The recent actions over Kashmir, by the Indian Government, under Prime Minister Narendra Modi, have shocked and appalled the international community. Co-founder of Guernica 37 IJC, Toby Cadman, was in Pakistan last week and spoke about the serious and persistent human rights violations committed under the guise of the Public Safety Act (PSA), a “draconian” law from 1978 that permits the shield of law for these violations over civilians, manyof them minors.
Toby Cadman spoke regarding the dramatic situation in Kashmir after the suppression of the autonomy declared by Indian Government last month
"The arrest and detention of children is disturbing enough in itself. The only country (besides India) I am aware of is Israel, were Palestinian children are being detained."
On 18 September 20119, Toby was interviewed by the Pakistani journalist Meshal Malik, from the network Indus News, where he expressed that fundamental rights, that in most states would have been taken for granted, in Kashmir “are just being removed”.
Of course, we are talking about the PSA, a “lawless law” (as described by Amnesty International) that has been used for detaining children, besides other violations to human rights and fundamental freedoms, such as permitting the detention of a person for two years without being charged. That is something that we in The Guernica Group consider to be intolerable and shameful and requires a strong stance to be taken by the international community that claims to put the rule of law at the forefront of global policy.
A Problem of Enforceability
There is no doubt that notifying a person about the reasons for their arrest and detention, guaranteeing transparency in the process, besides letting their family know about the whole situation and giving access to a lawyer, constitute the guiding principles of any process according to international law.
Moreover, another important aspect to take into consideration in this recent and shocking situation, of a state committing abuses over civilians, is in terms of its enforceability. India is not a member of the International Criminal Court (ICC) and has not ratified the additional protocol of ICCPR. that permits individual complaint to the UN Human Rights Committee. Therefore, there remains a vacuum of accountability.
“But of course there are ways in which through the UN Human Rights Council the diplomatic pressure can be put on India. We are not talking about some isolated cases, there are tens of thousands of individuals who have been arbitrarily and unlawfully detained without charge."
The End of a ‘Draconian Act’
Discussing the PSA, Toby stated that it has to be immediately scrapped. It is being used by the Indian State to circumvent the rule of law and that is something he finds to be “deeply disturbing”.
In order to that, we should also point out that under this Act on 16 September 2019, Farooq Abdullah (83 years old), a veteran Kashmiri parliamentarian and former Chief Minister, was detained. Undoubtedly, this scandalous episode should be condemned.
Finally, one should not forget that the PSA also violates freedom of expression and freedom of assembly of those persons who are exercising their legitimate right to protest, and that there is no information emerging as to how they are being treated whilst in detention.
In terms of what actions can be taken, Toby emphasised the role of the UN Human Rights Council and the UN Special Procedures Branch that has the jurisdiction to look at arbitrary arrest and detention, fair trial considerations, allegations of torture, enforced disappearances and summary execution. It is quite clear that the unilateral annexation of Kashmir is prohibited under international law and that the conduct of the Indian State against the Kashmiri people may constitute war crimes and/or crimes against humanity. It is therefore entirely appropriate that the matter be taken to the International Court of Justice in The Hague and thereafter put on the agenda of the UN General Assembly.