Can India demand allegiance from Yasin Malik? Article 45 of the Hague Convention provides a definitive answer to this query, negating the possibility of demanding allegiance to the occupying power from the inhabitants of the occupied territories.
Yasin Malik, as a citizen of Kashmir and not of India, falls under the established principle of international law, which prohibits any nation from claiming sovereignty over an occupied territory. This principle, originally enshrined in the Paris Agreement of 1928 and reaffirmed in Article 2, Subsection 4 of the United Nations Charter, was reiterated by the International Committee of the Red Cross in its August 4, 2004 declaration.
It emphasizes that occupation does not confer ownership of the occupied territory upon the occupying power, thus perpetuating the status of occupation. Numerous resolutions of the United Nations General Assembly and the Security Council reinforce this position. Furthermore, the UNCCP also affirmed this principle at a conference held in Switzerland, adding weight to the established legal discourse on the matter.
Legal scholars emphasize that even in the event of occupation, a state does not undergo a change in its status. The state maintains its identity as an international legal personality and does not assimilate into the occupying power. Consequently, the occupation continues to be considered illegitimate for the duration of its existence and does not alter the legal status of the occupied state.
Based on this principle, the Security Council declared Iraq’s occupation of Kuwait illegitimate in Resolution 674. The UN General Assembly refused to recognize the occupation of Azerbaijani territory on the basis of this point. Moreover, the General Assembly, in its resolution No. 3061, in keeping with the same principle, declared the Portuguese occupation of Guinea-Bissau illegitimate. If India has forcibly declared occupied Kashmir as part of the Indian Union in violation of UN resolutions, it does not mean that occupied Kashmir has now become part of India. And its citizens must remain loyal to India. International law is very clear that the fate of Kashmiris will be decided by Kashmiris themselves and in a UN-supervised plebiscite. India cannot unilaterally and forcibly make occupied Kashmir a part of India by violating the International law.
Based on this principle, the Security Council declared Iraq’s occupation of Kuwait illegitimate in Resolution 674. The UN General Assembly refused to recognize the occupation of Azerbaijani territory on the basis of this point. Moreover, the General Assembly, in its resolution No. 3061, in keeping with the same principle, declared the Portuguese occupation of Guinea-Bissau illegitimate. If India has forcibly declared occupied Kashmir as part of the Indian Union in violation of UN resolutions, it does not mean that occupied Kashmir has now become part of India. And its citizens must remain loyal to India. International law is very clear that the fate of Kashmiris will be decided by Kashmiris themselves and in a UN-supervised plebiscite. India cannot unilaterally and forcibly make occupied Kashmir a part of India by violating the International law.
The fact that Yasin Malik openly acknowledged his status as a freedom fighter in an Indian court demands our attention and contemplation. It prompts us to question the legitimacy of penalizing an individual solely based on such an admission. It is an undeniable truth that the inhabitants of occupied territories are granted this right by the United Nations. Should they choose to resist the Indian occupation and strive for their freedom, their actions would not violate international law; instead, they would be considered a legitimate pursuit.
This entitlement of the Kashmiri populace finds validation in Article 1, Sub-section 4 of the Additional Protocol 1 to the Geneva Convention of 1949. The provision stipulates that engaging in armed conflict against an occupying authority in pursuit of self-determination should be classified as an international conflict, akin to conventional warfare. Consequently, it ought not to be categorized as an act of terrorism, but rather as an international conflict.
The interpretation of General Assembly Resolution 3314 grants Kashmiris the right to armed struggle. Article 7 of the resolution states that the term “aggression” should not be applied to the struggle for the right to self-determination and that such struggle shall be treated as justified. the resolution serves to remove any disagreement or ambiguity regarding the justification of such struggle.
On December 3, 1982, the General Assembly passed Resolution No. 37/43, which explicitly affirmed the right to self-determination and legitimized armed struggle against occupation in Clause 2. Despite being a citizen of an occupied territory and subject to the control of India, Yasin Malik’s human rights should not be restricted.
It’s pertinent to remember that Article 43 of the Hague Resolutions mandates that the occupying power is responsible for safeguarding the health and safety of the inhabitants of the occupied territory. This is a fundamental principle that aims to protect the well-being of individuals living in areas affected by conflict or occupation. It’s important to uphold these provisions to ensure the safety and security of all people, regardless of the circumstances they find themselves in.
This is a fundamental principle that aims to protect the well-being of individuals living in areas affected by conflict or occupation. It’s important to uphold these provisions to ensure the safety and security of all people, regardless of the circumstances they find themselves in.
Yasin Malik is being denied basic human rights and is enduring ongoing mistreatment. This grave injustice not only violates fundamental human rights but also constitutes a clear example of war crimes committed by the occupying power.
