THE attack on the air force base in Pathankot, India, came at a critical juncture in the relationship between India and Pakistan. Prime Minister Narendra Modi’s surprise visit to Pakistan a few weeks prior had indicated a thaw in ties between the two countries, a welcome development considering a series of LoC conflagrations and India’s tense rhetoric in the preceding year.
However, while combating regional terrorism is a point of convergence for both India and Pakistan and would certainly help strengthen ties, the unique circumstances of the Pathankot attacks call for a more nuanced approach. While it may be sensationalising for the Indian media to raise unsubstantiated claims vis-à-vis the Pakistani military and the country’s security establishment, such xenophobia not only harms relations between the two states, it also complicates an already complex situation.
Evidence is pointing to the involvement of Jaish-e-Mohammad (JeM), a banned militant outfit in the Pathankot attacks. JeM is not an indigenous Kashmiri group; it constitutes mostly extremists from Punjab who are known to have perpetrated acts of terrorism. Indian media has claimed that the attackers were dressed in Indian army uniform (falsely portraying themselves as a member of the enemy outfit) while using lethal force against the airbase. If what is being said is correct then such action would also constitute perfidy, a war crime under international law.
We must separate terrorism from a freedom struggle.
Pakistan must actively assist India in bringing the perpetrators to justice for this fatal and brazen attack which can potentially derail the budding peace process. The attack on the airbase will undoubtedly influence future interactions between India and Pakistan, and the two countries must collaborate on curbing regional terrorism.
However, care must be taken by Pakistan to distinguish between acts of terror and a genuine struggle for liberation. Setting aside political considerations on the matter, the fact remains that under international law the two phenomena can be separated based on the status, tactics and motivations of those involved in armed struggle. Going forward, Pakistan must ensure that it must not sacrifice the Kashmiri cause at the altar of fostering better relations with its eastern neighbour, while at the same time opposing terrorism in all its forms.
Thus, Pakistan must fully ascertain the identity and motives of militant groups carrying out an armed struggle for liberating India-held Kashmir, and focus on whether the tactics employed and force used by them is terrorism or complies with the international law of armed conflict. The prime example of when war crimes and terrorism coexist is when civilians are made the objects of attack or when combatants after surrendering are tortured or killed. It does need to be emphasised, however, that militants belonging to an occupied territory, fighting or using lethal force against members of the armed forces of an occupying state, in compliance with the laws of war — or targeting military objectives including neutralising military installations offering a definite military advantage — does not constitute a war crime. Nor does it by itself render such actions terrorism.
Under international law, the struggle of peoples for independence and liberation from foreign occupation is an entirely legal undertaking. This point has been repeatedly emphasised in the UN General Assembly, which went so far as to legitimise such struggles, even if they include the use of armed force, and has since attained the status of customary international law.
However, while the right of self-determination of peoples and the sovereignty of states is guaranteed, secession of internal territories is still not recognised under international law because of its incompatibility with the territorial integrity of a country. In context, Jammu and Kashmir was a sovereign territory at the time of independence and has never comprised an internal territory of India under international law. The Kashmiri people have a vested right of self-determination, a point confirmed by the UN Security Council as well as the UN Commission for India and Pakistan.
It is clear that a permanent resolution of the situation can only come from realising the rights and aspirations of the Kashmiri people for liberation. In this regard, recent developments such as CPEC can also have a bearing on this resolution. CPEC can undoubtedly bring about economic prosperity and increased foreign investment not only to Pakistan but also to the Kashmir region which has long been deprived of social, economic, and political development. China’s involvement in regional development, along with its interest in the greater legal determinacy of territory could go a long way towards prompting all parties to resolve the Kashmir dispute.
Sikander Ahmed Shah is former legal adviser, Ministry of Foreign Affairs, and law faculty at Lums.
Abid Rizvi is an expert on international law.
Published in Dawn, January 26th, 2016