Kashmir and UN’s responsibility to protect

Why does this not apply to India?
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 has been the norm in international society since the1648 Peace of Westphalia, 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 the humanitarian crises of the world  after the Cold War. First proposed by a commission in 2001, it was then approved in the UN’s 2005 World Summit Outcome, and through UN Security Council and General Assembly resolutions. It is the doctrine of the UN, according to which it has assured responsibility to ensure peace throughout the world under international 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 apathy in dealing with them, and can result in a military intervention if deemed necessary.

In the context of R2P, the biggest concern in South Asia since 1947 is the Kashmir issue. The Valley is 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 controlled by one state. It has also been the bone of contention between them since their inception. They have fought three full-fledged wars, numerous low intensity conflicts and continue border skirmishes. In this matter, the UN has adopted UN Security Council Resolution 47on 21 April 1948. According to it, a plebiscite should be conducted in the region and to let the people decide whether they wanted to join Pakistan or India. Under international law, Kashmir is neither part of India nor Pakistan. But both states have firm national interests there. The recent constitutional changes in India on 5 August 2019 worsened the situation and put the Kashmiri people on the edge of a humanitarian emergency. The revoked special status had provided Kashmir a certain amount of autonomy. In his address to the 74th UN General Assembly, Malaysian PM Mahathir Mohamad 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 personnel in Kashmir over the population of eight million. After five 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 the UN specifically has to take certain measures as India committed three violations. First, it decided the remove the special status of Kashmir (unilaterally) that is recognized as disputed territory. Second, this was against the will of the Kashmiri people, as it was done forcefully. Third, India is committing crimes against humanity in the valley. Starting from political repression and suppression of freedom of expression to killings, sexual abuse and forced disappearances, all can be categorized as crimes against humanity. These have been highlighted by many news agencies. As writer Arundhati Roy said: ‘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’.

According to ex-Pakistani permanent representative to the UN, Maleha Lodhi, ‘’How can this body command the respect it deserves if its own laws are broken?” UN memberss 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,” Dr 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, which means it is non-binding and represents 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 versus Hypocrisy’’. Under the notion of R2P,this can be associated with two types of sovereignty, the territorial sovereignty of weak states and the decisi onmaking sovereignty of powerful state. India will never allow the international community to intervene, especially when it claims Kashmir as a bilateral issue with bordering Pakistan. The world powers feel unequipped to intervene in Kashmir, because one country involved is too powerful and does not follow any ethics. R2P is embedded in the tools of national interests, and can apply to Libya or Syria but not Kashmir.

India versus Kashmir is a large country bullying a small nation into submission in violation of not only its right to sovereignty but international agreements and UN resolutions giving its people the right to determine their own political fate. The purpose of so many troops stationed in this small country has to be obvious oppression. The Indian stance of being a secular state has been shattered due to forceful occupation of Jammu and Kashmir. Their presence makes Kashmir the largest army concentration anywhere in the world, itself a major threat to international peace.  Nawaz Sharif articulated Pakistan’s policy on 26 September 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”. His words focused on the responsibility of international society and highlighted the urgency of humanitarian assistance. During the UNGA’s 74th session, Imran Khan delivered a historic speech that showed the real face of India’s atrocities in 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 the Indian drama in Kashmir. Today both states have nuclear weapons and the international community believes Kashmir will be the 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 allof Kashmir, but this military acquisition will not be ignored by the world’s states.

Moreover, the UN secretary general can bring the situation in Kashmir to the attention of the Security Council under Article 99 of the United Nations Charter. It 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 a bilateral issue, and the mass violence and insecurity among the Kashmiris is giving birth to the new version of Hobbesian anarchy in the occupied territory which will ultimately effect global peace, stability and security.

Although, R2P is not binding and carries a normative status, the significance of norms and precedents and customary law cannot be ignored in the continuously changing international system, where human rights have become central to state affairs. India is the sole perpetrator of mass killing in Kashmir and the world know this. Sooner or later, this political tussle will bow down towards humanity and the abusive conditions will end, or it will be another failure of the UNSC.

Protection from violence and mass suffering is the core principle of the UN. It is acting as custodians and guardians of states as well as individuals everywhere in this world. But why is it silent on Kashmir? How long will it take for Kashmiris to attain independence? Is there even a final solution? Was Kashmir, like Palestine, a blunder of British colonizers? Has India backed down on its promises on Kashmir? Is Kashmir an integral part of India? Will there ever be a fair democratic election? Will Kashmiris ever practice the right to self-determination?