Article 12(3) of the Rome Statute: A Solution to Impunity in Kashmir

Abstract

The Kashmir Conflict is fundamentally a legal conflict over territorial sovereignty and the Kashmiri people's right to self-determination, both of which are upheld by UNSC Resolutions. Though the right to self-determination has been promised by both India and Pakistan, Kashmiris are fighting for it for decades. This makes it the oldest unresolved disagreement on the UN agenda since 1947. The seven-decade dispute over Jammu and Kashmir has become a humanitarian nightmare, the cause of four major wars between nuclear rivals Pakistan and India which further led to gross human rights violations, and a grave humanitarian crisis in the region. The study highlights the genesis, current political status, and international character of the conflict along with detailed counts of human rights violations amounting to CAH in Indian-administered Kashmir. The Study highlights the urgency of an international investigation into these international crimes where Indian security and armed forces are given absolute impunity by the central government.

Against this backdrop, the study sought to provide a novel contribution to the literature on criminal justice in Kashmir and also for States, not a party to the Rome Statute. The study discussed in detail the scope, purpose, and benefit of 12(3) of the Rome Statute. Based on the fact that both parties to the conflict (India and Pakistan) are not party to Rome Statute. The study developed a prospective legal framework through which the jurisdiction of the International Criminal Court could be extended to the Kashmir conflict for an independent investigation into the ongoing acts of CAH under Article 12(3) of the Rome Statute and by application of the Bangladesh/ Myanmar model of territorial jurisdiction for cross-border crimes in Indian-administered Kashmir. The study urged an immediate need for an international independent investigation into past and ongoing abuses of human rights in order to bring justice to all Kashmiris who have been suffering as a result of decades of violence. It is recommended that any agreement to resolve the political situation in Kashmir must come with a promise to stop the cycle of violence and to hold those accountable those responsible for breaches of human rights in the region.