By Nayuar N Khan
A Brief History of the Dispute
The Jammu Kashmir dispute commonly known as “Kashmir dispute” dates back to 1947. The partition of the Indian sub-continent along religious lines led to the creation of India and Pakistan. However, there remained the problem of some princely states, run by monarchs, existing within the subcontinent.
In theory, these princely states had the option of joining any country or of remaining independent. In practice, however, the edgy population and geography of each state proved influential.The people had been struggling for freedom, and with their struggle about to bear fruit they were not ready to let the princes fill the political space.
Although many princes wanted to be “independent” they had to give in to their people’s wishes or other circumstances. Because of its location, Kashmir could choose to join either India or Pakistan. Maharaja Hari Singh, the then ruler of Kashmir, was Hindu while most of his subjects were Muslim. Unable to decide which nation Kashmir should join, Hari Singh chose to remain neutral. For that very purpose, he offered a standstill agreement to both India and Pakistan, which Pakistan accepted and signed while India asked more time to think. His hopes of remaining independent sunk on 22nd of October 1947, as Pakistan sent in Muslim tribesmen who were soon knocking at the entrances of the Kashmir’s capital Srinagar.
Hari Singh appealed to the Indian government for military assistance and fled to India and in return he was asked to sign the Instrument of Accession, surrendering Kashmir to Indiatemporarily on October 26, 1947. Indian and Pakistani forces thus fought their first war over Kashmir in 1947-48. India tookthe dispute to the United Nations on January 1, 1948. In a resolution dated August 13, 1948, the UN asked Pakistan to withdraw its troops and citizens, after which India was also to remove the bulk of its forces. A mechanism was adopted for Free and Fair Referendum to determine the final status of Jammu Kashmir.
On January 1, 1949, a ceasefire was agreed, with main centralterritory under Indian control and what’s left with Pakistan.
With continued violence in Jammu Kashmir and heightened threats of mass killings , mistrust between the two rivals and a threat of another serious military confrontation between India and Pakistan remains high. Territorial claims by both the neighbors over the Jammu Kashmir State sparked two of the three major Indo-Pakistani wars in 1947 and 1965, and a limited war in 1999. Although both countries had succeeded in maintaining an insubstantial cease-fire since 2003, they repeatedly exchange fire across the contested Line of Control (LoC) in Jammu Kashmir. There was an increase in high-profile cease-fire violations beginning in July 2014, and artillery shelling and small arms fire continued through late 2016 and intensified in 2017 to mid-2018. 2017-18 shelling at LoC left dozens of civilian dead, hundreds wounded, schools closed for over a year, properties destroyed, crippled life and mass migration along both sides of LoC in Jammu Kashmir. Both sides accused each other of violating the cease-fire and claimed to be shooting in retaliation to attacks. After intense agitations across LoC and internationally by Kashmiri diaspora, human rights and peace groups, Pakistan army offered another cease-fire to India on May 29th 2018. Situation calmed down for a while. 2019 electoral victory of Bhartiya Janta Party (BJP) (soon after Pulwama attack and thereafter airstrikes from both sides) in Indian General Elections gave PM Modi overwhelming majority in the parliament. His party decided to abrogate the article 370 of Indian constitution that guaranteed autonomy to the part of Jammu Kashmir under Indian control. On August 5, 2019, the entire population in Indian controlled Jammu Kashmir was put under curfew with sending extra troops in the valley of Kashmir while almost half a million troops were already present in the region. All the major political leaders were arrested to avoid demonstration against the proposed amendment. This move on India’s behalf created tensions and panic in all the parts of divided Jammu Kashmir and Pakistan as well. Like always 740 kilometers long Line of Control dividing Jammu Kashmir is chosen as a battle ground by both India and Pakistan, where dozens of civilians including women and children lost their lives in recent weeks. The escalation is rising with every passing day and poor masses in millions are still waiting for a miracle to happen in their lives; the miracle of peace, dignity and justice.
Historical Bonds across the Radcliffe Line
It is unfortunate that India and Pakistan have always been on the brink of war since the partition of one land into two countries. Once again war mongers on both sides are creating war hysteria. This is an undeniable fact that people living in both countries share common bonds in arts, history, literature, traditions, culture, languages and share a common civilization. Having so much in common to celebrate and co-exist in a serene mode, why war swords are always looming there? Is there any possibility of sustainable peace in one of the culturally rich and diverse region of the world or war hysteria would always be one of the merchantable article of trade? It is one of the fundamental question to be reciprocated by the key political stakeholders residing in both countries that what actually went wrong soon after partition; the people who lived together for centuries became each other’s enemy by simply accepting man made division on the same shared land? These and many other such questions can be asked by any apprehensive eyewitness of the South Asian region, where the resentment between the two major players has undesirably affected the ability of the region as a whole to attain its true prospective, unlike, for instance, the improvements made in the ASEAN region. The unrelenting skirmish and tautness in the liaison between the two countries, whose enmity has a nuclear aspect as well, cannot be to anyone’s benefit. For the past decade or so, their variances have surpassed their common borders and have also played out in Afghanistan. The biggest beneficiaries of this protracted conflict have been the fanatical elements in both countries and, more recently, the non-state actors (NSAs). The NSAs ostensibly have the capability to mess up and wreck any effort towards resolving the outstanding issues between India and Pakistan at will, by enacting a violent incident, as has been discussed and identified in Spy Chronicles. Major world and regional powers have also stimulated their geo-political interests by playing one country off against the other from time to time.
By installing a huge number of army personnel to engineer the constitutional amendment Narendra Modi and his government has put an entire population under curfew. Millions of people are forced to live with communication blockade having no access to outside world. While on the other hand, war hysteria is being created by targeting the civilians at Line of Control in Jammu Kashmir. Indian army is shelling indiscriminately using heavy machine guns and so is the case with retaliating Pakistan army. As a consequence of this madness, civilians on both sides of LOC are the prime victims. Life is practically crippled for many millions along both sides while international borders between the rivals are peaceful.
Human Rights and International Law Regime
The struggle over Kashmir is enduringly rooted in national identity, religion, and human rights. It has also influenced the politicization of Pakistan’s army, religious radicalism in both the countries, and nuclearization in both countries. Both India and Pakistan have gone to war thrice since 1947, but military escapades have yielded no solution to Kashmir dispute. After having repeated adventures from either side, it is time to come to the rational conclusion that it is a political subject and be resolved peacefully by political means. Although geographic and tactical location at the crossroads of South and Central Asia, Jammu Kashmir becomes more imperative strategic asset for the political might of India and Pakistan, therefore, both of them wanted to go to any extent to clench and own the whole state of Jammu Kashmir. But at the same time Jammu Kashmir dispute is very truly embedded in basic human, political, cultural and economic rights of the Kashmiri people living across the LOC. It, therefore, becomes a principal subject of International relations and international human rights law. International institutions and key player states in international affairs are thus bound to take some positive measures to solve this long standing issue in accordance with the norms and principles of international law.
The norms and principles of international conventions and covenants are indisputably universal in nature and Kashmiri people have the very rights to question the violation of these rights in their own country. Although, nation states have a big say in the present day world political system, but International community should not give India and Pakistan a free hand to curb and violate the basic political, cultural and social rights of Kashmiri people just because they do not belong to any nation state. These principles apply to everyone in relation to all human rights and freedoms and it prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race, and colorand so on. The principle of non-discrimination is complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.”
Human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights. At the individual level, while we are entitled our human rights, we should also respect the human rights of others. It is the primary obligation of State parties and signatories to the Universal Declaration of Human Rights (UDHR 1948), International Covenant on Civil and Political Rights (ICCPR 1966) and International Covenant on Social, Economic and Cultural Rights, and afterwards addendum and protocols to these Covenants and Conventions to protect and safeguard these rights of their subjects. Subjects include both the core nation and her peripheries by virtue of International Human Rights Law. Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible. As the State of Jammu Kashmir is not a part of any core nation, however, it is the mutual responsibility of both India and Pakistan (being parties and signatories to the above mentioned Covenants and protocols) to respect the basic human rights of Kashmiri people under three administrative set ups (Gligit, Srinagar and Muzaffarabad) because these areas lie under the category of periphery to the core nations (till the final mature decision).
Kashmir Dispute and the United Nations:
Our world underwent a political revamp in 20th century, particularly after World War II and the formation of the United Nations in 1945. Since then the number of sovereign UN Member States has skyrocketed from the original 51 to 193. However, the 70-plus years since the formation of the United Nations have proved to be deficient to exterminate a centuries-old structure of rein and hegemony. This is happening besides the progress in legal systems based on the ideas of the sovereign equality and human rights predominant in the contemporary world.
The conflict in Jammu Kashmir along with the Israeli-Palestinian conflict, was among the first skirmish that the United Nations had to confront soon after the World War II. Seven decades have passed by since Jammu Kashmir conflict was first debated in the United Nations Security Council (UNSC) and yet the conflict continues to wait for a solution as promised by the United Nations in 1948.
The UN involvement in the Jammu Kashmir conflict principallylasted for 17 years beginning in 1948 and ending in 1965. After the Indo-Pak war of 1965, the UN engagement with Jammu Kashmir continued at a very inconsequential level till the third war between India and Pakistan of 1971 and completely ended with the signing of the Shimla Agreement in 1972, an Indo-Pak peace accord signed by Mrs. Indra Gandhi and Mr. Z.A. Bhutto, which laid emphasis on adopting a bilateral framework to solve the Kashmir conflict and kept the United Nations out of the picture afterwards. It was Shimla accord that converted the temporary ceasefire line in Jammu Kashmir into a kind of permanent Line of Control (LOC) between India and Pakistan. Thus in practice making Jammu Kashmir a bilateral issue and challenging the legal status of internationally recognized disputed status of the conflict in Jammu Kashmir. During the course of its engagement with the Jammu Kashmir Conflict, covering 23 years (1948-1971), the United Nations passed a number of resolutions, which were aimed at negotiation and resolution of the conflict. Between 1948 and 1971, the United Nations Security Council passed 23 resolutions on Kashmir Conflict.
The UN resolutions regarding the Jammu Kashmir conflict are not self-enforceable. In other words the resolutions are recommendatory in nature and can be enforced only if the parties to the dispute, i.e. India and Pakistan, consent to their application. Indian refusal and Pakistan’s linger on policy to implement the United Nations resolutions on Jammu Kashmir was to relegate them to the margins of the conflict.
The most interesting point to note in this regard is the legal mechanism and procedure of the Jammu Kashmir dispute debated at the United Nations. It was obviously raised by the Indian government at the United Nations. India lodged a complaint under Article 35 (Chapter 6) of the United Nations Charter in the United Nations Security Council on January 1, 1948, charging Pakistan with armed interference in Jammu Kashmir. In the United Nations, Indian complaint was based upon the assumption of ownership by virtue of the document of accession (de-facto) signed by the Maharaja Hari Singh.Pakistan responded to the Indian protest with counter contentions. Pakistan denied having aided the tribal invaders or armed interference and accused India of seizing Jammu Kashmir and of trying to repress Pakistan in its initial stages. The first United Nations debate on Kashmir started under the title of “Kashmir Question”. However, the Pakistani delegation argued that the Kashmir Question had to be seen in the context of India’s attempts to deny the existence of the newly born State of Pakistan and that the conflict in Jammu Kashmir was threatening the very survival of Pakistan. The Pakistani argument was to prevail and the debate in the United Nations shifted from “Kashmir Question” to “India-Pakistan dispute”.Till 1951, UN appointed few plebiscite administrators but no progress yielded as both the contending parties failed to cooperate with UN officials.
Dixon Plan seemed to be the last serious attempt on part of the UN to resolve the Jammu and Kashmir conflict. Although Pakistan kept floating the Kashmir issue in the United Nations in the 60s, UN involvement in Kashmir was noticeably reduced after Indo-Pak war of 1965. In 1962 the Kashmir Question was again debated in the UN Security Council. However, the UNSC failed to pass a resolution on Kashmir in view of a Soviet veto, which discouraged the UNSC from pursuing the Kashmir question afterwards.
The UN was practically pushed out of the Kashmir dispute by Soviet Union after the Indo-Pak war of 1965 when Soviet Union negotiated the Tashkent Peace Agreement between the two contending nations on 10 January 1965.During the Indo-Pak 1965 war the UN passed a strongly phrased resolution, calling on India and Pakistan to agree on a ceasefire. However it was only after intense pressure applied by the two superpowers, United States of America and the Soviet Union that India and Pakistan agreed to observe a United Nations backed ceasefire on September 29, 1965. The last United Nations Security Councils’ resolution (307) that dealt with Kashmir was passed in the wake of the India –Pakistan war of 1971, where Kashmir was not at the center of the conflict between the two countries. The resolution could be passed only after Indian had declared a one-sided ceasefire. UNSC’s attempts to pass resolutions during the 1971 war were blocked by a Soviet veto and with the signing of the Shimla peace accord between India and Pakistan in 1972, which laid stress on bilateral solutions to the Kashmir issue, the UN involvement in Kashmir was in reality dead.
The failure of the UN in mediating a solution to the Kashmir dispute can be largely attributed to Indian and Pakistani non-cooperation and refusal in implementing the resolutions. Secondly and more importantly the United Nations failed to recognize Kashmiri people as the major and most important party to the conflict. Instead of honoring the universally recognized definition of the “Right to Self-Determination” of Kashmiri people, the United Nations offered them to accede either with India or with Pakistan. Their right to remain as an independent nation and state was denied in the United Nations Security Council and United Nations Commission for India and Pakistan resolutions. The commission responsible for plebiscite mechanism in Jammu and Kashmir also neglected the Kashmiri people as its nomenclature, United Nations Commission for India and Pakistan was itself speaking something else than the right of Kashmiri people to be safeguarded and recognized.
The last hope was UNSC closed door informal consultations on August 16, 2019 but again Shimla agreement and lack of diplomatic backing from any center of power ended in despondency and fiasco.
A Way Forward: South Asian People’s Perspective
The principle of self-determination and political equality has prevailed as the guiding principle for decolonization ever since the end of WWII. Much progress has been accomplished and political independence for many former dependent states (micro-states, even) has been grasped, but the decolonization process remains stuck. No territory has achieved self-government since East Timor (now Timor-Leste) won full independence from Indonesia in 2002. It is largely due to absence of balancing powers after the collapse of Soviet Union.
Sometimes these are the circumstances surrounding us choosethe nature of reaction in the existing and prevailing situation if we do not have strong nerves. Such occurrences are always the consequence of our external conditions and internal state of affairs. When there are series of inexcusable killings and other forms of violence in our surroundings, our anger gets to the degree where the same reaction from our side becomes indispensable. Secondly many of the times we are not left with many options. And when the options are limited, we tend to choose the one which has higher degree of magnitude in terms of revenge or retaliation. Such an incident is beyond control and even many of the peace loving people followed the same assortment because the external factors are so extremely violent that they shake our mind, soul and body.
However, we should not forget that forces of evil and denial always keep an eye to create such an environment of violence around us, so that political economy is made flourishing the maximum outcomes. If we get trapped in such a situation, we may not act as a proxy but practically we are. The Kashmir conflict is now expanded to inner layers of the society in entire subcontinent. Masses across subcontinent are feeling the heat created by what has been boiling in Kashmir for seven decades. Extreme poverty, rising extremism and intolerance have become major challenges Indian and Pakistani people have to face due to unresolved Kashmir conflict. The resolution is only possible in a wider context now and that is South Asian collective prospective. Unless democratic and sane voices of South Asia in general and India-Pakistan in particular do not feel the obligation of joining the oppressed people in Jammu Kashmir, the conflict will keep on impacting the regional peace and stability and thus hindering the collective development. By installing armed soldiers on borders, killing thousands, even achieving nuclear power status could not guarantee the collective advancement. So what are the options left for people in subcontinent? The only viable option left for democratic forces in subcontinent to pursue their respective states to revisit their failed policies, demilitarize the entire Jammu Kashmir and end the occupation in a sane manner. If international efforts including UN attempts have failed time and again, let us do it regionally and democratically. Let us all demand the demilitarization and the restoration of normalcy in Jammu Kashmir, let the people free of any fear and subjugation, cooperate with each other, and find out the ways of mutual progress peacefully through meaningful people to people dialogues. It is only possible when we all feel the pain and think rationally. Realization and rationality are the major factors at this crucial juncture of history.
What that rationality demands from all of us in the greater subcontinent is to come out of narrow nationalism, imposed patriotism and faulty national egotism. We all have used aggressive and violent means and even then we have not moved a single step in resolving the conflict. Where is the missing link? That missing link lies in compassion, reconsideration, intimacy and tenderness. We cannot expect all this from governments; only wise and sane masses across subcontinent can play their vital role to end the status quo that has absorbed seven decades. Our collective freedom can only be guaranteed and safeguarded through collective efforts, mutual understanding and respect. If we still choose to leave it only on Delhi and Islamabad, then we are going nowhere. A tiny minority at Delhi and Islamabad would always be benefiting from political economy of confrontation across the national borders but the majority would be suffering for ages to come.
(Nayyar N Khan is a US based human rights, peace activist and a freelance journalist of Kashmiri origin. His area of concentration is international peace and conflict resolution. He can be reached at email@example.com)