A new strategy

April 20, 2019

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The writer is former legal adviser to Pakistan’s foreign ministry, and faculty, Lums Law School.
The writer is former legal adviser to Pakistan’s foreign ministry, and faculty, Lums Law School.

THE BJP government has unequivocally stated that it will repeal Articles 35-A and 370 of the Indian constitution if it is voted back into power. Article 370 provides an autonomous status to Jammu and Kashmir and Article 35-A prevents settlements or the acquisition of immovable property by non-Kashmiris in the occupied territory. These articles solely authorise the [occupied Kashmir] legislature to define “the classes of persons who are, or shall be, permanent residents of … Jammu and Kashmir”.

India’s constitutional absorption of occupied Jammu and Kashmir in the 1950s remains illegal under international law because the princely state (that includes Azad Kashmir and Gilgit-Baltistan) was to decide its own fate through a plebiscite carried out, as outlined under UN Security Council Resolution 47, under the auspices of the United Nations Commission for India and Pakistan (UNCIP) formed under UN Security Council Resolution 39. Nevertheless, today, any protections taken away from the Kashmiri people or attempts to change the demographics of occupied Kashmir by India would seriously compromise the right to self-determination and human rights of the Kashmiri people; it would also alter the status quo over Kashmir, violating Pakistan’s due process and international legal rights as a recognised state party to the Kashmir dispute.

Through these measures, such as its endeavour to define (or redefine) the permanent residency of India-occupied Jammu and Kashmir, India is openly violating numerous UN resolutions on Kashmir. Under UNCIP’s resolution of Jan 5, 1949, “all persons (other than citizens of the State) … shall be required to leave the State” and “[a]ll citizens of the State who have left … will be invited and be free to return”. It is clear from this language that pending a plebiscite, any attempts to change the demographics of Kashmir or effect a transfer of its population would be illegal.

Permanently altering the ethnic-makeup of occupied Kashmir would be a violation of international law.

Apart from the relevant UN resolutions, Pakistan can also rely on the Shimla Agreement, a bilateral treaty between Pakistan and India, to highlight the latter’s violations of international law. This treaty was entered into in 1972, after the promulgation of Article 370 and 35-A, and prohibits all changes to the status quo over Kashmir effected by either nation without mutual resolution. The treaty states that “pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and both shall prevent the organisation, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations”. By repealing Articles 35-A and 370, India would be violating the Shimla Agreement both in spirit and practice.

Furthermore, India’s attempt to change the demographics of India-occupied Kashmir is a grave violation of international humanitarian law and can amount to serious war crimes, crimes against humanity and ethnic cleansing. Under Article 49 of the Geneva Convention IV (1949), “the occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

The same principle is reaffirmed in the more recent 1977 Additional Protocol I to the Geneva Conventions, which largely reflects customary international law, and which terms such acts a grave breach of the protocol. Moreover, under Article 20(c)(i) of the 1996 International Law Commission Draft Code of Crimes against the Peace and Security of Mankind, such transfers are considered war crimes; while under Article 8(2)(b)(viii) of the International Criminal Court statute (1998) such transfers, directly or indirectly, constitute war crimes in international armed conflicts.

That the Kashmir dispute could trigger an international armed conflict has been indubitably confirmed via the recent military conflagration between India and Pakistan, when Indian warplanes crossed over Azad Kashmir and unsuccessfully conducted air strikes around Balakot in Khyber Pakhtunkhwa.

Altering demographics through state policy and repression can result in forcible transfers of the indigenous population, qualifying as crimes against humanity when they are part of a widespread or systematic attack (which need not be armed) directed against any civilian population, as determined by the International Criminal Tribunal for Rwanda. The government of India, by attempting to repeal Articles 35-A and 370, is signalling its intentions to realise this repression.

Permanently altering the ethnic-makeup of India-occupied Kashmir, which could eventually result in ethnic cleansing, would also be a serious violation of international law and the International Convention on the Elimination of All Forms of Racial Discrimination, a UN treaty which India ratified in 1968 without any reservations. Such violations were confirmed by the ICERD Committee in its 1995 decision on Bosnia-Herzegovina.

In the last few years, the BJP government has attempted to change the demographics of the occupied territory using targeting measures such as through the setting up of Israeli-style settlements or townships for Kashmiri Pandits or via the establishment of Sainik colonies to permanently settle Indian soldiers displacing local Kashmiri residents. Repealing Articles 35-A and 370 is, however, a more serious and insidious attempt to destroy the culture and identity of the Kashmiri people, and Pakistan must actively raise India’s violation at all international levels, legally and diplomatically, including with the International Committee of the Red Cross and the ICERD treaty body and at the UN Security Council, the General Assembly and the Human Rights Council.

The BJP is, in the run-up to the elections, going to extreme measures in order to stir up nationalist and racial tensions within the country in an attempt to mobilise its right-wing power base. Tinkering with the Indian constitution in this way, however, not only dilutes the sanctity of the constitutional document itself, but would have grave consequences for the people of Kashmir. With the two articles omitted from the constitution, there would be little to stop an Israeli-style settlement programme being instituted in the valley of Kashmir, leaving the Kashmiri — much like the Palestinians — foreigners in their ancestral lands.

The writer is former legal adviser to Pakistan’s foreign ministry, and faculty, Lums Law School.

Published in Dawn, April 20th, 2019