Home Digital Magazine Legal Dimensions of India’s Actions in Indian Occupied Kashmir

Legal Dimensions of India’s Actions in Indian Occupied Kashmir

An eminent international law and policy expert points out the multiple international laws that India’s unlawful annexation of IOK flouts. He emphasizes the importance of adding lawfare arguments into our discourse on Kashmir and proposes that we should look into pursuing the case in the ICJ through the right route.

Kashmir

Since assuming the reins of government in India, Prime Minister Narendra Modi’s Hindu majoritarian BJP government has shown scant regard for rule of law or rules-based world order. To advance the supremacist Hindutva ideology of the BJP’s parent organization, the Nazi-inspired militant RSS, Modi’s government has callously and routinely trampled fundamental legal norms and rules, thereby jeopardizing not only a nuclearized region but also global peace and security.

Unsurprisingly, therefore, India’s actions of August 5, 2019, stripping the autonomous status of Indian Occupied Kashmir (‘IOK’) and the special rights and privileges of Kashmiris by revoking Articles 370 and 35-A of the Indian Constitution, signify a shredding of the letter and spirit of the Indian Constitution itself. They reflect a renunciation of the constitutional, democratic, federalist and secular ideals that India has projected itself with for so long in the international arena.

They represent the brutality and mendacity of Modi’s regime. These measures have now been challenged in the Indian Supreme Court. Along with the Jammu & Kashmir High Court, the Supreme Court has earlier held in multiple cases that in the absence of the constituent assembly of Jammu & Kashmir that dissolved itself in 1957, Articles 370 and 35-A constitute irrevocable and permanent provisions of the Indian Constitution.

One hopes the Indian Supreme Court would act independently and robustly to deliver a fair verdict on legal merits on this occasion as well. But perhaps, that is a bit naïve to expect in Modi’s saffronised India. Under international law, the imprudent and perilous Indian actions of August 5 unmistakably amount to an unlawful annexation of a disputed territory by an occupying power, exerting territorial control with the presence of hostile military and paramilitary forces.

By extending Indian jurisdiction, laws and administration to IOK under the threat and use of force, India has, in essence, illegally and aggressively attempted to acquire IOK in contravention of a dozen United Nations Security Council Resolutions on Kashmir passed between 1948-57 that unambiguously recognize IOK as a disputed territory between India and Pakistan.

Both the United Nations Charter and the United Nations General Assembly Resolution 2625 (XXV) also prohibit such territorial aggrandizement.

According to Resolution 2625: “Every State has the duty to refrain from the threat or use of force…as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States. Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect.”

The same is also reflected in customary international law as well as the International Court of Justice’s Palestinian Wall Advisory Opinion. In the event that any state in the international system recognizes the legitimacy of IOK’s unlawful annexation, that state shall also violate international law for being complicit in flagrant breach of international law.

One hopes the Indian Supreme Court would act independently and robustly to deliver a fair verdict on legal merits on this occasion as well. But perhaps, that is a bit naïve to expect in Modi’s saffronised India.

Articles 40 and 41 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001 specifically proscribe any state from recognizing as lawful a situation created by a serious breach of international law, nor render aid or assistance in maintaining that situation. Crucially, India’s power grab under the guise and machinations of its domestic law cannot cast aside its international law obligations with respect to Kashmir.

The United Nations Security Council, in its Resolution 122 of January 24, 1957, explicitly notes that any unilateral steps by India cannot extinguish obligations contained in the Security Council Resolutions on Kashmir, including holding of a free and impartial plebiscite under the United Nations auspices.

From the prism of international law, Kashmir, therefore, remains an international dispute between India and Pakistan, recognized as such by the United Nations for over seven decades, including in the post August 5 Statement issued by the United Nations Secretary-General and the closed consultative meeting of the United Nations Security Council on “India-Pakistan Question.”

The raft of United Nations Security Council Resolutions on Kashmir have not lost their applicability and remain outstanding legal obligations awaiting implementation. Significantly, notwithstanding their passage under Chapter VI of the United Nations Charter, they have the force of binding legal obligations.

In this context, Articles 24 and 25 of the United Nations Charter and their interpretation by the International Court of Justice in its Namibia Advisory Opinion may be invoked to blunt Indian efforts to diminish the status of the Security Council Resolutions on Kashmir as legally non-binding. The numerous pledges of plebiscite in Kashmir profusely made by Jawaharlal Nehru and other Indian political figures further underscore the binding nature of these Resolutions.

Read more: After Massacre at Gujarat, Modi’s has Programmed Pogrom for Kashmir

The Simla Agreement states that “Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation…” Needless to say, Indian unilateral actions of August 5 are a brazen breach of the Simla Agreement. One significant consequence of this breach though is that neither the Simla Agreement nor the Lahore Declaration can now be invoked by India to stave off third-party mediation in the Kashmir dispute.

International law does not permit India to cherry-pick international legal instruments to suit its geopolitical whims. Moreover, according to Article 103 of the United Nations Charter, bilateral treaties cannot supersede India’s obligations under the United Nations Charter. Simla Agreement, furthermore, does not preclude multilateralism entirely as it states that “Line of Control…shall be respected by both sides without prejudice to the recognized position of each side.”

International law does not permit India to cherry-pick international legal instruments to suit its geopolitical whims. Moreover, according to Article 103 of the United Nations Charter, bilateral treaties cannot supersede India’s obligations under the United Nations Charter.

Pakistan’s long-standing legal position on Kashmir rejects the validity of the conditional Instrument of Accession concluded between the Maharaja of Kashmir and India. We hold it to be unlawful ab initio as a result of duress and bad faith, and due to the fact that the Maharaja had signed a pre-accession Standstill Agreement with Pakistan as opposed to India.

Since Articles 370 & 35-A were fraudulent attempts to legitimize Maharaja’s accession through domestic Indian constitutional and legal arrangements, as such, they have been peripheral to Pakistan’s traditional legal stance.

Nevertheless, their unilateral revocation by Modi’s government does materially affect our international legal rights as India’s annexation is worrisomely geared towards changing IOK’s demographic profile, which in due course would irreversibly prevent the realization of the right to self-determination of Kashmiris in contravention of the United Nations Charter and the United Nations Security Council Resolutions on Kashmir.

This right, rooted in a colonial dispute, is accorded the highest status and importance in international law. The International Court of Justice has, in the East Timor Case and the Palestinian Wall Advisory Opinion, recognized the right to self-determination as a non-derogable and universal jus cogens norm and an erga omnes obligation owed to the international community as a whole.

Hence, this right cannot be vitiated through unilateral Indian actions of August 5. The conflict state and the Indian military occupation turned into annexation triggers the application of Geneva Conventions and customary international humanitarian law to the situation in IOK. Article 49 of the 4th Geneva Convention expresses that “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Additionally, the occupying power cannot take any measures that would change the character of the occupied territory. Therefore, any measures undertaken by India to tinker IOK’s demography or its essential character would amount to blatant violations of international humanitarian law.

Simla Agreement, furthermore, does not preclude multilateralism entirely as it states that Line of Control…shall be respected by both sides without prejudice to the recognized position of each side.

For decades, India has serially and systematically abused the most basic and fundamental human rights in IOK. Two reports issued by the United Nations Office of the High Commissioner for Human Rights in June 2018 and July 2019, as well as multiple reports released by reputable human rights organizations such as Amnesty International and Human Rights Watch, comprehensively document these decades-long abuses.

Indian atrocities have alarmingly worsened since August 5, with 8 million people besieged in a cauldron of a humanitarian catastrophe. IOK has been turned into the largest prison on the planet, supervised by 900,000 hostile Indian security forces in the world’s most densely militarized region. They are armed to the teeth with a license to act with impunity under the draconian Armed Forces Special Powers Act.

The prolonged curfew and blanket communications blackout have wrought untold suffering and misery, bringing life to a grinding halt. Food and medicine supplies are running short. Access to health care facilities is severely restricted. Schools are shut down. The free exercise of religion is curtailed. Scores of Kashmiris have been indefinitely detained under the harsh Public Safety Act.

Indian jails are swarming with Kashmiri political prisoners. Press and other media activities have been throttled. Pellet guns have been superfluously, indiscriminately and disproportionately used to control peaceful protests, inflicting permanent blindness upon many including women and children. There are deeply troubling reports of extrajudicial killings, torture, rape, and other egregious abuses.

All these deplorable and reprehensible actions constitute gross violations of India’s international law obligations enshrined in various human rights treaties that India is party to. These include the International Covenant on Civil and Political Rights; International Covenant on Economic Social and Cultural Rights; International Convention on Elimination of All Forms of Racial Discrimination; Convention on the Rights of the Child; and Convention on the Elimination of All Forms of Discrimination against Women.

Various international human rights organizations, five experts and Special Rapporteurs of the United Nations, and several United States and European Union legislators have condemned India’s gruesome human rights violations since August 5 and called for their cessation. But lamentably, India continues to offend humanity and international law by obstinately ignoring all voices of reason.

Read more: Global response on Kashmir: Shaken but not Stirred

Moving forward, Pakistan should continue pressing the United Nations Human Rights Council for the establishment of an independent Commission of Inquiry to investigate and report human rights abuses in IOK. We must unremittingly unmask these abuses in our diplomatic discourse and engagements.

Most of the despicable and ignoble Indian atrocities in IOK also violate fundamental norms, treaties, and customs of international humanitarian law, thereby amounting to war crimes. At a minimum, they represent grave breaches of Common Article 3 to the Geneva Conventions, ratified by India and Pakistan, that bans “violence of life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” as well as “outrages upon personal dignity, in particular humiliating and degrading treatment.”

Besides imperiling regional and global security, India’s bellicose posturing over the Kashmir issue since August 5, acknowledged also in critical terms by the US President Donald Trump in his meeting with Prime Minister Imran Khan on September 23, 2019, flouts the prohibition against threat or use of force enshrined in Article 2 (4) of the United Nations Charter.

Moreover, India’s indiscriminate firing along the Line of Control targeting civilians and its use of certain weaponry including cluster munitions constitute violations of customary international humanitarian law as well as Geneva Conventions and Hague Law. In addition to our diplomatic and political efforts at multilateral fora and various world capitals, we should explore the possibility of taking the Kashmir issue to the International Court of Justice (‘ICJ’).

Under Article 36 of the Court’s Statute, it may be difficult for us to bring a contentious case against India due to the ‘commonwealth reservation’ in its ICJ Declaration of September 15, 1974, and due to the absence of a treaty in force between the two countries containing a ‘compromissory clause’ that could confer jurisdiction to the ICJ.

We may, however, according to Article 96 of the United Nations Charter, canvass either the United Nations General Assembly or the Security Council to refer the matter to the ICJ for an Advisory Opinion along the lines of the Palestinian Wall Opinion. Most likely, we will require a majority resolution from the General Assembly for this. We may also consider submitting an application to the ICJ requesting it to seek India’s consent on jurisdiction on the forum prorogatum basis.

Today, intelligent states creatively use the law as an instrument of their national power to advance and protect their national interests. Therefore, as part of our ‘lawfare’ strategy, we should consciously and diligently incorporate in our diplomatic discourse and engagements the various facets of law relevant to the situation in IOK.

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The sinister designs of Modi’s government with respect to IOK will eventually fail in the face of the fervent longing for freedom from Indian oppression that beats in the hearts of the Kashmiris. The long arc of the moral universe will surely bend towards justice and truth in IOK. For now, the scale and gravity of the humanitarian crisis in IOK demands urgent global attention.

The prevailing situation has the incendiary potential to snowball into violent conflagration between two nuclear-armed neighbors. Hence, it is the moral and legal responsibility of the world community and its institutions to immediately insist upon India to restore status quo with respect to IOK that existed before August 5, 2019, and to compel it to act responsibly and meaningfully towards resolution of the Kashmir dispute in accordance with its legal obligations.

Ali Sultan is an international law and policy expert. He teaches public international law at the Foreign Service Academy. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.

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