The ICJ opinion on Palestine applies with equal force to Jammu and Kashmir 

The similarities of the situations in the Occupied Palestinian Territory and Indian-administered Jammu and Kashmir are self-evident. Both involve the violation of two basic international law principles: one, the right of peoples to self-determination; and two, non-acquisition of territory by the use of force.

The Advisory Opinion of 19 July 2024 rendered by the International Court of Justice (ICJ) has confirmed that Israel’s occupation since 1967 of the West Bank, East Jerusalem and Gaza and its attempts to prolong this occupation through its settlements and security policies violate both these principles. It has asserted that the Palestinian people have the right to self-determination under customary international law as an erga omnes “right” as well as under UN General Assembly resolution 181.

These and all other conclusions in fact, apply with equal force, to the situation in Indian-administered Jammu and Kashmir. In the case of Kashmir, the right of self-determination arises from customary International Law, the principle on which the entire British India achieved independence, and UN Security Council resolutions (47 and subsequent) which decided that the “final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people [of Jammu and Kashmir] expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations.” 

In the case of Palestine, the precise modality for the exercise of self-determination has not been prescribed. The ICJ has said this is to be decided by the UN General Assembly or the Security Council, although its final outcome should be the establishment of a Palestinian State. In the case of Jammu and Kashmir, the modality for the exercise of the right of self-determination has already been specifically prescribed by the UN Security Council.

In the case of Jammu and Kashmir, the modality for the exercise of the right of self-determination has already been specifically prescribed by the UN Security Council.

 Munir Akram

The ICJ’s Advisory Opinion outlines how Israeli occupation, by seeking to irrevocably change the legal and demographic character of East Jerusalem, the West Bank and Gaza and apply its own laws to these territories, violates the principle of non-acquisition of territory through the use of force. Also in Jammu and Kashmir, taken over by Indian military forces, India’s actions have progressively imposed its control over the territory and, on 5 August 2019, moved to completely annex Jammu and Kashmir and Laddakh as two separate “Union Territories.” These actions violate the express injunctions of the UN Security Council, as set out in resolutions 91 and 122 and are legally “null and void.” But, these also manifestly violate the principle of “non-acquisition of territory through the use of force.”

Similarly, India’s attempts to impose its control through suppression and coercion of the Kashmiri people – like Israel’s actions in occupied Palestine – constitute grave violations of international humanitarian and human rights laws. These Indian violations have been extensively documented.

India’s attempts to change the Muslim majority demography of Jammu and Kashmir into a Hindu majority territory violates resolutions 47, 91, and 122 of the Security Council. India has issued over 4.2 million domicile certificates to non-Kashmiris; seized Kashmir lands and allowed non-Kashmiris to buy real estate and register on electoral rolls. These illegal demographic changes also constitute a flagrant violation of the Fourth Geneva Convention and IHL. The ICJ states that Israel’s similar actions for demographic and legal changes in occupied Palestine are illegal.

The ICJ has elaborated on several other aspects of Israel’s occupation which have significance for Indian-administered Jammu and Kashmir.

The Court underlines that the UN resolutions do not have a temporal time-frame and remain relevant. It further elaborates that “prolonged occupation” aggravates the denial of the right to self-determination. Thus, the delay in enabling Palestinian and Kashmiri self-determination is an additional imperative to enable the exercise of self-determination. The Court argues that the extension of Israeli laws to the occupied territories, beyond what is strictly necessary to maintain the occupation, is illegal. Therefore, the extension and application of India’s own laws in Jammu and Kashmir, including its “emergency laws” and certainly the 5 August 2019 unilateral change in the status of Jammu and Kashmir, are also illegal.

The ICJ has further asserted that the Palestinian people have sovereignty over their national resources and Israel’s exploitation of these national resources are a violation of Palestinian rights to these resources. Thus, India’s exploitation of the resources of Indian-administred Jammu and Kashmir, including the hydro-power projects which supply power and water to India from Jammu and Kashmir, constitute violations of the Kashmiris’ rights to these resources.

The Court asserts that the international law relating to Israeli occupation applies to the entire Palestinian territory i.e. the West Bank, East Jerusalem and Gaza. None of these can be accorded separate and different treatment. Similarly, in the case of Jammu and Kashmir, none of the Indian-administered regions can be separated by India for separate treatment. India’s illegal and unilateral measures of 5 August 2019 are thus doubly illegal.

A significant part of the ICJ’s Advisory Opinion relates to the legal consequences of the occupation for Israel and other states.

Israel, the Court states, is obliged to cease all changes within the occupied territories, including a halt in further settlements. It must also undertake in some form, “restitution, to give back what has been taken from the Palestinians including their homes and lands etc.” These are important elements of the rights to which the people of Indian-administered Jammu and Kashmir are also entitled. India must make restitution (including restoration of Kashmiri properties, assets etc., allow the return of Kashmiri refugees); compensation e.g. for properties and businesses destroyed and damage caused by illegal detentions and extra-judicial killings and other actions.

The Court also outlines the legal consequences for the United Nations which has “the obligation not to recognize as legal the situation” arising from Israel’s unlawful presence. The UN General Assembly and the Security Council must “consider what further action is required to put an end to the illegal presence of Israel”, and to “redouble its efforts to bring the Israel-Palestine conflict to a speedy conclusion.”

It is thus evident that the UN has similar obligations with regard to Indian-administered Jammu and Kashmir. It reinforces Pakistan’s call for action by the international community, especially the UN Security Council and the Secretary-General, to take concrete steps to secure the implementation of the Security Council resolutions on Jammu and Kashmir, demand the reversal of India’s unilateral measures imposed since 5 August 2019 to annex and divide Indian-administered Jammu and Kashmir, and to end India’s massive violations of human rights there.

The tragic histories of the people of Palestine and Jammu and Kashmir are inextricably linked temporarily, politically and legally. International law upholds their just cause. And, while the arc of history is long, it inevitably bends toward justice.  

– The writer is a Permanent Representative of Pakistan to the United Nations.

X: @PakistanPR_UN