The following interview was a conversation with Professor Dr. Sikander Shah in the context of his article published in Dawn Newspaper after the Pulwama attacks in Indian Occupied Kashmir by a native freedom fighter. We discussed his article in the context of current developments in the region.
Q: In your article, you have highlighted the non-state actors in Pakistan and Kashmir. Can we differentiate between the non-state actors, terrorists and the Kashmiri Freedom Fighters?
A: For this to answer, firstly, one needs to have clarity in mind that, in international law, there are conventions that recognize specific acts as terrorism. Particularly after Sept 11, what behavior of state and non-state actors are called terrorism by the United Nations Security Council.
Concerning the Kashmir issue, according to the Law of War in Geneva Convention, the land of Kashmir is an occupied territory. And, the Law of War doesn’t talk about terrorism. Terrorism is a purely political notion.
However, India has ratified the Geneva Convention that explains the Laws of War, to define the domestic conditions of Kashmir. As mentioned, the Law of War does not apply to terrorist activities. Nonetheless, the Law of War primarily consists of war crimes, civilians and combatants, various duties and obligations on state and non-state parties and belligerents.
I do not consider Kashmiris as a non-state actor. They were a princely state before partition, recognized under UN Charter Chapter 6. For such a nation or people, owing to the law of self-determination, armed struggle is a vested right. The Kashmiris should only make sure to comply with the Law of War during this fight.
Let’s come to the difference between Terrorists organizations and Kashmiri Freedom Fighters. Firstly, Kashmiris are colonial people, recognized as a nation under UNO. They weren’t part of British India. Had they been part of British India at the time of independence, they would have been part of Pakistan, owing to their demographics. Taliban have an extreme ideology, and one can be Taliban from Punjab, Sindh, anywhere. That does not mean the people of Sindh, Punjab any area are terrorists.
Second, sometimes people use force and do not comply with the Law of War. Naturally, soldiers do war crimes. They are to be held under trials. This violation doesn’t justify that their fighting for freedom is wrong. For me, the majority of violations are committing by the Indian army. This violation doesn’t mean that whole of India is criminal. Only those who have committed war crimes in that territory should be accountable for their crimes and taken for trials, judicial processes, and international tribunals.
Even if we look into the Pulwama attack, it is justified on the side of Kashmiris. They attacked combatants, not civilians. They used whatever ammunition they had, as a proportionate response. Armed struggle is their vested right, which they had used.
Q: As you have said, Kashmiris are colonial people. How do you see the Palestinian case compared to Kashmiris? Do you think they are similar or different?
A: To some extent, they are similar. However, there are some differences, as well. Palestinians are well organized. Other organizations and Muslim states are supporting them. Moreover, they have a presence in the United Nations; in contrast, the Kashmiri case is neglected in the International Law. Palestinians have a legitimate claim of being a separate nation. Israelis and Palestinians are considered as two different states. In principle, the Israelis agree to two states, although not in action. However, in the case of Kashmir, a substantial populated area has been trying to absorb the state. India puts effort to change the demographics of the area and absorb it as India’s province. It doesn’t even consider Kashmiris as a separate nation, but a part of India. In the previous year, India revoked articles 370 and 35A. This political behavior is itself against the constitution of India, contravention of Simla Declaration and has no legal provisions. These actions have diluted the sovereignty of Kashmiris.
As far as similarities are considered between the cases of Kashmir and Palestine, they are quite a few. They both have the right to self-determination. Israelis have attempted to throw out the Palestinians and took off their right to repatriation, i.e., the right to return to one’s homeland. India is trying to do the same. However, owing to the population size of Israel and India, it is hard for Israel to change the demographics of Palestinians. Practically the numbers are different. There are 1.3 billion Indians, as for them, within a matter of two to three years, they can change the demographics of Kashmir drastically. In the case of Israel, it cannot happen.
In both cases, the military is stationed, and they are religiously driven as well. International parties have been in agreement, the United Nations Security Council has given resolutions and has engagements. In the international forum, solutions are proposed, and third parties are involved. However, Kashmiris have never accepted Indian legitimacy in the whole scenario.
Q: In the article, you have mentioned, if Pakistan supports Kashmiris logistically and financially, it is not legally wrong, and is justified. Knowing that in the October FATF session, Pakistan might be blacklisted. Suppose we look into this with the dimension of terror financing case on Pakistan and FATF. What will be the consequences for Pakistan, and are these developments a result of the Indian lobby?
A: Pakistan’s position must be made clear concerning the jus ad-bellum and jus in-bellum.
It is true, India has been somewhat successful in creating a political impression that Pakistan is supportive of terrorism. But to be clear, what is FATF is asking is more procedural, in domestic issues. Similarly, India changed its idea of terror. As said before, terrorism is a political notion. War crimes apply to state and non-state actors both. I don’t see Kashmiris as part of India, and I don’t see Pakistan has come to sign any treaty or agreement.
Level of support, like provision of weaponry for Kashmir, by Pakistan, should be done diligently. In the international community, other countries do the same, and there is nothing wrong with it. As you can see in the case of Syria, Iran and Russia are supporting the de-facto government and Bashar-ul-Asad, while Turkey is doing the opposite. In the same way, Pakistan should sort out answers for itself.
Also, some laws allow countries to step in to resolve issues for the sake of self-defense, as did India for Bangladesh in 1971. The point is that there are laws of intervention, and all these arguments support that a country can provide other people and nations. Hence, the law of intervention can be effectively used. In Libya, the United Nations got involved and brought regime change in Libya. Thus, Pakistan can hold its point of view using the laws of intervention smartly.
Coming back to FATF, there are certain aspects of FATF that needs to be put into effect in our own country, enforce in by our government. Terrorism is a threat to us, too, by different stakeholders. India directly supports some of these groups. Balochistan Liberation Army, for example, has been classified as a terrorist group not just by Pakistan but also by the US and European Union. BLA targets are stock-exchanges, civilians and various public departments, etc.
Now the things are, FATF would also help us to improve our frameworks. For instance, it will advance on financing and having a better assessment of intelligence. There is a lot of political misusage in using FATF against Pakistan. India has a plus point and can influence against Pakistan as they have a more influential say in FATF, owing to their geo-politics.
Speaking of it, not as a legal expert but as a citizen of this world. Pakistan and China’s relationship, and the relationship between India with the USA puts pressure on Pakistan. India examines FATF its way and elaborates on what FATF is looking at and monitor. All of it was done for India’s favor.
Pakistan needs to be careful too. For instance, the Yadav terrorist financing case, coming from India, is an open violation. India still couldn’t successfully explain why that might have happened, and Pakistan is unable to look at things in ways that would support its standing.
Being a member of FATF does not dilute the pressure. Neither being on the list makes a country incapable of being an active member of the international community. Countries work within this pressure. Iran is an excellent example of being perpetually on the FATF list. Still, it is tough to argue that civilian frameworks and everything that is happening in Iran is primarily in defense. They have issues in city government and city establishments, social rights, and social security. It is hard in a country and still moving forward. A lot of this works on the geopolitics as well. Legally speaking, on an international forum, Pakistan needs to clear on its position and then abide by it firmly. Pakistan needs to be a responsible member internationally.
Therefore, I have called it a “battle of the narratives.” If India claims that Pakistani support for Kashmiris is a terrorist activity or illegal activity, and Pakistan puts forward its rhetoric in a defensive position, this is not the right approach. Instead, Pakistan should reject it being terrorism. Pakistan should form a narrative that explains the behavior of the Kashmiris as their right to self-determination. They must highlight the fact of compliance with the Laws of War and their legal position.
Recently the map of Pakistan stated Kashmir as an occupied territory, meaning it is an illegally consumed territory. It is a reasonable effort. It reflects that Pakistan’s narrative is to not consider the case of Kashmir as an internal matter of India, and Islamabad’s account would be an independent statement. Pakistan is not bound to state claims per the Indian claim. India might control Kashmir, but it is not their territory. These things are needed to be legally revised, assessed, and laid out so that Pakistan can legally say it needs to do these X, Y, Z procedures. Pakistan can legally take some position. No matter what, as a nation, Pakistan is stable, although it is not a global power like America, China, Russia, or any other first-world country. For Pakistan, it is imperative to assess the International Law, because it protects the moderate or weak states in a framework.
Meanwhile, the more influential states will have ways to undermine international law. International law is not the object of the Security Council. Security Council is to maintain international peace and security. Though UNSC can veto any proposal, the international law does not go long to the bindings of the Security Council’s resolution. For example, if America is illegally held in the Nicaragua case, its implementation cannot take place because the US can veto the UNSC’s judgments when it comes to implementation. After all, it has to come through UNSC. If the Americans have lost the case in the International Court of Justice, surely they will veto in the Security Council.
As international law works like that, so Pakistan being a moderately sized powerful state, it should be among the guardians of international law because the law protects us. Unfortunately, Pakistan hasn’t vested enough in its international law expertise to be able to form a strong legal position and being able to justify that position.
Q: Under the light of the present condition, whereby we see the formation of Chinese and American blocks. What do you think is the future of Pakistan? Will international pressure increase or decrease in Pakistan?
A: There are different views on it. As I stated earlier, Pakistan should be one of the guardians of International law. It must become a more active state in arguing for a meritocratic, legitimate, equitable form of International law. Even Pakistan’s constitutional amendments should reflect that.
It requires advancement in education, development, and more rule of law. When these changes happen, Pakistan’s position will automatically become intense and more refined. There are different ways to look at the perceptions in International law. If you are into viewing the Hobbesian view, which is a dominant view, countries, and states look out for their interest, so should Pakistan. Both in terms of advancing the International law and its national interests.
In terms of conflict development and the cold war between China and America, Pakistan should act as a responsible state and look for its interest. It doesn’t mean it has to accept what China is doing or what America is doing. Pakistan needs to negotiate and make arrangements with both countries, in ways that can improve Pakistan’s position economically and politically. This way, Pakistan’s interests, and those who are being suppressed, like Kashmir, which is a day to us, it defines the existence of Pakistan shall be protected. These interests will be reflected if only Pakistan becomes a stronger state in holding the narrative it forms.
It is to be noted that America will not have the same interest in Kashmir as Pakistan does. China might have more so, as they are a neighbor and have territorial conflicts with India, and they will work for their interest as well. So should Pakistan, and in doing so, China will respect it, if it comes in terms of economic arrangements with China and economic negotiations.
Pakistan should also hold viz-a-viz Muslim nations. Pakistan was perturbed in OIC for Kashmir. Accepting India as a member of the Organization of Islamic Conference (OIC), for having a Muslim population of 15% to become a member of OIC is troubling. By that rationale, even Israel can, by de-facto, hold the same argument and become a member of OIC as well. As for Israel, 20% of the area it occupies is a Muslim majority. Would then any Arab country accept that?
Furthermore, there are other countries like Turkey and Malaysia who have sympathetic concern towards Kashmiri cause. Pakistan should reach out to them, as OIC is not working correctly in resolving the issue, or it should improve the OIC.
Also, Pakistan needs to improve its relations with Iran. The Chahbahar arrangements are being canceled. Thus, the relations between India and Iran are turning downside. In this circumstance, Pakistan needs to think politically and legally to see what the options to fight for the Kashmiri cause in collaboration with Iran are? The collaboration needs to be done with diligence because I can tell that Iranians are also sympathetic to Kashmiris. As Ayatollah Khomeini, in terms of his rhetoric and ethnicity, comes from Kashmiri. In addition to this, Ladakh have a majority of Shias. Hence they also have a religious binding with Iranians. Even the constitution of Iran contains a clause to fight for the defense of colonies and colonized people. The whole Iranian revolution is coming out of that understanding. Thus, it’s a fight in their constitution as well. So I think Pakistan needs to use these to build a narrative and optimize the positions and use them effectively, highlighting for Kashmiri cause in Muslim countries.
And, in the rest through various domestic courts, regional courts like the European Court of Human Rights as Kashmiris have resided in Europe and the USA. Rhetoric should be made by holding other countries accountable who are providing weapons to the Indian army, and they are using the same weapons illegally in Kashmir. Again, by saying illegally, it means when the Indian army targets civilians when they attack those who are not directly involved in hostilities. When they target people who are not fighting them and when with people who are not actively engaged in hostilities (as described in International Humanitarian Law).
All of these questions should be raised, and the Indian army should be accountable for war crimes committed by its soldiers. These crimes should be looked at and documented as war crimes. There are various jurisdictions in which Pakistan can drive people for the cause of Kashmir. Based on global laws, universal jurisdictions for violating jus-cogens. Under basic principles of International Law like war crimes, heinous crimes, which in international law are considered universal crimes, like are crimes against humanity and genocide. These are things we should explore and hold India to account for them.
Professor Dr. Sikander Shah is a pioneering member of the Shaikh Ahmad Hassan School of Law, LUMS. Professor Dr. Shah served as the Legal Advisor to the Ministry of Foreign Affairs, while he was on sabbatical in 2012-2013. Professor Dr. Shah’s teaching and research interests are focused on Public International Law, International Human Rights Law, International Humanitarian Law, Corporate Governance and Constitutional Design. In addition to this, Dawn newspaper and Diplomat articles published his piece of writings on diverse topics like democratic issues, economy of Pakistan etc.