Balakot: Are There Fact Finding Options In International Law?

On 26 February 2019, twelve Mirage 2000H jets of the Indian Air Force carried out air strikes inside Pakistan, situated at a place called Balakot. The airstrikes followed the dastardly Pulwama attack where a convoy of vehicles carrying Indian security personnel on the Jammu Srinagar National Highway at Pulwama was attacked by the terrorists on 14th February 2019, killing nearly 40 CRPF jawans.

The Indian officials have termed the Balakot airstrike a "pre-emptive non-military operation". The attack was carried out against a terrorist group in the territory of Pakistan - Jaish e Mohammed(JeM)- which had claimed responsibility for Pulwama attack. India stated that it was constrained to perform the airstrikes after repeatedly failing to fetch effective co-operation from State of Pakistan in counter-terrorism activities in the region.

Apart from the on-going tensions and politicised narratives on counter-terrorism portrayed in mainstream media, there is a humanitarian dimension to the incidents mentioned. The residents of the village named Jaba, near to the bombed area, raised an important question of humanitarian relevance, before the conscience of global humanity. They asked whether the villagers of the Jaba are being called terrorists. The distinctive identity between a civilian and a terrorist is most often blurred than the identity between civilian and military personnel. While the Indian media houses float a number of 200-300 human casualties, Jaba villagers claim that there has been no casualty. To the contrary, a report from Wion Channel, claiming some level of reliability, discloses a figure of 30 to 40 human casualties. Interestingly, none of the States in the conflict have made a reliable official statement about the death toll at Balakot or about the casualties in the related hostilities. The divergent and confounding responses have muddled the fact situation.

There are also several other questions of fact such as the Indian intelligence failure at Pulwama, Pakistan's double standards as to peace initiative and counter-terrorism co-operation, and the environmental impact of the Balakot bombing etc. - the truth of which global citizens need to know. While the humanitarian crisis in the LOC region is going unnoticed, a story of schemed suppression of facts is slowly emerging from the region.

Does the global common man have a legal right to get the correct information about the incidents? Can International Law provide assistance in this? Will the international law organisations, despite their failure in maintaining peace and order in the region, be able to record truth in the highest possible standards before the facts get deep buried? Well, there are a few possibilities. Here is an attempt to enlist them with an optimistic faith in International Law.

Firstly, the least significant amongst the all available options will be inquiry procedures provided under Geneva Conventions. Although the states have denied the status of "international armed conflict" to both the Balakot airstrikes and the related attacks, Geneva Conventions can be relied upon due to the status of LOC region and the nature of armed conflicts continuing in the area. The Article 52 of GC I, Article 134 of GC III and Article 149 of GC IV provide that any alleged violation of the Conventions can be investigated by conducting an enquiry in a manner agreed by the interested Parties if requested by a Party to the conflict. It also mandates if there is no consensus regarding the manner in which enquiry is to be conducted, then an Umpire must be appointed who will decide upon the manner. Pakistan and India can, therefore, allege violations of International Humanitarian Law(IHL) and then request inquiry initiatives from each other. This option, although morally justifiable than any other, is most unlikely to happen. The historical trends in Kashmir conflict suggest that India and Pakistan never participated in combined investigations whole-heartedly or willingly. All investigations against alleged crimes against peace or humanitarian crisis in the Kashmir region have been mired by mistrust and suspicions, leaving the global community duped about the factual situation. Even in the Balakot incident both the States continue to maintain silence. Pakistan officials attempted to take the international news agencies to the bombed area and stopped far from reaching the exact co-ordinates claimed by India. Similarly, Indian officials were reluctant to address the media or opposition parties, if the questions were not previously disclosed.

Secondly, Additional Protocol I of Geneva Conventions (AP I) provides another option for the inquiry by the Independent Humanitarian Fact-Finding Commission (IHFFC) under its Article 90. Although both India and Pakistan are not parties to AP I, this procedure can be triggered if international organisations like United Nations Military Observer Group in India and Pakistan (UNMGOIP) make an official request. The 2015 Presidential Report on the work of the IHFFC claims that under Article 90(2)(d) of AP I States and non-State actors alike, including international organizations, can in principle be 'parties to the conflict concerned' and thus can file a request with legal effect. Although this  legal position is unlikely to be  acceptable to the State Parties to AP I, the 2015 report asserts that this can be the only interpretation of Article 90(2)(d) consistent with the principles of international humanitarian law. The limiting point is that the Fact-Finding Commission will still require the consent of the India and Pakistan in order to institute an enquiry or to enter into the territory of Pakistan as Balakot is not inside the LOC region. This option can also be therefore ruled out. Recently in between 2016 and 2018, India and Pakistan didn't allow the representatives of the Office of the High Commissioner for Human Rights to enter Kashmir, when they came for studying the situation in LOC region.

A third and most pragmatic way of looking at the situation will be reports of UNMOGIP itself. According to its mandate under 1949 Karachi Agreement and various other resolution of United Nations Security Council, it has to report to the UN Secretary-General the information regarding all activities and developments that can impact the ceasefire and the implementation of UN-mediated plans for peace in the region. It also has the capacity to investigate the alleged ceasefire violations complaints lodged by one of the parties. India and Pakistan, however, have so far distanced themselves from operations of UNMOGIP. India has claimed that UNMOGIP has ceased to operate as per the Shimla Agreement. However, the Secretary-General of United Nations has so far not agreed to this. The UN Secretary-General reasoned the retention of the UNMOGIP operations by stressing the point that UNSC has not adopted resolutions withdrawing UNMOGIP or terminating its mandate. According to UNSC resolutions 209, 210 and 211 of 1965, UNMOGIP has to be strengthened in order to enable the commission to promptly collect information and report on the situation of Kashmir and the implementation of UNSC resolutions.

Fourthly, and most importantly, what remains is the "standing authorisation given to the UN Secretary-General to appoint a special representative to the Kashmir" for resolving the humanitarian problems in the area vide the operative paragraph 5 of the UNSC Resolution 307 of 1971, adopted on 21st December 1971. This will be the most effective way of dealing with the situation, given that there cannot be political intervention of vetoing P-5 States in UNSC. The UN Secretary-General can anytime invoke this provision and appoint special representatives until the UNSC withdraws its Resolution 307. The nations are bound to oblige.

Although India and Pakistan can assert a right to deny access to such special representative according to the UN General Assembly Declaration on Fact-Finding 1991, this right stands seriously impaired by UNSC Resolution 307 of 1971. All that the Secretary-General has to do is to trace the legality of the appointment of the special representative to the resolution and assert that according to the Chapter VII and Chapter XV of the United Nations Charter, the States must co-operate with the fact-finding mission assigned to the special representative.

This is not to argue that the Secretary General and UNSC can infringe upon the principle of State Sovereignty, or to suggest that International Law favours such initiatives. International Law, being the real law, aspires to work only through the consent of stakeholders. Nevertheless, what it can do is to change the characterisation of the crisis situation by highlighting the humanitarian consequences of the crisis. It can articulate before the warring populations that the armed conflicts and terrorism are not just about what they think justice is and right thing to do. It triggers the 'humanity' to work from within. Only International Law can do it effectively.

The United Nations Secretary General needs to take cognizance of the fact that the death toll has been the highest over the last twelve months since 2009 in the LOC region of Kashmir. There have been reports that more 570 people have lost their lives including 260 militants, 160 civilians and 150 Indian armed personnels. He must take into account the June 2018 report of Office of the UN High Commissioner for Human Rights(OHCHR) on the Situation of human rights in Kashmir recommending the establishment of a commission of inquiry to conduct a comprehensive, independent, international investigation into the allegations of human rights violations in Kashmir. The report clearly states that OHCHR is alarmed by the frequent reports of increasing infringements of the ceasefire agreement since the start of 2018, including shelling and shooting that results in civilian casualties and the forced the displacement of people living along the line of control.

India and Pakistan are the only two nuclear powers in the contemporary times engaged in hostilities against each other and this makes the entire episode of Pulwama- Balakot attacks and the retaliatory military operations actionable by UNSC, or UN Secretary General urgently and immediately. The United Nations must start reading this as a story of civilian casualties and forced displacements alongside the protracted claims of ceasefire and peacetime by the parties to the conflict.

(Nithin Ramakrishnan is an honorary fellow of the Centre for Economy, Development and Law, Thrissur and is currently working as Asst. Professor of Law, at Department of Ethics, Governance, Culture and Social Systems, Chinmaya Vishwavidyapeeth, Deemed to be University, Kochi. Views expressed are strictly personal).