Kashmir – Legitimate Struggle for Freedom form India or Terrorism?
The right of self-determination is considered a foundational part of customary international law, recognised in the UN Charter under Articles 1(1) and 55. It is also enshrined in both Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The right of self-determination of colonial people and those under foreign occupation has been reaffirmed in scores of Security Council and General Assembly Resolutions, including GA Res. 1514, 2526 and GA Res. 37/43 passed in 1982, which “reaffirms the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle”. More specifically, the right of Kashmiris to self-determination has been recognised at the UN through numerous UNSC resolutions. The right to self-determination — and the legitimacy to agitate for its realisation — is not in question under international law, a right to which the Kashmiri people are also entitled.
However, any use of force in occupation or in an armed conflict must comply with international humanitarian law. IHL applies both to Indian occupying forces and Kashmiri fighters as both qualify as combatants. Violation of IHL can lead to the commission of war crimes, punishable offences under international law. Additionally, combatants in conflict have the status of being actively engaged in hostilities, and can be targeted even when they are not directly participating in hostilities such as when present at military installations or when travelling in military convoys. Under IHL, lethal force would thus be legal if it complies with the requirements of military necessity, distinction, proportionality, and does not cause or result in unnecessary suffering.
The Pulwama attack was carried out by a Kashmiri militant — a combatant — against enemy combatants belonging to the Indian occupying forces.
The attack complied with the IHL requirements of distinction as Dar solely targeted military personnel. Under IHL, military necessity is defined subjectively, depending on the military capacity of combatants using force, the military significance of the installation or personnel targeted, and the overall military strategy informing the specific tactic employed.
Considering that Kashmiri fighters have rudimentary, unsophisticated weapons at their disposal, using an explosive-laden SUV as a targeted delivery system complies with IHL. Further, proportionality is measured both in terms of what force is being responded to, as well as the direct impact of the force used. In IHK, India occupation forces are daily and, in the view of the author, disproportionally targeting Kashmiri fighters and civilians with (excessive) lethal force, prompting proportionate Kashmiri fighters’ responses under IHL. Finally, any weaponry used should not cause unnecessary suffering. Dar did not use any prohibited weapons such as chemical or biological agents. Conversely, Indian forces routinely use pellet guns, often causing permanent blindness and unnecessary suffering. The use of pellet guns also result in another violation of IHL, as they are often used to unnecessarily target and maim innocent civilians.
Indian rhetoric has included threats to militarily retaliate against Pakistan in reprisal for the Pulwama incident, in contravention of established international law — including Article 2(4) of the UN Charter — in an act of unilateral and unjustified belligerence.
While Pakistan strongly denies providing any support to Kashmiri combatants, under international law any support, even military, by itself does not automatically permit a military response in self-defence.
In US vs Nicaragua, the International Court of Justice explicitly held that logistical support and even the provision of arms to militants engaged in an armed conflict with another state does not qualify as state sponsorship triggering the right of self-defence. State sponsorship, to the degree where the right to self-defence is enabled, requires actively controlling and commanding such outfits.
While Pakistan continues to provide moral support to Kashmiris suffering under occupation, under international law it is not per se unlawful to provide military support to such territories as well. If a state, however, does provide this kind of support, it risks losing it status of neutrality and can subsequently be dragged into an international armed conflict with the occupying state, potentially threatening regional and international peace and security contra to the UN Charter and established international law.
While IHL — and the broader framework of international law — attempts to minimise death and suffering in armed conflict, it does not disallow legitimate armed struggles and use of force thereby. International law is categorical in its support of the right to self-determination and the legitimacy of armed struggle to realise this right. In this context it is, therefore, imperative that Pakistan and India work towards a genuine resolution to the Kashmir issue pacifically, and in line with the aspirations of the Kashmiri people, rather than involving themselves in rhetoric and vitriol to isolate the other within the international community and delay the resolution of the Kashmir dispute.
By Sikander Ahmed Shah, a former legal adviser to Pakistan’s foreign ministry, and faculty, Lums Law School. Published in Dawn, February 23rd, 2019. Read full : https://www.dawn.com/news/1465549/the-battle-of-narratives