There should be no doubt in anyone’s mind that the August 5 move by India’s current government to annex occupied Kashmir is crucial for the advancement of Project Hindutva helmed by Narendra Modi, the prime minister of India.
Here’s how it goes.
Bharatiya Janata Party was begotten from the fascist womb of Rashtriya Swayamsevak Sangh (RSS). Modi, who leads the BJP, was an RSS apparatchik or, in Sangh terminology, a paracharak. Earlier, another Sangh paracharak, Atal Bihari Vajpayee, also rose to become India’s prime minister.
The provenance and the ideology of RSS have been definitively chronicled and analysed by eminent Indian jurist and writer, A G Noorani in a recently-published book, RSS - A Menace for India. Noorani says the RSS is a fascist, deceitful and communal organisation. In a pre-book launch interview to Huffpost, Noorani said, “Look, this is the party which floated the VHP [Vishwa Hindu Parishad] in 1964, Jan Sangh in 1951 and the BJP in 1980… You see, people say, ‘let it become a conservative and non-communal party.’ You can’t do that. You can’t ask the Pope to become Protestant. This is their philosophy and outlook.”
Noorani opens the book with these lines: “What is at stake is not only the Indian Dream. What is at stake is the soul of India.”
If this is not unequivocal, I don’t know what is.
Occupied Kashmir, annexed and demoted in constitutional status, is the thin end of this fascist wedge. Pre-dominantly Muslim, it provides the best opening hand to Modi’s Fascist Project because his Hindu-Hindutva constituency stands behind him and he commands and can commandeer the large coercive machinery of the Indian state.
In other words, if Kashmiris can be crushed, the Hindu vote increases, the ‘Pakistan problem’ is resolved (at least that’s the thinking), the Indian Muslims can be further cowed down, it would be a veritable political bonanza. Next objectives would be to target other minorities and Dalits and centralise power, moving away from the federalist-constitutional structures and compact.
But while the overall fascism of the RSS is India’s headache and Indians are welcome to let the Sangh reincarnate European fascism in that land, Kashmir is not India’s internal issue. A disputed and occupied land whose people still await the right to self-determination, the project is already becoming the precursor to a genocide.
Genocide Watch has issued a Genocide Alert with reference to Occupied and annexed Kashmir. The non-governmental watchdog says the alert is based on Professor Barbara Harff’s risk factors for genocide. It lists them with reference to Kashmir as:
In other words, this makes a perfect case for humanitarian intervention.
The Dutch scholar, diplomat and politician, Hugo Grotius, generally considered to be the father of international law, wrote a canonical book, On the Laws of War and Peace. In that he advanced two theories of humanitarian intervention: Theory of International Law Enforcement and Guardianship Theory.
Grotius’ argument in relation to the first theory is that if international law is to be taken as a normative order, then violations of that order must be punished. Corollary: when states use force externally in response to human rights violations, the primary purpose is to punish the violation of international norms in order to protect the integrity of international law as a normative order. Essentially, that all states are entitled to punish violations of the law of nature and the positive law of nations, irrespective of where or against whom the violations occur.
The problem with this approach is a) who sets the norm; b) how is the unilateral, punitive action of a state against another consistent with the principle of sovereign equality; c) how is the punitive approach consistent with the primarily defensive character of humanitarian intervention; d) when and how a state/or states intervene in a humanitarian crisis?
At another place in his book under the heading Causes of Undertaking War for Others, Grotius argues that the law of nature authorises the states to serve as temporary guardians for foreign nationals abroad who have suffered intolerable cruelties at the hands of their own state. This denotes a fiduciary relationship and obligations to use force solely for the benefit of a foreign people.
Critics are not convinced and point out that fiduciary concepts such as “guardianship” and “trusteeship” have a disturbing historical legacy, especially in relation to colonial powers. Also, the theory allows each state to judge for itself the legality of its intervention. If allowed, there can be no limiting principle on its potential for abuse.
So, what next? Modern international law experts have generally argued for taking the guardianship-trusteeship idea and multilateralising it — i.e., wed the UN Charter’s collective security regime to the juridical structure of humanitarian intervention as authorised by the UN Security Council.
Steps
Security Council green-lights humanitarian intervention and entrusts states to use force in a fiduciary capacity. As Evan Criddle argues in a paper Three Grotian Theories of Humanitarian Intervention, “Like other fiduciaries in private and public law, states that engage in humanitarian intervention hold discretionary power over the legal and practical interests of their designated beneficiaries (foreign nationals), and they bear a concomitant fiduciary obligation to exercise this power exclusively for their beneficiaries’ benefit.”
Even so, The concept faces many problem: first, how to marry the ideal (universal concept of human rights) with (a) state sovereignty and (b) subjective assessments of state(s) that can intervene. Second: how can one ensure that the seeming altruism is not tainted by considerations of realpolitik. Third: what happens if the UNSC cannot reach a consensus or one of the Permanent Five decides to veto the consensus over intervention? Should the powerful state choose to circumvent the UNSC and go alone or create a coalition of the willing outside the juridical structure of humanitarian intervention?
In the case of Kashmir, the problems of state sovereignty, subjective assessments and consideration of realpolitik are not relevant because Kashmir is an occupied and disputed land. It would be interesting to see how legal experts would apply the international law of occupation to Kashmir (which, incidentally is heavily criticised by human rights advocates), India’s breaches of its provisions, given the more encompassing, modern definition of occupation.
The essential point is that humanitarian intervention, in the end, is about use of force, multilaterally or unilaterally, whether in keeping with the juridical requirements or through a unilateral military push. In the latter instance, Indira Gandhi’s letter to President Nixon in the run-up to India’s military push into erstwhile East Pakistan was an attempt to present the East Pakistan situation as the unfolding of a humanitarian crisis and to create a quasi-legal justification for Indian military action there.
The question for Pakistan thus would be: Can it effectively make a case for a multilateral, UNSC-sanctioned intervention in Occupied Kashmir; if not, can it unilaterally go for a military push?
These questions are important not in relation to the facts on the ground with reference to India’s occupation and brutal oppression of Kashmiri people — those facts are known and recorded — but the reality and do-ability of what can be done, or not done.
The writer is a former News Editor of TFT and reluctantly tweets @ejazhaider. This article is largely derived from a presentation given at a recent conference in Islamabad
Here’s how it goes.
Bharatiya Janata Party was begotten from the fascist womb of Rashtriya Swayamsevak Sangh (RSS). Modi, who leads the BJP, was an RSS apparatchik or, in Sangh terminology, a paracharak. Earlier, another Sangh paracharak, Atal Bihari Vajpayee, also rose to become India’s prime minister.
The provenance and the ideology of RSS have been definitively chronicled and analysed by eminent Indian jurist and writer, A G Noorani in a recently-published book, RSS - A Menace for India. Noorani says the RSS is a fascist, deceitful and communal organisation. In a pre-book launch interview to Huffpost, Noorani said, “Look, this is the party which floated the VHP [Vishwa Hindu Parishad] in 1964, Jan Sangh in 1951 and the BJP in 1980… You see, people say, ‘let it become a conservative and non-communal party.’ You can’t do that. You can’t ask the Pope to become Protestant. This is their philosophy and outlook.”
Noorani opens the book with these lines: “What is at stake is not only the Indian Dream. What is at stake is the soul of India.”
If this is not unequivocal, I don’t know what is.
Occupied Kashmir, annexed and demoted in constitutional status, is the thin end of this fascist wedge. Pre-dominantly Muslim, it provides the best opening hand to Modi’s Fascist Project because his Hindu-Hindutva constituency stands behind him and he commands and can commandeer the large coercive machinery of the Indian state.
In other words, if Kashmiris can be crushed, the Hindu vote increases, the ‘Pakistan problem’ is resolved (at least that’s the thinking), the Indian Muslims can be further cowed down, it would be a veritable political bonanza. Next objectives would be to target other minorities and Dalits and centralise power, moving away from the federalist-constitutional structures and compact.
In the case of Kashmir, the problems of state sovereignty, subjective assessments and consideration of realpolitik are not relevant because Kashmir is an occupied and disputed land
But while the overall fascism of the RSS is India’s headache and Indians are welcome to let the Sangh reincarnate European fascism in that land, Kashmir is not India’s internal issue. A disputed and occupied land whose people still await the right to self-determination, the project is already becoming the precursor to a genocide.
Genocide Watch has issued a Genocide Alert with reference to Occupied and annexed Kashmir. The non-governmental watchdog says the alert is based on Professor Barbara Harff’s risk factors for genocide. It lists them with reference to Kashmir as:
- Prior genocidal massacres and continuing impunity for such killings;
- Continued armed conflict between India and Pakistan over border areas in Kashmir;
- An exclusionary ideology of “Hindutva” – India as [a] Hindu nation – by Modi’s ruling BJP;
- Authoritarian military rule without legal restraints imposed by civilian Indian officials;
- Rule by a minority military force (Hindus and Sikhs) over majority Muslim citizens;
- Cut-off of communications and outside access by internet, media, and trade;
- Widespread violations of basic human rights – torture, rape, 2-year detentions without charge, arbitrary arrests and deportations of Muslim political and human rights leaders.
In other words, this makes a perfect case for humanitarian intervention.
The Dutch scholar, diplomat and politician, Hugo Grotius, generally considered to be the father of international law, wrote a canonical book, On the Laws of War and Peace. In that he advanced two theories of humanitarian intervention: Theory of International Law Enforcement and Guardianship Theory.
Grotius’ argument in relation to the first theory is that if international law is to be taken as a normative order, then violations of that order must be punished. Corollary: when states use force externally in response to human rights violations, the primary purpose is to punish the violation of international norms in order to protect the integrity of international law as a normative order. Essentially, that all states are entitled to punish violations of the law of nature and the positive law of nations, irrespective of where or against whom the violations occur.
The problem with this approach is a) who sets the norm; b) how is the unilateral, punitive action of a state against another consistent with the principle of sovereign equality; c) how is the punitive approach consistent with the primarily defensive character of humanitarian intervention; d) when and how a state/or states intervene in a humanitarian crisis?
At another place in his book under the heading Causes of Undertaking War for Others, Grotius argues that the law of nature authorises the states to serve as temporary guardians for foreign nationals abroad who have suffered intolerable cruelties at the hands of their own state. This denotes a fiduciary relationship and obligations to use force solely for the benefit of a foreign people.
Critics are not convinced and point out that fiduciary concepts such as “guardianship” and “trusteeship” have a disturbing historical legacy, especially in relation to colonial powers. Also, the theory allows each state to judge for itself the legality of its intervention. If allowed, there can be no limiting principle on its potential for abuse.
So, what next? Modern international law experts have generally argued for taking the guardianship-trusteeship idea and multilateralising it — i.e., wed the UN Charter’s collective security regime to the juridical structure of humanitarian intervention as authorised by the UN Security Council.
Steps
Security Council green-lights humanitarian intervention and entrusts states to use force in a fiduciary capacity. As Evan Criddle argues in a paper Three Grotian Theories of Humanitarian Intervention, “Like other fiduciaries in private and public law, states that engage in humanitarian intervention hold discretionary power over the legal and practical interests of their designated beneficiaries (foreign nationals), and they bear a concomitant fiduciary obligation to exercise this power exclusively for their beneficiaries’ benefit.”
Even so, The concept faces many problem: first, how to marry the ideal (universal concept of human rights) with (a) state sovereignty and (b) subjective assessments of state(s) that can intervene. Second: how can one ensure that the seeming altruism is not tainted by considerations of realpolitik. Third: what happens if the UNSC cannot reach a consensus or one of the Permanent Five decides to veto the consensus over intervention? Should the powerful state choose to circumvent the UNSC and go alone or create a coalition of the willing outside the juridical structure of humanitarian intervention?
In the case of Kashmir, the problems of state sovereignty, subjective assessments and consideration of realpolitik are not relevant because Kashmir is an occupied and disputed land. It would be interesting to see how legal experts would apply the international law of occupation to Kashmir (which, incidentally is heavily criticised by human rights advocates), India’s breaches of its provisions, given the more encompassing, modern definition of occupation.
The essential point is that humanitarian intervention, in the end, is about use of force, multilaterally or unilaterally, whether in keeping with the juridical requirements or through a unilateral military push. In the latter instance, Indira Gandhi’s letter to President Nixon in the run-up to India’s military push into erstwhile East Pakistan was an attempt to present the East Pakistan situation as the unfolding of a humanitarian crisis and to create a quasi-legal justification for Indian military action there.
The question for Pakistan thus would be: Can it effectively make a case for a multilateral, UNSC-sanctioned intervention in Occupied Kashmir; if not, can it unilaterally go for a military push?
These questions are important not in relation to the facts on the ground with reference to India’s occupation and brutal oppression of Kashmiri people — those facts are known and recorded — but the reality and do-ability of what can be done, or not done.
The writer is a former News Editor of TFT and reluctantly tweets @ejazhaider. This article is largely derived from a presentation given at a recent conference in Islamabad