While IIOJK (Indian Illegally Occupied Jammu and Kashmir) has become a permanent peace irritant, endangering the lives of 1.5 billion plus people of the subcontinent, the illegal steps taken by India have given birth to a number of legal questions.
These questions pertain to legal classification of the situation in Jammu and Kashmir as well as to the ever-rising Indian atrocities perpetrated shamelessly upon the innocent people of this region whose majority happen to be Muslims. Questions are also being asked in the conscientious and legal circles in many countries as to how India could justify unlawful demographic changes by issuing domicile certificates to 40,000 non-Kashmiris in the initial phase particularly when Article 35-A of the Indian Constitution does not allow alteration in local demography (more domicile certificates are being issued at a fast pace). Very much related to this question is the question of repeal of this particular Article 35-A as well as Article 370. The latter article conferred special status on Jammu and Kashmir meaning thereby that the Indian Constitution had been recognising the ‘disputed status’ of IIOJK till these articles’ repeal on August 5, 2019.
Likewise, Kashmiris’ legitimate and universally accepted right of self-determination also comes in the spotlight with the need to peep a little into the past when an illegal Instrument of Accession was stage-managed by India on October 26, 1947 in complicity with the then Maharaja (ruler) of Kashmir.
The first-ever illegality in this context was committed by India in collusion with the last Maharaja of Kashmir, who signed an illegal Instrument of Accession with India, following which India entered its armed forces in the territory to occupy some parts of it. As regards the element of illegality in the October 1947 Instrument of Accession, the ‘Indo-Pak Partition’ paper had allowed the Kashmiris to decide their own fate. By all yardsticks, neither the Maharaja nor the Indian authorities could sign this document of accession.
The second biggest illegality vis-à-vis Kashmir was committed by Narendra Modi-led government of India on August 5, 2019 through the repeal of Articles 370 and 35-A of the Indian Constitution which conferred special status on the Kashmir state besides imposing a ban on change in demography. Taking an unconstitutional route through the repeal of these articles, Indian government has consolidated its illegal occupation of Kashmir where demography is being drastically changed, in violation of Article 35-A to ‘downsize’ the Muslim majority as a pre-emptive measure against a possible plebiscite in future (though there are very bleak chances of India readily willing on giving Kashmiris their due right of self-determination).
If Indian leadership’s hegemonic mindset is studied thoroughly, there are not two but many more violations of laws and conventions on occupation, rights of people of an occupied territory and the question of sovereignty. In this particular backdrop, the legal classification of the status of the Jammu & Kashmir (J&K) needs consideration.
By all accounts, the correct legal classification of situation in J&K or IIOJK is that it stands illegally occupied by India. The laws which establish the illegality of occupation include UNSC resolutions on Kashmir, Article 42 of The Hague Regulations 1907, Common Article 2 of the Geneva Conventions (GC), Article 42-56 Geneva Convention-IV and customary international law.
Article 42 of the 1907 The Hague Regulations states that a territory is considered occupied when it is actually placed under the authority of the hostile army. And, as per the Common Article 2 of the Geneva Conventions, a territory will be considered occupied, even if the occupying forces were not confronted with armed resistance.
The laws about occupation are basically rooted in humanitarian considerations and only the facts on ground determine the application of these laws. International Humanitarian Law (IHL) rules relevant to occupied territories become applicable whenever a territory comes under the effective control of hostile foreign armed forces.
In the case of India’s presence in Kashmir, it does administratively control IIOJK but this region is a foreign territory by all definitions and international standards. As such, India, as an occupation force, is bound to apply IHL principles and rules related to occupation.
The fact of the matter is that New Delhi does not hold entitlement to sovereignty over the territory since IIOJK’s occupation is only a transitory phase. And, as for the rights of the occupant, if any, they are limited to the extent of that period.
Article 47 of the GC IV, says: Agreements concluded between the occupying power and the local authorities cannot deprive the population of occupied territory from the protection afforded by IHL.
Article 64 (Para I) of the GC IV: The occupying power must respect the laws in force in the occupied territory, unless they constitute a threat to its security or an obstacle to the application of the international law of occupation.
Article 55 & 56 of the GC IV: The occupying power must ensure sufficient hygiene and public health standards, as well as the provision of food and medical care to the population under occupation.
Article 49 (Para 1) of the GC IV: Collective or individual, forcible transfer of population from and within the occupied territory, is prohibited.
Article 49 (Para 6) of the GC IV: Grave violation; transfers of the civilian population of the occupying power into the occupied territory, regardless of the fact whether it is forcible or voluntary, are prohibited.
Similarly, the UN resolution 1541 on the ‘Granting of Independence to Colonial Countries and Peoples’ adopted by the General Assembly in 1960 accepts the legitimacy of the right of self-determination and opposes repressive measures of all kinds against the freedom fighters by the colonial powers. And UN resolution 2625 of 1970 had authorised the dependent people to seek and even receive support from outside to fight against the repressive machinery.
Indian hegemonic designs have always been violative of these international laws, conventions and resolutions. For the last 14 plus months, the lives of hapless Kashmiris have been rendered miserable, by way of military siege, the deployment of troops touching the 0.9 million figure. Due to the military clampdown in the IIOJK, there have been acute shortages of foods and medicines for the patients, especially the corona virus-affected people. Resultantly, Kashmiris are facing painful deaths in clear violation of Articles 55 & 56 of the GC IV (Geneva Conventions) that require the occupying power to essentially ensure sufficient hygiene and public health standards, as well as the provision of food and medical care to the population under occupation.
In addition to all these excesses, Indian military and paramilitary personnel (paramilitary troops’ number is in the proximity of 0.3 to 0.4 million), have martyred and injured tens of thousands of Kashmiris, including women and children in a bestial manner, through the firing of pellets and extrajudicial killings. Then, the closure of mosques and denial of fundamental religious freedom to millions of Kashmiri Muslims amounts to a serious violation of applicable international human rights law, to which India is a signatory.
And with the idea of hiding India’s state terrorism, Kashmir has been subjected to incommunicado and virtually detached from the outside world. Here, reference is being made to the statement of four UN special rapporteurs from the United Nations High Commissioner for Human Rights. They said: “We remain deeply concerned about the ongoing human rights violations, excessive use of force, torture and other forms of ill-treatment reportedly committed during the arrest and detention and deaths in custody. We have asked the Indian government to investigate killings of several Muslim men since January 2019. A report was sent to the Indian government on May 4 over the continued deterioration of human rights conditions in occupied Kashmir”.
On September 29 last, Amnesty International said it was stopping its work in India because the government had frozen its bank accounts on September 10 to punish it (Amnesty) for highlighting rights violations in Jammu and Kashmir and riots in Delhi. This uninterrupted series of atrocities and tactics employed by India also stand in sheer violation of United Nations Security Council (UNSC) which was actually approached by India’s own, one-time influential prime minister Jawharlal Nehru, who gave a solemn commitment that a plebiscite would be conducted in Kashmir to ascertain the will of the local populace. In the past, as many as 17 resolutions were taken up over the Kashmir issue in the UNSC, from Resolution number 38 of January 17, 1948 till Resolution number 307 adopted by the Council at its 1616th meeting held on December 21, 1971 but none of them could deter India from pursuing its nefarious agenda of continuous illegal occupation of Kashmir in defiance of the UNSC resolutions and universal principles of justice.
