As yet another anniversary of Burhan Wani’s martyrdom passes, Indian media-particularly its pro-regime “Godi press”-resumes its predictable chorus, branding him a terrorist. This characterization, however, collapses under even cursory scrutiny when examined through the lens of international law. Far from being a terrorist, Burhan Wani meets the definitional criteria of a lawful combatant engaged in a legitimate struggle for self-determination-a right explicitly recognized by the United Nations and protected under established norms of international humanitarian law.
To begin with, the legal status of Jammu and Kashmir is not settled. It is internationally acknowledged as a disputed territory. The people of Kashmir are not recognized under international law as Indian citizens, and therefore cannot be compelled to profess allegiance to the Indian Union. Any demand of political loyalty from them is not only morally untenable but legally impermissible.
To brand Burhan a terrorist is not only a misreading of legal norms but a grave disservice to the principles of justice and self-determination enshrined in the UN Charter.
Under the Hague Regulations of 1907-specifically Article 45-it is clearly stated that inhabitants of an occupied territory cannot be forced to swear loyalty to the occupying power. Burhan Wani was a resident of Indian-occupied Kashmir, not a citizen of the Indian Republic. This is a critical legal distinction. International law is unambiguous in maintaining that an occupying power cannot acquire sovereign title over the territory it occupies. This foundational principle was formally articulated in the 1928 Kellogg-Briand Pact and reaffirmed in Article 2(4) of the UN Charter, which prohibits acquisition of territory through the use of force.
Moreover, the International Committee of the Red Cross (ICRC), in a statement dated 4 August 2004, reiterated that occupation does not confer sovereignty. The territory remains occupied irrespective of how long the occupation endures. The UN General Assembly and the Security Council have both consistently upheld this position through numerous resolutions. The UN Commission for India and Pakistan (UNCIP) arrived at similar conclusions during its deliberations in Switzerland.
Legal scholars agree that a state under foreign occupation does not lose its legal personality. The doctrine “a state remains the same international person” holds that occupation does not dissolve statehood nor does it merge the occupied territory into the occupier. The occupation remains illegal, and the underlying sovereignty of the occupied people remains intact. This is why Iraq’s occupation of Kuwait was declared unlawful by the UN Security Council in Resolution 674. Likewise, the General Assembly refused to acknowledge Armenia’s occupation of parts of Azerbaijan, and in Resolution 3061, it declared Portugal’s hold over Guinea-Bissau illegitimate.
India’s unilateral declaration that Kashmir is now an integral part of its union-made in disregard of binding UN resolutions-is a political act devoid of legal force. It cannot alter the legal status of the territory or extinguish the right of its people to resist occupation. International law does not recognize territorial acquisition through coercion or legislation. Kashmir’s fate must be determined by its own people through a plebiscite conducted under UN supervision, as promised in numerous Security Council resolutions.
Turning now to the specific case of Burhan Wani: yes, he bore arms. But does this alone render him a terrorist? The answer under international law is a resounding no. When the people of an occupied territory take up arms against a foreign occupier in pursuit of self-determination, their struggle is not only politically legitimate-it is legally protected. The right to resist occupation, including through armed means, is codified in Article 1(4) of Additional Protocol I to the 1949 Geneva Conventions. This provision explicitly classifies such conflicts as international armed conflicts and affords combatant status to those engaged in them.
The implications of this are profound. Armed resistance against foreign occupation cannot be equated with terrorism. Instead, it is recognized as a lawful act within an international legal framework. UN General Assembly Resolution 3314, which defines the crime of aggression, specifically carves out an exception for struggles against colonial domination and foreign occupation. Article 7 of that resolution affirms that such struggles fall outside the definition of aggression and therefore cannot be criminalized.
This interpretation was further reinforced by General Assembly Resolution 37/43, adopted on 3 December 1982. Clause 2 of the resolution unequivocally states that armed struggle against colonialism and occupation is a legitimate exercise of the right to self-determination. The language of the resolution is unambiguous and leaves no room for interpretive ambiguity.
The broader implication is this: India cannot unilaterally redefine the resistance in Kashmir as terrorism simply to justify its repression. The legal characterization of any armed movement in occupied territory lies not with the occupier, but with international law and the institutions mandated to uphold it.
Burhan Wani’s life and death must be situated within the framework of a people’s lawful struggle against foreign occupation. He did not violate international law-rather, his resistance was a consequence of India’s ongoing defiance of it. To brand him a terrorist is not only a misreading of legal norms but a grave disservice to the principles of justice and self-determination enshrined in the UN Charter. Under international law, Burhan Wani was not a terrorist. He was a freedom fighter in every legitimate sense of the term.
The writer is a lawyer and author based in Islamabad. He tweets @m_asifmahmood.