Legal Memorandum to the United Nation Secretary General (UNSG) and all Members of United Nations Security Council (UNSC).
To
His Excellency, Antonio Guterres, Secretary General United Nations
All members of United Nations Security Council (UNSC)
Legal Memorandum to the United Nation Secretary General (UNSG) and all Members of United Nations Security Council (UNSC): Requesting an urgent and immediate Intervention in the Illegal Annexation of Disputed Jammu and Kashmir
Your Excellences
We urge and request and immediate intervention to prevent illegal annexation and demographic change in disputed territory of Jammu Kashmir. (Occupied by India).
Key facts
The final status of the former princedom of Jammu and Kashmir has remained unsettled since 1947. The state of Jammu and Kashmir before the partition of India and Pakistan was princely sovereign statehood with its independent legislative, executive and judicial institutions.
The ruler of the Kashmir Maharaja Hari Singh was wavering between acceding to either dominion and choosing to remain independent and neutral at that time, until a dispute arose between India and Pakistan over Kashmir.
This dispute followed an armed conflict between India and Pakistani forces. India on 1st January 1948 took the question of Kashmir to the United Nations by instituting a complaint against Pakistan in the Security Council. The Government of Pakistan in its reply denied the charges and lodged a counter complaint of waging a war against them. Two weeks later UNSC through its Resolution 39 on 20th January 1948 established United Nations Commission of India and Pakistan (UNCIP) to investigate the allegation made by Pakistan and India[1]
The Security Council then adopted Resolution 47 on 21 April 1948 by virtue of which the Pakistan government was asked to try to secure the withdrawal of tribesman and India was allowed to retain the minimum force for assistance in the civil administration for maintenance of law and order. The resolution also stipulated that the United Nation Secretary General would appoint at plebiscite administrative who was to act as an officer of the state of Jammu and Kashmir.[2]The plebiscite would be conducted to decide whether Jammu and Kashmir was to accede India or Pakistan.
This demilitarization never took place owing to disagreement between the two parties. Since 1947 India has refused to agree to demilitarization of the region in any form to allow for a free and partial plebiscite. Until 1971 as many as twelve United Nations Security Council Resolutions have been passed over Kashmir which laid three principles. Demilitarization of the disputed region, Right to self-determination to entire region and ceasefire.[3]
In October 1951 India convened a Constituent Assembly to formulate a Constitution for Jammu and Kashmir. In response, Security Council passed resolution 91 0f 951 which reaffirmed the principle that the final disposal of the state would be through a free and impartial plebiscite, it declared that…. “the convening of the constituent Assembly and any action it might attempt to take to determine the future shape and affiliation of Kashmir would not constitute a deposition of the state in accordance with the principle of a free and impartial plebiscite conducted by the United Nations”.[4]
India and Pakistan have fought three major wars in 1948, 1965 and 1991- over Kashmir. Local population and Indigenous armed groups in Jammu Kashmir have also been fighting against Indian rule for Right of self-determination.
According to several Human Right organizations, thousands of people have reportedly being killed by Indian Army and para military force in the region since the beginning of insurgency in 1989. There are reports of torture, enforced disappearances, rape, and use of lethal weapons on unarmed protestors, complete censorship on print and electronic media and also attacks on journalists and lawyers.
The Disputed Jammu Kashmir is witnessing intense hostility since 5th august 2019, when Indian parliament unilaterally abrogated the semi-autonomous status of Jammu Kashmir. The two resolutions passed by the parliament were conceived in malice and executed in deceit. They reduced Kashmir to Indian’s military colony.
The Ruling Right wing Bharti Janta Party (BJP) has polarized and ethnically divisive discourse in order to create a culture of majoritarianism that would exclude minority community in India including in the disputed region of Jammu Kashmir. The government of India after abrogating the autonomy of disputed Kashmir placed the Muslim majority population under massive military siege. The entire communication was blocked, high speed internet continues to be restricted in the region foreign journalists, UN rapporteurs and US congressman representatives were barred to enter in Kashmir. Thousands of Kashmiri’s have been detained including the religious and political leaders this ongoing unprecedented curfew under the pretext of demographic change has turn the valley into largest open air prison in the world.
India has changed Kashmiris political status and eliminated its sovereignty and autonomy entirely and indefinitely, through the illegal amendment to constitution (Application to Jammu Kashmir) order (2019) and annexed state to its territory. The situation has become, after the passing of this order and new domicile law for state of Jammu Kashmir, an occupation with unlawful annexation.
India being party to all four Geneva Conventions and Geneva Convention Act 1960 is under obligation to respect and implement them in letter and spirit. Under Article 49 Geneva Convention 1V, it is prohibited for the occupier to transfer civilians from occupying power into the occupied territory. This is to prevent the occupier from demographically transforming the territory in order to advance a claim of sovereignty and under mining the occupied people’s right to self-determination.[5]
Article 35A of Indian Constitution compiled with the requirement as it did not allow non-Kashmiri state subjects to settle permanently in Kashmir or buy land/property their however, with the removal of this law and the splitting of territory into two, and promulgation of new rules called as Jammu and Kashmir grant of Domicile certificate (procedure) rules, 2020, India has initiated to change the demographics of state. The present development by settlement of non-Kashmiri state subjects is with the aim to impact any future referendum in the state. This would be contrary to Article 49 of the 4th Geneva Convention.
India’s action are akin to Israel’s in Jerusalem. Israel seized Palestinian territory, namely the West bank, including East Jerusalem and Gaza in the 1967 War. The Security Council Resolution 476 (1980) affirmed “all legislative and administrative measures And actions taken by Israel, the occupying power, which purport to alter the character and the status of the holy city of Jerusalem have no legal validity and constitute a flagrant violation of the fourth Geneva Convention related to the protection of civil persons in time of war and also constitute a serious obstruction to achieving a comprehensive, just and last in Middle East”[6]
Moreover, in Wall advisory opinion, ICJ held that the construction of the Wall and its associated regime created a “fait accompli” that could well become permanent, in which case it would be tantamount to a defective annexation.[7]
Indian action of unlawfully Annexing Jammu Kashmir and incorporating as Union Territory, India has blatantly violated the International law. As per the Security Council Resolution governing Israel illegal de jure Annexation of Golan Heights and Jerusalem, this Indian law which Unlawfully annexed Jammu Kashmir is also to be seen as null and void and lacking any legal effect.
Appeal
● GOI shall comply with its international obligations in Occupied Kashmir pursuant to UNSC Resolution and other bilateral treaties and international covenants.
● Member states of Security Council should refer this case of illegal annexation and demographic change in disputed Jammu Kashmir for Advisory opinion to ICJ.
● Ensure independent war crime tribunal for disputed Jammu Kashmir
● Ensure GOI respect and protect the fundamental rights of the people of Occupied Jammu Kashmir, including freedom of speech and expression.
Sincerely,
Legal forum for oppressed voices of Kashmir
Chief justice (R) Ali Nawaz Chowhan, Former chief Justice Gambia. International Judge of the UN at The Hague. Chairman National commission for Human rights Pakistan visiting professor.
Justice Syed Manzoor Hussain Geelani, Retired Chief Justice Supreme Court of Azad Jammu Kashmir.
John Smith Lawyer Istanbul Turkey
Farzana Yaqoob, Eisenhower fellow. Former Minister Azad Jammu Kashmir.
Syed Fai, Public Relations USA
Emine Yildirim, Lawyer Turkey
Advocate Hassan Aslam Shad, Harvard Law school Graduate, GM Robust Law Practices International law expert.
Dr. Junaid S. Ahmad, Professor of Religion and Global Politics University of Leeds
Dr Ataullah Khan Mahmood, Professor Law IIUI
Abdur Rauf Khattana SOAS, Professor LAW
Dr. Susic Sejo, University Professor Law
Dr Halil Thoker Senior Professor Istanbul University.
Prof. Sikander Ahmed Shah, LUMS
Prof. Dr. Khalid Sultan, University Professor Head of Department Mass communication NUML.
Sami ur Rehman Khan, International Humanitarian Law, Assistant professor Law
Sadia Niazi Lecturer International Relations NUML
Dr Ashraf Bhat, Professor, KSA
Advocate Rafia Research scholar International Law.
Advocate Nasir Qadri, Researcher Law of Armed Conflict IIUI.
Advocate Laiba Amjad Research Associate LFOVK.
Advocate Bakth Fatima Associate LFOVK
Advocate Djamela,
Advocate Sameer Ahmad
Advocate Nadeem Geelani,
Riyaz ul Khaliq, Phd Research scholar Turkey
Seyma Yildrim, Researcher IZU Turkey
Roshan Taj Humayun, Ph.D Research Scholar
Maryam Khan, Researcher IZU Turkey
Shaukat Maqbool, Political and Social Activist
Rana Shama Nazir, Activist & Founder & President of British Kashmiri Women Council
Let Kashmir Decide org, Human rights group.
Zulfiqar Ali, Journalist
CLAIRE, Teacher
Syed Moazzam Ali, Media and Education
Usama Khalid, Lecturer steps college Rawalpindi Writer, Journalist
Joseph Hussain, Student
Tahseen kauser, Teacher
Basit Dar, Researcher
[1] UNSC, Security Council Resolution 39 (1948) [the India and Pakistan question], 20 January 1948 S/RES/39(1948)
[2] UNSC Resolution 91(951) S/2017/Rev.1 available at: http://unscr.com/en/resolutions/91
[3]a. Resolution adopted 229th meeting of Security Council on (January 17th 1948)
b. Resolution adopted at 23th meeting of Security Council on ( January 20th January 1948)
c. Resolution adopted at 286th meeting of Security Council on (April 21th,1948)
d. Resolution adopted at 312th meeting of Security Council on (June 3rd 1948)
e. Resolution adopted at 80th (1950) UNSC (march 14th 1950)
f. Resolution 91 (1951P)UNSC (March 30th 1951)
g. Resolution 96 (1951) UNSC (November 10,1951)
h. Resolution 98, (1952)UNSC (December 24, 1952)
i. Resolution 122 (1957) UNSC (January 25, 1957)
j. Resolution 126 (1957) UNSC (December,2 1957)
k. Resolution 211 (1965) UNSC (September 20 1965)
l. Resolution 307 (1971) UNSC (December 21, 1971)
[5] Security Council Resolution 497 (1981) of 17th December 1981.
[6] Security Council Resolution 476 (1980) 0n 30th June 1980.
[7] Advisory opinion concerning legal consequence of the construction of a Wall in the occupied Palestinian territory International Court of Justice (ICJ), 9TH July 2004, para 121.
