6th of June 1984 is considered as the darkest day in the history of the Sikhs all around the world. This was the day when the Indian Army stormed the Golden Temple, the holy shrine of the Sikhs to drive out Jarnail Singh Bhindranwale and his armed men who had taken refuge in the Temple complex since 1982. Bhindranwale had started a movement to attain justice for Sikhs who were being discriminated on various grounds. The Indian Government saw this as a secessionist movement, which is why Bhindranwale and his group were considered as a threat to the nation. This paper endeavours to study the Operation Blue Star from the international humanitarian law perspective by establishing it as a non-international armed conflict. It is divided into five parts. The first part deals with the history and the background to the operation and also highlights the reason why the Indian Army attacked Golden Temple; the second part then throws light upon the definition and the types of the armed conflict in the international humanitarian law and also ingredients of a non-international armed conflict; the third part tests the incident of operation against the ingredients of a non-international armed conflict; the fourth part discusses the nature of State’s response which is considered in excess in terms of human rights and humanitarian law obligations. These four parts are then followed by a conclusion.
Sikhism is a religion founded by Guru Nanak Dev Ji in the year 1469 in Punjab, a state being shared by both India and Pakistan. Sikhs, the followers of Sikhism played a major role in the Indian Freedom Movement but did not receive much appreciation even though they were promised jobs and a better livelihood in the post-Independence era. The newly framed Indian Constitution’s Article 25 identifies Sikhs as Hindus, which aggrieved the Sikhs even more leading to a lot of resentment against the Indian state. In the 1950s, the linguistic groups across India sought statehood that led to the formation of a State Re-organisation Commission in 1953. The government of India was apprehensive of carving out a Punjabi speaking state as that would also lead to dividing the state on religious lines between Hindus and Sikhs. The hindi newspapers from Jalandhar urged the hindus to exhort hindi as their mother tongue which is why the demand for a separate Punjabi Suba (State) was defeated. The Akali Dal, a political party formed during the Gurudwara Reform Movement in the 1920s, continued their agitation for the creation of a separate Punjabi Suba and it was finally agreed to in 1966. Thus areas in the South of Punjab that spoke the Haryanvi dialect of the hindi language formed a new state of Haryana, the Pahari speaking areas were merged with Himachal Pradesh and the remaining Punjabi speaking area retained the name Punjab with Chandigarh as a Union Territory and as Punjab and Haryana’s common capital.
This linguistic reorganization of the states created a lot of problems. Many of the Punjabi speaking areas were given to the State of Haryana, Chandigarh was made a Union Territory and the joint capital of the States of Punjab and Haryana and the Centre took control over the waters of the rivers of Ravi, Beas and Sutlej and made arbitrary allocation. The Centre even took control over various power and irrigation projects. After the reorganization of the state, Akali Dal gained the majority in the Punjab Assembly elections in 1967 but Punjab saw an unstable government for five long years owing to defection. Later on in 1972 after the Bangladesh’s Liberation War Congress emerged victorious at both the Centre as well as in Punjab. Nevertheless in 1973 the working group of the Akali Dal came with a resolution, which was adopted at Anandpur Sahib and came to be known as Anandpur Sahib Resolution. It advocated for the federal structure in which the Central Government should actualize the federal concept of India by granting autonomy to the provincial government in all the areas except defence, currency and foreign relations. It was in 1982 that Jarnail Singh Bhindranwale, leader of Damdami Taksal-a Sikh religious organization joined hands with the Akali Dal in order to implement the Anandpur Resolution. Bhindranwale as he was fondly called grew popular amongst the Sikh population of Punjab but notorious with the government. He was even arrested for the murder of Lala Jagat Narain, editor of a popular Hindi daily newspaper who had campaigned against Punjabi being adopted as a medium of instruction in Hindu schools and even urged the hindus to accept Hindi as their mother tongue and reject Punjabi in order to defeat the Anandpur Sahib resolution. However, Bhindranwale was released without being charge sheeted due to lack of evidence. Meanwhile the law and order situation deteriorated in Punjab and there were a number of confrontations between the police, Babbar Khalsa and Dal Khalsa’s army. Later on sometime in 1982, Bhindranwale was invited by Harchand Singh Longowal to take refuge in Guru Nanak Niwas, Golden Temple’s guest house. Bhindranwale then even took charge of the Akal Takht, one of the five Takhts of the Sikh religion also known as the seat of temporal justice, thus becoming the Takht’s Jathedar. He then fortified the Temple with heavy machine guns and sophisticated self-loading rifles were brought in. Though Bhindranwale strongly advocated for the Anandpur Sahib Resolution which mostly focused on the Centre-State relations, greater status to Punjabi and the distribution of the waters of the rivers yet it was mostly seen as a secessionist movement by the Central Government. Indira Gandhi then ordered the expulsion of Bhindranwale and his army from the Golden Temple Complex. The Indian National Army took charge of the situation and attacked the Golden Temple with tanks and artillery on the 6th of June 1984. Thousands of pilgrims belonging to the Sikh faith had gathered in and around Golden Temple, to mark the martyrdom day of Guru Arjan Dev Ji, the fifth Guru of the Sikhs and also the founder of the Temple since the 3rd of June and though entry to the Temple was permitted but they were not allowed to exit it. The survivors of the attack are of the view that the Army deliberately chose this day to carry out the operation in order to wipe out as many Sikhs as possible. The unarmed civilians were attacked incessantly. Even the Sikh Reference Library, which is located inside the complex, was attacked and ancient scripts and artefacts were looted by the army and loaded in trucks to be taken to Delhi. The operation was considered extremely disproportionate and not at all necessary, as the number of Bhindrawale’s armed forces was extremely small as compared to the collateral damage. The civilians who survived often call it as a conspiracy to kill Sikhs and finish the faith in one go. Though the official number of casualties is reported as a few hundreds but the actual number soar really high. The operation was seen as an attack to crush the Sikh militants out of the Temple, yet the author in this paper tries to equate it with non-international armed conflict in order to trigger the mechanism of international humanitarian law principles, thus making the Indian State responsible under the international law.
International humanitarian law (IHL) is a branch of international law that governs the conduct of armed conflict. It applies only to a situation of an armed conflict. Therefore, in order to determine whether IHL applies to a situation of violence it is necessary to first asses whether the situation amounts to an ‘armed conflict’. IHL does not provide for a definition of armed conflict. However, it recognizes two types of armed conflicts: international armed conflicts (IAC) opposing two or more states and non-international armed conflict (NIAC) between governmental forces and non-governmental armed groups, or between such groups only, which was established by the Geneva Conventions of 1949.Prior to the Geneva Conventions of 1949, it was thought that civil conflicts were outside the scope of international law. Since the situation of Operation Bluestar under study resembles a NIAC therefore only the ingredients of a NIAC would be discussed. NIAC can be applied through Common article 3 to the Geneva Conventions, customary IHL and Additional Protocol II (AP II) where ratified.
Common Article 3 applies to “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties“. These include armed conflicts in which one or more non-governmental armed groups are involved. Depending on the situation, hostilities may occur between governmental armed forces and non-governmental armed groups or between such groups only. However, NIAC needs to be distinguished from internal disturbances including isolated and sporadic acts of violence.
AP II on the other hand, applies to armed conflicts “which take place in the territory of aHigh Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over apart of its territory as to enable them to carry out sustained and concerted military operationsand to implement this Protocol”.
This definition is narrower than the notion of NIAC under common Article 3 in two aspects.
Firstly, it introduces a requirement of territorial control, by providing that non-governmental parties must exercise such territorial control “as to enable them to carry out sustained and concerted military operations and to implement this Protocol”.
Secondly, AP II expressly applies only to armed conflicts between State armed forces and dissident armed forces or other organised armed groups. Contrary to common Article 3, the Protocol does not apply to armed conflicts occurring only between non-State armed groups.
In this context, it must be reminded that Additional Protocol II “develops and supplements” common Article 3 “without modifying its existing conditions of application“. This means that this restrictive definition is relevant for the application of Protocol II only, but does not extend to the law of NIAC in general.
The Statute of the International Criminal Court, in its article 8, para. 2 (f), confirms the existence of a definition of a non-international armed conflict not fulfilling the criteria of Protocol II.
Statute of the ICC, art. 8 para. 2 (f): “It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups“.
In order to distinguish an armed conflict, in the meaning of common Article 3, from lessserious forms of violence, such as internal disturbances and tensions, riots or acts ofbanditry, the situation must reach a certain threshold of confrontation. It has been generally accepted that the lower threshold found in Article 1(2) of APII, which excludes internal disturbances and tensions from the definition of NIAC, also applies to common Article 3.
Two criteria are usually used in this regard:
First, the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces.
Second, non-governmental groups involved in the conflict must be considered as “parties to the conflict”, meaning that they possess organized armed forces. This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations.
As per the ICTY Appeals Chamber in Tadic case, an armed conflict involving non-state groups arises only if the violence is protracted and the non-state groups are organized. From the above discussion it can be made out that the following form the ingredients of a NIAC:
Armed conflict between a State and a non-State actor or between these non-State actors
A modicum of organization of any party to the conflict: According to the ICTY Appeals Chamber in Tadic, an armed conflict involving non-State actors must involve ‘organised armed groups’, that have a clear chain of command. Each group involved in an armed conflict need not be clearly differentiated and defined, as there may be a number of loosely related armed groups involved. The ICTY Trial Chamber has further explained the following as ingredients of organization:
The existence of command structure and disciplinary rules;
Control of a determinative territory;
Access to weapons, equipment and military training;
The ability to define military strategy and use military tactics.
Protracted violence: In the Tadic case, the appeals chamber held that for a NIAC to exist there must be ‘protracted armed violence’ which has been authoritatively repeated in article 8(2) of the Rome Statute of the ICC. Yoram dinstein infers that occasional unrest does not amount to NIAC and that there needs to be a series of ‘isolated and sporadic’ internal disturbances for a NIAC to come into existence. The Inter-American Commission on Human Rights in Juan Carlos Abella v. Argentina concluded that an armed conflict has occurred in Argentina, even though the skirmish lasted for 30 hours in total. But Dinstein does not agree with this decision. However, the IACHR holds that in borderline cases there may be a presumption in favour of the existence of an armed conflict.
Intensity of fighting: This requirement should not be looked at as an alternative to protracted violence. The ICTR Trial Chamber in the Akayesu case had stated that the intensity of hostilities ought to be ascertained ‘on the basis of an objective criteria’. In the aftermath of Tadic, multiple judgments of the ICTY have come up with various indicia in order to assess the intensity of the fighting required in a NIAC. These include: the numbers of casualties, the diffusion of violence over territory; deployment of military units against the insurgents; the types of weapons used; the siege of towns; and the closure of towns.
Application of International Humanitarian Law to The Operation Blue Star
The situation of Punjab was dismissed as a mere law and order situation, which is why the State never became liable under the IHL regime. However, this study aims to analyze the situation in Punjab against the ingredients of the NIAC as many Sikh organizations have had asked for a UN probe in this matter as they regard it as a violation of IHL.
Armed Conflict:The situation in the 1984 attack on Golden Temple involved a confrontation between the Indian Army and the armed men, led by Bhindranwale who had taken refuge inside the Golden Temple Complex. There are documented evidences that show that the attack was conducted in a systematic manner with sophisticated weapons being used by both the sides including anti-rocket launchers, AK-47s etc.
Modicum of Organization: The non-state actors in this conflict i.e. Bhindranwale and his followers were under the command of Jarnail Singh Bhindranwale. There were also other forces some named and some unnamed one of them being, Babbar Khalsa that had joined hands with the Bhindranwale and were indirectly under his control. Bhindranwala’s force had actually fortified the Golden Temple area with sophisticated weapons. General Kuldip Singh Brar who led the Operation Blue Star had pointed out at the foreign assistance received because of the foreign weapons that were seized from the Bhindranwale’s army during the operation.The Khalsa army, as it was mostly referred to, had received their training under the aegis of Major General Shabeg Singh, an Indian army officer noted for his service in training of Mukti Bahini volunteers during the Bangladesh Liberation War. Major General Shabeg Singh taught the army military tactics, that he had acquired during his service with the Indian Army.From this data it can be made out that the Khalsa army satisfied the ingredients of the modicum of organization given out in the Tadic case that have acquired the status of customary international law.
Protracted Violence: The operation was not a single event of violence but rather one of the major events in order to bring the situation in Punjab under control and to drill fear in the minds of the other Sikh outfits that were said to be leading the secessionist movement.
Intensity of Fighting:The operation was one of the very intense operations in the history of the Indian Army. As mentioned above, the official number of casualties is very low, lying somewhere in a few hundreds but eyewitnesses and the survivors’ account tell a different tale altogether. As per the survivors, the pilgrims were being let in the Golden Temple from the 2nd of June 1984 but they were not allowed to leave, which is why the casualties were quite high. Bhindranwale and his army is said to be a few above hundred but the civilians who lost their lives are said to be somewhere above seven thousand. The operation saw a parallel attacks on other gurudwaras in Punjab with the deployment of about 1,00,000 army personnel throughout Punjab. The weapons used on the other hand were highly sophisticated ones. The army even broke the stairs leading to the entrance of the temple to bring in tanks. While Bhindranwale was said to be in possession of foreign weapons including machine guns, anti rocket launchers etc. Most parts of Punjab especially Amritsar were brought under Section 144 of the Criminal Procedure Code (CrPC).
From the analysis made above it can be said that the situation in Punjab was surely not just a law and order situation. It resembles heavily with the ingredients of a non-international armed conflict, thus a deeper study needs to be conducted in order to determine the status of the operation blue star. Sikhs for Justice, a private organization based out of United Kingdom had submitted a memorandum to the United Nations Assistant Secretary for Human Rights calling for the setting up of a tribunal to investigate alleged crimes against the members of the Sikh community during the 1984 Operation Blue Star. It reads that it clearly violated the basic humanitarian law provisions for the protection of the civilian population and for the protection of cultural objects and places of worship as set out in the Geneva conventions. The Sikhs have been awaiting justice for the missing members of their families before and even after the operation, destruction of their holy place of worship, the Sikh Reference Library, the killing of the thousands of the civilians who had gathered inside the Golden Temple just to pay obeisance at the Temple and also for the thousands killed during the anti-Sikh pogrom in Delhi and other parts of India after the assassination of the Indian Prime Minister Indira Gandhi who had ordered the attack at the Golden Temple. Once the Operation is considered a NIAC it would be easy to drag the Indian State to the United Nations and submit her to the jurisdiction of a Tribunal, if it is ever set up.
 Ranbir Sandhu, Sant Jarnail Singh Bhindranwale- Life, Mission and Martyrdom, (Sikh Educational and Religious Foundation, 1997).
 Prosecutor v. Dusko Tadic (Appeal Judgment), 15 July 1999, ICTY.
Tadic’s case held that:
…an armed conflict exists wherever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organized armed groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring states or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.
General Brar had said this in an interview to the press during the operation.
 This was revealed by General Kuldip Singh Brar in an interview during the operation.
“Operation Blue Star: Sikh rights group seeks UN probe”, The Indian Express, June 7, 2017 <http://indianexpress.com/article/world/operation-blue-star-sikh-rights-group-seeks-un-probe-4693609/> accessed on May 21st, 2020.
UN at 75: The Necessity of Having a Stronger & More Effective United Nations
October 24, 2020, marks the 75th anniversary of the United Nations. In this context, this article investigates the necessity of having a stronger UN for the benefits of the world’s people. In fact, if one looks at the past, the UN came up in 1945 in response to the Second World War for a more stable, secured, and peaceful world. And the UN has been successful to a larger extent to that goals and objectives, many argue. Kofi Annan, the former UN Secretary-General for instance, wrote that ‘The United Nations, with their rules and institutions, are at the heart of the international system. They encourage States to prevent or settle disputes peacefully. The United Nations speaks for the voiceless, feeds the hungry, protects the displaced, combats organized crime and terrorism, and fights disease across the globe’ (Annan 2015).
If one looks at the history, after the Second World War, there are not so many wars on a large scale or conflicts except some bilateral Wars like Vietnam War or Iraq invasion in Kuwait or US invasion in Afghanistan or Iraq or Syrian crisis or Rohingya crisis. One can claim that the present world is more stable and peaceful than the world before the Second World War. Against this backdrop, Ramesh Thakur rightly observes, ‘On balance, the world has been a better and safer place with the UN than would have been the case without it (Thakur 2009:2). And it will not be wrong to claim that the United Nations Security Council (UNSC) is playing a crucial role in this regard, focusing both on ‘hard’ and ‘soft’ security issues. Hard security issues ranges from nuclear threat to international terrorism and soft security issues include human security issues to human rights to international criminal justice and international sanctions (For details see, Thakur, 2009).
The UN is not only concerned about international peace and security but also concerned about economic and social issues. There are several UN organizations e.g. United Nations Development Programme (UNDP), World Food Programme (WFP) or the United Nations High Commission for Refugees (UNHCR) which is involved in socio-economic issues that impact millions of people globally.
First, one can look at the role of the UN General Assembly to understand the necessity of having a more robust UN. It is the core organ of the UN. It is the only organ in which all the member countries are represented all of the time. The role of the UN includes to pass resolutions and to create subsidiary agencies to deal with particular issues (Barkin 2006: 58). UN General Assembly works as a forum where the world’s states meet and discuss the pressing global problems. In this context, Eleanor Albert, Leo Schwartz, and Alexandra Abell write that ‘Since its inception seventy-one years ago, the United Nations General Assembly has been a forum for lofty declarations, sometimes audacious rhetoric, and rigorous debate over the world’s most vexing issues, from poverty and development to peace and security’ (Albert et al. 2016). However, in September 2015, the Assembly agreed on a set of 17 Sustainable Development Goals, contained in the outcome document of the United Nations summit for the adoption of the post-2015 development agenda (resolution 70/1). Notably, the implementation of SDG goals will have broader implications for the world’s people.
In addition, the Assembly may also take action in cases of a threat to the peace, breach of peace or act of aggression, when the Security Council has failed to act owing to the negative vote of a permanent member. In such instances, according to its “Uniting for Peace” resolution of 3 November 1950, the Assembly may consider the matter immediately and recommend to its Members collective measures to maintain or restore international peace and security.
Second, one should also look at the role of the Security Council to make the case of having a stronger United Nations. The UN Security Council is the most powerful security-related organization in contemporary world politics. As the Charter of the United Nations says: ‘the Security Council has primary responsibility for the maintenance of international peace and security (Article 24). The Security Council takes the lead in determining the existence of a threat to the peace or act of aggression. It calls upon the parties to a dispute to settle it by peaceful means and recommends methods of adjustment or terms of the settlement. In some cases, the Security Council can resort to imposing sanctions or even authorize the use of force to maintain or restore international peace and security’
In contemporary world politics, the UN Security Council is the most potent security-related organization because it is the only recognized and legitimate international organ which deals with international peace and security. In this regard, Justin Morris and Nicholas J. Wheeler claim that ‘The United Nations Security Council is at the heart of the world’s collective security system’ (Morris and Wheeler 2007: 214). The UNSC play role by passing Resolutions regarding maintaining international peace and security, determining threats to peace and security and finally undertaking peacekeeping operations.
Decisions made by the Security Council are known as the Security Council resolutions. Examples of Security Council resolutions include Resolution 794 (1992), which authorized military intervention in Somalia on humanitarian ground, or the resolution 1325 (2000), which called on states to recognize the role of women in peace, and security and post-conflict situations. In the UN Security Council Working method Handbook, it is noted that the UNSC has adopted over 2,000 resolutions relating to conflict and post-conflict situations around the globe. Another report, titled Repertoire of the Practice of the Security Council noted that between 2008 and 2009, the Security Council adopted 35 out of 65 resolutions in 2008 (53.8 %), and 22 out of 47 resolutions in 2009 under Chapter VII (46. 8 %) concerning threats to the peace, breaches of the peace or acts of aggression. The report also notes about several UN resolutions authorizing United Nations peacekeeping missions. In connection with the mission deployed in the Central African Republic and Chad, the Council approved the deployment of a United Nations military component for the first time in 2009 to follow up operations by the European Union in Chad and Central African Republic (EUFORChad/CAR). The Council continued to authorize enforcement action for United Nations peacekeeping missions in Côte d’Ivoire (UNOCI), Darfur/Sudan (UNAMID), the Democratic Republic of the Congo (MONUC), Lebanon (UNIFIL) and Sudan (UNMIS). This increased number of UNSC Resolutions dealing with international peace and security reinforces its legitimacy and power as a security organization.
The critical question that comes into the forefront is how much UNSC can implement its mandates neutrally or independently in terms of maintaining world peace and security. The critiques bring the example of Iraq war (2003) where UNSC ‘faces a crisis of legitimacy because of its inability to constrain the unilaterally inclined hegemonic United States.’ (Morris and Wheeler 2007:214). Another critical question is the role of UNSC in resolving the long-standing Syrian crisis or the Rohingya refugee crisis.
It is undeniable the fact that UNSC cannot function with its full potentialities due to the challenges and limitations it faces because ‘in their pursuit of raisons d’état, states use whatever institutions are available to serve their interests’ (Weiss 2003: 151). And here comes the politics in the Security Council which is highly manifested in the past. Against this backdrop, Weiss correctly observes, ‘the politics of the UN system- not only the principal organs of UN like Security Council or General Assembly is highly politicized but even ‘technical’ organizations, for instance, World Health Organization or the Universal Postal Union continue to reflect the global division between the so-called wealthy, industrialized North and the less advantaged, developing South’ (Weiss 2009: 271).
It is, therefore, states and particularly the P5 want to use the Security Council as a means to uphold its interest. Gareth Evans rightly points out ‘for most of its history the Security Council has been a prisoner of great power manoeuvring…’ (Evans 2009:Xi). Hence, using veto by the P5 remains a significant challenge for the UNSC to work in its fullest potentials. In the recent case of the Rohingya refugee crisis, the UNSC is unable to take adequate measures due to veto power used by China and Russia. However, the UNSC is responsible for maintaining world peace and security.
The bottomline is that there is no alternative to having a stronger and more effective UN because it is the only hope for millions of people around the world. The UN is an inevitable international organization in this turbulent world despite its criticism or limitations.Thus, it becomes essential for the P5 nations to think about the broader benefits of the world’s people instead of their narrowly defined interest in the case of using veto power. And the world also needs to acknowledge that the UN reform has been a reality to ensure the neutrality and objectivity of the United Nations for a more peaceful, stable, secured world.
The United Nations and the Neglected Conflict of Kashmir
The principle of ‘right of self-determination’ and its applicability to the 72-year-old Kashmir conflict needs to be considered during the 75th session of the Fourth Committee of the United Nations General Assembly that is taking place between October 8 to November 10, 2020 at its headquarters in New York. The Committee will discuss and deliberate the issues related to international conflicts and decolonization. What I do hope to offer is an unstarry-eyed view of the fate of self-determination in Kashmir; and, the indispensability of convincing the United Nations that international peace and security would be strengthened, not weakened, by resolving the Kashmir conflict to the satisfaction of all parties concerned..
The self-determination of peoples is a basic principle of the United Nation Charter, which has been reaffirmed in the Universal Declaration of Human Rights, and applied countless times to the settlement of international disputes.
The concept seems to be as old as Government itself and was the basis of French and American revolutions. In 1916, President Wilson stated that self-determination is not a mere phrase. He said that it is an imperative principle of action and included it in the famous 14-point charter. This gave a prominence to the principle. Self-determination as conceived by Wilson was an imprecise amalgamation of several strands of thought, some long associated in his mind with the notion of “self-determination,” others hatched as a result or wartime developments, but all imbued with a general spirit of democracy.
Self- determination is a principle that has been developed in philosophic thought and practice for the last several hundred years. It is an idea that has caused people throughout the world to rise up and shed the chains of oppressive governments at great risk.
Finally, in 1945 the establishment of the UN gave a new dimension to the principle of self-determination. It was made one of the objectives, which the UN would seek to achieve, along with equal rights of all nations. Article 1.2 of the Charter of the Untied Nations reads: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.”
From 1952 onwards, the General Assembly of the UN adopted a series of resolutions proclaiming the right to self-determination. The two most important of these are resolution 1514 (XV) of 14 December 1960 and resolution 2625 (XXV) of 24 October 1970. Resolution 1514 was seen almost exclusively as part of process of decolonization. 1514 is entitled: Declaration on the Granting of Independence to Colonial Countries and Peoples.”
International Court of Justice considered the several resolutions on decolonization process and noted: “The subsequent development of International Law in regard to non-self governing territories as enshrined in the Charter of the UN made the principle of self-determination applicable to all of them.” This opinion establishes the self-determination as the basic principle for the process of de-colonization.
The principle of self-determination in modern times can be defined as the right of peoples to determine their own political status and pursue their own economic, social and cultural policies. Self-determination in its literal meaning or at a terminological level also implies the right [of a people] to express itself to organize in whatever way it wants. A people must be free to express their will without interference or threat of interference from a controlling authority. This includes alien domination, foreign occupation and colonial rule.
Although, the applicability of the principle of the self-determination to the specific case of Jammu and Kashmir has been explicitly recognized by the United Nations. It was upheld equally by India and Pakistan when the Kashmir dispute was brought before the Security Council. Since, on the establishment of India and Pakistan as sovereign states, Jammu and Kashmir was not part of the territory of either, the two countries entered into an agreement to allow its people to exercise their right of self-determination under impartial auspices and in conditions free from coercion from either side. The agreement is embodied in the resolutions of the United Nations Security Council, explicitly accepted by both Governments. It is binding on both Governments and no allegation of non-performance of any of its provisions by either side can render it inoperative.
It is apparent from the record of the Security Council that India articulated the principle, accepted the practical shape the Security Council gave to it and freely participated in negotiations regarding the modalities involved. However, when developments inside Jammu & Kashmir made her doubt her chances of winning the plebiscite, she changed her stand and pleaded that she was no longer bound by the agreement. Of course, she deployed ample arguments to justify the somersault. But even though the arguments were of a legal or quasi-legal nature, she rejected a reference to the World Court to pronounce on their merits. This is how the dispute became frozen with calamitous consequences for Kashmir most of all, with heavy cost for Pakistan and with none too happy results for India itself.
By all customary moral and legal yardsticks, 23 million Kashmiris from both sides of the Ceasefire Line (CFL) enjoy a right to self-determination. Kashmir’s legal history entitles it to self-determination from Indian domination every bit as much as Eritrea’s historical independence entitled it to self-determination from Ethiopian domination.
India’s gruesome human rights violations in Kashmir also militate in favor of self-determination every bit as much as Yugoslavia’s human rights violations and ethnic cleansing created a right to self-determination in Bosnia and Kosovo. Kashmir’s history of social and religious tranquility further bolsters its claim to self-determination every bit as much as East Timor’s history of domestic peace before Indonesia’s annexation in 1975 entitled it to self-determination in 1999.
If law and morality are overwhelmingly on the side of Kashmiri self-determination, then why has that quest been thwarted for 72 years? The answer is self-evident: the military might of India. India is too militarily powerful, including a nuclear arsenal, and too economically mesmerizing to expect the United States, the United Nations, NATO, or the European Union to intervene. The United States is reluctant to exert moral suasion or pressure to prod India because it covets more India’s alluring economic markets and collaboration in fighting global terrorism. Further, the size and wealth of the Indian lobby in the United States dwarfs the corresponding lobbies supporting Kashmir.
The world powers need to understand that there is no way the dispute can be settled once and for all except in harmony with the people’s will, and there is no way the people’s will can be ascertained except through an impartial vote. Secondly, there are no insuperable obstacles to the setting up of a plebiscite administration in Kashmir under the aegis of the United Nations. The world organization has proved its ability, even in the most forbidding circumstances, to institute an electoral process under its supervision and control and with the help of a neutral peace‑keeping force. The striking example of this is Namibia, which was peacefully brought to independence after seven decades of occupation and control by South Africa; East Timor and Southern Sudan, which got independence only through the intervention of the United Nations. Thirdly, as Sir Owen Dixon, the United Nations Representative, envisaged seven decades ago, the plebiscite can be so regionalized that none of the different zones of the state will be forced to accept an outcome contrary to its wishes.
In conclusion, a sincere and serious effort towards a just settlement of the Kashmir dispute must squarely deal with the realities of the situation and fully respond to the people’s rights involved in it. Indeed, any process that ignores the wishes of the people of Kashmir and is designed to sidetrack the United Nations will not only prove to be an exercise in futility but can also cause incalculable human and political damage.
UN anniversary’s gloomy takeaways
On its 75th anniversary and amid the global COVID-19 pandemic, the United Nations has for the first time convened world leaders mainly in an online format to seek action and solutions for a world in crisis.
The UNO’s predecessor, the League of Nations, wrapped up its work with the outbreak of World War 2, but the further the start of the present United Nations slides back in history, the more skeptical assessments of its performance are being heard today. How come?
The United Nations Organization was created by the victorious nations shortly after the end of the Second World War, but the idea of creating a new international organization tasked with maintaining global peace and security was actually floated by members of the anti-Hitler coalition even before the war was over. During their August 14, 1941 meeting at the British naval station Argentia (Newfoundland), US President Franklin Roosevelt and British Prime Minister Winston Churchill inked the Atlantic Charter, which defined the two countries’ goals in the war against Nazi Germany, and outlined the first sketches of the post-war world order. The Soviet Union joined the declaration on September 24 of that same year. On January 1, 1942, representatives of 26 Allied countries endorsed the Atlantic Charter and signed the United Nations Declaration. Welcomed as the idea of creating a new organization was by everyone, however, there still were numerous disagreements regarding its tasks, goals and powers.
At a conference held in Moscow on October 19-30, 1943, the foreign ministers of the USSR, the US and Great Britain (Vyacheslav Molotov, Cordell Hull and Anthony Eden), signed the Declaration of Four Nations on General Security (it was also signed by China’s ambassador to the USSR Fu Bingchang), where the parties pledged to fast-track the creation of an international organization to maintain peace and security. The final agreement on the creation of the United Nations Organization was reached in March 1945 during the Yalta Conference by the leaders of the three Allied Powers – Josef Stalin, Franklin Roosevelt and Winston Churchill.
It was established that the UN would be based on the principle of unanimity of the great powers – permanent members of the Security Council with a veto right. Harry Truman, who succeeded Franklin Roosevelt, who died in April 1945, was openly critical of the agreement, but during a conference in San Francisco, where Soviet and US representatives locked horns over a number of issues pertaining to the UN Charter, the Soviet position prevailed. The sides eventually reached a compromise whereby the UN General Assembly could discuss any issues, but did not have the right to take decisions binding on the UN member states.
On June 26, 1945, representatives of 50 countries met in San Francisco to sign the UN Charter. On October 24, 1945, the Soviet Union became the 29th state to have submitted the instrument of ratification, thus securing the necessary number of votes for the Charter’s entry into force. Since 1948, October 24 has been marked as United Nations Day.
The status of the United Nations Organization, paid for by tens of millions of lives perished in World War II, went unquestioned for quite some time, ensuring for more than half a century peace in Europe and a relatively predictable situation globally. Over time, however, even the most durable world order is bound to be put to a test.
At the turn of the 1990s, the bipolar system of international relations and the Cold War were replaced by a new world order based on the political and economic predominance of the United States and its closest allies. By historical standards, however, this period proved pretty short-lived since the world is too complicated to unconditionally kowtow to the principles of the Washington Consensus. By the close of the 20th century and the start of the 21st, new centers of power and integration projects began to emerge, initiated by countries in Eurasia and Latin America.
Serious doubts about the reliability of the existing system of international security appeared already in 1999 with NATO’s enlargement to the east to incorporate Hungary, Poland and the Czech Republic – the first such process since the end of WW2. In that very same year, the forces of the North Atlantic Alliance, sidestepping the UN Security Council, launched bombing raids against Yugoslavia, thus throwing in question the entire system of post-war treaties. Since then, almost every US-initiated military operation in the world has been conducted illegitimately and classified by the UN Security Council as an act of aggression and condemned by both Russia and China, which insist that any use of force in international relations, be it political, economic or military, should come exclusively as a result of consensus of all members of the Security Council.
The veto right by a permanent member of the Security Council to block any decision, even if it is approved by all other members, remains the backbone of the entire system of international security. Everyone understands this, but not everyone is ready to come to terms with it.
The UN’s presence in the world after the end of the inter-bloc confrontation has significantly increased with its mandate transcending military aspects and now including humanitarian and social issues.
However, the world is facing the growing threat of numerous conflicts flaring up that can’t be resolved without a consensual decision by the key UN member states which, in turn, has proved to be extremely hard to achieve. It’s not just about the five permanent members of the UN Security Council, as even the content of international documents is being disputed now. Who would possibly object to the need to combat the activities of terrorist and extremist organizations? And still, practice shows that the term “terrorism” carries a different meaning for European countries and, for example, those in the Middle East. As a result, UN Security Council resolutions on the settlement of contemporary conflicts in this region are actually ignored. Civil wars in Libya and Syria, as well as the extremely difficult situation in Iraq, caused to a large extent by the interference of the United States and its allies, as well as by the activities of network extremists, have added to the decades-long Palestinian-Israeli conflict. Adding to this is the rising threat posed by drug and cyber terrorism.
With the situation being as it is, the United Nations is facing a growing wave of criticism. The organization has been criticized before – in 1993 the UN mission in Somalia fell though, and in 1994, the UN failed to prevent genocide in Rwanda, stop hostilities in Congo and the civil war in the Balkans, which led to an armed intervention by NATO. The actions by representatives of the UN and organizations it helped create in the Middle East often lack their declared impartiality.
While during the Cold War era decision-making mechanisms in the international arena were based on the decisions by the Yalta and Potsdam conferences of 1945, the 1975 Helsinki Final Act of the Conference on Security and Cooperation in Europe and a raft of arms control treaties, after the period of confrontation ended, so did the period of transparent “rules of the game” in world politics. Moreover, many non-state actors have emerged and now wield serious financial and political influence. Nevertheless, the UN remains the only organization that prevents the existing structure of global security from falling apart in the extremely difficult circumstances of this day and age.
There have been growing demands to bring the UN and its Security Council in line with modern-day realities. During the 75 years of the organization’s existence, the number of its member states has increased from 50 to 193, as have the shortcomings of many of its agencies. Many criticize the UN’s peacekeeping operations as haphazard, extremely selective and prone to double standards. The organization has been repeatedly called out for being in a financial crisis. Many developing countries (states of the “global South”) are trying to limit the veto power enjoyed by the permanent members of the Security Council and are demanding more equitable geographical representation in the Council. Developed countries such as Germany, Japan, Brazil and India also seek the status of permanent members of the UN Security Council. They propose to expand the Council to 25 members, with two permanent seats reserved for Asia and Africa and one each for Latin America and Western Europe.
In 2017, US President Donald Trump came up with a plan to reform the UN, proposing, among other things, to optimize the organization’s expenses and get more return for every dollar invested in it. Well, by the efficiency of the UN’s work Trump apparently means decisions that would serve America’s best interests.
Washington’s tactic regarding the Joint Comprehensive Plan of Action (JCPOA) on the Iranian nuclear program is very indicative here. In 2015, Iran and the 5 + 1 group of states (the five permanent members of the UN Security Council – the United States, Russia, China, Britain and France, as well as Germany) signed the so-called Iran nuclear deal, according to which Tehran refused to develop nuclear weapons in exchange for a gradual lifting of international sanctions. However, in 2018, Washington pulled out of the accord and announced new sanctions against the Islamic Republic. On August 20, 2020, the United States sent a letter to the UN Security Council announcing the launch of the so-called sanctions snapback process whereby any signatory to the 2015 deal could re-impose sanctions against Iran if it found that Tehran was not fulfilling its obligations under the agreement. The idea was simple: it was enough to submit a request to the UN Security Council to launch the snapback mechanism to force the Security Council to raise the issue of continued implementation of the entire Iranian nuclear deal. The Americans would then use their veto power and the document would simply cease to exist. This didn’t happen though as all other permanent members of the Security Council ignored the US request. Therefore, following the necessary 30-day pause, on September 21, the US imposed unilateral sanctions against Tehran. A paradoxical situation ensued: de jure, no sanctions exist for most countries, but de facto, Washington feels free to punish anyone who dares to violate these “nonexistent” restrictions and continues to cooperate with Tehran pursuant to Security Council Resolution 2231.
The majority of the permanent members of the Security Council want to more or less keep in place the UN’s current decision-making mechanisms, which give them obvious privileges while simultaneously allowing them to solve the main task the UN was originally created for, i.e. the prevention of major wars between great powers. Besides, no comprehensive reform of the organization appears likely since there are no criteria all member countries would agree with. Therefore, despite all the critical barbs, the organization will continue in its classical form, at least for now. Meanwhile, the world finds itself in a state of complete uncertainty caught between the remaining fragments of a failed attempt to build a unipolar system and institutions inherited from the second half of the 20th century.
Russia’s position on the UN reform remains fairly balanced. Moscow believes that changes should not affect two key provisions – the approval of the proposed plan by the overwhelming majority of the participating countries, and the preservation of the Security Council’s prerogatives, including the right of veto.
Russia stands for the development of the UN’s peacekeeping potential, which it believes is not fully in line with the tasks currently facing the organization, and for wider cross-border social and humanitarian cooperation necessitated by the COVID-19 pandemic. The way out of the socio-economic crisis caused by this epidemic will be long and extremely difficult, therefore it is imperative to stop dividing countries into “us” and “them,” and start developing all the necessary mechanisms of cooperation. Russia’s Foreign Minister Sergei Lavrov outlined these priorities in his speech at the 75th anniversary session of the UN General Assembly on behalf of the CSTO member states.
“The fate of the United Nations is in the hands of its member states. Just like in 1945, we need to cast aside our differences and come together for the sake of delivering on common objectives, based on equitable dialogue and mutual respect for one another’s interests. The UN offers all the necessary conditions to this effect,” Lavrov emphasized.
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