WOCIT HP 2005-4-21
CASE CONCERNING KASHMIR PROBLEM
PROVISIONAL MEASURES
FOR PREVENTING WAR
2８ June, 2002
President of the World
Citizens’ Interim Court Rikio Kaneko, Honorary Dr. of law,Master of law (international law), Prof. of Sapporo
University
Judge Rob
Wheeler, Chair and Coordinator of Millennium Peoples Assembly
Network, United States of America
Judge Ms. Fashima Nasrin, Assistant Attorney General Bangladesh,
Judge Mr. [...], Master of law, Zimbabwean
(21 April 2005 President Rikio Kaneko deleted the name of the Judge from
Zimbabwe at his request dated 16 April 2005)
My Dear Mr. Prime Minister of Pakistan
Pervez
Musharraf
1. In Spring of 2002 again
military tension increased. A newspaper “USA TODAY” dated 24 May, 2002 reported
that:
As the possibility of war with India loomed, Pakistan took steps Thursday [23] to protect its stately capital from any attack.
[…] City departments and ministries were told to draw up emergency plans
so they could function in the event of attack.
At the border in the disputed Kashmir region, Indian and Pakistani
troops traded artillery and mortar fire for a seventh day. […]
Indian Prime minister Atal Bihari Vajpayee said he hoped for peace. But
India moved five warships toward Pakistan on Thursday, and Vajpayee prepared
his troops for war. He called for “a decisive victory against the enemy.”
Pakistani President Perves
Musharraf warned that if his country was attacked, the outcome “would not be
good for India.”
2. Another article in the “USA TODAY” of
that day reads as follows:
A festering regional dispute could spark
the world’s first nuclear exchange and make the Sept. 11 terrorism toll look
minuscule by comparison.
Experts say half a million to 50 million people could die if the conflict between Pakistan and India over the disputed province of Kashmir escalates to the use of nuclear weapons. The livelihoods of more than 1 billion people could be ruined, accompanied by global economic consequences.
3. Pakistan conducted a series of missile tests from 25 to 28 May, which are capable of carrying conventional and nuclear warheads. Ghauri missile has a range of 1,500 km, far enough to reach deep into India. Indian Prime Minister Atal Bihari Vajpayee said that India should have struck back against Islamic militants in Pakistan immediately after Parliament in New Delhi was attacked in December (Newspaper “The Japan Times”,1 June, 2002)
4. A newspaper “THE JAPAN TIMES” dated 1 June, 2002 reports that:
Pakistan began withdrawing its troops from its border with Afghanistan
on Thursday [30 May] as President Gen. Pervez Musharraf warned they would be
redeployed to the Indian border if the threat of war persisted.
[…] the stalemate along the border remained high with relentless
cross-border shelling that has reportedly killed dozens.
The Indian army reported the heaviest shelling since relations between
the hostile neighbors plummeted two weeks ago following massacre in Kashmir,
with the town of Poonch overnight becoming the main flash point.
5. On 2 June, 2002 in view of such a critical situation, the representative of the International Neutral Group of Actor sent to our Court the third request for Provisional Measures on the prevention of war around Kashmir (see WOCIT Home Page: http://www.wocit.org), which reads, among others:
According to newspapers and TV news, the situation around Kashmir is
extremely dangerous these days. Representing our International Neutral Group of
Actors, I request the Interim Court to recommend Provisional or Urgent Measures
immediately to two parties to military conflict: India and Pakistan.
So, we the INGA [International
Neutral Group of Actors] request World Citizens’ Interim Court:
1. to recommend
India and Pakistan not to resort to the war unconditionally, not to speak of
nuclear war;
2. to recommend to submit issues of fact and law to some neutral and fair organ of international character (including the International Court of Justice) if the two countries are not able to settle the conflict by diplomatic negotiation;
6. In accordance with the above-mentioned request, 4 June、2002, I as President of the Interim Court sent both of you recommendation for preventing Indo-Pakistani war, which reads, among others, as follows:
1) never to initiate war and the
use of nuclear weapons at any time, in any place and in any situation;
2) to suppress the use of warlike language which suggests the
possibility that "our side" might resort first to war and nuclear
weapons;
3) to stop immediately all preparations for conventional war as
well as nuclear war, if any; and
4) to declare immediately to all the world that one’s own
country will never use nuclear weapons first, so long as the other party does
not use them.
7. But the dangerous situation continued. According to a newspaper “THE JAPAN TIMES” (19 June,2002) reads as follows:
Despite the apparent success of high-profile
diplomatic efforts to defuse the latest crisis between India and Pakistan, all
the same combustible fundamentals remain in place in Kashmir: a million troops
facing off across a tense border, an unrelenting insurgency for which the two
sides blame one other, an abiding mutual mistrust,[….]
“In two or three months, we will find our selves again in exactly the
same situation―again the tension, again the threat of war,”
said Noor Ahmed Baba, […]
8. On 21 June the said newspaper reports
that a fierce artillery battle flared on the India-Pakistan desert border
Wednesday despite further signs of rapid easing of tension between the two
nuclear-armed rivals, at least seven Pakistani border guards were killed when
Indian shells struck the Al Badhar
border post, and that the battle, which started at 7 a.m. and lasted for
about eight hours, followed an overnight skirmish[…]
9. Taking into account, among others, that Kashmir situation is still so unstable, attended with great danger, that it may lead to even the first nuclear war; and
In accordance with the WOCIT Statute, Chapter 23,
We, Judges the World Citizens’ Interim Court, decide to comply, in principle, with the third request for Urgent Measures put forward by the International Neutral Group of Actors, reply to their request in the following manner on Urgent Measures for preventing Indo-Pakistani war, and recommend both of you, my Dear Leaders of State:
1) never to initiate war and the use of nuclear weapons at any time, in
any place and in any situation;
2) to suppress the use of warlike language which suggests the
possibility that "our side" might resort first to war and nuclear
weapons;
3) to stop immediately all preparations for conventional war as
well as nuclear war, if any;
4) to declare immediately to all the world that one’s own
country will never use nuclear weapons first, so long as the other party does
not use them; and.
5) to
submit issues of fact and law to some neutral and fair organ of international
character (including the International Court of Justice) if the two countries
are not able to settle the conflict by diplomatic negotiation.
10. My Dear Leaders of State, will you please send your answer to the request of
present Provisional Measures taken by your Government by 15 July, 2002?
Our fax number is 001-862-6442.
Our email address is registrar@wocit.org
11. As you understand well, the present recommendation has not legal binding force. The request is “advice” according to THE STATUTE OF THE WORLD CITIZENS' TRIBUNAL, Chapter 23.
12. Present document was written in Sapporo on the 28 June 2002, is made public by our Home Page. Two copies of it will be sent to you respectively through your Embassies in Japan, the third will be placed in the archives of the Court, another transmitted to the Secretary of the United Nations, and the other copies to the Judges of the Interim Court.
13. The WOCIT will always welcome Indian and Pakistani National Judges
who may sit in our Court and have equal rights with other Judges.
14. Lastly, we would like to express our earnest wish, Dear Leaders, that people may live peacefully in India and Pakistan throughout the new century.
P.S.1
Judges’ Opinions (for reference)
1.
Judge Mr.[...]’s email 10 June, 2002 reads as follows:
Dear Mr. Kaneko,
I agree with the draft.
Sincerely
Judge [...]
2. Judge Mr. Rob
Wheeler’ email dated 12 June, 2002 reads as follows:
Dear Rikio,
I was very happy to receive this the other day. I am glad you are still doing the
project. I will respond more specifically to the request later today; however I
do support the action.
Thanks once again, for your wonderful efforts,
Rob Wheeler
Judge of Interim Court
Judge Mr. Rob Wheeler’ email dated 13 June, 2002 reads as
follows
Dear Rikio Kaneko and fellow judges,
I have not been following this conflict in the Kashmir closely; however I have
received some very interesting articles about it by e-mail. It would appear
that the conflict extends well beyond the specific region and the two principal
countries involved. In addition, the conflict threatens many more people than
just those living in the particular region. Thus, I am sending you some of the
materials I have come across for your consideration and would suggest that a
full public review of the situation is in order.
In addition, you can go to
<http://dailynews.yahoo.com/fc/World/Kashmir_Dispute>
for a listing of a whole range of articles and websites dealing with this
situation. In particular I would suggest that you look at the South Asia
Citizen's Web at:
<http://www.mnet.fr/aiindex/>
and
<http://www.mnet.fr/aiindex/Kargil/Kargilindex.html>.
In the meantime I do support the request of the International Neutral Group of
Actors, particularly Item 2, and would thus ask that the World Citizens
Tribunal (WOCIT) recommend in most strong terms that the Governments of India
and Pakistan "submit the issues of fact and law to some neutral and fair
organ of international character (including the International Court of Justice)
if the two countries are not able to settle the conflict by diplomatic
negotiation."
If steps are not taken to do so promptly by the countries involved however, then
given that this matter does have international ramifications, I would suggest
that the World Citizens Tribunal sponsor an investigation and public
hearing into the matter. If some of the groups that are included in these listings
are contacted they could be asked to co-sponsor such a hearing and some of
those who have written articles could provide written testimony regarding the
state of affairs and potential solutions. A respected panel of neutral scholars
that have expertise in the region could be assembled to act as judges for this
particular matter and the attempt would be to raise public awareness about the
broader questions and issues involved and to recommend optimal solutions to the
conflict based upon the material submitted and reviewed.
The review could be publicized in relevant media and periodic reports circulated
through the websites and email lists of all interested parties. I am sending an
article by Dr. Rashmi Mayur that puts the conflict in perspective and several
articles that provide information as to the involvement of other countries. It
would appear that these other countries have acted to aggravate the situation
for their own purposes.
Thank you for your considerate attention to this matter. Sincerely,
Rob Wheeler
Judge of the Interim Court
Coordinator of the Global Peoples Assembly and Network
North American Representative on the Steering Committee of the World Civil Society
Forum
Senior International Associate for the International Institute for Sustainable
Future
Dr. Rashmi Mayur’ opinion mentioned in Judge Mr. Rob Wheeler’ email dated 13 June, 2002 reads as follows:
War and Peace in the Kashmir
4 June 2002
Dear friends:
The drums of annihilation are beating strong in the land stretching below the
high Himalayas. In the divided Kashmir, on both the sides of the Line of Control,
at least one million soldiers, confront for a war of final end, possibly a
nuclear catastrophe. Never since the Hiroshima holocaust of 1945, except for
the Cuban Crisis in 1962, has humanity faced a more serious threat of
conflagration as between India and Pakistan than today.
The present vicious conflict between the two nuclear neighbors, which were one
nation until 15 August 1947, is a vestige of the colonial period as elsewhere in
the divided world. Except for their religions, people in both the lands are
ethnically the same and have lived together for thousands of years. One billion
people in India and 150 million people in Pakistan live in one of the most
congested and the poorest lands in the world. One out of three lives in
horribly wretched conditions of poverty, 50% of the land is eroded, 40% of the
children are malnourished and underfed and potable water is declining fast.
Yet, over the last fifty-five years, both the countries have spent over a
trillion dollars on arms, armaments, three wars and continuous military threat.
Last year, the two belligerent nations together spent at least $20 billion for
their defense budgets when they have no money even to educate 50% of the
illiterate people or to control the runaway growth of their population and
restore their deteriorating environment.
Although the amount of nuclear arsenal in these nations is secret, it is
estimated that India possesses about 80 and Pakistan around 35 nuclear bombs. They
can wipe out their populated areas in both the countries, if a full-fledged war
ensues ・more than 15 million
people will die and at least 60
million will be victims of nuclear radiation-mutilation, cancer, pestilence and
universal miseries, with the land, water and air turning toxic. A great ancient
civilization will come to an end.
Depending on the wind patterns Bangladesh, Nepal, Sri Lanka, Afghanistan will become
nuclear wastelands. In time, massive fallout will reach the whole
earth. It will be a nightmare with horrendous consequences.
Let us recognize that everything nuclear is grotesque and must be of serious
concern for every human being. It is not a local issue. All the people of the
world have a right to intervene, especially those who care for their children
and future generations, since more than sixty percent of the victims will be
children.
Almost 57 years we have lived with the "Unthinkable-horror of
horrors" of the nuclear age. How long must 6.1 billion people live with
35,000 nuclear weapons in the world? Everything nuclear is deadly. Let us once
for all make the world safe forever by eliminating everything nuclear・all the deadly weapons must go at the
earliest. That is possible if we educate the people everywhere about its
terminal danger.
Let sanity prevail on political leaders of India and Pakistan, stop their confrontation
withdraw their armies and resolve the decades of conflict under
United Nations mediation.
Let the people of Kashmir decide their destiny as people everywhere should do ・beyond religion and enforced rule from
outside. Instead, let the armies of
India and Pakistan become saviors of land, humanity by planting trees, educating
people and protecting the environment.
The immediate and urgent task confronting United Nations is to bring an end to the
human violence by imposing total disarmament and freeing humanity and the earth
from the scourges of wars. The nuclear weapons must be dismantled first.
The United Nations should evolve as an institution to bring the global rule of
law, world governance beyond the agglomeration of 190 nations穆tates, which are cause of so many problems in
the globalized world. The United Nations is the only hope for humanity.
By bringing an end to decades of belligerency between India and Pakistan and
moving towards a genuine union of the people of South Asia, 1.3 billion people in
the region will chart a new path for their sustainable future, and, beyond, for
the world as a whole. We shall have one world with humanity as one family.
Too long have such a large number of people been victims of centuries of
oppression 末 from colonialism to
imperialism. For too long, have people in the idyllic valley of Kashmir, a
paradise, have cherished the dreams of art and poetry, beauty and grandeur as
people everywhere. Let the people of Kashmir be free as people everywhere in
equity, justice and sustainability.
For humanity,
Rashmi Mayur, Ph. D.
Editor
War & Peace Digest
3. Judge Ms. Fashima Nasrin’s email dated 16 June, 2002 reads
as follows:
Dear Mr. Rikio,
It's been a long time I've not heard from you. In fact I had some problems with
my e-mail account. It is always nice to hear from you. Hope you are doing all right.
I'm really excited about the football world cup'02 in Japan. I watch it
regularly.
I can imagine your concern about the Kashmir issue. I've gone through your draft
and find it very reasonable. I wholeheartedly agree with your well written
draft. Hope to hear from you soon in near future.
For your kind information, I would like to let you know that I have been
appointed from last October '01 as the Assistant Attorney General of Bangladesh.
Best wish,
Fahima Nasrin
Bangladesh
P.S.2 Statute of the World
Citizens Court, Chapter 23
CHAPTER 23
PROVISIONAL MEASURES
PARAGRAPH 1 APPLICATION
Article 391 (conditions) Whenever the WOCIT Courts consider that circumstances so require and especially when Citizens' lives and fundamental rights are endangered, the Courts may recommend or indicate urgent provisional measures designed to preserve each party’s and Citizens’ rights before the deliverance of a final Judgment or an Advisory Opinion.
Article 392 (priority) Any request for provisional measures to be taken shall have priority over the consideration of all other preliminary or pending matters.
Article 393 (the character of indication or proposals) Indications may be made when the contending parties entrust the settlement of the conflict to the WOCIT, while in other cases recommendations shall take the form of an advice.
Article 394 (informing the UN) The United Nations shall be notified of request for provisional measures and decisions by the Courts.
Article 395 (competent Court) The Court where a case is pending when provisional measures are requested is the competent court for provisional measures.
Article 396 (the Central Summary Chamber) When plural cases are simultaneously pending in the Central Court, the Summary Chamber may decide on provisional measures.
Article 397 (application) A written request for the recommendation or indication of provisional measures may be made by a party at any time during the course of the proceedings in the case in connection with which the request is made.
Article 398 (items to be stated) The request shall specify the reasons therefore, the possible consequences if it is not granted, and the measures requested.
Article 399 (definition) By 'urgent measures', we mean measures of a provisional nature designed to meet matters of paramount urgency which may be decided by the President alone or on the basis of Judges’ answers to a questionnaire submitted by them.
Article 400 (urgent measures) After an application for provisional measures, the President of the Court shall indicate or recommend urgent measures as soon as possible, among others, as for the following acts:
a. an act or its preparation which is clearly against international law and which is condemned by international society and the United Nations.
b. an act, its preparation or suggestion which is probably against international law but realization of which would clearly aggravate the circumstances of the Earth or Cosmos.
c. an act, its preparation or suggestion which tramples down lives and fundamental rights of many Citizens as a result of belligerent acts no matter which party is aggressive; and
d. preparation which is probably against international law, and which would influence upon vested rights and make impossible recovery of the present state probably or perfectly if the preparation would be carried out.
PARAGRAPH 3 PARTIES'S APPLICATION
Article 401 (priority of application for provisional measures) A request to indicate or recommend provisional measures shall take priority over adjudgment of jurisdictional problem, other preliminary questions and all other cases.
Article 402 (urgent convocation) 1 If the Court is not sitting when any such request is made, it shall be convened forthwith for the purpose of proceeding to a decision on the request.
2 If the Regional Facts-Examining Committee or the National Facts-Examining Committee has not already started to examining the facts of the said cases, the Committee shall begin to find out the facts immediately.
Article 403 (opportunities for representation) Besides cases which require the implementing of 'urgent measures', the President of the Court shall fix a date when parties who wish to present papers shall be given the opportunity to plead. The Court shall receive and take into account any observations before the closure of the written proceedings.
Article 404 (request to contesting parties) 1 Pending the meeting of
the Court, the President may call upon the contesting parties to act in such a
way as will enable any order the Court may make on the request for provisional
measures will have its appropriate effects.
2 According to the gravity of the situation, the World Citizens' General Assembly or its Council may be summoned urgently.
Article 405 (ex officio proposals) The Court may at any time decide to examine whether the circumstances of the case requires the indication or recommendation of provisional measures.
Article 406 (indications or recommendation to the Applicant) The Court may indicate or recommend that are other than those requested, or that ought to be complied with by the party which has itself made the request.
PARAGRAPH 4 REJECTION, REVOCATION AND REVISION
Article 407 (new facts after rejection) Even if a request for provisional measures is rejected, the party which made it may make a fresh request in the same case based on a new fact.
Article 408 (revocation and modification)At the request of a party the Court may, at any time before the final Judgment or the final Advisory Opinion in the case, revoke, or modify any decision concerning provisional measures if, in its opinion, some change in the situation justifies such revocation or modification.
Article 409 (specification of change in the situation) 1 A
party proposing such a revocation or modification shall specify the change in
the situation considered to be relevant.
2 Before taking any decision under preceding Article, the Court shall afford the parties an opportunity of presenting their observations on the subject.
Article 410 (information relating to performance) The Court may request information from the parties on any matter connected with the implementation of any provisional measures it has indicated or recommended.