Article: Kashmir: A reference to ICJ


Dr Muhammad Khan

There are various opinions about the jurisdiction of the International Court of Justice (ICJ) over the Kashmir dispute.

A larger class of jurists and experts of international law are of the opinion that the Kashmir dispute can be referred to ICJ with respect to the massive human rights violations committed by Indian occupation forces.

There are two strong elucidations that provide sufficient grounds for the ICJ to legally examine the Kashmir dispute and give its verdict.

The first provision which makes the Kashmir dispute relevant to ICJ is the UN Genocide Covention-1948.

The United Nations General Assembly adopted ‘the Convention on the Prevention and Punishment of the Crime of Genocide’ through its Resolution number 260 on 9 December 1948.

After entering into force on 12 January 1951, ICJ has debated and gave verdicts on many such disputes related to the killing of human beings and genocide in many parts of the world as per the UN Genocide Convention-1948.

Relating the situation in India illegally occupied Jammu and Kashmir (IIOJK) since 1990 and provisions of the ‘the Convention on the Prevention and Punishment of the Crime of Genocide-1948’ there is a solid ground that ICJ can put into debate the genocide committed by Indian forces’ personnel in IIOJK.

Whereas Article-1 of the Convention deals with genocide acts, committed both during peace and war times, Article-2 clearly defines the act itself.

As per this article, ‘genocide means; killings, causing serious bodily or mental harm, physical or mental destruction to any individual or a community on the basis of its ethnical, racial, national or religious status forms part of genocide act.

In IIOJK thousands of Kashmiri Muslims have been brutally killed since 1990, once they started demanding their UN mandated right of self-determination.

While over 100,000 Kashmiris have been killed, thousands have been tortured in Army torture centres where they suffered mental retardation and paralysis.

Pellet guns have been used extensively since 2016 to blind and paralyze the Kashmiri youth, who protested against occupation forces.

There have been thousands of the cases, where Kashmiri youth were blinded and paralyzed through the use of pellet guns and other manual tactics of incapacitating the Kashmiris.

After the martyrdom of Burhan Wani in July 2016, youth became the prime target of Indian forces; thousands of Kashmiri youth have been arrested, tortured and ultimately killed in fake encounters by Indian forces.

In August 2019, thousands of Kashmiris were arrested before abrogation of Articles 370 and 35-A.

They were forcibly taken to torture centres and many were transferred to various parts of India. Kashmiris are still in a state of siege and curfew ever since August 2019.

There has been total clampdown in the India-occupied part of Kashmir with acts of state-sponsored genocide, conspiracy to commit genocide, inciting RSS cadres to commit genocide of the Kashmiri people with total media blackout and impunity under discriminatory laws.

As per ‘the Convention on the Prevention and Punishment of the Crime of Genocide-1948’ all these acts fall under genocide and hence punishable and can be tried at the ICJ.

Article-4 of this Convention says that all those involved in this genocide acts are punishable, even if they are armed forces’ personnel, the ruler class, public officials or else the private individuals.

As per Khawar Qureshi, a Pakistani origin international lawyer, since ICJ is the main court of the United Nations, therefore, it has the jurisdiction over the acts of genocide in India-occupied Kashmir, according to ‘Genocide Convention of 1948’.

It is worth mentioning that both Pakistan and India are the signatories to this convention. There is a definite need that ICJ should be provided with a clear evidence of this Indian genocide in the occupied territory.

It is again the responsibility of UN and ICJ to compel India to allow neutral observers to visit the occupied Jammu and Kashmir to assess the reality of this genocide.

Besides the current phase of siege and curfew, there are two detailed reports of the United Nations Human Right Council, clearly leading the genocide acts in the occupied territory.

The massive human rights violations committed in IIOJK by Indian forces’ personnel since 1990 provide sufficient evidence to ICJ for proceeding against the perpetrators of this unholy game.

An Indian origin scholar and expert of international law, Priya Pillai, currently an international lawyer and a consultant of international justice had suggested yet another dimension of taking the Kashmir case to ICJ.

She opines that Pakistan can reach over ICJ on the grounds of treaty violations. It is significant to mention that Para 1 (ii) of the Simla Agreement-1972 states, “That the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them.

Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation nor shall both prevent the organization, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations.

It is India which has violated the Simla Agreement by abrogating Articles 370 and 35-A on 05 August 2019.

Thus, it is a classic case of treaty violation by India, allowing the jurisdiction of ICJ for a legal assessment and verdict.

Through a unilateral act of altering the situation in IIOJK, India has violated the Simla Agreement-1972.

In the light of above-mentioned legal provisions, the Government of Pakistan can make a very strong case for referring the Kashmir dispute to ICJ.

Pakistan has sufficient documentary evidence and ground realities to challenge Indian illegal occupation of IIOJK besides proving that India has been committing massive human rights violations and genocide of the Kashmiri youth in IIOJK.

Indeed, India has no legality to justify its occupation and genocide in IIOJK whereas Pakistan has all the legal ground and justification to pursue the Kashmir case at all international forums including ICJ.

(The writer is Professor of Politics and IR at International Islamic University, Islamabad.)

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