MIAN SAIFUR REHMAN: India is an ‘Illaqai’ (regional) hegemon- it has been proved not once but twice in the forcibly and illegally occupied territory of Jammu and Kashmir that is now rightly termed worldwide as IIOJK (Indian Illegally Occupied Jammu and Kashmir). Even otherwise, the

uninterrupted series of atrocities perpetrated on the innocent Kashmiris demanding their universally recognized right of self-determination, present India as a usurper which has utilized all (il)legal, propagandist channels to devour the Kashmir Valley against the wishes of its inhabitants and even against the solemn commitment made before the United Nations Security Council (UNSC) by their own one-time influential prime minister,

Jawharlal Nehru, that a plebiscite would be conducted in Kashmir to

ascertain the will of the local populace.

According to historical references, Nehru’s was a collective decision and it was also

influenced by the first Governor-General of independent India, Lord Mountbatten, who also happened to be the last Viceroy of India. In the past, as many as 17 resolutions were taken up over the Kashmir issue in the UNSC, from Resolution number 38 of January 17, 1948 till Resolution number 307 adopted by the Council at its 1616th meeting

held on December 21, 1971 but none of them could deter India from pursuing its nefarious agenda of continuous illegal occupation of Kashmir in defiance of the UNSC resolutions and universal principles of justice.

The first ever illegality in this context was committed by India in collusion with the last Maharaja (ruler) of Kashmir. It was way back in October 1947 when the Maharaja signed an illegal Instrument of Accession with India, following which India entered its armed forces in the territory to occupy some parts of it. As regards the element of illegality in the October 1947 Instrument of Accession, the ‘Indo-Pak Partition’ paper had allowed the Kashmiris to decide their own fate.

By all inferences, neither the Maharaja nor the Indian authorities could sign this document of accession. The second biggest illegality vis-à-vis Kashmir was committed by Narendra Modi-led government of India on August 5, 2019 through the repeal of Articles 370 and 35 A of the Indian Constitution which conferred special status on the Kashmir state.

Taking an unconstitutional route through the repeal of these articles, Indian

government has consolidated its illegal occupation of Kashmir where demography is being drastically changed, in violation of Article 35 A to ‘downsize’ the Muslim majority as a pre-emptive measure against a possible plebiscite in future.

If Indian leadership’s hegemonic mindset is studied thoroughly, there are not two but many more violations of laws and conventions on occupation, rights of people of an occupied territory and the question of sovereignty. In this particular backdrop, the legal classification of the status of the Jammu & Kashmir (J&K) needs consideration.

By all accounts, the correct legal classification of situation in J&K or IIOJK is illegal occupation by India. The laws which signify the illegality of occupation include UNSC resolutions on Kashmir, Article 42 of the Hague Regulations 1907, Common Article 2 of the Geneva Conventions (GC), Article 42-56 Geneva Convention-IV and customary

international law.

Article 42 of the 1907 Hague Regulations states that a territory is considered occupied when it is actually placed under the authority of the hostile army. And, as per the Common Article 2 of the Geneva Conventions, a territory will be considered occupied, even if the occupying forces faced no armed resistance. The laws about occupation are basically rooted in humanitarian considerations and only the facts on ground determine the application of these laws. International Humanitarian Law (IHL) rules relevant to

occupied territories become applicable whenever a territory comes under the effective control of hostile foreign armed forces. In the case of India’s presence in Kashmir, it exercises effective control over IIOJK, which is, by all definitions and international

standards, a foreign territory. Hence, India, as an occupation force, is bound to apply IHL principles and rules related to occupation. As a matter of fact, New Delhi does not qualify for sovereignty over the territory since IIOJK’s occupation is only a temporary situation, and the rights of the occupant, if any, are limited to the extent of

that period.

Article 47 of the GC IV, says: Agreements concluded between the occupying power and the local authorities cannot deprive the population of occupied territory from the protection afforded by IHL.

Article 64 (Para I) of the GC IV: The occupying power must respect the laws in force in the occupied territory, unless they constitute a threat to its security or an obstacle to the application of the international law of occupation.

Article 55 & 56 of the GC IV: The occupying power must ensure sufficient hygiene and public health standards, as well as the provision of food and medical care to the population under occupation. Article 49 (Para 1) of the GC IV: Collective or individual, forcible transfer of population from and within the occupied territory, is

prohibited. Article 49 (Para 6) of the GC IV: Grave violation; transfers of the

civilian population of the occupying power into the occupied territory, regardless of the fact whether it is forcible or voluntary, are prohibited.

Likewise, the UN resolution 1541 on the ‘Granting of Independence to Colonial Countries and Peoples’ adopted by the General Assembly in 1960 accepts the legitimacy of the right of self-determination and opposes repressive measures of all kinds against the freedom fighters by the colonial powers. And UN resolution 2625 of 1970 authorized the dependent people to seek and even receive support from outside to

fight against the repressive machinery.

As if brazen violations of international laws and India’s own constitution were not enough, India has rendered the lives of hapless Kashmiris, extremely miserable, by way of military siege for more than 14 months, the deployment of troops touching the 0.9 million figure. Indian military and paramilitary troopers (whose number is in the

proximity of 0.3 to 0.4 million), have martyred and injured tens of thousands of Kashmiris, including women and children mercilessly, through firing of pellets and extrajudicial killings. In addition to that, the closure of mosques and denial of fundamental religious freedom to millions of Kashmiri Muslims, amounts to a serious

violation of applicable international human rights law, to which India

is a party.

Due to the military clampdown in the IOK, shortage of foods, medicines for the patients and coronavirus-affected people, Kashmiris have been facing painful deaths. And, in order to conceal India’s state terrorism, Kashmir has been cut off from rest of the world.

Besides, implementing the ideology of Hindutva ((Hindu Nationalism), Indian prejudiced rulers’ various other measures such as issuance of domicile certificates to 40000 non-Kashmiris, blaming Indian Muslims for spreading of coronavirus in India and IIOJK are clear indications of India’s hatred for Muslims.

Not much time has passed, the United Nations High Commissioner for Human Rights—four UN special rapporteurs said: “We remain deeply concerned about the ongoing human rights violations, excessive use of force, torture and other forms of ill-treatment reportedly committed during the arrest and detention and death in custody. We have asked the Indian government to investigate killings of several Muslim men since January 2019. A report was sent to the Indian government on May 4 over the continued deterioration of human rights conditions in occupied Kashmir”.

On September 29 last, Amnesty International said it was stopping its work in India because the government had frozen its bank accounts on September 10 for highlighting rights violations in Jammu and Kashmir and riots in Delhi in recent days; and the Indian government had sought to punish it (AI) for that.