CONFERRAL OF THE STATUS OF INTERNALLY DISPLACED

PERSONS ON THE KASHMIRI PANDITS : A JURISPRUDENTIAL

ARGUMENT

TRIPTI DHAR*

Keywords:- Kashmiri Pandits, Internal displacement, legal

construction, Guiding principles on Internal Displacement, terrorism,
state dysfunction.

Although internally displaced persons have not crossed an

internationally recognized border, and hence, cannot be accorded the
status of refugees, it does not undermine the operational reality that
both experience forcible uprooting as a result of ethnic persecution.
The only plausible hindrance to providing a legal status to IDPs is the
principle of sovereignty and non-intervention, however, principle of
humanitarian action is an effective exception to the same. Guiding
Principles on Internal Displacement, 1998 lays down legal principles
recapitulating protection for IDPs, however, it carves out only an
operational niche and is not legally binding. This has worsened the
position of Kashmiri Pandits, who although continually referred to as
‘migrants’, are not considered IDPs as the status cannot be claimed as
a matter of right. This paper advocates the ascribing of this status as
evidence shows that their current situation falls squarely within the
ambit of the guiding principles.

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 internally displaced persons have not crossed an

internationally recognized border but rather seek refuge in another
part of their country which renders their situation intrinsically
complicated and unique. The traditional approach of the international
law regime is premised on the view that internal displacement falls
within the sovereignty of states and hence, it is the responsibility to
protect and assist all internally displaced persons within their domestic
jurisdictions. However, in practice, internal displacement often occurs
in situations of civil conflicts, ethnic persecution etc. where the
capacity or willingness of the state to provide protection and
assistance are equally in doubt. This dichotomy has led to IDPs being
in a vacuum of sovereignty where the international community has
been apprehensive in according them legal recognition and the states
have failed in providing them material assistance inspite of the sheer
magnitude of the crisis.i
The Kashmiri Pandit (KP) Community is not ignorant of the fact
that they have been accorded the fate of migrants or refugees in their
own country. However, it is time that they realize that their legal
position does not satisfy the norms and criteria as set by the 1951
Refugee Convention. The reason, in simple terms is that, as already
discussed, the status and rights of refugees can be accorded to those
persons who, due to uncontrolled and adverse circumstances crossed
an internationally recognized State border. In effect, The KP
community was exiled from their native state, Jammu and Kashmir to
other parts of the country. The situationii of Kashmir led to internal
displacement primarily from the conflict in the north-western state of
Jammu and Kashmir between militants seeking either independence or
accession to Pakistan, and Indian security forces and the police.
Against this background, recently, certain KP groups like Roots in
Kashmir, Panun Kashmir etc. have demanded the status of “Internally
Displaced Persons”iii for themselves. Extensive literature reporting by
the international community points to the unfortunate scenario
wherein the internally displaced have no entitlements and means to
secure their basic rights and privileges and are in dire need of
protection.iv
The central argument that the researcher addresses in this
paper is that the phenomenon of internal displacement can be
managed more effectively by creating a legal framework for addressing
the reality of internal displacement as a separate category. Pursuant to
this, it is imperative that Kashmiri Pandits be accorded the status of
‘internally displaced persons’ so that they can avail of the protection
granted to the same. The researcher has divided the paper in four
parts; the first part addresses the claim whether IDPs should be
provided a distinct legal status. The second part enquires whether the
principles of sovereignty and non-intervention constitute a hindrance
in assistance to IDPs as a distinct legal category. The third part
investigates whether existing international law regime would be
sufficient to provide protection to IDPs as a distinct legal category or
there is a need for a separate normative framework. Finally, the fourth
part determines the validity of the vociferous claims of Kashmiri
Pandits to the status of IDPs.

II. LEGAL CONSTRUCTION OF IDPS:-

The usual predicament involved in the conceptualization of
internally displaced persons is the obfuscation of legal terminologies as
regards the victims of forced displacement. The foundation of this
present quandary was laid down in the definition of refugee as given in
the 1951 convention which defined a refugee as a person who is
outside the country of his nationality owing to a well founded fear of
persecution.v The early references to other victims of forced
displacement were made through the emergence of the expression
displaced persons in order to extend humanitarian assistance in cases
where it was inexpedient to provide protection to only refugees.vi
The meaning of this term was sought to be clarified
unsuccessfully by suggesting that displaced persons referred to people
who had either crossed the international boundaries but did not qualify
for a refugee status or remained in the country. viiFinally, the term
‘internally displaced persons’ was coined in order to distinguish it from
refugees in terms of their chosen safe territorial relocation. Whereas
the latter has fled across the international boundaries, the former
remains in his/her own country.viii The relevance of this discourse on
the ambiguity in this legal terminology lies in the fact that such a
usage ascribes a legal status to one and denies the same to another
when both are victims of the same humanitarian crisis, resulting in a
range of disentitlements for one of them. This debate also becomes
significant in the light of the indiscriminate use of these legal
constructs by the international organizations and in the academic
circles and hence, the need for demarcation of their boundaries. ix

This raises a valid doubt of the inadequacy of the theoretical

construct of the term ‘refugee’ in international law. The non-legal
perception of the refugee is a person who has been forcibly displaced
from his/her home, irrespective of the circumstances or the
destination. However, this has not been incorporated in the legal
definition of a refugee which is based on the premise that the bond
between the citizen and the state has been severed, the only physical
manifestations of this severed bond being persecution and alienage i.e.
border crossing.x The requirement of alienage remains fundamental to
the current refugee system as it derives from the principle of state
sovereignty; however, it becomes conceptually irrelevant to the refugee
definition as it refers to a political relationship rather than a territorial
one.xi Even though the requirement of alienage is not satisfied in case
of an IDP, the risk of persecution and the need for protection is the
same for both the refugees and the internally displaced persons.xii
 The next logical step in the enquiry then seems to be two
pronged, whether there is a need for removing the requirement of
alienage from the refugee definition so that IDPs can be ascribed the
same legal status or whether IDPs should be accorded a separate legal
status. As far as the first alternative is concerned, there has been a
huge furore over whether it is time for a legal synthesis of the two
categories eliminating this distinction without difference. The
proponents argue that even though refugees have a distinct
international legal status and the IDPs don’t, the operational reality
remains that both of them experience forcible uprooting as a result of
persecution and human right violations. IDPs are often perceived as
adversaries through either their association with an insurgent group,
an opposing political or ideological viewpoint, or as members of an
ethnic, cultural or a religious group, thus they experience a de facto
‘outsider’ status.xiii The vehement supporters of the ‘legal synthesis’
argue that the use of border crossing as the most important criterion
for determining the eligibility to international protection can be
criticized on historical, practical, juridical and human rights grounds.
Historically, there was no such requirement for being a refugee prior to
the Refugee Convention and refugee status was determined on the
basis of whether there was a lack of protection from the state. xiv In the
post cold war era, the political persecution of individuals in the iron
curtain regime has been replaced by human right abuses, ethnic
conflicts and generalized deprivations as the root causes of
displacement, which necessitate a restoration of the earlier traditional
definition.xv A formidable juridical argument against the use of
boundaries as determinants of the refugee status is the fact that the
validity of a boundary is inextricably linked to the diplomatic
recognition of the state concerned. It is also impractical as the
protection and assistance to similarly placed groups should not be
based on their legal status rather the need of enforcement of the same
human rights for both the groups.xvi
 The opposition comes from a historical and political analysis of
the coining of IDPs as a separate category citing the reason for this
protection-oriented initiative being a strategy designed to deflect
scrutiny of the refusal of states to live up to their responsibilities to
refugees. Also, this is reflected in the changing priorities within the
international humanitarian regime wherein the primary motive of
limiting refugee flows and avoiding long term settlement has resulted
in a policy shift towards internalising displacement. xvii In their opinion,
the need to distinguish the refugees from IDPs comes from the
distinctiveness of their circumstances. This is because the specific
rights that flow from the refugee status are directly related to the
predicament of being outside the country of origin, which might be
irrelevant to the IDPs as they already are entitled to such a legal
protection being citizens of the state.xviii Further, it has been suggested
that they should not be given the same legal status as they require a
different nature of protection. In the case of refugees, there is need for
creation of an alternate substitute legal regime for protection because
they have lost all means of assistance from their countries, whereas
IDPs are still within the jurisdiction of their own state. Thus, the
protection required for IDPs should only be a complementary
protection existing in parallel with the national protection.xix
The second alternative is to create a separate legal status for
IDPs as distinct from refugees. The opponents of this view argue that it
is artificial to make a distinction between the displaced persons and
the other internal human right victims, who experience same
vulnerability and discrimination. Hence, since the remedial tools for
the internally displaced and non-displaced is the corpus of the general
international human rights law, there is no need for a prioritization of
the enforcement of the rights of IDPs as they don’t experience graver
human rights abuses.xx However, this argument fails to take into
account the fact that IDPs need a special regime of protection as they
have specific needs which need to be addressed. Some of these are a
protection against forcibly returning to danger zones, loss of
communities, livelihoods and property. Also, there are statistical
studies proving that IDPs have higher mortality rates, malnutrition
rates, greater exposure to sexual violence, restrictions on movement,
violations of land, housing and property rights etc. as compared to
other internal human right victims.xxi
However, it might seem interesting to note that the proponents of
the separate categorization of the ‘IDPs’ in the international protection
regime in the above debate fail to specify whether this is meant to
carve out a legal or merely an operational niche. It is pertinent to note
the third proposition at this stage which suggests that although
creation of a legal status is undesirable, an operational definition
facilitating the material assistance and protection measures is
advisable.xxii However, this argument fails to take into account the fact
that this operational definition cannot ensure mandatory protection for
the internally displaced, which can be more pronounced in cases where
states themselves are the persecutors and supporters of the ethnic
cleansing operations or do not have the resources and capacity to
address the needs of the internally displaced. In such a case, the
internally displaced cannot claim any protection as a matter of right
and will be left to the mercy of the institutional response. Thus, the
IDPs are merely made an object of a whole range of entitlements with
no say in the exercise of such entitlements, hence, a mere operational
definition might not suffice to ameliorate the conditions of internally
displaced.
As far as the argument of IDPs being given a special treatment
from the other internal human right victims is concerned, it only
addresses certain situations where the entire state is experiencing an
international or internal armed conflict, but not cases where a
particular group has experienced displacement in an otherwise
peaceful state. Although, there might be a justification behind the
argument that there is insufficient reason to identify and privilege
IDPs, but this would lead to an inference there should be no special
recognition to groups in international legal regime which might have
special vulnerabilities by virtue of their status, including women,
children etc.
The only pragmatic concern that granting legal status to IDPs
raises is that the states will perceive this as a threat to their
sovereignty and the principle of non-intervention which are the
cornerstones of international law.xxiii The next section addresses the
issue of the emerging paradigms of sovereignty and non-intervention
with respect to the international humanitarian response to the IDPs.

III: EVOLVING PARADIGMS OF SOVEREIGNTY AND

IDPS
Although it is difficult to apply generalizations to situations of
internal displacement, it is frequently referred to ‘as a symptom of
state dysfunction’ in so far as the state either persecutes its own
citizens causing them to flee or fails to protect them from persecution
by the non state agents. IDPs cross fluid lines of division within state
which may divide ethnic, religious or political communities seeking
autonomy or even statehood. This demonstrates the real threat to the
territorial integrity of the state as acknowledging existence of IDPs
would mean there exists internal lines of division between communities
which do not want to share the same geographical and political
space.xxiv The situation of the IDPs can become critical when they fall
into a ‘vacuum’ of sovereignty, when the state is unable to refuse or
refuses to assume responsibilities towards protection of IDPs as they
remain in their country of origin.xxv
Although it has time and again been reiterated that respect for
sovereignty is integral to the existence of international law, the trend
of a shift from absolute sovereignty to accountability for human right
abuses is gaining momentum. This has led to formulation of a new
concept of ‘popular sovereignty’ that if a government exercises
sovereign rights within a territory without the consent of people living
there, such exercise has no basis and no legitimacy. xxvi However, this
approach cannot be pursued because there is no requirement in
international law for entities to be democratic in order to be
recognised as states and participate in the international system. xxvii A
less radical approach is the notion of ‘sovereignty as responsibility’
wherein sovereignty is understood more in terms of conferring
responsibilities upon governments to assist and protect persons
residing in their territories, failing which would be an forfeiture of
sovereignty.xxviii It has been argued by the International Commission on
Intervention and State Sovereignty (ICISS) that state has the primary
competence and the responsibility to curb the human right violations.
International jurisdiction would become operative only at the next
stage following the failure of the government to exercise its primary
jurisdiction. In such a manner, the primary and secondary jurisdictions
exist concurrently and are complementary rather than mutually
exclusive.xxix However, it alone cannot form a legal justification for
intervention as the state’s inability or unwillingness to carry out its
obligations could give rise to dangerously frequent claims of rights to
intervene.xxx
Another principle of intervention without consent while still
recognizing state sovereignty is the principle of abus de droit i.e. the
exercise of a lawful right can become unlawful if it involves the
sacrifice of a more important individual or a community to that of a
lesser important individual or community.xxxi It has been opined that an
arbitrary refusal to permit the administration of humanitarian relief to
internally displaced persons, in violation of human right, may
constitute an abus de droit which cannot prevent UN from discharging
tasks conferring upon it by UN charter.xxxii Although, there has not been
a strong precedent for extending the principle to refusals to allow
humanitarian assistance, in one particular case, the principle of abus
de droit was tied to the specific failure to obey U.N. Resolutions. xxxiii
Nevertheless, it has been opined by eminent publicists that although
doctrine is a useful agent in the progressive development of law, but it
does not exist in international law.xxxiv
 However, in spite of all these theoretical developments in the
realm of sovereignty and its connotations, it has failed to permeate the
boundaries of the practical constraints of International law. In the
Nicaragua case, the ICJ held that preservation of human rights cannot
be a ground for unilateral humanitarian intervention, however, it was
also held that humanitarian aid cannot be regarded as unlawful
intervention as long as it is done to prevent and alleviate human
suffering.xxxv The UN in its General Assembly Resolution of 1991 on the
Strengthening of the Coordination of Humanitarian Emergency
Assistance reaffirmed the principle that assistance should be applied
only in response to an appeal from the affected state and with respect
for its territorial integrity; this ambivalence has been reflected in the
institutional response from other international organizations. xxxvi Thus,
it seems beyond doubt that under principles of customary international
law sovereignty is not a myth, but a very real obstacle to international
protection and assistance to the internally displaced.xxxvii
However, the norms of sovereignty cannot in all situations be a
hindrance to humanitarian assistance to the IDPs . Although Article 2(4)
and Article 2(7) of the UN Charter reinforce the principles of
sovereignty and intervention, Chapter VII of the UN Charter empowers
the Security Council to take enforcement actions if the acts of state
constitute a threat to international peace and security. In recent years,
UN action has shown willingness on the part of the Security Council
and the international community to undertake Chapter VII
enforcement actions to protect human rights. In the case of Iraqi
repression and persecution of Kurds in the aftermath of the Gulf War,
the Security Council passed Resolution 688 calling on an international
community to provide humanitarian assistance to the Kurds fleeing to
Turkey who were being denied permission for the same, thus suffering
mass displacement.xxxviii In Somalia and the former Yugoslavia, Security
Council cited obstacles to the delivery of humanitarian assistance as
one of the grounds for determining a threat to the peace and
announced the delivery of assistance as a principal objective under
Chapter VII of the Charter.xxxix
Nevertheless, humanitarian intervention under Chapter VII is
still an emerging norm and UN practice cannot be considered
conclusive in this regard. However, it does give evidence of a
persuasive nature that justifies humanitarian intervention in a state’s
domestic affairs at international law, notwithstanding Nicaragua
judgment as it is not applicable to collective U.N. action. Therefore, to
conclude this section, it can be said that humanitarian intervention
through chapter VII of UN Charter has emerged as an effective
exception against the archaic notions of sovereignty and non-
intervention.
Now that it is established that principles of sovereignty and
intervention would not be a threat to providing humanitarian
assistance and intervention for IDPs in spite of them being within the
boundaries of their states, the next question that arises is whether the
existing human rights and humanitarian law network is sufficient to
meet their specific needs or whether there is a need for a special
international legal regime for them, which shall be addressed in the
next section.

IV: LEGAL FRAMEWORK FOR THE PROTECTION OF

IDPS
The existing regime of international human rights and
humanitarian laws offer a basis for protection for internally displaced
persons and accountability for states. In the case of International
Humanitarian Law, it seeks to regulate the conduct of hostilities and
seeks to protect the victims of armed conflicts and is crucial to
protection of IDPs as armed conflicts constitute the main cause of
internal displacement.xl Humanitarian Law provides a more
comprehensive protection in international armed conflicts to which the
Fourth Geneva Convention apply, whereas the law governing internal
conflicts is less elaborate, which incidentally produces the highest
number of IDPs.xli
The provisions applicable to internal armed conflicts are Article
3 common to the four Geneva Conventions, which imposes legal
obligations on parties towards victims of an internal conflict who do
not actively participate in hostilities, including threats to life and
person, taking hostages, outrages upon human dignities etc. However,
Article 1(1) of Protocol II applies only to armed conflicts between state
forces and dissident groups carrying out a sustained and concerted
military operation.xlii In the case of an international armed conflict,
Article 4 of the Geneva Convention mandates that these norms are only
applicable to protection of non-nationals of the state that effectively
holds power in the respective territories, and not persons displaced to
an area controlled by their own government. xliii Part IV of Protocol I
refer to all civilians including IDPs reagarding prohibitions of specific
attacks, starvations etc. and Article 17 of Protocol II deals with the
restrictions on displacement of civilian populations in internal
conflicts.xliv However, humanitarian laws are considered insufficient to
address all the claims of IDPs because, firstly, a limited no. of states
has ratified the laws and secondly, it does not apply to situations of
civil strife in which many IDPs are caught up.xlv
The International Human Rights Law also articulates the
existing standards of protection which applies to IDPs since it applies
to all individuals as being basic attributes of human dignity. The main
human rights instruments which are applicable are Universal
Declaration of Human Rights (UDHR), International Covenant on Civil
and Political Rights (ICCPR), International Covenant on Economic,
Social and Cultural Rights (ICESCR) which guarantee the rights to
freedom of residence and movement, rights against cruel, inhuman or
degrading treatment, arbitrary interference or unlawful treatment
etc.xlvi However, this normative framework is also inadequate because
they do not address some of the most critical situations affecting IDPs
such as forcible displacement, return to unsafe areas , access to
humanitarian assistance, restitution of property, documentation etc.
Furthermore, in situations of displacement, state may be required to
take additional measures to safeguard, which it might be incapable or
unwilling to do considering human rights are subject to derogation
during periods of public emergency and non-applicable against non
state agents.xlvii Also, it is generally acknowledged that IDPs face more
risks with respect to their physical safety, hence the need for different
standards of treatment.
Hence, it is evident that there is a need for a definitive
statement of legal principles that recapitulates and clarifies the
existing norms, grey areas and identifiable gaps. The answer to this
lies in the Guiding Principles on Internal Displacement, 1998
formulated in order to address the specific needs of internally
displaced persons by identifying the rights and the guarantees relevant
to their protection.xlviii The Guiding Principles reflect the effort to
reconcile state sovereignty with humanitarian imperatives by clear
acknowledgment of the fact that the primarily responsibility for the
internally displaced rests with the nations, nevertheless, they clearly
acknowledge that humanitarian assistance from international
organizations should not be regarded as an interference in state’s
internal affairs when government does not have the capacity or
willingness to protect their uprooted populations.
They cover a broad range of rights which corresponds to the
need of the displaced before, during and after the displacement which
include right against arbitrary displacement, range of human rights
including life, education and personal identification, specific needs of
vulnerable groups, humanitarian assistance and finally, rights to
assistance and protection in voluntary return, resettlement, or
reintegration.xlix It is also seen that the Guiding Principles constitute an
innovation in so far as they incorporate elements of international
humanitarian law, human rights law and refugee law.
However, this issue has raised uncertainty about the legal
status of Guiding Principles. Although it has been expressly stated that
it is a non-legally binding instrument with no requirement for state’s
consent to be bound, the principles are a restatement of binding norms
contained in existing international law.l However, this approach misses
the point that the principles have specifically been tailored to meet the
needs of IDPs with certain new provisions also for instance- internal
non-refoulement, right against arbitrary displacement, restitution of
property etc, hence it would be a soft law norm.
It has been opined that the main reason it has been introduced
as a soft law instrument and not as an internationally binding
instrument, is not because it is inexpedient to create a specific legal
category but because such a move is not feasible in the current
political context and an incremental approach to developing human
right standards is more realistic. li It is also significant to note that the
principles have experienced a widespread acceptance by UN agencies,
regional organizations as well as a number of states. For instance- the
World Summit Outcome Document of 2005, signed by 192 heads of
state and government, recognized the Guiding Principles as an
important international framework for the protection of internally
displaced persons'. A number of states like Angola, Burundi, Colombia,
Georgia, Liberia, Peru, Philippines, Sri Lanka, Turkey and Uganda have
incorporated the principles into their domestic laws and policies.lii
These are key factors in the evolution of the Guiding Principles
as an expression of customary law and it can even lead to the inference
that there might be a case for an international consensus for a
universal convention on protection of IDPs.liii To conclude this section,
it would not be improper to say that there is a need for a special legal
framework to address the specific needs of IDPs and the answer to this
lies in acceptance of the Guiding Principles as Customary International
Law as it is still premature to adopt a convention on the same.
V: CONFERRAL OF THE STATUS OF INTERNALLY DISPLACED
PERSONS ON THE KASHMIRI PANDITS
. The persons belonging to the Kashmiri Pandits Community,
who have been forced to flee their homes to other parts of the
country, have often been referred to as migrants. Although the
Indian Courts have recognized the fact that their basic human rights
and constitutionally guaranteed fundamental rights have been
violated and some steps have been taken to provide them relief and
compensation, liv however, since they have not been accorded any
legal status as a group, they cannot claim any exclusive rights and
privileges by the virtue of their special status as victims of forced
displacement. lv Here, the researcher would like to mention that the
reason the conferral of a status like that of IDPs becomes important is
that it brings in clarity and definiteness while determining the legal
position of those displaced and clearly identifying as to what measures
are best suited for them.
The next section deals with an analysis of the UN Guiding
Principles on Internally Displaced Persons and how they can be held to
be applicable to the Kashmiri Pandit Diaspora.lvi. Following are the
reasons why it is absolutely imperative that they are accorded the
status of IDPs:-
1. THAT THE TERRORIST ORGANISATIONS HAVE UNLEASHED AN

ORGANISED CAMPAIGN TO EXTERMINATE THE HINDUS IN KASHMIR

SUPPORTED BY FOREIGN MERCENARIES AMOUNTING TO GENOCIDE OF
HINDUS .LVII

2. THAT THERE HAS BEEN ETHNIC CLEANSING OF H INDUS FROM THE

STATE BY WAY OF THREATS FROM THE MERCENARIES TO QUIT OR FACE
MASS -MASSACRE . LVIII

As per laid down in the Principle 6 of Guiding Principles lix, dealing

with the Right to be protected from arbitrary displacement, it has
been laid down that any sort of ethnic cleansing, like herein,
specifically directed towards the a community, here, Hindus,
involving large scale violence, and aimed at changing the religious
or racial composition of any place fulfils the criteria of the term
 ‘arbitrary displacement’. This arbitrary displacement-induced
people are what is termed IDPs and thus, it becomes the duty of the
authorities to bring in law enforcement measures, look into as to
what are the better prospects of relocating in case it in unavoidable
and such relocation should be done only after due deliberations
have been done by the authorities and the affected people. Principle
9lx, ensures that these people must be saved from the process of
displacement or the evils that subsequently entail due to
displacement.
3. THAT THERE HAVE BEEN ATTACKS , MOLESTATION , KIDNAPPINGS AND
GANG -RAPES OF THE WOMEN FOLK OF HINDUS IN ORDER TO INSTILL
FEAR AND HUMILIATION IN THEM . LXI

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.

4. THAT THOUSAND OF HOUSES BELONGING TO HINDUS HAVE BEEN

BURNT DOWN . T HE LOOTING AND DESTRUCTION OF PROPERTY AND
HOUSEHOLD GOODS LEFT BEHIND BY THE HINDUS ARE STILL

CONTINUING . IN MANY CASES, HOUSES , ESTABLISHMENTS , LANDS ,

ORCHARDS ETC . OF HINDUS HAVE BEEN TAKEN OVER BY TERRORIST
GROUPS TO ENSURE THAT THEY DO NOT RETURN . LXIV

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 ,

PROPERTY AND RELIGIOUS SANCTITY OF THE HINDU MINORITY .LXVII

Principles relating to protection both from displacement and during

displacement, in Chapters II and III extensively argue for the State to
take due care of the life, liberty, property and religious sanctity of the
displaced community. Herein, the displaced community is the minority
community and thus, it can be seen that the GPs very strongly and
vehemently advocate for adoption of such measures by the State that
shall not lead to any sort of breach of the life, liberty and the most
intrinsic dignity of the displaced persons. Principles 10 to 21, in
various forms demonstrate the importance accorded to the life, liberty
and dignity of the displaced personslxviii
It can be inferred from the previous section that the community
suffers the oppression of systematic violence lxix. The mass genocide and
the allied activities towards the KPs instilled in them the knowledge
that they must fear random, unprovoked attacks on their persons and
property. The injustices meted out to this community qualify as
violence to be a phenomenon of social injustice because of its
systematic character and existence as a social practice, with traces of
Cultural Imperialism depriving the oppressed of freedom and dignitylxx.
The Guiding Principleslxxi stress upon the non-negotiability of
certain basic set of rights including the Right to Subsistence and Right
to Security. They specify the line beneath which no one is allowed to
sink, being a shield for the defenceless against some of the more
devastating and more common of life’s threats. Their imperativeness
has been stressed upon as these Basic Rights are everyone’s minimum
reasonable demands upon the rest of the humanity. These are the
simultaneous necessities for the exercise of any other rights.lxxii
However,
Kashmiri Pandits have been denied both these rights out rightly by the
majority population through the violence perpetrated upon them. It is
of critical importance for us to note that it is continued enjoyment of
the security and subsistence which must be socially guaranteed. If the
agencies fail to do so, on a continual basis, they expose the group to
coercion and intimidation through the threats of deprivation of their
rights. Simultaneously, also borrowing from the Capabilities’ Approach,
lxxiii
which has extensively been theorized upon, the basic norm that
every person is to be treated as an end in himself irrespective of his
societal status, has been violated jeopardizing the pluralist nature of
Jammu and Kashmir.
As has been opined, a basic right has three correlative duties;
duties to avoid deprivation, to protect from deprivation and to aid the
deprived.lxxiv One of the basic objectives sought to be achieved by a
Rights Based Society is to conserve and protect the rights of the
minorities because the scope of their rights falling prey to controversy
shall be so much more based on the notion of entitlements and
privileges as perceived by the majority.

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.