Dr. Ghulam Nabi Fai
The 98th session of the United Nations Working Group on Arbitrary Detention (WGAD) started on November 13, 2023, in Geneva. It will conclude on November 19, 2023.
The mission statement of the WGAD says, that “It has the mandate to investigate cases of deprivation of liberty imposed arbitrarily or inconsistently with the international standards set forth in the Universal Declaration of Human Rights, or the international legal instruments accepted by the States concerned.” WGAD has five members who are internationally known independent experts on human rights. Currently the Group is chaired by a Malaysian Layers, Ms. Priya Gopalan, an Oxford graduate and International criminal law lawyer, specializing in gender and intersectionality.
Article 9 of Universal Declaration of Human Rights says, “No one shall be subjected to arbitrary arrest, detention or exile.” And Article 9 (1) of the International Covenant on Civil and Political Rights, states, “No one shall be subjected to arbitrary arrest or detention.” So according to international legal instruments, arbitrary detention is a share violation of international human rights law.
The rule 45 of Mandela Rules says, “It provide that solitary confinement should be used only in exceptional cases as a last resort for as short a time as possible and subject to independent review. Indefinite solitary confinement and prolonged solitary confinement, defined as more than 15 consecutive days, are prohibited. The Rules restrict the use of solitary confinement as a measure of last resort, to be used only in exceptional circumstances.”
I would like to present few instances of arbitrary detention in Kashmir for the consideration during 98th session of WGAD. I may add that these instances represent only the tip of the iceberg, the true dimension of which will probably never be known. Hundreds of cases of arbitrary detention go unrecorded as relatives and neighbors are threatened to remain silent or simply made to ‘disappear.’
The Modi Administration in India, aided by more than 900,000 military and paramilitary forces focuses special attention on educated Kashmiris – men and women – who dare to raise their voices. No international human rights instrument condones the laws framed by India to terrorize the Kashmiris. The infamous ‘The Jammu and Kashmir Public Safety Act’ enables the Indian forces’ personnel in Kashmir to detain civilians for up to one year without trial or due process for a wide variety of reasons, including the exercise of free speech. For example, under this act, an individual whose child has been murdered by Indian forces’ personnel and speaks out publicly against India’s campaign of terror can be detained for up to one year without trial for endangering ‘public safety.’ Also, under this act an individual who produces pamphlet or newspapers that advocates the implementation of the United Nations resolutions calling for a plebiscite in Kashmir can also be arrested and detained without formal charge or due process.
Elina Steinerte, Vice Chair of the WGAD and Irene Khan, UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression wrote to the Government of India on June 3, 202, about arbitrary detention and intimidation of journalists covering the situation in Jammu and Kashmir. They particularly mentioned Fahad Shah, Editor of Kashmir Walla; Auqib Javeed, independent journalist; Sajad Gul, freelance journalist; Qazi Shibli, Editor, The Kashmiriyat and the Kashmir Times. They mentioned, “While we do not wish to prejudge the accuracy of the information made available to us, we express serious concern at the reported acts of harassment and seemingly arbitrary detention and criminal proceedings and detentions levied or imposed against the aforementioned journalists, which is reportedly related to their journalistic activities on the situation in Jammu and Kashmir. We are also deeply concerned by the alleged closure of the Kashmir Times offices, which also seems to be connected to its independent and reportedly outspoken reporting in the region.”
They added, “We remain deeply troubled by the fact that in addition to being punished for it, some of these journalists were reportedly told or threatened to change to focus of their reporting, sometimes on vague national security related ground.”
Ambassador J. Kenneth Blackwell, former United Nations Ambassador to the United Nations, Geneva, visited Indian occupied Kashmir in December 1993. Upon his return, he made an intervention at the fiftieth session of the UN Human rights Commission in Geneva in 1994. He said, “During my visit to Kashmir, the heavy military presence of India was striking. Kashmir is a war zone. Troops line the roads, stopping vehicles of every type. Heavily armed bunkers are on most corners. It is literally not possible to go anywhere in Jammu and Kashmir state without being overwhelmed by the sheer numbers of armed personnel.”
Ambassador Blackwell highlighted that “Amnesty international’s report indicates that disappearances are systematically practiced by Indian security forces in Kashmir. Other human rights violations include hundreds of extrajudicial executions, sometimes in the form of staged encounters, routine and brutal torture, including rape and the detention of many thousands of political prisoners held for months or years without being brought to trial while they are denied minimum legal safeguards. It is reported that many have died in custody after torture.”
Ambassador Blackwell added, “Detainees are not brought before a magistrate within 24 hours of arrest, as Article 167 of the Indian Code of Criminal Procedures requires. Detainees arrested by paramilitary and army forces are usually taken to interrogation centers where torture is reportedly routine. I believe that any real solution to the problems of detention and torture in Kashmir must include carrying out the plebiscite envisioned by the United Nations in 1948 with the explicit agreement of India and Pakistan.”
International Federation for Human Rights (FIDH) reported on November 22, 2022, “The detention of Khurram Parvez carries all the signs of an arbitrary detention in clear breach of binding legal standards the Indian State has committed to respect. For over a year, domestic courts have failed to uphold the rule of law and international law. This is why we are seizing the UN Working Group on Arbitrary Detention to issue a ruling on the arbitrariness of Khurram’s detention, and to demand the Indian authorities release him”.
Gerald Staberock, Secretary General of Geneva-based World Organization Against Torture (OMCT) said, “In addition to being arbitrarily detained for a year, Khurram Parvez faces a possible life sentence and the death penalty in a blatant act of reprisal for his legitimate and peaceful human rights activities. Khurram ought not to have spent a single minute behind bars and should be compensated for his prolonged and unjust deprivation of liberty.”
India, which is flouting international law and morality, must be made to abide by the United Nations Charter and the Universal Declaration of Human Rights to which it is a signatory. The unbearable suffering of the people of Kashmir cannot be brought to an end, and the constant danger to regional peace cannot be removed unless concerted pressure is brought on the Modi Administration to turn to the path of sanity and civilized conduct. The resolution of Kashmir conflict would be in the long-term interest of Kashmir, Pakistan and India itself.
[Dr. Ghulam Nabi Fai is the Chairman of US-based ‘World Forum for Peace and Justice’]
