In Focus

Settler Colonialism and International Law

Settler colonialism is not only utter disregard to international law, but also an antithesis to the spirit of basic democracy and fundamental human rights.

In the 1920s, Vinayak Damodar Savarkar, who coined and elaborated the Hindutva concept, wrote that “if the Zionists’ dreams are ever realized — if Palestine becomes a Jewish state — it will gladden us almost as much as our Jewish friends.” Hindutva and Zionism are extremist ideologies, and the followers of these radical ideologies have a mutual affinity. This fact is illustrated by the conduct and actions of the leaders preaching Hindutva and Zionism. From Savarkar to India’s Prime Minister Narendra Modi, extremist Hindus have deep admiration for Zionism and its product –Israel –whose model of nation-state they seek to emulate in India. India’s Hindutva followers and the Israeli Zionists, have formulated inhumane policies to relegate Kashmiri and Palestinian Muslims respectively. In 2017, the then Israeli Prime Minister Benjamin Netanyahu welcomed Narendra Modi to Israel with the words, “We have been waiting for you for a long time, almost 70 years… We view you as a kindred spirit”. Kindred spirit? A person whose interests or attitudes are similar to one's own, therefore, this statement speaks volumes for the partners in crime pursuing similar policies respectively in the Indian Illegally Occupied Jammu and Kashmir (IIOJK) and the Occupied Palestinian Territory (OPT). 
India and Israel have many things in common, particularly, prolonged and oppressive occupations of the hapless peoples. In IIOJK and the OPT, both India and Israel, respectively, have violated the laws of war, and committed gross human rights abuses by annexing the territory, transferring their own civilian population into it, and targeting the indigenous civilian population. Both India and Israel operating in their respective occupied territories have developed a system of oppression based on genocide and colonialism that aims to displace the indigenous population and replace it with a new settler population. It is a modern form of colonialism in which the indigenous people of a colonized region are displaced by settlers. A term coined for this strategy is “Settler Colonialism”, which not only violates the international law, but also undermines the universally accepted principles of justice and fairness.
On December 14, 1960, the United Nations (UN) General Assembly issued a declaration in Resolution 1514 that the speedy and unconditional end to all forms of colonialism was a necessity. Therefore, now, in this age of civility and modernity, settler colonialism – which is distinct from traditional colonialism – is humanity’s modern enemy. Settler colonialism is based on the occupying state’s enrollment of a category of settlers whose aim is not only to occupy the land of the indigenous population, but also to eradicate the people who stand in their way. Thus, the systematic use of force by the occupying power against the occupied people is the key component of settler colonialism. 
To achieve the desired goals of establishing new settlements in their respective occupied territories, both India and Israel have adopted the policy of use of unbridled force against the peoples of Kashmir and Palestine. Both occupying powers are acting in sheer violation of the Universal Declaration of Human Rights 1948, and in particular violating: Article 3, “Everyone has the right to life, liberty and security of person; Article 5, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment; Article 9, “No one shall be subjected to arbitrary arrest, detention or exile; and Article 10, “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”. 
Israel’s Disregard for International Law
Israel has occupied the West Bank and Gaza for over seven decades and it is a crime; however, so far, Israel has established and expanded new settlements in the OPT with impunity. The latest report of Amnesty International speaks volumes about the Israeli disregard for international law and human rights. According to the Amnesty International Report 2021/22, The State of the World’s Human Rights, on page 207 and onwards, the Amnesty International explained the situation in Israel and OPT, wherein it is stated, “Israel maintained its illegal blockade on the Gaza strip, inflicting collective punishment on residents and exacerbating the humanitarian crisis there, and Palestinians’ freedom of movement was arbitrarily restricted in the West Bank. Israeli authorities subjected Palestinians to forced evictions, arbitrary detention, torture and other ill-treatment, all committed with almost total impunity. Israel’s discriminatory system of governing Palestinians in Israel and the OPT constituted apartheid, a crime under international law…” 
On the forced evictions, the aforesaid report further elaborated that “Israeli authorities demolished buildings in the OPT, including East Jerusalem, making more than 1,000 Palestinian residents homeless in areas designated for Israeli settlers. Among those forcibly evicted, women were disproportionately affected as their homes also served as their places of work and income generation, especially in shepherding communities. Israel’s army demolished Humsa village in the Jordan Valley in the OPT in February and July, destroying or confiscating animal pens, residential shelters, water cisterns and food reserves...”

Currently, India is replicating Israeli model of settler colonialism in IIOJK. The Indian government has also announced Kashmiri Pandit (Hindu) settlements along with soldiers’ colonies for retired members of the armed forces in the occupied region.

It is most pertinent to state here that United Nations High Commissioner for Human Rights (OHCHR) issued an annual report on the Israeli settlements in the OPT, including East Jerusalem and in the occupied Syrian Golan Heights, which was submitted pursuant to Human Rights Council Resolution 46/26 (February 22, 2022). The OHCHR made a few conclusions and recommendations in the said report, wherein it is stated, “The establishment and expansion of settlements in the OPT and the occupied Syrian Golan amounts to the transfer by Israel of its own civilian population into the territories it occupies, which is prohibited under international humanitarian law. Such transfers amount to a war crime that may engage the individual criminal responsibility of those involved. A number of international bodies have confirmed the illegality of Israeli settlements in the OPT and the occupied Syrian Golan, including the International Court of Justice, the General Assembly, the Security Council and the Human Rights Council”. 
India Follows Israel in International law’s Disregard
The United Nations Security Council resolution of April 21, 1948 in respect of the state of Jammu and Kashmir is one of the most important UN resolutions on the Jammu and Kashmir issue, wherein, it was resolved, “Both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite.” Therefore, in the presence of valid UN resolutions, it is a disputed territory and since 1947 to the present day, India has the status of an occupying power, having no legal title to the state of Jammu and Kashmir. This fact was implicitly accepted by India in the form of Article 370 and 35A of the Indian Constitution, since IIOJK had a special status even in the Indian Constitution. Currently, IIOJK is very relevant in studying the settler colonialism, particularly after the abrogation of Article 370 and 35A in August 2019, which resulted in the illegal annexation of the occupied territory in violation of international law. In IIOJK, the settler colonialism, narratives have existed even before the abrogation of the aforesaid articles; however, now India’s settler colonial plan in occupied territory has been fast-tracked with an objective to recruit a class of non-Kashmiri Hindu settlers to change the predominantly Muslim demography of the occupied state. In pursuit of its settlers’ colonial plan, India has dishonestly passed domicile laws allowing non-locals to permanently reside and buy property in IIOJK. It is pertinent to mention here that since August 5, 2019, India has issued thousands of new domicile certificates to non-local Hindus with an aim of establishing new settlements in the occupied territory. Currently, India is replicating Israeli model of settler colonialism in IIOJK. The Indian government has also announced Kashmiri Pandit (Hindu) settlements along with soldiers’ colonies for retired members of the armed forces in the occupied region. These moves have been contemplated by Indian government to sabotage the conduct of plebiscite and implementation of the right to self-determination in IIOJK. 
Since August 2019, India is using unbridled force against the protestors and has imposed communications blackout in the occupied region to hide its crimes against humanity. Amnesty International in its report on India also highlighted this fact, wherein it is stipulated that, “Residents of Jammu and Kashmir suffered the longest internet shutdown on record from August 4, 2019 to February 5, 2021. The region continued to suffer repeated internet shutdowns over concerns for national security and public order. The shutdowns caused economic losses and adversely impacted education and other services‘ provision. They also put human rights defenders at heightened risk of surveillance by government agencies”. It is most pertinent to state here that over the years, Indian troops have committed gross human rights abuses including gang rapes, mass killings, extrajudicial killings, arbitrary arrests and illegal detentions. Therefore, due to India’s continuous draconian policies, thousands of Kashmiris were forced to migrate to other countries, particularly, Pakistan, which is tantamount to arbitrarily displacing Kashmiris from their homes, which is not permissible under the international humanitarian law. 
According to the Article 42 of Hague Regulations (HR) 1907, a “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”. Therefore, India and Israel are the hostile armies in their respective occupied territories having complete control, and are bound to follow the law of occupation. Indian and Israeli policy of building new settlements contravenes the fundamental rules and the international humanitarian law. Article 49 of the Fourth Geneva Convention 1949 states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Therefore, India and Israel are only allowed a very limited use of the property in their respective occupied territories. The rationale behind this limitation on the occupying power is derived from the concept that occupation is temporary, which is the basic idea of the law of occupation. As per Amnesty International, this concept is succinctly interpreted by International Committee of the Red Cross, the occupying power “has a duty to ensure the protection, security, and welfare of the people living under occupation and to guarantee that they can live as normal a life as possible, in accordance with their own laws, culture, and traditions.”
Moreover, illegal actions of India and Israel also violates Principle 6 of the Guiding Principles on Internal Displacement of UNHCR, which states, “Every human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence”. The current circumstances in IIOJK and OPT also violates Article 11 of the International Covenant of Economic, Social and Cultural Rights 1966, which states, “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions…”
It is pertinent to state here that the peoples of the state of IIOJK and OPT have the right to self-determination and resist occupation with all lawful means. For instance, UN General Assembly Resolution No. 37/43 (December 1982), “Reaffirms 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”. 
Further, apart from the rights guaranteed in UN Charter, and applicable UN resolutions, the Article 1 of the International Covenant on Civil and Political Rights is also important, which states, “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. 
Therefore, India and Israel’s nefarious designs and draconian policies in respect of these occupied territories are a threat to international peace and security. There have been wars over the Kashmir and Palestine disputes, and they are still flashpoints between India-Pakistan and Israel-Arab nations. Therefore, it is the paramount obligation of the UN to take effective measures in order to maintain international peace and security which is the mandate of UN in terms of Article 1 of the UN Charter, Chapter I: Purposes and Principles. 
India and Israel have adopted the policy of delaying tactics in respect of IIOJK and OPT, which violates the UN Charter, and the applicable UN resolutions, hence, not permissible under the international law. These illegal actions also undermine the universal principles of justice, thus, this tale of two occupations has become a portrait of the legal maxim, “Justice delayed is justice denied”. The circumstances in IIOJK and OPT provide an appropriate and proper circumstance to implement international law, therefore, in view of the current circumstances, there is a need to initiate sanctions and stern actions against India and Israel prescribed under Chapter VII (Articles 39 to 51) of the UN Charter, which provides for Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression. However, so far, UN has miserably failed to implement the international law to redress the miseries of the Kashmiris and the Palestinians. Therefore, there is a need to vigorously mobilize the world opinion in favor of the Kashmiris and the Palestinians. These disputes need to be resolved in accordance with UN Charter and applicable UN resolutions. Therefore, it is time to invite the citizens of the world, who believe in democracy, human rights, justice and truth that regardless of the race and religion of the victims. They should come forward and emphasize the fact that from Kashmir to Palestine, occupation is a crime.

The writer is Advocate Supreme Court of Pakistan based in Islamabad. He had also been teaching Constitutional Law at Secretariat Training Institute, Islamabad.
E-mail: [email protected]

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