Whenever Pakistan discusses India’s brutal occupation and annexation of Jammu and Kashmir and the war crimes and human rights violations carried out by its Hindutva regime there, the retort we often have to hear is that Pakistan is doing the ‘same thing’ in Azad Jammu and Kashmir. What this ‘same thing’ consists of is rarely clear. It seems to suggest that Pakistan is also occupying Azad Jammu and Kashmir and is carrying out human rights violations in the territory. This reply is not an accurate one for a few reasons.
For a start, under Article 42 of the Hague Regulations, a territory is occupied when it is placed under the authority of a hostile army.[1] It requires that all three conditions be met; a territory, a hostile army, and sufficient authority. For details on how these are met in Jammu and Kashmir please refer to our much more detailed memorandum on the issue here. In the case of Azad Jammu and Kashmir it is important to apply the law as we do on the Indian side. For that reason, a hostile army can also be one which is not necessarily foreign so long as a functional and not a strictly formal interpretation of ‘hostile’ is undertaken. It is relevant, however, to my view, that there is no strong army presence in AJK as compared to Jammu and Kashmir and no lasting insurgency against the Pakistani state or its presence in the territory. This is not to say there are no protests or grievances against Pakistan which the people of AJK definitely do have, it is just to say that the element of ‘hostility’ is not a clear one in this case. My argument could be countered by relying on Common Article 2(2) of the Geneva Conventions 1949 which holds that a situation can be an occupation “even if the said occupation meets with no armed resistance”. However, given the context as one in which the peoples of AJK and the rest of Pakistan largely share the same religion, race, and to a certain degree, language, and are not targeted as such for being from Kashmir, it would not seem to hold water for this to be a ‘hostile’ army.
However, even if the army could be deemed to be ‘hostile’, I would argue that Pakistan may not be exercising sufficient authority over the territory. This also can at times be difficult to rely on, though I believe it is one which holds up to some scrutiny. Let’s start by going through the requirements of proving the existence of such ‘authority’ which were laid out by the International Criminal Tribunal of Yugoslavia in the Naletilić & Martinović case:[2]
- The occupying power must be in a position to substitute its own authority for that of the occupied authorities, which must have been rendered incapable of functioning publicly;
- The enemy’s forces have surrendered, been defeated or withdrawn. In this respect, battle areas may not be considered as occupied territory. However, sporadic local resistance, even successful, does not affect the reality of occupation;
- The occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt;
- A temporary administration has been established over the territory;
- The occupying power has issued and enforced directions to the civilian population;
In terms of exercising such control over AJK, Article 257 of Pakistan’s constitution states that, “When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State”. As such, Pakistan maintains that the region is a disputed territory awaiting its ability to exercise its right to self-determination.[3] Pakistan administers this territory until it is able to pursue this right and does so under international law, Security Council resolutions, and United Nations Commission for India and Pakistan (UNCIP) resolutions. It does not therefore ‘belong’ to Pakistan and has not been annexed by the state.
In terms of an occupation, there is a local authority which is running the territory until a plebiscite can be held. In fact, this local authority was established by UNCIP, as a resolution it passed states that “Pending a final solution, the territory evacuated by the Pakistani troops will be administered by the local authorities under the surveillance of the Commission”.[4] AJK was initially, under the United Nations Commission for India and Pakistan (UNCIP) resolutions, considered a ‘local authority’ responsible for the area assigned to it under the ceasefire agreement. Josef Korbel, a member of the UNCIP clarified on September 2, 1948 that “By ‘local authority’ we mean the Azad Kashmir people, though we cannot grant recognition to the Azad Kashmir government.’[5] However, the ‘local authority’ which was the provisional government of AJK under the Karachi Agreement (1949) gave Pakistan control over all matters related to defence, foreign affairs, and negotiations with UNCIP as well as affairs relating to the Northern Areas.[6] Therefore, the local authority was not substituted by Pakistan for its own authority, it was allowed to continue to rule AJK excluding on certain subjects.
The glaring issue with this is the argument that Pakistan has directly ruled AJK despite whatever local authorities have been in power there. Indeed, Human Rights Watch reported in 2006 that a former president of Azad Kashmir whose name was withheld had said that the Government of AJK was “by the Pakistanis, for Pakistan”.[7] The key reason for this was the Azad Jammu and Kashmir Interim Constitution Act of 1974 which has been described as hollow, undemocratic, and has been criticised for excluding AJK’s citizens from decision-making.[8] It did this by tilting power away from AJK and far too much towards Islamabad.[9] This is because although it allows for a framework of a self-governing state which possesses its own prime minister, legislative assembly, indirectly elected president, independent judiciary, and local institutions, in effect the Pakistani government was considered to enjoy far too much control over this government for it to be deemed autonomous. For instance, the Pakistani government had the power to dismiss an elected government in AJK, the Azad Kashmir Council based in Islamabad (headed by Pakistan’s Prime Minister) exercised authority over the AJK Legislative Assembly which cannot challenge the Council’s decisions, and this Council under the constitution was given jurisdiction over fifty-two subjects which include everything of any significance.[10] Tax collection was also controlled by the Council leaving AJK financially dependent.[11] Moreover, judges of AJK’s High Court and Supreme Court were appointed by approval of the Ministry of Kashmir Affairs in Islamabad.[12] In fact, all key administrative officials were filled by Pakistani officials including the office of the Chief Secretary, Inspector General of Police, Auditor General, Health Secretary, Chief Election Commissioner and Home Secretary.[13] These appointees were known as ‘lent officers’ as they are the real authority within AJK and exercise control on behalf of Islamabad. It seems then that Pakistan did exercise ‘sufficient authority’ over AJK for it to be deemed an occupying power. However, that has changed with the 13th amendment.
The 13th amendment passed in 2018 has further altered the constitution of AJK and devolved some power back to the region and to the Legislative Assembly. The Third Schedule of the amendment allocated Part A, namely, defence, security and trade to the Government of Pakistan while Part B, which included natural gas, electricity, terminal taxes, railways, boilers, census, medical and legal laws, was given to the AJK government. The preamble itself was changed to emphasise the right of the people to autonomy through democratic means.[14] It further added principles of policy which were made the responsibility of the AJK government such as empowering women and increasing the representation of those that did not have it. Moreover, it also included the protection of the local culture and language as a fundamental right.[15] While many residents of AJK still want a revival of AJK’s 1970 constitution which actually granted fundamental rights for AJK’s citizens, under which foreign trade and foreign aid were to be decided by the AJK government, this seems to be a step in the right direction in complying with the spirit of the 1948 UNCIP resolution and strengthening the region’s autonomy.[16] As a result, two requirements, namely that of a hostile army and sufficient authority are not quite satisfied when it comes to AJK. In order to better improve its position though, Pakistan should further devolve decision-making and authority to the government of AJK and ensure it is a democratic one which can take and enforce decisions on all subject matters, even security, trade and defence. This can be the status quo until a plebiscite is held under UN auspices, or even, I would argue, Pakistan could hold a limited plebiscite in AJK under UN observation in order to settle the matter once and for all.
Lastly, accusations that Pakistan is committing human rights violations in AJK on the same scale or magnitude as those in Jammu and Kashmir are fanciful. Even the report by the Office of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Kashmir stated the following:
- While the main focus of the report is on the situation of human rights in the Indian state of Jammu and Kashmir from July 2016 to April 2018, the report examines the situation in Pakistan-Administered Kashmir within that timeframe. However, the human rights violations in this area are of a different calibre or magnitude and of a more structural nature.[17]
This indicates that the human rights violations in AJK are more systemic in that they are issues within Pakistan’s institutions but are not targeted to that area or its people. This is also evident from the fact that Pakistan’s human rights violations in the report start on page 41 (of a 49 page report) which is otherwise entirely about India’s violations in Jammu and Kashmir.
Moreover, while the 2018 report acknowledges that AJK “has been effectively controlled by the Government of Pakistan throughout its entire history” it also seemingly criticises the fact that “AJK sends no delegates to the National Assembly of Pakistan”. This seems to be a consistent pattern in the criticism of Pakistan with regards to AJK in that people cannot seem to decide whether AJK should be more autonomous or should be a part of Pakistan. It is interesting to see such oscillating critiques. However, in the OHCHR’s 2019 update to the report, it does state that after the 13th amendment, AJK’s “political leaders suggested that by changing the role of the Kashmir Council to an advisory body, more powers had been shifted to the Azad Jammu and Kashmir Legislative Assembly and the Government of Azad Jammu and Kashmir…However, the 13th amendment actually transferred the Kashmir Council’s powers to the Prime Minister of Pakistan.”[18] Again, while it is a step forward much more needs to be done to ensure AJK is an autonomous, self-governing territory, which is administered by Pakistan in accordance with international law, until a plebiscite can be held. For Pakistan to adequately deflect needless critique about its conduct and ‘status’ in the region, it needs to devolve power to the Kashmir Council so that it can be ruled from Muzaffarabad and not Islamabad.
Disclaimer:
The opinions expressed in the articles are those of the authors. They do not purport to reflect the opinions or views of the Research Society of International Law (RSIL), its editorial team, or its affiliated organizations. Moreover, the articles are based upon information the authors consider reliable, but neither RSIL nor its affiliates warrant its completeness or accuracy, and it should not be relied upon as such.
References
[1] International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907
[2] P v. Naletilic & Martinovic, IT-9 8- 3 4 -T (2003) at paras. 210-33 and 587) (WL) [Naletilic]
[3] Newsweek Pakistan, How ‘Azad’ is Azad Kashmir? Khaled Ahmed, March 29, 2022
[4] Resolution passed by the United Nations Commission for India and Pakistan on August 13, 1948
[5] Ershad Mahmud, ‘Status of AJK in Political Milieu’ (2006) 3 JSTOR 105
[6] Agreement Between Military Representatives Of India And Pakistan Regarding The Establishment Of A Cease-Fire Line In The State Of Jammu And Kashmir (S/AC.12/TC.4, 29 July 1949)
[7] Human Rights Watch, “With Friends Like These…” Human Rights Violations in Azad Kashmir, Part III – Constitutional Structure of Azad Kashmir and Its Relationship to Pakistan, September 2006, Volume 18, No. 12(C), https://www.hrw.org/reports/2006/pakistan0906/4.htm
[8] Ibid, and The Impact of Conflict on Young People in Azad Jammu and Kashmir, Waqas Ali, Centre for Peace, Development and Reforms (CPDR), Supported by Conciliation Resources, UK
[9] Raja Qaiser Ahmed, Politics of Power-Sharing in Disputed Territories: A Case Study of the 13th Amendment in the Constitution of Azad Jammu and Kashmir, Journal of Asian and African Studies 2022, Vol. 57(6) 1267–1276
[10] Human Rights Watch, “With Friends Like These…” supra (n 7); these include hydropower, banking, tourism, oil and gas, industries, telecommunication, media, trading corporations etc
[11] The Impact of Conflict on Young People in Azad Jammu and Kashmir, Waqas Ali, Centre for Peace, Development and Reforms (CPDR), Supported by Conciliation Resources, UK
[12] ibid.
[13] Human Rights Watch, “With Friends Like These…” supra (n 7)
[14] The Express Tribune, Why were reforms for Azad Jammu and Kashmir necessary? April 2, 2021
[15] ibid.
[16] The Impact of Conflict on Young People in Azad Jammu and Kashmir, Waqas Ali, Centre for Peace, Development and Reforms (CPDR), Supported by Conciliation Resources, UK
[17] Office of the United Nations High Commissioner for Human Rights Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu & Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu & Kashmir and Gilgit-Baltistan 14 June 2018, https://www.ohchr.org/Documents/Countries/IN/DevelopmentsInKashmirJune2016ToApril2018.pdf
[18] “Update of the Situation of Human Rights in Indian-Administered Kashmir and Pakistan-Administered Kashmir from May 2018 to April 2019” Office of the United Nations High Commissioner for Human Rights. 8 July 2019, para 147
