TRIPTI DHAR*
I : INTRODUCTION
*
* 4th yr student of B.A.,LL.B. (Hons) at NALSAR University of Law, Hyderabad, India.
The author would like to express gratitude to Dr. Rajeev Dhavan, Senior Advocate,
Supreme Court of India and Prof. Amita Dhanda, NALSAR, for providing constant
motivation for critical evaluation of the subject matter.
With a rope of loose-spun thread am I towing my boat upon the sea.
Would that God heard my prayer and brought me safe across!
Like water in cups of unbaked clay
I run to waste.
Would God I were to reach my home! - Lal Ded (A Kashmiri Saivite
Saint and Poetess)
The principle that in particular deals with the womenfolk and the
problems faced by them is Principle 11lxii, which reaffirms the fact
that every human being is entitled to physical, mental dignity. The
emphasis is on the persons being able to live with dignity at all
times and even when they are displaced from their homes, they
should not be facing any threat to their life and dignity. This
principle thus lays down that even if the liberty of the persons is
restricted due to displacement, it is the duty of the state, to protect
them against the evils of rape, mutilation, torture, cruel or inhuman
or degrading treatment or punishments or any sort of acts as being
gender- specific violence, forced prostitution, any form of indecent
assaultslxiii.
The Chapter V deals with the most integral part of the GPs which are
the Principles relating to Return, Resettlement and Reintegration lxv.
Under which, the primary duty and concern is the establishment of
such conditions which allow and aid the internally displaced persons to
return voluntarily, in safety and with dignity to their homes or places of
habitual residence or to resettlement voluntarily in another part of the
country. In furtherance of this itself, the return or resettlement has to
be planned and managed while ensuring full participation of the
displaced persons. Principle 9 and 21 lxvi specifically state that the lands
of such people are mandatorily to be protected from illegal occupants
and any sort of destruction. Principles 28, 29 and 30 ensure and urge
the authorities that even if the displacement happens, they can also
work towards a rapid, unimpeded access to the internally displaced
persons in order to assist in their return or reintegration.
5. THAT THE STATE OF JAMMU & KASHMIR HAS FAILED TO FULFIL ITS
INTERNATIONAL OBLIGATION OF PROTECTING LIFE , LIBERTY ,
VI : CONCLUSION
The researcher would like to conclude by saying that amongst the
three models for the treatment of IDPs in International Law regime,
the most suitable one is the legal recognition of IDPs as distinct from
refugees to address the distinct nature of protection and the core issue
of sovereignty and intervention cannot in all cases of their human right
violations, constitute a hindrance to an international response. Given
the daunting size of the global crisis of internal displacement, its
political, legal, and bureaucratic complexity, the frequently intractable
conflicts generating it and the inadequacy of the existing legal regime,
the Guiding Principles could be very promising in the development of a
normative legal binding framework for the protection of IDPs, however,
there will be a need to generate awareness towards a more
comprehensive system of institutional response, both domestically and
internationally, towards the same to ensure an incremental
progression to development of a binding international norm. As far as
the claim of Kashmiri Pandits to an IDP status is concerned, although it
would not be feasible to demand such a status as a matter of right, it is
hoped that in order to address their specific needs and range of
disentitlements as a result of forced displacement, such a status shall
be ascribed to them. The overarching thought being that what is
needed the most in society today is Compassion and not Violence lxxv.
i
There are 25 million IDPs in the world as compared to 17 million refugees. See Luke T. Lee, “Internal Displaced Persons
and Refugees: Towards a Legal Synthesis?” (1996) 9 Journal of Refugee Studies 27,27.
ii
Mr. V. K. Krishna Menon’s Marathon Speech Lasting For Eight Hours On Kashmir At The United Nations Security
Council's Seven Hundred And Sixty Second Meeting On 23rd January 1957 used the word ‘ situation’….and therein, Mr.
Menon asserted that India had taken up with the UN a ‘situation’ and not a dispute. This can be ascertained from the
following excerpt..“Under Article 35 of this Charter of the United Nations {- which means that we did not come here with a
request for drastic action as we were entitled to do-}‘any Member may bring any situation’-and I emphasize this word
“situation” for we did not bring a dispute but a situation- whose continuance is likely to endanger the maintenance of
international peace and security to the attention of the Security Council. Such a situation now exists between India and
Pakistan...”
iii
Herein after referred to as the IDPs have been defined as: ‘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 conflicts, generalized violence, violations of human rights or natural or man-made disasters, and who have not
crossed an internationally recognized State border’ in the Introduction to the “Guiding Principles to Internal
Displacement” by the United Nations.
iv
“INDIA: Large numbers of IDPs are unassisted and in need of protection” A Report by Internal Displacement Monitoring
Centre, the IDMC.
v
Article1(2), Refugee Convention. It states a refugee to be a person who “owing to well-founded fear of being persecuted
for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the
country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country;
or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is
unable or, owing to such fear, is unwilling to return to it.”
vi
Catherine Phuong, The International Protection of Internally Displaced Persons, (Cambridge: Cambridge University
Press 2004), 14.
vii
Ibid.
viii
M. Rafiqul Islam, “The Sudanese Darfur Crisis and Internally Displaced Persons in International law: The least
protection for the most vulnerable” (2006) 18, International Journal of Refugee Law 354,361.
ix
For instance. See Fredrieck B Baer, “International Refugees as Political Weapons”, (1996) 37 Harvard International Law
Journal 243. This is a misnomer as a refugee essentially is a person who has crossed international boundaries. Also, see
Madeliene Scharzv, “Internal Refugees : An international Concern”, (1999) 21 Dalhousie Journal of Legal Studies 350.
x
Catherine Phuong, The International Protection of Internally Displaced Persons, (Cambridge: Cambridge University Press
2004), 20.
xi
Ibid at 23.
xii
Ved P.Nanda, “International Law and the Refugee Challenge: Mass Expulsion and the Internally displaced people”,
(1992) 28 Willaimette Law Review 791, 798.
xiii
Roberta Cohen, “Response to Hathaway” (2007) 20 Journal of Refugee Status 370,371.
xiv
Luke T. Lee, “Internal Displaced Persons and Refugees: Towards a Legal Synthesis?” (1996) 9 Journal of Refugee
Studies 27,30.
xv
Ibid at 32.
xvi
Luke T. Lee, “Internal Displaced Persons and Refugees: Towards a Legal Synthesis?” (1996) 9 Journal of Refugee
Studies 27, 33.
xvii
James C. Hathaway, “Forced Migration Studies : Could we agree just to Date?” (2007) Journal of Refugee Status 349,
357.
xviii
Ibid at p. 358.
xix
Catherine Phuong, The International Protection of Internally Displaced Persons, (Cambridge: Cambridge University
Press 2004), 24. Also see Neil Geissler, “International Protection of Internally Displaced”(1999) 11 International Journal of
Refugee Law 451, 458; he says, “the identification and definition of internally displaced persons is not intended to confer
them a privileged status under international law, but rather to ensure that their specific needs are adequately addressed,
generally next to other vulnerable individuals or groups”.
xx
James C. Hathaway, “Forced Migration Studies : Could we agree just to Date?” (2007) Journal of Refugee Status 349,
360.
xxi
Roberta Cohen, “Response to Hathaway” (2007) 20 Journal of Refugee Status 370, 374.
xxii
Catherine Phuong, The International Protection of Internally Displaced Persons, (Cambridge: Cambridge University
Press 2004),28.
xxiii
M. Rafiqul Islam, “The Sudanese Darfur Crisis and Internally Displaced Persons in International law: The least
protection for the most vulnerable” (2006) 18, International Journal of Refugee Law 354, 367.
xxiv
Catherine Phuong, The International Protection of Internally Displaced Persons, (Cambridge: Cambridge University
Press 2004), 209
xxv
Ibid at 211.
xxvi
Katja Lupojarvi, “Is there an international obligation on states to accept International Humanitarian Assistance to
Internally Displaced Persons under International Law”, (2003) 15 International Journal of Refugee Law 679, 682.
xxvii
Catherine Phuong, The International Protection of Internally Displaced Persons, (Cambridge: Cambridge University
Press 2004), 216.
xxviii
Francis Mading Deng, “The Global Challenges of Internal Displacement”, (2001) 5 Journal of Law and Policy 141, 145.
xxix
M. Rafiqul Islam, “The Sudanese Darfur Crisis and Internally Displaced Persons in International law: The least
protection for the most vulnerable” (2006) 18, International Journal of Refugee Law 354,361
xxx
Elizabeth E. Ruddick, “The Continuing Constraint of Sovereignty: International Law, International Protection and the
Internally Displaced” (1997) 77 Boston University Law Review 429, 468.
xxxi
Ibid at 469.
xxxii
Richard Plender, “The Legal basis of International Jurisdiction to Act with respect to the Internally Displaced”,(1994) 6
International Journal of Refugee Law 346,356.
xxxiii
Voting Procedures on Questions Relating to Reports and Petitions Concerning the Territory of South-West Africa, 1955
I.C.J. 67, 120 (June 7).
xxxiv
Brownlie, Principles of Public International Law, (London : Sweet and Maxwell 1990),56 ; Elizabeth E. Ruddick, “The
Continuing Constraint of Sovereignty: International Law, International Protection and the Internally Displaced” (1997) 77
Boston University Law Review 429, 472.
xxxv
B.S.Chimni(ed,), International Refugee Law: A reader, ( New Delhi : Sage Publications, 2000) 414.
xxxvi
Elizabeth E. Ruddick, “The Continuing Constraint of Sovereignty: International Law, International Protection and the
Internally Displaced” (1997) 77 Boston University Law Review 429, 461.
xxxvii
Ibid at 463.
xxxviii
Roberta Cohen, “International Protection for Displaced persons”, Louis Henkin & John L. Hargrove(eds.), Human
Rights : An Agenda for the Next Century ( London : Sweet and Maxwell ,1994) 17,18.
xxxix
Elizabeth E. Ruddick, “The Continuing Constraint of Sovereignty: International Law, International Protection and the
Internally Displaced” (1997) 77 Boston University Law Review 429, 467. Also In Resolution 929, Security Council
recognized a de facto French intervention by authorizing the establishment of French safe havens to protect the internally
displaced inside Rwanda.
xl
Franfois Bugnion, “Refugees, Internally Displaced Persons and International Humanitarian Law”, (2005) 28 Fordham
International Law Journal 1397, 1399.
xli
Karen Hulme, “Armed Conflict and the Displaced”, (2005) 17 International Journal of Refugee Law 91, 98.
xlii
Ibid at 99-100.
xliii
“Internally Displaced Persons: Compilation and Analysis of Legal Norms: Part I”,(1995) 32 ASIL studies in
Transnational Legal Policy 96, 104.
xliv
Ibid at 105.
xlv
Roberta Cohen, “ Protecting the Internally Displaced”, B.S.Chimni(ed,), International Refugee Law: A reader, ( New
Delhi : Sage Publications, 2000), 405.
xlvi
“Internally Displaced Persons: Compilation and Analysis of Legal Norms: Part I”,(1995) 32 ASIL studies in
Transnational Legal Policy 96, 101.
xlvii
Francis Deng, “Internally Displaced persons: Report submitted pursuant to Commission on Human Rights Resolution”,
B.S.Chimni(ed,), International Refugee Law: A reader, ( New Delhi : Sage Publications, 2000), 402.
xlviii
Patrick L. Schimdt, “ The Process and Prospect for the U.N. Guiding Principles on Internal Displacement to become
International Customary Law : A preliminary assessment” (2004) 35, Georgetown Journal of International Law 385,385.
xlix
Catherine Phuong, The International Protection of Internally Displaced Persons, (Cambridge: Cambridge University
Press 2004), 69.
l
Ibid at 73.
li
Roberta Cohen, ““Response to Hathaway” (2007) 20 Journal of Refugee Status 370,373.
lii
Ibid at 373. Also At the regional level, the African Union is in the process of developing a binding instrument based on
the Guiding Principles, while at the sub-regional level, the member states of the International Conference on the Great
Lakes Region have already adopted a Protocol on Protection and Assistance to Internally Displaced Persons--a binding
instrument, that obliges states to accept the Guiding Principles by incorporating them into domestic law.
liii
Roberta Cohen, ““Response to Hathaway” (2007) 20 Journal of Refugee Status 370,373.
liv
http://www.hrdc.net/sahrdc/hrfeatures/HRF33.htm, No Refuge, The Plight of Conflict-Induced Internally Displaced
Persons in India, 16 March 2001, Necessary physical facilities like water, electricity, sanitation, etc. have been provided
free of cost. There are 12 dispensaries within Jammu to provide medical facilities to the migrants. The living conditions of
the migrants in these camps are closely monitored by MHA. In Delhi also, accommodation, water electricity, sanitation, etc.
have been made available. But, the quality of these facilities is put to question. There might be cases wherein the drinking
water provided is not up to the mark.
lv
Panun Kashmir vs. State of Jammu & Kashmir, (Case no.: 802/94-95/NHRC), Panun Kashmir Movement vs. State of
Jammu & Kashmir, (Case no.: 938/94-95/NHRC) & All India Kashmiri Displaced Employees Forum vs. State of Jammu &
Kashmir, (Case no.: 782/96-97/NHRC)
lvi
These issues were raised in the cases of: Panun Kashmir vs. State of Jammu & Kashmir, (Case no.: 802/94-95/NHRC),
Panun Kashmir Movement vs. State of Jammu & Kashmir, (Case no.: 938/94-95/NHRC) & All India Kashmiri Displaced
Employees Forum vs. State of Jammu & Kashmir, (Case no.: 782/96-97/NHRC).
lvii
“INDIA: Large numbers of IDPs are unassisted and in need of protection” A Report by Internal Displacement Monitoring
Centre, the IDMC, Norwegian Refugee Council, 2007.
lviii
Ibid.
lix
Principle 6, Guiding Principles of Internal Displacement,1998.
lx
Principle 9, Guiding Principles of Internal Displacement,1998.
lxi
MCRG, December 2006, pp. 10-12, Shekhawat/ Mahapatra, June 2006, pp.4-5.
lxii
Principle 11, Guiding Principles of Internal Displacement,1998.
lxiii
This also covers any acts of slavery or the contemporary forms of slavery that shall lead to sale into marriage, sexual
exploitation and the like. One of the most forceful of the provisions in this principle is to also take into purview acts of
violence, threats or even incitement intended to spread terror among the internally displaced persons. All these acts are
widely prohibited by the GPs.
lxiv
lxv
Section V. Principles Relating to Return, Resettlement and Reintegration.
lxvi
Principle 21..
lxvii
“Relief to Kashmiri migrants and their rehabilitation”, GOI- Ministry of Home Affairs, 2006-07, p16.
lxviii
Section III. Principles Relating to Protection During Displacement- Principles 10 to 21
lxix
Iris Marion Young, Justice and The Politics Of Difference (1990) Chapter 2 “The Five Faces Of Oppression”, Marion
Young in her theorizing on the faces of oppression has identified five faces of oppression; they are Exploitation,
Marginalisation, Powerlessness, Cultural Imperialism and Violence. The last face is of relevance to us when we look at the
situation of the KP Community.
lxx
The community we are talking about here is a religious minority in the State of Jammu & Kashmir. The terrorists belong
to the dominant group, the Kashmiri Muslims. When the minority rejected the dominant meanings and their perception of
the society and aspirations for the society, (Nizam-e-Mustafa) which had no place for them, the Cultural Imperialists
resorted to irrational violence.
lxxi
Hereafter referred to as GPs
lxxii
Henry Shue, Basic Rights: Subsistence Affluence And Us Foreign Policy (1980) Chapter 1 “Basic Rights” Pp 13-34 And
Chapter 2 “Correlative Duties” Pp 35-62, I shall now bring in the two basic rights.
lxxiii
Martha Craven Nussbaum, “Frontiers of Justice: Disability, Nationality, Species Membership” (The Tanner Lectures on
Human Values), BENKALP (Harvard), 2006
lxxiv
WH Hohfeld, “Some Fundamental Legal Conceptions as applied in Judicial Reasoning”, 23 Yale LJ 13 (1913)
lxxv
KPS Gill, “The Kashmiri Pandits: An Ethnic Cleansing the World Forgot”, South Asian Terrorism Portal, Among
the worst victims of this conflict are the Kashmiri Pandits, descendents of Hindu priests and among the original inhabitants
of the Kashmir Valley, with a recorded history of over 5,000 years. Over the millennia, this community has been integral not
only to the cultural and intellectual life of the people of this region, but the bulwark of its administration and economic
development as well. The Pandits have now become the targets and victims of one of the most successful, though little-
known, campaigns of ethnic cleansing in the world. Pogroms of a far lesser magnitude in other parts of the world have
attracted international attention, censure and action in support of the victim communities, but this is an insidious campaign
that has passed virtually unnoticed, and on which the world remains silent. Among the complex reasons for this neglect is,
perhaps, the nature of this community itself: where other campaigns of ethnic cleansing have invariably provoked at least
some retaliatory violence, the deep tradition and culture of non-violence among the Kashmiri Pandits has made them accept
their suffering in silence, with not a single act of retaliatory violence on record.