Exploring ICJ jurisdiction over Kashmir dispute | By Prof Dr Muhammad Khan


Exploring ICJ jurisdiction over Kashmir dispute

THERE are various opinions about the jurisdiction of International Court of Justice (ICJ) over the Kashmir dispute.

A larger class of jurists and experts of international law are of the opinion that Kashmir dispute can be referred to ICJ with respect to the massive human rights violation, committed by Indian occupation forces.

There are two strong elucidations that provide sufficient grounds for the ICJ to legally examine the Kashmir dispute and 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 on 9 December 1948.

After entering into force on 12 January 1951, ICJ has debated and gave verdicts on many such disputes related to killings of human beings and genocide in many parts of the world as per the UN Genocide Convention-1948.

Relating the situation in India Illegally Occupied Jammu and Kashmir (IIOJK) 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 can put into debate the genocide committed by Indian security forces in IIOJK.

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 IIOJK thousands of Kashmiri Muslims have been brutally killed since 1990, once they started 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.

Pallet guns have been used extensively since 2016 to blind and paralyse the Kashmiri youth, who protested against occupation forces.

There have been 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.

After the Shahdat of Burhan Wani in July 2016, youth became the prime target of Indian forces; thousands of Kashmiri youth have been arrested, tortured and ultimately killed in fake encounters by Indian security forces.

In August 2019, thousands of Kashmiris were arrested before abrogation of Articles 370 and 35-A.

They were forcibly taken to torture centres and many were transferred to various parts of India. Kashmiris have been in a state of siege and curfew for over two years 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 says that 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 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, according to ‘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 24 months 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.

An Indian origin scholar and expert of international law, Priya Pillai, currently an international lawyer and a consultant of international justice suggested yet another dimension of taking the Kashmir case to ICJ. She suggests 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 Articles 370 and 35-A on 05 August 2019.

Thus, it 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 (Simla Agreement).

In the light of abovementioned legal provisions, the government of Pakistan can make a very strong case for referring the Kashmir dispute to ICJ, provided there is a will.

Pakistan has sufficient documentary evidences and ground realities to challenge Indian illegal occupation of IIOJK besides proving that India is committing massive human rights violations and genocide of Kashmiri youth in IIOJK.

Indeed, India has no legality to justify its occupation and genocide in IIOJK whereas Pakistan has all the legal ground to pursue the Kashmir case at all international forums including ICJ.

— The writer is Professor of Politics and IR at International Islamic University, Islamabad.

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