WHEN Kashmiri separatist leader Mirwaiz Mohammad Umar Farooq tweeted “fireworks all around, feels like an early Eid here”, he was not exaggerating. Pakistan’s win against India in the ICC Champions Trophy triggered widespread celebrations throughout India-held Kashmir. The ones rejoicing, the bulk of Kashmiris, included not only those who desire a merger with Pakistan, but also those who want an independent, sovereign Kashmiri state.
In Srinagar, Pakistani flags were openly waved; pro-freedom and pro-Pakistan slogans, along with anti-India refrains, were chanted across the Valley. In particular, the exuberance shown by the Kashmiri youth was captured by Kashmiri media and made headlines throughout India, prompting a strong rebuke by Indian nationalists. Let’s be clear — there is more to these celebrations than meets the eye. These festivities are forceful expressions of political resistance and protest, which have continued unabated in one form or another since the killing of Burhan Wani at the hands of the Indian security forces last year.
India’s hackneyed justification for disregarding the Kashmiris’ legally vested right of self-determination has been that the unrest is entirely the result of ‘terrorism’ sponsored by Pakistan. Unfortunately, many progressives in India maintain this belief, while many of their Pakistani counterparts have toned down their rhetoric against Indian heavy-handedness because they seem to be incorrectly conflating legitimate resistance against the ongoing Indian occupation of the Valley with criminal violence espoused by religious extremist groups operating within Pakistan.
Terrorism is an elusive concept under international law.
One must fully appreciate a legitimate freedom movement, but one also needs to distinguish such movements from terrorism. While terrorism is adequately defined under domestic legislation it is an elusive concept under international law, where it is often invoked by states as a pretext for advancing their own strategic interests.
At the international level, therefore, the terrorism narrative is primarily controlled by states, where disproportionate civilian harm by a state’s use of lethal force can be justified based on military necessity or collateral damage. Some countries also misuse this space to arbitrarily redefine civilians as terrorists, combatants and fighters in line with their own strategic or political goals.
This ambiguity over what constitutes terrorism under international law has impacted the latter’s development, despite the fact that specialised monitoring bodies such as the United Nations Counter-Terrorism Committee exist and countless General Assembly and Security Council resolutions sanctioning international terrorism have been passed.
There are currently 16 international counterterrorism legal treaties in effect, but all of them fail to define the entire ambit of terrorism. They deal, instead, with specific aspects of terrorism, such as financing, bombings, offences against diplomats, aerial hijackings, nuclear sabotage, etc. Significantly, the International Criminal Court lacks the authority to punish acts of international terrorism, as the Rome Statute failed to mention it as a discrete offence, due largely to the lack of a concrete and globally accepted definition of terrorism by states.
For similar reasons, a draft version of a comprehensive UN Convention on International Terrorism, which its Ad Hoc Committee on Terrorism has been working on since 2000, has yet to be finalised. During this period, member states have been unable to successfully negotiate this instrument, despite the fact that comprehensive and enforceable UN Conventions exist on the issues of torture and corruption.
Indeed, there has been historical disagreement in the UN over how exactly to define international terrorism. While some states have argued that acts against prohibited targets should be defined as terrorism, others have argued that the underlying purpose of the action(s) taken is the crucial determinant, identified by examining the characteristics and motives of the perpetrators.
Conversely, the right of self-determination has historically been well established under international law. It was first recognised under Article 1(2) and Article 55 of the UN Charter and was clearly affirmed under the UN General Assembly Resolution 1514 (XV) (1960), known as the Declaration on Granting Independence to Colonial Countries and People as well as under G.A. Res. 2625(XXV) (1970), known as the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States. Both of these resolutions are now considered binding customary international law.
Significantly, Article 1(1) of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights state that “[a]ll peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
In the specific case of Kashmir, numerous UN resolutions affirm this inherent right of the Kashmiri people. In 1989, the UN passed a resolution that no terrorist activity could be justified even if it was committed during a freedom struggle. Nonetheless, political resistance — and even armed struggle — is a completely legal action under international law if required for realising the right of self-determination, and when compliant with the law of war and occupation, because they clearly do not equate with any form of international terrorism.
It is blatantly clear that non-state actors such as the militant Islamic State group and the Taliban, who butcher civilians and make them the primary objects of their attacks in the name of their political and religious objectives, are committing acts of terrorism and pose a serious threat to international peace and security. This, however, should not discount the fact that recognised ‘peoples’ like the Kashmiris and Palestinians, who have a vested right of self-determination under international law and who continue to live under belligerent occupation, cannot respond through civil and political disobedience; they even use legitimate force as a last resort — the equivalent of the right to self-defence that sovereign states enjoy under international law.
Pakistan’s role in this regard is also significant: it must clearly distinguish terrorism from the Kashmiri freedom movement at the UN, and must supplement this struggle by aggressively raising the Kashmir issue at all viable multilateral forums, legal or otherwise. This is critical given the fact that India has shown that it is more than willing to work outside the bilateral ambit of the Shimla Agreement when it suits its purposes. The recent decision by India to take Pakistan to the ICJ is a clear example of India’s geostrategic policy.
The writer is former legal adviser to the Ministry of Foreign Affairs, and law faculty at Lums.
Published in Dawn, June 26th, 2017