Qualifying the Crime in Occupied Kashmir: High Time to Call A Spade A Spade

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“How carelessly imperial power vivisected ancient civilizations. Palestine and Kashmir are imperial Britain’s festering, blood-drenched gifts to the modem world. Both are fault lines in the  raging international conflicts of today.” Arundhati Roy

By Marium Fatima

In January, this year I witnessed Judge Abdul-Qawi Yusaf, President International Court of Justice, Hague, delivering the final verdict, which in my personal view is a provisional order and not even close to being final, on Gambia’s case against Myanmar for committing genocide against the Rohingya.  The years-long case was the first step, which I would rather call a baby-step to hold Myanmar accountable for the serious situation faced by Rohingya people. Sitting in the Great Hall of Justice with my Indian colleagues, a glaring question popped in my mind that why does it require an international court to give provisional orders for ensuring the preservation of evidence to qualify a black and white situation as genocide under genocide or Geneva convention? Why the international legal regime is slow to determine grave humanitarian crisis as an established crime while humanity languishes helplessly for years waiting for a messiah to wrest it from the grip of oppression? This ICJ provisional ruling strikes me slightly as an inelegant metaphor; that is telling a ‘murderer’ to stop killing and also preserve all evidence of his crimes committed in the past. Drawing on the parameters of this case, and Genocide Watch, most recent genocide alert on Indian Occupied Jammu and Kashmir, I wonder that why the international community is beating around the bush and not direct enough to qualify the crimes committed by Indian government in Kashmir. Though the Indian crimes in Kashmir are an open and shut case, but being a scholar of law I believe that establishing an academic legal discourse is pertinent. I consider that the model terminology best suited to international law of discrimination and persecution, can be weighed on the scale of the works of Dr Gregory Stanton, President Genocide Watch, which proposes 10 embryonic stages of genocide, aptly utilized here to test the case;

  1. Classification: There is a religious classification between Indian armed forces (Hindu and Sikh) constituting ‘Us’ Versus  the Kashmiri Muslim civilians, often termed as constituting ‘separatists’ or ‘them’.
  2. Symbolism: Excessive use of saffron colored flags by right-wing nationalist and the Indian tri-colored flag by Hindu population and armed forces as opposed to red flag representing IOJK ,  conveys strong message of gloom and doom for Kashmiri Muslims.
  3. Discrimination: Earlier Congress and BJP government, placed the indigenous Hindu Pandits (minority) belonging to Jammu in a politically, economically and socially advantageous position as against the majority Kashmiri Muslims. Frequent unlawful detention, rape, search operations, deprivation of freedom of movement is a norm for violating civil and political rights of Kashmiri Muslims,   because they are deemed a threat to national security and their loyalties to Indian state are doubted.
  4. De-Humanization: Kashmiri Muslims are frequently tagged as ‘separatists’, ‘insurgents’ ,‘terrorists’ and ‘criminals’ in political discourse while theatrical projection in cinema often shows them as anti-state( India) and anti nationalist ( as if India denotes one nationality for Kashmiris). Indian media and political discourse often vilifies Kashmiris, associating them with terrorism and radicalism. Hate speech against Kashmiri Muslims in the garb of ‘concern for national security’ by political leadership is a standard in Indian society.
  5. Organization: The RSS cadres have strong support base in the  Hindu majority Jammu area often mobilized into violent communal clashes with Muslim Kashmiris. RSS being sister organization of Vishwa Hindu Pareshad VHP, a banned extremist and terrorist outfit by UN is involved in massacres of Muslims in Kashmir. The organization is known to incite mob violence , lynching against Muslims across India.
  6. Polarization: Hate speeches by BJP and RSS cadres have incited frequent riots between the minority Hindus and majority Muslim Kashmiris. BJP has triggered the Hindus (mobilized by RSS) to use intimidating tactics against Muslims, silence opposition under threats of riots, and broadcast of polarizing propaganda. The right-wing government has segregated the historically unified state territory into separate union territories of Ladakh and Jammu and Kashmir in order to finish the geographical status and demographic weight for political gains in elections.
  7. Preparation:  The political discourse of the BJP leaders towards the issue of Kashmir is very hostile and aggressive in the wake of militant attacks on the Indian military personnel in Uri and Pulwama, to appease their electoral support base in the rest of the Indian state. The leadership has made use of words ‘The final solution’ for the matter which denotes that Hindutva nationalists are ideologically and strategically influenced by Nazi policy towards Jews. However, there is a use of euphemisms such as ending separatism, counter-terrorism, national integration and infrastructure development to cloak the ill intentions of  Indian Government. Kashmir has become one of the most heavily militarized zone in the world with the presence of one million personnel of Indian armed and paramilitary forces who have completely locked down the valley in a “Grand Curfew” which may entail the same results as Sarajevo in Bosnia.
  8. Persecution: The Kashmiris have faced a systematic persecution, lock down for months, rape, torture, extra judicial killings, unlawful arrests of young boys during search operations, rampant humanitarian crisis of missing persons and a type of structural violence which has existed for decades in the form of rigged elections, arrest of political leadership, clamp down on Kashmiri nationalists as ‘terrorists’ and inhuman treatment of prisoners.
  9. Extermination: In the last three decades, Indian armed forces have carried out multiple massacres of civilians, and crackdown on indigenous fighters struggling for the rights of Kashmiri people. After August 5 last year , the blanket lockdown of the valley of more than 8 million people has resulted in extreme violation of human rights, death of sick people, lack of access to life sustaining facilities. I dare contend that Indian Government is deliberately trying to create refugee crisis, so that the Kashmiri Muslims would attempt mass exodus into Pakistan Administered Kashmir, a strategy to rid India of Muslims.
  10. Denial: BJP Government has reached the final stage of persistent denial of the massacres, lockdown, the highhanded treatment meted out to Kashmiri people by Indian armed forces and justifies the entire legal battle (lawfare) against Kashmir in the name of ‘bringing prosperity’ and ‘ending terrorism’. This denial of atrocities by Modi regime is the most concrete indicator of genocide and shifting the blame on the victims is another recurrent feature of this stage of genocide.

The GOI has tried to hide the impunity of Indian armed forces through a draconian law, Armed Forces (Special Powers) Act,1990 which give special powers to armed forces ‘to enforce law and order’ in ‘disturbed areas’ and protects the armed forces against any prosecution for charges of rape, murder and arrests. Pertinently the political discourse often tags the indigenous struggle for the rights of Kashmiri people as ‘terrorism’.

India as an occupying power in violation of Geneva Conventions has clearly trespassed institutional boundaries in Occupied Kashmir which needs a prompt intervention of international community

Kashmir on Political Touch stone

India as an occupying power in violation of Geneva Conventions has clearly trespassed institutional boundaries in Occupied Kashmir which needs a prompt intervention of international community instead of an all-attendant sensational and popular ICJ decisions, which in the end erodes the capacity and legitimacy of international law  and the larger accountability drive( in my view, pointless) after the commission of genocide. Recent unconcealed shift in foreign policy of Gulf countries towards India and moderation on question of occupied Palestinian territories , coupled with  Trump administration’s recognition of Jerusalem as Israel’s capital challenges the existing legal frameworks, steering the debate to a big question mark on effectiveness of international law in the sphere of international power politics.

RSS, strikingly similar to German Nazi party, is an ideological parent of current Right-wing ruling party, has disappointingly headed Indian secularism on a proto-fascist trajectory

RSS, strikingly similar to German Nazi party, is an ideological parent of current Right-wing ruling party, has disappointingly headed Indian secularism on a proto-fascist trajectory. The right of self-determination of Kashmiri people and the politically frozen territorial dispute has been compounded by the abrogation of article 370 which controversially established a relation of the autonomous state with India.  India persistently lobbied for the world community to recognize the massacre of Jalianwalan Bagh (Amritsar massacre 1919) as a genocide of unarmed protesters in the indiscriminate fire ordered by General Reginald Dyer in Colonial India , likewise everyday for unarmed non-violent Kashmiri protesters is a commemoration of a massacre and a genocide.  Kashmiri people are simply asking for political freedom, human rights and substantive democracy however things cannot move on until Indian Government acknowledges the grave human rights violations and apologize to the people of Kashmir for the well-thought-out Genocide.

Politically, Hindu right-wing government shows a  lack of Andreia, ‘taking the fight to enemy’ where the  enemy is one’s own  ignorance and foolishness in this case and Phronesis, ‘prudence’;  the two great concepts of virtue which are absent in current Indian politics. Hindu Nationalists have made a “Sudden dash” for instant social-divisions as the shortest route to acquire political acceptance, tragically suggesting  that Indian politics is short of Machiavellian virtue, Intellect plus force. While the world observes in a criminal silence, Indian politics is dominated by intolerant elements patronizing inter-communal conflict; signifying Political shortsightedness and weakness. I would contend that, the region is potentially ripe for a ‘communal genocide’ which the world needs to prevent without further ado instead of allowing the crisis gain magnitude in a legal rag tag on ‘toothless’ international judicial forums.

Marium Fatima is a Lecturer at National Defense University and also pursuing a PhD Degree in Peace and Conflict Studies from National Defense University (NDU), Islamabad, Pakistan