Image source: ‘Big rally in New York’s Time Square slams Indian actions in Jammu & Kashmir’ (Daily Pakistan, 9 February 2020) <https://en.dailypakistan.com.pk/09-Feb-2020/big-rally-in-new-york-s-time-square-slams-indian-actions-in-jammu-kashmir> accessed 15 June 2022
This article explores the prospects of creating an international criminal tribunal over the Kashmir issue. The Kashmir conflict has bred a myriad of human rights and international law violations that should be better addressed in an international setting to safeguard against impunity and deter future atrocities.
During the past seventy-five years, the Kashmir conflict has been at the core of a territorial dispute between India and Pakistan.[1] It is the legacy of British colonial rulers who fled and divided the Indian subcontinent.[2] Now, India and Pakistan each control a section of Jammu[3] and Kashmir that is split by the Line of Control, and the two countries have not only fought four wars but also produced weapons of mass destruction in attempts to assert dominance over the region.[4],[5] This has led to decades of bloodshed and human rights violations that are stalled only by brief ceasefires and half-hearted attempts at international involvement. As with other historic instances of crimes against humanity, an international criminal tribunal would help ensure accountability for past crimes and deter future ones.
The History of International Involvement in Kashmir
In 1948 and 1949, the United Nations Security Council (hereinafter “UNSC”) approved resolutions[6] calling for a cease-fire and a plebiscite to allow the people of Jammu and Kashmir to determine whether they would like to stay with India or join Pakistan.[7] The prerequisites for convening a plebiscite were laid out shortly after UNSC Resolution 47; however, the Resolution’s implementation was stalled and India continually sought methods to extend its postponement. The Indian government formally repudiated the referendum in the 1950s, considering Resolution 47 as non-binding because it was passed under Chapter VI of the UN Charter.[8] Such a finding is, however, legally unenforceable because, according to Article 25 of the UN Charter, all UNSC resolutions, whether from Chapter VI or Chapter VII, are binding in nature.[9] Since then, both India and Pakistan have exercised control over parts of Kashmir, with formidable unrest in the Indian-administered part of the region.[10]
Tensions escalated when, in 2008, Indian forces killed the leader[11] of the Hurriyat Conference, a socio-political alliance united to raise awareness of Kashmiri separatism.[12] Thereafter, the Indian government began to take steps to declare Kashmir an intrinsic part of India. Article 370 of the Indian constitution gave special status to Jammu and Kashmir, granting the region heightened autonomy and independent law-making power.[13] In 2019, the Indian parliament voted to revoke Article 370, which changed Indian-administered Kashmir’s status from a special territory to an ordinary province, thereby decreasing the region’s autonomy and paving the way for a stronger military presence.[14] This has given rise to legal issues within fields such as PIL, IHL, IHRL, and ICL, and ultimately raises the question of whether an international criminal tribunal (hereinafter “ICT”) for the Kashmir dispute is possible under international law.
Is an International Criminal Tribunal on Kashmir Possible?
Pakistan accuses India of capturing Kashmir via “fraud and violence.” [15] In light of crimes in the region, inter alia, mass killings, forced disappearances, torture, rape, and so on, the establishment of an international criminal tribunal is necessary to hold perpetrators accountable.[16] To date, the UNSC has only established international criminal tribunals by passing resolutions under Chapter VII of the UN Charter, [17] such as in the case of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.[18] Measures established under Chapter VII are particularly advantageous dispute resolution tools because they imply that obligations established under the UN Charter take priority over any independent agreements. This said, international criminal tribunals are also costly and present temporal and spatial issues as well.
The establishment of an international criminal tribunal requires a resolution[19] passed by the UNSC. International tribunals have historically been created after mass public outrage and extensive international involvement, neither of which has occurred in Kashmir. In the case of the former Yugoslavia, for example, the Republic was not only a member of the UN before its 1992 split,[20] but the UNSC had also passed a resolution “expressing deep concern at the fighting” and placing an embargo on all products from the region.[21] This occurred two years before a tribunal was established.[22] Unlike in Yugoslavia’s case, the UN has discussed the Kashmir issue three times since India declared authority over the region and has reached no decision on how to proceed.[23] As demonstrated, the UNSC is cautious to take such steps without a track record of involvement in the conflict in question. This is part of why imminent international action is so crucial.
First Steps Towards Action
A feasible first step to international recognition and resolution of the Kashmir issue is a request for an advisory opinion from the International Court of Justice (hereinafter “ICJ”). Under Article 96 of its Charter, the United Nations may request the ICJ to give an advisory opinion on any legal question.[24] Requests for advisory opinions must be submitted in writing with an exact statement of the question at hand, and must be accompanied by all documents “likely to throw light on the question.”[25] After receiving statements from actors involved, the ICJ will consider the issue and announce its decision in open court.[26] The General Assembly (hereinafter “GA”) has exercised this option with some regularity on a range of issues from interpretations of international treaties[27] to the legality of the use or threat of nuclear weapons[28] to UN procedural issues.[29] While advisory opinions from the ICJ are not binding, it is widely understood that they lend legal credibility to UN decisions and bolster the rule of law among member states.
The Kashmir issue would likely benefit from a broadly framed question that allows for the implication of the region’s complex history and the multitude of actors involved. Other filings have elegantly embedded the context as the framework for the query. Here, such context would be Kashmir’s ethno-religious composition, the 1947 partition, Article 370, insurgent groups, and India’s military presence. The GA would first have to pass a resolution that agrees to seek an advisory opinion from the ICJ, and then the General Assembly could file a request that contains a question and relevant evidence.[30] This opinion would help inform the eventual establishment of an international criminal tribunal.
Alternatively, some combination of Pakistan, India, and the UN could establish an international hybrid court, like the Special Tribunal for Lebanon (“STL”), which was founded by an agreement between the UN and the Lebanese Republic in response to a UNSC Resolution in 1964.[31] A hybrid court is not a UN court; it is an autonomous judicial body that concurrently employs both international and local law.[32] Foreign judges sit alongside national judges to try persons accused, with both the prosecution and the defense present.[33] Legitimacy concerns are minimized by a balance between the involvement of national personnel who are well-versed in domestic jurisprudence and international experts who would serve as independent and impartial decision-makers. [34] The tribunal should sit in The Hague[35] for similar security reasons as were present during the establishment of the STL.[36]
Atrocities committed in the former Yugoslavia and Rwanda, as well as attacks in Lebanon, have not only not been forgotten, but have been replicated in Kashmir. This time, the Kashmiris are victims of mass executions, forced disappearances, sexual crimes, and intentional killings. The international community is once again failing to safeguard thousands of people who have committed no wrong other than being born in a contentious zone belonging to a certain minority group. The establishment of an international criminal tribunal to prosecute the perpetrators and prevent future crimes is necessary, let alone urgent.
While the establishment of an international criminal tribunal through the UNSC may not happen tomorrow, a sure first step is to request an advisory opinion from the ICJ on the legality of actions in Kashmir. This will lay the foundation for a criminal tribunal that will hold actors accountable for atrocities committed in the dispute over Kashmir.
[1] Noor Ahmad Baba, ‘Resolving Kashmir: Imperatives and Solutions’ [2014] 56 Race & Class 66, 66-67.
[2] ibid.
[3] The winter capital of Jammu and Kashmir union territory, northern India; Editors of Encyclopaedia Britannica, ‘Jammu’ (Britannica) <https://www.britannica.com/place/Jammu> accessed 13 June 2022.
[4] Sabzar Ahmad Bhat, ‘The Kashmir conflict and human rights’ Sabzar Ahmad Bhat’ [2019] 61 Race & Class 86, 87.
[5] ‘Behind the Kashmir Conflict: Abuses by Indian Security Forces and Militant Groups Continue’ (Human Rights Watch, 1 July 1999) <https://www.hrw.org/reports/1999/kashmir/back.htm> accessed 14 June 2022.
[6] UNSC Res 39 (20 January 1948) UN Doc S/RES/654; UNSC Res 47 (21 April 1948) UN Doc S/RES/726.
[7] ibid.
[8] Ahmad Baba (n 1).
[9] Advisory Opinion of 21 June 1971 (Advisory Opinion) 1971<https://www.icj-cij.org/public/files/case-related/53/053-19710621-ADV-01-00-EN.pdf> accessed 3 July 2022 [113] – [114].
[10] ‘Kashmir: Why India and Pakistan fight over it’ (BBC, 8 August 2019) <https://www.bbc.com/news/10537286> accessed 5 July 2022.
[11] Hurriyat Conference leader Sheikh Abdul Aziz.
[12] Jawed Naqvi, ‘Troops open fire as 250,000 ‘march to Muzaffarabad’: APHC leader Sheikh Aziz killed’ (DAWN, 12 August 2008) <https://www.dawn.com/news/316196/troops-open-fire-as-250-000-march-to-muzaffarabad-aphc-leader-sheikh-aziz-killed> accessed 14 June 2022.
[13] ‘Article 370: What happened with Kashmir and why it matters’ (BBC, 6 August 2019) <https://www.bbc.com/news/world-asia-india-49234708> accessed 5 July 2022.
[14] Helen Regan, ‘India downgrades Kashmir’s status and takes greater control over contested region’ (CNN, 31 October 2019) <https://edition.cnn.com/2019/10/31/asia/jammu-kashmir-union-territory-intl-hnk/index.html> accessed 14 June 2022.
[15] ibid.
[16] Kashmir Watch, ‘Kashmir: Human Rights Violations in Kashmir’ (Peace Women, 24 August 2010) <https://www.peacewomen.org/content/kashmir-human-rights-violations-kashmir> accessed 14 June 2022.
[17] UN Charter, Ch VII. See also UNSC Res 808 (22 February 1993) UN Doc S/RES/808 (establishing the International Criminal Tribunal for the Former Yugoslavia).
[18] UNSC Res 808 (22 February 1993) UN Doc S/RES/808 (establishing the International Criminal Tribunal for Yugoslavia) and UNSC Res 955 (8 November 1994) UN Doc S/RES/955 (establishing the International Criminal tribunal for Rwanda).
[19] UN Charter, Ch VII. See also UNSC Res 808 (22 February 1993) UN Doc S/RES/808 (establishing the International Criminal Tribunal for the Former Yugoslavia).
[20] Yehuda Z. Blum, “Was Yugoslavia a Member of the United Nations in the Years 1992-2000” (2007) 101:4 AJIL 800.
[21] United Nations Protection Force, Background on Former Yugoslavia (prepared by the Department of Public Information for the United Nations, 1996) <https://peacekeeping.un.org/sites/default/files/past/unprof_b.htm> accessed 14 June 2022.
[22] ibid.
[23] “UN discusses Kashmir for third time since India ended autonomy.” (Al Jazeera, 6 August 2020) <https://www.aljazeera.com/news/2020/8/6/un-discusses-kashmir-for-third-time-since-india-ended-autonomy> accessed 15 June 2022.
[24] UN Charter, Ch. XIV Art. 96.
[25] Statute of the International Court of Justice, Ch. IV Art. 64 s 2.
[26] Statute of the International Court of Justice, Ch. IV Art. 67.
[27] International Court of Justice, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Request for an Advisory Opinion, transmitted to the Court under UN resolution 71/292, 2017).
[28] International Court of Justice, Legality of the Threat or Use of Nuclear Weapons (Request for an Advisory Opinion, transmitted to the Court under UN resolution 49/75, 1994).
[29] International Court of Justice, Applicability of the Obligation to Arbitrate Under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Request for an Advisory Opinion, transmitted to the Court under UN resolution 42/229B, 1998).
[30] UN Charter (n 17).
[31] UNSC Res 1757 (30 May 2007) UN Doc S/RES/1757; UNSC Res 1664 (29 March 2006) UN Doc S/RES/1664.
[32] Laura A. Dickinson, ‘The Relationship between Hybrid Courts and International Courts: The Case of Kosovo’ (2002) 37 New Eng L Rev 1059.
[33] Ibid.
[34] Sarah M. H. Nouwen, “Hybrid Courts’: The Hybrid Category of a New Type of International Crimes Courts” (2006) 2 Utrecht L Rev 190.
[35] Agreement between the Kingdom of the Netherlands and the United Nations concerning the Headquarters of the Special Tribunal for Lebanon (21 December 2007).
[36] The assassination of Sheikh Abdul Aziz raises concerns for preventing violence towards potential tribunal members and personnel, similar to the assassination of the former Lebanese Prime Minister Rafik Hariri prior to STL.
Bibliography
Advisory Opinion of 21 June 1971 (Advisory Opinion) 1971<https://www.icj-cij.org/public/files/case-related/53/053-19710621-ADV-01-00-EN.pdf> accessed 3 July 2022.
Afzal S, ‘Kashmir intractable conflict: International law perspective’ (Pakistan Today, 13 June 2022) <https://www.pakistantoday.com.pk/2022/06/13/kashmir-intractable-conflict-international-law-perspective> accessed 14 June 2022.
Ahmad Baba N, ‘Resolving Kashmir: Imperatives and Solutions’ [2014] 56 Race & Class 66Ahmad Bhat S, ‘The Kashmir conflict and human rights’ Sabzar Ahmad Bhat’ [2019] 61 Race & Class 86.
Agreement between the Kingdom of the Netherlands and the United Nations concerning the Headquarters of the Special Tribunal fo.r Lebanon (21 December 2007).
‘Article 370: What happened with Kashmir and why it matters’ (BBC, 6 August 2019) <https://www.bbc.com/news/world-asia-india-49234708> accessed 5 July 2022.
‘Behind the Kashmir Conflict: Abuses by Indian Security Forces and Militant Groups Continue’ (Human Rights Watch, 1 July 1999) <https://www.hrw.org/reports/1999/kashmir/back.htm> accessed 14 June 2022.
Blum Y, “Was Yugoslavia a Member of the United Nations in the Years 1992-2000” (2007) 101:4 American Journal of International Law 800.
Dickinson L A, ‘The Relationship between Hybrid Courts and International Courts: The Case of Kosovo’ (2002) 37 New Eng L Rev 1059.
Editors of Encyclopaedia Britannica, ‘Jammu’ (Britannica) <https://www.britannica.com/place/Jammu> accessed 13 June 2022.
International Court of Justice, Applicability of the Obligation to Arbitrate Under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Request for an Advisory Opinion, transmitted to the Court under UN resolution 42/229B, 1998).
International Court of Justice, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Request for an Advisory Opinion, transmitted to the Court under UN resolution 71/292, 2017).
International Court of Justice, Legality of the Threat or Use of Nuclear Weapons (Request for an Advisory Opinion, transmitted to the Court under UN resolution 49/75, 1994).
Naqvi J, ‘Troops open fire as 250,000 ‘march to Muzaffarabad’: APHC leader Sheikh Aziz killed’ (DAWN, 12 August 2008) <https://www.dawn.com/news/316196/troops-open-fire-as-250-000-march-to-muzaffarabad-aphc-leader-sheikh-aziz-killed> accessed 14 June 2022.
‘Kashmir: Human Rights Violations in Kashmir’ (Peace Women, 24 August 2010) <https://www.peacewomen.org/content/kashmir-human-rights-violations-kashmir> accessed 14 June 2022.
‘Kashmir: Why India and Pakistan fight over it’ (BBC, 8 August 2019) <https://www.bbc.com/news/10537286> accessed 5 July 2022.
Nouwen S, “Hybrid Courts’: The Hybrid Category of a New Type of International Crimes Courts” (2006) 2 Utrecht L Rev 190.
Regan H, ‘India downgrades Kashmir’s status and takes greater control over contested region’ (CNN, 31 October 2019) <https://edition.cnn.com/2019/10/31/asia/jammu-kashmir-union-territory-intl-hnk/index.html> accessed 14 June 2022.
Statute of the International Court of Justice (San Francisco, 24 October 1945).
Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter).
“UN discusses Kashmir for third time since India ended autonomy.” (Al Jazeera, 6 August 2020) <https://www.aljazeera.com/news/2020/8/6/un-discusses-kashmir-for-third-time-since-india-ended-autonomy> accessed 15 June 2022.
United Nations Protection Force, Background on Former Yugoslavia (prepared by the Department of Public Information for the United Nations, 1996) <https://peacekeeping.un.org/sites/default/files/past/unprof_b.htm> accessed 14 June 2022.
UNSC Res 1757 (30 May 2007) UN Doc S/RES/1757.
UNSC Res 1664 (29 March 2006) UN Doc S/RES/1664.
UNSC Res 955 (8 November 1994) UN Doc S/RES/955.
UNSC Res 808 (22 February 1993) UN Doc S/RES/808.
UNSC Res 47 (21 April 1948) UN Doc S/RES/726.
UNSC Res 39 (20 January 1948) UN Doc S/RES/654.
Authors
Firdes Shevket, Research Assistant (firdes.schwkt98@gmail.com)
Kate Maguire, Research Assistant (kmaguire12@fordham.edu)