Do Kashmiris Have a Legal Right to Armed Resistance?
The legislative history of India concerning Jammu and Kashmir (J&K) has been an unfortunate tale of lies, deceit and betrayal. Over this period of time, India has modified, altered, remolded and de-operationalized constitutional provisions that pose a hindrance to Delhi’s intervention in the affairs of Indian Occupied Kashmir. The carefully crafted recent constitutional sleight of hand on Article 370 has been one such example of India’s legal opportunism in Kashmir.
Article 370 was perceived to have been given legal recognition by the controversial Instrument of Accession (IoA) executed by Maharaja Hari Singh, the then ruler of Jammu and Kashmir, declaring that the state would “accede” to India. It had been incorporated into the Indian Constitution with a purpose to grant special status and treatment to J&K and its citizens as per the terms of IoA. Barring defense, foreign affairs and communications, the central government of India needed the concurrence of the state government to frame laws impacting it under Article 370.
Even though the efficacy of Article 370 had been rendered virtually ineffective through numerous Presidential Orders, the straw that broke the camel’s back was the unilateral scrapping of Article 370 on 5th August, 2019. A. 370 was the only link that connected Srinagar with Delhi. It was a recognition of the disputed nature of J&K, thus its revocation had been tantamount to a flagrant violation of international law, while subsuming it within Indian territory converted the Indian occupation into an illegal annexation, branding the Indian forces as a hostile army under international law.
This article is meant to analyze whether existing international law instruments legally justify the right to armed struggle and is not aimed at encouraging hostilities. It is clear that international law sides with the struggle of those occupied. International law is also unambiguous in its endorsement to use all lawful means for people who seek self-determination from occupying forces including those facing “armed struggle” themselves. The United Nations General Assembly Resolution A/RES/33/24 of 29th November, 1978 reaffirmed “the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle.”
The point — that people under foreign occupation have the right to use armed struggle against their oppressors — has also been repeatedly reaffirmed in various of United Nations Resolutions. These include UNGA Resolution A/RES/3246 (XXIX; 29 November 1974), UNGA Resolution A/RES/33/24 (29 November 1978), UNGA Resolution A/RES/34/44 (23 November 1979), UNGA Resolution A/RES/35/35 (14 November 1980), UNGA Resolution A/RES/36/9 (28 October 1981), and many others.
Furthermore, the Organization of Islamic Conference (OIC) on Combating International Terrorism (1998) states unequivocally that, “…peoples’ struggle including armed struggle against foreign occupation, aggression, colonialism, and hegemony, aimed at liberation and self-determination in accordance with the principles of international law shall not be considered a terrorist crime.”
These Resolutions reflect the conscience of the majority of states. According to them, the people of Jammu and Kashmir appear to have a legal right to armed struggle against India’s occupation and illegal annexation, under the confines of international law, of course.
The nationalist leader of the famed ‘Abolitionist Movement’, Frederick Douglass, himself a former slave, once wrote of struggle in the following words:
“If there is no struggle, there is no progress. Those who profess to favor freedom, and yet depreciate agitation, are men who want crops without ploughing up the ground. They want rain without thunder and lightning. They want the ocean without the awful roar of its many waters. This struggle may be a moral one, or it may be a physical one, or it may be both moral and physical; but it must be a struggle. Power concedes nothing without a demand. It never did and it never will.”
These words still resonate today in Kashmir as they did some 150 years ago in the heart of the Antebellum South in the United States. Hence, surrender should not seem like the only option for the occupied.
For 72 years, not a day has passed without the loss of young Kashmiri women and men. Kashmiris have gracefully embraced martyrdom over surrender, preferred solitary confinement over forced obedience and sacrificed their youth for the desire to live and breathe in a free state. The Kashmir dispute can be a nuclear flash-point in South Asia. Hence, the international community must understand the gravity of the situation and stand in solidarity with the Kashmiri people. A single miscalculation from either side would horrify generations to come.
An earlier version of this article appeared in the Daily Times. Republished here with permission.
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