Statement of Solidarity with Kashmiri Civil Society

In light of the one-year anniversary of the Indian government’s revocation of Indian-occupied Jammu and Kashmir’s (“Kashmir”) autonomy, which accelerated numerous violations of international human rights and humanitarian law, including a settler colonial project that inexorably fuels the possibility of violent demographic change in Kashmir and diminishes Kashmiris’ right to self-determination, we the American Muslim Bar Association (AMBA) along with Stand with Kashmir (SwK), and the undersigned civil and human rights organizations, legal associations, and policy institutes, denounce the seven decades-long military occupation of Kashmir, and stand in solidarity with the people of Kashmir. Forcible demographic change, through state-sanctioned violence against, and indefinite detention of, indigenous Kashmiris threatens to weaken their’ ability to exercise their right to self-determination, destroy Kashmir’s distinct cultural identity and languages, displace indigenous Kashmiris from their lands, and permanently harm Kashmir’s ecology.

We amplify the demands of Kashmiri civil society [1] and call on U.S. elected officials to condemn Prime Minister Narendra Modi, and his Hindu-nationalist Bharatiya Janata Party’s (BJP) human rights abuses, including their move to permanently and irrevocably annex Kashmir in line with their election promises and their Hindu supremacist ideology. The United States must urgently employ effective countermeasures to hold the Indian government accountable, co-sign the demands of Kashmiri civil society organizations and tailor their application in the U.S. by:

1. Affirming Kashmiri people’s right to determine their future democratically, free of coercion and demographic engineering, under international law as reiterated in various resolutions including most definitively in the UN Security Council Resolution 47;

2. Demanding the immediate suspension of draconian laws such as the Armed Forces Special Powers Act (AFSPA) and the Public Safety Act (PSA) which are in contravention of several international conventions to which it is a party, that allow the Indian government and its armed forces to carry out arbitrary detentions and extrajudicial executions without due process and an opportunity for redress, and the immediate release of Kashmiri political prisoners including civilians and children detained as a result of these laws [2];

3. Applying Section 620M of the Foreign Assistance Act (the “Leahy Law”), to ensure that no US military-security funding goes toward furthering the de facto Indian occupation of Kashmir nor to furthering human rights violations in Indian-administered Kashmir; and applying Section 4 of the Arms Export Control Act of 1976 (the “AECA”), and cease or reduce any U.S. military-security funding for any of India’s military actions that are outside the scope of the AECA, including defense or military funds not being used for internal security or legitimate self-defense; banning arms trade, and ending cooperation with India and its armed forces including through the Quadrilateral Security Dialogue, until the Indian government moves to completely demilitarize and remove its armed forces from Kashmir [3]; and

4. Suspending existing trade and cooperation agreements with India, including any trade agreements still being negotiated until India ceases all human rights violations in Kashmir, including violations of the right to self-determination, and the right to privacy and freedom from interference in Kashmiris’ lives, safety, homes, and communications. [4]

India’s Violation of United Nations Security Council (UNSC) Resolutions and International Law Erodes A Safe & Secure Future for Kashmiris

On August 5, 2019, the Indian government moved to further dilute the import of several U.N. Security Council Resolutions, in particular, Resolution 47 by revoking portions of the Indian Constitution that codified Kashmir’s semi-autonomous status (hereinafter “August 2019 revocation”)[5]. Resolution 47 calls for a framework for Kashmiris to exercise their right to self-determination by which a referendum must be held for Kashmiris to democratically determine their political sovereignty. [6]

The aftermath of this revocation has been followed by an intensified clampdown on freedom of movement and human rights over the last year. Since then, thousands of Kashmiri civilians, including children as young as 9 years old, were arrested and many are still arbitrarily detained without charge or being held as political prisoners. A number of journalists have been arrested and others have been charged with "anti-national" media posts for bringing attention to human rights abuses against Kashmiris. Kashmir’s economy has been devastated with estimates of $5.3 billion in losses along with the loss of half a million jobs. There have been continued barriers to consistent and viable access to the internet and phone communication in the region, which has stifled dissent in violation of the International Convention on Civil and Political Rights [7] and has exacerbated the current pandemic [8] as officials are unable to reliably disseminate key medical information [9]. Schools and colleges were closed even prior to the current pandemic, depriving over one million Kashmiri students of access to basic education and producing long-lasting feelings of anxiety, insecurity, and helplessness. The forced closure of educational institutions without meaningful alternatives is crushing a generation of Kashmiris and stripping them of meaningful opportunities to secure a better future.

Background: India’s Settler Colonialism & Disenfranchisement of Indigenous Kashmiris

To make matters worse, on March 31, 2020, the Indian government passed a series of domicile laws, which arbitrarily revoked the residency rights of indigenous Kashmiris and created a process for non-Kashmiris to obtain permanent residency in Kashmir through domicile certificates [10]. Since the implementation of these domicile laws, approximately 400,000 Indian nationals who live in Kashmir regardless of whether they are indigenous Kashmiris were granted domicile certificates allowing them permanent residency rights in Kashmir. In fact, the new domicile certificates retroactively allow Indian nationals to permanently reside in and buy land in Kashmir, if they had already resided in Kashmir for fifteen years during their lifetime or studied there for seven years. This was a legal impossibility prior to the extinguishment of Kashmir’s semi-autonomous status last year. Now, millions of people are already eligible furthering the prospects of ethnic cleansing and territorial annexation. However, Kashmiri Muslims originally from Indian-occupied Kashmir who now live across the Indian line of control in Pakistan or Pakistani-occupied Kashmir cannot take part in such a process of residency acquisition as they are denied their right of return, which was codified in the now abrogated Jammu and Kashmir Grant of Permit for Resettlement in the State Act [11]. These are deliberate tactics taken by the Indian government to demographically engineer the ethno-religious landscape of Kashmir in favor of the Hindu-nationalist regime.

By incentivizing population transfers, the domicile laws will advance the right-wing Hindu nationalist government’s settler colonial project and plans to permanently alter the Muslim-majority demography of Kashmir. These laws will ultimately obviate indigenous Kashmiris’ ability to exercise their right to self-determination and violate key provisions under international humanitarian law (IHL) [12] that prohibit occupying nations from altering local laws without consent, claiming sovereignty over occupied territories like Kashmir as per customary humanitarian law and peremptory norms of international law i.e. jus cogens that apply to occupied territories and peoples [13].

The Indian government’s blatant attempts at demographic engineering are widely seen as preemptive moves to alter the results of a future referendum, if ever held, in its favor. In the interest of promoting and upholding international law, the United States should demand that the Indian government cease and desist its operation of this scheme, withdraw its armed forces from Kashmir, and call for the application of UNSC Resolution 47, which provides that the disputed status of Kashmir should be addressed by demilitarization of the region followed by a “fair and impartial plebiscite.”

The policies to transfer non-Kashmiri Indian nationals to Kashmir through the extension of residency rights and financial incentives tilt the scales in the Hindu-supremacist regime’s favor. The policies are further “depriving peoples of Jammu & Kashmir of their integrity as distinct peoples, and of their cultural values or ethnic identities” [14] while championing assimilation into Indian national identity and way of life without the consent of Kashmiris. Such actions are likely to run afoul the principles detailed in the framework of the UN Declaration on the Rights of Indigenous Peoples, 2007. This critically includes land rights for indigenous Kashmiris (including reparations in the form of “just and fair compensation”, or return of land i.e. Article 10) and environmental rights, centering around water (Articles 26-30, and 32). Kashmiris also depend on water from the Indus river, which has long been at the center of a dispute between India and Pakistan. Since the August 2019 revocation, the Indian government has been able to exert more control over the river, diverting its course via dams and leaving many Kashmiris languishing in a state of helplessness, poverty, and despair. Furthermore, the Indian army was recently granted authority to declare any land in Kashmir as strategic and take it over without needing to obtain a “no-objection certificate” as previously required. Thus, there are already plans underway by the Indian-occupying government to make housing colonies for non-Kashmiris, causing fears of the first wave of colonial settlements.

India’s Application of its Draconian Legislation to Arbitrarily Detain & Violate Kashmiris’ Due Process Rights Violates International Law

For the past year, Kashmir has been on genocide alert by 'Genocide Watch.' In the first half of 2020 “at least 32 civilians in J&K” were subject to extrajudicial executions [15]. The Cordon and Search Operations (CASOs) have also carried out at least 107 terrifying raids of people’s homes in Kashmir, destroying scores of civilian properties and rendering Kashmiris homeless in the midst of a global pandemic. The Armed Forces Special Powers Act (AFSPA) empowers the Indian Armed Forces to commit these reprehensible acts by “offering sweeping legal cover to arrest without warrant, shoot-to-kill, and destroy property.”

The Indian government has also weaponized its military personnel and law enforcement agencies to administratively detain an estimated 5,000-13,000 Kashmiris including political workers, activists, students, business leaders, lawyers, human rights defenders, and teachers without charge or due process under the pretext of security concerns. Over 144 minors as young as nine years old were also arbitrarily detained, 34 of whom were slapped with violations under draconian laws like the PSA (Public Safety Act). These laws often deprive Kashmiri civilians of due process, by denying them access to legal counsel and information about the charges levied against them. Such blatant denials of due process are in contravention of Articles 9 and 10 of the Universal Declaration of Human Rights (UDHR), Article 9 of the International Covenant on Civil and Political Rights (ICCPR) and Article 37 of the Convention on the Rights of the Child. A denial of due process is an indication of tyranny because it allows for those in power to abuse people, especially occupied communities. Adherence to principles of due process is a marker of a just society, and these principles are woven into legal systems to ensure the rights and liberties of people are protected. The United States must wholeheartedly condemn India’s blatant disregard for this fundamental of a free society.

India’s Settler-Colonial Actions Violate Civil & Economic Rights of Kashmiris

Kashmir’s economy has been devastated by the complete lockdown which has caused every business to see at least a 50% drop in earnings, and the unemployment rate in Kashmir hovers around 20%. Yet, the Indian government continues to allocate major tracts of occupied land in Kashmir for global investors and Indian industrialists without the prior informed consent of, or just compensation to, indigenous Kashmiris. While non-Kashmiri settlers are likely to build residential and commercial settlements, in what the Indian government calls an “economic paradise for investors” with the backing of approximately 800,000 Indian military personnel, Kashmiris face lack of access to basic necessities and economic collapse making it impossible for Kashmiris to purchase indigenous land. This, while India continues to shop the land to outside investors and the world largely remains silent as Kashmiris struggle to survive [16]. In addition, the Indian government aims to undermine the rights and privileges of Kashmiris to employment in the public sector and admission in institutions of higher education [17]. Specifically, the imposition of these lockdowns and curfews have devastatingly left Kashmiris without reasonable access to employment and livelihood. India’s settler-colonial project has caused economic devastation to Kashmir in violation of the economic rights of Kashmiris as laid out by the United Nations Office of the High Commissioner for Human Rights.

Conclusion

U.S. elected officials must urgently take the aforementioned corrective measures to send a clear message to India that the United States no longer condones or tolerates its violations of international law in Indian-occupied Kashmir. We must end the culture of silence and our inaction surrounding India’s human rights abuses, state-sanctioned violence, and settler-colonialism against Kashmiris, and move toward collective liberation [18].

In Solidarity,

American Muslim Bar Association

Stand With Kashmir

Project South

Adalah Justice Project

Justice For All

Hindus for Human Rights

Polis Project

Palestinian Youth Movement

Palestine Legal

ICNA Council for Social Justice

Justice for Muslims Collective

Council of American-Islamic Relations (CAIR)

South Asian Americans Leading Together (SAALT)

United States Campaign for Palestinian Rights (USCPR)

Black Women Radicals

Footnotes

[1] Kashmiri scholars and experts have highlighted the urgent need for the international community including the United States to protect the historical rights of Kashmiris with immediate effect. Kashmir Scholars seek immediate intervention of the United Nations Security Council on the introduction of new Domicile Law in Jammu and Kashmir, Kashmiri Scholars Consultative and Action Network, April 6, 2020.

[2] See Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948)(Articles 9 and 10 require that individuals must free from arbitrary detention and to a fair and free public hearing by an independent and impartial tribunal); Article 9 of the International Covenant on Civil and Political Rights, Dec. 16, 1966 999 U.N.T.S. 171; S. Exec. Doc. E, 95-2 (1978); S. Treaty Doc. 95-20; 6 I.L.M. 368 (1967); Article 37 of the Convention on the Rights of the Child, Nov. 20, 1989 1577 U.N.T.S. 3; 28 I.L.M. 1456 (1989).

[3] An arms trade ban and revocation of military-security cooperation with Israel, as an effective countermeasure pursuant to the UN’s Responsibility of States for Internationally Wrongful Acts in Chapter II to end its gross violations of international law are lawful sanctions under the UN International Law Commission and are proportional to the gravity of India’’s violations of international law against the people of Kashmir. These sanctions would not constitute threat or use of force and do not violate humanitarian obligations or fundamental human rights.

[4] See e.g. S/RES/232 (1966) (Economic sanctions are a lawful responsive measure under international law and legal norms to deter state and private actors from continuing human rights violations); See also H.Res.745 (Urging the Republic of India to end the restrictions on communications and mass detentions in Jammu and Kashmir as swiftly as possible and preserve religious freedom for all residents). See also Project South, Solidarity with Kashmir (“We reject any efforts by civil society organizations, governmental actors, elected representatives, or businesses in our own communities to engage with or have normalized relations with the Indian government until Kashmiris are granted self-determination.”)

[5] India’s constitutional absorption of occupied Jammu and Kashmir in the 1950s remains illegal under international law because the princely state (that includes Azad Kashmir and Gilgit-Baltistan in Pakistan) was to decide its own fate through a plebiscite carried out, as outlined in Resolution 47, under the auspices of the United Nations Commission for India and Pakistan (UNCIP) formed under UN Security Council Resolution 39. Additionally, the Indian government’s unilateral actions also violate the Shimla Agreement, a bilateral treaty between Pakistan and India, entered into in 1972, after the promulgation of Article 370 and 35-A, and which prohibits all changes to the status quo over Kashmir affected by either nation without mutual resolution.

[6] See UNSC Resolution 38 (17 January 1948) (recognizing the Kashmir conflict as an international territorial dispute),See also UNSC resolutions (including Resolution 47 (21 April 1948), Resolution 51 (3 June 1948), Resolution 91 (30 March 1951), Resolution 96 (10 November 1951), Resolution 98 (23 December 1952), Resolution 122 (24 January 1957) and Resolution 126 (2 December 1957)).

[7] The stifling of dissent and free flow of information in Kashmir allows the Indian government to commit widespread human rights abuses and state-sanctioned violence without accountability. Moreover, it is a violation of the Kashmiri people’s right to free speech, freedom of expression, and freedom of communications as enshrined under The International Convention on Civil and Political Rights.

[8] Despite these dangerous implications, the Indian government announced that 4G internet would not be restored in the region for the foreseeable future. DNA Web Team, No 4G internet in Jammu and Kashmir for now, Centre tells SC, DNA India, July 24, 2020 (The International Federation of Journalists (IFJ) has unequivocally stated that internet shutdowns “have emerged a significant tool of censorship by governments which are increasingly utilizing shutdowns under the guise of security.”)

[9] Niha Masih, Shams Irfan and Joanna Slater, India’s Internet shutdown in Kashmir is the longest ever in a democracy, Washington Post, December 15, 2019 (There are reports of social media users assaulted by Indian armed forces for using virtual private networks to access non-government approved websites and social media); Resources for indigenous Kashmiris are already limited due to the ongoing military occupation and the communication blackout only exacerbates the impact of the COVID-19 pandemic in Kashmir; Conversation with U.N. Special Rapporteur David Kaye: COVID-19 and Freedom of Expression, Just Security, May 21, 2020 (Recently David Kaye, the U.N.’s Special Rapporteur on Freedom of Opinion and Expression, criticized the Indian government for taking “ever harsher measures in Kashmir, limiting the flow of information in ways that clearly interfere with basic access to public health strategies.”)

[10] Vijaita Singh, Domicile Rules for J&K, The Hindu, May 23, 2020; Furthermore, the children of Indian central government officials are also eligible, even if they never resided in Kashmir, as are non-Muslim refugees and asylees from Pakistan seeking asylum in India.

[11] Using the Jammu and Kashmir Reorganisation Act, 2019, the BJP revoked the Jammu and Kashmir Grant of Permit for Resettlement in the State Act, which previously allowed Kashmiris who fled to Pakistan between 1947 and 1954 the right of return and resettlement in Indian-occupied Kashmir.

[12] The treaties governing the conduct of nation states involved in occupation are the Hague Regulations of 1907, the Fourth Geneva Convention of 1949 (GCIV) and certain provisions of the First Protocol of 1977 Additional to the Geneva Conventions of 1949 (to which India is notably missing as a party while 174 states have ratified it). Specifically, under Article 49 of the GCIV, an “occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies.”, leaving India in violation of the Convention. The Indian government’s failure to ratify these treaties evidences a desire to evade responsibility and accountability to international actors for its actions in an occupied territory like Kashmir.

[13] Changing the Demographics of Indian-Occupied Jammu and Kashmir: Understanding the Domicile Laws, Stand With Kashmir; Mirza Saaib Beg, J&K's New Domicile Order: Disenfranchising Kashmiris, One Step at a Time, The Wire, May 30, 2020; Ashutosh Sharma, Kashmir domicile law raises fears of losing land, culture, Reuters, July 27, 2020; Census Organization of India, Jammu and Kashmir Religion Census 2011 (As per the last census, the former state of Jammu and Kashmir, Muslims form the majority at 68.3% and Hindus form 28.4% of the total population).

[14] Kashmiri Scholars Network, Kashmiri Scholars Seek Immediate Intervention of the United Nations Security Council on the Introduction of new domicile law in Jammu and Kashmir.

[15] Jammu Kashmir Coalition of Civil Society (JKCCS) and Association of Parents of Disappeared Persons (APDP), Six monthly review of human rights situation in Indian administered Jammu and Kashmir (January to June 2020).

[16] Mudasir Ahmad, Under Fire, J&K Govt Plays Down Decision to Give Armed Forces More Building Rights, The Wire, July 20, 2020.

[17] Ashutosh Sharma, Kashmir domicile law raises fears of losing land and culture, Reuters, July 27, 2020.

[18] See Stand with Kashmir, Prominent Activists Stand with Kashmir.