4th Geneva Convention & situation in Kashmir

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DR MUHAMMAD KHAN

ARTICLE 49 of the Fourth (4th) Geneva Convention-1949 provides adequate protection to local civil population of any occupying territory with respect to the right over their land and security against making any demographic changes in the composition of the original population. Article 49 (6) of the 4th Geneva Convention exclusively deal with the Protection of civil population in the time of war. Since 1990, the occupied state of Jammu and Kashmir has been a war zone with an overwhelming military presence of over 700,000 Indian troops. Indian security forces have been involved in massive killings of Kashmiris masses with total impunity under repressive Indian laws. Over 100,000 Kashmiris have been killed since 1990 at the hands of Indian security forces. After August 2019, number of Indian troops in occupied Kashmir exceeded 900,000. Since last three decades, Indian occupied Jammu and Kashmir has highest troops concentration level in the world with the status of an active war zone. Article 49 (6) of the 4th Geneva Convention prohibits the transfer by an occupying power of its own civilian population in the area it occupies or colonizes. The Article stipulates that the “Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”. By any definition, Indian occupied parts of Jammu and Kashmir became an ‘occupied territory’ on the day; Indian Army invaded it on October 27, 1947. This invasion was made by India in contradiction and violations to the basic principles of partition of India and Indian Independence Act-1947. Therefore, India is an occupying state in occupied parts of Jammu and Kashmir. As an occupying state, India has no authority to transfer its own population into the occupied parts of the state, forcibly or otherwise. Besides, India is a signatory state of the Geneva Convention-1949, therefore bound to observe and follow the Convention in its essence. Shifting its own population in occupied parts of the Jammu and Kashmir clearly aims at making the demographic changes by India. Imposition of Jammu and Kashmir Reorganization Act-2019 and Adaptation of State Laws Order-2020 are meant to legalize the demographic changes in occupied parts of the Jammu and Kashmir state. The debating point is that, how can Indian state legalize any act by making changes in its own constitution which contradicts International Law and internationally ratified conventions, covenants and agreements. By any definition, Kashmir is an international dispute with dozens of UN resolutions, demanding its solution through a free and fair plebiscite. How can India devise these strategies in occupied Jammu and Kashmir which is not part of it? In ‘The Wall Case’ of July 9th 2004, the International Court of Justice (ICJ) “resolved that Article 49(6) prohibits not only forced transfers, but also any measures taken by an occupying Power in order to organize or encourage transfers parts of its own population into the occupied territory”. As per Paragraphs 158-9 of the ICJ, all Contracting Parties to the Geneva Conventions are under a legal obligation to ensure compliance of international humanitarian laws in the light of 4th Geneva Convention. Once Article 49(6) clearly prohibits any measure meant for demographic manipulation by any state or an occupying power, how India is manipulating all this in the occupied state of Jammu and Kashmir while degrading its centuries old status of a state. India had already manipulated the demographic changes in the Jammu Province of the occupied state and later through abrogation of Article 370 and 35A and after amendments in the domicile laws; it is undertaking changes in the Valley part of the occupied state by actively transferring its own population into the occupied state. While India is doing all this in violation of international law, Geneva Convention, UN Charter and UN resolutions, there should have been an automatic reaction from United Nations and other stakeholders. With all these violations by India, why this extreme Indian steps cannot be challenged in International Court of Justice and other forums which have precedence to deal with such like disputes. Debating the penalties for the state which violates Article 49 of Geneva Convention; any violation of this Article comes under the war crimes. Besides, the Article 8 (2) (b) (viii) of the 1998 Rome Statute of the International Criminal Court also lists any direct or indirect transfer of its own civilian population into the parts occupied by the ‘Occupying Power’ as a war crime. Such an act is being dealt under Article 146 and Article 147 as ‘a grave breach of the Geneva Conventions and carries penal sanction.’ It is further supplemented by Article 85 (4) (a) of the 1977 Protocol I Additional to the Geneva Conventions. Article 1 Common to the four Geneva Conventions and Art.86 of Protocol I Additional to the Geneva Conventions 1977; impose an obligation upon all High Contracting parties to implement its provisions. The evolving situation in Indian occupied Kashmir clearly reflects grave violations of the Fourth Geneva Convention by Indian State. It has changed the domicile laws of occupied Kashmir for legalizing the demographic changes; it has already made in Jammu Province and paving way for changing the demography of the Valley area, having 95% Muslim population. Violations of the 4th Geneva Convention comes under the category of heinous war crimes. These Indian violations needs to be referred to International Court of Justice along with the record of massive human rights violations in the Indian occupied Jammu and Kashmir. United Nations and international community needs to put India under severe economic and military sanctions, until it resolve the dispute as per wishes of its subjects. — The writer is Professor of Politics and IR at International Islamic University, Islamabad.

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