A perspective of ICJ jurisdiction over Kashmir dispute


Dr Muhammad Khan

A lot has been written about jurisdiction of International Court of Justice (ICJ) over the Kashmir dispute. There are many jurists and experts of internal law, who still believe that, Kashmir dispute can be very much referred to ICJ with respect to the massive human rights violation, committed by the occupation forces. There are two strong elucidations that provide sufficient grounds for the ICJ to legally examine the Kashmir dispute give its verdict. The first provision which makes the Kashmir relevant to ICJ is the UN Genocide Covention-1948. The United Nations General Assembly adopted ‘the Convention on the Prevention and Punishment of the Crime of Genocide’ through its Resolution number 260 9 December 1948. After entering into force on January 12, 1951, ICJ has debated and gave verdicts on many such disputes related to killings of human being and genocide in many parts of the world as per the UN Genocide Convention-1948.
Relating the situation in Indian occupied Kashmir since 1990 and provisions of the ‘the Convention on the Prevention and Punishment of the Crime of Genocide-1948’ there is a solid ground that ICJ put into debate the genocide committed by Indian security forces in Indian occupied Kashmir. Whereas Article-1 of the Convention deals with genocide acts, committed both during peace and war time, Article-2 clearly defines the act itself. As per this article, ‘genocide means; killings, causing serious bodily or mental harm, physical or mental destruction to any individual or a community on the basis of its ethnical, racial, national or religious status forms part of genocide act. In Indian occupied Jammu and Kashmir, thousands of Kashmiri Muslims have been killed mercilessly, since they were demanding their UN mandated right of self-determination. While over 100,000 Kashmiris have been killed, thousands have been tortured in Army tortured centres where they suffered mental retardation and paralysis. There have thousands of the cases, where Kashmiri youth were blinded and paralysed through the use of pellet guns and other manual tactics of incapacitating the Kashmiris. Since 2016, thousands of Kashmiri youth have been arrested, tortured and ultimately killed in fake encounters by Indian security forces.
Indeed, it was amounting to physical destruction of the Muslim Kashmiris. Besides thousands of arrests before abrogation of Article 370, Indian security forces have arrested and forcibly transferred thousands of children and Kashmiri youth to various parts of India. Kashmiris have been in a state of siege and curfew for over three months now. There has been total clampdown in the Indian occupied part of the Kashmir with acts of state sponsored genocide, conspiracy to commit genocide, inciting RSS people to commit genocide of the Kashmiri people with total media blackout. As per ‘the Convention on the Prevention and Punishment of the Crime of Genocide-1948’ all these acts falls under the genocide and hence punishable. Article-4 of this Convention all those involved in this genocide acts are punishable, even if they are armed forces personnel, the ruler class, public officials or else the private individuals.
As per Mr Khawar Qureshi, a Pakistani origin international lawyers, Since ICJ is the main court of the United Nations, therefore, it has the jurisdiction over the acts of genocide in Indian occupied Kashmir, as per ‘Genocide Convention of 1948’. It is worth mentioning that, both Pakistan and India are the signatories to this convention. There is a definite need that, ICJ should be provided with a clear evidence of this Indian genocide in the occupied state. It is again the responsibility of UN and ICJ to compel India to allow neutral observers to visit the occupied Jammu and Kashmir to assess the reality of this genocide. Besides current evidence of over 91 days siege and curfew, there are two details reports of United Nations Human Right Council, clearly leading the genocide acts in the occupied state. The massive human rights violations committed in the IOK by Indian security forces since 1990 provides sufficient evidence to ICJ for a proceedings against the perpetrators of this unholy game.
Indian Pakistan origin scholar and expert of international law, Ms Priya Pillai, currently an international lawyer, a consultant of international justice, transitional justice, and human rights considers that Pakistan can reach over ICJ on the grounds of treaty violations. It is significant to mention that, Para 1(ii) of the Simla Agreement-1972 states, “That the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them. Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation nor shall both prevent the organization, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations.” It is India which has violated the Simla Agreement by abrogating Article 370 on August 5, 2019 and later implementing it on October 31, 2019. This is a classic case of treaty violation by India, allowing the jurisdiction of ICJ for a legal assessment and verdict. Through unilateral act of altering the situation in Indian occupied Jammu and Kashmir, India has violated the treaty. Therefore, in practical terms, the Simla Agreement stand scrapped in totality after August 5, 2019.
Pakistan can make a very strong case for referring the Kashmir dispute to ICJ, based on sufficient ground realities of genocide in Indian occupied Kashmir, treaty violation of Simla Agreement and above all the strong legal backing in the form of International Law, UN resolutions and UN charter.
— The writer is Professor of Politics and International Relations at International Islamic University, Islamabad.