In India, a Hindutva-driven judiciary has handed down a life sentence to Aasiya Andrabi, while Fahmeeda Sofi and Nahida Nasreen have been given thirty years each. Their crime, we are told, is waging war against the state. The case itself is riddled with familiar patterns, fabricated charges, political victimisation, and the steady criminalisation of Kashmiri dissent. But leave the trial aside for a moment. The real question lies elsewhere: Can India demand loyalty from a Kashmiri? And can it punish resistance to occupation?
Aasiya Andrabi’s struggle has been political. Yet even if it had crossed into armed resistance, the legal ground beneath India’s position would remain shaky. International law drew its lines on this question long ago.
Article 45 of the Hague Convention is unambiguous. People living under occupation cannot be forced to swear allegiance to the occupying power. Whether it is Aasiya Andrabi, Yasin Malik, Shabbir Shah, or any other Kashmiri leader, the principle does not change. They are not citizens of India. They are inhabitants of a disputed, occupied territory. An occupying power may control land illegally, but it cannot command loyalty.
Nor can it claim ownership. That, too, was settled nearly a century ago. The 1928 Pact of Paris and later the United Nations Charter made it clear that territory cannot be acquired by force. The International Committee of the Red Cross reiterated the same point in 2004. Occupation does not confer sovereignty. Call it illegal occupation, forced integration, call it a union, call it whatever one likes, the legal reality does not shift.
India may have the power to sentence Aasiya Andrabi. What it does not have is the authority to redefine the law that governs occupation, or the right of a people to resist it.
Even prolonged occupation does not erase the identity of a state. It does not dissolve its legal existence or merge it into the occupier. The world affirmed this when Iraq occupied Kuwait. It affirmed it again in cases like Azerbaijan and Guinea-Bissau. Time does not legitimise control. Force does not create a title.
India’s unilateral move to fold Kashmir into its union falls within this same pattern. It may change administrative arrangements on the ground, but it does not alter the legal status of the territory. Nor does it impose an obligation of loyalty on its people. Refusal to submit is not a crime.
The right of self-determination stands at the centre of this dispute. Under international law, the people of Kashmir are to decide their political future through a plebiscite under United Nations supervision. This is not a rhetorical demand. It is a legal commitment that has yet to be honoured.
Aasiya Andrabi did not take up arms. But even that distinction is worth examining. Because the argument does not end with peaceful resistance.
International law recognises that people living under foreign occupation have the right to struggle for their freedom. Additional Protocol I to the Geneva Conventions treats such struggles as international armed conflicts. That classification matters. It draws a line between terrorism and resistance. One is criminal. The other, under specific conditions, is recognised.
United Nations resolutions reinforce this position. Resolution 3314, in defining aggression, excludes struggles for self-determination from its scope. And in 1982, the General Assembly went further, explicitly affirming that armed resistance against foreign occupation is a legitimate act. This was not ambiguous. It was clarification.
None of this means that every act carried out in the name of resistance is beyond scrutiny. But it does mean that the struggle itself cannot be dismissed as illegitimate simply because the occupying power says so. Occupation does not erase rights. It does not cancel identity. And it does not turn the demand for freedom into a punishable offence.
Under the Hague Regulations, an occupying power is responsible for the safety and welfare of the population under its control. What is happening in Kashmir points in the opposite direction. Political leaders are jailed, dissent is criminalised, and due process is stretched beyond recognition.
India may have the power to sentence Aasiya Andrabi. What it does not have is the authority to redefine the law that governs occupation, or the right of a people to resist it.
The writer is a lawyer and author based in Islamabad. He tweets @m_asifmahmood