptured sense of national solidarity and identity.” This could be a reason for the Government of India’s reluctance to declare the Pandits as IDPs in terms of the UNHRC’s definition. But apart from this, the Government of India might be averse to the involvement of a UN agency or its nominee or reputed human rights agencies like Norwegian Refugee Council (NRC) or any other of high credibility to address within its competence and legal jurisdiction the human rights violations of the internally displaced persons from Kashmir. 12. Conceding the right of the states to sovereignty, it would be apt to refer at the same time to the concept of “sovereignty with responsibility” as enunciated in the Guiding Principles of the representative for the IDPs. In that sense it does not seem justifiable for the Government of India to obstruct, as it has hitherto done, the affected IDPs from enjoying the rights and privileges, which are provided by the international community through various UN instruments and treaty bodies. It is tantamount to disregard of international obligation if not violation of human rights of the IDPs when they are kept outside the jurisdiction of the Emergency Relief Coordinator (ERC) designated by the UN Secretary – General as the UN’s focal point on internally displaced persons. (See para 9 of E/CN.4/2003/86/Add.6. p. 6). Among other serious deprivations caused by refusing to declare them as IDPs would be the denial of their right to seeking asylum in a foreign country. This is gross violation of human rights and the right to freedom of movement. It is a matter of regret that neither the Government of India nor the Government of the Jammu and Kashmir State (the State in which ethnic cleansing and genocide of a religious minority have occurred and wherefrom the mass exodus of the community members has taken place) has instituted a Commission of Inquiry into the rise of religion-based terrorism allegedly with full connivance of sections of local authorities, political groups and segments of civil society. Five major massacres of the members of this community’s residual members in Kashmir and adjoining areas have taken place during last twelve years. Never has been an inquiry ordered nor has even an officials statement been made on the floor of the Legislative Assembly in regard to these pogroms. This shows the State and the Union governments’ lack of concern about a blatant case of human rights violations. . Now there is much talk about the return and resettlement of the IDPs. The talk has become a cliché with the State and the Central governments. Observers feel that real ground situation does not support practicability of any such plan at the moment. We expect the Indian authorities to be in full knowledge of the observations, recommendations and resolutions of the UN, the Human Rights Commission and other UN subsidiary bodies in the matter of rights of Internally Displaced Persons. In the context of the return of Pandit religious minority, the ground situation and its harsh realities are decisive factors. Indian security forces are locked in heroic combat against the committed jihadis and Islamic suicide squads who strike suddenly and at vulnerable places or soft targets. Most of Kashmir Muslim bureaucracy and administrative structure abhors broad nationalist and secular orientation. A senior minister of Mufti cabinet arrested by security forces for known involvement in the Akshardham mandir attack has been cleared by Mufti and given the “healing touch” by restoring him in his cabinet post. . Mattan and Khirbhwanai, the Hindu religious sites in the valley, are being projected as future habitats of the exiled Pandits. This is not for any real love of the minority. Mattan is the constituency of Mufti himself and Khirbhawani is the constituency of Qazi Afzal -- the former judge of Kangaroo courts meaning the courts established by the terrorists to punish the ‘informers’-- and now a cabinet rank minister in Mufti government. He had no qualms of conscience in publicly announcing that he won the election through the support of militants. Crores of rupees feigned for the rehabilitation of Pandits are actually to bolster vote bank syndrome of these two constituencies. There appears little sense in making Hindu religious places in the valley as the focal point for their concentration. Are the exiled people to become mendicants and monks at their shrines or are they to be activated as equal partners in the architecture of country’s political and social process? In these conditions, return of the IDPs becomes a secondary issue. The primary issue is of reversing the Islamization of Kashmir. It is re-establishing and re-enforcing the primacy of secular democratic dispensation. It is providing constitutional and institutional cover to physical security. It is recognition of the right of the minority group to become partner in nation building process. It is re-interpretation of Article 370 of the Indian Constitution in the light of ongoing jihad. Above all, it is recognizing the sacrifices made by the community first as nuts and bolts of freedom movement, then as sufferers of discrimination and finally as the victims of genocide and ethnic cleansing. As an NGO of international structure, we consider it our moral and humanistic duty to advise the state authorities to draw a blue print for return, rehabilitation and re-integration of internally displaced Kashmiri Pandits strictly in accordance with the study, research, analysis and recommendations of the United Nations through its subsidiary bodies. In particular, the report of the representative of the Secretary-General on IDPs, the Special Rapporteur on Minorities, and also of Mr. Asbjorn Eide the Chairman of the Working Group on Minorities -- the important subsidiary of the UN Commission on Human Rights – that has defined the Pandits as a clear example of “reverse minority”, should form the basis of the blue print for Pandit return. The blue print has to be implemented only when de-communalization of Kashmir is brought about. Whether the Indian State has the capacity of transforming the aggressive Kashmiri jihadi activism into peaceful coexistence among the people of different faiths through the current instrument of appeasement and concessions is the crux of the problem. So far the Indian experiment in Kashmir has yielded only the extirpation of barely two per cent non-Muslim population of the State and the collapse of Indian projection of Kashmir as its secular face. New Delhi will have to redefine its secularist prognosis. Principle 28 of the Guiding Principles in Section V relating to ‘Return, Resettlement and Reintegration of the IDPs’ states: 1. Competent authorities have the primary duty and responsibility to establish conditions, as well s provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. Such authorities shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons. 2. Special efforts should be made to ensure the full participation of internally displaced persons in the planning and management of their return or resettlement and reintegration. (E/CN.4/1998/53/Add.2. p. 14) From this principle, the following inference becomes self explanatory: a) The IDPs will not be coerced into return. Return will be their free choice b) It is the responsibility of the State authorities to care for their “return, resettlement and reintegration.” c) The returnees have the freedom of resettling in their homes or places of habitual residence, or to resettle voluntarily in another part of the country/state d) Internally displaced persons will be involved actively in the decision of planning their return, resettlement and reintegration. In the light of these inferences, there is nothing wrong if the internally displaced Kashmiri Pandits are demanding concentrated resettlement in one part of the Kashmir valley. This is what the right to freedom of movement and the right to freedom of resettlement embody. These being the human rights cannot be denied. Again there is full justification for the Pandit IDPs to ask for adequate political empowerment and full participation in the decision making and planning process in the State. This is their constitutional, political and human right. Additionally the right to compensation is equally important substantiated in the Guiding Principles.
Suggestions: 1. The Union Government constitute a Commission of Inquiry with the following clear terms of reference: (a) Probe into the causes of the rise of extremist religion-based armed insurgency in Kashmir in 1990 (b) Probe into the causes and events of selective killings of Pandits followed by their ethnic cleansing in 1989-90. The report of the inquiry into 1986 Anantnag attacks on Pandits is made public. Constituting this commission is essential for preventing recurrence of communal pogroms in future and also for strengthening secular democracy of India. It will pave the way for the return of the IDPs. It must be understood that return of an ethnically cleansed minority to its homeland essentially depends not on the quantum of security provided by the government but on the quantum of goodwill which the majority is prepared to extend to it out of its free will. 2. The affected people are immediately declared Internally Displaced Persons, in accordance with the definition of the UN or its subsidiaries/commissions/ working groups etc. 3. Subject to the inception of an Inquiry Commission, the State government constitutes a Rehabilitation Committee consisting of eleven members with following distribution: Union Government - 2, State Government - 2, Attorney General of India - 1, Jammu region majority group – 1, Kashmir region majority group – 1, Ladakh region majority group – 1 and Pandit IDPs – 3 (one each from Jammu, Udhampur and Delhi camps plus the rest of the country Camps). The Pandit delegation shall enjoy the right of rejecting any recommendation in full or in part in the event of disagreement on a point or decision. Its terms of reference for the committee shall be: (i) to examine all the three options of return of the Pandits to the valley. These are (a) return to their original places of residence (c) resettlement at district headquarters, and (c) concentrated relocation of the entire community at one selected place in the valley. All the three options should be left open and a mechanism of ascertaining the majority view is evolved (ii) to address the question of political empowerment of the IDPs through proper and adequate constitutional amendment before their relocation in the valley. This recommendation has to be in the spirit of the Guiding Principles of the UN Secretary General’s representative and also Article 370 of the Constitution of India besides relevant clauses of the State Constitution. (iii) to address the question of funding and budgeting the rehabilitation plan within a specific period of time (iv) to address two more aspects (a) mechanism for providing adequate means of subsistence to the relocated persons, and (b) proper compensation to the affected people for the loss of their property and the mental torture they have been subjected to. In the matter of dealing with this set of terms of reference, the Rehabilitation Committee should take into full consideration all the relevant recommendations of the UN Human Rights Commission and its subsidiary organs, in particular the recommendations of (a) the Representative of the UN Secretary General for Internally Displaced Persons, (b) Rapporteur on the Rights of Indigenous Peoples and (c) Chairman of the Working Group on Minorities. We hope that these observations and recommendations of our NGO will be given due thought by the concerned quarters in the Home Ministry. With thanks.
Sincerely, Oct. 23, 2003 Copy to:
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