National and International Issues

‘Settler Colonialism’ in Kashmir and States’ Responsibility

As the world was battling the COVID-19 pandemic, the new domicile law ‘Jammu and Kashmir Reorganization Order 2020’ came into force on April 1 for Indian Illegally Occupied Jammu and Kashmir (IIOJ&K). The new law grants the non-Kashmiris (Indians including government officials and their children) the right to permanent residency, access to government jobs and buying property. The move sparked anger in the region, questioning the intent and timing which clearly indicated the advantage taken of the pandemic. Introduction of the law at a time when people of IIOJ&K and the world are dealing with the pandemic is evidently pre-planned and the agenda behind is clearly to usher demographic changes in the region.
India’s abrogation of Article 370 and the new law is straight out of Israeli model of ‘settler colonialism’ which fits in very well with the Hindu nationalist agenda of converting the Muslim majority region into a Hindu majoritarian state.  The policies of Indian government over the last two decades shed light on the patterns of colonization at play. Contours of occupation provide insight into the discourse of settler colonial framework shaped at multiple levels. On top of relentless violence, dearth of healthcare and information, violating territorial integrity, revocation of autonomy, elimination of indigenous identity and renaming of places are actions that present a stark reflection of Israeli settler colonial framework. This manifests the active beginning of Indian settler colonialism that accounts for the demographic terrorism in IIOJ&K.
Despite the fearful realities of blatant abuse, the world remains unmoved by the plight of people of Indian Illegally Occupied Jammu & Kashmir (IIOJ&K) and keeps turning a blind eye. It raises the question whether this Indian settlement policy falls under any offence and breach of obligation under international law and invokes state’s responsibility to protect and react.
Inter alia, unilateral revocation of Article 370 and introduction of new domicile law exposed India as a coloniser and occupier state. Article 42 of Hague Regulations 1907 defines occupation as: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”
In the current context, with more than 800,000 troops, India has turned Kashmir into the most densely militarized zone in the world. Indian army exercises powers with full impunity. Since 1989 more than 95,000 civilians have been killed. Enforced disappearances, illegal use of pellet guns, ammunition, rape, and torture are rampant in the region. For the past four years, humanitarian crisis in IIOJ&K has been exacerbated by ongoing detentions and communications blockade. Indian actions evidently are serious violations of several articles of Geneva Convention (IV) which protects the civilians in situation of armed conflict and military occupation. Article 4 of the convention defines protected persons as: “Those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” 
Since 1989 India has been engaged in a policy of settlement and annexation of the region through multiple means. Indian government including Prime Minister’s office, parliament, Indian military and affiliates have played a pivotal role in the operational and strategic planning of the Indian settlement in the region. In connection with the settlement, the conduct of all these state organs is attributable to the Republic of India under International Law. Article 7 of International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001, states: “The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.”
Acts of violence, harassment against the people of IIOJ&K by Indian army and local authorities are an illustration of instructions by the Indian government. Hence, the settlement in IIOJ&K is the outcome of connivance of the state organs and all those involved in occupying the sovereign territory of others (people of Jammu and Kashmir) are responsible for their acts and may be held legally accountable.
Under international law on state responsibility the legal consequences arise for India from its illegal actions in IIOJ&K. Article 29 of ILC states: “The legal consequences of an internationally wrongful act under this part do not affect the continued duty of the responsible State to perform the obligation breached.” Article 30 of ILC further obliges India: “(a) to cease that act, if it is continuing; (b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.” Moreover, Article 32 of the ILC prohibits India not to recourse to domestic law to justify the failure to comply with the obligations. 
The perpetual breaches by India violate the absolute norms and obligations erga omnes under customary international law which triggers the obligations for other states to act under the ILC Articles on Responsibility of States for Internationally Wrongful Acts. The Indian actions of transfer of settlers, act of annexation, denial to Kashmiris of their right to self-determination, torture and genocide are international wrongs of serious nature that are attributable to the Republic of India and fulfil the elements required for other states’ responsibility to act. 
The contemporary discourse of responsibility recommends that states have a collective responsibility to bring illegal situations and crimes to an end where the government fails to provide protection. Indian breaches in Kashmir give rise to certain duties among the states which includes: responsibility to protect; responsibility to cooperate to end the breaches; responsibility ‘not to recognize’ the situation caused by the breaches and responsibility ‘not to render assistance’ to maintain the situation.
Article 41 of ILC laid out the obligation for all states to:

  • Cooperate to bring to an end through lawful means any serious breach.
  • No State shall recognize as lawful a situation created by a serious breach within the meaning of Article 40, nor render aid or assistance in maintaining that situation.  

Thus, the obligation not to give legal sanction to India’s unlawful settlement refers to both the acts that imply such recognition and the formal recognition. Vis-à-vis aids and assistance, Article 16 of ILC raises special obligations for other states’ acts and approves as wrongful only if: (a) State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State. 
What happens on ground in IIOJ&K is a widely known fact, therefore, involvement of states in maintaining the prevailing situation will characterize as an act of recognition. Recognition is also provided when the states and their funded agencies fail to hold India accountable for the serious breaches in resolutions, statements and tolerate the damages to aid equipment by the Indian army. Henceforth, states are under obligation not to render assistance, directly or through bilateral and multilateral agreements, which assists India (the state responsible) in maintaining the unlawful situation. In this context, recently, use of Carl Gustaf M3 (CGM3) by Indian army in Kashmir to demolish residential homes makes it incumbent upon Sweden to act and stop the trade and aid of CGM3 to India.  However, by allowing the CMG3 weapons sale to India, Sweden has implicated itself in the Indian crimes.  
Currently, no state is fulfilling its obligation and responsibility towards the vulnerable people of IIOJ&K. The representatives including states, international organizations and other regional bodies are responding to the humanitarian emergencies selectively. Responses in some cases are in conformity with the obligations under UN Charter, while for others they are not. For some cases responses are vigorous while for others they are weak. 
Furthermore, the obligation of cooperation implies that all states have failed to act as required to end Indian breaches. States are entitled to take the countermeasures to end illegal acts through sanctions and suspension of agreements etc. and under Chapter VII of UN Charter can act to persuade the Security Council to take enforcement action. However, in the current case, no state or group of states adopted any countermeasures that can be implemented within and outside the UN system. While condemning the settlement, many states have failed to take concrete measures to prevent fuelling the settlement economy.
To cap it all, in current global milieu, where powerful states do not cease their wrongful acts, other states lack the power to procure this obligation from such states, as a result, no state is held accountable. Consequently, environment of lawlessness and impunity prevails. This milieu of lawlessness provided India the impunity for its barbaric actions. Thus, all the states have a responsibility to live up to their obligations and are required to fulfil their long-ignored responsibility to hold India accountable and bring an end to the illegal occupation in IIOJ&K. They have a shared responsibility to work towards a solution consistent with UN resolutions and international law.

The writer is an expert on international law and human rights with a special focus on South Asia and Kashmir. She is the Editor of Asian Journal of Law and Society, Cambridge University Press.

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