Kashmir’s illegal annexation: policy options for Pakistan

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 recognise 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 has already called for seeking redress from the ICJ on the egregious human rights violations by India, and moved the UNSC for a discussion on Kashmir; a first since 1971. To send a message of unstinting support to the people of Kashmir, and resoluteness to the international community in the wake of India’s attempt at annexing IoK, some options can be considered.

Kashmir is a national issue and evokes widespread sentiment in Pakistan. All political parties stand against India’s forcible annexation of Kashmir against the will of its people. The resolution passed by the joint session of Parliament reflects this consensus. The government should form a multi-party committee with members who have foreign policy experience to activate the Kashmiri diaspora, meet legislators in P5 countries and international human rights organisations, to highlight the plight of Kashmiris and their right to self-determination under UNSC resolutions. Pakistan should appoint a special envoy for Kashmir — someone who commands the confidence of all political parties and institutions in the country and abroad. They should work in close coordination with Pakistan’s Foreign Office and ambassadors in major world capitals and the UN.

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 that 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.

As a member of the UNHRC, Pakistan should raise the issue of human rights violations, including the right to self-determination, enshrined in the UN Charter. It should highlight UNHCHR reports documenting abuses and arbitrary arrests of Kashmiris by Indian forces. A UN peacekeeping mission should be immediately sent to Kashmir to protect civilians. Moreover, the Red Cross and Red Crescent (ICRC) and international media should be allowed access to IoK. Pakistan’s missions abroad should share fact files with international human rights organisations such as Amnesty International and HRW to create public awareness of Indian violations of human rights.

An emergency motion should be moved in the General Assembly of the Inter-Parliamentary Union being held in Belgrade in October, to sensitise participants about the violations of fundamental rights in IoK. Parliament should also call for a meeting of the Commonwealth Parliamentary Association and the Asian Parliamentary Association.

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. India has imposed authority in occupied Kashmir with the presence of 900,000 troops, puppet governments and draconian laws like AFPSPA that allow security forces powers to arrest, kill on suspicion, and search and destroy property suspected of belonging to insurgents. They also allow security forces to preventively detain individuals without trial and charge (approximately 20,000 individuals have been detained). This has frustrated the Kashmiris right to self-determination.

Furthermore, SC Resolution 47 passed in 1948 called for a free and fair plebiscite in the region. This referendum has never been executed and without it, India has no legal claim — the territory remains contested. Even if the occupation meets no resistance, its existence means there is an international armed conflict. India is bound by rules applicable to an international armed conflict under international humanitarian law, including the Geneva Conventions and the laws of occupation under the Hague Regulations 1907.

India has routinely breached these laws, in some cases so gravely they potentially constitute war crimes. Civilians have been intentionally targeted by security forces, murdered in reprisal attacks, and summarily executed in custody. Reports of torture by international observers revealed systematic coercion of detainees to reveal information. Cordon and search operations have involved sexual violence as retribution, or collective punishment and humiliation of communities. Indiscriminate weapons like pellet guns and cluster munitions have been used resulting in deaths, blinding and impairment. Failing to prosecute those accused of war crimes is a breach of the Geneva Conventions.

Article 35A of the Indian Constitution is not relevant to Pakistan. But its provisions bar non-Kashmiris from settling or buying property in IoK, complying with Article 49 of GCIV, which prohibits the transfer or deportation of persons in occupied territory. Its revocation means that Indian citizens can permanently settle, buy land, and hold local government jobs in the area. It is a breach of GCIV and it is feared India may be attempting to change the demographics of the state. Splitting the state into two suggests a West Bank settler arrangement.

For a political solution, Pakistan should work closely with the US and political factions in Afghanistan to find a peaceful solution in Afghanistan and highlight the timing of India’s move as a means to disrupt the reconciliation process. Pakistan should work closely with China to address Chinese concerns vis-à-vis Ladakh and Pakistan’s concerns in IoK. Pakistan must leverage Chinese diplomatic weight at multilateral forums to highlight the plight of Kashmiri people.

With violence in IoK likely to rise as curfew restrictions ease, India might divert the world’s attention from the indigenous freedom struggle by increasing ceasefire violations along LoC; undertaking a false flag operation in Kashmir; resorting to allegations of cross-border terrorism against Pakistan. To preempt Indian actions, Pakistan must increase intelligence gathering in IoK, especially along the LoC; inform diplomatic missions, including those of the P5, of Indian intentions; highlight the indigenous nature of the freedom movement in Kashmir; and focus on how Indian aggression against the Kashmiri people is the cause of violence in Kashmir.

Pakistan should amplify the differences in the condition of people in GB/AJK and that of people living under the Indian occupation. It should take all possible measures to ensure that a new international narrative on Indian oppression in Kashmir is brought forward.

Published in The Express Tribune, August 23^rd, 2019.

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