By Saad Naveed*
Sovereign states are expected to act as guardians of their citizen’s security, but what happens if states behave as criminals towards their own people, treating sovereignty as a license to kill? Should tyrannical states be recognized as legitimate members of international society and accorded the protection afforded by the non-intervention principle? Non-Intervention is commonly understood as the norm in international society since Peace of Westphalia 1648 , but should military intervention be permissible when governments massively violate the human rights of their own citizens, are unable to prevent such violations, or if states have collapsed into civil war and anarchy? The answer is Responsibility to Protect.
The Responsibility to Protect (R2P) is a concept that has emerged recently in international law in response to humanitarian crises the world is facing in post-cold war era. First proposed by a commission convened by Canada in 2001, it was then approved in the United Nation’s 2005 World Summit Outcome, and through UN Security Council and General Assembly resolutions. It is the doctrine of United Nations according to which UN has assured responsibility to ensure peace throughout the world under Int. humanitarian and Human rights law.R2P is invoked when there is a threat of genocide, war crimes, ethnic cleansing and crimes against humanity. It confers a responsibility on the international community to prevent mass atrocities. R2P is fulfilled by first warning a state that displays unwillingness to prevent such crimes or an apathy in dealing with them, and can result in a military intervention if deemed necessary over.
In the context of R2P, the biggest concern in South Asia since 1947 is the Kashmir issue. The valley of Jammu and Kashmir is prevailing under the shadow of anarchy, where there is chaos, insecurity, disorder and uncertainty. It is an internationally recognized disputed territory between India and Pakistan, distributed into two parts each is controlled by one state. It is also the bone of contention between India and Pakistan since inception. Yet, both states fought three full fledge wars, numerous low intensity conflicts and continue border skirmishes. In this matter, the UN has adopted UN Security Council Resolution 47 on 21 April 1948, to resolve the issue of Kashmir. According to the resolution, a plebiscite should be conducted in the region and let the people of Kashmir decided rather they want to join Pakistan or India. According to International Law Kashmir is neither part of India nor Pakistan. But both states have firm national interests in this valley. The recent constitutional changes in India on August 5th of 2019 has worsen the situation and triggered the Kashmir dispute on the edge of complex emergencies which itself requires humanitarian assistance. The Indian Prime Minister Narendra Modi revoked Kashmir’s special status and its constitutional article 370, which provides a special status to Kashmir with a certain amount of autonomy. In simple words India seized the Kashmir diplomatically and politically with the power of soft politics. In his address to the 74th UNGA, Malaysian PM Mohamad Mahathir said: “Now, despite the UN resolution on Jammu and Kashmir, the country has been invaded and occupied.” India did this by deploying around 700,000 army personals in Kashmir over the papulation of 8 million. After 5 months of curfew since August, India recently changed the status of the valley of Jammu and Kashmir into two different federally administrated unions. The decision was made when most of the political leaders of the valley are under house-arrests and valley is under the siege.
The international community in general and UN in specific has to take certain measure as India is culprit of three misconducts in the valley. First, it decided the remove the special status of Kashmir (unilaterally) that is recognized as disputed territory internationally and this act is also against the UN resolution for Kashmir. Second, this act of India is against the will of the people of Kashmir, as it has been done forcefully and decision is being imposed on the people of Kashmir. The third and most important offense is India carrying out crimes against humanity in the valley. Starting from political repression and suppression of freedom of expression to the killings, sexual abuse and force disappearance, all these actions can be categorized as crimes against humanity. These crimes against humanity have been highlighted by many news agencies such as Al-Jazeera, BBC world, Pakistan Today, Etc. In the words of India’s secular humanist Arundhati Roy: ‘India’s moral position on Kashmir has never, ever been a moral position. It is a kind of moral corrosion that has corroded all of us. And now, now the world is looking at it’. The Indian notion of maintaining Kashmir’s territorial status quo –is eliminating the chances of freedom, protection of basic human rights and Kashmiri’s right to self-determination guaranteed under the UN’s Charter.
According to ex-Pakistani permanent ambassador to UN, Dr Maleha Lodhi, ‘’How can this body command the respect it deserves if its own laws are broken?” UN member nations need some self-examination as to why the Security Council is “reluctant” to refer legal disputes to the International Court of Justice. And if we have no credible answers to these questions except the imperatives of realpolitik, “the world at large will view the United Nations as little more than a political tool in the hand of the powerful few”, if it remains silent on the issue of Jammu and Kashmir despite the promises made to the people of Kashmir through numerous resolutions of this body. This impression would hardly inspire “trust,” Pakistan Representative to the UN Dr Maleha Lodhi rightly argued. Hence, the UN doctrine R2P demands international attention and rapid response in Kashmir.
However, the doctrine of R2P is complex in its own principles, application and it is wrapped in power politics. R2P comes under the umbrella of soft law. The identification of R2P in international law may minimize its role and value. Soft law non-binding and represent the wish of the international community with a view to further development in the specific law. The UN still faces challenges regarding the uniformity of its laws in terms of dispute settlement, exclusively in the Kashmir case. It is the issue of ‘’Sovereignty v/s Hypocrisy’’. Sovereignty v/s Hypocrisy under the notion of R2P can be associated with two types of sovereignty, the territorial sovereignty of weak states and the decision making sovereignty of powerful state. India will never allow international community to intervene in its matter especially when it claims Kashmir as a bilateral issue between its bordering Pakistan. It is quite noticeable that the world powers feel awkward and unequipped to intervene in Kashmir conflict because the country involved is too powerful and does not listen to morals and ethics when every state has interest attach with it. R2P is embedded in the tools of national interests, it can apply to Libya or Syria but not In Kashmir due to the great power politics and the competition of hegemony.
India v/s Kashmir is a case of a large country bullying a small nation into submission in violation of not only their right to sovereignty but international agreements and two dozen UN resolutions giving them the right to determine their own political fate. The purpose of so many troops stationed in this small country is no other than obvious oppression. The Indian stance of being a secular state has been shattered due to forceful insertion of Jammu and Kashmir as Gandhi also said “Kashmir is real test of secularism in India”. Their presence makes Kashmir the largest army concentration anywhere in the world, which is itself a major threat to international peace and security.
On the other side of this coin, we have Pakistan, which also controls one third of Kashmir. The two countries have traded spikes and bullets over possession of this land for over six decades. Nawaz Sharif articulated his country’s policy on September 26, 2014 during his speech at the United Nations: “The core issue of Jammu and Kashmir has to be resolved. This is the responsibility of the international community. We cannot draw a veil on the issue of Kashmir until it is addressed in accordance with the wishes of the people of Jammu and Kashmir”. The words of prime Minister were centered towards the responsibility of International society of states which highlighted the urgency of humanitarian assistance. During 74th session of UNGA, PM Imran Khan delivered historic speech to world leaders and showed the real face of India’s atrocities and violence in Indian occupied Kashmir. Pakistan’s stance is morally and primarily directed towards the freedom of Kashmir based on peace rather than war. Military confrontation by Pakistan is always the reaction of Indian drama in Kashmir. Today Both states hold Lethal nuclear weapons and International community believe that Kashmir will be first place on earth to see nuclear war. In future if situation escalate it will no longer be the issue of humanitarian assistance or intervention but global nuclear security issue. India wants to acquire whole territory of Kashmir, but this military acquisition will not be ignored by consciousness of world political society of states.
Moreover, Ban-Ki-Moon, the secretary general of the United Nations, brings the situation in Kashmir to the attention of the Security Council under the provision of Article 99 of the United Nations Charter. Article 99 authorizes the secretary general to ‘bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’. Kashmir is no longer the bilateral issue, mass violence and insecurity among the Kashmiris is giving birth to the new version of Hobbesian Anarchy in the occupied territory of Kashmir which will ultimately effect global peace, stability and security.
Although, R2P is not binding and carries a normative status, the significance of norms and precedence and customary law cannot be ignored in the continuously changing international system, where human rights regime has become central to state affairs. India is the sole perpetrator of mass killing in Kashmir and the world know this, Sonner or latter this political tussle will bow down towards humanity and abusive conditions of Kashmir will come to an end or simply it will be another failure of United Nations Security Council.
Protection from violence and mass suffering is the core principle of United Nations. It is acting as custodians and guardians of states as well as individuals on every corner of this world. But Why it is silent of Kashmir issue? How long will it take for Kashmiris to attain independence? Is there even a final solution for Kashmir? Was Kashmir, like Palestine, a blunder of British colonizers? Has India backed down on its promises on Kashmir? Is Kashmir the integral part of India? Will there ever be a fair democratic election? Will Kashmiris ever practice the right to self-determination?
In short, will Kashmir ever exist?
*Saad Naveed, Department of Defense and Strategic studies Quaid e Azam University