India and Pakistan are involved in an international armed conflict over the status of Kashmir.
The disputed status of Kashmir has been a source of conflict between India and Pakistan since the first Indo-Pakistan war in 1947. In particular, since 2013 ceasefire violations and border skirmishes have increased. Therefore, the two countries continue to be involved in an international armed conflict.
Following the killing of the leader of an armed group by Indian security forces in July 2016, a wave of unrests and protest began in Indian-administered Kashmir. In response to the escalation of violence, the Office of the United Nations High Commissioner started monitoring the human rights situation in both Indian-administered Kashmir and Pakistan-administered Kashmir. In June 2018, the Office published its first report on the human rights situation in both areas between July 2016 and April 2018. According to the report, Indian security forces used excessive force in response to the protests. However, the perpetrators can enjoy impunity, especially due to special laws such as the 1990 Armed Forces (Jammu and Kashmir) Special Powers Act, and the 1978 Jammu and Kashmir Public Safety Act. Moreover, armed groups operating in Indian-administered Kashmir were responsible for the killings of civilians, kidnappings and sexual violence. In Pakistan-administered Kashmir, according to the report, terrorism legislation was misused to silence activists and dissidents. Office of the United Nations High Commissioner for Human Rights, ‘Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan’, 14 June 2018.
For an international armed conflict to exist, there must have been a resort to armed force involving at least two states. The threshold for an international armed conflict is very low and does not require a certain intensity or duration. The existence of an international armed conflict is to be determined by the facts, not the subjective intent of the belligerents. For further information, see the Classification section.
In the past, India and Pakistan fought three wars over Kashmir: the Indo-Pakistani war of 1947, the Indo-Pakistani war of 1965, and the Kargil War in 1999. In 1971 India intervened against Pakistan in the Bangladesh Liberation War, which led to the creation of Bangladesh. In its aftermath, India and Pakistan concluded the Simla Agreement, which converted the cease-fire line from the 1949 Karachi Agreement See the 1949 Agreement Regarding the Establishment of the Cease-Fire Line in the State of Jammu and Kashmir. into the Line of Control that continues to divide Kashmir into two parts, one part administered by India and another part by Pakistan. See the 1972 Agreement on Bilateral Relations between the Government of India and the Government of Pakistan (Simla Agreement). The status of Kashmir remains disputed. For a critical re-examination of the Kashmir question and an argument that the people of Kashmir are entitled to self-determination, see F. Nazir Lone, Historical Title, Self-Determination and the Kashmir Question, Brill Nijhoff, 2018.
An international armed conflict has a very low threshold: whenever there is resort to hostile armed force between two States, there is an international armed conflict. Hence, although there is no fully fledged war between India and Pakistan, there continues to be an international armed conflict between the two countries. In spite of the fact that the intensity of the violence has been fluctuating, since 2013 regular border skirmishes have continued and increased, See A. Bellal (ed), The War Report. Armed Conflict in 2014, OUP, 2014, p 31 ff. including after the conclusion of a cease-fire agreement in December 2015. Following the killing of 19 Indian soldiers in September 2016 by armed groups allegedly linked to Pakistan, cross-border violence further increased between the two countries. During 2016, heavy shelling reportedly forced more than 35,000 people to flee and caused the death of at least 83 soldiers and civilians. Conflict Barometer 2016, Heidelberg Institute for International Conflict Research, 2017, p 16. In May 2017, heavy shelling from the Pakistani Army reportedly led to the evacuation of 1,700 people along the Line of Control. ‘Pak Shelling Dislocates 1,700 from LoC Areas’, The Times of India, 16 May 2017. For an overview of cease-fire violations, see Conflict Barometer 2017, Heidelberg Institute for International Conflict Research, 2018, p 146. Cease-fire violations have continued in 2018, notwithstanding the announcement of a cease-fire in May 2018. I. Dilawar and I. Marlow, ‘India, Pakistan to Implement Ceasefire After Kashmir Clashes’, Bloomberg, 30 May 2018; M. Abi-Habib and H. Kumar, ‘India and Pakistan Agree to Truce on Kashmir Border’, The New York Times, 30 May 2018.
In addition to the cross border violence, armed groups contesting Indian authority have been active in Indian-administered Kashmir since the late 1980s. India claims that these groups are based in Pakistan and that they are supported by the latter. On the other hand, Pakistan firmy denies any involvement with the armed groups that undertake attacks in the zone controlled by India. Among the episodes of violence between the Indian government and the armed groups, one of deadliest attacks was carried out against an Indian Army base near the border with Pakistan in September 2016, leaving 19 Indian soldiers dead. Furthermore, in October 2017 an armed attack targeted the international airport in October 2017. More recently, in February 2018 heavily armed militants attacked an Indian military base in the Jammu region. In all these cases, India maintained that the attacks were carried out by the Jaish-e-Muhammad, a militant group based in Pakistan, and reacted with surgical strikes against one of the armed group’s camps in Pakistan. H. Kumar and G. Anand, '17 Indian Soldiers Killed by Militants in Kashmir', The New York Times, 18 September 2016; S. Yasir and J. Gettleman, 'Kashmir Is Rattled by Bold Attack Near Fortified Airport', The New York Times, 3 October 2017; S. Yasir, ‘Militants Storm Indian Army Base, Killing Soldiers and a Civilian’, The New York Times, 11 February 2018.
India and Pakistan are party to the four 1949 Geneva Conventions. In addition, they are bound by customary international humanitarian law. Customary international law consists of unwritten rules that come from a general practice accepted as law. Based on an extensive study, the International Committee of the Red Cross maintains a database on customary international humanitarian law.