Daily Sabah (Turkey)

India’s devastatin­g ‘Operation All-Out’ in Kashmir

- NASIR QADRI* *Lawyer with expertise in armed conflict and internatio­nal advocacy who leads the Islamabad-based Legal Forum for Kashmir

After the killing of Burhan Wani, a young commander and a socially popular figure in the Indian-occupied Jammu and Kashmir, the struggle for the right to self-determinat­ion in the disputed Himalayan valley changed drasticall­y.

Wani was shot dead by Indian occupying forces on July 8, 2016, in southern Kashmir. The killing sparked an uprising, which continued for the next six months but its after-effects are still felt today, which were exacerbate­d by India’s annexation of Kashmir on Aug. 5, 2019, when New Delhi scrapped the Muslim-majority region’s special status.

To counter the impact of the massive antiIndia civil uprising, a major shift in the movement that flared up in 1989, the Indian occupation­al forces launched “Operation All-Out” in 2017 and a blueprint containing a list of 258 local and foreign anti-Indian armed fighters was prepared. In the same year, over 200 rebels were killed in “Operation All-Out” and over 108 civilians were also shot dead.

Many of these civilians were out at the gunfight sites to protest against the Cordon and Search Operation (CASO) launched by Indian occupation­al forces.

According to the Indian Interior Ministry, there was a 167% increase in civilian killings in 2017 compared to 2015 and a 6.21% jump in the number of violent incidents compared to 2016. The number of militants killed went up by 42%.

In the years 2015-2020, over 592 civilians and 1,125 pro-freedom armed rebels were been killed by Indian occupation­al forces in numerous Indian military operations.

The continuous killings have only led to more local youth joining the armed liberation movement, often by snatching weapons from on-duty armed forces.

CHARACTERI­ZATION OF THE CONFLICT

The disputed status of Kashmir is the source of internatio­nal armed conflict between India and Pakistan, which are both High Contractin­g Parties under the 1949 Geneva Convention.

Besides, Kashmiris are struggling for the right to self-determinat­ion as guaranteed by the United Nations for the last seven decades.

The Indian government tries to downplay the conflict, despite the fact that thousands of Kashmiris have been killed, tortured, raped, arbitraril­y detained, subjected to enforced disappeara­nce and their residentia­l properties damaged.

Laws governing internatio­nal armed conflicts found similar violations with the dilemma of distinguis­hing combatants from civilians.

The U.N. Special Rapporteur on Terrorism and Human Rights points to the protection of occupied people striving for self-determinat­ion as combatants under the internatio­nal humanitari­an law (IHL) and the operation carried out on both sides should be judged based on the IHL principles.

Ever since Operation All-Out was launched by the Indian military establishm­ent apparently against combatants, the valley has witnessed an ugly phase of human rights violations against the civilian population.

The U.N. office of the High Commission­er for Human Rights (OHCHR) released two reports in 2018 and 2019 accusing India of grave human rights violations in Kashmir and called for the formation of a commission of inquiry into the allegation­s.

The report criticized the special legal provisions for the Indian forces in Kashmir and called for the repeal of the controvers­ial black law known as the Armed Forces Special Powers Act (AFSPA), which has made accountabi­lity of Indian forces for human rights violations in Kashmir “literally nonexisten­t.”

According to data compiled in the last three years, Indian occupation­al forces have clashed with rebels in different areas, leading to “extrajudic­ial killings,” severe injuries and destructio­n of civilian property.

A total of 354 encounters took place in Kashmir. At least 782 operations in total were conducted in Kashmir, which led to multiple human rights violations of the civilian population, including harassment, molestatio­n, detention and the use of excessive and indiscrimi­nate force. During these operations, vandalism and destructio­n of 802 civilian properties were reported.

TEST OF PROPORTION­ALITY

Counterins­urgency doctrine stresses that the “use of lethal force must respect the legal principles of military necessity, distinctio­n, (and) proportion­ality.”

India’s “proactive” and “offensive” doctrine in Kashmir bereft any adherence to the principle of the IHL.

Indian occupation­al forces resort to excessive use of force during counterins­urgency operations against the civilian population and perpetrate war crimes and crimes against humanity. The OHCHR reports also outline similar crimes.

The 1 million-strong Indian occupation­al forces have been criticized for using “disproport­ionate force” in their bid to take out armed rebels, wielding lightweigh­t weapons such as the AK-47.

India has ratified all four Geneva Convention­s and has also incorporat­ed the Geneva Convention Act 1960 into its domestic legislatio­n. The basic rule in Article 48 that leads Part IV on “civilian population” and Section I providing for “general protection against effects of hostilitie­s.”

This rule states that in order to respect for and protect the civilian population and civilian objects, the parties to the conflict shall at all times distinguis­h between the civilian population and combatants and between civilian objects and military objectives and accordingl­y shall direct their operation against military objectives.

It is an establishe­d norm that all armed conflicts must be initiated, conducted and ended proportion­ately. The number of factors that determine proportion­ately include the amount of force used, the temporal aspect of the use of force, the methods employed and the objectives establishe­d, to name a few. The primary focus is on limiting the harm to civilians as well as to combatants.

The global community unanimousl­y agrees with the humanitari­an contention­s in the principle of proportion­ality. In the case of Iranian oil platforms, the Internatio­nal Court of Justice (ICJ) rejects the U.S. claim of selfdefens­e against Iran and held that the targets of opportunit­y, which are not military objectives, do not pass the test of proportion­ality as required by internatio­nal law.

In the Nuclear Weapons Advisory case, the ICJ upheld that the notion of proportion­ality is comparable to other humanitari­an laws, where the laws of the conduct of war mandate its use within certain constraint­s to curtail unnecessar­y suffering and devastatio­n.

The state parties all over the world under Common Article 1 of the Geneva Convention are obliged to “respect and to ensure respect” toward the convention; therefore, India’s aggressive approach in the disputed Kashmir casts many doubts over the efficacy of the Geneva Convention­s.

 ??  ?? The interior of a mosque damaged in a clash between Indian forces and Kashmiri protestors, in the Shopian district of Indian-occupied Kashmir, April 9, 2021.
The interior of a mosque damaged in a clash between Indian forces and Kashmiri protestors, in the Shopian district of Indian-occupied Kashmir, April 9, 2021.

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