The Conflict

A cartoon published in an American newspaper in 2002 showed former President George W. Bush sitting behind his desk in the Oval Office, utterly confused by a news report he was reading about India and Pakistan going to war over Kashmir. “But why are the two countries fighting over a sweater,” he asked Dick Cheney, who stood by with his usual sly smile on his face.

Besides reflecting the intellectual capacity of the American president of the time, the cartoon was a realistic portrayal of the understanding that American leaders have generally shown of this longstanding dispute between Pakistan and India.

Protests against Indian rule in Kashmir erupted earlier this month after a 17 year old girl was killed by a police teargas shell (AFP)

Protests against Indian rule in Kashmir erupted earlier this month after a 17 year old girl was killed by a police teargas shell (AFP)

The unresolved Kashmir conflict has rocked South Asia for six decades. It has created an environment of distrust and acrimony, forced the people to sink into poverty with bulk of the resources consumed by the war machines and claimed lives of hundreds of thousands of innocent civilians, as well as soldiers who died in the three wars fought between India and Pakistan. India, whose forcible occupation of Kashmir in 1947 created the conflict, refuses to settle it. The other stake holders, the Kashmiri people and Pakistan, insist on a fair solution. The international community, including the US and the United Nations, played little or no role in diffusing it either. Consequently, the conflict has developed into one of the most intractable problems of international politics that remains a continuing threat to peace of the region.

Indian Brutalities and the International Reaction

India has not hesitated to use brutal force to maintain its hold on Indian occupied Kashmir and suppress revolt. The US, UN and other international organizations failed to take note of grave human rights violations. They failed to provide any specific, actionable proposals for a permanent solution. All they extended were diplomatic courtesies, suggested vague formulas and generalities that are open to multiple interpretations.

Although the US considers South Asia to be a sensitive and strategically important region from its geopolitical, security and economic standpoint and has expressed the desire to see peace prevail, yet it has so far paid only lip service to finding a permanent solution. It would not chastise India for human rights violations, which would have attracted its immediate attention if these were taking place in a country that it had chosen to punish, for fear of displeasing or alienating India which it has aggressively been courting in recent years.

This situation was compounded by the Indian dreams of regional hegemony that led it to dismember Pakistan in 1971 and go on to become a nuclear power, which forced Pakistan to develop its own nuclear deterrent for safeguarding its security.

Consequently, India has consistently and blatantly refused to honor the will of the people, negotiate Kashmir’s future status and stop the use of brutal force.

The Conflict Leads to the First Kashmir War

In the wake of the August 1947 partition of British India that brought into existence two sovereign states of the Indian Union and Pakistan, the British left after having midwifed the Kashmir dispute that has since bedeviled peace between the two countries. Essentially, the agreed principle that governed partition was that Muslim majority states to the east and west of British India would form Pakistan, while rest of the subcontinent was to form Indian Union.

Decisions by several Muslim rulers for accession of their states to Pakistan that had Hindu majorities (Hyderabad, Junagadh and Manavadar being cases in point) were rejected on the grounds that a Muslim ruler did not have the right to overrule the will of the Hindu majority population. But the decision of the Hindu Raja of the princely state of Kashmir, which was predominantly a Muslim majority state and should have acceded to Pakistan, was immediately accepted by the British viceroy and the Indian government, despite a popular Kashmiri revolt against his decision. Although an agreement of non-intervention in Kashmir had been signed between India and Pakistan, the new Indian government sent troops into Kashmir at the request of the Hindu ruler to enforce the instrument of accession and forcibly occupy the territory, in disregard of the agreed principle of accession applied elsewhere.

This led to the first Kashmir war in 1947 between India and Pakistan. In 1948 India sought cease fire, taking the issue to the UN Security Council, which passed resolution 47 on 21 April 1948, imposing an immediate cease-fire along the line of actual control of territory by both parties and calling on them to withdraw their troops. It also ruled that “the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations.” The cease fire was enacted in December 1948, with both governments agreeing to hold the plebiscite in areas under their control. Ever since, India has been rejecting all resolutions of the Security Council and the proposals of the UN arbitrators for demilitarization of the region—all of which were accepted by Pakistan.

The Security Council Steps In

Although the resolutions of the Security Council were regarded as the ‘documents of reference’ for a durable and internationally acceptable solution, no steps were ever taken for their implementation. This was because in technical terms these were not enforceable—not having been based under Chapter VII of the Charter. This allowed India to get away, dashing the false expectations of the Kashmiris as to the possible role of the United Nations as facilitator of a solution to the Kashmir problem.

This injustice to the Kashmiri people was intrinsically linked to the veto privilege of the permanent members of the Security Council and the lack of unanimity between them for enforcement measures according to Articles 41 and 42 of the Charter. Their plight is similar to that of the Palestinians, in whose case also resolutions 242 (1967) and 338 (1973) that call upon Israel to withdraw from occupied Arab territories are not based on Chapter VII and have hence enabled the occupying country, Israel, to ignore them.

That the United Nations Organization follows double standards was clearly visible when it adopted compulsory resolutions in other conflict situations, such as in case of the occupation of Kuwait by Iraq in 1990-1991, where the US—a permanent member, having an interest in the matter, was able to force the hand of other permanent members to do its bidding.

The cease fire line between the Indian and Pakistani sides of Kashmir has since become the Line of Control and continues to be monitored by UN observers.

India Annexes the Disputed Occupied Kashmir

Thereafter, ignoring the Security Council resolutions, disregarding the internationally accepted ‘disputed’ status of the state and defying the will of the people, India went on to annex Occupied Kashmir into the Indian Union through an amendment to its Constitution, claiming it to be an integral part of India. For its part, Pakistan continues to regard the part of Kashmir under its control as disputed territory and allows it self-rule. It continues to plead for a final settlement taking the position that the people of Kashmir on both sides must get the right to choose their future through self determination.

People of Kashmir Demand the Right Of Self-Determination

The people of Kashmir had begun to wage a struggle against the Hindu Raja’s rule as far back as in 1931 and refused to accept Indian occupation from the day it was imposed in 1947. Their struggle has since intensified and they have called for accession of a united Kashmir to Pakistan. Rejecting their demand, successive Indian governments have tried to suppress the struggle by use of force.

Writing in Kashmir Watch of July 11, 2010, a Kashmiri academic, Dr. Manzoor Alam, urged world bodies like the Arab League, OIC, Asia watch, human rights organizations and the European Union to make a paradigm shift in their policies and move from ‘mere condemnation’ to throwing their political weight and resources behind the Kashmiris in their freedom struggle: “[W]we are talking about freedom from India which is our basic and fundamental right and this right was promised to us by Jawaharlal Nehru on June 26, 1952. We make an earnest and urgent appeal to the conscience of the world to act promptly to save Kashmir and her people. It is time for the United Nations to wake up to its responsibilities. It has to assume its duty in saving millions of Kashmiri lives. Enough is enough.”

Grave Human Rights Violations

Indian troops in combination with paramilitary forces and state police have let loose a consistent and massive reign of terror on unarmed civilians. Men, women, and children, young and old, are being indiscriminately killed, injured and maimed and women are being raped with impunity.

A recent report on Human Rights violations states that that between 1989 to June 30, 2010 the number of Kashmiris killed at the hands of Indian security forces stands at 93,274. Additionally, there have been 6,969 custodial killings, over 107,351 children have been orphaned, 22,728 women widowed and 9,920 women gang raped. In June 2010 alone, 33 people were killed including four children, 572 people were tortured and injured and 8 women were molested, 117,345 people were arrested and 105,861 houses or structures in the use of the communities were razed or destroyed.

Human rights groups blame the culture of impunity among security forces in Kashmir on a controversial 1990 national law granting soldiers the right to detain or eliminate all suspected terrorists and destroy their property without fear of prosecution. Critics call this provision a license to kill as it does not clearly define “terrorists”.

The murky cycle of violence is picking up speed. The killing of innocent civilians draws protests in all nooks and corners of the state by enraged people which in turn provoke the security forces to indulge in more killing. More recently, the state has remained on a knife’s edge since June 11, when angry protests began against the killing by Indian security forces of three 11th grade teenagers without provocation. This continues to happen also because the state or the federal government does not believe in explaining their actions or carrying out investigations and punishing those who use excessive force. Instead, the Indian government proudly calls all of these achievements as successful counter-insurgency operations.

To punish the Muslim population of Jammu and Kashmir for the uprising, the state machinery is economically strangulating it through the ruthless action of road blockades that have resulted in acute shortages of foodstuff, medicines and other critical items of daily use in the valley. Protestors were fired upon earlier this month, resulting in the loss of hundreds of innocent lives, including some prominent leaders.

India Attempts Demographic Changes

Under a well thought out plan, India has brought about a demographic change in Jammu after the Hindu rule was imposed in October 1947. Muslims constituted 62% of the population there according to a 1941 census, a percentage that now stands in the 30s. The Indian government is now focusing on the Kashmir valley where land allotments to Hindus from outside the state are being made to encourage population transfer in order to reduce the Muslim majority.

India Cold Shoulders Pakistan’s Out Of the Box Solutions

Pakistan’s willingness, as stated by Pakistan’s former President Pervez Musharraf, to get away from old paradigms and launch fresh proposals for a just and durable solution, did not draw any bold steps or a concrete response from India. Although he went so far as to say that for the sake of a settlement, options that are “unacceptable to either side” should be set aside and he went on to float the idea in December 2005 of a “United States of Kashmir” that would include all regions, India did not show any interest in engaging in a meaningful dialogue. India has continued hedging the core issue and has instead been raising peripheral issues one after the other as an evasive tactic. It has been demanding confidence building measures before any dialogue could seriously get underway but even these CBMs initiated by Pakistan did not prove enough. The track II diplomacy has also not been able to achieve much. This causes frustrations, not only for Pakistan but also among the Kashmiris, causing a very volatile climate, further raising the political temperature.

In Search Of the Solution

After six decades of bloodshed and armed confrontation, Indian leaders should realize the impossibility of sweeping the issue under the carpet or keeping the Kashmiris subjugated through force, an option which has acquired an entirely new dimension due to India and Pakistan having become nuclear powers. It is now time that India should move, and move with sincerity, towards resolving the dispute with the following in mind:

(a) A solution must be pursued not only on the basis of bilateral approach involving India and Pakistan but also on the tripartite level that would take into account the wishes of the people of Kashmir.

(b) Kashmir must be treated as an issue of basic human rights, which forms part of the jus cogens of general international law. Kashmir is also an issue of religious rights and identity where the majority Muslim community has been adversely affected by the partition along the “Line of Control”.

(c) Kashmir is not only a regional issue in terms of territorial claims by three states, including China, but it is, at the same time, a matter concerning the international community since it has implications for global peace and security. The nuclear potential of the three powers actually controlling parts of the disputed territory can simply not be ignored.

(d) The struggle of the people of Kashmir must not be confused with the so-called “global war on terror”, which happens to be a superpower agenda that is alien to this conflict. Instead of falling in this trap and making this issue further intractable, India needs to understand the dictum: “one man’s terrorist is another man’s freedom fighter.”

(e) In the interest of finding a durable solution, India will have to move away from the police and military approach, or as India likes to put it, as “a battle against terrorists”. Instead of dealing with symptoms, it must address the root cause of the conflict—the question of self-determination.

(f) Police brutalities, rape and other human rights violations will have to come to an end and have to be prosecuted with full determination and without bias. At the same time, deliberate attacks on civilians will have to be terminated once and for all.

(g) The legacy of the Security Council resolutions 38 and 47 (1948) as well as the resolutions adopted by the UNCIP in 1948 and 1949 cannot be discarded, in spite of the time that has elapsed since their adoption, as these have neither become obsolete, nor invalid nor have they been recalled by the Council at any stage. On the other hand, ten years after the initial resolutions, Security Council resolution 122 (1957) reaffirmed the same democratic principle as basis of a just solution. India’s Prime Minister Jawaharlal Nehru is on record fully endorsing this principle when on November 2, 1947 he said: “We have declared that the fate of Kashmir is ultimately to be decided by the people. That pledge we have given […] not only to the people of Kashmir but the world. We will not, and cannot back out of it. We are prepared when peace and law and order have been established to have a referendum held under international auspices like the United Nations.”

It is time for Indian present leadership to listen to its founding fathers, if it does not wish to listen to the rest of the world.