Asad Ali
The 98th session of the UN Working Group on Arbitrary Detention (WGAD) commenced on November 13, 2023 in Geneva. The WGAD’s mission is rooted in investigating cases of arbitrary deprivation of liberty, inconsistent with the international standards outlined in the Universal Declaration of Human Rights and other accepted international legal instruments by the concerned States. The working group comprises five members, internationally recognized as independent experts in the field of human rights.
The Universal Declaration of Human Rights, in Article 9, unequivocally states, “No one shall be subjected to arbitrary arrest, detention, or exile.” Furthermore, Article 9(1) of International Covenant on Civil and Political Rights echoes this sentiment, asserting, “No one shall be subjected to arbitrary arrest or detention.” Therefore, arbitrary detention stands as a clear violation of international human rights law, as endorsed by these fundamental documents. Rule 45 of the Mandela Rules emphasizes that solitary confinement should only be employed in exceptional cases, as a last resort, for the briefest duration possible, and subject to independent review. The Rules expressly prohibit indefinite and prolonged solitary confinement, defined as exceeding 15 consecutive days, emphasizing its use as a measure of last resort, reserved for exceptional circumstances.
Several instances of arbitrary detention in Kashmir are poised for consideration during the 98th session of WGAD. It’s crucial to note that these cases likely represent only a fraction of the actual occurrences, given the numerous unrecorded instances where relatives and neighbors are coerced into silence or mysteriously disappear. The Modi Administration, aided by over 900,000 military and paramilitary forces, particularly targets educated Kashmiris, both men and women, who dare to speak out. These laws, framed by India to intimidate Kashmiris, find no support in any international human rights instrument.
The draconian Jammu and Kashmir Public Safety Act provides Indian forces in Kashmir with the authority to detain civilians for up to one year without trial or due process, citing various reasons, including the exercise of free speech. For instance, under this Act, an individual advocating against India’s campaign of terror, even if they have lost a child to Indian forces, can be detained for endangering ‘public safety.’ Similarly, producing pamphlets or newspapers endorsing United Nations resolutions for a plebiscite in Kashmir can lead to arrest and detention without formal charges or due process.
In a joint communication to the Government of India on June 3, 2022, Elina Steinerte, Vice Chair of WGAD, and Irene Khan, UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, expressed serious concern over arbitrary detention and intimidation of journalists covering the situation in Jammu and Kashmir. Notable journalists such as Fahad Shah, Auqib Javeed, Sajad Gul, Qazi Shibli, and the Kashmir Times’ Editor faced harassment, arbitrary detention, and criminal proceedings linked to their journalistic activities. The closure of the Kashmir Times offices, reportedly connected to independent and outspoken reporting, further raised alarm.
Ambassador J. Kenneth Blackwell, a former UN Ambassador, provided a stark assessment of the situation in Indian-occupied Kashmir based on his visit in December 1993. He highlighted the heavy military presence, turning Kashmir into a war zone, with armed personnel dominating the landscape. Detainees are often not presented before a magistrate within the stipulated 24 hours, and torture is reported as routine in interrogation centers run by paramilitary and army forces. Blackwell emphasized the necessity of conducting the plebiscite envisioned by the United Nations in 1948, with the explicit agreement of India and Pakistan, as a genuine solution to the issues of detention and torture in Kashmir.
Gerald Staberock, Secretary General of the Geneva-based World Organization Against Torture (OMCT), voiced concern over the arbitrary detention of Khurram Parvez, highlighting the possibility of a life sentence and the death penalty as reprisals for his legitimate human rights activities. Staberock asserted that Khurram should not have spent a single minute behind bars and deserves compensation for the prolonged and unjust deprivation of liberty.
It is imperative for India, as a signatory to the United Nations Charter and the Universal Declaration of Human Rights, to adhere to international law and morality. The plight of the people of Kashmir, characterized by unbearable suffering, cannot be alleviated, and the persistent threat to regional peace cannot be eliminated unless concerted pressure is applied to the Modi Administration. The resolution of the Kashmir conflict is essential for lasting peace in the region and bilateral ties of both India and Pakistan.
