5th August is being observed in Pakistan as Youm-e-Istehsal (Exploitation Day) to protest India’s illegal action of revoking the special status of Kashmir and to stand in staunch support toward the oppressed people of Indian Illegally Occupied Jammu and Kashmir (IIOJ&K).
The Complex Kashmir Conflict
Kashmir has been a bone of contention between Pakistan and India since the inception of the two South Asian arch-rivals. Both nuclear states lay claim to the contested region, but each administers only part of it. The classification of the Kashmir conflict into international or non-international (domestic) conflict is a complex issue which has been debatable for many years by virtue of the contradictory political and legal interpretations made by both parties. India considers Jammu and Kashmir to be an integral part of its territory, therefore; views the conflict as non-international, a matter wholly under its internal jurisdiction. The state argues that it is dealing with internal disturbances and terrorist activities supported by its adversaries.
From a Pakistani lens, the conflict is of international nature and a matter of self-determination for the people of Kashmir. It argues that the conflict arose from the failure to implement the UN resolutions calling for the plebiscite to determine its future. Let’s briefly explore the pages of past to find out how status of Kashmir became an ambiguous notion and a contested reality.
The Historical Background
As the British rule in India drew to a close, the princely states were given the choice to associate themselves with either India or Pakistan. The local Hindu ruler of Jammu and Kashmir, Maharaja Hari Singh, was initially inclined toward the state’s sovereign status. However, the predominant population of Muslims in the region demanded the accession to Pakistan. He concluded a standstill pact with both India and Pakistan.
A significant change occurred when he confiscated armaments from the Muslims who had previously served in the British Army. The weapons were allocated to regional Hindu village militias. The Muslim population being backed by Pashtun tribesmen revolted. The Maharaja sought Indian help after signing a letter of accession. This development led Pakistan to contend that the accession was not voluntary but forced by external factors i.e., it was not represented by the majority population. According to an anecdote, tens of thousands of people were massacred by Hindu Militia.
Pakistan invoked the involvement of United Nations alleging Indian intervention as a violation of international law. UN passed a resolution calling for halting of hostilities and a plebiscite to determine the future of Kashmir. This resolution prominently positioned the Kashmir issue in international discourse and highlighted it as a subject of global concern. However, it is important to note that both Pakistan and India are party to the four Geneva Conventions of 1949 but have not ratified the Additional Protocols I and II of 1977 which outline the distinction between international and non-international armed conflict.
Read More: Pakistan: A Client state or a Pivot state?
The Additional Protocol I is relevant to the protection of victims of international armed conflict and provides detailed provisions for the conduct of hostilities and the protection of various categories of individuals; combatants and non-combatants. The Additional Protocol II, on the other hand, relates to the protection of victims of non-international armed conflicts. It specifically addresses the situations of armed conflict taking place within the territorial limits of a state, involving either regular state forces or non-state irregular groups. It outlines rules for the treatment of non-participants in non-international armed conflicts.
Given the complexities of the Kashmir conflict, various interpretations of the parties involved and differing opinions of legal experts and international bodies make it difficult to determine the precise classification of this conflict into international or non-international domain under Geneva Conventions or protocols. The precise criteria of classification have also not been laid out in any specific article or provision of the Geneva Conventions themselves.
It is worth noting that the classification of the conflict greatly influences the applicability of the Conventions and Protocols, determines the legal obligations of the parties involved and the rights and protections afforded to the individuals affected by the conflicts. However, India’s decision to convene G20 summit in Jammu and Kashmir accompanied by the China and Saudi Arabia’s decision to abstain underscores the international dimension of conflict. Also, its attempt to initiate action across international border, within Pakistani territory, has once again internationalised the Kashmir conflict necessitating an international resolution.
The writer is an undergrad student at the Defense and Strategic Studies department, Qauid-e-Azam University Islamabad. He previously worked as a research intern at ISSI, Islamabad.