Photo: Express Tribune
New Delhi’s unilateral annexation of Kashmir is being celebrated in India as a major constitutional and political coup that has shifted the dynamics of the bilateral relationship with respect to Kashmir. In fact, many analysts in India are selling the abrogation of Article 370 as a fait accompli. What many are failing to recognize is that India’s undemocratic and illegal action will have serious repercussions for regional stability and directly compromise India’s democratic credentials. Kashmir as an internationally recognized dispute. Even more significantly, the gross violation of human rights underway in Kashmir, and the BJP government’s plans to change the demographic Muslim majority character of Kashmir are being seen as akin to ethnic cleansing in India’s only Muslim-majority state.
Pakistan has already called for seeking redress from the ICJ on the egregious human rights violations by India, and moved the UNSC for a first discussion on Kashmir since 1971. To send a message of unstinting support to the people of Kashmir, and resoluteness to the international community in the wake of India’s unilateral attempt at annexing IOK, the following options can be considered:
Diplomatic Options
• Kashmir is a national issue and evokes widespread sentiment in Pakistan. All political parties stand against India’s forcible annexation of Kashmir against the wishes and will of the people of Kashmir. The resolution passed by the joint session of Parliament reflects this consensus. The government should form a small but effective multi-party committee with members who have foreign policy experience to activate Kashmiri diasporas and meet legislators in P-5 countries, and other stakeholders, including international human rights organizations, to highlight the plight of Kashmiris and their right to self-determination under UNSC resolutions.
• Pakistan should appoint a Special Envoy for Kashmir, someone with international stature and repute, who commands the confidence of all political parties and institutions in the country. This envoy and should work in close coordination with Pakistan’s Foreign Office and Ambassadors in major world capitals and the United Nations.
• Pakistan should approach the United Nations Security Council under Chapter VII Article 39 that deals with ‘Threats to International Peace and Security’. Islamabad should work diligently in coordination with China to support Pakistan’s bid to approach UNSC in this regard. The three conditions under which the UNSC Article 39 can be triggered are; the existence of any threat to peace, breach of peace, or act of aggression. Pakistan can make a case in the first two instances. In recent times, UNSC Article 39 has been triggered in wider contexts such as terrorism and humanitarian crisis. Pakistan has a strong case to make since Indian actions are a contravention of (i) UNSC Resolution 38 that calls on each Government to inform the Council of any material change and consult the Council in this regard, (ii) UNSC Resolution 47 that states in its preamble that India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be settled by a free and fair plebiscite, that the continuation of the dispute endangers international peace and security, (iii) The Simla Agreement which states that India and Pakistan relations will be governed by the Charter of the United Nations.
• Pakistan, as a member of the United Nations Human Rights Council, should raise the issue of gross violations of human rights, including the right to self-determination, enshrined in the UN Charter.
• Pakistan should also highlight the latest reports by the UN High Commissioner on Human Rights that document abuses and arbitrary arrests of Kashmiris by Indian forces.
• Given India’s barbarous violations of human rights, a UN peacekeeping mission should be sent to Kashmir immediately for protecting civilians. 4000 people are under arrest, including all pro-Indian Kashmiri leaders.
• The ICRC (Red Cross and Red Crescent) should be allowed access for humanitarian work.
• International media organisations should be approached for better news access to IOK.
• Pakistan missions abroad should share fact files with international human rights organizations such as Amnesty International, Human Rights Watch and others to create public awareness of India’s gross violation of human rights.
• An emergency motion should be moved in the General Assembly of Inter-Parliamentary Union (IPU) being held in Belgrade, in October this year to sensitize participants of the gross violations of fundamental rights in IOK. Parliament should also immediately call for a meeting of the Commonwealth Parliamentary Association and the Asian Parliamentary Association.
Lawfare Options
• The annexation of Kashmir is illegal under international law. India has ‘occupied’ J&K as defined by Article 42 of the Hague Regulations 1907, which state that ‘territory is considered occupied when it is actually placed under the authority of the hostile army’. The definition applies to contested territory, like Kashmir. (The International Court of Justice in its Wall Opinion recognized that Israel was bound by Geneva Convention IV and held that the Palestinian territories became occupied by Israel during the 1967 conflict. The analogy between Israel’s occupation of the West Bank and Gaza in 1967 is almost similar to India’s occupation of Kashmir after 1947).
• India has imposed authority on the occupied territory with the presence of 900,000 troops, puppet governments and draconian laws like AFPSPA that allow security forces powers to arrest, kill on suspicion, search and destroy property suspected of belonging to insurgents. They also allow security forces to preventively detain individuals without trial and charge (approximately 20,000 individuals have been so detained). This has frustrated the Kashmiris right to self-determination through the occupation; an erga omnes obligation and a right guaranteed to all people under the UN Charter.
• Furthermore, Security Council Resolution 47 passed in 1948 called for a free and fair plebiscite in the region. This referendum has never been executed and, without it, India has no valid legal claim – the territory remains contested and under illegal Indian occupation. The existence of an occupation means the situation is an international armed conflict, even if the occupation meets no resistance. India is bound by a whole spate of rules and regulations applicable in international humanitarian law to an international armed conflict (this includes all four Geneva Conventions as well as customary international humanitarian law). It is also bound by the laws of occupation as prescribed under the Hague Regulations 1907.
• India has routinely breached these laws, in some cases so gravely they potentially constitute war crimes. Civilians have been intentionally targeted by security forces, murdered in reprisal attacks, and summarily executed in custody. Reports of torture by international observers have identified thousands of cases revealing systematic coercion of detainees to confess or reveal information. Cordon and search operations have involved sexual violence as retribution, or to collectively punish and humiliate communities. Indiscriminate weapons like pellet guns and cluster munitions have been used resulting in deaths, blinding and impairment. Failing to prosecute those accused of war crimes itself is a breach of the Geneva Conventions.
• Article 35A of the Indian Constitution is not relevant to Pakistan. But its provisions bar non-Kashmiris from settling or buying property in Indian Occupied Kashmir, complying with Article 49 of Geneva Convention IV (which prohibits the transfer or deportation of persons in Occupied Territory). Its revocation now means that Indian citizens can permanently settle, buy land, and hold local government jobs in the area. It is a breach of GCIV and there are well-grounded fears that India may be attempting to change the demographics of the country’s only Muslim majority state. Splitting the state into two suggests a West-Bank settler arrangement.
Geopolitical Options
• Pakistan should work closely with the United States and political factions in Afghanistan to find a peaceful solution to the war in Afghanistan. Pakistan should continue its support for the reconciliation process and highlight the timing of the India’s move as a means to disrupt and shift focus from the reconciliation process.
• Pakistan should work closely with China to find common ground on Chinese concerns vis-à-vis Ladakh and Pakistan’s concerns in Indian Occupied Kashmir. Pakistan must leverage Chinese diplomatic weight at multilateral forums to highlight the plight of Kashmiri people.
• With violence in Indian Occupied Kashmir likely to rise as curfew restrictions ease, India is also likely to divert world attention from the indigenous freedom struggle by; (i) Increasing ceasefire violations along LoC, (ii) undertaking a false flag operation in Kashmir, (iii) resorting to allegations of cross-border terrorism against Pakistan. To preempt Indian actions, Pakistan must (i) increase intelligence gathering in Indian Occupied Kashmir, especially along the LoC, (ii) inform diplomatic missions, including the P-5 of Indian intentions to divert attention from human rights abuses in Indian Occupied Kashmir, (iii) highlight the indigenous nature of the freedom movement in Kashmir, (iv) focus on how Indian aggression against the Kashmiri people is the cause of violence in Kashmir.
• Pakistan should address and amplify the vast differences in the condition of people in GB/AJK and that of people living under Indian occupation. Pakistan should take all possible measures to ensure that a new international narrative on Indian oppression in Kashmir is brought to international newspapers and magazines.
A version of this article appeared in The Express Tribune on 23-08-2019.
