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Written by Suhas Chakma, Director, Rights & Risks Analysis Group

India has to guard against international scrutiny on Jammu & Kashmir, which has begun now

Since the abrogation of Article 370 and the subsequent lockdown of Jammu and Kashmir (J&K), India has been under intense scrutiny at the national and international level. 

New Delhi has thus far managed the international fall-out quite well by holding on to its position that issues relating to J&K are internal matters of India. 

The joint statement of Prime Minister Narendra Modi and President Vladimir Putin on “inadmissibility of interference in the internal affairs” has further reinforced this view. The responses of the international community to disputes between neighbouring countries, whether between Turkey and Greece over Cyprus or between Armenia and Azerbaijan over Nagorno-Karabakh, are instructive.  Member states of the UN do not question the political status of a region. It is also unusual to speak against any legislative changes made by a national Parliament affecting a region under its control. Usually, the international community intervenes in specific cases or on patterns of human rights violations arising out of the conflicts.

The real international scrutiny on the lockdown and on mass detentions in J&K, not the region’s status in India, has just started with the 42nd Session of the UN Human Rights Council (UNHRC) in Geneva, Switzerland. 

In her opening statement to the UNHRC on September 9, UN High Commissioner for Human Rights Michelle Bachelet, former Chilean President, stated that she is “deeply concerned about the impact of recent actions by the Government of India on the human rights of Kashmiris, including restrictions on internet communications and peaceful assembly, and the detention of local political leaders and activists”. She “appealed particularly to India to ease the current lockdowns or curfews; to ensure people’s access to basic services and that all due process rights are respected for those who have been detained”. 

Pakistan’s Foreign Minister Shah Mahmood Qureshi in his address to the UNHRC today focused exclusively on J&K and suggested elements for a potential resolution.  While India does not have to worry about Qureshi’s rant, New Delhi will need to worry about the statements of the UN High Commissioner, other member states and the UN independent experts.  The United States has already set the tone by repeatedly expressing its concerns about widespread detentions, including of local political and business leaders, and restrictions imposed on the residents of J&K.

Switzerland in an unprecedented press release stated that ‘the situation in Kashmir shall be discussed during President Ramnath Kovind’s ongoing visit to the country.”

If China were to extend backhand support to Pakistan for a resolution against India, the role of the members of the UNHRC from Latin America, the Caribbean States and East Europe, with whom India has limited engagement or leverage, will be critical. 

Unlike the UN Security Council where a Permanent Member can exercise the power of veto or the UN General Assembly (UNGA), which has 193 members, a resolution at the UNHRC with only 47 members can be relatively easier. 

Further, a resolution is not the only means of the UNHRC. The President of the UNHRC is empowered to make a statement on issues or situation, which has the similar effect as that of a resolution.  Diplomats at the UNHRC have further adopted non-traditional approaches — in July 2019, diplomats of 22 countries wrote to UN High Commissioner Michelle Bachelet regarding the arbitrary detention and restrictions on freedom of movement of Uygurs, and other Muslim and minority communities in Xinjiang and asked China to give “meaningful access” to the High Commissioner to Xinjiang. China was caught completely off-guard. If China can be censured in this manner, there are no reasons for India to be complacent.

The deadline for the submission of draft resolutions at the ongoing UNHRC is September 19, while voting on the draft resolutions will begin on September 26. A statement by the President of the Council can be made at the concluding session itself.  Pakistan has deputed former Foreign Secretary and currently Special Envoy of Pakistan’s Prime Minister, Tehmina Janjua, to the UNHRC to seek a formal decision against India. 

Janjua is an old hand at the UN in Geneva, having served as the First Secretary, Deputy Permanent Representative and Permanent Representative of Pakistan to the UN in Geneva. 

To counter Pakistan, India has sent a high-level team headed by Ajay Bisaria, High Commissioner to Pakistan and Vijay Thakur Singh, Secretary East. 

Most countries expecting serious scrutiny at the UNHRC usually sent the specialists from the foreign ministries given the UNHRC’s flexible approach to censure a member state. 

Though both Prime Ministers, Narendra Modi and Imran Khan, are scheduled to address the 74th session of the UNGA on September 27, the debate on J&K to a large extent would depend on the proceedings of the ongoing UNHRC and the ground situation in J&K.

The most important issue is how and when will India end the lockdown and release detenues? The Supreme Court itself continues to be under spotlight to timely adjudicate on the proportionality and legality of the curfew measures and en masse detention in J&K. 

The final hearing on the writ petition filed by Anuradha Bhasin of The Kashmir Times challenging the curfew measures imposed in J&K is scheduled to be held on September 16.

A slew of other petitions are scheduled to be adjudicated by the Supreme Court and the Delhi High Court in the coming weeks. Once the curfew measures are removed, the right to freedom of movement and freedom of association and assembly are restored, and political and business leaders are released, J&K can explode with massive protests, followed by human rights violations while controlling the situation.  India is expected to face far more serious scrutiny at the United Nations at that time rather than now, and it needs to bear in mind that the UN bodies meet throughout the year. 

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