Eleventh meeting of IPS-Working Group on Kashmir (IPS-WGK)

Law experts partaking in the eleventh meeting of IPS’ Working Group on Kashmir (IPS-WGK) unanimously termed better selection of legal provisions and forums, improved use of language and relevant terminologies, and cases backed by facts and figures crucial for presenting the Kashmir case cogently in the evolving global environment.

Chaired by IPS’ Executive President Khalid Rahman and addressed as keynote speaker by Dr Muhammad Mushtaq Ahmad, director general, Shari’ah Academy, International Islamic University, Islamabad (IIUI), the sitting held on September 17, 2020 was also partaken by Farzana Yaqoob, IPS associate and general secretary IPS-WGK, Amb (r) Syed Ishtiaq Hussain Andrabi, Amb (r) Tajammul Altaf, Amb (r) Syed Abrar Hussain, Brigadier (r) Said Nazir Mohmand, Raja Sajjad Khan, director, Jammu & Kashmir Liberation Cell (JKLC), and Advocate Nasir Qadri, international law expert from Legal Forum for Oppressed Voices of Kashmir (LFOVK), among others.

Dr Mushtaq Ahmed, in his keynote speech, stated that global powers have been playing with international law and its legal provisions by using the loopholes within to their advantage, at times even setting up narratives emphatically to suit their interests and then taking them back when their need was over. There was a time in the 1960s, for instance, when terms like liberation or the right of self-determination were being used reverently. The changes in their priorities, however, saw considerable shifts being made to these perceptions over time, not least after the 9/11 incident following which the same freedom fighters were now being seen as terrorists.

The speaker, however, pointed out that while all these modifications and alterations within international laws, rules and regulations have given space to many ambiguities and double standards, they have also paved the way for the creation of new legal avenues and options. The need is now for Pakistan to stay abreast with these developments and make use of opportunities coming forth in the ever-evolving global milieu.

Regarding legal options for Pakistan, the speaker stressed the need to establish that the issue of Kashmir is a case of occupation whereas India is the occupying power. Hence the matter should be seen in the light of legal provisions and limitations available in the Geneva Convention, according to which any steps like illegal occupation, demographic changes, domicile law, custodial killings, unilateral abrogation of articles e.g. 35-A and 370, and any consequent status quo changes would be seen as a crime.

It should also be established, he emphasized, that though Pakistan neither recognizes Articles 35-A and 370 or their application, nor its standpoint is dependent on these illegal provisions, their abrogation – following which the occupied state has now become an annexed state – has only worsened the situation for Kashmiris.

The speaker also advised Pakistan to consider making use of some provisions of the International Court of Justice (ICJ) as it can help create significant pressure on India. He said though pursuing a case in ICJ demands consent from all parties concerned besides requiring a lot of time and resources, there are no compulsions or major obstructions in taking an advisory opinion from the forum. According to the statute of the UN organ, it can give opinion about any questions asked as long as the inquiries are within its given mandate.

A relevant example in this regard occurred in 2003, the speaker added, when ICJ gave an advisory opinion on the legality of construction of a wall in the occupied Palestinian territory. Attempts were made by the US and its allies to stop this issue from being raised in the UN General Assembly, but since UNGA does not have a veto system, a resolution was passed by a majority to ask ICJ about the legal consequences of such an occurrence. The ICJ, in response, reaffirmed in its judgement that all those areas including Jerusalem, which were occupied by Israel in 1967, fall in the category of occupied territories, and there will be legal consequences as per occupation laws, human rights laws and the laws of armed conflict if the occupying power tries to build a wall in these areas.

The speaker opined that Pakistan, too, could consider taking a similar path instead of taking the case to ICJ directly, albeit admitting that such a measure would require a lot of lobbying to garner sufficient international support.

The panelists acknowledged the points raised by Dr Mushtaq Ahmed, emphasizing that law fare experts in the country need to consolidate and unify their efforts if they are to pursue the matter effectively on the international stage. They said that while those in Pakistan look at all these issues from their viewpoint, the West looks at the same problems through its own prism. The need now is to find a convergence point, which can only be done by presenting our case before the world as effectively and as cogently as possible.