KASHMIR’S RIGHT TO SELF DETERMINATION, UNSC RESOLUTIONS AND CULPABILITY UNDER INTERNATIONAL HUMANITARIAN LAW

Resumo

In the Valley of Kashmir there is a conflict that has broad ramifications for international human rights law and it has involved the Indian armed forces occupation of the state and then its annexation by India. The origins of the dispute began when the Maharaja conducted the Instrument of Accession in 1947 and the principality became incorporated with in India. The legality of this act was disputed by the UN Security Council which decreed that there should be a plebiscite in the territory to determine the will of the population. There have issues that concern international human rights law and these are (i) whether the UNSC resolutions have binding effect? (ii) Are rights of the inhabitants of successor states to colonial powers governed by international law that prescribes the right of self determination? (iii) Are States bound to observe the International Convention of Civil and Political Rights that has the force of customary law? The presence of Border Security forces and Central Reserve force which operate under the Armed Forces (Special Powers) Act (AFSPA) 1958 provides immunity to the Indian military personnel from judicial redress. Their abuses have been catalogued in the UN Human Rights Council’s report in 2018 and 2019. The argument of this paper is that the resolutions on Kashmir are mandatory; that India has acted as an imperial state and that it is bound by international law; and that there should be rigorous application of international humanitarian law and war crimes tribunals constituted to try officials on the precedent of Non International Conflicts.