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Published in the 16-31 May 2004 print edition of MG; send me the print edition

Kashmir & Gujarat "shined" at Geneva  
By Mukundan C. Menon

For the high-pitched orchestrated propaganda of the BJP-led ruling NDA, everything in India seems to be shining on the eve of the 14th Lok Sabha polls. However, those who assembled at the 60th Session of the United Nations Commission on Human Rights (UNHRC) in Geneva were feeling an altogether different picture as to how the Indian administration, system of governance and justice are shining especially while dealing with major crisis issues like in Kashmir and Gujarat.

Separate written statements were distributed on these issues at Geneva by the Hong Kong-based Asian Legal Resource Centre (ALRC) of Asian Human Rights Commission (AHRC). Titled "Reunion of Kashmiri Families" and "India: Genocide in Gujarat", these two papers were distributed on March 30 and 31 respectively. 

Since the 1947 division of Kashmir, families living on either side of the border have been denied the right to reunite, the ALRC said by recalling what the Article 10(1) of International Covenant on Economic, Social and Cultural Rights (ICESCR) had stated : "Widest possible protection and assistance be accorded to the family, which is the natural and fundamental group unit of society". 

However, the situation of many Kashmiri families is "as absurd as it is tragic". Citing an instance in Indian-administered Kashmiri village, Adisa, it said : "Every resident has at least one family member on the other side of the Line of Control (LoC). 72-year-old Bibi Jaan was married into Adisa before 1947; and her maternal village is just two kilometers away, on the other side of LoC. Yet, for the last 56 years, she has not seen her two brothers and their families. Her parents have since died. With tears, she says, "We are separated by two kilometers, but to reach my maternal village is my lifetime dream. I could not see my ailing parents before they died." She urges that the time has come to demolish this "line of hatred" and pass on a legacy of love to future generations. 

The ALRC had brought the plight of Kashimiri families divided in Indian and Pakistani administrated parts of Kashmir by the LoC to the attention of UNHRC in its previous sessions. The ALRC written statement submitted to the 59th session urged the Commission to consider the, "right of [these] families to live together [as] a humanitarian issue that transcends regional conflict". It also called for the right to freedom of movement of these families to be recognized, the building of family reunion centers along the LoC under international observation, and guarantees regarding the safety of civilians crossing the LoC. Reminding the Commission of the resolution of the United Nations Commission for India and Pakistan of January 5, 1949, which denied the Kashmiri people the right to remain an independent nation, the ALRC said : "This Commission acted in contravention of the Charter of the United Nations, and also the internationally recognized definition of self-determination in the ICESCR. Regrettably, none of these calls have to date been heeded."

Stressing that the international community is obliged to work to reunite Kashmiri families as a matter cutting across all rights, be they economic, social cultural rights or civil and political rights, the ALRC said : "Article 12 (1) of the International Covenant on Civil and Political Rights (ICCPR) guarantees rights to freedom of movement and residence "within the territory of a State". Given that the LoC divided Kashmiris only in 1947, for purposes of family reunion they should be treated as part of one territory and entitled to this right. Although crossing the LoC is technically a movement from one territory to the other at present, relaxing or removing restrictions or prolonged delays to obtain the necessary permits to cross it would be a magnificent humanitarian gesture by both sides that would bring great relief to thousands of persons. Indeed, the reopening of a direct bus service between Srinagar (Indian-administrated Kashmir) and Muzaffarabad (Pakistani-administrated Kashmir) in October 2003 has brightened the hopes of reunion for many Kashmiri families. However, much more remains to be done."

Recalling the recent family reunions of Koreans, the ALRC suggested the following three steps for the UNHRC to take up on the Kashmir front:

1) To make both the Governments of India and Pakistan to initiate efforts to reunite all Kashmiri families at the nearest possible date; while minimizing restrictions on rights of movement and residence, all possible routes, including the Poonch-Hajira and Jammu-Mirpur roads, in addition to the Srinagar-Muzaffarabad road, be opened without delay, and administrative requirements of travel should be eased. 2) Work within the UN system to secure the appointment of international observers along the LoC and building of family reunion centres on both sides. And 3) Promote recognition of Kashmiri people's right for self-determination in accordance with the UN Charter.

In its statement on Gujarat, the ALRC said that "far from punishing" the perpetrators of February 2002 genocide who killed more than 2,000 Muslims, they "are not even being properly prosecuted". It added : "The Gujarat government's complicity in the genocide is now compounded by its obstruction of justice for the victims."

Quoting reports on Gujarat genocide by Concerned Citizens Tribunal and Human Rights Watch which held Gujarat Chief Minister Narendra Modi and his government responsible for all the killings and destruction, the ALRC said : "India, as a party to the International Covenant on Civil and Political Rights (ICCPR) as well as the Convention on the Prevention and Punishment of the Crime of Genocide, has specific obligations under international law to prevent and punish the perpetrators of this crime against humanity, and provide redress for the victims. However, in Gujarat, the perpetrators themselves are being left to provide redress to the victims.

Recalling that the net result in Gujarat were parody trials and investigations, it cited various glaring instances of killings at Naroda Patiya, Gulberg Society. Sardarpura (Mehsana), Naroda Gaam, Chamanpura, Randhikpur (Dahod), Khanpur (Panchmahal), and Best Bakery (Vadodara). "In contrast to these cases, the police have arrested 126 persons in relation to the Godhra train attack, which was blamed on Muslims, where 59 persons were burnt alive. None of the accused is out on bail and 62 others are absconding. The trial has begun and so far four hearings have taken place", the ALRC statement at Geneva noted, and concluded thus:

"The entire Indian justice system has been made a mockery in Gujarat... For their part, the authorities in Gujarat have demonstrated how utterly the system can be brutalized to further violate the rights of victims. In Gujarat, the same police force responsible for the atrocities has been charged with investigating the cases going to trial, and the government responsible for what occurred has been appointing the prosecutors. Although the National Human Rights Commission explicitly recommended that the Government of India permit independent agencies to investigate the cases, hear the trials in other states and provide witness protection, these recommendations were unheeded. Only in September 2003 did the Supreme Court state that it has 'no faith left' in the Gujarat government's handling of the cases arising out of Gujarat. It appointed a former solicitor general to sit as special advisor to the court in the Gujarat trials, and in November 2003, the Court stalled the proceedings in ten cases, including some of those mentioned above, while considering whether they should in fact be heard outside the state." 

Holding Chief Minister Narendra Modi responsible for all that had happened, the ALRC statement said : "Not content with their attempt at genocide in 2002, Narendra Modi and his supporters are now doing their best to obstruct justice for the victims. It must be asked how the man responsible for a crime against humanity was re-elected in December 2002. The validity of the December elections must also be questioned given that they were held early, at a time when the majority of the state's Muslims were still displaced, and were unable to cast their votes. Narendra Modi and his accomplices must be prosecuted and punished by international standards for the crime against humanity that occurred in Gujarat during 2002. Only then will justice be served. Until then, such crimes against humanity will continue. State officials have blatantly referred to the 'success' of the 'Gujarat experiment' and hinted at its implementation elsewhere in India. Modi has consistently attempted to undermine National Human Rights Commission's attention towards the Gujarat victims, to the extent of labeling it anti-Hindu." 

The ALRC wanted the UNHRC to: Demand that the Government of India prosecute and punish the perpetrators of Gujarat genocide in accordance with the principles of fair trial; Urge the National Human Rights Commission (NHRC) to monitor all cases and investigations and ensure that redress is given to the victims, and set up schemes for the compensation and rehabilitation of victims; Examine ways to support the NHRC to these ends; Pressure the Government of India to review and enforce the recommendations made by NHRC regarding independent investigations and prosecutions of the cases, and expand the powers of the Commission to make it more than a mere advisory body; Recommend that the Government of India investigate and reform its prosecution and judicial systems, ensuring that principles of international law are being adhered to, in accordance with the ALRC suggestions in its separate statement on the Malimath Committee Report; Recommend that the Government of India reform its police force and ensure its independence from political power, in order for it to function effectively; And, insist that the Government of India respect its international obligations and protect the fundamental rights of all citizens, regardless of religion, culture, sex or race.

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