Justice Ali Nawaz Chowhan
On 5th august 2019 the Indian government revoked Articles 370 and 35A of its constitution and annexed this disputed territory making material breach of international al Law ,its intl.commitments, the binding Delhi agreement 1952 ,the UNSC resolutions as well as its own constitution giving a special status to this territory until the dispute is resolved.It also breached its fabricated instrument of accession. This was done on advise obtained from the Governor and not the Kashmir legislature.Besides laws including the new Indian domicile law designed to bring demographic change was promulgated.
Over nine hundred thousand men of the army have illegally occupied the territory and are keeping t he people under siege while violating with impunity the intl. Humanitarian law intl. During an armed conflict and using Lethal weapons ,cluster bombs perpetrating Sexual offences ,destroying Muslim religious and private properties and its incompetent COVID 19 response.
According to authentic source the total killings so far are said to be 352, including75 unarmed civilians,196 rebels and 81 from the occupational forces. 170000 persons have been arrested including old ,women and under aged. It’s now a year since the curfew was clamped.There is acute shortage of food and medicines. The internet is suspended. Travelling is restricted Kashmir is split into two Indian unions of Kashmir and Ladakh .Against the wishes of the stakeholders. This is the worst type of tyranny being faced by the helpless people of Kashmir in the history of democracy by the largest democracy.
Indian actions in Kashmir are akin to those of Israel’s seizing Palestinian territory during 1967 war The UNresolution 476(1980) declared all legislative and administrative measures and action taken by the occupying force or alternating the status of Jerusalem of no legal effect and a violation of the fourth Geneva
Convention. In the case of the wall advisory opinion the ICJ held making of the wall by Israel as a defective annexation. The Hague regulations 1907 defined occupation as a territory considered occupied w hen it’s is actually placed under the authority of a hostile army.
Since Kashmir is a disputed territory the conflict there is an intl conflict and India is guilty of war crimes against the civilian population who had to be protected. India is also violating the human rights provisions of ICCPR and ICESCR 1966.
The Tashkent declaration and the Simla agreements speak of Kashmir as a disputed territory. And that the dispute to be resolved mutually dispute between our two countries. This is what was also said by the EU delegation visiting kashmir in October 2019 during the conflict. The british prime minister has recently reiterated the stand of his government which acknowledges this as a disputed territory.
How can India unilaterally and so fraudulently make dejure changes in the the status of Kashmir. How can the special status of Kashmir enshrined in the constitution of India be altered on the advise of a governor destitute of recourse to the people .All these changes are a fraud on the statute. Likewise the change in the domicile law is of no legal effect being violative of 1952 Delhi agreement and legal status of kashmir.
Under the circumstances when presently no state is taking the matter to theICJ as was done by The Gambia we can look for an-interim relief by invoking the norm of the UN R2P and bring ing to the notice of the UN the violations in Kashmir by india while seeking an injunction against any change in status of and the asking for pulling out of the army and all security personnel and holding of an international investigation against commission of crimes against humanity,ethnic cleaning and genocide by india in the disputed territory and for creation of a war tribunal for trial of the perpetrators and abettors.
We can also bring to the notice of national institutions of human rights world over the crimes against humanity being committed by India. This is a powerful constituency and having interacted with this I know of its potential.we cannot expect any justice from the Supreme Court of india where the matter is pending as if it has no public importance same is the case of the national commission of india for human rights.
Justice (R) AliNawaz chowhan
Formerly Chief Justice of The Gambia, intl judge of the UN at the Hague, chairman
National commission of human rights Pakistan ,justice superior judiciary pakistan , visiting scholar to intl. Universities ,co.chair UNESCO legal board etc.