Foto: Faizan Ahmad Sheikh, Shutterstock

The forgotten valley: are Kashmiris Not Humans?

The Conflict

A cartoon published in an American newspaper in 2002 showed former president George 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 asks Dick Cheney who stood by with his trademark 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 the international political leadership has generally shown of this longstanding dispute between Pakistan and India.

Human Rights Violations & the International Community

The unresolved Kashmir conflict has rocked South Asia for six decades. It continues to cause the people of both India and Pakistan to sink into poverty, with bulk of their meager resources being drained in the process of dealing with the consequences of this conflict. India continues to treat the Kashmiri people as if they were not human beings or as if they have no rights.

India has managed to get away with gross violations of human rights in Kashmir because of the apathy of the international community, including the US and the United Nations. The West, which shouts from the house tops to promote human rights in other places, shies away from applying the same standards to India. One sees alarm being raised over a minor incident of human rights violation in China, a high profile campaign of condemnation against the Iranian government in the aftermath of presidential elections, President Mugabe being run down over his policies, but one sees the same West turning blind in case of India, failing to notice much more serious violations of human rights including mass killings, rapes and massive abuse of power by the state machinery in Occupied Kashmir that has kept Kashmir, and with it the region, in a state of turmoil for six decades.

The UN has failed to provide any specific, actionable proposals for a permanent solution which has allowed the conflict to develop into one of the most intractable problems of international politics. All it has done so far is to extend diplomatic courtesies and suggest vague formulas and generalities that are open to multiple interpretations and lead nowhere. 

The US has shown increasing interest in South Asia, considering it to be strategically important from its geopolitical, security and economic standpoint. Tensions in the region do not suit its purpose. Yet this great advocate for human rights only pays lip service to violations that have been highlighted internationally by human rights organizations. It would not chastise India for the fear of alienating it. 

This has encouraged India to consistently and blatantly refuse to honor the will of the people and negotiate Kashmir’s future status and use brutal force against the protesters. 

The Partition & Forcible Occupation of Kashmir by India

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 neighbors. 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 Hindu majority states to Pakistan (Hyderabad and Junagadh 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 so called ‘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 a British viceroy biased against Pakistan and the Indian government, despite the fact that the Raja had fled Kashmir due to a popular Kashmiri uprising against him. Although an agreement of non-intervention in Kashmir had been signed between India and Pakistan, the new Indian government sent troops into Kashmir to enforce the “instrument of accession” and forcibly occupied the territory, in disregard of the agreed principle of accession applied elsewhere. Interestingly, the instrument of accession has never been made public as it is believed to be non-existent. 

First Kashmir War & the Security Council

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 that imposed an immediate cease-fire along the line of actual control of territory by both parties and called 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 ceasefire was enacted in December 1948, with both governments agreeing to hold the plebiscite in areas under their respective 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 for holding the plebiscite – all of which were accepted by Pakistan. 

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 mandatory – not having been based under Chapter VII of the Charter. This dashed the expectations of the people of Kashmir as to the possible role of the United Nations as facilitator of a solution to the dispute of forcible occupation of Kashmir by India. 

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

Later, 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. On 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 brutal 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. “… 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 there have been angry protests against the killing by Indian security forces of three 11th grade boys 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 1941 census which 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 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 went on to float the idea in December 2005 of a “United States of Kashmir” to include all regions, but India still did not engage in a meaningful dialogue. It continues to hedge the core issue and has instead been raising peripheral issues one after the other as an evasive tactic. It demands confidence building measures before any dialogue could seriously get underway and after Pakistan complies, it comes up with more demands. The Track II diplomacy has also not achieved much. India takes one step forward and two steps backwards. 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 indefinitely 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 solution must be found not only on the basis of bilateral approach involving India and Pakistan but also on the tripartite level that takes into account the wishes of the people of Kashmir.

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.”

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 having serious implications for global peace and security. The fact that all three countries actually controlling parts of the disputed territory are nuclear powers can simply not be ignored.

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.” If anything, India promotes terrorism like Israel does, by denying the people their rights and subjugating them against their will. 

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.

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.

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

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