USAnylsis

The Yasin Malik case

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The National Investigation Agency (NIA) of India recently filed a plea before the Delhi High Court seeking to convert the life imprisonment sentence awarded to Yasin Malik almost a year back into a death penalty.

The move is indicative of India’s plan to eliminate yet another stalwart of the Kashmiri struggle for independence. If this plea is granted, it would mark the third high-profile execution of a Kashmiri leader, following the deaths of Maqbool Butt and Afzal Guru.

Yasin Malik, an iconic freedom fighter, was last time arrested in August 2019 and subsequently sentenced to lifelong imprisonment in a concocted terrorism financing case. That the court can grant the NIA’s plea stems from the peculiar precedent set by the Supreme Court of India which awarded death sentence to Afzal Guru in 2005 only to satisfy “the collective conscience” of Indian society.

Similar to the Pulwama incident in which around 40 Indian troops were killed in a blast before being culminating into the so-called surgical strike on Balakot in 2019, the BJP seems eager to send Malik to gallows to galvanize its support base and secure victory in the upcoming general elections next year.

Before discussing measures to prevent India from carrying out the judicial murder of Yasin Malik, it is instructive to refresh certain facts. Kashmir today remains the only place on earth where more than a dozen high-profile political prisoners have spent over two, and in some cases, even three decades behind bars while fighting for the just cause of their people.

The world duly reveres the late Nelson Mandela for his 27-year-long freedom struggle from prison; it has however turned a blind eye to Kashmir which has also produced many such heroes who genuinely deserve to be treated as global icons.

Syed Shabbir Shah, declared a prisoner of conscience by Amnesty International, has spent 37 years of his 69-year-long life in jail. Subjected to extreme torture and maltreatment, he has refused to budge even a single inch and remains a great source of inspiration to his people. Another iconic figure Dr Qasim Faktoo has been behind bars for a staggering 30 years. Strangely enough, India refused to release him on completing 14 years’ term in jail, pleading that life imprisonment in his case must be read as ‘imprisonment until death’.

Aysia Andrabi, the wife of Dr Faktoo, has also been imprisoned for nearly two decades. In another bewildering case, four Kashmiris – Mohammad Ali Bhat, Lateef Ahmad Waza, Mirza Nissar Hussain, and Abdul Gani Goni – were set free after enduring 23 years of wrongful imprisonment in 2019. It is worth mentioning that late Syed Ali Gilani also spent the bigger part of his life in Indian jails, relentlessly striving for the right to self-determination. The list goes on.

While India has seized every available opportunity to censure Pakistan regarding Balochistan, Islamabad has failed to build a compelling case regarding even the long-standing incarceration of prominent Kashmiri leaders. It is therefore imperative to relaunch a well-designed legal battle based on established principles of international conventions, engage with human rights bodies, and leverage media platforms to save the lives of individuals like Yasin Malik and bring the Kashmir issue to the forefront once again.

Among numerous others, the International Covenant on Civil and Political Rights (ICCPR) deserves special attention in this context. This multilateral treaty commits nations to respect the civil and political rights of individuals, including the right to life, right to self-determination, and right to due process and a fair trial.

India ratified this covenant in 1979 which included declarations to Article 1, which guarantees the right to self-determination; Article 9(5), which ensures compensation for victims of unlawful arrest or detention; and Article 13, which outlines the rights of aliens in matters of expulsion. These declarations however do not exonerate it of its obligations to uphold fundamental human rights standards.

Those who follow the Kashmir struggle perhaps need to be reeducated that the UN system has two distinct mechanisms in place for monitoring human rights: treaty-based bodies and charter-based bodies. The 10 human rights treaty bodies consist of independent expert committees that oversee the implementation of core international human rights treaties.

Charter-based bodies, such as the Human Rights Council, Special Procedures, the Universal Periodic Review, and Independent Investigations, address human rights issues from a thematic or country-specific perspective.

To invite attention to the plight and potential hanging of Yasin Malik and other iconic Kashmiri leaders, Pakistan must not only raise the issue at the UN Human Rights Committee, which ensures compliance with the ICCPR, but also facilitate concerned individuals and groups to approach the Special Procedures of the Human Rights Council.

These independent human rights experts are mandated to report on and advise on human rights issues and, despite India’s reservations, this avenue has the potential to exert significant pressure on India on human rights violations in Kashmir.

In addition to engaging with international human rights organizations, Pakistan should in particular reach out to some highly influential outlets such as the EU-NGO Forum on Human Rights, the Human Rights and Democracy Network, and the International Commission of Jurists. These platforms possess the ability to exert pressure on India, urging a fair trial and the release of political prisoners in Kashmir.

The possible judicial murder of Yasin Malik not only poses a severe threat to the freedom movement in Kashmir but also exacerbates the suppression of dissenting voices in the region. Regrettably, the issue failed to garner any attention during the recently concluded UN Human Rights Council meeting in Geneva, allowing India to evade accountability for something that stems from an egregious miscarriage of justice and blatant disregard for international covenants.

The writer is an Islamabad-based

researcher with a special interest in India, Pakistan and regional affairs. He can be reached at:

sabursayyid@gmail.com

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