Article: Time for using universal jurisdiction law fare against India’s war crimes in Kashmir

Hassan Aslam

India has been rampantly abusing and violating the international law in IIOJK. Pakistan, through universal jurisdiction – a part of customary international law – can counter India’s war crimes in Kashmir using its legal prowess.

Ask a common man and he will tell you this: international law lacks teeth. Reasons cited include the following: international law is hardly ever seen in action; it is hostage to geopolitics; and its enforcement is selective. Other criticisms include the sovereign equality claim under international law, namely that all countries of the world are equal. The criticism goes: how can international law be termed as a law between “equals” when some countries – presumably “more equal” than others – can weaponize international rules against weaker states with little to no accountability?

There is indeed truth in this criticism. The record of international law, in particular international criminal justice, is patchy. Success stories are few and far in between. It is common to see countries violate international law and get away with it. Violators of human rights can be seen roaming around with impunity. The selective application of international law makes one wonder if searching for answers in the international legal order is equivalent to flogging a dead horse.

But, like any other law, international law isn’t without its failures and, importantly, inbuilt complexities. International law, which has evolved over the years, is an ocean of specialized knowledge. It consists of many moving parts, some of which are pliable due to changing state practice. The true challenge for any country is knowing how to put together those parts and to set the wheel of international law in motion. This requires some tact and out-of-the box thinking.

Take the case of Indian Illegally Occupied Jammu and Kashmir (IIOJK). Despite that Pakistan’s legal case in respect of IIOJK is firmly anchored in the United Nations Security Council (UNSC) resolutions, due to India’s unilateral declaration at the International Court of Justice (ICJ) which prevents the world court from adjudicating the Kashmir dispute, Pakistan has its hands tied. Moreover, Indian war crimes in IIOJK cannot be tried at the International Criminal Court (ICC) because neither India nor Pakistan are a party to the ICC’s founding treaty, i.e., the Rome Statute. In addition, due to India’s strong geopolitical muscle, countries of the world haven’t come forward in support of the Kashmiris’ right of self-determination. On the face of it, therefore, it looks like Pakistan, or Kashmiris for that matter, aren’t left with any viable legal option against Indian state aggression.

In a 40-page report titled “India’s War Crimes in Kashmir”, Stoke White seeks the commencement of legal proceedings against India’s Army Chief and Home Affairs Minister on the basis of the principle of “universal jurisdiction”.

But this is only partly true. There is more to it than meets the eye. Hidden underneath the rubble of international law’s failures are some potent rules that merit consideration. Knowing how those rules work and how they fit within the overall framework of international law is both revealing and promising. If used properly, these rules can be a shot in the arm for the Kashmiris’ struggle against Indian state oppression and set in motion the slowly but surely moving wheel of international criminal justice.

Take the case of universal jurisdiction, an international law concept that has recently come in the global limelight.

On January 20, a London-based law firm, Stoke White, filed an application with the UK Metropolitan Police for the investigation and arrest of India’s Army Chief, Manoj Naravane, and Home Affairs Minister, Amit Shah, for the torture, kidnapping, and killing of activists and civilians in IIOJK.

In a 40-page report titled “India’s War Crimes in Kashmir”, Stoke White seeks the commencement of legal proceedings against India’s Army Chief and Home Affairs Minister on the basis of the principle of universal jurisdiction.

Stoke White has asked the Metropolitan Police to investigate the death of a minor who was illegally detained by the Indian authorities and the systematic torture of a human rights defender. The firm claims to have collected more than 2,000 testimonies on a range of abuses and violations of international and domestic laws.

Universal jurisdiction is an established principle of international law that obliges all countries of the world to prosecute and punish perpetrators of war crimes, crimes against humanity, genocide, and torture on the basis that these crimes strike at the very heart of global conscience.

Universal jurisdiction is now also part of customary international law, which means that it is binding on all countries of the world regardless of whether they are parties to any treaties that incorporate any international crimes covered under universal jurisdiction.

While it is too early in the day to know how far these legal proceedings against the Indian Army Chief and Home Minister will go, the first legal salvo has been fired against India.

Universal jurisdiction is an established principle of international law that obliges all countries of the world to prosecute and punish perpetrators of war crimes, crimes against humanity, genocide, and torture on the basis that these crimes strike at the very heart of global conscience. Universal jurisdiction, which looks to end impunity for grave international crimes, requires all countries of the world to prosecute and punish perpetrators of international crimes regardless of lacunas of jurisdiction, territoriality, and citizenship, etc.

Universal jurisdiction has evolved over the years and has been invoked by the courts of various countries. Chilean dictator, General Augusto Pinochet, was arrested in the UK in 1998 for crimes against humanity, on the basis of an arrest warrant issued by a court in Spain. Following a legal battle, the British courts rejected Pinochet’s claim for immunity as a former head of state and ordered his extradition to Spain to stand trial. Although the trial never took place due to Pinochet’s ill health, his one-and-a-half-year detention marked a turning point in the development of the concept of universal jurisdiction.

The Pinochet proceedings have offered a new window of hope to victims and lawyers to pursue international criminal accountability. Since then, several Latin American countries have opened investigations into international crimes. The extradition of former Peruvian President, Alberto Fujimori, from Chile to Peru in 2007 serves as an example of successful universal jurisdiction proceedings.

Universal jurisdiction is now also part of customary international law, which means that it is binding on all countries of the world regardless of whether they are parties to any treaties that incorporate any international crimes covered under universal jurisdiction. Notably, when a country exercises universal jurisdiction over war crimes, crimes against humanity, genocide, and torture, that country, in effect, acts as an agent of the international community in the fulfilment of its commitment to end impunity for international crimes.

In 2012, Amnesty International (AI) conducted a detailed study of preliminary legislation around the world to incorporate universal jurisdiction over international crimes. Whilst the study notes that domestic legislation of many countries does not incorporate all international crimes under their domestic laws, and that in many cases the definitions of those crimes are not consistent with the strict requirements of international law, this study makes some important findings on the universal jurisdiction ecosystem. It notes that 147 out of the 190 United Nations (UN) member countries have provided universal jurisdiction over one or more crimes under international law. The study also notes that 142 UN member countries have included at least one war crime as a crime under their national law while 136 have provided universal jurisdiction over such crimes. In respect of the crime of genocide, this study notes that 118 UN member countries have included it as a crime under national law while at least 94 have provided for universal jurisdiction over this crime.

Pakistan must pursue strategies that resonate with the international audience and coincide with existing trends and practices. As such, by leveraging the full scope of universal jurisdiction, Pakistan can launch a preemptive legal strike on India. The time to act is now.

This AI study offers a glimpse into the true reach of universal jurisdiction in today’s world. Every legal system, to the extent that it incorporates universal jurisdiction, is a constituent part of the broader international system. As such, the world is a potential playground for lawfare against Indian war crimes and other grave violations of human rights in Kashmir.

This also brings me to the recent charges filed against the Indian Army Chief in the UK. This development has coincided with a few notable developments. The first is Genocide Watch’s observation that India sits at the precipice of an impending genocide. That Genocide Watch – a neutral and impartial third party – has issued its damning findings against India (including Kashmir) is to be contrasted with Pakistan’s own efforts to highlight the plight of Kashmiris – something that is not given much weight internationally because Pakistan is “seen” as an interested party with an axe to grind against India. As I have stated elsewhere in my writings, Pakistan should change the lens through which the world sees Kashmir, all the while extending further moral and legal support to the Kashmiris to help them in bringing to bear the full power of the law on India.

The momentum is shifting in Pakistan and Kashmiris’ way. Hindutva’s religious bigotry, which has engulfed all of India, is now a threat to international peace and security. The systematic oppression of the Kashmiris is no longer going under the radar. Global media has been reporting about the dangerous trajectory India is on under Prime Minister Narendra Modi. Every day is bringing some dark side of India in the global limelight.

Universal jurisdiction can offer a cascade of favourable outcomes to the Kashmiris including their right of self-determination.

But, before embarking on a universal jurisdiction lawfare, Pakistan’s policy circles must not get too bogged down by the glass half-full (optimism) versus half-empty (pessimism) debate. The risk of a delayed decision is that by the time a move is made, someone else has drunk the water from the glass.

I suggest that Pakistan should consider adopting the following approaches.

First, Pakistan should hold a conference titled, “Holding India Accountable Under Universal Jurisdiction”. This will throw a fresh light on Indian human rights and international criminal law violations in IIOJK. Invitations should be extended to all countries, leading academics, international jurists, NGOs, foreign media organisations, and influencers. The extent of participation in this conference shouldn’t be Pakistan’s concern. Pakistan can always conduct mock court proceedings like the recently convened Russell Tribunal on Kashmir in Sarajevo. In this Pakistan initiated conference on universal jurisdiction, victims of Indian crimes must be invited to present their testimonies. Pakistan must then build on the deliberations at the conference and, eventually, take it to the UN. Again, fear of failure should not stop Pakistan from using today’s relative advantage over India to impose out-of-proportion costs on it.

Secondly, Pakistan, with the help of the Kashmiris, should identify state-affiliated or sponsored individuals who have been involved in committing international crimes in Kashmir at India’s request. Again, this isn’t too difficult a task. A trove of evidence exists within the public domain, NGOs, and human rights organisations. This evidence can form the basis for filing universal jurisdiction claims against Indian officials.

Thirdly, Pakistan must enlist international law specialists for “forum shopping”, i.e., to identify suitable jurisdictions for filing cases with an eye on the ease of registering criminal complaints, issuing arrest warrants and arresting perpetrators, as well as the duration of legal proceedings, and likely criminal penalties. Pakistan would require specialist advice on the full ecosystem of universal jurisdiction with a particular reference to the chosen jurisdictions. Needless to say, the filing of legal proceedings under universal jurisdiction will also require meticulous crafting of legal cases that are well grounded in international jurisprudence.

Pakistan must pursue strategies that resonate with the international audience and coincide with existing trends and practices. As such, by leveraging the full scope of universal jurisdiction, Pakistan can launch a preemptive legal strike on India. The time to act is now.

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