Published On: Tue, Apr 21st, 2020

A case for Indian reprimand at UNand expulsion

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Dr. Syed Nazir Gilani

Articles 3, 4, 5 and 6 of UN Charter describe the manner in which a country could seek membership of the United Nations and the organization could suspend a country from the exercise of the rights and privileges of membership or for a persistent violation of the Principles contained in the Charter, could be expelled from the UN by the General Assembly upon the recommendation of the Security Council. The interpretation of membership and expulsion is explicit and simple.

India moved to the United Nations Security Council in 1948 against Pakistan in reference to Jammu and Kashmir. India again moved to UN Judicial Body International Court of Justice (ICJ) in May 2017 and challenged Pakistan, on a military court decision against Kulbhushan Jadhav, convicted for espionage and terrorism in Pakistan. Can Pakistan or any other member of the United Nations seek Security Council or ICJ reference against India? The answer is a positive yes.

We have not been serious in seeking a formal reprimand of India. The main reason has been that we have not been able to understand the jurisprudence that would attract a reprimand. Pakistan except one and the only letter of 8 July 1948 written by the President of Azad Jammu and Kashmir Government addressed to Chairman UNCIP, has retained the full responsibility and control of representing Kashmir case at the UN Security Council and at other international forums. There has been and continues to be a Kashmiri representation. But it is peripheral and unimpressive. Kashmiris have failed to remain vigilant and make regular efforts to share their formal and substantive inputs with the Government of Pakistan.

For example if the Kashmiri leadership had a reliable understanding of the jurisprudence of UN Resolutions on Kashmir, Farooq Abdullah, Omar Abdullah and Mehbooba Mufti would not have chaired the ‘Theatrecommand’ or joint military commandin Indian administered Kashmir (now re-occupied) and allowed the army a no holds barred and police a free hand in turning Kashmir into a prison. Similarly the Government in Azad Kashmir, would have rigorously performed in regards to its share of duties under UNCIP Resolutions. Government of Pakistan and the Government of Azad Kashmir have entered into a constitutional partnership in Azad Kashmir.

India could have been easily reprimanded at the UN General Assembly, UN Security Council and ICJ if we had not misdirected ourselves on the jurisprudence of Kashmir Case. In reference to Kashmir UN Security Council has argued that “The ultimate objective of a fair and impartial plebiscite under the auspices of the United Nations has, after all, been written into solemn agreements by the two Governments and endorsed by this Security Council. These agreements have been affirmed and reaffirmed by the two governments many times during the last three and a half years.” It has been further argued that, “The party that would dare to violate an agreement thus reached would load upon itself a very grave offence against the other party, against the United Nations, and against the right of the people of Jammu and Kashmir to self-determination, a right which, in other contexts, both parties have so often and so eloquently defended.” India without doubt has “loaded upon itself a very grave offence.”

Indian Government has been charged with 13 duties in Security Council resolution 47 of 21 April 1948. Para 2 sets out the discipline for the behaviour, number and location of Indian forces. These forces have attracted the notice of the UN High Commissioner for Human Rights in June 2018 and July 2019 reports and in the May 2019 report of the UN Secretary General. The June 2018 report on the “Situation of Human Rights in Kashmir” has made 17 recommendations to the Indian authorities, in regard to the situation in its controlled part of Jammu and Kashmir.

Government of India has continued with its noncompliance of duties set out in UN Resolutions. In the past three years has pooh poohed the recommendation made in UN Reports. Ignoring the reports of the UN High Commissioner for Human Rights means an act of defiance towards the Human Rights Council and the General Assembly, which elects the members of Human Rights Council.

Actions taken on 5 August and 31 October by Indian Government in Kashmir are a violation of the UN Resolution of 30 March 1951. It has continued to violate paras 12, 13 and 14 of UN Resolution of 21 April 1948, denying the rights to 2.5 million Muslim refugees living in various provinces of Pakistan to return in safety and dignity to their homes in Kashmir. On the contrary it is seen bringing new laws to change the 92 year old State Subject Law and allow non Kashmiri Indians to settle down and change the Muslim majority.

Kashmir is under a curfew from 5 August 2019. People are locked in herds in their homes during Corona Virus. They are denied the social distancing and medical intervention. The ‘gross and systematic violation of human rights’, continued noncompliance of UN Charter obligations and occupation of a people waiting for a UN supervised Plebiscite, makes a strong case of intervention.

United Kingdom had proposed in November 1947 almost 1 month and 9 days prior to Indian petition to UN Security Council on 31 December 1947 that a reference could be made to the International Court of Justice.On 27 August 1951 Office of South Asian Affairs and Office of United Nations Political and Security Affairs of United States prepared a document on Kashmir titled, “Kashmir Dispute: Future Action” . USA was to ask the Security Council to request the International Court of Justice to render an advisory opinion regarding the legality of the act of the Maharaja of Kashmir in signing an instrument of accession to India. India is a fit case for a UN reprimand and expulsion from the UN.

Pakistan or a friendly country should be encouraged to consider the Indian noncompliance of duties under Security Council resolutions, defiance of UN recommendations on her human rights record and the manner of subjecting the people of Kashmir to torture and imminent health disaster, needs an action by the UN.
The author is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations.

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