Indian war crimes in Kashmir

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India has been rampantly abusing and violating the international law in IIOJK. Pakistan, through universal jurisdiction – a part of customary international law – can counter India’s war crimes in Kashmir using its legal prowess. Ask a common man and he will tell you this: international law lacks teeth. Reasons cited include the following: international law is hardly ever seen in action; it is hostage to geopolitics; and its enforcement is selective. Other criticisms include the sovereign equality claim under international law, namely that all countries of the world are equal.
There is indeed truth in this criticism. The record of international law, in particular international criminal justice, is patchy. Success stories are few and far in between. It is common to see countries violate international law and get away with it. Violators of human rights can be seen roaming around with impunity. The selective application of international law makes one wonder if searching for answers in the international legal order is equivalent to flogging a dead horse. But, like any other law, international law isn’t without its failures and, importantly, inbuilt complexities. International law, which has evolved over the years, is an ocean of specialized knowledge. It consists of many moving parts, some of which are pliable due to changing state practice. The true challenge for any country knows how to put together those parts and to set the wheel of international law in motion. This requires some tact and out-of-the box thinking. Take the case of IIOJK. Despite that Pakistan’s legal case in respect of IIOJK is firmly anchored in the United Nations Security Council (UNSC) resolutions, due to India’s unilateral declaration at the International Court of Justice (ICJ) which prevents the world court from adjudicating the Kashmir dispute, Pakistan has its hands tied. Moreover, Indian war crimes in IIOJK cannot be tried at the International Criminal Court (ICC) because neither India nor Pakistan are a party to the ICC’s founding treaty, i.e., the Rome Statute.
In addition, due to India’s strong geopolitical muscle, countries of the world haven’t come forward in support of the Kashmiris’ right of self-determination. On the face of it, therefore, it looks like Pakistan, or Kashmiris for that matter, aren’t left with any viable legal option against Indian state aggression. In a 40-page report titled “India’s War Crimes in Kashmir”, Stoke White seeks the commencement of legal proceedings against India’s Army Chief and Home Affairs Minister on the basis of the principle of “universal jurisdiction”. But this is only partly true. There is more to it than meets the eye. Hidden underneath the rubble of international law’s failures are some potent rules that merit consideration. Knowing how those rules work and how they fit within the overall framework of international law is both revealing and promising. If used properly, these rules can be a shot in the arm for the Kashmiris’ struggle against Indian state oppression and set in motion the slowly but surely moving wheel of international criminal justice.
Take the case of universal jurisdiction, an international law concept that has recently come in the global limelight. On January 20, a London-based law firm, Stoke White, filed an application with the UK Metropolitan Police for the investigation and arrest of India’s Army Chief, Manoj Naravane, and Home Affairs Minister, Amit Shah, for the torture, kidnapping, and killing of activists and civilians in IIOJK. In a 40-page report titled “India’s War Crimes in Kashmir”, Stoke White seeks the commencement of legal proceedings against India’s Army Chief and Home Affairs Minister on the basis of the principle of universal jurisdiction.