Can Pakistan Present Its Case On Kashmir Despite India's Immense Global Influence?

Can Pakistan Present Its Case On Kashmir Despite India's Immense Global Influence?
Mass atrocities in Kashmir are a daily routine. An indefinite curfew keeps people incarcerated with the help of hundreds of thousands of military and security forces. Five basic crimes against humanity are committed with impunity. These are: rape, genocide, ethnic cleansing and crime against humanity. At the Line of Control, our innocent civilians and soldiers alike are targeted by the Indian forces.

In the vocabulary of international law, the Kashmir dispute is an international conflict involving a disputed territory. The constitutional change affected by the Indian government by an executive order while the assembly of the state was not in session is all farce and a bluff. Articles 370 and 35A were incorporated in the Indian constitution because of the Delhi agreement of 1948. This treaty could not be revoked without taking the matter to the people under the siege.

The 1965 war brought no solution for the Kashmir dispute. Since then, we have been venturing to find a solution through backdoor channel, composite dialogue and various formulae viz. the Oven Dixon formula of Trifurcation, the Chenab formula to divide the state along the Chenab River and the four-point formula during the Pervez Musharraf era.

I take this opportunity to congratulate Mr. Aizaz Ahmed Chaudhary for publishing his memoirs. He has dealt with the Kashmir issue in Chapter 14 of his book and given us information about these different formulae, besides UN resolutions.

Now, the question is: what course can we pursue to find a solution? I think it should be obvious that the peaceful remedy lies in a legal solution.

The state of Pakistan seems reluctant in taking the human rights issue to the ICJ, quite unlike what the Gambia has done successfully.

The other remedy which comes to mind is R2P or responsibility to protect. President Jimmy Carter of the USA, while addressing the General Assembly in 1977, stated: “No member of the UN can claim that mal-treatment of its people is solely its responsibility.” In the absence of a world sovereign, the need was felt to address issues of human rights violations by states. The concept of absolute sovereignty of states as understood from the 17th-century Westphalian arrangements called for a revisit. Otherwise, crimes like genocide, ethnic cleaning etc. committed in Rwanda and the Balkans would have gone essentially unnoticed. The Rome Statute was one answer. But acceptance by states for invoking jurisdiction is an impediment for Pakistan, which did not ratify the Rome treaty.

In any case, we are left with R2P. In its 65th session, the UN General Assembly, which is the largest gathering of heads of state and government made the millennium declaration and established an international norm to halt massive atrocities – seeing such action as a collective responsibility of nations .It called for timely and decisive collective Security Council action when-national authorities manifestly fail to protect their populations from aforesaid crimes

UN resolution 1674 affirmed the declarations of the 2005 World Summit outcome document and asked the Security Council to act and protect civilian populations in armed conflict. A global centre for R2P was created alongside a strengthened Human Rights council. This council has its headquarters in Geneva, Switzerland. It has already given its reports on the cases of Gaza, Lebanon and Rohingya Muslims. It even hosted Hamas.

So, the mechanism was established, and we in Pakistan must resort to it. I have seen in Geneva how actively various groups agitate, and how they are heard. We should involve the special rapporteur’s office in this context as well.

Unlike in the case of the ICJ where states can only invoke jurisdiction, I do not think such a locus standi condition is manifestly stated. It, therefore, has a more flexible approach to a complex problem. Consider the case of universal progressive review and alternate reports by non-government bodies. I therefore think that groups of citizens can also agitate on human rights issues. Even if we do not succeed against an influential India in a first attempt, we can steadfastly make more attempts. The purpose, after all, is to draw attention and expose the atrocities recurringly.

Presently, it would seem as if state efforts are dormant. Intensive lobbying is needed if we are to begin changing that.

Another option is using the currently available mechanism of the ICJ and advisory opinion. Pakistan can only acquire an advisory opinion through the UNGA or UNSC through the following steps:

  1. Pakistan must draft a legal question on Kashmir, in the light of international law.

  2. The legal question must be raised in the UNGA or UNSC and put to a vote.

  3. Once the motion receives a majority vote, the General Secretary will forward a request to the ICJ for an advisory opinion.

  4. Pakistan may ask for clarification on the changes that took place on the 5th of August 2019, with the abrogation of articles 370 and 35A. More specifically, it must ask: “Is the unilateral annexation of Jammu and Kashmir by the Indian government, keeping in view the Simla Agreement and UNSC resolutions, legal under international law?”

It is important for Pakistani policymakers to understand that India is committing war crimes with impunity, which is justiciable – against every Indian officer and soldier who is committing war crimes in Indian Occupied Jammu and Kashmir. The Pakistani side can conceivably invoke criminal jurisdiction under international law against the perpetrators. We can also use the universal jurisdiction for this purpose. This will be a deterrent in the minds of military officials now present in the valley, besides creating a fear of punishment for those who have already committed crimes. The case of the Serbia before the ICTY is an eye opener for such individuals and institutions.

Another way is to call upon the national institutions of human rights (NIHR) in around 170 countries for conveying Indian atrocities in occupied Kashmir. Our own National Commission for Human Rights (NCHR) in Pakistan is made dysfunctional, and the Kashmir committee is without experienced leadership to effectively win support. In general, the support from most of the Muslim countries, too, is scant. This speaks of the state of our foreign affairs.

We are also not making the government of Azad Kashmir effective at setting the discourse and agenda internationally, even though their kith and kin are suffering.

Sadly, the Kashmiris have not been successful in getting the same sort of recognition from the UN as, for instance, even the Palestinians have. And it now falls to common citizens in Pakistan and Azad Kashmir to take the lead and start agitation before the international community and rights organisations.