Baber Ali Bhatti's Blog

Blow to International Humanitarian Law

June 4, 2018

International Humanitarian Law (IHL) is applicable on both international and non-international armed conflicts. Given the Kashmir issue, this law, being the major component of international law, has a wider scope and germane applicability on India despite well-staged encounters and operations by its armed forces. The status of Kashmir and associated controversies cannot be amalgamated with power abuse and unabated human right violations of Kashmiri people. Abuse of power by Indian forces while treating Kashmiris and the political status of Kashmir must be seen with separate lenses.

It cannot be substantially rebutted that independence movement in Kashmir is indigenous in nature and all efforts to crush this movement by Indian forces axiomatically result in violent conflicts. The height of conflict can be estimated through these facts and figures. According to different Kashmir media services, Indian forces have killed 94,363 Kashmiris since 1989. Astonishingly, 8,043 killings out of total were custodial. About 134,387 civilians were arrested and 106,055 structures burned or destroyed. 10,175 molestation or rape cases were reported during this period. According to a report, Kashmir’s northern districts are filled with unmarked graves of Kashmiris.

Human Rights Watch conducts regular, systematic investigations of human rights abuses in countries around the world. It addresses the human rights practices of governments of all political stripes, of all geopolitical alignments, and of all ethnic and religious persuasions. Human Rights Watch for Asia also upheld these reports on its web-portal: “Conflict in Kashmir is an incarnate picture of the vicious treatment of Indian security forces incorporating the massive violations of IHL.”

Geneva Convention 1949 set the basis of IHL which was passed by the United Nations notwithstanding international mandate. India became the party to this convention in 1950. This convention has the bindery obligation to all states which are party to this convention. Geneva Convention is a series of treaties that provided the set of rules and articles to regulate the armed conflict.

In clause 1 of Article 3 of Geneva Convention, common to all four conventions, it is clearly mentioned that “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria”. Contrary to the clause, Indian law enforcement agencies continued to provide inhuman treatment to civilians in the form of massive crackdowns and extrajudicial killings.

In clause 2 of Article 3, wounded and sick shall be collected and cared for: (i) An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. (ii) The Parties to the conflict should further endeavour to bring into force, using special agreements, all or part of the other provisions of the present Convention.

Furthermore, India never allowed any humanitarian organisation to enter Kashmir valley to provide their services. The International Committee of Red Cross (ICRC) is a unique body having the mandate under international law to work in conflict zones. ICRC provides the medical services and other various services to the wounded, sick and affected people of armed conflicts.

ICRC deposited several requests to Indian authorities seeking permission to enter Kashmir. But the government of India never permitted ICRC to enter, therein, evidently violating the IHL. Moreover, the United Nations Military Observer Groups in India and Pakistan (UNMOGIP) were also denied the entry by the Indian government to prevent these violations to be surfaced.

The international community should play its role to vitalise the international humanitarian law. Kashmir issue must equally be focused. It should be a matter of global concern. Otherwise it may dysfunction international regimes supported by pillars of international law and international mandate. It may existentially lead to a full-blown crisis between two nuclear powers. Moreover, there is an immediate need for mandatory periodical inspection in Kashmir by an independent authority like ICRC or the UN to bar the human rights violations.

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