Cease Fire Violations and the Lawfare

Image result for India-Pakistan CFVs

by Shamsa Nawaz 5 November 2019

Previously oscillating between military tensions and peace talks, cease fire violations (CFVs) have increased to 307 in August and 292 in September 2019, ever since Article (370) was repealed unilaterally by India on August 5, 2019, according to Indian sources. September 2019, also recorded 61 caliber escalations, implying usage of mortar and heavy ammunition. On the other hand, there have been only 24 cases of ‘terrorist-initiated incidents’ during the months of July-September recorded as against 114 and 31 in the corresponding periods of 2018 and 2017, respectively. Earlier, Pakistan’s director general of military operations (DGMO) recorded 1,299 CFVs in 2017, which is the highest in the history of their relations. Pakistan’s Foreign Office also acclaims that the Indians have committed more than 2,000 ceasefire violations since 2017. Such flagrant violations by ultra-hawkish elements within the Indian establishment have surely drawn Pakistan’s response. Though the casualties are not systematically acknowledged and publicized, they do feed into the public view effectively.

Regardless of the accuracy of these figures, the salience of CFVs should be seen within the context of escalation, which could be in the form of territorial occupation as well. Enlarging Lebanon’s boundaries to encompass the Shebaa Farms is one such example from the history of low lying conflict. The multi-dimensional varied characteristics of these CFVs are already eminently posturing the security policies and the strategies of the two warring nations: India and Pakistan; towards either obsessive security centric, or expansionist card play. Local factors on both sides of the border are equally instrumental.  The inherently unpredictable nature of CFVs adds to volatility. In his recent study on CFVs, Indian scholar Happymon Jacob suggested that local factors are the main variable of interest. Jacob wrote that “local military factors in the India-Pakistan border are in fact behind the recurrent breakdown of the 2003 agreement. That is, CFVs are generally not planned, directed, or cleared by higher military commands or political establishments, but are instead driven by the dynamics on the frontlines.” When things don’t improve, CFVs also occur over the working boundary which clearly defines escalation.

Nonetheless, due to the intensified military maneuvers on both sides of the border, the ritualization of India-Pakistan CFVs is facing a new kind of challenge. It reflects the quality of bilateral relations as well as the strategies of the respective rulers of India and Pakistan. For instance, both increases in the CFVs prior to the revocation of Articles 370 and 35 by India on August 5, 2019 and its post period is meant to “to divert the world’s attention away from the massive human rights violations (in IOK)” which are being reported and questioned by the Human Rights Council as well. Recently, the UN and the world community had started to pay attention to the repression of the Azadi (freedom) movement in Jammu and Kashmir. Similarly, to take thread from Indian scholar Manoj Joshi, the political objective is obvious “once the BJP government came in, they had a counter-bombardment policy and it affected people on the border. But what exactly is their goal is not very clear.” Whatever the political factors may be, their salience invites paraphrasing of Carl von Clausewitz: if war is politics by other means, CFVs are also war by other means.

Agreed between the Directors General Military Operations (DGMOs) of the two countries on CFVs back in 2003, to fully implement the ceasefire understanding in letter and spirit, these violations in the Kashmir region are a significant trigger for bilateral military, political, and diplomatic tensions. They have the potential to not just trigger a crisis but to also escalate an ongoing crisis, especially in the aftermath of the unlawful revocation of the independent status of Jammu and Kashmir by occupying forces. It is pertinent to mention here that third parties played a very significant role in the 2003 agreement. Regrettably, both the US and the West at large have gradually withdrawn from their role with the passage of time, leaving the region to boil into a nuclear flash point. Christopher Snedden very rightly suggests that “India and Pakistan’s total inability to resolve the Kashmir dispute has two major ramifications. The first is that the people [of Jammu and Kashmir] have been subjected to ongoing hardships and sufferings since 1947. . . . The second . . . is that a third party is clearly needed to break this deadlock.”

The UN has also not come out with any definitive report on CFVs, much less a resolution to mitigate the risks and potential impact of this violently growing conflict between India and Pakistan. This explains the total failure of the UN Military Observer Group (UNMOGIP) while undermining the prospects for peace. The role that the UN can play in early warning and assessment by implementing both long-term and short term measures according to its Guidance Note, are completely non-existent. The Guidance Note basically provides policy and programmatic guidance to the UN when confronted with land related grievances and con­flicts. Several cross-cutting strategies aimed at addressing land grievances and con­flicts including regular assessments and conflict analysis at different stages of the confl­ict, authorizes UN officials to report a necessary counter measure. There are about 114 UN officials in Pakistan alone. The Pakistani army reports any CFV to the UNMOGIP and the group is supposed to “investigate alleged ceasefire violation complaints” and to report them to the UN in New York. Though the UNMOGIP officials cannot visit the Line of Control independently due to security reasons, Indian denial of accessibility to the UN observers exacerbates the damage further..

In spite of the intensification of CFVs, the UN is still mandated to play its role. The UNIMOGIP is supposed to be headquartered in Srinagar, which is the capital of the disputed land of Jammu and Kashmir. It cannot be forbidden to station in a disputed region. Tying their hands and not letting the UN place its officials on the ground, or the dissolution of its mandate after 1972 Simla Agreement lack constitutional validity and exposes Indian noncompliance with the jurisdiction of the UN.

Hence, to sustain a ceasefire is as vital as it is to address the fundamental political, humanitarian and historical disputes between the two countries within the premise of lawfare. Article 21(1) of the draft Additional Protocol II submitted by the ICRC to the CDDH provided that “when carried out in order to commit or resume hostilities, the feigning of a cease-fire” was considered as perfidy. Similarly, according to Article 15 of 1863 Lieber Code,: “Military necessity admits … of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.

This is certainly a violation of a bedrock principle of international law. The international community should be worried about the voluntariness of the agreement to cease fire between India and Pakistan, its practicability, and whether maintenance/enforcement of the agreement conforms in all respects with principles of international law. Bad agreements already provide space for aggression. If they are perceived by one or the other side as unjust, they might not be held up even.