The Kashmir issue, a nuclear flashpoint and a dark spot for the UN and the international community, continues to linger in the UN General Assembly as an unresolved agenda. The issue has been discussed by the UN Security Council at least thrice last year but nothing happened. The international community criticises illegal encroachment of the Indian army in Jammu and Kashmir but does not pressurise India to abide by UN resolutions. As a result, Kashmiris are deprived of their right to self-determination. This article is a humble effort to understand what is the legal position of the Indian occupation of J&K and why I call India a rogue state.
Firstly, the territory’s forcible occupation by India is based on an illegal instrument of accession signed by the last maharaja who had fled to New Delhi fearing an uprising by Kashmiris who wanted to accede to Pakistan in October 1947. Following this, India sent its troops into Srinagar and illegally occupied the territory.
Pakistan’s claim about the illegal instrument of accession is based on three plausible arguments: Indian government failed to produce the original document and always presented a copy; as per the principle of Partition, Muslim-majority areas were to be part of Pakistan; and if Indian illegal occupation is accepted in the case of J&K, then the decisions of Junagarh and Hyderabad Deccan to align with Pakistan have to be accepted as well.
Secondly, the legal position recognises that the territory of J&K is disputed and the situation is of an illegal occupation by India. Article 42 of the 1907 Hague Regulations states, “A territory is considered occupied when placed under the authority of a hostile army.” It is evident that the Indian army has been hostile and brutal in J&K since 1947.
Thirdly, India being an occupational force is bound by international humanitarian laws, which were violated by the Indian revocation of articles 35 and 370. Since then, Kashmiris are under a continuous siege and curfew.
Fourthly, the infinite curfew and communication blackout in Kashmir since August 5, 2019 worsened the situation when the Covid-19 pandemic hit. This situation indicates a clear violation of the law of Kashmir and international law. Article 47 of the Geneva Convention IV says, “Agreements made between an occupying power and local authorities cannot deprive the population of the occupied territory from the protection afforded by the international humanitarian law.” According to the Geneva Convention, “the occupying power must respect the existing laws in an occupied territory”, and “the occupying power must ensure sufficient hygiene and public health standards… provision of food and medical care to population under occupation”. Whereas, humanitarian agencies like WHO were denied access to J&K, the fundamental religious freedom of Kashmiris was curtailed, and access to media, diplomats and activists was denied.
The Indian government’s denial of granting the universal right of self-determination to people of J&K is against the spirit of UN and its resolutions 1541 and 2625.
The government’s action of changing the demography of J&K is also against international laws. The current regime has not only shattered India’s secular image but also the philosophies of Gandhi and Nehru. Allowing non-Kashmiris to gain permanent residence in J&K is a deliberate attempt to change the land’s demography where now non-Muslims would subjugate Muslims. Similarly, Indian forces are transporting the ‘Hindutva’ extremists to J&K to force the local people either to be displaced or accept new laws.
Finally, the Simla Accord offers a resolution through bilateral means. This was used by the Indian government to deny a third-party mediation. However, in August 2019, India also violated the Simla Accord.
The UN’s 27th report on terrorism identifies India as a source of terrorism within its own boundaries and in the region. Organising and patronising terrorist activities in the region shows strong evidence that India is a rogue state that threatens the peace, security, freedom and prosperity of its people and the people of J&K.
Published in The Express Tribune, April 26th, 2021.