Asif Mahmood
India’s water aggression against Pakistan has three distinct dimensions.
The first is that it has blocked Pakistan’s share of the waters that flow from India into Pakistan. The second is that it has also begun obstructing Pakistan’s share of the waters that do not originate in India but flow from Indian occupied Kashmir, where India is an illegal occupying power. The third is that by diverting the waters of occupied Kashmir, India has begun depriving not only Pakistan but also Azad Kashmir of its rightful water resources.
In Pakistan, discussion has largely remained confined to the first aspect. The second and third dimensions have received little attention, even though their legal and moral significance is far greater. Together, they constitute a comprehensive indictment of India on charges of war crimes.
The issue receiving attention is that India cannot unilaterally suspend or terminate the Indus Waters Treaty. The treaty contains no provision granting India such authority. Moreover, the waters that flow from India into Pakistan are not India’s property, and India has no legal right to stop them. If it does so, it amounts to a crime against humanity, a violation of treaty obligations, a breach of the Charter of the United Nations, and a violation of universally recognized principles of international law.
The first of the two neglected issues is that India has not merely begun obstructing the waters flowing from India into Pakistan. It has also started interfering with the waters that flow into Pakistan from occupied Kashmir. Occupied Kashmir is not Indian territory. It is an occupied territory, but under international law it is not a part of India. India may be the occupying power there, but it is neither the owner of the land nor of its natural resources.
Article 55 of the Hague Regulations makes it clear that an occupying power cannot become the owner of an occupied territory. Its status is merely that of an administrator. If an occupying power exploits minerals, water, forests, or other natural resources on a permanent basis in a manner that alters their character or appropriates them for its own commercial purposes, such conduct is unlawful.
If India does not own the waters that flow from India into Pakistan and therefore cannot lawfully stop them, how can it claim ownership over the waters flowing from occupied Kashmir, and under what law is it obstructing them?
International law holds that as long as an unlawful occupation continues, the legal consequences of an armed conflict also continue. If, during that occupation, the rights of the population of the occupied territory are violated, such acts fall within the ambit of war crimes under the Rome Statute.
The second overlooked issue is that when India blocks, restricts, or redirects the waters flowing from occupied Kashmir into Pakistan, it also deprives Azad Kashmir of its rightful share of those waters. In other words, as an illegal occupying power, India is depriving the people of Kashmir, including those living in one part of the territory, of their own natural resources. This is an offence of an exceptionally serious nature.
Article 47 of the Fourth Geneva Convention provides that an occupying power cannot deprive the local population of its rights through legal or administrative measures. Article 53 of the same Convention states that an occupying power cannot appropriate the resources of an occupied territory for its own economic or development projects. In other words, India cannot divert Kashmir’s waters into India or use them for its own purposes while depriving the people of Kashmir of their lawful rights.
In 1962, the United Nations General Assembly, through Resolution 1803, established the principle that the natural resources of occupied territories belong to the people of those territories, not to the occupying power. It further affirmed that an occupying power cannot deny the permanent sovereignty of the people over their natural resources. Those resources remain the enduring property of the people of the occupied territory. Therefore, when India blocks the waters flowing from occupied Kashmir and deprives Azad Kashmir of those waters, it violates all these principles of international law.
In this regard, United Nations General Assembly Resolution 3175 of 1973 is of fundamental importance. It declares that the exploitation of the natural resources of occupied territories by an occupying power is illegal and constitutes a violation of the basic principles of international law.
Under Article 8(2)(b) of the Rome Statute of the International Criminal Court, such appropriation amounts to pillage and is recognized as a war crime.
Pakistan is an agricultural country, and water is a matter of life and death for its people. The nature of India’s water aggression is exceptionally grave, and every dimension of it deserves serious attention.