Archive | September, 2016

Yet another missed opportunity

30 Sep

This piece has been co-authored by Imaan Mazari-Hazir and Rana Adan Abid. The writers are lawyers.

 


 

Prime Minister Nawaz Sharif’s address to the 71st session of the United Nations (UN) General Assembly (GA) has received a rather mixed reaction at home. Many who usually criticise the Prime Minister lauded him for conveying Pakistan’s stance rather effectively and eloquently to the international community. However, many took a position on the alternative side of the fence. This piece attempts to identify the politico-legal implications flowing from the premier’s address in New York in the context of recent regional developments.

If one were to believe Pakistani and Indian media, particularly electronic, they would find themselves engulfed in a mad, nonsensical frenzy. One might actually believe we were about to go to war. In fact, some have even gone as far as to deem war ‘necessary’ and encourage it.

Meanwhile, allegations continue to surface against Pakistan, whether leveled by Indian Prime Minister, Narendra Modi, or seen from US lawmakers who moved a bill to declare Pakistan a ‘state-sponsor’ of terrorism. There are ignorantly construed links being drawn between the status of Balochistan and that of Jammu and Kashmir under international law. Flights are being cancelled to certain areas within Pakistan while the Indians move heavy ammunition to the Line of Control (LOC). Social media, too, is plagued with this hype-fuelled debate on which army can defeat the other and inflict a higher degree of damage.

What is being constantly forgotten in this frenzy is the crucial role of legal policy and diplomatic channels. It was this forgetfulness that could be felt in the general reactions to the Prime Minister’s address. Indeed, the premier’s speech could have instead been a speech inspired by Modi-style Pakistan bashing before the international community, but what we continue to ignore is that it is this disproportionate reaction from India that demonstrates the strength of the indigenous Kashmiri struggle.

While the Prime Minister demonstrated great strength and commitment in remembering Burhan Wani, he fell short of being able to highlight the cause he died fighting for. Instead of discussing the illegality of the Indian occupation of Kashmir, the Prime Minister’s speech contained much of the same rhetoric Pakistani politicians have been regurgitating for decades, devoid of any substantive legal or diplomatic measures.

The Prime Minister did, indeed, throughout the course of his speech, repeatedly remind the UNGA of Security Council (SC) commitments on the Kashmir issue. Whether it is for better or for worse, the self-determination argument on its own has been unable to stand before the international community. Instead of recognizing this hurdle and simultaneously developing the case for Kashmir from an International Humanitarian Law (IHL) perspective, we refuse to do our homework.

The use of pellet guns to suppress the indigenous Kashmiri struggle for the right to self-determination falls out with the bounds of any legal cover for the use of force. Even if we look outside the law of peacetime, during which the human rights paradigm is applicable, there is a strong legal case to be made that India is in violation of IHL standards, owing to the war-like situation in Kashmir. The crucial question here is: did the Prime Minister’s advisers prove to the international community that the actions of the Indian state are in clear violation of established principles and norms of international law? Was his speech both diplomatically sound and legally defensible? Equally important, did the Prime Minister say everything he could have given the timely opportunity?

Under UNGA Resolution 1514 (XV) inter alia, the inherent right of all nations to political self-determination is well recognized. Not only do UNGA resolutions carry undeniable weight in the making of customary international law, as the statements of the only body with a near universal membership, they reflect the state of the global conscience at a given time. When these UNGA resolutions were passed, the world was stepping out of the age of empires into an age of nation-states. Unfortunately, the political impasse between India and Pakistan has rendered impossible any meaningful exercise of this right of self-determination.

And all this while the United Nations, for all its commitment to lofty ideals and the promise of a plebiscite in Kashmir, has been unable to live up to its own word. In that sense, the Prime Minister was not only right to wholeheartedly support the Kashmiri struggle for freedom but was spot on for holding both India and the international community, at large, accountable for the lack of implementation of the UNSC and UNGA resolutions on Kashmir.

However, given what a prime time opportunity this was to garner international support through diplomatic pressure, the Prime Minister’s lack of mention of the IHL violations carried out by the Indian government and intelligence agencies was regrettably poor strategy.

Further, in the context of allegations from Indian quarters of state, as well as the Indian media, it was alarming that there was hardly any sound heard from the Prime Minister on Indian interference within Pakistan’s borders. All the while that India is building up this image of Pakistan as a ‘terrorist’ state in the international community, did our Prime Minister not think it wise to defend Pakistan’s own right to exclusively regulate its domestic political affairs as a State, without intervention from India, as mandated by international law?

It seems that one of the foremost tenets of the UN Charter, reaffirmed in the Nicaragua case (1986), before the International Court of Justice (ICJ), i.e. of non-interference in the affairs of another state, was neglected throughout the Prime Minister’s address. There is well-documented evidence in the reports issued by the BBC which incriminate the Indian state by disclosing evidence of them funding MQM in Pakistan. Perhaps, that and related documents could have made for a second dossier exposing the reality of India’s propaganda before the international community, which is not only misleading but damaging to Pakistan’s strategic interests.

While it certainly does not benefit Pakistan or Kashmiris to take the offensive here, it bears to note that, by all means, it was our Prime Minister’s rightful position to defend the national sovereignty and political independence of Pakistan, while also being able to shift the paradigm of discussion to IHL violations being committed by India in Kashmir. Instead, we heard the same rhetoric and wasted yet another opportunity to present our own case as well as the independent one for Kashmir before the international community.

 

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