Pakistan must seek universal jurisdiction over India’s crimes in Kashmir

When it comes to dealing with an international problem, a country can take one of two approaches: stand back and let the problem evolve on its own in an unpredictable trajectory or act proactively to tackle it from forehead. The first approach leads to undesirable consequences, while the second, although initially more work-intensive, is more rewarding in the long run.

I spoke to His Excellency Imran Khan, Prime Minister of Pakistan, when I met him in September 2020, to discuss Pakistan’s legal options in international law. I spoke to the Prime Minister about an important legal vertical: the concept of “universal jurisdiction”.

I advised Pakistan to tap into the resources of international law and invoke universal jurisdiction against Indian officials accused of committing international crimes in the illegally occupied Indian Jammu and Kashmir (IIOJK).

Although I am not sure that Pakistan has heeded my advice, an important international development – the equivalent of a legal tsunami for India – has taken place in the United Kingdom, which shows that the world is slowly but surely becoming aware of the atrocious crimes committed by India in Indian-administered Kashmir.

Read more: Prime Minister Khan to draw UN attention again to Indian atrocities in the IIOJK

On January 20, a London-based law firm, Stoke White, deposit a request to the UK Metropolitan Police for the investigation and arrest of Indian Army Chief Manoj Naravne and Home Secretary Amit Shah for the torture, kidnapping and murder of activists and civilians in Indian-administered Kashmir.

In a 40 page report entitled “India’s war crimes in Kashmir”, Stoke White calls for the opening of legal proceedings against the head of the Indian army and Minister of the Interior, on the basis of the principle of “universal jurisdiction” .

Stoke White has asked the Metropolitan Police to investigate the death of a minor unlawfully detained by Indian authorities and the systematic torture of a human rights defender. The company claims to have collected more than 2,000 testimonies on a series of abuses and violations of international and national laws.

This is a huge development in international law. Universal jurisdiction – an established principle of international law – obliges every country to prosecute and punish perpetrators of war crimes, crimes against humanity, genocide and torture – regardless of jurisdictional, territorial and of citizenship – on the grounds that these crimes strike at the very heart of the global conscience.

Read more: UK law firm calls for arrest of senior Indian army officials over Kashmir war crimes

Although it is too early to predict the fate of Stoke White’s complaint, the first legal salvo has been fired against India. Everything depends on the ability of Pakistan and the Kashmiri diaspora to maintain their momentum.

Evolution of universal jurisdiction

Despite the patchy and rather dismal record of international criminal accountability, universal jurisdiction offers a way to set the wheel of international criminal justice in motion.

Universal jurisdiction has evolved over the years and has been invoked by courts in various countries. Chilean dictator General Augusto Pinochet was arrested in the UK in 1998 for crimes against humanity, on the basis of an arrest warrant issued by a Spanish court. Following a legal battle, British courts rejected Pinochet’s request for immunity as a former head of state and ordered his extradition to Spain for trial. Although the trial never took place due to Pinochet’s poor health, his detention for a year and a half marked a turning point in the development of the concept of universal jurisdiction.

The Pinochet procedure offered a new window of hope for victims, NGOs and lawyers to pursue international criminal responsibility. Since then, several Latin American countries have opened investigations into international crimes. The extradition of former Peruvian President Alberto Fujimori from Chile to Peru in 2007 is an example of a successful universal jurisdiction proceeding.

Read more: Op-ed: Advisory Jurisdiction of the Supreme Court

The complaint against the head of the Indian army in the UK comes at a time when Genocide Watch has confirmed that India is on the brink of imminent genocide. Hindutva religious fanaticism, which has engulfed all of India, is now a threat to international peace and security. The systematic oppression of Kashmiris has taken on a new and sinister form. Global media have reported on the dangerous trajectory India is on under Prime Minister Narender Modi.

The way of Pakistan

Pakistan has a few options when it comes to universal jurisdiction proceedings against India. First, Pakistan should organize a conference titled “Holding India Accountable Under Universal Jurisdiction” to raise global awareness of human rights abuses by Indians in disputed Kashmir. Invitations should be extended to all countries, leading academics, international lawyers, NGOs, foreign media and influencers. Victims of Indian crimes should be invited to present their testimonies. Pakistan must then build on the deliberations of the conference and possibly present them to the UN.

Second, Pakistan should identify state-affiliated or sponsored individuals who have been implicated in the commission of international crimes in Kashmir at the behest of India. A wealth of evidence exists in the public domain, NGOs and human rights organizations. This evidence may form the basis of the filing of universal jurisdiction claims against Indian officials.

Thirdly, Pakistan needs to identify the appropriate jurisdictions to bring cases taking into account the ease of registering criminal complaints, issuing arrest warrants and apprehending perpetrators, as well as the length of proceedings legal proceedings and probable criminal sanctions.

Finally, Pakistan should seek the help of international lawyers who can advise Pakistan on the whole ecosystem of universal jurisdiction, as the procedures require meticulous crafting of legal cases so that the full power of the law can be imposed on authors.

Read more: A look at the terrors that continue to haunt Kashmir

India is determined to commit flagrant crimes against Kashmiris. Ultimately, it is time for Pakistan to add non-kinetic costs to India that can emasculate the Hindutva project and prevent it from realizing its sinister designs against the Kashmiris.

To do this, Pakistan must pursue strategies that resonate with international audiences and coincide with existing trends and practices. As such, taking advantage of the full reach of universal jurisdiction, Pakistan can launch a pre-emptive legal attack on India. It’s time to act.

Hassan Aslam Shad is an international lawyer based in the Middle East. He graduated from Harvard Law School, USA, with a specialization in international law. He can be reached at: [email protected] This article was first published in World TRT and has been republished with permission. The opinions expressed by the author do not necessarily represent the editorial policy of Global Village Space.

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