IN a recent and widely viewed online video, Burhan Wani made his case for targeting armed forces in India-held Kashmir in armed struggle for the realisation of Kashmir’s self-determination. While expressing regret that Hizbul Mujahideen were fighting against local police officials, he argued that the group was acting in self-defence against officials targeting indigenous fighters rather than performing regular police functions.
He also claimed that the outfit would not target civilians, and that those visiting IHK to perform the Amarnath Yatra were free to do so without any fear of harm. Arguably, the modus operandi as outlined by him appears consistent with international humanitarian law — given that international law prohibits combatants from attacking civilians and those who surrender or are injured or sick, but does permit the use of lethal force against enemy combatants actively engaged in hostilities.
Wani declared that, while Kashmiri Hindus were free to return and enjoy ownership of their property within local communities, his fighters would take action against the Sainik colonies that India is in the process of setting up in IHK — reminiscent of strategies used by Israel — because they infringe on Kashmir’s territorial sovereignty. Indeed, the BJP government is currently engaged in setting up Sainik colonies and composite townships in IHK. The purpose of the former is to permanently settle Indian soldiers in IHK (one is already operational in Jammu) while the townships are exclusively meant to settle displaced Kashmiri Pandits therein.
Many Kashmiris view both these developments as attempts by India to change the demographics of Jammu and Kashmir. This fear is not misplaced; there is already international precedence for such violations of international law. The construction of illegal Israeli Jewish settlements on Palestinian territories is a prime example.
Many fear that new demographics might signify apartheid.
Sainik colonies are clearly unlawful under international law. Moreover, while displaced Kashmiri pundits have a right to return as Kashmiri citizens, their selective return as citizens of India does present serious challenges, especially if such right is not being extended to all displaced Kashmiris. Under Article 49 of the Fourth Geneva Convention, “the occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies”. There are also genuine fears that this repatriation drive might simply be a cloaked attempt to repopulate IHK with Indian Hindus.
In any case, repatriation and building settlements are not synonymous; even if one is legal this does not automatically render the other legal as well. For example, if the construction of a settlement leads to displacement of the local population this amounts to a forcible transfer — which by itself is a crime against humanity and a grave breach under the Geneva Conventions of 1949.
In its advisory opinion determining the illegality of the wall built by Israel in and around Palestinian territories on the pretext of self-defence, the ICJ found that the route chosen for the wall entailed alterations to the demographic composition of what it terms ‘Occupied Palestinian Territory’, and that its construction severely impeded the exercise by the Palestinian people of their right to self‑determination.
The court found that the construction, coupled with the establishment of settlements, altered the demographic composition of the Occupied Palestinian Territory and violated the Fourth Geneva Convention as well as numerous Security Council resolutions — including one that declared Israeli attempts to settle its population in Jerusalem illegal because it entailed “expropriation of land and properties, transfer of populations and legislation aimed at the incorporation of the occupied section”.
Likewise, India’s seizure or expropriation of land or displacing or transferring of local populations in IHK for setting up Sainik colonies or settlements exclusively for Kashmiri Pandits are illegal under international law.
Further, by creating segregated townships meant for one religious community, India is determining access to spaces on the basis of religious association and is thus committing apartheid, a crime against humanity. Apartheid is defined as “any measures, including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups ... the expropriation of landed property belonging to a racial group or groups or to members thereof”.
Finally, by depriving certain groups of their property in preference of another group on the basis of religion or ethnicity, and by attempting to displace the former, India is violating its obligations of equal protection under Article 3 and freedom of movement under Article 12 of the ICCPR, a flagship international human rights treaty which India has ratified. These enclosures and townships will prove detrimental to the livelihood of local populations — a recognised socio-economic right under customary international law and the ICSESCR acceded to by India.
The writer is former legal adviser, Ministry of Foreign Affairs, and law faculty at Lums.
Published in Dawn, August 14th, 2016
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