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Home > Self Determination: Principle & the Law> Use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination

Self Determination: principle & the law

Use of mercenaries as a means of violating human rights
and impeding the exercise of the right of peoples to self-determination

Note by the United Nation Secretary-General,
A/49/362, 6 September 1994 (excerpts)


13. On 4 January 1994, the Government of India sent the following communication to the Special Rapporteur:

"Induction of alien mercenaries in Jammu and Kashmir, an integral part of India, has intensified in the recent past. Pakistan has escalated its programme of recruitment, training, financing and arming of alien mercenaries as part of its offensive in Jammu and Kashmir. The concerned authorities in India have reliably ascertained that in collusion with the Jamaat-E-Islami (JEI), Pakistan has recruited and inducted into India mercenaries who had already been trained to fight along with the Afghan Mujahideen in Afghanistan.

"The mercenaries are also actively associated with local training of terrorists in Kashmir. The locations of mercenaries in dense forests and upper reaches of hills are being used as make-shift training camps. Some of these mercenaries have old association with terrorist groups in Kashmir going back to their training operations on Pak-Afghan border.

"The mercenaries are mostly operating with well-known terrorist groups like 'Hizb-ul-Mujahideen' (HuM), 'Al Barq' and 'Al Jehad Force'. In addition, 'Harkat-ul-Mujahideen' and 'Harakat-ul-Jehad-e-Islami' (HUJI) militant outfits have a large number of such mercenaries who are operating in various parts of the State.

"The profile of militancy in the Kashmir valley and several districts of the Jammu region has witnessed an unprecedented qualitative new dimension due to the presence of an estimated 500 battle-hardened, highly trained and well-armed mercenaries. The mercenaries apprehended in this area by the Government security forces since 1991, corroborate the fact of their presence. Around 30 foreign mercenaries engaged in terrorist operations have been arrested since 1990, and 91 have been killed while engaged in terrorist operations. In addition, incontrovertible documented evidence is available about the infiltration and presence of foreign mercenaries and the atrocities committed by them. A few mercenaries who were inducted in Jammu and Kashmir till the middle of 1992 were initially used as bodyguards of top militant leaders. They were also used by terrorist groups to arouse fundamentalist sentiments.

"The activities of mercenaries are in violation of the sovereignty and territorial integrity of my country. The intensity and ferocity of terrorist violence in Jammu and Kashmir in this period may be gauged from the fact that there were as many as 14,542 incidents of terrorist violence in Jammu and Kashmir in the last four years entailing the death of about 2,700 innocent civilians and countless acts of incessant destruction of government and private property. Political leaders, workers and their relatives have been eliminated to prevent all democratic political activity; government officials have been killed to silence the administration; members of the judiciary and the press intimidated to create a breakdown of the legal system and of independent journalism; intellectuals, educationists, journalists and community leaders abducted and killed to silence dissent. The systematic religion-based extremism by terrorist elements has resulted in the exodus of 250,000 members of other religious communities from Kashmir valley to other parts of India. Indeed as many as 50,000 Muslims have also been compelled to flee the valley to seek safety and succour in other parts of India.

"The atrocities perpetrated by the mercenaries have been wanton and indiscriminate. Even innocent women and children have not been spared. The pattern has been consistent: kidnap a woman and kill her after outraging her modesty. Or, rape and kill her in her own house in the presence of her own family members and then kill them all. Innumerable human rights violations committed by mercenaries are widely corroborated by independent observers.

"The induction of mercenaries has resulted in an escalation in the intensity and firepower of terrorist attacks on security forces resulting in higher casualties and greater damage and destruction on public and private property. Several incidents of concentrated attacks on the army and Border Security Forces resulting in large scale casualties have been confirmed to have been planned and carried out by mercenaries."

14. On 2 February 1994, the Special Rapporteur notified the Government of the Islamic Republic of Pakistan of the complaints formulated by the Government of India concerning mercenary activities in Jammu and Kashmir and requested it to submit any comments or observations it deemed appropriate. On 3 February 1994, a letter was sent to the Permanent Mission of India to the United Nations Office at Geneva, requesting the following additional information:

"(a) Indication, wherever possible, of the nationality of the persons described as 'foreign mercenaries';

"(b) Specific information on the State, groups of States or international or national organizations that might be behind the recruitment and use of mercenaries;

"(c) If no such connection exists, information on the possible existence of groups in Jammu and Kashmir that might have called for the use of mercenaries without resorting to a third power;

"(d) Information as to whether these mercenaries are acting in an individual capacity, as self-organized gangs or in conjunction with armed groups or regular forces and, in the latter case, an indication of the country to which these forces belong;

"(e) Information on the type of illegal activity they are conducting: training, attacks on the civilian population, abductions, sabotage of civilian facilities, torture, killings and any other activity affecting human rights;

"(f) Information on the financing of the mercenaries, with an indication of how much, by whom and under what conditions they are paid;

"(g) Status of detainees alleged to be mercenaries (30) and those accused of terrorist activities, with an indication of their name, number and nationality, whether they are still under arrest, and the status of any legal proceedings instituted against them. Similarly, in connection with another part of your communication, a description of the documentary evidence that it has been possible to collect on the presence in Jammu and Kashmir of foreign citizens who have been used as mercenaries."

15. In a note verbale of 13 July 1994, the Permanent Mission of Pakistan to the United Nations Office at Geneva sent the following reply to the communication of the Special Rapporteur:

"(a) Pakistan condemns the use of mercenaries for destabilizing Governments and fighting against the national liberation movements of peoples struggling for their right to self-determination;

"(b) It is inconceivable for Pakistan to allow any mercenary activity on its territory. Pakistan's condemnation of such acts has always been immediate and unequivocal. Since 1980, Pakistan has been tabling resolutions in the Third Committee of the General Assembly, condemning the use of mercenaries;

"(c) On the other hand, it is very unfortunate that in our neighbourhood mercenary activity has continued unabated over 46 years in the disputed territory of Jammu and Kashmir. In the recent years, the mercenary actions launched by the Indian Government have reached an unprecedented level;

"(d) In August 1947, Pakistan and India became independent States in accordance with a scheme of partition provided by the Indian Independence Act 1947. Under the partition plan all Muslim majority areas were to constitute Pakistan and all the Hindu majority areas were to go to India. Similar advice was given to the rulers of over 560 States of India. The State of Jammu and Kashmir, with a 77 per cent Muslim majority, (1941 census) thus should have acceded to Pakistan. The Maharaja of Kashmir, however, fraudulently acceded the State to India on 26 October against the wishes of the people of Kashmir. Renowned historian, Mr. Alastair Lamb, in his book 'Kashmir: A disputed Legacy, 1846-1990' has dealt at length with the subject of the accession of Kashmir to India. He has concluded that the instrument of accession was invalid and was manipulated by the Indian Government;

"(e) The Kashmir issue was brought to the Security Council by India on 1 January 1948. As a result, the United Nations Commission on India and Pakistan (UNCIP) was established through a Security Council resolution on 20 January 1948. The Security Council adopted another resolution on 21 April 1948, which provided for a plebiscite in Jammu and Kashmir for determining the future status of the State;

"(f) After undertaking a survey of the situation, the Commission adopted a resolution, on 13 August 1948, containing proposals for a cease-fire order, truce agreement, and a re-affirmation of the desire for a plebiscite in Kashmir. The Commission decided that it will appoint military observers to supervise the observance of the cease-fire order. The UNCIP resolution of 13 August 1948 was accepted by both India and Pakistan;

"(g) The UNCIP sent its final plebiscite recommendations on 11 December 1948, to India and Pakistan. Both the Governments accepted the UNCIP proposals and the recommendations of the Commission were subsequently adopted in UNCIP resolution 5 January 1949. The resolution, inter alia, provided:

"(i) That the question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of free and impartial plebiscite;

"(ii) That the Secretary-General of the United Nations will, in agreement with the Commission, nominate a Plebiscite Administrator;

"(iii) That after implementation of Sections I and II of the Commission's resolution of 13 August 1948, and when the Commission is satisfied that peaceful conditions have been restored in the State, the Commission and the Plebiscite Administrator will determine, in consultation with the Government of India, the final disposal of Indian and State armed forces, such disposal to be with due regard to the security of the State and the freedom of the plebiscite;

"(iv) For the repatriation of refugees to participate in the plebiscite;

"(v) For the restoration of political and human rights to ensure a democratic plebiscite;

"(vi) For demilitarization preparatory to the plebiscite;

"(vii) For UNCIP certification as to whether plebiscite would be free and impartial;

"(viii) That the Governments of India and Pakistan should further agree that a United Nations representative be appointed by the Secretary-General of the United Nations in agreement with the two Governments, to have the authority of interpreting the agreement reached between the parties and implementation of the plan of the reduction and re-distribution of armed forces. Furthermore, the United Nations representative should place his good offices at the disposal of Pakistan and India for reaching an enduring solution to the Kashmir question;

"(h) The Security Council adopted resolutions in 1951 and 1957, reaffirming the right to self-determination of the people of Kashmir. The Kashmir dispute remains on the agenda of the United Nations Security Council. India thus remains in illegal occupation of Jammu and Kashmir;

"(i) After years of repression by the Indian occupying forces, the people of Kashmir rose to demand their inherent right to self-determination in 1990. This movement has resulted from the continued refusal of the right to self-determination to Kashmiri people. The struggle of the Kashmiri people derives its legitimacy from their recognized and unfulfilled right to self-determination. This right was recognized in the United Nations Security Council resolutions. These resolutions are as valid today as they were 40 years ago. The fundamental principle of self-determination which the United Nations, Pakistan and India and the entire international community have pledged to the Kashmiri people is not subject to prescription. The Kashmiri people have risen to secure this right to self-determination which they have been denied for decades;

"(j) Since 1990, Jammu and Kashmir has been subjected to repressive laws like the Disturbed Areas (J&K) Special Power Act which provides for arrests, interrogation and detention of civilians up to four years without recourse to courts. The Indian mercenary army over the past four years have slaughtered more than 40,000 innocent Kashmiris in cold blood. Thousands more have been maimed and crippled. Still thousands are languishing in concentration camps and inhuman torture cells. Hundreds of their leaders - intellectuals, religious scholars, doctors, engineers, etc. have been either slain or detained in jails;

"(k) The Indian Security Forces are involved in deliberate and systematic acts of repression against innocent Kashmiris. International human rights groups have catalogued graphic accounts of Indian brutalities in Kashmir. Unfortunately it is in the 'world's largest democracy' that the innocent men, women and children have been killed and mutilated with full impunity under Draconian laws. Large scale and brutal repression of the Kashmiri people to suppress their right to self-determination amounts to the worst form of mercenary activity;

"(l) Pakistan extends moral, political and diplomatic support to the Kashmiri people who are fighting for their right to self-determination. We do not extend them military support. In this context, we would like to request the Special Rapporteur on the question of the use of mercenaries to visit Jammu and Kashmir to verify this fact;

"(m) In April 1990, in response to Indian charges of interference, the Foreign Minister of Pakistan had proposed to his Indian counterpart, the placement of neutral observers on the Line of Control in Kashmir to monitor and investigate charges of interference. Pakistan has repeatedly offered this mechanism which India has repeatedly rejected thus exposing the propagandist nature of its allegations;

"(n) Pakistan is prepared to facilitate visits by foreign journalists, parliamentarians, observers and human rights organizations to the areas along the border and the Line of Control. Pakistan has extended invitations to media teams to send their representatives to Azad Kashmir and to Pakistan. Similar invitations have been sent to Amnesty International, Asia Watch, the International Federation of Human Rights and other human rights organizations;

"(o) Pakistan has already opened Kashmir for international observation through the United Nations Military Observer Group deployed in Azad Kashmir, while India has always refused to do so on its side of the Line of Control;

"(p) India has not only launched mercenary action in the disputed territory of Jammu and Kashmir, but has also been trying to destabilize Pakistan through the training and financing of mercenaries in the Pakistani Province of Sindh. India has been systematically launching subversive and terrorist elements in Sindh. Bases were established between Rajisthan and Barmer to train the mercenaries;

"(q) Training of saboteurs: Indian authorities have established 36 camps (19 of these are in Rajisthan and Gujrat to cover Sindh) for training of saboteurs with the ultimate aim to launch them into Pakistan for subversion and terrorism. Such trainees are generally drawn from anti-Pakistani organizations/elements. Some of the details are as under:

"(i) Establishment 22. A special cell known as Establishment 22 with its headquarters at Bachiya Bagh (Kalsi) near Dehradun has been imparting terrorist training since 1986 for subversive/terrorist activities inside Pakistan;

"(ii) Old Fort Office. Another RAW office located at Jaipur in an old fort situated on Ajmer Road also imparts terrorist training;

"(iii) Number of incidents/casualties. During the last 7 years (up to May 1994), Indian sponsored/trained agents carried out 219 incidents of terrorism in Pakistan which resulted in the death of 462 persons and injuries to 1,744."

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