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Pakistan must seek universal jurisdiction for India’s crimes in Kashmir

International law expert Hassan Aslam Shad thinks universal jurisdiction offers one way of setting the wheel of international criminal justice in motion. As such by leveraging the full scope of universal jurisdiction, Pakistan can launch a preemptive legal strike on India. The time to act is now!

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When it comes to dealing with any international issue, a country can adopt one of the following two approaches: take a back seat and let the issue evolve on its own in an unpredictable trajectory or, act proactively to tackle it head-on. The first approach leads to unwanted consequences, while the latter, although it initially requires more hard work, is more rewarding in the long term.

I mentioned this to His Excellency Imran Khan, the Prime Minister of Pakistan, when I met him in September 2020, to discuss Pakistan’s lawfare options in international law matters. I told the prime minister about an important lawfare vertical: the concept of “universal jurisdiction”.

I advised him that Pakistan should tap into the resources of international law, and invoke universal jurisdiction against Indian officials accused of committing international crimes in Indian Illegally Occupied Jammu and Kashmir (IIOJK).

While I can’t be sure if Pakistan heeded my advice, an important international development – the equivalent of a legal tsunami for India – has taken place in the UK, which shows that the world is slowly but surely waking up to India’s atrocious crimes in Indian-administered Kashmir.

Read more: PM Khan once again to call UN attention towards Indian atrocities in IIOJK

On January 20, a London-based law firm, Stoke White, filed an application with the UK Metropolitan Police for the investigation and arrest of India’s Army Chief Manoj Naravne, and Home Affairs Minister Amit Shah for the torture, kidnapping, and killing of activists and civilians in India-administered Kashmir.

In a 40-page report titled “India’s War Crimes in Kashmir”, Stoke White seeks the commencement of legal proceedings against India’s Army Chief and Home Affairs Minister, on the basis of the principle of “universal jurisdiction”.

Stoke White has asked the Metropolitan Police to investigate the death of a minor who was illegally detained by Indian authorities, and the systematic torture of a human rights defender. The firm claims to have collected more than 2,000 testimonies on a range of abuses and violations of international and domestic laws.

This is a huge international law development. Universal jurisdiction – an established principle of international law – obliges every country to prosecute and punish perpetrators of war crimes, crimes against humanity, genocide, and torture – regardless of the lacunae of jurisdiction, territoriality, and citizenship – on the basis that these crimes strike at the very heart of global conscience.

Read more: UK law firm seeks arrest of top Indian army officials for Kashmir war crimes

Although it is too early to predict the fate of Stoke White’s filing, the first legal salvo has been fired against India. Much depends on whether Pakistan and the Kashmiri diaspora can build further momentum.

Evolution of universal jurisdiction

Despite the patchy and rather dismal record of international criminal accountability, universal jurisdiction offers one way of setting the wheel of international criminal justice in motion.

Universal jurisdiction has evolved over the years and has been invoked by the courts of various countries. Chilean dictator General Augusto Pinochet was arrested in the UK in 1998 for crimes against humanity, on the basis of an arrest warrant issued by a court in Spain. Following a legal battle, the British courts rejected Pinochet’s claim for immunity as a former head of state, and ordered his extradition to Spain to stand trial. Although the trial never took place due to Pinochet’s ill health, his one-and-a-half-year detention marked a turning point in the development of the concept of universal jurisdiction.

The Pinochet proceedings have offered a new window of hope to victims, NGOs, and lawyers to pursue international criminal accountability. Since then, several Latin American countries have opened investigations into international crimes. The extradition of former Peruvian President Alberto Fujimori from Chile to Peru in 2007 serves as an example of successful universal jurisdiction proceedings.

Read more: Op-ed: Advisory Jurisdiction of Supreme Court

The filing against the Indian army chief in the UK comes at a time when Genocide Watch has confirmed that India sits at the precipice of an impending genocide. The Hindutva’s religious bigotry, which has engulfed all of India, is now a threat to international peace and security. The systematic oppression of Kashmiris has assumed a new, sinister form. Global media has been reporting about the dangerous trajectory India is on under Prime Minister Narender Modi.

Pakistan’s way forward

Pakistan has a few options when it comes to universal jurisdiction proceedings against India. First, Pakistan should hold a conference titled, “Holding India Accountable Under Universal Jurisdiction” to create global awareness of Indian human rights violations in disputed Kashmir. Invitations should be extended to all countries, leading academics, international jurists, NGOs, foreign media organisations and influencers. Victims of Indian crimes must be invited to present their testimonies. Pakistan must then build on the deliberations at the conference and, eventually, take it to the UN.

Secondly, Pakistan should identify state-affiliated or sponsored individuals who have been involved in committing international crimes in Kashmir at India’s request. A trove of evidence exists within the public domain, NGOs and human rights organisations. This evidence can form the basis for filing universal jurisdiction claims against Indian officials.

Thirdly, Pakistan must identify suitable jurisdictions for filing cases with an eye on the ease of registering criminal complaints, issuing arrest warrants, and arresting perpetrators, as well as the duration of legal proceedings, and likely criminal penalties.

Finally, Pakistan should enlist the help of international lawyers who can advise Pakistan on the full ecosystem of universal jurisdiction, as the proceedings require the meticulous crafting of legal cases so that the full power of the law can be brought down on perpetrators.

Read more: Looking at the terrors that continue to haunt Kashmir

India is hell-bent on committing egregious crimes against Kashmiris. Ultimately it is time for Pakistan to add non-kinetic costs on India that can emasculate the Hindutva project and stop it from realising its sinister designs against Kashmiris.

To do this, Pakistan must pursue strategies that resonate with the international audience and coincide with existing trends and practises. As such by leveraging the full scope of universal jurisdiction, Pakistan can launch a preemptive legal strike on India. The time to act is now.

Hassan Aslam Shad is an international lawyer based in the Middle East. He is a graduate of Harvard Law School, U.S.A. with a focus on international law. He can be reached at: veritas@post.harvard.edu. This article was first published in TRT World and has been republished with permission. The views expressed by the writer do not necessarily represent Global Village Space’s editorial policy.