(This article appeared in Kafila on 22 June, 2018)

The Office of the United Nations High Commissioner for Human Rights (OHCHR) released its first-ever ‘Report on the Situation of Human Rights in Kashmir’ on 14 June, 2018.

It is unfortunate though predictable, that India rejected the report and its recommendations out of hand, after having already rejected the OHCHR access to Kashmir.

Dismissed Without Reading?

For instance, Shekhar Gupta, Editor-in-Chief of The Print (also President of the Editors’ Guild of India) wrote an opinion piece https://theprint.in/national-interest/thanks-to-modi-govts-woolly-headedness-its-1993-in-kashmir-again/71154/ in The Print on 16 June, which began by declaring “The United Nations Human Rights Council’s report on Kashmir is so fatally flawed it was dead on arrival. Debating its accuracy, fairness, methodology or motives is a waste of time.”

The opening words themselves betray that Gupta, in his haste to junk the report, has not even bothered to read the title page of the report. The report is not authored by the United Nations Human Rights Council (a subsidiary body of the UN General Assembly comprising member states, that holds periodic sessions) – it is authored by the Office of the United Nations High Commissioner for Human Rights (a permanent body that is part of the UN Secretariat structure and answers directly to the UN Secretary General). The OHCHR report has in fact appealed to the UNHRC to establish an independent investigation into Kashmir.

Barkha Dutt, in her column in the Hindustan Times https://www.hindustantimes.com/columns/the-government-s-kashmir-policy-needs-a-reboot/story-OiNKreAryBxnvIuKTIlySI.html, dismissed the report is a couple of throwaway sentences: “India is absolutely right in rejecting the airy-fairy United Nations Human Rights Council report on violations in Kashmir. The report pretends terrorism does not exist.”

Like Gupta, Dutt too failed even to correctly cite which UN body had authored the report. What accounts for this glaring lapse in basic journalistic rigour on part of two leading columnists, and the publications that carried their articles? It seems they were too much of a hurry to mire the report in a fog of jeering ridicule to bother with accuracy. A political agenda took precedence over journalistic objectivity.

India’s liberal journalists have claimed the slain Kashmiri editor Shujaat Bukhari as one of their own: someone who occupied “middle ground” and was reviled by “extremists on both sides.” Bukhari was killed hours after the UN report was released; he was described by Dutt as “a rare voice of moderation and reason in a public discourse bulldozed by ideological extremes” (Washington Post, June 14, 2018), and by Gupta as an “influential voice of reason” (ANI, June 14, 2018).

Would Bukhari, admired so much by senior Indian journalists for his reason and moderation, have, like them, dismissed the UN report as beneath contempt? We have no way of knowing. But we do know that his paper, Rising Kashmir, carried an editorial on June 20, 2018 on UN report, which opined, “The 49-page maiden report on human rights situation in the state released by High Commissioner Prince Zeid bin Ra’ad Zeid al-Hussein has exposed the failure of the Government of India to curb HR violations and abuses in J&K. Instead of acknowledging the report and make way for corrective measures, the government’s outright rejection and branding it as ‘fallacious’ has added insult to the injury… The most interesting part in the UN report is that it mentions the rights violations in the last seven decades or 70 years, which vindicates the UN stand on Kashmir and draws attention to the resolutions passed by the premier world body in the past… A number of Indian media reports backed the government position, which is very unfortunate as it depicts the loss of credibility and objectivity while reporting on Kashmir conflict.” http://www.risingkashmir.com/news/un-hr-violations-report.

If the Rising Kashmir is acknowledged by them as a “reasonable” Kashmiri voice, would Dutt or Gupta reflect on the paper’s rebuke to journalists of their calibre for choosing to compromise their credibility and objectivity by contemptuously and aggressively backing the Indian Government’s position on the UN report?

Contempt For Human Rights Concerns

Gupta’s response to the UN report is consistent with his well-established contempt for human rights work in general. In 2013 https://indianexpress.com/article/opinion/columns/body-politics-3/, he rationalised custodial killings as “controlled killings”, and challenged the principle that “a fake encounter would always be illegal.” In 2016, he scoffed https://twitter.com/shekhargupta/status/707766109944942592?lang=en at student activist Kanhaiya for suggesting that members of India’s armed forces raped women in Kashmir, accusing him of “plugging (a) stereotype of (the) rough 90s.” He did not respond to attempts by feminist activists (including this writer) to point out that in 2013, the Justice Verma Committee, set up by the Government of India to recommend amendments to the rape law, had taken cognisance of the prevailing “impunity for systematic or isolated sexual violence” by members of armed forces against women in conflict areas, including Kashmir, and had recommended many legal protections, including the scrapping of AFSPA to bring “Sexual violence against women by members of the armed forces or uniformed personnel under the purview of ordinary criminal law” and the appointment of special commissioners “for women’s safety and security in all areas of conflict in the country.” https://indiaresists.com/delhi-rape-justice-verma-committee-recognised-systematic-sexual-violence-army/

What Gupta’s tweet dismisses as a “stereotype of the rough 90s” is what he references in his piece on the UN report as the “Kunan Poshpora mass rape allegations.” The problem is, that the Kunan Poshpora mass rape case is not a dead case that can (or should) conveniently be consigned to oblivion. Its survivors are still battling for justice in the courts. If, in the era of “Me Too”, institutions and individuals all over the world are being held accountable for sexual violence that enjoyed impunity for over three decades, should India’s Army and courts not be held to similar standards? Should Indians not be at least willing to hear Kashmiri women say “Me Too” and challenge impunity?

Nor is sexual violence as a consequence of militarization a thing of the past in Kashmir. The Shopian case of 2009 https://kafilabackup.files.wordpress.com/2009/12/iwij-report-shopian-10-dec-2009.pdf, the case of the Handwara girl http://theladiesfinger.com/handwara/, and most recently, the case in which a Major commended by the Indian Army and Government for a notorious “human shield” episode was caught trying to spend night with a teenage Kashmiri girl in a hotel room http://theleaflet.in/major-gogoi-and-the-budgam-girl-on-abuse-of-power-and-the-impossibility-of-consent/ point to the extreme vulnerability of Kashmiri girls and women to sexual exploitation and violence by members of armed forces.

Gupta’s journalistic track record on human rights issues (which displays an unfortunate readiness to allow ideology to trump accuracy) casts a cloud on the credibility of his contempt for a report authored by a UN Human Rights body, which he claims has been taken over by “NGO-type activists.”

Emotional And Embedded

Dutt, on the other hand, does not identify herself with such contempt for human rights principles. It would perhaps be accurate to see her as a journalistic advocate of the “winning hearts and minds” posture adopted on occasion by previous Indian Governments towards Kashmir. If Gupta is openly unhappy that Modi’s Kashmir policy has taken India back to the decade of the 1990s when “UN and Western human rights pressures” on India were much greater, Dutt has not aligned openly with a position that international human rights pressure on India over Kashmir is necessarily a bad thing. In June 2016, in her column in the Washington Post ‘Why the world no longer cares about Kashmir’, she observed that “The absence of global criticism of the situation in Kashmir is partly a success of effective Indian diplomacy, as well as India’s growing international financial influence.” But while she analysed the reasons for the global silence on Kashmir, she did not express satisfaction (or dissatisfaction) at such silence.

Now that the international silence on Kashmir has been dramatically broken by the UN report highlighting human rights abuses (several of which Dutt herself mentioned in her 2016 article), why does Dutt immediately commend the Indian Government for rejecting the report? In doing so, is she not revealing her own alignment with the Indian State’s strategic and diplomatic goals on Kashmir, something that Gupta does more openly? If Indian journalists covering or commenting on Kashmir take the Indian Government’s success/failure in suppressing human rights scrutiny on Kashmir so personally, does it not raise questions about their objectivity? Does their use of such emotional adjectives (‘airy-fairy’, ‘idiotic’) to deride the UN report, not let slip how emotionally embedded they are in the Indian State’s own position? Liberal Indian journalists today are eloquent about how journalism’s job is to speak truth to power and refuse to be intimidated by accusations of being “anti-national”: why does it seem that this principle is abandoned when it comes to Kashmir, when loyalty to a particular “nationalist” position (even if it is distinct from the hyper-nationalist rhetoric of the current Modi Government) seems to colour journalistic accuracy and judgement?

Let us took at some of the arguments made variously by Dutt and Gupta, as well as representatives of the Government of India, justifying summary rejection of the UN report.

The Report’s Methodology

Gupta terms the UN report “idiotic” on grounds that its researchers “haven’t even been on the ground in Kashmir once, any side of the LoC.” This is true – but why mock the UN researchers for it? The Executive Summary of the report itself states that the High Commissioner for Human Rights has repeatedly sought access for his Office to Kashmir since July 2016, and that India rejected this request, while Pakistan offered access if India were to grant access. Denied such access, the OHCHR then did what it has a mandate to do and has done in many other parts of the world: prepare a report based on “remote monitoring.”

In his opening statement https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23206&LangID=E at the 38th session of the UN Human Rights Council, the UN High Commissioner for Human Rights Zeid Ra'ad Al Hussein commented on “the troubling failure by a number of countries to grant access” to his Office, adding that “refusals of access constitute a serious affront to our work, and where there is sustained denial of access, and serious reasons to believe violations are occurring, we will consider the option of remote monitoring. The Office’s mandate to conduct such monitoring is unassailable, and if the Government concerned fears there may be inaccuracies it should permit us in to see the situation on the ground.”

Does The Report Gloss Over Terrorism?

What about Dutt’s claim that the “report pretends terrorism does not exist”? In fact, the report has an entire chapter on “Abuses by armed groups”, which notes “documented evidence” of various armed groups “committing a wide range of human rights abuses, including kidnappings, killings of civilians and sexual violence,” and observes that these groups “are believed to be based in Pakistan-Administered Kashmir.” The report states that “Despite the Government of Pakistan’s assertions of denial of any support to these groups, experts believe that Pakistan’s military continues to support their operations across the Line of Control in Indian-Administered Kashmir.” In addition to devoting considerable detail to violence against “minority Hindus, known as Kashmiri Pandits” and the exodus of the Pandits, the report also observes that “Between January 2016 and April 2018, civil society organizations have accused members of armed groups of numerous attacks against civilians, off-duty police personnel and army personnel on leave, including the killing of 16 to 20 civilians. Some of the alleged attacks include the killing of activists of mainstream political parties and threats against their leaders.”

It has been observed https://scroll.in/article/882708/not-news-most-of-what-the-un-human-rights-report-says-was-flagged-by-the-indian-press-courts-ngos that the Indian Government’s rejoinder too “seemed to concentrate on the terms used by the United Nations rather than the substance of the report – it objected to the use of “Azad Jammu and Kashmir” and Gilgit Baltistan to describe territories on the other side of the Line of Control and to the phrase “armed groups” for what it calls “terrorist entities.” Is this justified?

The UN’s own definition of terrorism is any action that “is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.” Addressing the objection “that peoples under foreign occupation have a right to resistance and a definition of terrorism should not override this right”, the UN notes, “the central point is that there is nothing in the fact of occupation that justifies the targeting and killing of civilians.” https://www.un.org/News/dh/infocus/terrorism/sg%20high-level%20panel%20report-terrorism.htm
So, the UN report is consistent with its stated position by pulling no punches in its counting attacks by the armed groups in Kashmir on civilians and non-combatants, including police or army personnel who are off-duty or on leave, as abuses of human rights.

What the UN report refuses to do – as indeed any credible fact-finding report whether by solely Kashmir-based or Indian rights organisations has refused to do – is to accept the Indian Government’s position that the anger and protests of Kashmiri people are indistinguishable from “terrorism”, and that these are a result of “instigation” by Pakistan. If any argument deserves to be termed “idiotic”, it is the current Indian Government’s claim https://www.indiatoday.in/india/story/demonetisation-ended-terror-funding-stone-pelting-parrikar-351965-1999-11-30 in November 2016, for instance, that demonetisation would put an end to stone-pelting because Kashmiri youth pelted stones (even at the risk of blinding and death) at police and paramilitary vehicles for Rs 500 notes from Pakistan. The late Shujaat Bukhari had been sharply critical not only of civilian killings by India’s armed forces, but of the the spate of encounters with militants celebrated by much of the media in India. Blaming India’s “policy of dismissing the frustration and despondency on the ground as merely Pakistan-sponsored,” Bukhari had concluded, “Killing militants has come at a huge cost. The forces may kill militants but will not kill the ideas behind militancy. The past 27 years have shown that repeatedly.”

Note: a ‘Control+F’ search command on Bukhari’s piece, as in the UN report, does not yield any results for the term “terrorism/terrorist.” Both have chosen to describe, analyse, and understand the situation using the far less “loaded” vocabulary of armed conflict, recognising that the huge civilian support for militancy in Kashmir makes it, in the main, a political issue. This, they did without in any way condoning or making excuses for acts of violence against civilians and non-combatants. In what way can Bukhari’s choice of words make him “sane and reasonable” while the UN report’s choice of words makes it biased and “airy-fairy”?

The Raw Nerve: Self-Determination

Finally, we come to the heart of the problem: the part of the UN report that has really touched a nerve among its critics. The report reiterates the principle “that the realization of right to self-determination is “an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights”.” And it then goes on to ask both India and Pakistan to “Fully respect the right of self-determination of the people of Kashmir as protected under international law.”

Gupta says this recommendation is such a grave provocation that India can either ignore it as beneath notice, or declare war over it. War with whom? That’s not clear since Gupta admits that Pakistan too is not happy about the principle of “right to self-determination” for the people of Kashmir since this might expand the choices to include “independence”.

Article I of the UN Charter and the Statue of the International Court of Justice https://treaties.un.org/doc/publication/ctc/uncharter.pdf affirms that the purpose of the UN is “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.” Article I of the UN Covenants on Civil and Political Rights; and on Economic, Cultural and Social Rights respectively declare that “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

India is a signatory to these Covenants; but India squares these international commitments with its position on Kashmir by interpreting the Covenants to be relevant only in the context of peoples under colonial rule, thus preventing peoples in sovereign nations from being able to claim self-determination as a right.

The only problem is that India has not been especially consistent with this rigid interpretation. When Bangladesh waged a battle for “liberation” from the sovereign nation of Pakistan, India was only too happy to offer its moral and military support. In doing so, India certainly supported the right of Bangladeshi people to self-determination. India’s attitude to the self-determination struggle of the Naga people, too has been distinct from its attitude towards the struggle in Kashmir. Governments of India, for instance, do not insist so emotionally on terming the Naga leadership as “terrorists” with whom no talks or negotiations are possible till they disavow the very principle of self-determination.

Human Rights Abuses

Finally, why are the Indian Government and most Indian commentators unwilling even to address that part of the UN report that details the well-documented human rights abuses by India’s armed forces in Kashmir?

The argument is that India is quite capable of addressing and redressing these abuses through its own judiciary and other institutions and does not need to legitimise UN scrutiny and pressure. The problem here, of course, is that India has laws like the Armed Forces (Special Powers) Act (AFSPA) that provide impunity from prosecution to armed forces accused of murder and even rape. And India is unwilling even to consider the UN report’s recommendations to “urgently repeal” AFSPA.

It is significant that during the Universal Periodic Review (UPR) of India’s human rights record in 2017 conducted by the UN Human Rights Council, the current Government had reassured the Council that there was an “on-going and vibrant political debate” in India about whether “AFSPA should be repealed.” In international bodies, the Government of India cites “vibrant political debate” to argue that international scrutiny or pressure is unnecessary given India’s own robust democracy and freedom of expression. But those of us in India who conduct this “vibrant political debate” are routinely subjected to abuse and the threat of violence, by representatives of the Government, ruling parties, and influential media anchors who brand us as little different from terrorists!

Those who advice raising “human rights abuses” of Kashmir within Indian institutions without touching the basic political issue of self-determination are being disingenuous. In 2016, when I visited Kashmir as part of a team of activists and journalists from India, I was present at our meeting with Nizamuddin Bhat, a leader of the PDP, the party which till the other day shared power with the BJP in Kashmir, and which has the reputation of being sympathetic to “separatists.” Bhat made it very clear that he was against any measures to redress human rights abuses (such as repealing AFSPA, amnesty to youth arrested for pelting stones, or even release of innocents arrested on false charges) because this would embolden the political movement for “Azaadi” (independence). He said “If AFSPA were to be revoked people would feel a sense of victory and achievement...If innocents are released, if amnesty is announced, does that yield benefit to the system and society?” (‘Why Are People Protesting in Kashmir? A Citizens’ report on the violation of democratic rights in the Kashmir Valley in 2016’, May 2017)

In the past four years, this situation has become more acute. In Indian public and political discourse, the celebration of acts of torture, humiliation, abuse, and violence against Kashmiri people both in the Valley and outside it, has become so open, unashamed, and loud, that it has become difficult and dangerous even to criticise even the most blatant human rights abuses. The only hope now is that closer international scrutiny and pressure can, to some extent, curb the exhibitionist orgy of violence by Indian forces in Kashmir.

An Appeal to Reason And Sanity

The UN report, in this climate, is an unemotional appeal to reason and sanity. Those lamenting the loss of the voices of reason and sanity in Kashmir should, at least, not dismiss this report in such haste. As an Indian citizen, I see this report as an invitation to acquaint ourselves with the internationally recognised principles of “self-determination” and “human rights”; acknowledge the heart of the Kashmir problem as a political dispute rather than as “terrorism”; and recognise Kashmiri people as key stakeholders in a solution to the dispute. At the very least, Indians must read the UN report respectfully if not uncritically, and demand that our Government engage with it and allow a team of UN human rights defenders to access Kashmir. One hopes that the Government of India will, at least, refrain from criminalising Indian citizens who translate the UN report into various Indian languages in order to make it available for reading and discussion.