For more than six months, the Indian-held Kashmir (IHK) has remained in a lockdown. Indian authorities have committed mass crimes in the held valley which legally constitute as international crimes. India’s exclusionary and genocidal policies in Kashmir call for a collective response led by the international community for prevention of the humanitarian crisis brewing in the disputed territory. This piece encompasses a comprehensive study of Responsibility to Protect (R2P), its operational utility and the probable prospects and challenges that the application of R2P doctrine might face in case of Indian-held Jammu and Kashmir (IHJK).
The formulation of the United Nations’ Doctrine of R2P in year 2005 is a key international legislation, whereby the world states have taken up the political commitment to respond in a collective manner against any state that perpetrates mass atrocity crimes against its citizens. It was formulated after international community’s utter failure to adequately respond to the Rwandan genocide (1994), Srebrenica massacre (1995) and ethnic cleansing in Kosovo in late 1990s.
The ambit under which the R2P can be invoked explicitly includes humanitarian crisis resulting from genocide, war crimes, ethnic cleansing, and crimes against humanity. Further, it cannot be invoked without the approval of the United Nations Security Council (UNSC). The application of R2P entails a three-tier process involving:
It is argued that R2P doctrine is merely a paperwork, floundering around the complex realities of warfare, that has practically failed to produce any positive outcomes. The first-ever implementation of R2P was invoked by the UNSC Resolution 1973 against Libya’s Gaddafi regime in 2011. The intervention and post-conflict rebuilding is widely seen as an utter failure driven by geopolitical interests of great powers in the region. The two-days of airspace siege, followed by military intervention by French fighter jets constitutes as the application of R2P. NATO-backed airpower led the armed groups to depose President Gaddafi. Numerous civilian casualties were inflicted by the armed groups. In operational terms, the process swiftly lapsed into military intervention, which is otherwise the last policy option. Currently, Libya is stuck in a deadly civil-war with virtually no solution in sight.
On the other hand, the UNSC has repeatedly failed in reaching a consensus regarding the war crimes perpetrated by Assad regime against its citizens. Ceasefire agreements between major powers continue to make and break as Syria becomes a classic case requiring R2P. Great power interests and alignments across the conflicting parties have not only hindered humanitarian intervention but have gone as far as to exacerbate the crisis.
In January, the deadly genocide led by the state of Myanmar against Rohingya Muslims was ruled as state-led genocide by the International Court of Justice (ICJ). This obligated the international community to invoke R2P, however, it did not materialise. Arguably the ‘statelessness’ of Rohingya Muslims rendered their entitlement to human rights obscure as human rights are entitled to state subjects. This stance however ignores the fact that the Universal Declaration of Human Rights grants basic human rights to all human beings regardless of the status of statehood. Another factor that posed hurdle to the implementation of R2P was the prevalence of non-interference in the internal affairs of neighbouring states a foreign policy norm among the ASEAN states.
In the IHK, India has committed crimes against humanity on vast scales as part of its state-policy to curb freedom movement and political activism in the disputed valley. Since 1990, more than 8,000 Kashmiris have been reportedly subjected to forced disappearance. The Uri sub-district homes around 950 unidentified graves which are suspected to be graves of missing persons who were murdered arbitrarily. The frequency of extra-judicial killings has considerably seen upward trends during the Bharatiya Janata Party’s rule. Several torture centres have been established in the valley with police stations and army camps as the primary ones. Different forms of torture include excessive beatings, water boarding, roller treatment, burning, electrocution, mutilating organs and rape. Genocide Watch has expressed its fear of a brewing genocide in the held Kashmir. Others suggest that the gross human rights violations in the held territory is already tantamount to genocide. Indian authorities have frequently employed rape as a weapon of war. In early 2019, pellet gun victims were estimated to be as many as 7,000 with around 1,500 Kashmiris suffering from severe eye injuries.
Since its inception, global political governance has received criticism for being an inefficient force that falls weak against contending national interests of political and economic top-dogs. Kashmir, therefore provides an opportunity to international humanitarian regimes and more specifically the R2P legislation to assert their operational relevance in these times.
However, unfortunately, response based on humanitarian grounds, more specifically the application of the doctrine of R2P requires strategic interests of major powers and political will of world states. While China, Turkey, and Malaysia have displayed a pro-Kashmir posture, an overwhelming majority of countries have maintained hush over the issue. The United States’ strategic interests converge with India as it seeks to employ India as a bulwark against China. Also, the United States views India as a lynchpin to its Indo-Pacific strategy. On the other hand, the economic trade between India and China is also expanding across diverse sectors. While China has facilitated two UNSC meetings on Kashmir, Chinese economic ties with India remain unaffected. A stable South Asian region is in the best interest of China. Russia has historically asserted that India and Pakistan should solve Kashmir conflict bilaterally. As of Pakistan, Trump administration approves of Pakistan’s indispensability for Afghan peace process and the country holds pivotal geo-strategic importance for Chinese Belt and Road Initiative (BRI). The status-quo in Pakistan-India relations is said to best serve the interests of great powers and therefore any dynamic humanitarian support from these states hinges on Pakistan’s pursuit of an astute diplomacy.
More importantly, the R2P doctrine has been principally designed to act against state-led mass crimes against its citizens. Whereas, in case of the held Kashmir, the parameters of Indian citizenship of Kashmiri population are subject to contestation. The UNSC has never approved of Indian control of IHK. As per Pakistani and Kashmiri perspectives, Kashmiris are forceful subjects rather than rightful citizens.
Diplomacy remains at the heart of Pakistan’s Kashmir policy and the country has actively pursued the cause of internationalising the on-going humanitarian crisis. Consequently, the current crisis has gained unprecedented international media coverage. However, the mitigation of the crisis much depends on the response from the international community. The Rome Statute of International Criminal Court extends the mandate to unilaterally initiate investigations against the commitment of international crimes by nation states. Moreover, ICJ’s unanimous ruling against the state of Myanmar for Rohingya genocide was a key political and legal step towards genocide prevention and holding states accountable for genocidal conduct. Though the ruling lacks the ability to enforce itself, yet it can be used as an instrument for narrative building.
In its support to Kashmir’s freedom struggle, Pakistan should employ legal and political options at hand. Given the lack of strategic interests of major powers, the possibility of invoking R2P in Kashmir seems bleak in near future and requires proactive diplomacy from Pakistan. Apart from the forums of global governance, mobilisation of Kashmir cause across different international policy and research institutes, human rights groups, political lobbies and transnational interest groups can prove helpful for the cause. Also, the Libyan model of R2P suggests that a successful R2P in Kashmir will largely depend on political commitment, economic assistance and above all humanitarian spirit of the international community. Since its inception, global political governance has received criticism for being an inefficient force that falls weak against contending national interests of political and economic top-dogs. Kashmir, therefore provides an opportunity to international humanitarian regimes and more specifically the R2P legislation to assert their operational relevance in these times.