Prime Minister Nawaz Sharif used very specific language in his address before the UN General Assembly on Wednesday. He stated that the struggle of the Kashmiri people is a “legitimate one for liberation from alien occupation”. This phrasing has immense legal significance, perhaps not fully understood by the domestic audience. Let us examine it from an international law perspective.
‘Legitimate’: the word is premised on several UN Security Council Resolutions affirming the right of self-determination of the Kashmiri people. The right does not extinguish with the passage of time, rather its continued denial becomes all the more blatant a violation of international law. Therefore, the Kashmiri struggle is a legitimate one.
‘Liberation’: a struggle for liberation imbued with the legitimacy mentioned above permits the use of force to achieve this goal. International law is a pragmatic genre of law, and no sub-specie of international law is a better example of this than International Humanitarian Law (IHL) or the Law of Armed Conflict.
IHL is a pragmatic marriage between the high ideals of humanity and the harsh realities of war, aimed at limiting the brutality of conflict while at the same time recognising that violence is a military necessity in war. India itself actively supported Bangladesh’s independence on this ground. A Kashmiri armed liberation struggle is, therefore, lawful as the Kashmiri right to self-determination is recognised by international law as legitimate.
‘Alien occupation’: where the right to self-determination exists, it can only exist against an occupying power or regime. As India does not have legal title to Jammu and Kashmir, it is unequivocally an occupying power. The Indian claim of title to Kashmir based on the Maharaja’s Instrument of Accession and actions of the 1951 Kashmir Constituent Assembly are of little relevance under international law.
UNSC 91 of 1951 categorically states that any action of the constituent assembly “to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State in accordance with [the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations].”
Under international law, therefore, Kashmir is not an integral part of the Union of India as the constituent assembly had no right to transfer legal title to it. Under international law, India’s only means to gain legal title to Kashmir is to hold a plebiscite under the UN which results in a majority of the Kashmiri people opting to accede to India. Without an internationally recognised legal title, the deployment of the Indian armed forces in Kashmir is an illegitimate alien occupation.
How do the elements discussed above relate to the Uri attack? This requires an examination of how India deals with the Kashmir conflict.
India has vociferously maintained that the occupation of Kashmir is an internal security situation. Such situations can be regulated by domestic law which effectively means India can label freedom fighters terrorists under laws India makes itself. However, if the situation is classified as an ‘international armed conflict’, then international law applies, specifically IHL found in the Geneva Conventions of 1949, their Additional Protocols I and II and the corpus of Customary International Humanitarian Law.
Additional Protocol I to the Geneva Conventions, which applies to ‘international armed conflicts’, states in Article 1(4) that international armed conflicts include those, “in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination…”. There is little doubt, therefore, that IHL applies to the alien occupation of Kashmir.
Interestingly, while India cannot domestically classify the situation in Kashmir as a conflict, it still needs the legal and material tools of conflict to suppress the Kashmiri struggle. For this purpose, legislation such as the Armed Forces (Jammu and Kashmir) Special Powers Act 1990 (AFSPA) has been enacted. AFSPA allows the governor of Jammu and Kashmir or the central government of India to declare the state a “disturbed area” and give vast powers to the armed forces to prevent “activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India from the Union…”. In essence what AFSPA describes as a ‘disturbed area’ is nothing less than an armed conflict under IHL.
Importantly, under international law, the classification or existence of an armed conflict is not dependent on the subjective views of any state but rather by a factual determination of the ground reality. With an alien occupation made possible only by the deployment of over 500,000 Indian troops, Kashmir is clearly in the throes of an international armed conflict.
The only potential violation of IHL that the Uri attack has raised is based on reports of the Indian media claiming the attackers wore military uniforms when entering the base. If these uniforms bore the insignia of the Indian armed forces, then this would be a perfidious act violating IHL. However, if the attackers merely wore army fatigues, then not only would they not be liable for perfidy, they would be fully complying with IHL which requires combatants to be distinguishable from the civilian population.
Legitimacy remains the Kashmiri liberation struggle’s most potent tool. It is, therefore, no surprise that India has always aimed to delegitimise the Kashmiri struggle by equating it with terrorism. Pakistan must do all it can to ensure that Kashmiri legitimacy is not lost. In this regard, Pakistan must verifiably ensure that its territory is never used for attacks even against Indian occupation forces.
Furthermore, Kashmiri freedom fighters must ensure their adherence to IHL. This can be accomplished by voluntary unilateral declarations of adherence to IHL. These liberation groups should also aim to improve their internal capacity to ensure that the principles of IHL are observed by all their members.
To distance themselves from terrorism, liberation groups must publicly denounce all attacks on civilians or civilian objects and punish as well as expel from their ranks anyone involved in the targeting of civilians or anyone advocating such tactics.
Concurrently, Pakistan needs to start reshaping the debate on Kashmir in terms of IHL. As noted above, it is only this legal framework that can delegitimise the Indian military presence in Kashmir. If an IHL framework is not invoked in Kashmir, the Indian narrative of the conflict being an ‘internal security situation’ remains intact. In an internal security situation operating within a human rights framework, the atrocities of the Indian forces would be termed human rights violations.
But human rights can be derogated from in times of emergency. India utilises its domestic law to undertake such derogation and couples this with widespread indemnity for its armed forces through AFSPA. This grants the Indian forces complete impunity and leaves their victims with no recourse. In an IHL framework, India would not be able to legislate away its atrocities or derogate from the protections that IHL affords. Additionally, Pakistan and the international community would be able to legitimately critique Indian atrocities for what they really are – war crimes and crimes against humanity.
Pakistan must begin to speak to members of the international community in the language they understand – international law. This is the only mechanism to effectively counter the Indian narrative on Kashmir.
The writer is a legal researchanalyst based in Islamabad.