On March 23, 2020, UN Secretary-General António Guterres issued an immediate appeal for global ceasefire across the world to focus collectively on fighting a common enemy – COVID-19. The UN Secretary-General reiterated his call on various forums and around 200 countries, regional and international multilateral organizations as well as civil society groups endorsed the request. In reality, most of the countries turned a deaf ear to this plea as the pre-pandemic conflicts persisted. Notwithstanding the pleas and pandemic situation in the South Asia region, India also intensified Ceasefire Violations (CFVs) along the Line of Control (LoC) and Working Boundary (WB) targeting innocent civilians. The tensions remained high as the year 2020 saw the unusual and highest spike in CFVs. Indian occupation forces carried out 3,097 CFVs this year, which killed 28 people and injured 257. Such deplorable and senseless acts of targeting innocent civilians are not only a violation of the bilateral 2003 Ceasefire Agreement (CFA) but also against the international human rights standards and norms.
Under international law, people who approve, commit or order the war are responsible for their actions. The individuals and states are liable under IHL for ‘wilful killings’ that cause great suffering and injuries causing death of civilians. Common Article 3 of Geneva Conventions prohibits intentional killings: “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture" when perpetrated against persons "taking no active part in the hostilities."
The 2003 CFA between Pakistan and India was not only a milestone in the strained relations but also a huge relief for thousands of people living across the LoC and WB. However, relief was short-lived and peace of the hapless people has been shattered by the recurring CFVs by Indian occupational forces. The pattern of violations that has evolved over the last three years is traumatic since targeting of the civilians has become a norm. Targeting civilians with heavy mortars and artillery has not only caused fatalities and harm to the people but also wreaked havoc on their properties and public facilities.
International legal system has several sources that bind all the states to certain obligations vis-à-vis civilians and their objects. However, the scope of law that applies depends on the particular situation at a given time. Interplay between branches of international law (International Law of Armed Conflict and International Human Rights Law etc.) provide some rationality to the dealing of cross-border consequences of a conflict. CFAs are used as a tool to improve the protection rights in case of conflict. The CFAs are governed by the International Humanitarian Law (IHL) since they are usually measured in relation to how they affect the level of violence.
Traditionally, the CFAs are viewed as agreements designed to reduce the violence. Under Common Article 3 of Geneva Convention, 1949 ceasefires are considered as ‘special agreements.’ The special agreements enhance and reinforce the compliances and pledges of the states to the legal paradigms such as the IHL. For instance, abstain from torture, and protection of civilian population, not commit acts of violence against the civilian population and destroy their property. The addition of these terms to the special agreements encourages compliance of the parties to pre-existing commitments to the IHL. All inclusive, along with minimum human rights standards, the special agreements bring into force added obligations. Under IHL, civilians are the people who do not directly take part in hostilities. In 2003 CFA, both Pakistan and India committed to ensure peace and avoid hardships for the civilians along the border, however, civilians have continued to be killed and heavy damages have been inflicted to their properties at the hand of the Indian forces.
According to Geneva Convention I, Article 50, Geneva Convention II, Article 51, Geneva Convention IV, Article 147: “Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly are grave breaches.” The CFVs conducted by India are undertaken with no regard to the principles of distinction and protection of civilians and civilian objects. Such deliberate indiscriminate attacks and harms constitute ‘war crimes’ under customary international law and hold India responsible for human rights violations committed through murder of innocent civilians along the LoC and WB.
Apart from cessation of hostilities, another core element of the CFAs is verification, monitoring and supervision of the agreement. Generally, the monitoring of human rights violations in the disputed areas is a task. In this particular case, India prevents UN agencies, observers and human rights organizations from accessing the illegally occupied territories of Jammu and Kashmir, where the violations are recurring. Henceforth, the monitoring and observation becomes a huge challenge making the situation in the region more entrenched with persistent violation of IHL.
The continuing egregious violations indicate Indian attempts to intensify the situation along the border. The scale and nature of these attacks on the innocent civilians bespeak crime against humanity since the patterns and acts of the Indian occupational forces, by scale and nature, outrage the conscience of humanity and meet the conditions of crimes against humanity.
Protection of civilian population against military dangers is a fundamental rule of IHL. ‘Civil immunity’ is also one of the oldest maxims of International Customary Law which binds parties to a conflict to protect civilians regardless of whether the conflict is international or non-international. This principle of civilian protection is codified in numerous treaties.
Additional Protocol I to the Geneva Conventions, Article 51 (2) states: “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited.”
The principle of distinction prohibits targeting civilians in all circumstances, including retaliation attacks. Under IHL, the indiscriminate attacks i.e., the attacks that are not aimed at military targets, are prohibited and constitute war crimes. Article 48, Additional Protocol I to the Geneva Conventions states: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants, and between civilian objects and military objectives, and accordingly shall direct their operations only against military objectives.” The provisions of the Protocol are binding on all the parties (including non-signatory) regardless of whether the conflict is national or international. India deliberately targets the civilian areas and the level of aggression has been unprecedented.
Under international law, people who approve, commit or order the war are responsible for their actions. The individuals and states are liable under IHL for ‘wilful killings’ that cause great suffering and injuries causing death of civilians. Common Article 3 of Geneva Conventions prohibits intentional killings: “Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture" when perpetrated against persons "taking no active part in the hostilities."
Constant Indian shelling along the LoC and WB illustrates the fragility of such agreements and establishes that India has no regard for the international laws, rights, lives and dignity of the people of Kashmir across the border. This pandemic of impunity is a challenge for the world’s conscience.
Increased violations by India and the tendency to ignore the international laws are aimed at agitating the conflict. Knowing that it will never be held responsible for the violations and war crimes it is committing, the devastating crisis like Kashmir can become even worse in 2021. Hence, it is the responsibility of all the states to play a role. All states are obliged to bring the perpetrators to justice where such crimes are committed.
The indiscriminate and persistent CFVs by India are contributing to the escalation of tensions between the two countries. Such escalations are not only dangerous for the people of both sides but also for the regional stability.
Increased violations by India and the tendency to ignore the international laws are aimed at agitating the conflict. Knowing that it will never be held responsible for the violations and war crimes it is committing, the devastating crisis of Kashmir can become even worse in 2021. Hence, it is the responsibility of all the states to play a role. All states are obliged to bring the perpetrators to justice where such crimes are committed.
International community has a responsibility to put an end to this protracted violence committed with impunity and not turn a blind eye to gross violations and mass murder of the people along the LoC and WB. With all that is happening in the Indian Illegally Occupied Jammu and Kashmir and along the borders, no one can claim that they are unaware of what is happening in Kashmir. The lack of peace in the region is leaving millions of Kashmiris suffering from the impacts of abuses and violations. After years of fighting, occupation and incessant targeting by the barbaric Indian state and its military force, the people of Kashmir are now desperate for a circuit breaker; they demand peace, justice and accountability. To ensure peace and stability in the region, India – the perpetrator of these heinous crimes – must be held accountable to end these war crimes committed with impunity.
The writer is an expert on international law and human rights with a special focus on South Asia and Kashmir. She is also the editor for Asian Journal of Law and Society, Cambridge University Press.
E-mail: [email protected]
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