Humayun Aziz Sandeela
The legal points raised by Prime Minister Imran Khan during his second speech at the United Nations General Assembly (UNGA) in September 2020 have opened a new opportunity to take up war crimes committed by Indian occupational forces at the International Criminal Court (ICC), International Court of Justice (ICJ) and other legal forums and get them punished.
Hassan Aslam Shad, Director Legal, CMS McKenna, one of the top 10 global international law firms, in a recent media interaction stated that the PM has paved way for Pakistan’s ‘lawfare’ against India.
“Lawfare is the use of law as a weapon of war. Lawfare is achieving the same or better results as warfare but without firing a bullet. PM Khan’s speech was as brilliant reiteration of his UNGA address on 26 September 2019 where he opposed warfare and made a call for global peace. “It gave a proper road map for Pakistan and prosperity of the Muslim Ummah. We now need to garner support of world community to refer an appropriately framed ‘Kashmir Question’ to International Court of Justice (ICJ) for advisory opinion. Islamabad needs to frame the question in a way that the right of self determination stands out as the remedy sought by Pakistan. It is also time Pakistan needs to accede fully or partially to the Rome Statute of the International Criminal Court (ICC) and make fascist Modi & co liable for their International crimes against the Kashmiris and the crime of aggression like Balakot attack committed in February 2019 against Pakistan. “It is time for us to move and move fast.” “We have to submit dossiers of crimes committed by India in Pakistan through proxies e.g. Kulbhushan Jadhav. FATF is India’s lawfare against Pakistan. After having passed the three FATF bills, Pakistan will be out of the gray list soon. It is time for us to wage our own counter lawfare against India. India is becoming a hub of terrorism (a major terrorist hub nabbed in Kerala) due to Modi’s nefarious policies. It is time to up the ante and take India to task,” Hassan asserted.
New Delhi’s unilateral annexation of Kashmir is being celebrated in India as a major constitutional and political coup. In fact, many Indian analysts are selling the abrogation of Article 370 as a fait accompli, while failing to recognize that India’s undemocratic and illegal action will have serious repercussions for regional stability and directly compromise its democratic credentials. Moreover, the gross human rights violations in Kashmir and the BJP government’s plans to change the demographic Muslim majority character of the region are being seen as ethnic cleansing in India’s only Muslim-majority state.
Pakistan should also approach the UNSC under Chapter VII Article 39 that deals with “Threats to International Peace and Security”. The three conditions triggering UNSC Article 39 are – the existence of any threat to peace, breach of peace, or act of aggression. Pakistan can make a case in the first two instances. In recent times, UNSC Article 39 has been triggered in terrorism and humanitarian crises. Pakistan has a strong case since Indian actions are a contravention of – UNSC Resolution 38 that calls on governments to inform the Council of any change and consult the Council in this regard; UNSC Resolution 47 states that the dispute of J&K be settled by a free and fair plebiscite, as the continuation of the dispute endangers international peace and security; and the Simla Agreement which states that Indo-Pak relations will be governed by the UN Charter.
The annexation of Kashmir is illegal under international law. India has “occupied” J&K according to Article 42 of the Hague Regulations 1907, which state that “territory is considered occupied when it is placed under the authority of the hostile army”. This applies to contested territory like Kashmir. The bottom line for Pakistan is that its diplomatic and legal options are closely interlinked. Pakistan’s legal options require Security Council support to be meaningful.
Before assessing all options, Pakistani policy makers have to realize that in essence, the revocation of Article 370 means the nullification of the Instrument of Accession. Article 370 was added to the Indian constitution in 1950 to signify the importance of the Instrument of Accession, hence giving it a permanent legal position conditioned to a plebiscite. The recent illegal action by India of revoking the said article has not only stolen the identity of Kashmiris but have also nullified the Instrument of Accession, leading Kashmir to its pre-1947 status. With this action, India has not only lost the moral ground but also its legal case on Kashmir.
After the nullification of the Instrument of Accession, now every Indian action in Kashmir lies under forceful occupation in the international law terminology. The Fourth Geneva Convention (GC-IV) strongly prohibits the occupation of a territory by threat or use of force. It also prohibits forced or voluntary transfer of population from its territory to the occupied territory as per Article 49 of GC-IV. In addition, there is a complete framework under the Law of Occupation that binds the occupied force to apply restraints. In case of violation, the occupying force and its actions can be tried under international criminal tribunals and international courts of justice.
While focusing on all these options, Pakistan needs to realize that lawfare as a domain of non-kinetic warfare with the support of other domains offers better rewards than kinetic warfare. Mediation is a trap, bilateralism is useless, and the divided Muslim Ummah will further complicate the situation. So in order to consider these options Pakistan has to break the shackles of bilateralism imposed by the Shimla agreement of 1972. India’s recent actions are the instances of material breach. As per Article 60 of the 1969 Vienna Convention on the Law of Treaties, “If a country commits material breach of a bilateral treaty, the other country is entitled to terminate the treaty.” This legal route offers Pakistan a golden opportunity to say goodbye to bilateralism and to invite multilateralism, which is the only way forward on Kashmir.
There is a strong realization in the public spheres that even friendly criticism is not healthy in crucial times like these but only a sound way forward, other than kinetic warfare that can be opted to counter India’s action in the IIOJK.
Such a way forward lies in the ‘lawfare’ as a domain of non-kinetic warfare that not only demands a change in the terminologies of the popular narratives but also the shifting of approach while looking at the Kashmir issue, hence strengthening Pakistan’s case on Kashmir.