Counsel, Your Petition is Premature

“Counsel, your petition is premature, I cannot grant you the relief that you are seeking.”

These words were uttered by the honorable Chief Justice of Islamabad High Court during legal proceedings that I happened to observe last week and they continue to ring in my ears (yes, in his voice) as I conclude this research on Indian Occupied Kashmir.

Kashmir. The name is associated with beauty and elegance of the past. Kashmir. The name is also associated with brutality and atrocities of the present. For those sitting in the comfort of their homes, like us, the horrific pictures of the victims of brutality on the erstwhile Kashmir Highway and the present Srinagar Highway in Islamabad serve as a constant reminder of what prevails just 350.64 kilometers away.

Most of us, when hear of Kashmir, do not want to indulge in a discussion regarding whether or not it is an armed conflict, genocide, or a lost cause. We do not want to address the possibility of Pakistan-endorsed militancy in the region and we do not want to feel helpless in the face of rising Hindu extremism in India (a.k.a. Hindutva). Most of us would like to see a world where Kashmir is left alone, with its beautiful land, its resilient people and its peace. Most of us hope for nothing short of a miracle to erase the horrific imprints of the past few decades from the face of Kashmir.

But such hopes are detached from the realities of present-day Kashmir. This article is centered around discussion over a topic that most of us do not want to confront i.e. whether or not what is happening in Kashmir is genocide.

The Charge

Kashmir has seen violence since 1947 without pause, but for the purpose of determining whether present-day Kashmir is being subjected to genocide, we need evidence from the present-day landscape which prevails in Kashmir. Let the charge be that of genocide, let the evidence be collected from seemingly independent sources and then let the law take its due course.

The Evidence

The Human Rights Watch (HRW) reported in 2020 that ever since the change in Kashmir’s constitutional status took place in August 2019 (yes, we speak of the repeal of Article 370 and 35A from the Constitution of India 1949 on August the 5th, 2019 that stripped Kashmir of its pseudo autonomy), the government had been consistently imposing ‘harsh and discriminatory restrictions on Muslim-majority areas’ in Kashmir.[1] It was further reported that attacks against Muslims continued across the country. This information is important with reference to Kashmir in order to establish the intent of the Indian government and its consistently discriminatory behavior against Muslims across India, which would of course, traverse through Kashmir (a Muslim-majority state).[2] The intent of the current Indian government (led by Prime Minister Narendra Modi and the Hindu nationalist Bharatiya Janata Party (BJP)) can also be traced back to the election manifesto of the BJP, which included the revocation of Article 370 and 35A, putting Kashmir on the same footing as the rest of the country and allowing non-Kashmiri Indians to buy property in the area.[3]

The systematic and policy-backed discrimination against Muslims in India reared its ugly head more prominently on December the 12th, 2019 when the Citizenship Amendment Act (CAA) 2019 was passed. The CAA gave priority to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who had been residing in the country prior to 2014 to have access to citizenship in India, to the exclusion of Muslims. The United Nations Human Rights Office called the CAAfundamentally discriminatory in nature‘.[4] In an unprecedented move, in fact, the United Nations Commissioner for Human Rights filed an application to be impleaded in a petition filed against the CAA in the Supreme Court of India.

The HRW further reported that hundreds had been subjected to detention under the Jammu and Kashmir Public Safety Act 1978 which allowed detention for up to two years without trial.[5] Strict restrictions were imposed by the Indian government, including increased control over the news, suppression of critics, journalists and human rights activists and restrictions on the access to communication networks (which also impacted Kashmir’s ability to effectively respond to COVID-19). The Armed Forces (Special Powers) Act 1958 grants security forces immunity from prosecution even for instances of serious human rights abuses. In July 2020, three laborers had been killed by the security forces in Kashmir on the pretext of militancy. The use of shotguns to fire metal pellets to disperse crowds continued and the lack of accountability for indiscriminate and disproportionate use of force also continued, affecting innocent bystanders as well.

The HRW reported in 2021 (full report yet to be published) that the authorities continued to arrest activists, journalists and other peaceful critics under counterterrorism and sedition laws. On the contrary, violence and incitement to violence by BJP members and leaders went unaccounted for.[6]

Furthermore, at the United States Congressional Briefing on Religious Freedom in India on September the 22nd, 2021, John Sifton, the Asia Advocacy Director of HRW gave a testimony to the following effect (statements in support of Sifton’s stance, but not a part of his testimony, have been italicized):[7]

  • Attacks against Muslims had increased since the BJP came to power in 2014.
  • Divisive, hate-filled remarks against Muslims were made during state and national elections, leading to the normalizing of violence against Muslims.
  • Laws and policies which systematically discriminated against Muslims were adopted.
  • The authorities attempted to discredit protestors, ‘particularly Muslims’, by accusing them of conspiring against national interest (for instance, in February 2021, Prime Minister Narendra Modi called various peaceful protestors ‘parasites’;[8] in 2019, a few days prior to the passing of CAA, Home Minister Amit Shah said ‘illegal immigrants are like termites and they are eating the food that should go to our poor and they are taking our jobs’ raising further apprehension that millions of Muslims could be stripped of their citizenship rights;[9] in 2020, the Chief Minister of Uttar Pradesh, Yogi Adityanath, said that protestors against the CAA were terrorists who should be fed with ‘bullets not biryani’).[10]
  • The police indulged in charging Muslims with terrorism and sedition charges and the courts, while granting bail, called out the police for ‘vague evidence and general allegations,’ a ‘shoddy probe’ and ‘absolutely evasive’ and ‘lackadaisical’ attitude. Courts also noted that the police showed a tendency of adding charges under counterterrorism law where bail had been granted under the ordinary law.
  • In Kashmir in particular, journalists and activists were being subjected to politically motivated charges of terrorism while counterterrorism operations were being used to harass and intimidate the same. As a result, in June 2021, the United Nations Special Rapporteur on Freedom of Expression and the Working Group on Arbitrary Detention wrote to the Indian government expressing concerns over the arbitrary detention and intimidation of journalists covering human rights abuses in Kashmir.
  • The Unlawful Activities (Prevention) Act 1967 was being abused in Kashmir where annual cases reported under the same law went from less than 60 in 2015 to 255 in 2019. The law was being used against journalists, human rights activists, protestors and even those using VPN and proxy servers to access social media sites in 2020 during Kashmir’s longest internet shut down.[11] The Unlawful Activities (Prevention) Act 1967 was also used to open a case against the family members of late Syed Ali Shah Geelani (after his demise on September the 1st, 2021) over allegations of raising anti-state slogans and wrapping the deceased’s body in a Pakistani flag.[12]

The HRW Report 2020 and 2021, read with the testimony of HRW’s Asia Advocacy Director, leave no doubt that widespread institutional and systematic discrimination persists against Indian Muslims and is witnessed at an aggravated scale in Kashmir. The Indian government, in addition to encouraging the atrocities in Kashmir by passing inciteful remarks and turning a blind eye to the brutality of the authorities (the police and military deployed in Kashmir), is also contributing to the worsening situation by passing discriminatory laws and suppressing the reporting of human rights abuses in Kashmir. One is left with no other option but to rely on reports from the past to speculate about the present; reports that told tales of over 600,000 troops deployed in Kashmir, reports of more than 50,000 killings between 1989 to 2006, reports of evidence of 2730 bodies buried in 40 mass graves in 2006, reports of over 8000 disappearances and reports of over 70,000 killings by 2016, mostly by Indian forces. This is without reference to the allegations of rape, torture and other atrocities against civilians committed by the Indian forces.[13] One is left with no other option but to only imagine the worst.

With this evidence considered (much more of which can be found from before 2019 than after), we have established that Muslims face heightened discrimination and marginalization in India (including Kashmir), that Kashmir is subjected to draconian laws as a whole with a possible intent of the BJP to convert Kashmir into a Muslim minority area from a Muslim majority area, and that there is disproportionate use of force by security forces against civilians in Kashmir.

But the question remains: do these actions amount to the crime of genocide?

The Law

The United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) on December the 9th, 1948[14] which had been duly ratified by India on August the 27th, 1959.[15] Article I of the Genocide Convention affirms that genocide is a crime under international law, regardless of whether it is committed in times of peace or war. This, thankfully, allows us to leave the discussion on whether an armed conflict exists and whether the Rome Statute of the International Criminal Court (Article 6 of which deals with genocide) applies to Kashmir, for another day. For now, we are restricting our arguments to the applicability of the Genocide Convention, which applies regardless of the existence of an armed conflict.

Article I of the Genocide Convention further directs that the contracting parties ‘undertake to prevent and to punish’ genocide. India, by virtue of its obligations under Article I, is not only bound to punish the acts of genocide, but to also prevent genocide within its national territories. The duty is thus twofold: if genocide has been committed, then India must punish it; if it has not been committed, but there is ample evidence of genocidal tendencies on the rise, then the state must prevent it. The duty to prevent genocide was reaffirmed in the case of Bosnia and Herzegovina v. Serbia and Montenegro (Bosnia v Serbia) by the International Court of Justice (ICJ),[16] where the ICJ held that Serbia had violated its obligation to prevent genocide in Srebrenica in 1995. The fact that there is a threat of genocide in Kashmir has also been acknowledged by Genocide Watch which has declared a ‘genocide alert’ in Kashmir (claiming that there are signs of early stages of genocidal process in Kashmir, India).[17] Therefore, the argument taken by India that Kashmir is an internal matter can be defeated by virtue of its international obligation to ensure the prevention of genocide in the area (not to mention that this position has also already been controverted by Pakistan on account of Kashmir being disputed territory, which has been affirmed via United Nations Security Council Resolutions).[18] This understanding is further strengthened when Article I is read with Article VIII of the Genocide Convention allowing any contracting party to call on an organ of the United Nations to take such actions as are appropriate for the ‘prevention and suppression’ of acts of genocide, or incitement, conspiracy, attempt to commit genocide or complicity in genocide.

Article III of the Genocide Convention penalizes not only the crime of genocide but also the conspiracy to commit genocide, incitement to commit genocide, attempt to commit genocide and complicity in genocide. Article IV further clarifies that persons committing genocide may even be constitutionally responsible rulers, public officials or private individuals. Articles III and IV, to their merit, enhance the scope of application in terms of who may be accused under the Genocide Convention.

Before proceeding further with the discussion regarding the merits of the case of Kashmir on genocide, it is submitted that the lure of addressing the tangent of ICJ’s jurisdiction in the matter is too strong and one must indulge. Article IX of the Genocide Convention claims that a dispute pertaining to the interpretation and application of the Convention shall be referred to the ICJ at the request of ‘any of the parties to the dispute’. Meanwhile India has placed a ‘reservation’ over Article IX, declaring that for submission of any dispute to the ICJ under the said Article, ‘consent of all the parties to the dispute is required in each case’. This is essential because when determining the jurisdiction of ICJ, Pakistan will not only have to prove that it is a ‘party to the dispute’ but also cross the barrier of the reservation placed by India. The ICJ held in Croatia v Serbia[19] that even though the Genocide Convention contained obligations erga omnes and the prohibition of genocide had the character of a peremptory norm (jus cogens), the ICJ had no jurisdiction to rule on the breaches of international law beyond the ambit of the Genocide Convention.[20] In other words, if the ICJ did not have jurisdiction under the Genocide Convention, then it would not have jurisdiction to decide a case of genocide on account of breach of customary international law. Rest assured, knocking on ICJ’s jurisdiction may not be a walk in the park for the legal team (not that it has ever been for Pakistan).

Pushing these tangents aside, let us revert to the question of what constitutes genocide and whether India is committing the crime in Kashmir. Article II of the Genocide Convention defines genocide as certain acts committed ‘with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group’. Two essential elements are required to prove a case of genocide under Article II, as affirmed in Croatia v Serbia: mens rea and actus reus. According to Article II, the acts mentioned in clauses (a) to (e) must have been committed with an ‘intent to destroy, in whole or in part, a national, ethnic, racial, or religious group’. The ICJ has held that such intent, proving which is sine qua non to establish genocide, is dolus specialis (a special intent to destroy). In addition to killing a protestor in Kashmir, for example, it must also be proved that the intent of the perpetrator was to destroy the group in Kashmir (which may be classified on the basis of religion (Muslim), or ethnicity (Kashmiri)), in whole or in part. Proving this dolus specialis in genocide cases is the most critical and arduous task, which is perhaps why an eminent international law expert, Khawar Qureshi, gave an infamous statement claiming that proving genocide in Kashmir would not be possible for Pakistan.[21] An opinion to the contrary may also be formed, and has in fact been propagated, given the historical context and the persistent marginalization of Muslims by BJP in India, which peaks in Kashmir. Previous reports on the unlawful and excessive use of force by the Indian security forces, the mass killings and the systematic impunity[22] have also been used to justify an argument in favor of genocide.[23] However, we have undertaken the responsibility of assessing the situation in Kashmir on the touchstone of legal jurisprudence and following this route can provide an alternative view. The ICJ has set the standard of proof for genocide to be ‘fully conclusive’, as it did against the perpetrating state in Croatia v Serbia. So perhaps it can be proven that there is discrimination and hatred against Muslims in India and politically motivated turmoil in Kashmir, but a case for dolus specialis with evidence that can meet the criteria in Croatia v Serbia may make this a premature petition.

The ICJ’s judgment in Croatia v Serbia is crucial for analyzing the situation in Kashmir because actus reus had been proven in the case but mens rea could not be proved. The intention to forcefully displace the Croat population had been proved in the case (which may also be the case in Kashmir), but the intent to physically or biologically destroy the Croat population had not been proven. It was held that intent to destroy had to be in relation to physical or biological destruction and that intent could not be inferred based on isolated acts. Furthermore, destruction of the group ‘in part’ was explained by the ICJ to mean that the intent must have been to ‘destroy at least a substantial part of a particular group’, including the destruction of a group ‘within a geographically limited area’. Factors such as the area of a perpetrator’s activity and control, prominence of the targeted part within the group as a whole and whether the specific group is emblematic of the overall group or essential to its survival, also need to be considered. Dolus specialis may be inferred from a pattern of conduct if that is the only inference that can reasonably be drawn from the acts in question. In case of Kashmir, the evidence wreaks of genocidal tendencies, but whether or not the situation has escalated to such a scale cannot be conclusively determined with the information available. While the attacks against Muslims in India as a whole, and in Kashmir in particular, cannot be deemed to be isolated events, it is not the physical or biological destruction of the whole group that seems to be sought. However, the situation is such that if it is not prevented or controlled, it may lead to a point where, God forbid, genocide may become a reality in Kashmir.

As far as the actus reus requirement is concerned, the acts that must have been committed to constitute genocide under Article II include:

(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;
(d) imposing measures intended to prevent births within the group; and
(e) forcibly transferring children of the group to another group.

Clauses (a) to (c) are satisfied when it comes to Kashmir, but the ICJ has held in Croatia v Serbia that the harm or suffering under clause (b) must be such that it contributes to the physical or biological destruction of the group, in whole or in part. The ICJ has also held that the party alleging the existence of genocide must prove the same with the standard of proof being ‘fully conclusive’ and the allegations being ‘clearly established’. As iterated above, all of these requirements, when viewed in light of the situation in Kashmir, guide us to avail the remedy under Article VIII i.e. calling on an organ of the United Nations for the prevention of the crime of genocide. This may, perhaps, even materialize in the form of a fact-finding mission or commission of inquiry to determine the on-ground situation in Kashmir and collect further evidence.

While the argument stands that lack of reporting and suppression of human rights voices has led to a lack of information regarding the situation on ground in Kashmir since 2019, there is still ample evidence of a rise in genocidal tendencies in India, duly furthered and encouraged by various political leaders in the country. Considering the scheme of the Genocide Convention, as discussed above, read with the Genocide Alert issued by Genocide Watch and the recent reports of HRW and the United Nations, the need of the hour is to enforce India’s duty to ‘prevent’ genocide, as opposed to the proving and punishing of genocide. The impunity offered to the Indian security forces must be recalled and human rights abuses and violations must be held accountable while the international community may intervene under Article VIII rather than Article IX (for now, that is). Under the former, a strong case can be made on merits and jurisdiction, leading to fruitful results in terms of the collection of evidence and humanitarian intervention. Under the latter, learned counsel, the petition may very well be premature.


References

[1] Human Rights Watch, India – Events of 2020, https://www.hrw.org/world-report/2021/country-chapters/india
[2] Ibid
[3] BBC News, Article 370: What happened with Kashmiris and why it matters (August the 6th, 2019), https://www.bbc.com/news/world-asia-india-49234708
[4] The United Nations, UN News – Global Perspective Human Stories, https://news.un.org/en/story/2019/12/1053511
[5] Human Rights Watch, India – Events of 2020, https://www.hrw.org/world-report/2021/country-chapters/india
[6] Human Rights Watch, India, https://www.hrw.org/asia/india
[7] Human Rights Watch, Testimony of John Sifton, Asia Advocacy Director, Human Rights Watch (September the 22nd, 2021) https://www.hrw.org/news/2021/09/22/testimony-john-sifton-asia-advocacy-director-human-rights-watch
[8] Ibid
[9] Ibid
[10] The Guardian, ‘Feed them bullets not biryani’: BJP uses Delhi elections to stoke religious hatred (February, the 6th, 2020), https://www.theguardian.com/world/2020/feb/06/feed-them-bullets-not-biriyani-bjp-uses-delhi-elections-to-stoke-religious-hatred
[11] Human Rights Watch, Testimony of John Sifton, Asia Advocacy Director, Human Rights Watch (September the 22nd, 2021) https://www.hrw.org/news/2021/09/22/testimony-john-sifton-asia-advocacy-director-human-rights-watch
[12] AlJazeera, India probes late Kashmir separatist’s family under terror law (September the 6th, 2021) https://www.aljazeera.com/news/2021/9/6/india-kashmir-separatist-geelani-family-terror-law-uapa
[13] Genocide Watch, Genocide Alerts, https://www.genocidewatch.com/copy-of-current-genocide-watch-aler
[14] http://un-documents.net/a3r260.htm
[15] https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-1&chapter=4&clang=_en
[16] Bosnia and Herzegovina v Serbia and Montenegro, ICJ GL No 91, ICGJ 70 (ICJ 2007), 26th February 2007
[17] Genocide Watch, Genocide Alerts, https://www.genocidewatch.com/copy-of-current-genocide-watch-aler
[18] S/RES/91 (1951); and S/RES/47(1948)
[19] Croatia v Serbia, General List No 118, ICGJ 25 (ICJ 2008), 18th November 2008
[20] Ibid
[21] Mint, Pakistan Lacks Evidence to Prove ‘Genocide’ in Kashmir, says its ICJ Lawyer (September the 3rd, 2019) https://www.livemint.com/news/india/pakistan-lacks-evidence-to-prove-genocide-in-kashmir-says-its-icj-lawyer-1567514728481.html
[22] Human Rights Watch, Kashmir: UN Reports Serious Abuses (July the 10th, 2019) https://www.hrw.org/news/2019/07/10/kashmir-un-reports-serious-abuses#:~:text=The%2043%2Dpage%20report%20by,Pakistan%2Dheld%20parts%20of%20Kashmir; Office of the United Nations High Commissioner for Human Rights, Update of the Situation of Human Rights in Indian-Administered Kashmir and Pakistan-Administered Kashmir from May 2018 to April 2019 (July the 8th, 2019) https://www.ohchr.org/Documents/Countries/PK/KashmirUpdateReport_8July2019.pdf; Office of the United Nations High Commissioner for Human Rights, Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan (June the 14th, 2018) https://www.ohchr.org/Documents/Countries/IN/DevelopmentsInKashmirJune2016ToApril2018.pdf
[23] Ashraf Jahangir Qazi, The News, Is It Genocide? (December the 7th, 2019) https://www.thenews.com.pk/print/579611-is-it-genocide; Binish Ahmed, The Conversation, Call the Crime in Kashmir by its name: Ongoing Genocide (August the 9th, 2019) https://theconversation.com/call-the-crime-in-kashmir-by-its-name-ongoing-genocide-120412

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.

Sana Taha Gondal

Author: Sana Taha Gondal

The writer is a lawyer.

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