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Roots in Kashmir

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									Roots in Kashmir His Excellency Mr. Luis Filipe Castro Mendes Sir, We would like to draw your kind attention towards the plight, and, seek your intervention in the rehabilitation of the members of the Hindu minority of Kashmir, known as Kashmiri Pandits, who have been forced out of their ancestral homeland, most recently in 1989-90. It was then that almost 700,000 members of the community were forced out of the valley with the outbreak of Islamic terrorism. Ever since, many of them have been forced to languish in refugee camps. A majority of the members are spread across the length and breadth of India, living life which can be best described as deplorable. Keeping this in view, "ROOTS In KASHMIR" an initiative by the Kashmiri Pandit Youth, would like to draw you attention to some of the aspects of the issue. We do so in order to help you view the situation not only in local background but also in terms of resolutions and recommendations of the UN and its various subsidiary bodies particularly the UN Commission on Human Rights. The purpose in doing so is to help you and your team, to deal with this particular situation in a manner that the principles of the United Nations Charter, the Covenant on UN Human Rights and the recommendations of other UN subsidiary bodies like the UN Commission for Refugees are given due regard. Therefore, we venture to concretize our submission as follows: 1. The religious minority of the Pandits of the valley formed nearly 7 % of the total population of the province of Kashmir in J&K State at the time of Kashmir's accession to the Indian Union in 1947. Owing to discriminatory policies of successive regimes in J&K ever since, a good percentage of the Pandits was forced to leave Kashmir and seek livelihood in other parts of the country. As a result of eruption of armed insurgency in late 1989, the Islamists made the Pandits their selective target and killed nearly a thousand innocent members within a couple of months of insurgency. Their objective was to enforce ethnic cleansing of Kashmiri Pandits from the valley in order to pave the way for Islamic homogenization with sharia replacing secular democratic dispensation. Radical and Wahhabi Islamic ideologues in Saudi Arabia and Pakistan who have sponsored the jihadi movement world over, consider Kashmir integral to the concept of Islamic Caliphate. In his biography, Shiekh Abdullah, the Former Chief Minister of Jammu & Kashmir, branded the Pandits as Indian spies, and they were considered a symbol of India's secularist presence in Kashmir. So much for the hate towards Kashmiri Pandits. 2. In 1990, the popularly elected coalition Government of Jammu and Kashmir failed to protect life and property of this religious minority against lawless Islamic brigands. Not only that, in stead of facing dire threat to law and order in the state, in fact to its stability, with courage and determination, the then popularly elected government quit the office and abandoned the people, particularly the defenceless minority, to armed Islamic insurgents. In doing so, it facilitated space for the insurgents to indulge freely in acts of pogroms and violence against the Pandit minority. Protection of life is the foremost constitutional and moral duty of any government. It is also the first article of the UN Charter on Human Rights. 3. Abandoned by the popular government, surrounded by an atmosphere of unrelenting threat to life and honour relayed through loudspeakers from mosque tops and in vernacular media, targeted by the gun-wielding marauders and ignored by the national press and mainstream political parties, the miniscule religious minority was left with no option but to abandon, albeit most unwillingly their homes and hearths. This ensured their mass exodus to unfamiliar places and environs. By April 1990, almost 99 per cent of their population had to depart from the valley.

3. The Government of India, in its official note to the International Commission of Jurists, (ICJ), an international NGO of repute, communicated in writing the story of ethnic cleansing and exodus of the Pandits. It is fully reproduced in its published report on Kashmir, 1995. 5. 6. Extirpated people sought refuge in another region of the State, Jammu, and other places in the country like Delhi, Bombay, and Chandigarh etc. Paragraph 2 of the report of the representative of the UN Secretary General pursuant to the UNHRC resolution 1997/39, dealing with the scope and purpose of the Guiding Principles defines the IDPs as this: For the purpose of these Principles, internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human made disasters, and who have not crossed an internationally recognized State border. (E/CN: 4/1998/53/Add.2. page 5) Section A paragraph 9 of the Report of the representative of the UN Secretary General. to the Commission on Human Rights states Loss of life, brutality, violence and threats thereof that create a climate of insecurity frequently force people to flee their homes: for instance, in cases of direct or indiscriminate attacks on civilian sites. In fact, violence and threats affecting life and personal security are a particularly effective and frequently used means of inducing displac3ement and are often also employed in the course of displacement. In some cases the forced movement of persons may amount to genocide, including "ethnic cleansing", or to inhuman and degrading treatment. (E/CN.4/1998/53/Add.1. p.5) In the matter of "ethnic cleansing" of the Pandits of Kashmir, a situation which the Government of India has conceded in its report to the ICJ, (to which allusion has been made above), the report of the representative of the Secretary General observes in paragraph 73: "Ethnic cleansing" is never admissible. The Committee on the Elimination of Racial Discrimination in its concluding observations on the report of the Republic of Bosnia and Herzegovina (CERD/C/247/Add.1), condemned "ethnic cleansing" because it constitutes "a grave violation of all basic principles underlying the international convention on the Elimination of All forms of Racial Discrimination". (E/CN.4/1998/53/Add.1 p. 17)

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9. We have already stated that by April 1990 over a thousand members of the Pandit community had been killed by the armed terrorists. In regard to genocide, the report of the representative of the Secretary General states in paragraph 74 as follows: Certain forms of forced removal, in particular in the context of "ethnic cleansing" or extreme suppression of ethnic or indigenous peoples may amount to genocide. Genocide constitutes an especially grave form of violation of the right to life, as discussed in detail in the Compilation and analysis of legal Norms (paras 73 -74). Article 1 of the Genocide Convention recognizes genocide, committed at any time, to be an international crime. Article 11 of the Genocide Convention defines genocide as " … any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part …(E/CN.4/1998/53/Add.1. p. 18) 10. Despite this ground reality, the Government of India has, so far, refused to declare the Pandits of Kashmir as IDPs. Indian National Human Rights Commission seems to have followed the policy of the government. 11. There has not been even a single conviction for the Genocide against Kashmiri Pandits. Even the mass murderer of Kashmiri Pandit , Farooq Dar alias Bitta Karate has been set free as the Government has been unable to prove charges against him. This is despite the fact that Media has taken up this issue in the right earnest.

It is a matter of regret that neither the Government of India nor the Government of the Jammu and Kashmir State (the State in which ethnic cleansing and genocide of a religious minority have occurred and wherefrom the mass exodus of the community members has taken place) has instituted a Commission of Inquiry into the rise of religion-based terrorism allegedly with full connivance of sections of local authorities, political groups and segments of civil society. Five major massacres of the members of this community's residual members in Kashmir and adjoining areas have taken place during last twelve years. Never has been an inquiry ordered nor has even an officials statement been made on the floor of the Legislative Assembly in regard to these pogroms. This shows the State and the Union governments' lack of concern about a blatant case of human rights violations. . Now there is much talk about the return and resettlement of the IDPs. The talk has become a cliché with the State and the Central governments. Observers feel that real ground situation does not support practicability of any such plan at the moment. We expect the Indian authorities to be in full knowledge of the observations, recommendations and resolutions of the UN, the Human Rights Commission and other UN subsidiary bodies in the matter of rights of Internally Displaced Persons. In the context of the return of Pandit religious minority, the ground situation and its harsh realities are decisive factors. Indian security forces are locked in a combat against the committed jihadis and Islamic suicide squads who strike suddenly and at vulnerable places or soft targets. Most of Kashmir Muslim bureaucracy and administrative structure abhors broad nationalist and secular orientation. A senior minister of state Govt cabinet was arrested by security forces for known involvement in the Akshardham mandir attack had been cleared by previous Mufti Government and given the "healing touch" by restoring him in his cabinet post. . Mattan and Khirbhwanai, the Hindu religious sites in the valley, are being projected as future habitats of the exiled Pandits There appears little sense in making Hindu religious places in the valley as the focal point for their concentration. Are the exiled people to become mendicants and monks at their shrines or are they to be activated as equal partners in the architecture of country's political and social process? In these conditions, return of the IDPs becomes a secondary issue. The primary issue is of reversing the Islamization of Kashmir. It is re-establishing and re-enforcing the primacy of secular democratic dispensation. As a youth initiative, Roots In Kashmir , we consider it our moral and humanistic duty to advise the concerned European Union and the powers that concern to draw a blue print for return, rehabilitation and re-integration of internally displaced Kashmiri Pandits strictly in accordance with the study, research, analysis and recommendations of the United Nations through its

subsidiary bodies. In particular, the report of the representative of the Secretary-General on IDPs, the Special Rapporteur on Minorities, and also of Mr. Asbjorn Eide the Chairman of the Working Group on Minorities -- the important subsidiary of the UN Commission on Human Rights – that has defined the Pandits as a clear example of "reverse minority", should form the basis of the blue print for Pandit return. The blue print has to be implemented only when decommunalization of Kashmir is brought about. Whether the Indian State has the capacity of transforming the aggressive Kashmiri jihadi activism into peaceful coexistence among the people of different faiths through the current instrument of appeasement and concessions is the crux of the problem. So far the Indian experiment in Kashmir has yielded only the extirpation of barely two per cent non-Muslim population of the State and the collapse of Indian projection of Kashmir as its secular face. New Delhi will have to redefine its secularist prognosis. Principle 28 of the Guiding Principles in Section V relating to 'Return, Resettlement and Reintegration of the IDPs' states: 1. Competent authorities have the primary duty and responsibility to establish conditions, as well s provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. Such authorities shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons. 2. Special efforts should be made to ensure the full participation of internally displaced persons in the planning and management of their return or resettlement and reintegration. (E/CN.4/1998/53/Add.2. p. 14) From this principle, the following inference becomes self explanatory: a) The IDPs will not be coerced into return. Return will be their free choice b) It is the responsibility of the State authorities to care for their "return, resettlement and reintegration." c) The returnees have the freedom of resettling in their homes or places of habitual residence, or to resettle voluntarily in another part of the country/state d) Internally displaced persons will be involved actively in the decision of planning their return, resettlement and reintegration. In the light of these inferences, there is nothing wrong if the internally displaced Kashmiri Pandits are demanding concentrated resettlement in one part of the Kashmir valley. This is what the right to freedom of movement and the right to freedom of resettlement embody. These being the human rights cannot be denied. Again there is full justification for the Pandit IDPs to ask for adequate political empowerment and full participation in the decision making and planning process in the State. This is their constitutional, political and human right. Additionally the right to compensation is equally important substantiated in the Guiding Principles. Suggestions: Ultimately, the Pandits have to return to the valley. Ultimately secularist dispensation has to be the basic philosophy of Indian nation. But this return is not an ordinary one. It is the return of the ethnically cleansed minority. It is the return of the indigenous people to their homeland. It is the return of a religious minority, which has been persecuted by the majority community. It is the return of a community abandoned by the democratically elected government. It is the return of a community portrayed by the Indian State as its secularist model in Kashmir. Naturally, return, rehabilitation and re-integration of this community has to be under very clear terms and conditions. Its survival, development, integration and future concerns have to be insulated through constitutional and institutional guarantees.

It is also a fervent appeal to the European Union that they recognise the ethnic cleansing of Kashmiri Pandits. We also appeal to the European Union that any report on Kashmir takes into consideration the human rights violations of this ethnic minority at the hands of the Islamic fundamentalists. That you impress upon the Government of India to constitute a Commission of Inquiry with the following clear terms of reference: (a) Probe into the causes of the rise of extremist religion-based armed insurgency in Kashmir in 1990 (b) Probe into the causes and events of selective killings of Pandits followed by their ethnic cleansing in 1989-90. The report of the inquiry into 1986 Anantnag attacks on Pandits be made public. This will pave the way for the return of the IDPs. It must be understood that return of an ethnically cleansed minority to its homeland essentially depends not on the quantum of security provided by the government but on the quantum of goodwill which the majority is prepared to extend to it out of its free will. The affected people are immediately declared Internally Displaced Persons, in accordance with the definition of the UN or its subsidiaries/commissions/ working groups etc. Subject to the inception of an Inquiry Commission, the State government constitutes a Rehabilitation Committee consisting of eleven members with following distribution: Union Government - 2, State Government - 2, Attorney General of India - 1, Jammu region majority group – 1, Kashmir region majority group – 1, Ladakh region majority group – 1 and Pandit IDPs – 3 (one each from Jammu, Udhampur and Delhi camps plus the rest of the country Camps). The Pandit delegation shall enjoy the right of rejecting any recommendation in full or in part in the event of disagreement on a point or decision. Its terms of reference for the committee shall be: (i) To examine all the options of return of the Pandits to the valley. That is concentrated relocation of the entire community at one selected place in the valley. (ii) To address the question of political empowerment of the IDPs through proper and adequate constitutional amendment before their relocation in the valley. This recommendation has to be in the spirit of the Guiding Principles of the UN Secretary General's representative and also Article 370 of the Constitution of India besides relevant clauses of the State Constitution. (iii) To address the question of funding and budgeting the rehabilitation plan within a specific period of time (iv) To address two more aspects (a) mechanism for providing adequate means of subsistence to the relocated persons, and (b) proper compensation to the affected people for the loss of their property and the mental torture they have been subjected to. In the matter of dealing with this set of terms of reference, the European Union should take into full consideration all the relevant recommendations of the UN Human Rights Commission and its subsidiary organs, in particular the recommendations of (a) the Representative of the UN Secretary General for Internally Displaced Persons, (b) Report on the Rights of Indigenous Peoples and (c) Chairman of the Working Group on Minorities.

Not even a single person has been convicted for the killings of thousands of Kashmiri Pandits. European Union should put diplomatic pressure on the Government of India to immediately hold the impartial trial to ensure that killers of Kashmiri Pandits are brought to justice. We hope that these observations and recommendations of our Initiative will be given due thought by the European Union. Thanking You Yours truly Roots in Kashmir Email:contact@rootsinkashmir.org,


								
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