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.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.
Decades have been passed while men, women and children are subjected to tortures while atrocities are still at rampant. They are subjected Kashmiris to petrifying ordeals while in retaliation they chant slogans against India and in favor of Pakistan or children pelt stones at the soldiers of occupying forces. Is it not a matter of shame and out an out outrageous act where small stones versus use of guns, machine guns and other mortal weapons a shameful reminder of the pogrom of Gujarat and butcher of the same massacre has been given the highest seat of a country once known of Gandhi doctrine of secular approach?
Curfew has been imposed for such a long time and now listen son of late Abdullah who opted for India are in abyss of regret. Try to love humankind but if it is otherwise – history will teach lesson and we all then suffer miserably. Though the learned author has taken up the trajectory in the strictest sense of law yet the precedence exists in our case and therefore further justification will cause further damage.
Vow! Still a question of ‘to be or not to be’ of Shakespearean Hamlet who was suffering from the disease of madness and melancholy and definitely such state of mind or mind set will drive us to the point of no return but suicide. Legally, morally and socially we are bound to retaliate. Call your memory when Late Indira said that we cannot allow the bloodshed in our neighboring country and she with the full support of the then USSR dismembered Pakistan and some Bahinis and Indian military crossed the international borders of Pakistan and from the stature carved out Bangladesh. So the precedence is there and therefore not only Kashmiris have legal right to expel out the occupying forces from their land along with our mujahideen must be allowed to penetrate as it was done in 1971 and therefore we are justified to act in conformity with the international law. Legally and with integrity the question seems to be ridiculous and mockery of justice. Read the caption of the article and smile in your secret:
Do Kashmiris Have A Legal Right To Armed Resistance?