Genocide in Kashmir and the International Court of Justice

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Kashmir is fighting for its independence from the yoke of India for the last more then half a century, the matter is still hanging fire in the corridor of United Nation simply because the vested interest therein do not see their way to a peaceful settlement of the dispute. The pity is that the Kashmir dispute was taken to United Nation by no less a person then the first Prime Minister and one of the founding fathers of India Pundit Jawaharlal Nehru and for the last fifty years India is the aggressor in Kashmir, which United Nation can not check. Resolution after resolution have been passed by the UN Security Council to hold Plebiscite, so much so that even a plebiscite administrator was also appointed who has lately died and the Kashmir dispute remains unresolved.

Apparently United Nation seems to be a body of nations with vested interest where the super power rules, if the super power is interested the matter is solved like East Timor and they get their right of self determination, but an identical situation in Kashmir is not considered identical because it does not serve the South Asian policy of USA. The road to independence is always rough, hard and bumpy and every avenue has to be sought and every door has to be tapped. Already 70,000 Kashmiris have lost their lives under the genocide spree of India with more then half a million armed might of India pitted against un-armed freedom fighter of Kashmir who were promised self determination by the peace loving Prime Minister of India who later turned aggressor.

Being disappointed with United Nations, but praying to Almighty Allah and acting on his precept in Quran ” Laisalil Insane Ilela Masaa’ ” we provide according to the efforts of the people. There is yet another door in this vast expanse of God’s earth, known by the high sounding title of the International Court of Justice. Genocide is a crime condemned under any law and by any nation and country. The Kashmiris should also file their plea against the genocide being committed day in and day out by Indian authorities civil and military. Some legal lacunas are likely to come up. But nothing is surmountable. The word impossible is found in the dictionary of fools. Kashmir’s solution is also not far Off.

There are three steps that should be taken by Azad Jammu & Kashmir Government to sue India before the International Court of Justice for genocide. First, the President or the Prime Minister of Azad Jammu & Kashmir Government must deposit an Instrument of Accession to the 1948 Genocide Convention with the UN Secretary General, the depositary for the Convention. This Accession would become effective in ninety days.

Second, the President or the Prime Minister of AJK Government should deposit a Declaration with the International Court of Justice accepting the jurisdiction of the Court in accordance with the Charter of the United Nations and with the terms and subject to the conditions of the Statute and Rules of the Court, and undertaking to comply in good faith with the decisions of the Court and to accept all the obligations of a Member State of the United Nations under Article 94 of the United Nations Charter. Article 35(2) of the Statute of the International Court of Justice gives the Security Council the power to determine the conditions under which the World Court shall be open to states such as AJK Government that are not yet Parties to the ICJ Statute. The Security Council in a Resolution of 15 October 1946 has set these conditions forth. I would recommend that the AJK Government consider making a “general declaration” accepting the jurisdiction of the World Court generally in respect of all disputes which have already arisen, or which may arise in the future, as permitted by paragraph 2 of this 15 October 1946 Security Council Resolution.

Pursuant to the terms of paragraph 5 of that Resolution, “All questions as to the validity or the effect of a declaration made under the terms of this resolution shall be decided by the Court.” Therefore, it would be for the World Court itself to decide whether AJK Government is entitled to exercise the powers conferred by the Security Council in its Resolution of 15 October 1946. For reasons explained in more detail below and elsewhere, I believe the World Court will decide in favor of AJK Government on this matter of its Statehood. To the same effect is Article 41 of the Rules of Procedure of the International Court of Justice. Article 41 reads:

The institution of proceedings by a State / Government which is not a party to the Statute but which, under Article 35, paragraph 2, thereof, has accepted the jurisdiction of the Court by a declaration made in accordance with any resolution adopted by the Security Council under that Article, shall be accompanied by a deposit of the declaration in question, unless the latter has previously been deposited with the Registrar. If any question of the validity or effect of such declaration arises, the Court shall decide.

The Security Council Resolution referred to in Article 41 that is now in force is the Resolution of 15 October 1946 mentioned above.

In addition, that same Article 35 of the Statute of the International Court of Justice also permits a State or Government such as AJK Government that is not a Party to the ICJ Statute to file a lawsuit against another State without making the above-mentioned Declaration provided that both States or their subjects are parties to a treaty that contains a compromissory clause submitting disputes arising thereunder for adjudication by the World Court:

Article IX of the Genocide Convention, to be quoted in full below, contains such a “special provision” or compromissory clause.

Indeed, the World Court clearly envisioned and expressly approved such a lawsuit by a State Party to the Genocide Convention, which is not a Party to the Statute of the International Court of Justice and has not even made the aforementioned Declaration accepting the jurisdiction of the Court, by means of Paragraph 19 of its 8 April 1993 Order in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide. ( Herzegovina and Bosnia Vs Yugoslavia-Serbia & Montenegro.)

Whereas Article 35 of the Statute, after providing that the Court shall be open to the parties to the Statute, continues:

” The conditions under which the Court shall be open to other States shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court”; whereas the Court therefore considers that proceedings may validly be instituted by a State against a State or its subjects which is a party to such a special provision in a treaty in force, but is not party to the Statute, and independently of the conditions laid down by the Security Council in its resolution 9 of 1946.

Notice that in the language emphasized above, the World Court ruled that a State Party to the Genocide Convention could file a lawsuit against another State Party even “Independently of the conditions of the Security Council in its resolution 9 of 1946.” In other words, AJK Government can sue India for violating the 1948 Genocide Convention so long as AJK Government becomes a Contracting Party to the Genocide Convention. For reasons explained in more detail below and elsewhere, I believe the World Court will find that AJK Government is a State entitled to become a Contracting Party to the Genocide Convention. Out of an abundance of caution, however, I still recommend that AJK Government file the above-mentioned Declaration generally accepting the jurisdiction of the International Court of Justice.

Third, and finally, the Government of Azad Jammu & Kashmir and its President and Prime Minister must file an Application against India instituting legal proceedings for violating the Genocide Convention on the jurisdictional basis of Article IX thereof, which provides as follows:

Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State/Government for genocide or any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

In accordance with Article 36(6) of the ICJ Statute, in the event of a dispute as to whether the World Court has jurisdiction over a lawsuit between Kashmir and India on the basis of Article IX of the Genocide Convention, “the matter shall be settled by the decision of the Court.”

Therefore, the filing of this genocide Application should be enough to get AJK Government into the World Court against India for quite some time. And once AJK Government is in the World Court, we can then consider requesting from the Court at any time an Indication of Provisional Measures of Protection against India to cease and desist from committing all acts of genocide against the Kashmiri People.

AJK Government would be able to claim in its World Court Application against India that the India’s genocide against the Kashmiri People commenced inspite of UN Resolutions on Indian request with the deceitful operation leading to illegal accession, ethnic cleansing, and occupation of 1948–” the beginning of the conflict,” which has now been turned into open violation of Genocide Convention because of the shift in super powers needs in South Asia.

Article II of the 1948 Genocide Convention defines the international Crime of genocide as follows:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such:

Certainly, AJK Government can have a valid claim that India and its predecessors-in-law–the British–have committed genocide against the Kashmiri People that actually started in 1947 and has continued apace until today in violation of Genocide Convention Article II (a), (b), and (c), inter alia.

For at least the past fifty three years, the Indian government and its predecessors-in-law–the British–have ruthlessly implemented a systematic and comprehensive military, political, and economic campaign with the intent to destroy in substantial part the national, ethnical and racial group known as the Muslims in Kashmir. This British and Indian campaign has consisted of killing members of the Muslim of Kashmir in violation of Genocide Convention Article II (a). This British and Indian campaign has also caused serious bodily and mental harm to the Muslims of Kashmir in violation of Genocide Convention Article II (b). This British and Indian campaign has also deliberately inflicted on the Muslims of Kashmir conditions of life calculated to bring about their physical destruction in substantial part in violation of Article II(c) of the Genocide Convention.

Of course, the purpose of suggesting this lawsuit is that at some point in the future the World Court could rule that the AJK Government does not exist as a “State Government” entitled to accede to the Genocide Convention. But I think that there is a high probability that this World Court, as currently constituted, would rule in favor of the existence of the AJK Government.

I believe the World Court will rule in favor of the de jure existence of the AJK Government for the purpose of mounting this lawsuit against India for genocide. We might not get the vote of the Judge from the United States due to their shift in South Asian foreign policy requirements. But I believe that a majority of the fifteen Judges on the International Court of Justice will rule in favor of the de jure existence of the AJK Government.

Of course, if necessary, the AJK Government could also sue the United States before the International Court of Justice for aiding and abetting Indian genocide against the Muslalmans in Kashmir in violation of Article III (e) of the 1948 Genocide Convention that expressly criminalizes “complicity” in genocide.

The choice in Kashmir is not between peace and war, but between no-peace and no-war stalemate. India’s moratorium on brutalities in Kashmir amounts the Roman peace, eloquently described by the Roman poet Virgil: “You, O Roman, remember to rule the nations with might. This will be your genius-to impose the way of peace, to spare the conquered and crush the proud.” India’s policy in Kashmir is ” Heads I win and Tails you loose ” Pakistan has to revamp its foreign policy as well as economic and domestic policy while keeping in view Kashmir policy and also most important Afghan policy which has always been the bone of contention for the super powers. Afghanistan has been the number one problem since before the emergence of Bharat and Pakistan, even King Amanullah had to leave his throne because of his alignment with the British. We have to learn a lesson from history and also the wisdom of the Chinese who never lost sight of Macau, Taiwan and Hong Kong while pursuing their interest in WTO.

Israel the number one aggressor on earth backed by the super power is committing genocide of Arabs in Palestine. The dagger of Israel pierced in the hearts of Arabs, under a conspiracy hatched by America and ably assisted by their number two Great Britain, is drenched with human blood, Arab blood and cries before the world conscience which is silent, nay, dead because of the vested interest of the super power. The only course left to the Arabs is also now to go to the International Court of Justice.

Mr. Ali Ashraf Khan is a Pakistani Businessman and Ex-Politician who bid good bye to politics in order to concentrate on more useful service benefit of the political intrigues prevalent in the National Political life of Pakistan. He frequently writes for English and Urdu newspapers in Pakistan.

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