By Asif Mahmood
It is February 5 today. The day is being observed as a holiday in Pakistan as a manifestation of Pakistan’s support to the just cause of Kashmir.
This time the day has gained more significance as India, in sheer violence of International law , has tried to annex the disputed territory in the union of India. However it has become counterproductive for India as with this shameful aggression in occupied Kashmir , the Kashmir dispute is again in the lime light. This is what we call blessing in disguise. Kashmir , for all practical purposes , is now an International issue. It has been discussed at one of the most august and prestigious forum of the world i.e. the Security Council.
Kashmiris have the right of self-determination under UN Charter and resolutions of Security Council but the question is: do they have a right to armed struggle against this occupation? The answer is yes. Under International law they have to right to fight against Indian forces and this struggle will be considered as a just war. For a profound understanding the detail is given below:
- This act has been justified in Article 1 sub clause 4 of Additional Protocol I to the Geneva Conventions of 1949. In clause 4 it is stated that “The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as en shrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.”
- The UNGA ( United nation General Assembly ) resolution No. 3314 also provides this rights when it states that it acknowledges the right “to self-determination, freedom and independence […] of peoples forcibly deprived of that right,[…] particularly peoples under colonial and racist regimes or other forms of alien domination and the right of the occupied to “struggle … and to seek and receive support.” The struggle here includes armed struggle as it evident from the context.
- UNGA resolution 37/43 on December 3, 1982 has removed any doubt ( if that ever did exist) . The resolution provides that it “reaffirms the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle”
- On the same pretext, in a landmark decision, the European Court of First Instance in Luxembourg has removed Hamas and its military wing, the Qassam Brigades, from the list of terrorist organizations because armed struggle is a justified means of resistance under International law.
- There is a difference between a freedom fighter and a terrorist. The OIC Convention on Combating International Terrorism (1998) has declared that “Peoples’ struggle including armed struggle against foreign occupation, aggression, colonialism, and hegemony, aimed at liberation and self-determination in accordance with the principles of international law shall not be considered a terrorist crime.”
