The Kashmir’s case

On 5 August 2019, the government of India withdrew the special status of the State of Jammu and Kashmir conferred under Article 370 of the Indian constitution.

By presidential order, all the privileges earlier offered to the state – the state constitution, laws, flag – have been eradicated. The UNSC resolution of 1948 acknowledged the state as a contested territory and repeated that the permanent status of the state would be determined by a referendum. The UNSC resolutions of 1951 and 1957 further reprimanded Indian unilateral attempts to modify the special status of the state. The UN also announced the territory under the control of India and Pakistan as the ceasefire line following the Simla Agreement (the Agreement) of 1972.

The Agreement prohibits unilateral action to alter the status of the state. Clause 1(ii) of the Agreement precisely declares that neither side shall unilaterally alter the situation. Clause 6 further underlined that both the states should discuss modalities for a conclusive resolution of the state via peaceful ways. Therefore, India's claim that the withdrawal of the special status of the state is its domestic matter refutes its pledge under the Agreement.

With this background, Pakistan can pursue Kashmir's case before the United Nations Security Council (UNSC), the UN Human Rights Council (UNHRC), the International Court of Justice (ICJ) and the International Criminal Court (ICC).

Under the UN Charter, the maintenance of international peace and security is the primary responsibility of the UNSC. Due to gross and systematic violations of human rights in Occupied Kashmir, Pakistan should stress on the UNSC to play its role to enforce its own resolutions regarding the right to self-determination of the Kashmiri people. Otherwise, peace and security in South Asia would be endangered.

Article 33(2) of the UN Charter further authorizes the UNSC to call upon the parties to settle their dispute by the means outlined in Article 33(1): negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. Thus, Pakistan can pursue the UNSC to direct the parties that the Kashmir dispute is decided through judicial settlement by the International Court of Justice (ICJ).

Pakistan can also seek an advisory opinion on Occupied Kashmir from the ICJ. Under Article 65 of the UN Charter, the ICJ has the power to issue an advisory opinion on any legal question. Article 96 authorizes the Security Council or the General Assembly to request the ICJ for an advisory opinion on any legal question. Pakistan may entreat the Security Council or the General Assembly to ask the ICJ for an advisory opinion on Kashmir.

In view of the worsening human rights situation in Occupied Kashmir, Pakistan should launch an aggressive diplomatic campaign to hold a special session of the UN Human Rights Council (UNHRC) to address increasing human rights violations and emergencies in Kashmir. It must be highlighted that India is committing serious crimes against the people of Occupied Kashmir with brutalities such as extra-judicial killings, rape, unlawful detentions and incarcerations, disenfranchisement of Kashmiri people by systematic changes in demographic, use of ammunition against peaceful protestors, and burning and looting of houses.

Continuance of such violations would undermine the reputation of the UN. To start with, the UN should ensure that findings of the Office of the United Nations High Commissioner for Human Rights (OHCHR) on Kashmir released on June 14, 2018 and July 8, 2019 are enforced; an international inquiry be established so that the world could see India’s real face.

Further, offences of genocide, crimes against humanity, war crimes and the crime of aggression fall under Article 5 of the Rome Statute of the International Criminal Court (ICC). As Pakistan is not a party to the Rome Statute, it cannot directly invoke the jurisdiction of ICC. However, under Article 13(b) of ICC, the UNSC is empowered to refer a crime to the prosecutor of the ICC.

Article 13(b) states: ''The Court may exercise its jurisdiction with respect to a crime referred to in Article 5 in accordance with the provisions of this Statute if a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.'' Thus, Pakistan can approach the UNSC to refer to the offences of genocide, crimes against humanity, and the crime of aggression in IOJ & K to the ICC.

Gross human rights violations are recognized as matters of international concern that warrant multilateral intervention by states. The international community is obliged under the UN Charter to ensure the protection of human rights as norms of customary international law. Thus, considering the situation in Occupied Kashmir as “the existence of threat to the peace, breach of the peace, or act of aggression”, the UNSC may also call upon the member states to apply measures such as the closure of economic relations or the severance of diplomatic relations, or [even] may call for the use of armed forces which is “necessary to maintain or restore international peace and security.

In short, India's gross violations of human rights in Kashmir has internationalized the Kashmir issue. The UNSC consultation on Pakistan’s request, again, reaffirms that Occupied Kashmir is a disputed territory. The UNSC, however, needs to ‘recognize’ that the Kashmir issue is an ‘immediate’ and ‘grave’ threat to regional and international peace. It is the UNSC’s ‘obligation’ to ‘enforce’ its resolutions regarding plebiscite in Occupied Kashmir.

The UNSC can refer the Kashmir dispute to the ICJ (for judicial settlement) and to the ICC (for the investigation, trial, and punishment for India’s crimes in Kashmir). Finally, the UNSC can enforce ‘economic sanctions’ against India and also “call for the use of armed forces” to “restore international peace and security” and to ‘stop’ India’s ‘state terrorism’ in Occupied Kashmir.

The writer is an advocate of the Supreme Court.

Email: zranjahlaw@gmail.com