Letter to Chairman of Sub-Commission

Letter to Chairman of the 57th Human Rights Sub-Commission 2005, by K.N.Pandita:

Mr. Vladimir Kartashkin, Chairman, Fifty-seventh session, Sub-Commission on the Promotion and Protection of Human Rights, United Nations, Geneva Mr. Chairman, First let me congratulate you on being unanimously elected to chair the 57th session of the Sub-Commission. It is an eloquent recognition of your contribution to the promotion of the aims and objects of the UN and the Human Rights.

Our NGO, namely Asian-Eurasian Human Rights Forum is not having ECOSOC status as yet but is affiliated to the Conference of NGOs (CONGO – www.ngocongo.org/). Being human rights activists, we have been attending the sessions of the Commission and the Sub-Commission for last one decade and a half. We have also been making interventions on instances of human rights violations particularly in the case of the Asian-Eurasian region.

Mr. Chairman, human rights violations in the strife – torn Kashmir, a region disputed by India and Pakistan, have been extensively raised and debated in the sessions of the commission and the sub-commission for a long time but more significantly ever since the turmoil surfaced there in 1990.

As a consequence of the extremist militancy, a very small religious minority called the Pandits in the Indian part of Kashmir, was forced to abandon its homes and hearths and seek shelter in other parts of India. There are nearly three hundred thousand of these internally displaced persons living in various refugee camps for last sixteen years.

Some human rights activists and NGOs, including ours, have, among other related matters, raised the issue of these internally displaced persons at several sessions of the Commission and the Sub-Commission in the past demanding that their human rights be restored and protected.

For quite some time, these displaced persons are persuaded by the local government to return to their native places. However, Pandits have usually expressed their reluctance to return because of no relent in militancy related incidents in Kashmir endangering their right to life. They had left Kashmir because of the same threat.

Recently, a prominent dissident group of local majority community in Kashmir, which has been sympathetic to the militants took the initiative of opening a bilateral dialogue with the displaced persons in a bid to prepare them to return to their native places. In fact, a one-day long meeting between some of the members of displaced Pandits and that of the leading majority group namely All Party Hurriyat Conference (APHC) took place in Srinagar the capital of Kashmir. The participants considered it a healthy move on both sides.

But unfortunately, the militant groups in Kashmir are unhappy with this development. They do not want the reversal of their ethnic cleansing of the Pandit religious minority in 1990 . They want to perpetrate discrimination on the basis of religion, which is violation of the UN Charter on Human Rights and also to the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (General Assembly Resolution 47/135). This is further elaborated in the report of the Working Group on Minorities (E/CN.4/Sub.2/2005/27) pending before the current session of the sub-commission for adoption,

The influential Jammu and Kashmir English daily, namely The Kashmir Times wrote in its issue of 23 July 2005 with Srinagar date line 22 July as this:

“ Four militant groups today objected to the return of Pandit migrants to Kashmir. In a statement to a local news agency KNS, Samiullah, a spokesman of the militant groups – Al-Nasireen, Farzandan-e-Millat, Save Kashmir Movement and Al-Arifeen said the Pandits can return only if they @accept our conditions. …… The Pandits must also accept Kashmir as disputed and support the Muslims in their struggle. Then only they will be permitted to their homes………….If the conditions re not met, the return of Pandits will be disallowed in Kashmir.” (photocopy enclosed)

Another leading English daily of Northern India namely The Tribune wrote in its issue of 23 July under the dateline Chandigarh 22 July as this:

“ Four militant groups today warned the migrant Kashmiris Pandits against returning to the Kashmir valley even as separatist Hurriyat /Conference had launched its efforts for their reutrn after a gap of over 16 years. The four organisations, the al-Nasireen, the Farzandan—e-Millat, the Save Kashmir Movement and the Al-Arifeen, for the first time surfaced with the warning against those boarding the Srinagar-Muzaffarabad bus on April 7. A spokesman for the four organisations in a faxed statement to some local media agencies “re-imposed the ban” on the return of the Pandits for their“ dubious role” by deserting the majority community at a crucial time” (photocopy attached)

Almost all leading Indian dailies printed the news in bold.

Mr. Chairman, refusing the internally displaced persons the freedom of movement to return to their native habitats by issuing veiled threats to their life is blatant violation of the right to life. Right to life is the foremost of all other human rights. Furthermore, discrimination on the basis of religion and faith is also among blatant violations of human rights. By issuing these warnings, the armed groups in Kashmir want to ensure the permanence of ethnic cleansing of the religious minority, a venture in which they have so far succeeded and now want to ensure its permanence.

Mr. Chairman, permit me to invite your kind attention to the Commentary on the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (E/CN.4/Sub.2AC.5/2005/2) adopted by the Working Group at its 10th session. Commenting on the relationship between the State and its minorities (Article 1), the text says:

1.1 sub 24 (page 6)

“ The protection of the existence of minorities includes their physical existence, their continued existence on the territories on which they live and their continued access to the material resources required to continue their existence on those territories. The minorities shall never be physically excluded from the territory not be excluded from access to the resources required for their livelihood. The right to existence in its physical sense is sustained by the Convention on the Prevention and Punishment of the Crime of Genocide, which codified customary law in 1948. Forced population transfers intended to move persons belonging to minorities away from their territory on which they live, or with that effect, would constitute serious breaches of contemporary intentional standards; including the Rome Statute of the International Criminal Court. But protection of their existence goes beyond the duty not to destroy or deliberately weaken minority groups. It also requires respect for and protection of their religious and cultural heritage, essential to their group identity, including buildings and sites such as libraries, churches, mosques, temples and synagogues…….”

In the light of tenuous ground situation in Kashmirn, it will be inadvisable for the Indian State as well as the local government of the State of Jammu and Kashmir to persuade the internally displaced persons to return to their places of origin. in the strife-torn valley of Kashmir. Of course, persuasions would carry some meaning only if the ground situation were conducive. At present there are no signs of a change. Relentless persuasion is tantamount to coercion, which in turn, is disapproved by the UN Charter on Human Rights and various subsidiaries of the Human Rights Commission especially the Working Group on Minorities. Article 1 of the Declaration on the rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities adopted by the General Assembly in its 92 plenary meeting on 18 December 1992 and issued as Annex to the General Assembly Resolution (A/RES/47/135) states as follows:
1. States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.
2. States shall adopt appropriate legislative and other measures to achieve those ends.

Mr. Chairman the governments generally try to minimise the threat of domestic militancy. However, the common sense says that it is not the ruler who should decide whether there is normalcy in the state or not. It is the people who have to decide because it touches their skin and it poses a threat to their life.

Paragraph 28 of Article 1 of the Commentary on the Report in hand states:

Minority group identity requires not only tolerance but a positive attitude towards cultural pluralism on the part of the State and the larger society. Not only acceptance but also respect for the distinctive characteristics and contribution of minorities to the life of the national society as a whole are required. Protection of their identity means not only that the State should abstain from policies which have the purpose or effect of assimilating minorities into the dominant culture, but also that it should protect them against activities by third parties which have an assimilatory effect.. ….

Furthermore, Commentary on Article 5 of the Declaration of the Rights of persons states as follows:

The participation of persons belonging to minorities in the economic progress and development of their country (Art. 4.5) can be achieved only if their interests are taken into account in the planning and implementation of national policies and programmes. Their interests go beyond purely economic aspects, however.. . ..

In the light of all that is stated above, it becomes the duty of the UN Human Rights Commission to address the issue when brought to their notice.

Our NGO has reflected on the situation and has also interacted with a wide section of internally displaced Pandits in their refugee camps in Jammu, Delhi and other places in India. We have found that the general impression is that the local government is trying to politicise the issue of the return of the IDPs. They have also complained of covert threats being handed over to them by local authorities of punitive measures if they do not agree to return.

The threats issued by the militant groups in Kashmir, as has been stated in this letter, is real and not imaginary. These were the groups that owned the responsibility of blowing up the Reception Centre at Srinagar, Kashmir wherefrom the first ever bus was to carry passengers to Pakistan held part of Kashmir.

In view of this, our organization approaches Your Excellency with the following suggestions

1. With reference to the threats issued publicly by four militant organizations in Kashmir, a Statement of the Chairman is issued
(a) condemning threat to life as the gravest of violations to the enjoyment of universal human rights.
(b) condemning discrimination on the basis of religion as a serious violation of human rights charter
(c) condemning the violation of the freedom of movement as violation of human rights charter

2. The Government of India is advised to ensure non-coercion of the IDPs of Kashmir in the matter of their return to their place of origin.
3. The Government of India is advised to take the Kashmiri IDPs into confidence and devise legal and constitutional mechanism that ensures their full participation in the national building process and political, economic and social development of civil society.
4. The Government of India is advised to involve the Kashmiri IDPs in any and all peace talks with concerned parties that are envisaged for restoration of peace and normalcy in Kashmir.
5. The Government of India is advised to concede the right of the Kashmir IDPs to concentrated rehabilitation and resettlement in any part of the region of their origin as a measure of security and promotion and preservation of their cultural identity.

With profound thanks, Kashinath Pandita, General Secretary (at Headquarter in New Delhi), Vice President (Geneva Office)

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