Image source: Map of Indian-Administered Kashmir, from BBC News, 6 August 2019, https://www.bbc.com/news/world-south-asia-11693674
Introduction
A conflict has been taking place in Kashmir for decades, rooting from the accession to independence of Pakistan and India in 1947. In 2019, India’s intervention in the Indian Administered Kashmir (IAK) has significantly impacted the Kashmiri people and highlighted, once again on the international stage, the unresolved situation in the former princely states of Kashmir. With the contextual background established, we must dive into the legal dimension of the situation in the IAK to understand what protection applies to the Kashmiri people. This article will demonstrate the difficulty of classifying conflicts in some situations and emphasise the need to ensure that the core of international humanitarian law remains applicable in all situations of conflict.
A long conflictual history
To analyse the most recent events, it is necessary to understand the history of the regions. Under British Rules, Kashmir was considered a princely state. When India and Pakistan obtained their independence in 1947, the status of this princely state was left undetermined. Initially, the princely states were offered a choice between independence or accession to either India or Pakistan.[1] Despite the initial refusal of the leader of Kashmir to join either state with the aim of becoming independent, he then signed the Instrument of Accession in exchange for India’s support when disturbances emerged.[2] Since then, several wars have broken out between India and Pakistan over the territory of the formerly princely state of Kashmir. These wars have led to the partial division of the territory along a line of control monitored by the United Nations, with Pakistan, India, and China each administering a portion. As a result, the former princely state of Kashmir under British colonisation has never become an independent state. During the drafting of the Indian Constitution, the IAK was granted special status under article 370, foreseeing a further opportunity for the people of the region to determine their destiny.[3] In 2019, India revoked the special status granted to Kashmir under the Constitution, which had provided significant autonomy, and started to militarily occupy Kashmir. On the ground, Kashmiri people are currently isolated following the lockdown imposed by India, with high troop presence, significant restraint on freedom of movement, imprisonments, and communication blackout.[4] Yet, it is challenging to provide more details on what is happening due to the absolute control over information.
Classifying the violence, the difficulty in the Indian Administered Kashmir
1. Pakistan-India and India-Kashmir: two distinct disputes
To determine which laws apply to the situation in IAK, we must classify the situation as either an international or a non-international armed conflict. Indeed, international humanitarian law – the body of law which regulates conflicts – is built upon a dichotomy between international and non-international armed conflicts. The focus of our study is the situation in IAK and how India is treating the people living within the part of the Kashmir territory it controls. Thus, it is important to distinguish between the conflict which opposes India and Pakistan and the situation in IAK.
India has been in a conflict with Pakistan for the control of Kashmir since 1948. At the same time, there is another dispute taking place in the IAK which concerns India and the Kashmiri people only. The former conflict does not influence the classification of the situation occurring in IAK, as two types of armed conflicts can co-exist as illustrated by the situation of Nicaragua. In this case, a conflict between armed groups and the government occurred while the United States was acting against the Nicaraguan Government. In its decision, the International Court of Justice decided that “the conflict between the contras’ forces and those of the Government of Nicaragua is an armed conflict which is ‘not of an international character’” while “the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts”.[5]
2. Parties for an non-international armed conflict
The conflict taking place in the Indian Administered Kashmir, opposed separatist groups and militants fighting for independence to the Indian forces. As a result, the conflict is not of an international character. International armed conflicts are defined in common article 2 of the Geneva Conventions as “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.”[6] In the Tadić case, the Appeals Chambers of the International Criminal Tribunal for the Former Yugoslavia (ICTY) defines international armed conflict as a conflict where “there is resort to armed force between States”.[7] Here, we are confronted with a conflict involving on one hand a state and on the other hand, non-state actors, which correspond to the definition of non-international armed conflict set out in common article 3 of the Geneva Conventions, which simply refers to “armed conflict not of an international character”.[8]The ICTY clarifies the definition in Tadić, describing non-international armed conflicts as “protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.”[9] Under this definition, 2 criteria would have to be met. While it is evident that violence takes place between the Indian forces and the militants, protracted armed violence refers to the intensity of the clashes, which is assessed by looking into a variety of factors, such as the number and duration of individual confrontations, the type of weapons and the number of casualties.[10] While initially the fight for independence in Kashmir did meet the threshold in terms of intensity of violence , it is less clear that it is still the case given the diminution of fighting.[11] With regard to the level of organisation of the opposition, there are some clearly identified groups, such as Hizbul-ul-Mujahideen (HuM), and Jaish-e-Muhammad (JeM).[12]
3. Yet, some characteristics of an international armed conflict ?
Classification of conflicts is not always clear-cut as the ongoing violence in the IAK can illustrate. In the present situations, several elements complicate our assessment. The first one is the involvement of Pakistan in the conflict. While it is non-state actors from the IAK who directly engage with the Indian forces, Pakistan has provided support to these militants. There is, for instance, evidence that Pakistan has provided Kashmiri militants with training, weapons, funding and sanctuary.[13] Some authors have even assimilated the acts occurring in IAK as terrorism sponsored by Pakistan.[14] The contribution of Pakistan could lead to the internationalisation of the conflict. The test to determine if Pakistan’s support affects the classification of the conflict was established by the ICTY in Tadic. The question is whether Pakistan exercises sufficient control over the groups which are fighting against Indian forces for it to become internationalised. This factual test was confirmed by the ICJ in the Genocide Convention judgment. Indeed, while it refuses to apply it to the issue of state responsibility at stake, preferring the effective control test set out in their previous decision in the Nicaragua case, it confirms its limited and appropriate use to the determination of whether an armed conflict was international.[15] The ‘overall control’ test requires States to provide support beyond mere financial assistance, assessing their role with regards to planning and organising operations.[16] Yet, the ICTY did not exclude the applicability of the ‘effective control’ standard established in the Nicaragua case, which remains relevant to attribute conducts of single individuals to States.[17] Furthermore, the ‘effective control’ test is used to determine a state’s responsibility for violation of human rights and international human rights law. Therefore, it remains important for the question of attribution of responsibility for the violations committed in the IAK by the militants. In the present case, the fatal question to be resolved is whether Pakistan limits itself to financing and equipping or whether it also contributes to the planification of operations perpetrated by militants groups, leading to the internationalisation of the conflict.
Another issue arises in relation to the territory, as the Kashmiri territory administered by India is not legally recognised as part of India. Kashmir, as a whole, is considered to be a disputed territory and this position has continuously been endorsed by the UN Security Council, which recognises the need for a “free and impartial plebiscite” so that Kashmir can determine which country to accede to.[18] However, Article 3 of the Geneva Convention defines non-international armed conflicts as conflicts “occurring in the territory of one of the High Contracting Parties”.[19] Likewise, Additional Protocol II which supplements the Geneva Conventions with regards to non-international armed conflicts only applies to all armed conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”[20] While traditionally, under treaty law, non-international armed conflicts were confined to the territory of a State Party, the question is more ambiguous as the study of the International Committee of the Red Cross shows.[21] Under customary international law, Tadic suggests that this requirement still needs to be met. Indeed, while it is not initially set out in the definition, it is repeatedly mentioned later in the decision. The court refers to non-international armed conflicts as “internal armed conflicts”[22] and describes them as “armed violence (which) has erupted “only” within the territory of a sovereign State.”[23] If the territorial aspect still matters for classification, the disputed statute of the Indian Administered Kashmir may undermine its classification, even though the parties clearly point to a non-international armed conflict.
To complicate even more our assessment, India’s military presence and control may amount to occupation and therefore be treated as an international armed conflict for the purpose of international humanitarian law. The Geneva Conventions, to which India is a State Party, clearly stipulate those occupations are dealt with as international armed conflicts.[24] The military presence of India, and the control exercised by India on the territory, create a situation of de facto occupation by India. An occupied territory is defined in article 42 of the Hague Regulations of 1907 as a territory which is actually placed under the authority of the hostile army.[25] This definition is now accepted as customary international law,[26] thus applying to all states, irrespective of their ratification of the treaty. However, to meet this definition, several requirements are necessary. Firstly, the territory occupied must not belong to the presumed Occupying Power. We have already established that Kashmir, while not independent, was not part of India. Furthermore, the fact that Kashmir is a disputed territory does not prevent it from being considered occupied, as held by the International Court of Justice in its Advisory Opinion with regards to the occupied Palestinian territory.[27] In addition, the Occupier, who represents a hostile army, must exercise its authority over the territory. The situation in Indian Administered Kashmir meets these requirements.[28] Thus, the norms of international humanitarian law regulating international armed conflicts would apply, particularly those stipulated in the Geneva Convention IV, which cover occupations. However, it is important to note that this classification is not settled as India argues, for instance, that the situation falls within the scope of its internal affairs.
Beyond the classification- some fundamental principles
Why is the classification of the conflict so relevant? Considering the significant discrepancies in the norms applicable to each type of conflict, it allows determining which norms of international humanitarian law apply to the situation at stake. International armed conflicts are heavily regulated, both by treaty law and customary international law. For instance, with regards to Geneva laws, the four Geneva Conventions apply to conflicts opposing two states, while only article 3 of the Geneva Conventions applies to non-international armed conflicts. A critical difference is the level of protection granted to those who take part in international armed conflicts. Participants in international armed conflicts who meet the requirements to be classified as combatants are entitled to additional rights and protections upon capture in accordance with their status of prisoners of war, as specified in the Third Geneva Convention and the First Additional Protocol.[29] This includes the right to directly take part in the hostilities. Indeed, within the limits of the rules established by international humanitarian law, combatants can engage in hostilities, including fighting, killing and destroying lawful targets. Thus, combatants enjoy immunity from criminal prosecution to a certain extent as they cannot be punished ‘simply for having taken part in hostilities’.[30] In comparison, the status of prisoner of war and, therefore, the additional protections stemming from it do not exist in non-international armed conflicts. As a result, participants in such disputes can be prosecuted by the state merely for taking arms, despite their compliance with international humanitarian law. The fact that individuals in non-international armed conflicts are regulated by national laws has a significant impact. This is particularly true in the absence of an international definition of terrorism, since members of oppositions groups are left at the mercy of states. This is one of the reasons why the conflict’s classification matters in the present case. If the events in IAK were within the internal affairs of India, the Indian government could deal with the issues with its national law. India has passed broad legislation to fight terrorism, which imposes significant sanctions and restrictions on the groups fighting in IAK.[31] Thus, the classification of the conflict is critical for those who take part in the fights in this territory.
Yet classification, while remaining important, should not conceal the aims of international humanitarian law. We should not lose sight of the fact that both sides have committed widespread human rights abuses, attacked civilians, and violated international humanitarian law. This issue was pointed out by the ICTY in Tadic, where it stated that “the distinction between interstate wars and civil wars is losing its value as far as human beings are concerned.” and that therefore, if international law is to “gradually turn to the protection of human beings, it is only natural that the aforementioned dichotomy should gradually lose its weight”.[32] In all situations of conflict, irrespective of this assessment, the core principles of international humanitarian law should be the focal point to which those involved should aim to abide by. The Laws of Wars are influenced by two driving forces: military necessity and humanitarian considerations. It is humanitarian considerations which encourage the development of norms to limit the impacts of war. In the words of the Preamble to the St Petersburg Declaration of 1868, the aim of international humanitarian law was to “alleviate as much as possible the calamities of war”.[33] With this goal in mind, the two cardinal principles, namely the distinction and the prohibition of unnecessary suffering, are to be applied in every dispute. This position is supported by the ICJ, which has held that the two cardinal principles are “intransgressible” under customary international law.[34] The aim of international humanitarian law should be the starting point in every conflict, despite its classification, and should require the core of international humanitarian law to be applied. As a result, the core protection of international humanitarian law ought to be guaranteed in the conflict opposing the Indian forces and the armed group in the IAK.
Conclusion
The conflict taking place in the IAK is difficult to classify. However, to focus on its classification may take us away from what is at stake the life and basic human rights of the people living in the IAK. Those involved in the violence ought to abide by international humanitarian law and seek to uphold its goals. Irrespective of the type of conflict, some rules are to be strictly complied with, that includes the prohibitions to target civilians, as well as to torture detainees for instance. While it remains important, for the purpose of sanctions, to know which specific norms regulate the situation at stake, difficulty of classification should not and cannot be used as an excuse to fail to abide by the core rules of international humanitarian law.
[1] Memorandum on States’ Treaties and Paramountcy presented by the Cabinet Mission to His Highness the Chancellor of the Chamber of Princes on 12 May 1946; Section 7(1)(b) of the Indian Independence Act, 1947.
[2] See RSIL, Legal Memorandum on the Status of Jammu and Kashmir (15 August 2019), https://rsilpak.org/2019/08/legal-memorandum-the-status-of-jammu-kashmir-under-international-law/ (last accessed 21 April 2022) at 4. This article provides a strong historical background.
[3] See Shri N. Gopalaswami Ayyangar’s representations before the Constituent Assembly when article 370 was moved for consideration in AG Noorani, The Kashmir Question (1964) at 46.
[4] See A. Malik, ‘Kashmir under Siege, an International Law Perspective, Addendum n1 to RSIL Legal Memo on Jammu & Kashmir’ (September 2019), https://rsilpak.org/2019/kashmir-under-siege-an-international-law-perspective/#_ftn2 (last accessed 21 April 2022).
[5] International Court of Justice, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) Merits, (27 June 1986) ICJ Rep. 14, para 219.
[6] Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva (12 August 1949) article 2; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva (12 August 1949); Convention (III) Relative to the Treatment of Prisoners of War, Geneva (12 August 1949); Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Geneva (12 August 1949).
[7] International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v Dusko Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) (2 October 1995) para 70.
[8] Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva (12 August 1949), article 3; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva (12 August 1949), article 3; Convention (III) Relative to the Treatment of Prisoners of War, Geneva (12 August 1949), article 3; Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Geneva (12 August 1949), article 3.
[9] Prosecutor v Dusko Tadic (n7) para 70.
[10] ICTY, Prosecutor v. Haradinaj, IT-04-84-T (Judgment) para 49.
[11] Moksha Singh, Munmun Jha, International Humanitarian Law and the Kashmir Crisis, Indian Journal of Human Rights and the Law, vol 12(1) 2015, p1-11, at 6 https://www.researchgate.net/publication/320077170_International_Humanitarian_Law_and_the_Kashmir_Crisis (last access May 16, 2022).
[12] Asad Hashim and Rifat Fareed, ‘Explainer: Who are Kashmir’s armed groups?” March 2019, Aljazeera, https://www.aljazeera.com/news/2019/3/3/explainer-who-are-kashmirs-armed-groups (last access May 21st 2022).
[13] Human Rights Watch, “Everyone lives in fear” patterns of impunity in Jammu and Kashmir, vol 18(11), Septembre 2006, 5.
[14] Moksha Singh, Munmun Jha, (n11), 4.
[15] International Court of Justice, Case Concerning Application of the Convention on the Prevention and the Punishment of the Crime of Genocide ((Bosnia and Herzegovina v. Serbia and Montenegro), Judgement (26 February 2007) ICJ Rep. 43, para 404.
[16] ICTY, Prosecutor v Tadic, (Appeal Chamber Judgment) 15 July 1999, Case no IT-94-1A, paras 131, 137, 145.
[17] Nicaragua, (n5), 115.
[18] United Nation Security Council Resolution 91 (30 March 1951) S/2017/Rev.1.
[19] Geneva Conventions (n 8).
[20] Protocol Additional to the Geneva Convention of 12 August 1949 and relating to the protection of victims of non-international armed conflicts (Protocol II) of 8 June 1977, Article 1(1).
[21] Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva (12 August 1949), Coomentary of 2016, article 3 conflicts not of an international charcater https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=59F6CDFA490736C1C1257F7D004BA0EC (last access May 26th 2022).
[22] Prosecutor v Dusko Tadic (n7) para 97.
[23] Prosecutor v Dusko Tadic(n7), para 97.
[24] Geneva Conventions (n 8).
[25] Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Lan, The Hague (18 October 1907), article 42.
[26] International Court of Justice, Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (9 July 2004), https://www.icj-cij.org/public/files/case-related/131/131-20040709-PRE-01-00-EN.pdf (last accessed 25 April 2022).
[27] Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (n25).
[28] See RSIL, Legal Memorandum on the Status of Jammu and Kashmir (n 2), providing an in-depth analysis, which demonstrates the occupation of India.
[29] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (8 June 1977).
[30] A. Rosas, The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conflicts 82 (1976).
[31] M. Zakerian, N. Sobhani, ‘International Humanitarian Law and Laws of War: Kashmir’ (2006) 3(3) International Studies Journal 16.
[32] Prosecutor v Dusko Tadic (n21).
[33] St Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight, 1868, Laws of Armed Conflicts, Preamble.
[34] International Court of Justice, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (8 July 1996) ICJ Rep. 226, 257.
Bibliography:
Primary sources:
International Court of Justice, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) Merits, (27 June 1986) ICJ Rep. 14.
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva (12 August 1949) article 2; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva (12 August 1949); Convention (III) Relative to the Treatment of Prisoners of War, Geneva (12 August 1949); Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Geneva (12 August 1949).
International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v Dusko Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) (2 October 1995).
Protocol Additional to the Geneva Convention of 12 August 1949 and relating to the protection of victims of non-international armed conflicts (Protocol II) of 8 June 1977.
Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Lan, The Hague (18 October 1907)
St Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight, 1868, Laws of Armed Conflicts, Preamble.
United Nation Security Council Resolution 91 (30 March 1951) S/2017/Rev.1.
International Court of Justice, Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (9 July 2004), https://www.icj-cij.org/public/files/case-related/131/131-20040709-PRE-01-00-EN.pdf (last accessed 25 April 2022).
International Court of Justice, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (8 July 1996) ICJ Rep. 226.
ICTY, Prosecutor v. Haradinaj, IT-04-84-T (judgement).
International Court of Justice, Case Concerning Application of the Convention on the Prevention and the Punishment of the Crime of Genocide ((BOSNIA AND HERZEGOVINA v. SERBIA AND MONTENEGRO), Judgment (26 February 2007) ICJ Rep. 43, para 404.
ICTY, Prosecutor v Tadic, (Appeal Chamber Judgment) 15 July 1999, Case no IT-94-1A.
Secondary sources:
Memorandum on States’ Treaties and Paramountcy presented by the Cabinet Mission to His Highness the Chancellor of the Chamber of Princes on 12 May 1946; Section 7(1)(b) of the Indian Independence Act, 1947.
RSIL, Legal Memorandum on the Status of Jammu and Kashmir (15 August 2019), https://rsilpak.org/2019/08/legal-memorandum-the-status-of-jammu-kashmir-under-international-law/ (last accessed 21 April 2022).
Shri N. Gopalaswami Ayyangar’s representations before the Constituent Assembly when article 370 was moved for consideration in AG Noorani, The Kashmir Question (1964).
A. Malik, ‘Kashmir under Siege, an International Law Perspective, Addendum n1 to RSIL Legal Memo on Jammu & Kashmir’ (September 2019), https://rsilpak.org/2019/kashmir-under-siege-an-international-law-perspective/#_ftn2 (last accessed 21 April 2022).
Moksha Singh, Munmun Jha, International Humanitarian Law and the Kashmir Crisis,, Indian Journal of Human Rights and the Law, vol 12(1) 2015, p1-11, at 6 https://www.researchgate.net/publication/320077170_International_Humanitarian_Law_and_the_Kashmir_Crisis (last access May 16, 2022).
Human Rights Watch, “Everyone lives in fear” patterns of impunity in Jammu and Kashmir, vol 18(11), Septembre 2006, 5.
A. Rosas, The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conflicts 82 (1976).
M. Zakerian, N. Sobhani, ‘International Humanitarian Law and Laws of War: Kashmir’ (2006) 3(3) International Studies Journal 16.
Asad Hashim and Rifat Fareed, ‘Explainer: Who are Kashmir’s armed groups?” March 2019, Aljazeera, https://www.aljazeera.com/news/2019/3/3/explainer-who-are-kashmirs-armed-groups
Author:
Athénaïs Levraud Research Assistant (athenais.levraud@gmail.com )