PAKISTAN’S ACTS OF AGGRESSION AGAINST INDIA: A CASE FOR INDIA AT THE INTERNATIONAL COURT OF JUSTICE By Tejas Hinder

 ILLEGAL AND UNLAWFUL INTERVENTION IN THE AFFAIRS OF THE STATE OF INDIA, PARTICULARLY IN KASHMIR

KASHMIR: A TERRITORY THAT WAS FORMALLY INCORPORATED INTO INDIA

Maharaja Hari Singh, the former ruler of Kashmir, signed the Instrument of Accession, ceding Kashmir to India in 1947. This was treated as a formal document and Kashmir was thus to be brought under the control of India, politically, economically and socially. Hence, Pakistan had no claim over Kashmir. Further, with the establishment of the ceasefire on January 1, 1950, after which the 65 percent of Kashmir that was given to India was formally incorporated into India and given a special status under Art. 370 of its Constitution, there was a formal incorporation of Kashmir into the State of India and the same became an integral part of its dominion politically, economically and socially, thus giving no claim to Pakistan over it.

VIOLATION OF THE UN CHARTER

The principle enshrined in Article 2(4) of the UN Charter has the character of international customary law[1]. The Charter enshrines the principle of sovereign equality of all nations[2]. The prohibited force under Article 2(4) of the Charter includes any kind of trans-border use of force, regardless of the intention of depriving the State of part of its territory. Hence in terms of its legal effect “sovereignty” implies “inviolability” prohibiting any kind of forcible cross-frontier activity[3]. Pakistan, thus by sending its troops to Kashmir is guilty of violation of the principle of non-intervention. Pakistan has acted in violation of the very basic purpose of the UN Charter, which is to maintain international peace and security[4] and encourage peaceful means to settle international disputes[5]

NON-CONSTITUTION OF EXCEPTIONS TO ARTICLE 2(4) OF THE UN CHARTER

There is no exception available for Pakistan to defend its violation of the principle of non-intervention. It cannot invoke the exception to self-defence or anticipatory self-defence due to the absence of armed attack and current present danger by India. The Charter recognizes self-defence under Article 51 and collective action pursuant to a Security Council resolution safeguarded by decision-making procedures that ensure a broad support in the world-community under Chapter VII as exceptions to the well-established principle of non-intervention. The omission of explicit reference to humanitarian intervention must be assumed intentional[6]. There is no basis in law for such an exception to Article 2(4)[7]. The exception of self-defence is conditional upon an armed attack by the aggressor State[8]. A State acting in self-defence acts in response to an imminent danger which must be serious, immediate and incapable of being countered by other means[9]. There was no imminent attack in any case of aggression by Pakistan. Further, there lies no case of anticipatory self-defense as the same does not exist in international law[10]. Alternatively, even if the concept of anticipatory self-defence is presumed to exist, it has no application in the current dispute. The conditions underlying such an exception to the prohibition on use of force are- necessity, proportionality and immediacy[11]. In order to fulfil these criteria, Pakistan needs to prove that there was no other means left except military recourse[12] and that the intervention was done in response to a clear and present danger and not mere preparation[13]. United Nations Resolutions constitute ‘subsequent practice’ for interpreting United Nations Charter provisions.[14] The Declaration states that ‘armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements are in violation of international law.’[15] In furtherance of this, the respondents submit that the ambush of the patrol, strikes on the Western airfields and attacks on the pink fort and the parliament amount to armed intervention against the political elements of India, and the same is in violation of international law as under of the aforementioned provision.

PAKISTAN CANNOT CLAIM THE RIGHT TO UNILATERAL HUMANITARIAN INTERVENTION ON THE GROUNDS OF NEED TO PROTECT THE RIGHTS OF THE PEOPLE OF KASHMIR

The cases of the murdered Chinese in Indonesia, the war against Southern Sudanese, the events in Rwanda, Burundi, Kashmir, Naga and South Africa[16] would have justified humanitarian intervention but states have not engaged themselves in the protection of the affected population and thus have reaffirmed the existing principle of non-intervention. Moreover, The Russian ambassador to the UN, in the start of the NATO campaign against Yugoslavia, said that the justification of attacks with the need for humanitarian intervention was completely untenable.[17] If there lies a claim by Pakistan that the intervention was necessary to prevent violence and violation of rights of people living in Kashmir  due to acts of India  or its Army, the same would not be justified in light of the aforementioned submission made.

PAKISTAN’S INTERVENTION NOT IN CONFORMITY WITH INTERNATIONAL LAW

Every state shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other state or country.[18] In Lotus Case, the court observed that the first and foremost restriction imposed by international law upon a state is that a state may not exercise its power in any form in the territory of another state.[19] Therefore, Pakistan, by virtue of its armed intervention in India  is in violation of the Friendly Declaration and the ruling in the S.S. Lotus Case.

i)      Violation of Article 5 of the Declaration on the Right to Development

The Declaration on the Right to Development adopted by the General Assembly in resolution 41/128 called in for states to take resolute action to eliminate ‘threats against national sovereignty, national unity and territorial integrity.’ Pakistan, by itself involving in intervention in a manner so as to violate the sovereignty of India is in violation of its obligation under the aforementioned provision.

ii)    Violation the stance of world leaders on the issue of non-intervention

In the World Summit Outcome, 2005, the world leaders reaffirmed ‘to support all efforts to uphold the sovereign equality of all states, and respect their territorial integrity and political independence.’[20] Pakistan, by violating the sovereignty and territorial integrity and political independence of India, contravened the stance of the world leaders as deliberated upon in the World Summit, 2005.

 iii)  Violation of the Manila Declaration

As per the Manila Declaration[21], all States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State. Therefore, Pakistan ’s acts, which amounted to use of force under Art. 2(4) of the UN Charter and violated the territorial integrity as well as the political independence of India, was in violation of the obligation of Pakistan under the Manila Declaration.

VIOLATION OF THE RESOLUTIONS OF THE UNGA THAT WERE MADE TO RESOLVE THE DISPUTE BETWEEN INDIA AND PAKISTAN

Resolution 209 imposed an obligation on India and Pakistan to respect the ceasefire have all armed personnel of each party withdrawn to their own side of the line. Resolution 210 imposed a duty on both India and Pakistan to withdraw their troops from the areas of conflict. However, cross-border firing in 1970 and 1971 indicated that there was no withdrawal of army personnel as directed under this resolution. Further, by sending Tribesman as invaders to Kashmir, carrying out air strikes over Indian airfields in the West, sponsoring an endorsing infiltration, hijacking the Indian Airlines, attacking army camps in Kashmir, and being the aggressor in all these instances, Pakistan showed no attempt or intention to resolve the dispute peacefully, thus violating the aforementioned Resolutions.

PAKISTAN VIOLATED THE TASHKENT AGREEMENT AND THE SHIMLA AGREEMENT

There was an obligation on India and Pakistan to respect each other’s national unity, territorial integrity, political independence and sovereign equality and in accordance with the Charter of the United Nations to refrain from the threat or use of force against the territorial integrity or political independence of each other. However, as has been proved earlier, Pakistan’s acts, which include air strikes, sending in infiltrators and militants and attacks on army campsites, all of which took place after 1966, i.e. after the signing of the Tashkent  Agreement, amounted to use of force under Art. 2(4) of the UN Charter and also was a mark of disrespect towards the political independence and sovereignty of India  as there was a constant armed and violent attempt to acquire the part of Kashmir  under the political control of India. Hence, Pakistan has violated its obligations under the Tashkent Agreement.

The Shimla Agreement was signed in 1972 in an attempt to reiterate the promises in the Tashkent  Agreement, in which The Prime Minister of India  and the President of Pakistan  agreed to exert all efforts to create good neighbourly relations between India  and Pakistan  in accordance with the United Nations Charter, they reaffirmed their obligation under the Charter not to have recourse to force and to settle their disputes through peaceful means and agreed that relations between India  and Pakistan  should be based on the principle of non-interference in the internal affairs of each other.

VIOLATION OF CUSTOMARY INTERNATIONAL LAW AND UN RESOLUTIONS BY AIDING MILITANTS TO INTRUDE INTO THE STATE OF INDIA

Pakistan, by aiding militants has violated its obligations under the Convention on the Rights and Duties of Duties of States in the Event of Civil Strife and Havana Convention on the Rights and Duties of States in the Event of Civil Strife. The former can be applied considering the fact that there existed a civil strife between the people of Kashmir and India. Further, the act of aiding militants amounted to indirect armed intervention, thus violating its obligations under the resolutions of the UNSC as well as the UNGA. Lastly, every State has to take up certain obligations at times of an insurgency and Pakistan was obligated not to generate for fund insurgents, and by doing so it violated its obligations under customary international law. Lastly, with the act of aiding of militants qualifying as an act of aggression under Resolution 3314 of the United Nations General Assembly and the ILC’s draft Articles, and it being agreed by India  and Pakistan  in the Tashkent  as well as the Shimla Agreement that no act of either would amount to an aggression over the other, violating the sovereignty and territorial integrity of each other, Pakistan ’s act of aiding the militants who took part in attacks over India  amounts to a violation of sovereignty and territorial integrity of India .

PAKISTAN IS IN VIOLATION OF ITS OBLIGATIONS IN TIMES OF CIVIL STRIFE

With the onset of Pro-Pakistan and Pro-Kashmir guerrillas in the Kashmir valley, there was a constant demand to accede to Pakistan, which was denied by the Union, and hence there existed a civil strife in India, between the Union and the people of Kashmir. There being a civil strife, Pakistan’s act of aiding amounts to violation of Convention on the Rights and Duties of States in the Event of Civil Strife and Havana Convention on the Rights and Duties of States in the Event of Civil Strife.

VIOLATION OF ARTICLE 1(1) OF CONVENTION ON THE RIGHTS AND DUTIES OF STATES IN THE EVENT OF CIVIL STRIFE

Art. 1(1)[22] of the convention guides the nations to prevent nationals from participating in any actions of civil strife. Thus, Pakistan was under an obligation not to intervene, but it did so by aiding militants and sending them to India, and hence violated its obligations under the Convention on the Rights and Duties of States in the event of civil strife.

VIOLATION OF ARTICLE 1(3) OF HAVANA CONVENTION ON THE RIGHTS AND DUTIES OF STATES IN THE EVENT OF CIVIL STRIFE

In the same regard, Article 1(3) of the Convention provides that states should forbid in supplying arms or war materials with the only exception i.e. it is allowed when meant for the government.[23] So it can be very well deduced that assistance to the incumbent government is permissible, not to the insurgent group. Therefore, Pakistan, by aiding the militants and supporting insurgency, is in violation of the aforesaid provision.

PAKISTAN’S ACT OF AIDING MILITANTS IS IN VIOLATION OF RESOLUTIONS OF THE UNGA AND THE UNSC

i)      Violation of the UNSC Resolution 1373

The Security Council resolution clearly states that states should not provide any form of support to acts causing widespread panic and prevent people from planning or facilitating such attacks.[24] Pakistan, by aiding militants, has contributed to attacks on India, which have caused widespread panic and damages. Therefore, Pakistan is in violation of the UNSC Resolution 1373.

ii)    Violation of the General Assembly Resolution 2625

United Nations Resolutions constitute ‘subsequent practice’ for interpreting United Nations Charter provisions.[25] The Declaration states that ‘armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements are in violation of international law.’[26] The aiding of militants, which led to multiple incidents of armed attack, was an indirect armed intervention by Pakistan, thus violating General Assembly Resolution 2625.

iii)  Violation of Resolution 78 adopted by the General Assembly of the Organization of American States

The resolution reflects the customary law and makes a clear statement for states to strictly observe the principle of non-intervention to ensure peaceful coexistence and provides with an obligation not to support or promote any armed activities against another state. Para 1[27] and Para 3[28] of the resolution are relevant. As stated earlier under the previous sub-issue, Pakistan ’s act of aiding militants amounts to an indirect armed intervention, which has interfered with the territorial sovereignty and political integrity of India, thus violating the aforesaid Resolution.

iv)   Violation of its international obligation that arose by the UNGA Resolution on Condemnation of Terrorist Attacks

Clause four of the aforementioned resolution urgently calls for international cooperation to prevent and eradicate acts of terrorism, and stresses that those responsible for aiding, supporting, or harbouring the perpetrators, organizers and sponsors of such acts will be held accountable. By aiding militants, Pakistan’s act amounted to sponsoring terrorism, thus violating its obligation in the fourth clause of the aforementioned resolution.

v)    Qualification as acts of aggression under the United Nations General Assembly 3314

According to Article 4(g) of the aforementioned resolution, The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein, amounts to an act of aggression, and Article 5 of the aforementioned resolution states that no justification for any reason, be it political, economic or social, can justify the act of aggression. Therefore, in the act of Pakistan is violative of International Law as under Resolution 3314 of the UNGA and cannot be justified.

vi)   Aiding Militants by the State of Pakistan violates International law and needed immediate cessation from the boundaries

Rougier’s ‘Le Théorie de l’Intervention d’Humanité’[29] in his work, rejected the idea of unilateral intervention. It is to be understood that states would rarely intervene unless they would derive benefits from such an intervention, otherwise the political cost would be very high.[30] Moreover, in the Corfu Channel case, The Court noted that ‘respect for territorial sovereignty is an essential foundation of international relations’.[31] No state may ‘organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of regime of another state, or interfere in civil strife in another state.’[32] The principle of effective control has been recognized by the same court in cases such as Nicaragua Case[33] and Bosnia and Herzegovina v. Serbia and Montenegro[34] where the Court relied on the Effective Control test. Therefore, Pakistan, by not promoting and harbouring terrorism and terrorist activities in is violation of its obligations under various aspects of Customary International Law.

vii) Pakistan has violated the obligations that it has to undertake during an insurgency

As far as intervention is concerned, ‘When a foreign state recognizes a state of insurgency, it merely acknowledges the fact of the insurrection, but does not create any new international status between it and the parties to the strife.’[35] The states are barred from providing direct assistance to such groups, the right to provide assistance as a non-neutral pertained only to aiding the incumbent government.[36] Therefore, Pakistan, by aiding and supporting the Pro-Pakistan and Pro-Kashmir guerrillas, is in violation of its obligations during insurgency, as was in India.

viii)        Pakistan violated its obligations under the Tashkent Agreement and the Shimla Agreement

By virtue of the Shimla Agreement, Pakistan had an obligation to respect India’s national unity, territorial integrity, political independence and sovereign equality and refrain from the threat or use of force against the territorial integrity or political independence of India. However, by aiding militants to carry out covert operations in India, such as bombing of private and public institutions and ambushing of military campsites, Pakistan was in violation of the Shimla Agreement. Further, the Shimla Agreement exerts all efforts to create good neighbourly relations with India and reiterates the agreement over the principle of non-interference in the internal affairs of each other. Thus, by aiding militants, no attempt was made to restore friendly relations, there was a violation of the agreement over non-interference as under the aforementioned agreement. Lastly, in light of the issue of violation of the Tashkent Agreement and the Shimla Agreement, it is that since the act of aiding militants itself qualifies as an act of aggression, which contravenes the agreement made in these agreements, Pakistan is violative of the Tashkent and Shimla Agreement.

VIOLATION OF THE HUMAN RIGHTS OF THE CITIZENS OF INDIA AND KASHMIR

i)      Attacks launched on the civilians and Pakistan’s failure to demarcate between civilians and combatants

It is to be noted that insurgency caused by Pakistan launched on the civilians and as per the Convention[37] on the civilians prohibited. Article 50(1) of Additional protocol defines that the population is a civilian under the meaning of International Law. Therefore, Pakistan is in violation of the aforementioned provision as it sponsored militants and terrorists whose acts caused violation of the rights of civilians. Article 48[38] of the Additional Protocol lays an obligation on the parties to the conflict to distinguish between civilians and combatants. In the Nuclear weapon case[39], the International Court of Justice in the advisory opinion confirmed that the principle of distinction holds that States must not make civilians the object of attack.

ii)    Pakistan’s obligation to not make civilians the subject of its attack

Article 52(1)[40] prohibits the attack on civilian objects and specifically stipulates that civilians should not be an object of attack. The United Nations Security Council has repeatedly condemned the failure to ensure that civilians are not made subject to attack, either deliberately or through negligence, in conflicts such as Rwanda[41], Burundi[42] and Sierra Leone.[43] Pakistan, through its attacks, as mentioned previously, made civilians the subject and target, and the attacks took place in places of public access, and hence, Pakistan  violated its obligation under the aforementioned statutory provision.

iii)  Pakistan’s violation of the rights of the people under the ICCPR

The right to life[44] has been recognized as a norm of jus cogens and is therefore binding upon all States, whether or not they are parties to the treaties that contain such prohibition.[45] Thus, it prescribes that States have a peremptory obligation[46] to ensure the preservation of the right to life and prohibition of torture. Article 75 of the additional protocol gives fundamental guarantee to the civilians during an armed conflict. Article 75(2)(a)[47] and Article 75(2)(e)[48] prohibits any kind of violent act at any time and any place whatsoever against the civilians. It can be very well deduced from the facts that the aerial strikes, the acts of violence were committed against the civilians by the forces of India.

The ICCPR provides that the right to life is an inherent right and no person may be deprived of it arbitrarily.[49] This right is defined by the Human Rights Committee as the ‘supreme right’.[50] By virtue of causing civilian casualties by air strikes and the India n Army’s infliction of harm during its influx, have been violated by India. Pakistan has also violated the Rule 1 of the customary international humanitarian law which prohibits any attack on the civilians by the parties to the conflict. In the Kassem case[51], Israel’s military court at Ramallah recognized the immunity of civilians from direct attacks as one of the basic rules of international humanitarian law.

VIOLATION OF THE NPT AND CTBT BY USAGE OF CHEMICAL, BIOLOGICAL AND NUCLEAR WEAPONS

i)      Existence of a customary obligation on Pakistan for non-acquisition of nuclear weapons

NPT States have consistently condemned the acquisition of nuclear weapons, or attempts thereof, by NNWS.[52] India has also subsequently condemned such attempts by other States.[53] Several multilateral treaties,[54] resolutions,[55] and judicial opinions[56] also reaffirm this obligation. Therefore, there exists a customary obligation of non-acquisition of nuclear weapons.

ii)    There exists a customary obligation to negotiate towards Nuclear Disarmament

Owing to the ability of nuclear weapons to destroy humankind,[57] nuclear disarmament concerns all States.[58] Therefore, the practice of each State is equally representative for the formation of a customary rule.[59] Virtually all states, both CTBT and non-CTBT parties, have accepted a commitment towards disarmament negotiations.[60] Several multilateral treaties,[61] conferences,[62] judicial opinions[63] and resolutions[64] reiterate and recognise this obligation. Therefore, State practice and opinio juris establish this rule as CIL.

iii)  Inapplicability of the Right to Possess weapons for deterrence to Pakistan

Pakistan may rely on a right to possess weapons for deterrence as an exception to the aforementioned customary obligations. However, the practice of deterrence is rejected by the majority of States and is[65], therefore, insufficient to establish an inherent customary right. Even if such a right exists, it is permitted only if the force envisaged by the use of such weapons does not violate the principles of necessity and proportionality, or is not against the Purposes of the UN.[66] This is evidenced by security assurances, such as a “no-first-use” policy,[67] or a declaration that such weapons shall be resorted to only if the survival of the State is at stake[68] or if the State is attacked by a NWS, or in alliance thereof.[69]

iv)   Violation of the NPT

A State must have standing to invoke the breach of an international obligation.[70] Since nuclear disarmament obligations are by their very nature the concern of all states,[71] Pakistan’s NPT obligations are owed erga omnes partes to India and other NPT parties, while its customary obligations are owed erga omnes.[72] States’ practice also shows their willingness to comply with these resolutions.[73] NPT Article II is a disarmament obligation insofar as it prohibits the acquisition of nuclear weapons by NNWS as a measure towards general and complete disarmament.[74] Resolution 1887 required Pakistan to adhere to this provision as it is a NNWS within the meaning of the NPT.[75] NPT Article VI has been interpreted to impose an obligation to “pursue in good faith, and bring to a conclusion negotiations relating to nuclear disarmament in all its aspects.”[76] These aspects include reduction of nuclear arsenals,[77] as well as cessation of the arms race.[78] To discharge this obligation, States must show willingness to compromise,[79] and a genuine intention to achieve a positive result.[80] They must not unjustifiably break off negotiations or engage in conduct contrary to the legitimate expectations of other States.[81] CIL and treaty provisions may be coextensive.[82] Accordingly, the embodiment of obligations of non-acquisition and negotiation in good faith in the CTBT does not exclude the existence of parallel customary obligations.

v)    Violation of its obligation to suspend nuclear and thermonuclear tests

Resolution 3078 of the UNGA[83], called upon states to discontinue nuclear tests and adhere to treaty banning nuclear tests. Pakistan, by testing their nuclear devices and firing missiles in 1998 and 1999 respectively, is in violation of its obligation.

vi)   Violation of its obligations under the CTBT

Article 1 of the CTBT directs states to not carry out any nuclear weapon test explosion or any other nuclear explosion, and to prohibit and prevent any such nuclear explosion at any place under its jurisdiction or control. Therefore, Pakistan by testing nuclear devices and test-firing missiles, has violated Article 1 of the CTBT. Article 2(5) of the Treaty directs state parties to cooperate with the Organization in the exercise of its functions in accordance with this Treaty and consult, directly among themselves, or through the Organization or other appropriate international procedures, including procedures within the framework of the United Nations and in accordance with its Charter, on any matter which may be raised relating to the object and purpose, or the implementation of the provisions, of this Treaty. Therefore, there existed an obligation on Pakistan to co-operate with organizations in accordance with the framework of the UN and avoid the testing of nuclear weapons. Hence, Pakistan, by testing and test-firing nuclear devices and missiles, respectively, has violated this Article. Under Article 3(1)(a), Pakistan was under an obligation to prohibit natural and legal persons anywhere on its territory or in any other place under its jurisdiction as recognized by international law from undertaking any activity prohibited to a State Party under this Treaty. By its very governmental institution testing nuclear devices and arsenals, Pakistan failed in its obligation to prevent agencies from testing nuclear devices and missiles.

VIOLATION OF INTERNATIONAL LAW, BOTH CUSTOMARY AND CONVENTIONAL BY NOT RECOGNISING THE MILITANT OUTFITS AND CLANDESTINELY SUPPORTING THEM IN TAKING OFFICIALS OF INDIA AS HOSTAGE

i)      Violation of the Geneva Conventions III and IV and the Additional Protocols I and II

Common Article 3 of the Geneva Conventions prohibits the taking of hostages.[84] It is also prohibited by the Fourth Geneva Convention and is considered a grave breach thereof[85]. These provisions were to some extent a departure from international law as it stood at that time, articulated in the List (Hostages Trial) case in 1948, in which the US Military Tribunal at Nuremberg did not rule out the possibility of an occupying power taking hostages as a measure of last resort and under certain strict conditions[86]. However, in addition to the provisions in the Geneva Conventions, practice since then shows that the prohibition of hostage-taking is now firmly entrenched in customary international law and is considered a war crime. By taking away hostages, Pakistan acted in a manner violative of the common Article 3 of the Geneva Convention and the Fourth Geneva Convention, which explicitly prohibit the taking away of hostages.

The prohibition of hostage-taking is recognised as a fundamental guarantee for civilians and persons hors de combat in Additional Protocols I and II. The army personnel qualify as persons hors de combat, and hence possess the right from being taken away as hostages. Pakistan by taking away the army personnel as hostages has violated the rights guaranteed to them under Additional Protocols I and II.

ii)    Violation of the statute of the International Criminal Court

Under the Statute of the International Criminal Court, the “taking of hostages” constitutes a war crime in both international and non-international armed conflicts[87]. Instances of hostage-taking, whether in international or non-international armed conflicts, have been condemned by States. The conflict between India and Pakistan was an international armed conflict, and hence the taking away of hostages constitutes a war crime, as under the Statute of the International Criminal Court as well as State Practice.

iii)  Violation of International Human Rights Law

International human rights law does not specifically prohibit “hostage taking”, but the practice is prohibited by virtue of non-derogable human rights law because it amounts to an arbitrary deprivation of liberty.  The UN Commission on Human Rights has stated that hostage-taking, wherever and by whoever committed, is an illegal act aimed at the destruction of human rights and is never justifiable[88]. The act of taking away hostages amounts to a violation of human rights and is not justifiable, as is mentioned in the aforementioned resolutions of the UN Commission on Human Rights.

iv)   Non-availability of State Emergency to justify the taking away of the hostages

In its General Comment on Article 4 of the International Covenant on Civil and Political Rights (concerning states of emergency), the UN Human Rights Committee stated that States parties may “in no circumstances” invoke a state of emergency “as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages[89]”. Although the prohibition of hostage-taking is specified in the Fourth Geneva Convention and is typically associated with the holding of civilians as hostages, there is no indication that the offence is limited to taking civilians hostage. Common Article 3 of the Geneva Conventions, the Statute of the International Criminal Court and the International Convention against the Taking of Hostages do not limit the offence to the taking of civilians, but apply it to the taking of any person. Indeed, in the Elements of Crimes for the International Criminal Court, the definition applies to the taking of any person protected by the Geneva Conventions[90]. Therefore, Pakistan cannot plead emergency, the reason being the interpretation of Article 4 of the ICCPR by the UNHRC and the Fourth Geneva Convention.

v)    Pakistan’s obligation to return the hostages to India

Article 3 of the International Convention against the taking away of hostages states that, “The State Party in the territory of which the hostage is held by the offender shall take all measures it considers appropriate to ease the situation of the hostage, in particular, to secure his release and, after his release, to facilitate, when relevant, his departure.” Pakistan is therefore under an obligation to return the hostages of India by virtue of the aforesaid statutory provision.

REFERENCES

[1] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),174,  I.C.J. 14 (June 1986).

[2] Charter of United Nations, 1 U.N.T.S. XVI (1945), Article 2(1).

[3] Bruno Simma, Daniel-Erasmus Khan, The Charter Of The United Nations, pg. 117 Oxford, 3rd edition, (2013)

[4] Charter of United Nations, 1 U.N.T.S. XVI (1945), Art. 1(1).

[5] Charter of United Nations, 1 U.N.T.S. XVI (1945), Preamble, Article 1 (2).

[6] Brenfors M., Petersen M. “The Legality of Humanitarian Intervention – A defence”, p. 469 Nordic Journal of International Law 69: 449-499 (2000)

[7] Louis Henkin, The Invasion of Panama Under International Law: A Gross Violation, 29 Colum. J. Transnat’l L. 293, 307 (1991)

[8] Charter of United Nations, 1 U.N.T.S. XVI (1945), Art. 5; Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America) 1986 ICJ 14 at 103.

[9] Roberto Ago, Addendum to the 8th Report on State Responsibility, 2 Y.B. Int’l L. Comm’n 52, para. 88, U.N. Doc. A/CN.4/318/ADD. 52 , (1980)

[10] Josef L. Kunz, Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations, 41 AM. J. INT’L L. 872, 878 (1947); Philip C. Jessup, A Modern Law Of Nations 166 (1948) ; Hans Kelsen, Principles Of International Law 61 (1952) ; Ian Brownlie, The Use of Force in Self-Defence, 1961 BRIT. Y.B.INT’L L. 183, 244; Quincy Wright, The Cuban Quarantine, 57 AM. J. INT’L L. 546, 560 (1963); K. Skubiszewski, Use of Force by States. Collective Security. Law of War and Neutrality., in Manual Of Public International Law 767 (Max Sorensen ed., St. Martin’s Press 1968) ; Emanuel Gross, Thwarting Terrorist Acts by Attacking the Perpetrators or Their Commanders as an Act of Self-Defense: Human Rights Versus the State’s Duty to Protect its Citizens, 15 TEMP. INT’L & COMP. L.J. 195, 213 (2001) ; Michael J. Glennon, The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter, 25 HARV. J.L. & PUB. POL’Y 539, 547(2002)

[11]Roberto Ago, Addendum to the 8th Report on State Responsibility, [1980] 2 Y.B. Int’l L. Comm’n 52, para. 119, U.N. Doc. A/CN.4/318/ADD. 52; Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 94 (June 27).

[12] Dinstein, War, Aggression And Self-Defence, 208 (Cambridge University Press 3d ed. 2001);  Roberto Ago, Addendum to the 8th Report on State Responsibility, [1980] 2 Y.B. Int’l L. Comm’n 52, para. 120, U.N. Doc. A/CN.4/318/ADD. 52

[13] Erickson, Legitimate Use Of Military Force Against State-Sponsored International Terrorism, 140 (1989)

[14]Vienna Convention on the Law of Treaties, 1969, Article 31(3) (b).

[15]UN GA Res. 2625 XXV, UN Doc. A/RES/2625(XXV) (1970).[hereinafter Friendly Declaration]

[16] I. Brownlie, Humanitarian Intervention (J.N. Moore (ed.)), Law and Civil War in the Modern World 224 (1974).

[17] 54th UN SCOR (3988th Mtg.) ¶ 6, UN Doc. S/PV.3988 (1999).

[18] Friendly Declaration, Supra 8.

[19] S.S. Lotus Case (France v. Turkey), PCIJ Series A/No. 10 at 18 (1927).

[20] UN GA Res. 60/1 ¶ 5, UN Doc. No. A/RES/60/1 (2005).

[21]UN GA Res.37/10, UN Doc. S/RES/37/10 (1982).

[22]Article 1(1) of Convention on the Rights and Duties of States in the Event of Civil Strife, 1929 reads: ‘To use all means at their disposal to prevent the inhabitants of their territory, nationals or aliens, from participating in, gathering elements, crossing the boundary or sailing from their territory for the purpose of starting or promoting civil strife.’

[23] Article 3(1) of Havana Convention on the Rights and Duties of States in the Event of Civil Strife 1929,  reads: ‘To .forbid the traffic in arms and war material, except when intended for the Government, while the belligerency of .the rebels has not been recognized, in which latter case the rules of neutrality shall be applied.’

[24]UN SC Res. 1373, decided: ‘States to Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts,…eliminating the supply of weapons.’

[25]Vienna Convention on the Law of Treaties, 1969, Article 31(3)(b).

[26]UN GA Res. 2625 XXV, UN Doc. A/RES/2625(XXV) (1970).

[27]Para 1 of the General Assembly Resolution 78, 1972 reads: ‘To reiterate the principles of non-intervention as a means of ensuring peaceful coexistence among them and to refrain from committing any direct or indirect act that might constitute a violation of those principle.’ Doc No. CP/RES.78 (1972).

[28]Resolution 78, Id., Para 3 reads: ‘Reaffirm the obligation of these states to refrain from. Organizing, supporting, promoting, financing, instigating, or tolerating subversive armed activities against .another state and from intervening in a civil war in another state or in its internal struggles.’

[29]Jean-Pierre L. Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 California Western International Law Journal 223 (1973).

[30]Id.

[31]Corfu Channel Case

[32]Max Hillaire, International Law and the United States military Intervention in the Western hemisphere 38 (Martinus Nijhoff, Israel, 1997)

[33]Nicaragua Case, supra note 9, ¶ 114.

[34]Bosnia and Herzegovina v. Serbia and Montenegro, L.J.I.L. 21(1) at 63-64 (2008).

[35]Ann V.W. Thomas & A.J. Thomas, Jr., Non-Intervention: The Law and Its Import in the Americas 216-17 (Southern Methodist University Press, Dallas, 1956).

[36]Rosalyn Higgins, International Law and Civil Conflict, in The International Regulation of Civil Wars 170 (Thames and Hudson, London, 1972).

[37] U.N.G.A, International Covenant on Civil and Political Rights (1966) 999 U.N.T.S. 171

[38]Additional Protocol, Supra 82, Article  48 reads: ‘In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives

[39]Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Reports at 226 (July 8).

[40]Additional Protocol, Supra 82, Article 52 (1), reads ‘Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives.’

[41]UNSC Res. 912, UN Doc. S/RES/912 (1994).

[42]UNSC Res. 1049, UN Doc. S/RES/1049 (1996).

[43]UNSC Res. 1181, UN Doc. S/RES/1182 (1998).

[44]UNHRC ‘Special Rapporteur Report on the Situation of Human Rights in Chile’ (1982) UN Doc. A/37/564 note 58, Annex V [1].

[45]; UNHRC, ‘General Comment 24’ (Nov. 4, 1994) UN Doc CCPR/C/GC/24 (‘General Comment 34’); Prosecutor v. Delalic (1998) CaseNo.IT-96-21-T, para. 454, 517; Al-Adsani v. United Kingdom (2001) ECTHR.

[46] Bertrand Ramcharan, The Right to Life in International Law (Springer 1985) 138

[47]Additional Protocol, Supra 82, Article 75 2(a), reads: ‘Violence to the life, health, or physical or mental well-being of persons, in particular.

[48]Additional Protocol, Supra 82, Article 75 2(e), reads: ‘Threats to commit any of the foregoing acts.’

[49] U.N.G.A, International Covenant on Civil and Political Rights (1966) 999 U.N.T.S. 171, Art.6.1.

[50]UN Human Rights Committee (HRC), CCPR General Comment No. 6: Article 6 (Right to Life) (1982)

[51] Kassem case, Military Court at Ramallah, Judgement at 806-811 (1969).

[52] S.C. Res. 687, U.N. Doc. S/RES/687 (1991) (Iraq); S/RES/1172 (India and Pakistan); S.C. Res. 1696, U.N. Doc. S/RES/1696 (2006) (Iran); S/RES/1718 (DPRK).

[53] International Atomic Energy Agency, Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran (2005).

[54] Treaty on the Prohibition of Nuclear Weapons, U.N. Doc. A/CONF.229/2017/8 (2017) [“Prohibition Treaty”], Article. 1; Treaty for the Prohibition of Nuclear Weapons in Latin America and the Carribbean, 634 U.N.T.S. 326 (1972), Article 1.

[55] G.A. Res. 69/43, U.N. Doc. A/RES/69/43 (2014); G.A. Res. 71/259, U.N. Doc. A/RES/71/259 (2016).

[56] Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands/India), Preliminary Objections, 2016 [“Marshall Islands”], Dissenting Opinion of Judge Trindade, ¶320-3.

[57] G.A. Res. 2934, U.N. Doc. GA/RES/2934 (1972).

[58] Nuclear Weapons, ¶180.

[59] Continental Shelf, ¶74; ILC on CIL, 95.

[60] G.A. Res. 68/32, U.N. Doc. A/RES/68/32 (2013); G.A. Res. 71/259, U.N. Doc. A/RES/71/259 (2016); G.A.O.R., U.N. Doc. A/68/PV.60 (2014), 12.

[61] Prohibition Treaty, Preamble, ¶17

[62] Vienna Conference on the Humanitarian Impact of Nuclear Weapons, Humanitarian Pledge (2014).

[63] Marshall Islands, Dissenting Opinion of Judge Trindade, ¶330; Nuclear Weapons, Declaration of President Bedjaoui, ¶23.

[64] G.A. Res. 66/46, U.N. Doc. A/RES/66/46 (2011); G.A. Res. 67/33, U.N. Doc. A/RES/67/33 (2012); S/RES/1887; G.A.O.R., U.N. Doc. A/61/PV.67 (2006), 26-27.

[65] International Law Association, Second Report on Legal Aspects of Nuclear Disarmament, (2014) [“Washington Report”], 8.

[66] Nuclear Weapons, ¶48

[67] Letter from China to the Secretary-General, U.N. Doc. S/1995/265 (1995); Marshall Islands, Counter-Memorial of India (2015), ¶8.

[68] Russia, The Military Doctrine of the Russian Federation, Pr.-2976 (2014), ¶27.

[69] Letter from UK to the Secretary-General, U.N. Doc. S/1995/262 (1995); Letter from USA to the Secretary-General, U.N. Doc. S/1995/263 (1995); Letter from France to the SecretaryGeneral, U.N. Doc. S/1995/264 (1995).

[70] ARSIWA, Articles 42, 48.

[71] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Reports 226 [“Nuclear Weapons”], ¶100.

[72] ARSIWA, Articles 42(b) & 48(1); ARS, 119; Barcelona Traction, ¶33; ARS Commentary, 119.

[73] S.C.O.R., U.N. Doc. S/PV.6191 (2009), 1-18.

[74] NPT, Preamble.

[75] NPT, Article IX.

[76] Nuclear Weapons, ¶105(2)(F).

[77] 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, U.N. Doc. NPT/CONF.2000/28, 14-15.

[78] SHAKER, THE NUCLEAR NON-PROLIFERATION TREATY: ORIGIN AND IMPLEMENTATION, 1959 – 1979, VOLUME II (1980), 572–580.

[79] Kuwait v American Independent Oil Company, 21 ILM 976 (1982), ¶70

[80] Gulf of Maine, ¶112.

[81] Lac Lanoux Arbitration (France/Spain), XII R.I.A.A. 281 (1957), 317.

[82] MALANCZUK, AKEHURST’S MODERN INTRODUCTION TO INTERNATIONAL LAW (1997), 40; Nicaragua, ¶179.

[83] Urgent need for suspension of nuclear and thermonuclear tests, [1973] UNGA 36; A/RES/3078 (XXVIII)

[84] Geneva Conventions, common Article 3

[85] Fourth Geneva Convention, Article 34 (ibid., § 2047) and Article 147 (ibid., § 2048)

[86] United States, Military Tribunal at Nuremberg, List (Hostages Trial) case

[87] ICC Statute, Article 8(2)(a)(viii) and (c)(iii)

[88] UN Commission on Human Rights, Res. 1998 & Res. 2001/38

[89] UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights)

[90] Elements of Crimes for the ICC, Definition of the taking of hostages as a war crime (ICC Statute, Article 8(2)(a)(viii)).

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