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Can Kashmir take India to International Court of Justice?

20 September 2010 9 Comments

 

Indian Troops beating Kashmiri's civilians

Answer is Yes and NO. Yes if it is pursued by Pakistan occupied Kashmir (POK) and NO if Kashmiri’s in Indian held part (IOK) wish to raise it. ICJ does not accept cases from individual or groups. Case has to be state Vs state. Let us take a look at scenario

Case a) Indian occupied Kashmir (IOK) Vs India;

It seems impossible under present government or any other government installed by India while it is controlling the region. India will never let any government in Kashmir (IOK) take a stand against her. It will be the end of the government in Kashmir. This case will only work once Indian occupied Kashmir is free and it has the people’s government which can take up the case of injustice done to its people by India. Kosovo’s case was heard at ICJ and they got the Justice they sought but the Kosovo’s case was supported by US and every single Western European nation. Also all these countries lodged their own cases against Serbia at International Court of Justice (ICJ) which is unlikely going to happen in case of Kashmir.

Case b) Pakistan Occupied Kashmir (POK) Vs India;

This is the only viable route for Kashmiri’s to take India to International Court of Justice (ICJ). In order to get to ICJ government of Pakistan has to support government of POK on International level followed by few steps to be taken at ICJ by POK are;

Head of Kashmir (POK) Government must deposit an Instrument of Accession to the 1948 Genocide Convention with the UN Secretary General, the depositary for the Convention. It will take ninety days for the accession to be active. POK being a state is eligible to lodge a case once it obliges and complies with the charter and rules of the court.

Second, the Head of the Kashmir (POK) 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. World Court will decide whether Kashmir (POK) Government is entitled to exercise the powers conferred by the Security Council in its Resolution of 15 October 1946. World Court shall decide in favour of Kashmir (POK) Government on this matter of its Statehood. Article 35 of the Statute of the International Court of Justice also permits a State or Government such as POK Government that is not a Party to the ICJ Statute to file a lawsuit against another state provided that both States or their subjects are parties to a treaty that contains a compromising clause submitting disputes arising there under for adjudication by the World Court:

Kashmir (POK) Government should generally accept the Genocide convention and jurisdiction of the International Court of Justice. Kashmir (POK) Government can sue India for violating the 1948 Genocide Convention as POK Government becomes a Contracting Party to the Genocide Convention. Finally, the Government of POK and its head must file an application against India instituting legal proceedings for violating the Genocide Convention. Genocide application should be enough to get POK Government into the World Court against India for quite some time and once POK Government is in the World Court, they 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.

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

a) Killing members of the group.

b) Causing serious bodily or mental harm to members of the group.

c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.

d) Imposing measures intended to prevent births within a group.

e) Forcibly transferring children of the group to another group.

India can be easily held accountable for a) and b) and these acts show clear violation of Article II of the 1948 Genocide Convention.

It can also be argued that for past sixty three years, the Indian government has 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 Kashmiri’s. Indian campaign has consisted of selectively killing of muslims of Kashmir which again shows violation of Genocide Convention Article II (a). Indian campaign has also resulted in serious bodily and mental harm to the muslims of Kashmir in violation of Genocide Convention Article II (b). This 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. 100,000 deaths, 30,000 widows, 9850 rapes, thousands of orphans and deprivation of essential food, medicine, medical care make a strong case against India.

Case c) China Vs India;

China can also lodge a similar case at ICJ against India. China being permanent member of UN Security Council and its recent stance on Kashmir is worrisome for India.

Pakistan’s foreign policy on Kashmir is overshadowed by its natural and man made calamities it faces but this is temporary.  While Pakistan is facing all sorts of disasters China has recently taken a strong stance on Kashmir against India. It has issued Kashmiri’s (IOK) with special visa’s which is in contrary to visa’s issued to citizens of India. It has recently refused a visa to a high level Indian army general serving in Kashmir to make a point that it condemns violation of human rights by Indian troops in Kashmir and it would not let anyone with such criminal record step their foot on its soil. Indian troops in Kashmir have immunity with the help of a Armed forces Special Powers Act (AFSPA) which shields them from any investigations.

Canada also refused an immigration application from a retired Border Security Force (BSF) high ranking officer on grounds of violation of human rights by this security agency in Kashmir. As the world seem to be waking up to the real India in Kashmir, Kashmiri’s are being killed day today while protesting against India with death toll since June 11 to have reached 108.Big question is how many more lives will be lost before the world wakes up to the hell India has unleashed in Kashmir.

9 Comments »

  • Muhammad said:

    Dear Hamim, 1st of All , the kashmir you are calling Pakistan Occupied Kashmir is actually not occupied by Pakistan, Pakistan has a long Cultural, Religious similarities, in addition to that Pakistan has 5 natural routes to the region whereas if we compare it with India, the Hindu Culture is totally different from that of a Muslim Culture. Geographicaly, India was given Ferozpur by the British so that they can atleast have 1 route to kashmir and that route is man made , not natural pass. Ferozpur in Punjab had 100% Muslim majority but still was given toINDIA, which shows the intention of British, they wanted to give it to India as every body knows the affair between Nehru and lady Mountbatin.

    If you visit Kashmir that is on Pakistan side they had their independent Assembly, Prime Minister, and President and on top of that when a Pakistani Visit Kashmir, which I have, they call us pakistani and them self AZAD KASHMIRI, on Indian side there is Cheif Minister, not Prime Minister, and Governer not President. Indian call Kashmir there ”atoot ang”(key inherent part) where as we consider it Independent and want Kashmiris to be independent because we Pakistani knows that we have more similarities with Kashmiris than the HINDUS, so we will have friendly relations with the State of Kashmir, Pakistan and Pakistani want refrendum in both Kashmirs and whatever is the out come of that refrendum will accept it whole heartedley but India does not want that.

  • Anubhav said:

    Dear Muhammad,
    In relation to your views about natural and man-made routes to Kashmir, might I remind you that “naturally” Pakistan and Bangladesh were parts of India. Pakistan itself, is a “man-made” nation which chose to break away from us. So let’s not discuss geography here. Secondly, the Kashmiris you met who feel more at home with Pakistani’s are the Kashmiri’s you want to meet. I myself have several friends from Kashmir who always cheer for Dhoni in any match and celebrate Independence Day as much as we do. In regards to you calling us “HINDUS”, let me remind you that there more Muslims than Hindus in our nation. The fact that a Muslim president swore in a Sikh prime minister(for whom a Catholic woman stepped down)to govern a nation founded by Hindus is the greatest testament as to how loving we are of all cultures which are part of our nation. The Kashmiri’s who love us are loved back in return, and those that love you are not hated by us in return. Lastly, all I would like to say is, all Pakistani’s look exactly like all Indians and we were all the same people barely half a century ago. If you choose to breed animosity and hatred you are free to do so, but kindly refrain from infecting others with the same.

  • Faisal` . said:

    I agree with Anubhav on that. We have lived together for centuries and the division itself is not so old yet. The fact that the governments and authorities (Brits, Pakis, Indis) have put much more on stakes than to spread an atmosphere of peace and cooperation is mournful really. And I regret to say that there are still a lot among us who are not ready and willing to see the broader side of the scenario. Anyways, we can only hope to see the situation getting better.

    But I have one important question, I just want to ask, can a Pakistani (who’s not a Kashmiri, neither does he have any relatives in either side of Kashmir) visit Indian side of Kashmir for tourism and travel ? Allowed ? Anubhav, can you get an authentic word on that ?

  • Muhammad said:

    Dear Anubhav

    Regarding your comment that half a century ago Pakistan and Bangladesh were part on India, and Pakistan is a man made nation, you are 100 % right that Pakistan is a man Made nation but who made it, if you read your ex-Foreign Minister Jaswant Singh book in which he has mentioned that it was Nehru and Patel responsible for partition of India not Muhammad Ali Jinnah, He was in congress till 1926 and was considered to be champion of Hindu Mislim Unity, but what happened later on told the Muslim of sub continent that congress only represent Hindus and will only Protect the rights of Hindus, so the Muslim of India seek a separate Home Land.

    If we go 500 years ago before English Occupation, The part that is now pakistan + Kashmir +Indian Punjab, has never been part of India, its always been under the regins of Afghansitan or under the persian Empire, and if you go a little bit further in to History, Pakistan is part of Indus Civilization i.e also called Gandhara Civilization which originated from city of Herat and i.e in Afghanistan. Todays Pakistan and Kashmir has never been part of India apart from the Mughals who were ruling the whole India and basically were Turks,or under British rule.

    Had Tara Singh not betrayed his nation and have made Khalsa Land, India would have been struggling to raise Army, it is mostly the Punjabis who are in Indian Army ,

    If we go a little further into History, you talk about Ashoka, Chankia, and Raja Porris, all hailed from the region i.e now in Pakistan , to be more exact Ashoka was from Taxila and Raja Porris who stopped Alexander the great was from Jehlum.

    How could you say that we are same, we are not same, Kashmiris have no simmilarites with INDIA, please be bold and brave and accept their right of self determination, give them a chance and if they decide to go with India , Pakistan should accept it, and if they want to go with Pakistan, India should accept it and if they want to have a separate state both India and Pakistan should accept and respect it.

    Here I would like to add, India claims to be the biggest democracy, so they should respect UN resolution. Once that key issue is resolved we can live together as peace full neighbours and by GOD West will see that this Subcontinent will progress and our people will be affluent and people from West will come and will seek JOBS in India and Pakistan.

    I do not infect hatered but truth is bitter.Hope I have offended no body,

    Muhammad Faisal Ishfaq

    Muhamad Faisal Ishfaq

  • Apporve Chandra said:

    Dear Muhammad,

    Its really a joy to read a radical viewpoint expressed patiently.
    You have raised a lot of points. I will try to address them categorically. Please try to shed your load of prejudice, I shall try to distance my views from mine.

    1. Pakistan framed by Nehru- Patel, not by Jinnah: Offcourse, as if they wouldn’t have agrred to partition, God knows how much violence was in store, under pretext of ‘Direct Action’. (Refer Wiki)
    2. If Congress was representing Hindus only, why it’s govt coerced Muslims to stay, and later favored formation of a secular land.
    3. 500 yrs ago.. Was there a concept of nation in South Asia? There were empires, some of them wide, some of them ridiculously small. Going by your logic, if we clung to arrangement of that time, hundreds of independent nations will sprang up- which would ultimately harm everyone’s interest.
    4. Mostly Punjabis in army- yes, people in Punjab are physically more suited for army.. Just like our Bengalis are good academicians, and Gujaratis have acute business acumen. We are striving for collective excellence.
    5. Kashmiris have no similarity with India- How do you define similarity: language, culture, religion or ethnicity?
    Have a overview of present India, the overwhelming diversity will surely redefine your concept.
    Moreover, as far as I know, desire of an average Kashmiri is peace, rather than to be plugged with similar people.
    How could Pakistan justify its love for kashmiris, while simulataneously supporting violent revolutions in the area..

    The debate would go on.. The best way forward would be a bet- let us see which Kashmir (POK or IOK) shows better Results in terms of economic progress, infrastructure development and peace. Outcome would be clear indicator which nation would be better suited to have soverighnty of Kashmir.

    Game on?

  • Muhammad said:

    Dear Chandra,

    I Have read your answer and to be honest there is no truth in it what so ever , you are calling about diversity, you have called India a secular state, do you no that there are almost 520 MLA in India, and out of that there are only 20 Muslim MLA,

    Is India secular?

    2000 Muslim killed in Gujarat riots, CM ordered their killing, told the police to stay away (police Commissioner has given in his statement)

    Is India Secular?

    Babri Mosque demolished by Hindus, no action taken to prevent it,

    Is India Secular?

    In 1984, killing of Innocent Sikhs , attack on their Holy Temple,

    Is India Secular?

    80,000 Kashmirs killed by Indian Security forces, just trying to get freedom from tyrant rule of Indians, Kashmiri women raped,

    Is India Secular?

    Burning of Churches and Naked parade of Nuns in India

    Is India Secular?

    What are you talking about, I was talking about the civilizations not empires, if you have little knowledge then I cant help, there are three civilization in sub continent, INDUS, GANGA, and JAMNA all are different, in their way of living .

    Rest talking about opportunities for Kashmiris in India or in Pakistan or if they had their separate state, I can assure you that Honorable Kashmiris would never surrender their right of self determination just because they can have more opportunities, a free bird does not like to be in a cage even if it is made up of Gold.

    Look at the condition, and education level of Muslim as compared to those of Hindus, and I will request all the reader that they can confirm it on statistics provided by Indian Govt, you will see India is Hindu India not a secular India.

    I did not have enough time other wise I would have posted reference as well.

    Best Regard

    Muhammad Faisal Ishfaq

  • asfaq alam said:

    dear muhammad ,

    let me clear some doubts running right in your mind, India is a secular state and it having vast cultural diversities which realy pakistan does not have. Being a pakistani you just cannot judge what is going in Indian Republic right now, India is mother land of billions of muslims too figurly pakistan does not have such population of muslims, we are enjoying our freedom and rights here,

    Ya I agree that we are still in minority bt there are no such partiality is driven for us, if Hindu killed muslims in 1000 no’s, though muslims also do the same. We just dont want any interfer from any outsiders claiming that India is an conservative state, no its true, the scenes u getting regarding India dnt knw from where it is rumoring through you which is totally wrong.

    Kashmir is integral part of India, which have best economies sharing with top states , india flourished several programmes there for education, health and employment,OUR kashmir is far far better than your POK. Please come here and analise yourself.

    From siachen to kanyakumari we ar ONE, no external force can devide us. It is our motherland, where i use to play cricket alot, love my neighbours, love my cinema, love my people, love my army,where my ancestors born, expand business and many more, India having most of the muslim population in world.

    so if you are regrating Indian, you are showing your worst philosophy to HINDUS as well as MUSLIMS>

    proud to be and INDIAN having 3rd largest rising economy, having one of the best army, having cultural diversities, having no.1 democratic republic, having best scientists like APJ abdul kalam, having superstars like salman, shahrukh, amir, hritik,,

    and regarding kashmir muhammad bhai jan inshallah kashmir hamara tha hamara hai aur hamara hi rahega, just look at present scenario.

    aur rahe baat pakis kehte hai ki unke paas azad kashmir hai, one thing i wana clear to you that Kashmir kabi bi gulam nyi tha and kashmir azad aur mehfuz hai, INSHA ALLAH! duniya ki koi bi taqat ise HINDUSTAN se juda nayi kr sakti.

    AMEEEN!

    HINDUSTAN zindabad, KASMIR ZINDABAD

  • Muhammad said:

    Dear Afaq Alam

    As your name states , you are a brother in Islam, do you know it was the muslim leaders from current India who fight for two nation theory, right to have a muslim state, all the leadership of Pakistan was from India whether it was Quai-e-Azam Muhammad Ali Jinah (Rehmatullah) , Liaqat Ali Khan , Fatimah Jinah,Muhammad Ali Bogra, Ghulam Muhammad, Hussai Saharwardi Shaheed,

    all fought for the state of Pakistan, if you want to see the result of Election in 1946, you will see Muslim all over India voted for Pakistan and they voted for a separate home land, even your ancestors voted for Pakistan.

    You are brain washed or may be you want to be in the good books of Hindus, as currently shah Rukh was being redicule by Shiv Sehna and Bal Thakray

    Shabana azmi , in one or her interview , she said she is unable to buy flat in BOMBAy because she is a muslim?

    what are you talking about

    there are 19 insurgencies going in India, what are your views about Moaist Rebels, they are being funded by pakistan, what about Assam, they are fighting for Independence?

    Come back to reality, if you are a muslim then I am your brother not Bal thakray, Hazrat Muhammad (PBUM) said all Muslims are brother not all Indians are brother.

    I would like you to answer what hindus did with Babri Masjid? why did they destroy it? what was Indian Government doing? what happen when in south India, they praded Christian nuns naked and burn all the churches?

    I am not saying that give Kashmir to Pakistan, what I am saying is give them right of self determinaion and if they decided to stay with India , they are more than welcome.

    Best Regard

    Muhammad Faisal Ishfaq

    Rest

    May Allah Bless you and give you some sense to see what Hindus are doing with Muslim

  • Muhammad said:

    http://dawn.com/news/1030359/pakistan-expresses-deep-concern-over-violence-in-kashmir

    above is the news from Kashmir, thats what actually happening in INDIAN KASHMIR in promising INDIA

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