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United Nations

Burhan Wani's Martyrdom: International Law Perspectives on a Lawful Combatant

Strategic Insights

— 2 min read

As yet another anniversary of Burhan Wani's martyrdom passes, India's pro-regime media branding him a terrorist undermines international law's definition of a lawful combatant engaged in a legitimate struggle for self-determination. International law recognizes the right to resist occupation, including through armed means, as a lawful act. Burhan Wani's life and death must be situated within this framework.

Key Takeaways:

  • The legal status of Jammu and Kashmir is internationally acknowledged as a disputed territory, not a settled entity under Indian jurisdiction.
  • Inhabitants of an occupied territory, like Kashmir, cannot be forced to swear loyalty to the occupying power, as per the Hague Regulations of 1907.
  • International law prohibits acquisition of territory through the use of force, as articulated in the Kellogg-Briand Pact and reaffirmed in the UN Charter.
  • The occupation of Kashmir by India is considered illegal, and the underlying sovereignty of the occupied people remains intact.
  • The doctrine 'a state remains the same international person' holds that occupation does not dissolve statehood nor does it merge the occupied territory into the occupier.
  • India's unilateral declaration that Kashmir is an integral part of its union is a political act devoid of legal force and cannot alter the legal status of the territory or extinguish the right of its people to resist occupation.
  • The right to resist occupation, including through armed means, is codified in Article 1(4) of Additional Protocol I to the 1949 Geneva Conventions.
  • UN General Assembly Resolution 3314 carves out an exception for struggles against colonial domination and foreign occupation, affirming that such struggles fall outside the definition of aggression.
  • The characterization of armed movements in occupied territory, like Burhan Wani's, lies with international law and the institutions mandated to uphold it, not with the occupier.

Statistics:

  • The dispute over Kashmir's legal status has been ongoing for decades, with no resolution in sight.
  • Over 70,000 people have been killed in the Kashmir conflict since 1989.
  • The majority of the Kashmiri people, including 70% of the population, sympathize with the separatist movement.
  • The Kashmir dispute has been recognized as a disputed territory by the United Nations, the European Union, and the International Committee of the Red Cross.

Sources:

  • The Hague Regulations of 1907, specifically Article 45.
  • The Kellogg-Briand Pact.
  • The United Nations Charter, Article 2(4).
  • International Committee of the Red Cross, Statement, 4 August 2004.
  • United Nations General Assembly Resolutions 3061, 674, and 3314.
  • United Nations Commission for India and Pakistan (UNCIP) deliberations in Switzerland.
  • Article 1(4) of Additional Protocol I to the 1949 Geneva Conventions.
  • General Assembly Resolution 37/43, adopted on 3 December 1982.

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