Dr Muhammad Khan
RIGHT of self-determination is the legal right of the people for deciding their future destination. It is the essence of international law, arising from customary international law, secured in a number of international treaties, covenants and agreements. Kashmiris right of self-determination is also secured in UN resolutions, treaties and commitments of Indian leadership. “By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status.” 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 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 Illegally occupied Jammu (IIOJK) became an ‘occupied territory’ on the day; Indian Army invaded it on 27 October 1947. This invasion was made by India in contradiction and violations to the basic principles of partition of India and Indian Independence Act-1947. As an occupying state, India has no authority to transfer its own population into the occupied parts of the state, forcibly or otherwise. India is a signatory state of the Geneva Convention-1949, therefore bound to observe its obligations in its essence.
Imposition of Jammu and Kashmir Reorganisation Act-2019 and Adaptation of State Laws Order-2020 are meant to make demographic changes in IIOJK. 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 UN resolutions. India cannot devise these strategies in IIOJK which is not its integral part. 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 IIOJK 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. There are three relevant forums for making an effective reference to Indian violations of international law in IIOJK. One; the demographic changes India is undertaking in IIOJK must be referred to International Court of Justice (ICJ). ICJ has the mandate to investigate and give its verdict over the violation of international law and 4th Geneva Convention. Besides, the massive human rights violations undertaken by India in IIOJK may be coupled with the reference to ICJ.
Two; the Indian crimes against Kashmiris which fall in the category of ‘crimes against humanity’ must be referred to United Nations Security Council (UNSC) for an indirect reference to International Criminal Court (ICC), since India is not a signatory of the Rome Statute. In such a case, the individuals and groups (members of Indian Security forces) involved in crimes against humanity in IIOJK can be tried at ICC. ICC is not part of United Nations, yet it has the mandate to ‘investigate and prosecute’ those personnel who commits such crimes as the world’s only permanent international court. Three; the human right violations in IIOJK can be referred to ‘The United Nations Human Rights Council’. As an integral UN body, it has the mandate to promote and protect human rights around the world. It has already issued two reports on human rights violation in Jammu and Kashmir in 2018 and 2019. There is an immediate need that, Government of Pakistan must challenge the Indian illegal act in IIOJK. Pakistan must make evidence-based strong legal references against India at abovementioned international forums. The Indian violations of international Law, international covenants, international humanitarian laws and 4th Geneva Convention provide sufficient, intimate and legal coverage to Pakistan over the prevailing situation in IIOJK.
— The writer is Professor of Politics and IR at International Islamic University, Islamabad.
Dr Muhammad Khan