Balochistan Issues and International Law
Oppenheim defines ‘intervention’ as “dictatorial interference by a State in the affairs of another State for the purpose of maintaining or altering the actual condition of things”. The United Nation’s Charter under Article- 2(4) establishes the ‘principle of non interference’. This ‘principle’ draws its strength from the basic tenet of equality and sovereignty of the member States within the UN framework. Quincy Wright had said that “intervention may be diplomatic as well as military. A diplomatic communication of pre-emptory or threatening tone, implying possible use of military or other coercive measures may constitute intervention”.
Prime Minister Narendra Modi’s reference to the instances of violation of human rights in Balochistan or thanking them for using kind words for him qualifies to be an act of ‘diplomatic intervention’ only as per the above definition.
At this time, the human right violations and genocide in Balochistan have reached such a scale of an enormity as could (should) shake up the collective conscience of the international community. Prime Minister Modi’s reference to Balochistan in his Independence Day speech triggered an avalanche of angry reactions from Pakistani and Chinese establishment and media but, nevertheless, it also brought up this issue on international agenda and to that extent this diplomatic adventurism appears to be on target. However, the way forward to actual relief and mitigation of the sufferings of people, lies only in an effective ‘intervention’ in Balochistan under the auspices of UN. Balochistan is too serious a problem to be managed through political rhetoric alone.
The world in the year 1991 had witnessed a similar case of repression and violation of human rights against Kurds by Iraq that had drawn universal attention and wide condemnation. It was one instance where the UN Security Council reached a consensus and a multinational action against Iraq led to the taking over the control of refugee camps of Kurds.
In the international law, the right of self- determination is not a binding principle under ordinary circumstances. This principle is applicable only in the context of colonialism. The problem of Kurd’s people in Iraq was not of a colonial occupation. Similarly the merger of Balochistan in Pakistan is a settled issue under the international law. The presence of Pakistanis in Balochistan is not of the colonial nature, the intent and their activities certainly are.
Human rights issues are within the domestic jurisdiction of any State. Also no State either has the right to ‘intervene’ on the ground of violation of human rights alone in the affairs of another State. The subject eventually lies within the purview of the UN Security Council. Theoretically, even the UN cannot intervene in the internal matters of any member State. It can, however, do so by relating the matter of human rights violation with that of maintenance of international peace and security. In order to take action under Chapter VII of the UN Charter, the Security Council has to first determine under Article- 39 that the violation of human rights has reached such a stage that it poses a threat to international peace and security. Article- 2(7) of the UN Charter provides that “nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the member to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII”.
The second part of Article- 2(7) has an exception to the principle of non-intervention by the UN in the domestic jurisdiction of any member State. It is unambiguous that the principle of non-intervention by the UN does not apply when the UN Security Council takes enforcement action under Chapter VII. However, it requires a complete unanimity among the permanent members of the Security Council. This is most unlikely to achieve in the present context as China is siding with Pakistan on the issue of Balochistan.
China’s has an ambitious project of China Pakistan Economic Corridor (CPEC) in Balochistan with an outlay of $46 billion that will connect China’s largest province, Xinjiang, with Pakistan’s Gwadar port in Balochistan. India opposes the corridor as it will pass through Gilgit- Baltistan region of Pakistan-occupied Kashmir. A Chinese think tank has reported that China will have “to get involved” if any Indian “plot” disrupts the CPEC. China fears India may use “anti-government” elements in Balochistan to jeopardize its ambitious ‘One Road One Belt’ project.
China continues to stand behind Pakistan even though Balochistan is bleeding. In such a situation any action under the UN flag against Pakistan on the issue of human right violation is unthinkable. Prime Minister’s Modi’s support seems to have somewhat activated the Baloch repatriates in UK who turned up with placards in front of Chinese embassy in London demanding the Chinese to stay away from Balochistan. But this would not be sufficient. Balochs have to create an intense international pressure on China to support a multinational action against Pakistan within the scheme of International law. A sporadic demonstration or a surprise mention by Indian Prime Minister alone will be not sufficient to defeat Pakistani atrocities in Balochistan.
The case of genocide and its continuance in Balochistan is another matter that must draw the attention of the world community. UN General Assembly in the resolution 96/1946 defined that “genocide is a crime under international law , contrary to the sprit and aim of the United Nations and condemned by the civilized world”. The General Assembly unanimously adopted on 9th December, 1948 Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter referred as ‘Genocide Convention’). The Genocide Convention entered into force on 12th January, 1951. As many as 142 countries had become parties to this Convention so far.
The Convention broadly reflects the customary international law. In the Barcelona Traction, Light and Power Co. Case (Belgium v/s Spain), the International Court of Justice observed that “such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression and of genocide as also from the principles and rules concerning the basic rights of human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protections have entered into the body of general international law; others are conferred by international instruments of a universal or quasi-universal character.”
Article-I of the Genocide Convention, 1948, therefore, provides that the contracting parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish. Under Article- III of the Convention following acts are punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; and (e) Complicity in genocide. Article- IV of convention provides that persons committing genocide or any of the other acts enumerated in Article-III shall be punished whether they are constitutionally responsible rulers, public officials or private individuals.
Pakistan ratified the Genocide Convention on Oct 12, 1957 and, therefore, it is legally bound by the provisos of this Convention. Balochistan movement supporters should seriously think over taking this matter under Article-I of the Genocide Convention to the International Court of Justice.
This is one remedy available to them under international law. If Pakistan is pronounced guilty of committing genocide, it will eventually lead to the dilution of its claim on Balochistan. This might well open up new possibilities for the redemption of Balochi nationalistic aspirations. (IDR)
By Rakesh Kr Sinha