THE KASHMIRI RIGHT TO SELF-DETERMINATION

The United Nations itself promised the people of Kashmir the opportunity to express their wishes regarding their governance and the international status of their country. Even absent that express recognition of the right to determine their status, the Kashmiri people meet all international law tests for the right to self-determination.

The right to self-determination, a fundamental principle of human rights law, is an individual and collective right to

freely determine political status and to pursue economic, social and cultural development. The International Court of Justice refers to the right to self-determination as a right held by people rather than a right held by governments alone. The right to self-determination is indisputably a norm of jus cogens.

The two important United Nations studies on the right to self-determination set out factors of a people that give rise to possession of right to self-determination: a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self- governance.

The Kashmiri claim to the right to self-determination is exceptionally strong. The area had a long history of self- governance pre-dating the colonial period. The territory of Kashmir has been clearly defined for centuries. Kashmiri people speak Kashmiri, which, while enjoying Sanskrit as a root language as do all Indo-European languages, is clearly a separate language from either Hindi or Urdu. The Kashmiri culture is similarly distinct from other cultures in the area in all respects -- folk-lore, dress, traditions, cuisine. Even every day artifacts such as cooking pots, jewelry have the unique Kashmiri style.

Most important to a claim to self-determination, Kashmiris have a current strong common aspiration for re-establishment of self rule. The Kashmiri people resisted the British, and maintained a degree of autonomy throughout British rule. In 1931 a major uprising of Kashmiris against the British and the British-imposed maharajah was brutally put down. But the "Quit Kashmir" campaign against the maharajah continued into 1946, when the Azad Kashmir movement gained momentum. During the breakup of British India, the Azad military forces began armed attacks against the forces of the maharajah -- prompting the accession to India in exchange for Indian military protection. Resistance to India has continued unabated throughout Indian occupation, with major uprisings in 1953, 1964 and since 1988.

While resistance to India has played a major role in Kashmiri events, there is also forward-looking political leadership with a clear will and capability to carry on the governance of an independent Kashmir. There are a number of political parties in Kashmir that have been active for some time, even though at great risk. Many of the leaders of these parties have spent time in Indian jails, some for many years, merely because of their political views on Kashmir. In 1993 most of the Kashmiri political parties joined together to form the All- Parties Hurriyet Conference (APHC). According to its 1993 Mission Statement, the APHC seeks

to rebuild the Kashmiri peoples' belief in a peaceful resolution, by energetically pursuing such a settlement. Only such a settlement, reached through tripartite negotiations, can . . . provide lasting peace in the region.

Since it formation, the APHC has carried out its mission as promised, sending leaders around Kashmir and around the world to forward dialogue and peaceful resolution of the Kashmiri war. Leaders and representatives of the APHC have regularly attended United Nations human rights sessions, special conferences and the General Assembly. In addition to the exceptionally strong historical basis for self-determination, the Kashmiri people also have a claim based on the repeated agreement of the government of India during the de-colonization process and in the early days of Indian-occupancy that the final disposition of Kashmiri would be decided by the Kashmiri people themselves.

The Indian government backed up its promises that the future of kashmir would be decided by the Kashmiri people with a commitment to a plebiscite under the auspices of the United Nations. The Security Council resolutions cited above indicating United Nations action to settle the Kashmir question were all supported by India as were resolutions of the United Nations Commission for India and Pakistan. For example, on January 5, 1949, India agreed to a Commission resolution stating:

The question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite.

In spite of its public commitment to the UN plebiscite, India has attempted to persuade the international community that the Kashmiri people effectively exercised their right to self- determination and chose to be a part of India. To defend this position, India proposes that its sponsorship of the "All Jammu and Kashmir National Conference" and a "Constituent Assembly" which agreed to accession to India constitutes the plebiscite as envisioned by the United Nations. The United Nations did not agree. The Security Council, in its resolution 91 of 30 March 1951, declared that action taken by the Constituent Assembly "would not constitute a disposition of the State [of Jammu and Kashmir] in accordance with the [United Nations plan]."

India also claims a number of events, including the acquiescence of the Kashmiri people to Indian rule, and validation of Indian rule by various "elections" add up to extinguishment of the right to self-determination. For example, in spite of the refusal of the United Nations to affirm acts of

the Constituent Assembly, India refers to Section 3 of the Constitution adopted by the State Constituent Assembly, which provides that Jammu and Kashmir is "an integral part of the Union of India" as being "inviolable and irrevocable." Additionally, India claims that the participation of residents in Jammu and Kashmir in the 1957 general election reinforces the acceptance of the Kashmiri people of accession to India. In light of the above-cited Security Council resolutions, this claim of India is untenable.

India also maintains that Sheikh Abdullah's election victory in what have been called free and fair elections in 1977 along with his so-called prior acceptance of the 1975 Kashmir Accord constitutes a plebiscite on the Kashmir question. HLP/IED is not persuaded. First of all, the Abdullah campaign did not present accession or the Accord to the voters. Secondly, acceptance of the Accord was not presented on the ballot. Third, there is much evidence that some other leaders of Abdullah's own party disagreed with him on the Accord. Therefore, accession to India cannot be considered to be an essential and absolute position of the National Conference Party at the time of that 1977 election.

HLP/IED is also not persuaded that the Kashmiri people have ever acquiesced to Indian rule and no longer as a people seek a UN-arranged plebiscite. As we set out above, political and armed resistance to Indian rule has continued unabated since 1947. Major mass revolts occurred in 1954 and 1964. Even during periods of less turbulence, there has always been protest. Since 1988 there has been a condition of almost continuous war with ever increasing numbers of Indian military personnel.

In 1996 the people of Kashmir are still under colonial or alien domination, and have not yet had the promised right to decide their governance. They will hold the right to self- determination until such time as they (1) indicate by way of plebiscite their wishes and (2) are afforded their wishes in fact.

Because the people of Kashmir have not yet exercised their right to choose their political status, the government of India does not presently have a permanent legal right to Kashmir. There has been no finding in the international community that grants India the legal right to Jammu and Kashmir currently occupied by Indian forces. On the contrary, the above-cited resolutions of various bodies of the United Nations deny any Indian claim to Jammu and Kashmir, and grant the Kashmiri people the right to decide their own status. Jammu and Kashmir must be considered a non-self-governing territory; India must be viewed in violation of Article 1 (3) of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Political Rights in its refusal to "promote the

realization of the right to self-determination" of Jammu and Kashmir.

THE KASHMIRI WAR AND HUMANITARIAN LAW

The war in Kashmir between the Indian armed forces and Kashmiri resistance fighters automatically invokes humanitarian law. Humanitarian law will remain in effect for the duration of an armed conflict or as long as India occupies Kashmir -- a territory to which it has no legitimate claim. Humanitarian law became applicable in Kashmir in 1947 with the first military actions of the Azad Kashmir forces.

The Kashmiri War is a war of national liberation in defense of the right to self-determination. It is legally invalid to refer to this war as a civil war. Such a characterization would assume that India's occupation of Kashmir is legitimate and the Kashmiri resistance is composed of dissident or opposition groups within the meanings set out in the Geneva Conventions of 1949 Article 3 or Protocol Additional II to the Geneva Conventions. It is also legally incorrect to refer to resistance groups as "terrorists", given their status as military resistors to foreign occupation in a war of national liberation.

The Kashmiri people first formed military units in the late 1940s to defend themselves against the maharajah's forces and then the Indian forces and to vindicate their right to self- determination. At present there are several opposition military factions of Kashmiris resisting India of which the Jammu Kashmir Liberation Front (JKLF) is one of the oldest and widely supported. Our delegate reports that several other groups also enjoy wide following. Kashmiri armed militants operate under their own military commands.

Since the Indian forces entered into combat against the Azad Kashmir forces in 1947, military actions against the Kashmiri people has continued to the present. It worsens in response to renewed demands by the Kashmiri people for their self- determination. Recent renewals of the combat started as isolated acts of violence by the Indian army targeted at Kashmiri mass demonstrations but in 1990 turned into a systematic "reign of terror" with military actions directed at all in the valley. As stated earlier in this report, Indian military forces now number at least 600,000 with credible evidence indicating nearly 800,000 troops.

THE WAR -- EVERYDAY REALITY

The war reaches all parts of Indian-occupied Kashmir. An indication of the degree of military presence is that troops of

the Indian Army and Security Forces are seen everywhere -- frequently behind sandbag barricades. Troops line the roads, stopping vehicles of every type. Our delegates have on occasion been stopped and searched, sometimes two or three times in the same day. It is impossible to go anywhere in Jammu and Kashmir State without being overwhelmed by the sheer numbers of these troops.

During our delegates' long stays, bombing and crossfire was heard almost daily, usually at night but on occasion in daytime. The Kashmiri people are convinced that the Indian Army is trying to incite violent reaction from the armed opposition forces by carrying out military forays into different parts of the major urban areas. Recently, however, the JKLF called for the people to unite and not to react with violence. This resulted in new optimism and a serious call for opposition unity clearly supported by most Kashmiris. The people showed support: at night they banged on pots, pans, drums -- anything that made a noise -- whenever the Indian Army approached. One motive was to express their anger and contempt at the Army, but they have also been motivated out of a desire to protect their defenders. The loud banging alerts the JKLF and other defenders so that they or others suspected of being part of the forces can get away or seek adequate shelter. This "pots and pans" voting continues today.

Another common feature of this overwhelming military presence, witnessed by our delegates, is what are called "crackdowns", in which the Army will surround a particular area, literally sealing it off. The Army will then go through the private residences taking anyone they want (usually young men) and detaining them without formal charges. During these "crackdowns", which occur almost daily in the larger cities, there is frequent raping and looting. Detainees frequently disappear and are presumed murdered. Others who have been released report on and clearly show evidence of torture, commonly carried out by beatings, mutilations and electric shocking. During "crackdowns" the people of the area and those detained are denied medical treatment, even if elderly or pregnant.

A typical "crackdown" occurred September 4, 1993 when 60 young men were taken without charge. During another which took place September 29, 1993, the military forced a Shikara man to paddle all day without food or water. 25 men were rounded up and also denied food or water. Eventually, Army personnel did bring them bread, which they were forced to buy at twice the market price. Sixteen of those detainees were released; the others are being held for ransom. "Crackdowns" continue into 1996 -- in fact our delegates report that the presence of Indian troops is even more pervasive and threatening than in earlier years.

There is also an active arms trade -- the Indian Army confiscates weapons taken from detainees and sells them to the highest bidder. It is discussed as "common knowledge" by Kashmiris that the Border Patrol is bribed to allow arms to cross into Kashmir. This is identified as one of the reasons that the armed opposition to Indian occupancy of Kashmir has a number of different groups. India, of course, is carrying out a "divide and conquer" strategy.

It has become a way of life for the common people to do without the basic necessities of life. Electricity is limited to maybe three nights a week and is almost nonexistent in winter. People in Kashmir report that this is because the 600,000 or so Indian troops take most of the available electricity for their own use. There is also periodic interference with the water supply. On August 19, 1993 the Indian Army bombed the city water supply in the area near Nagin Lake.

Even simple chores such as marketing have become ordeals. People are routinely searched throughout Srinagar. During our most recent mission, our delegates were stopped many times each day and frequently searched. Vehicles of all kinds are stopped -- buses, auto rickshaws, taxis, private vehicles alike -- and the occupants searched. On one occasion, our delegates were returning from one of the local shrines with a friend, and were detained because they still had receipts from the shrines written in Urdu script. Army personnel claimed it was subversive propaganda from Pakistan, and our delegates were held until someone else could be found that could read the receipts. Others less fortunate have been arrested and then tortured under interrogation when found with a Pakistani rupee in their possession. People are also careful not to have any item with "USA" written on it.

Kashmiris rarely can obtain passports. The few that do typically pay exorbitant bribes. Postal service, telephone and fax services and other forms of communication are also severely restricted. The tourist industry is in a major slump, primarily because of the repression and the overall militarization of Kashmir. Those Kashmiris dependent on the tourist trade (tourism and tourism-related business has been a major source of income for many years there) are under extreme economic hardship, and many families try to send someone abroad to send back money so the rest can live.

Children suffer enormously, not the least because the crackdowns and curfews disrupt schools. Many of their schools have been damaged by the war. The Kashmiri people are also heavily concerned with their lakes. There is still a large oil slick on Dal Lake as a result of a bombing raid there several years ago. In that lake and in other lakes, water plants are rapidly filling them in. These plants had been pulled by the roots to clear them. Now, the Indian government does not want to pay for the cleanup, and some years ago brought in machines to cut back the plants. This process leaves the roots intact so that the plants are growing back even thicker. The lakes have not been properly tended since 1989, making future cleanup more costly. Dalal Lake is also reportedly nearly solidified with excess silt -- so much so that cattle can walk on it.

SOME RECENT EVENTS

In August 1994, Indian forces abandoned their bunkers surrounding the Hazratbal Shrine in Srinagar, thus concluding an episode that began in October 1993. Kashmiri groups had maintained that India must withdraw prior to the annual Hindu pilgrimages to the Hindu Amarnath temple.

In October, 1994 India released Shabir Shah from detention. There was great rejoicing in Kashmir, as Shabir Shah is considered by many the Nelson Mandela of Kashmir. Through long years of detention, Kashmiris have held him in high esteem and a symbol for their freedom. Our delegate observed a number of spontaneous celebrations in Kashmir on his release. At around the same time, India also released Abdul Gani Lone and Sayeed Shah Geelani (a leader of the Jamat-e-Islami) who are also political leaders of the Kashmiri people.

In November 1994, four tourists (3 British and 1 American) were released following a raid on villages near Delhi, in India. The tourists had been held for about two weeks, ostensibly to secure the release of some Kashmiris held in Indian jails. The Indian government claims to have received a ransom note from a group calling itself "Al Hadid", not known to have any activity in Kashmir. Our information makes us skeptical of Indian government assertions, and we point out that Kashmiris look to it as a typical Indian action to discredit the Free Kashmir movement.

The Charar-i-Sharief incident took place in May, 1995. Investigations have shown that the Indian forces burned about 3000 houses and 600 shops in ten neighborhoods of the town of Charar-i-Sharief. The Shrine of a highly revered Sufi saint, Shiekh Noor-ud-Din Noorani, was also destroyed, along with the adjoining mosque and religious compound. More than 15 civilians also died, some burned to death and others killed after having been used as human shields by the Indian forces. Fortunately, only about 300 persons were left in the area at the time of the burning, the rest having escaped at the beginning of the siege by Indian forces. An investigation of this incident was carried out by the Kashmir Commission of Jurists Joint Human Rights Committee for Charar-i-Sharief Incident.

During June and July, 1995, 13 rockets fell on Forward Kahuta and Hajira in the Pakistani-controlled side of the cease- fire line.

In the Summer of 1995 Al Faran, another previously "unknown" group, kidnaped five foreigners, and in August 195 executed one of them, Mr. Hans Christian Ostroe, a Norwegian tourist. As of this writing, the remaining persons are still being held. The kidnappers have continued to demand the release of 15 separatist militants from Indian jails. India has said it would consider releasing some militants, but not three Pakistanis who have been identified by the Indians as leading members of Harkat ul-Ansar, considered to be one of the most militant of the pro-Pakistan rebel groups. There are serious doubts about the origin, financing and affiliation of this group as there had been about "Al Hadid". According to extremely credible sources in India, there are Indian-created counterinsurgency groups that are formed and sent into the field to engage in terrorist acts to discredit the Kashmiri people and their leaders and groups. While it is not confirmed that "Al Faran" is one such group, their modus operandi and other factors support such a conclusion.

The All-Parties Hurriyet Conference (APHC) and other Kashmiri groups have condemned the kidnaping and killing and reiterate that they have no knowledge of the Al-Faran group, making more likely that the group has been created by India as part of its counterinsurgency operations. APHC leader Shabir Shah of the People's League called the killing "un-Islamic" and said the only beneficiary of the kidnapping and killing was the Indian Government, which has long accused separatists of human rights violations. He stated further:

"This is sabotage and betrayal of the struggle for which we have fought for so many years . . . "It is a heavy blow to our credibility."

APHC Chairman Mir Waiz Umar Farooq stated "the Hurriyet is shocked beyond words . . . [the murder] is an unpardonable sin and a crime against humanity." Yet another APHC leader, Syed Ali Shah Geelani announced that he has received threatening calls from people identifying themselves as Al-Faran for the denunciations of these events by the APHC. The Hurriyet called on Kashmiris to join a general strike to protest the killing of Hans Christian Ostroe.

Al-Faran has threatened to kill the remaining four hostages -- an American, two Britons and a German -- if New Delhi does not release 15 militants held in Indian prisons. At time of this writing, the hostages are still being held and there are no recent communications with Al-Faran.

In January 1996 there was a long-range rocket attack over the cease fire line into Azad Kashmir which destroyed a mosque in Forward Kahuta killing 19 worshipers and seriously wounding more than twenty others. The attack occurred in mid-day as worshippers were leaving the mosque after noon prayers. A large group had attended prayers because that day was India's Independence Day and the Kashmiris had called for a "Black Day" procession and special prayers for fellow Kashmiris in the Indian-occupied zone.

A second rocket fell away from the mosque and caused no damage. At the same time, a rocket fell on Hajira and killed one person.

On March 6, 1996, Shabir Shah just missed being injured by a gunfire and hand grenade attack by the Indian security forces. Mr. Shah was in Pampore at the time, to investigate destruction of a number of houses in the area and to console the victims. At time of writing there are also credible reports that he had been beaten and he was seen bleeding profusely from a head injury. According to confirmed reports, on March 8, 1996, Mr. Shah and ten associates were arrested in Soline apparently under "preventative custody" orders. They were released later the same day.

Also on March 8, 1996 the Indian Rashtriya Rifles abducted Jalil Andrabi, Chair of the Kashmir Commission of Jurists and one of our delegates to the 1995 session of the United Nations Sub- Commission on Prevention of Discrimination and Protection of Minorities. We hoped that he would be able to attend the 1996 session of the United Nations Commission on Human Rights to present current events to that body. At the time of writing, India denies any knowledge of Mr. Andrabi's whereabouts, in spite of the fact that his abduction by the Rashtriya Rifles was witnessed. However, we are deeply saddened to have just learned that Mr. Andrabi's body was foun on March 27 floating in the Jehlem River in Srinagar with his hands and feet bound up and his eyes gouged out. This was the second attack on Mr. Andrabi in one month: on February 14, 1996 Mr. Andrabi's home was attacked and he barely managed to escape. However, he did manage to photograph the assailants. We view this appalling event as yet one more example of the gross violations of international standards committed by the Indian occupiers of Kashmir.

The recent attacks on Shabir Shah and Jalil Andrabi as well as the obvious targeting of Syed Ali Geelani, Muhammad Yasin Malik and Abdul GAni Lone (all leaders of the Hurriyet Conference) has been denounced by memebrs of the Untied States Congress as "part of a concerted effort to harrass the leadership of the All-Parties Hurriyet Conference which represents the broad spectrum of politial opinion in Kashmir."

[SEE PART III]