RELEGATION of Kashmir’s statehood on 5 August 2019 was a worst event than Indian occupation of Jammu and Kashmir on 27 October 1947. Lowering the status of India-Illegally Occupied Jammu and Kashmir (IIOJK) into union territories and their annexation with India was illegal, immoral and a blatant violation of international law, UN resolutions and Constitution of IIOJK. Special status of IIOJK under Article 370 of Indian Constitution was a temporary, transitional and provisional arrangement, asserting that Kashmir was not part of India. This temporary position was to remain effective until people of Kashmir determine their future status through a free and fair plebiscite as per UN resolutions. In the last over seven decades, the plebiscite could not be held in Jammu and Kashmir only because of Indian perpetual reluctance through a strategy of prolonging the dispute and buying time for changing the nature of dispute. Relegating the statehood and its annexation into Indian Union was a clear violation of international law, international covenants and UN resolutions especially two UNSC resolutions over Kashmir; Resolution No 91 and Resolution No 122.
It is pertinent to mention that Article 370 was to remain valid until conduct of the plebiscite in the state as per UN resolutions. This article got a conditional acceptance from the Constituent Assembly of IIOJK after which Assembly was dissolved in 1956/57. Undoing this Article was to be done by the Constituent Assembly or at least Legislative Assembly of IIOJK which was not done, since India imposed President’s Rule to implement its illegal annexation of the state through unconstitutional means. By relegating the statehood of IIOJK into union territories, India humiliated the entire Kashmiri nation, Pakistan and UNO. Subsequent to this illegal act, on 01 April 2020, Indian introduced yet another law for the grant of Kashmiri citizenship to non-Kashmiris, the Indian nationals; a plan to make massive demographic changes in IIOJK. 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 deals 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 900,000 Indian troops. Indian security forces have been involved in massive killings of Kashmiri masses with total impunity under repressive Indian laws. Indeed, IIOJK has the 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, India-occupied parts of Jammu and Kashmir became an ‘occupied territory’ on the day; Indian Army invaded it on 27 October 1947. 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 state Jammu and Kashmir clearly aims at making the demographic changes by India. Indeed, the Jammu and Kashmir Reorganization Act-2019 and Adaptation of State Laws Order-2020 are meant to make demographic changes in IIOJK.
Jammu and Kashmir is an international dispute with over 20 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 its part? 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 its occupied parts of the state of Jammu and Kashmir while degrading its centuries old status of a statehood.
From the perspective of international law, Geneva Convention, international covenants, UN Charter and UN resolutions and other human rights laws, Indian occupation of IIOJK and converting and annexing it into Indian Union is illegal and a wilful violation of the international treaties. From the legal perspective, India cannot change the status of a state under its occupation, whose resolution is pending at the United Nations.
As an international body, the United Nations has not played an effective and convincing role towards resolution of the Kashmir dispute. In the post 5 August 2019 developments in IIOJK, UNSC held three closed-door meetings over Kashmir. Unfortunately, not a single condemnation statement came out from these closed-door meetings against Indian illegal act. The permanent five members of UNSC, making the international elite club have been found seriously wanting over post 5 August 2019 developments in IIOJK.
International community and UNO are mysteriously quite over the massive human rights violations, being perpetrated by India in IIOJK. UN and its elite club could have realized their global responsibilities in the light of Responsibility to Protect (R2P) since India is a violator of human rights and occupying state in IIOJK. Away from rhetoric, the Government of Pakistan could have approached the United Nations; Human Rights Council, International Court of Justice, (ICC) and other international forums against illegal acts of India in IIOJK over the relegation of special status of the state, massive human rights violations and demographic changes taking place in occupied parts of the state. Indeed, in the absence of any worthwhile response, India got total freedom to terrorize the Kashmiris, further consolidate its illegal occupation over IIOJK through demographic changes and impose its own constitution in IIOJK.
There is an immediate need that the incumbent Government must approach UN and international community for pressurizing India to, (a) stop human rights violations and making demographic changes in IIOJK, (b) restoring special status of IIOJK and (c) paving way for the resolution of this dispute in line with UN resolutions.
— The writer is Professor of Politics and IR at International Islamic University, Islamabad.
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