Resolution of the Jammu and Kashmir Conflict — The Way Forward

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Resolution of the Jammu and Kashmir Conflict — The Way Forward 25.09.2019 16:42

 Professor Dr Shahida Wizarat    

  1. I.       Introduction

 

The need for writing this paper was felt as very nonsensical proposals on resolving the Jammu and Kashmir conflict are being floated by India to the international community. I have tried to address the caveats of these so-called proposals. But before I do that, I start the discussion with the cowboy style of doing business with the advent of Donald Trump and Narendara Modi on world stage in section II. This is followed by Section III which gives the back ground of the Kashmir problem. Section IV brings the reader up to date with the more recent developments. The proposal being floated by the Indians is discussed in section V, along with the caveats. I have given a counter proposal in the same section, which is not only legally in line with the Indian Independence Act 1947, it is politically more realistic and is in accordance with the resolutions adopted by the UN Security Council. It is in accordance with the wishes of the people of Jammu and Kashmir, the founding fathers of Pakistan and India. The proposal also meets the requirements of justice and fair play. In other words, it is an optimal solution. The study is concluded in Section VI.

  1. II.    The Advent of Trump and Modi on World Stage

Donald Trump recently expressed his desire to buy Greenland. And when the Greenlanders rejected the offer he cancelled his state visit to Greenland. “It's a very non-diplomatic and outdated way of thinking as a super power. Its arrogant and ignorant,” [1]stated the former Prime Minister of Greenland Aleqa Hammond. Although the north of the country already has a US air base, which is quite close to the new military installations Russia has in the Arctic. A former minister Mr Mute Egede summed up the pride of the Greenlanders very well when he said “Greenland will always be ours”. Earlier under US pressure Denmark had stopped Greenland from expanding the development of three airports with Chinese help. Ms. Hammond further stated “We are here to protect the interest of Greenland and to stop the Arctic from being the center of a new Cold War”. And the same was reinforced by Mr. Egede when he said “Our main message is that we don't want to see more militarization in the Arctic.” These statements show the resolve of the statesmen who have the experience and the insight to understand the intrigues of strategist and Cold War mongers. But the statement of a Greenland student reveals not only his ability to understand strategic matters, but uprightness as well, when he stated: “I am worried about finding a job. Maybe the US can help with that. But they can't buy Greenland — that is so stupid.”

But the crude and feudal way of conducting international matters are not limited to Donald Trump. His protégé in the sub-continent Narendra Modi is aping the US president. In the $76 bn project India recently unveiled, Modi has tried to integrate India’s own strategic interests with those of US, UK, Israel and some Arab countries, under the cloak of a tourist development project. The project camouflages the strategic interests of USA, UK, India, Israel and the Arab countries in the guise of development and commercial interests of business empires. India is trying to illegally annex Jammu, Kashmir and Ladakh backed by Arab wealth and brute force from USA, UK and Israel. The US and U.K. are trying to achieve their strategic objectives of conducting surveillance on China and Russia, and the wealth the project generates will come handy for the recession hit economies, particularly for Britain faced with the catastrophic Brexit fallout. Israel which is still a pariah state, hopes to legitimize its strategic existence close to Iran and Pakistan, in addition to generating wealth. Arab countries are also trying to locate themselves strategically, getting closer to Iran, their arch rival, and the wealth generation will be an externality.

So each is trying to reap benefits which they could not achieve otherwise. But it is a very crude and feudal way to achieve their strategic objectives. And if the international community doesn't realize the strategic impact of such “development projects” and reacts accordingly, brute force will become the basis for countries or groups of countries, going around the world grabbing whatever they fancy, throwing local populations out of their homes, and relocating outsiders following the ugly example set by Israel in Occupied territories. It is also action replay of primitive times when colonial powers went around the world, laying their hand on whatever they fancied, dislocating local populations and occupying their lands and means of livelihood. Brute force is going to decide everything, as it did when the Americans conquered the Red Indians and took over their land, the British conquered more than half the world, the French, the Spanish, the Portuguese, etc. occupied more than 86 percent of the World area at the peak of imperial adventures.

III. Background to the Kashmir Dispute

Prior to independence of the sub-continent Jammu & Kashmir was a princely state under British rule. Both the Cabinet Mission Plan and the India Independence Act 1947 gave the princely states the option to remain independent or accede to Pakistan or India.  According to the partition plan all the Muslim majority areas would form the state of Pakistan, and all the Hindu majority areas would form part of India.[2] When the Independence Act was promulgated and the two dominions Pakistan and India emerged as independent states, the Muslim minorities in the Hindu majority areas migrated to Pakistan and the Hindu minorities in Muslim majority areas migrated to India.  But the princely states presented the peculiarity that the religion of the ruler and the subjects was different. The Cabinet Mission, therefore, decided that if the religion of the ruler was different from that of the subjects, a referendum would be held to determine the will of the people. Jammu & Kashmir was the only Muslim-majority state.

The Hindu ruler Maharaja Hari Singh initially decided to remain independent. In fact, a ‘Standstill Agreement’ was signed by him with Pakistan which transferred responsibility for administering the post, telegraph and railways from India to Pakistan. This arrangement continued till October 1947, when due to disturbances in Jammu and Kashmir the Maharaja fled Srinagar and is stated to have signed an ‘Instrument of Accession’ with India on 26 October 1947. The Governor General of India accepted the accession on the condition that after restoration of law and order in Jammu and Kashmir, the issue would be settled by recourse to the will of the people. This led to an armed conflict between Pakistan and India.  India referred the matter to the UN Security Council on 1 January 1948. The Security Council passed Resolution 39 on 20 January 1948, to establish the United Nations Commission on India and Pakistan (UNCIP) to investigate the allegations made by Pakistan and India against each other. Thereafter, the Security Council adopted Resolution 47 on 21 April 1948 advising all foreign forces to withdraw, establish an interim government to represent all the major Kashmiri political groups and send a five-member UNCIP team to help restore peace and arrange a fair plebiscite. The fate of the state of Jammu and Kashmir was to be decided by a plebiscite.  India’s refusal to withdraw from Jammu and Kashmir insisting that Pakistan should withdraw first, resulted in a stalemate and the holding of a free and fair plebiscite impossible. Pakistan did not want to withdraw first as India had earlier annexed the states of Hyderabad, Junagarh and Manavadar that had acceded to Pakistan. India’s reluctance to demilitarize and hold on to Jammu and Kashmir through brute force was because it realized that the result of the plebiscite will not support the valley joining India.

The Government of India’s stance for “the people of the state to decide for themselves whether they will remain with the republic or wish to go out of it’ were repeated by several Indian leaders and governments. And that ‘ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed’ was promised by Prime Minister Jawal Lal Nehru.

In order to formulate a Constitution for the state of Jammu & Kashmir India convened a Constituent Assembly in October 1951. According to the International Commission of Jurists the election of the assembly was ‘in a manner which deprived it of all democratic legitimacy’[3].  The Security Council, therefore, passed Resolution 91 of 1951 which termed the convening of the Constituent Assembly and any actions taken to determine “the future shape and affiliation of Kashmir would not constitute a disposition of the State in accordance with the principle of a free and impartial plebiscite conducted by the UN[4]”.

 

Article 370 was added to the Indian Constitution as an interim measure to provide constitutional cover to the Instrument of Accession. The Article exempted Jammu & Kashmir from the provisions of the Indian Constitution and restricted Indian Parliament’s legislative power over the State to three subjects: defense, foreign affairs and communication. Any further constitutional provisions for the state of Jammu and Kashmir required the prior concurrence of the Jammu and Kashmir government, which had to be ratified by its Constituent Assembly. In addition, inclusion of Article 35-A of the Indian Constitution was supposed to protect native Kashmiris from displacement and bringing about demographic changes by preventing Indians from purchasing property or certificates of permanent residence in Jammu & Kashmir and access to government jobs.

The Indian government dissolved the Constituent Assembly in January 1957 after framing the Constitution for Jammu & Kashmir, which declared the of State of Jammu and Kashmir an ‘integral part of the Union of India’. By doing so, India blatantly defied the Security Council resolution cited earlier. The Security Council responded to this blatant audacity of the Indian government by adopting Resolution 122 of 1957, which clearly stated that “the actions taken by the Constituent Assembly would not satisfy its earlier resolutions calling for a plebiscite[5].

IV. Recent Developments

The Constituent Assembly of Jammu and Kashmir was dissolved by India in November 2018. In a prelude to embarking on its illegal mission of annexing Jammu, Kashmir and Ladakh, the Indian government clamped down on civil liberties in the state. All the leaders were placed under arrest, telephone, internet and communication networks were disconnected, tourists were ordered to leave, a Hindu pilgrimage was cancelled, curfew was imposed and the state literally locked down. Additional troops were brought in, making Jammu, Kashmir and Ladakh the most militarized zone in the world. On 5 August 2019, President of India issued Presidential Order C.O. 272 which abolished the autonomy and special status of Jammu & Kashmir through abrogating Article 35-A and Article 370 from the Indian Constitution.

This unilateral act of the Indian government is illegal according to international law. According to Ahmer Bilal Sofi et.al: “In our view, the State of Jammu & Kashmir has historically been under a state of Indian occupation. With the events of 5 August 2019 the situation has become an occupation with an unlawful annexation[6].”

They further state: “Under International Law an occupation is a question of fact. Consequently, the existence of an occupation does not depend on a declaration by the Occupying Power that it is in occupation or any recognition of the occupation on its part. It merely requires that the situation meet the defined factual criteria in order for it to be so classified. Moreover, the intention of the Occupying Power also does not matter – whether they aim to exploit the country or liberate the population does not have any effect on the classification of the situation.”

The unilateral alteration of the status of Jammu & Kashmir by the Indian government is also in violation of Security Council Resolutions 91 of 1951 and 122 of 1957. Article 42 of the Hague Regulations 1907 states: “Territory is considered occupied when it is actually placed under the authority of the hostile army.”[7]   Article 42 of The Hague Regulations 1907 is “most widely accepted as being customary international law applicable to all States.”  

India has also violated the Instrument of Accession on the basis of which it claims accession to Jammu & Kashmir, which denies India the authority to unilaterally take action on Kashmir. Clause 5 of the Instrument of Accession states[8]:

“5. The terms of this my Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947, unless such amendment is accepted by me by an Instrument supplementary to this Instrument[9].”

Clause 7 of the Instrument of Accession notes:

“7. Nothing in this Instrument shall be deemed to be a commitment in any way as to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangement with the Governments of India under any such future Constitution.

According to Soofi et.al “Article 370 represented the unique terms on which Jammu & Kashmir is purported to have acceded to India as set out in the Instrument of Accession. By unilaterally abrogating Article 370 without any recourse to the Kashmiri people and their elected representatives, India has materially breached the Instrument of Accession, further undermining its claim to legal title to Jammu & Kashmir.”

The unilateral action of the Indian government is illegal according to the Simla Agreement of 1972 as well, which bound both Pakistan and India:

“Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and both shall prevent the organization, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations[10].”

The Simla Agreement binds the two parties further:

“.…..  the representatives of the two sides will meet to discuss further the modalities and arrangements for the establishment of durable peace and normalization of relations ………. a final settlement of Jammu & Kashmir.”

The annexation of Jammu, Kashmir and Ladakh by India is illegal and in contravention of Article 42 of The Hague Regulations 1907, the Instrument of Accession, Security Council Resolutions 91 of 1951 and 122 of 1957 and the Simla Agreement of 1972. In view of this, all the actions taken by the Government of India in Occupied Jammu, Kashmir and Ladakh are illegal. And all the violence unleashed on unarmed people of the state by the Indian army, paramilitary forces, police and RSS are without lawful authority, and are therefore, acts of terrorism. The use of brute force, the beatings of youth, the rapes of women, the use of teargas shells and pellet guns, the lockdown for more than a month, denying the people access to food, medicines and essential goods and services are acts of terror. As an illegal occupier India is using brute force to kill, maim and blind the population to reduce the percentage of Muslim population. Even children as young as twelve years are being taken into custody. The genocide of the Jammu, Kashmir and Ladakh populations is being carried out ruthlessly by the Indian army, paramilitary forces and RSS who have been trained for the last several years, and have hands on experience having unleashed similar acts of terror on Indian Muslims in the form of lynching, cutting body parts, and such cruel and inhuman terrorist acts.

India has of late started following the inhuman example set by Israel of forcibly occupying Palestinians homes and throwing out the inhabitants.  The RSS terrorists who have been let loose on the unarmed people of Jammu, Kashmir and Ladakh are forcibly removing the local population and taking over their houses and personal belongings. All these actions aim to bring about demographic changes, converting the Muslim majority into a minority to undermine their right of self-determination.  Article 49 of the Geneva Convention IV prohibits the Occupying power to transfer its citizens into Occupied Territory. This is to ensure that the majority is not changed into minority with adverse consequences on the right of self-determination of the local population

V.  Proposals on Resolving the Jammu, Kashmir & Ladakh Problem

Indian Proposal

While India is using extreme repression to subdue the people of Jammu and Kashmir, it is also touting diplomatic solutions. Of late, it has floated a proposal which envisages getting the Muslim population to migrate from Occupied Kashmir to Azad Kashmir, following the migrations that followed the partition of the sub-continent.  But this proposal violates the Independence Act 1947, as the Act entailed the division of the sub-continent in to two dominion states Pakistan and India. The basis of partition was that the Muslim majority areas would form part of Pakistan and the Hindu majority areas would constitute India. From the Muslim majority areas, the minority Hindu population migrated to India and from the Hindu majority areas the minority Muslim population migrated to Pakistan. So it was the minority population that migrated out of their countries and not the majority population that migrated. Whereas, the Indian proposal envisages the migration of the majority population out of their homes, something quite absurd and unheard of. If indeed, the problem has to be resolved as per the Indian Independence Act 1947, the Act is very clear that the future of the princely states has to be decided through a free and fair plebiscite.

Counter Proposal

It is important to be aware of the demography of the state of Jammu, Kashmir and Ladakh before venturing to propose anything regarding the future of several million people. Occupied Kashmir has a population of more than 12.5 million. According to the 1941 census Muslims were 72.41% of the population and Hindus 25.01%. In the 1961 census, the percentage of Muslims declined to 68.31% of the total, while that of the Hindus increased to 28.45%. The proportion of Muslims fell to 64.19% in 1981 but increased to 68.31% in 2011[11].  

The state is sub divided into three divisions, i.e. Jammu, Kashmir  and Ladakh. In 2006, eight new districts were added to the existing 14, raising the total to 22. Of these 22 districts, 17 are Muslim-majority districts, 10 in Kashmir, six in Jammu and one in Ladakh. There are three Hindu-majority districts all in Jammu and one Buddhist-majority district in Ladakh[12]

The Kashmir Valley has a Muslim majority (97.16%), a small minority of Hindus (1.84%), followed by Sikhs (0.88%), Buddhists (0.11%). The valley consists of the following ten districts which are all Muslim majority: Anantnag, Baramulla, Budgam, Bandipore, Ganderbal, Kupwara, Kulgam, Pulwama, Shopian and Srinagar. The Jammu Division has a Hindu majority (66%), followed by Muslims (30%) and Sikhs (4%) The Hindu majority districts are Kathua, Samba and Udhampur. While the Muslim majority districts are Rajouri, Poonch, Doda, Kishtwar, Reasi and Ramban. Ladakh has Muslim and Buddhist population. The division comprises of Leh and Kargil districts. Religion wise breakdown of the division is Kargil 76.87% Muslim, while Leh has 66.40% Buddhist population as per the 2011 census[13]

 The first and most obvious solution is self-determination as enshrined in the Security Council Resolutions 91 of 1951 and 122 of 1957. It is also in accordance with the Indian Independence Act 1947, and has been repeatedly supported by Indian leaders of stature, who are also the founding fathers of India. It has the support of successive Pakistani governments, and most important of all, it is what the people of Jammu and Kashmir want, for which they have been laying down their lives for the last 72 years.

A second proposal is also in line with what the Indian Independence Act 1947. It was what the Act had proposed for India instead of the princely states.  The solution of the state of Jammu, Kashmir and Ladakh along religious lines, as proposed in the Indian Independence Act 1947 can be the second option. According to the district wise demographic information available, all the ten districts in the Kashmir valley are Muslim dominated and could accede to Pakistan. In addition, the six Muslim majority districts in Jammu and one Muslim majority district of Ladakh could accede to Pakistan. Of the three Hindu majority Jammu states, two can accede to India and bearing in mind the large Sikh population, one can become a Sikhs territory. While the one Buddhist majority area can opt for China.

This would be followed by the migration of Muslims from Ladakh and Hindu majority Jammu districts to Kashmir and Muslim majority Jammu and Ladakh districts. Likewise, the Hindu population from Kashmir and Ladakh can migrate to Hindu majority Jammu districts and the Buddhist population from Jammu and Kashmir  migrate to Buddhist Ladakh.

Both the options presented by me are in line with the Indian Independence Act 1947. They are in accordance with the wishes of the population as openly expressed by them during agitations. It is also what the governments of Pakistan and India and their founding fathers have been opening supportive of. It will bring peace and get rid of the sufferings of the people in Jammu, Kashmir and Ladakh and the sub-continent.  And it will bring peace to the this highly explosive region laced with conventional and nuclear weapons!

VI. Conclusion 

Government of India’s annexation of Jammu, Kashmir and Ladakh on 5 August 2019 is an illegal act, in violation of the Indian Independence Act 1947. The annexation is in contravention of Article 42 of The Hague Regulations 1907, the Instrument of Accession, Security Council Resolutions 91 of 1951 and 122 of 1957 and the Simla Agreement of 1972. In view of this, all the actions taken by the Government of India in Occupied Jammu, Kashmir and Ladakh are illegal. And all the violence unleashed on unarmed people of the state by Indian army, paramilitary forces, police and RSS are without lawful authority, and therefore, acts of terrorism. The genocide of the people of Jammu, Kashmir and Ladakh with the objective of bringing about demographic changes to undermine the right of self-determination violates Article 49 of Geneva Convention IV.

Indian proposal envisaging migration of Muslims from Occupied Kashmir to Azad Kashmir following the migrations that followed the partition of the sub-continent is in violation of the Indian Independence Act 1947. The migrations in 1947 were from Muslim majority areas of Hindu minorities and from Hindu majority areas of Muslim minorities. So it was the minority population that migrated out of their countries and not the majority population. If indeed the problem has to be resolved as per the Indian Independence Act 1947, then the Act is very clear that the future of the princely states has to be decided through a free and fair plebiscite.

 The solution of Jammu, Kashmir and Ladakh on the basis of religion of the different components that constitute the state, will be what the Independence Act 1947 proposed for undivided India. The first and most obvious solution is self-determination as expressed through a fair and independent plebiscite, as enshrined in Security Council Resolutions 91 of 1951 and 122 of 1957. It is also in accordance with the Independence Act 1947 and has been repeatedly supported by Indian leaders of stature, who are also the founding fathers of India. It has the support of successive Pakistani governments, and most important of all, that is what the people of Jammu, Kashmir and Ladakh have been struggling for.

A second proposal is also in line with what the Indian Independence Act 1947 proposed for India other than the princely states.  The solution of the state of Jammu, Kashmir and Ladakh along religious lines, as proposed in the Indian Independence Act 1947 can be the second option. According to the district wise demographic information on Jammu, Kashmir and Ladakh all the ten districts in the Kashmir valley are Muslim dominated and could accede to Pakistan. In addition, the six Muslim majority districts in Jammu and one Muslim majority district of Ladakh would also join Pakistan. Of the three Hindu majority Jammu states, two can go to India and one to the Sikhs, since they are a large minority in Jammu. While the one Buddhist majority area can opt for China.

This would be followed by migration of Muslims from Ladakh and Hindu majority Jammu districts to Kashmir and Muslim majority Jammu and Ladakh districts. Likewise, the Hindu population from Kashmir and Ladakh can migrate to Hindu majority Jammu districts and the Buddhist population from Jammu and Kashmir can migrate to Ladakh. Rigid attitudes will not only prolong the sufferings of the people in Jammu, Kashmir and Ladakh, but a full blown war between two nuclear powers will have horrendous implication for the subcontinent and the world at large!

The fight of the Kashmiris is not their fight alone. Kashmiris are fighting the region’s strategic war to keep extra regional powers out of this region. The outcome of the war between unarmed Kashmiris pitted against the brute force and wealth of several global and regional powers will determine the outcome of the New Great Game being played in our region. Whether extra regional powers, instead of exiting the region, which they have been claiming to do, are able to expand their presence to achieve their strategic goals against China and Russia specifically and the region generally. The success of the Kashmir battle will determine which way the pendulum will swing and the results of the outcome on stability, peace and prosperity of the region with horrendous implications for the region and the world at large!  

 

References

Ahmer Bilal Soofi, Jamal Aziz, Muhammad Oves Anwar, Ayesha Malik and Shayan Ahmed Khan, LEGAL MEMORANDUM. THE STATUS OF JAMMU & KASHMIR UNDER INTERNATIONAL LAW: THE LAW OF OCCUPATION AND ILLEGAL ANNEXATION,

Research Society of International Law, Pakistan, 2019.

Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907.

International Commission of Jurists (ICJ) Geneva, Switzerland, 1995,

Human Rights in Kashmir Report of a Mission, https://www.icj.org/wp-content/uploads/1995/01/India-human-righst-in-Kashmir-fact-finding-mission- report-1995

Milne, Richard, Greenlanders reject sale to US but urge investment, Financial Times, 24-25 August 2019.

Maharaja Hari Singh, Instrument of Accession of Jammu & Kashmir, 1947

Simla Agreement of 1972.

UNSC Resolution 91 (1951) S/2017/Rev.1 available at:

UNSC Resolution 122 (1957) S/3779 available at: https://undocs.org/S/RES/122(1957)

Wikipedia

Email add: drwizarat@icloud.com



[1] Milne, Richard, “Greenlanders reject sale to US but urge investment”, Financial Times, 24-25 August 2019.

[2] Human Rights in Kashmir Report of a Mission, International Commission of Jurists (ICJ) Geneva, Switzerland, 1995, https://www.icj.org/wp-content/uploads/1995/01/India-human-righst-in-Kashmir-fact-finding-mission- report-1995

[3] Human Rights in Kashmir, Report of a Mission, International Commission of Jurists, Geneva, Switzerland

[4] UNSC Resolution 91 (1951) S/2017/Rev.1 available at: http://unscr.com/en/resolutions/91

[5] UNSC Resolution 122 (1957) S/3779 available at: https://undocs.org/S/RES/122(1957)

 

[6] Ahmer Bilal Soofi, et.al (2019)

[7] Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907.

 

[8] Ahmer Bilal Soofi, et.al (2019)

[9]Instrument of Accession of Jammu & Kashmir, 1947 by Maharaja Hari Singh

[10] Clause 1(ii) of the Simla Agreement of 1972

[11] Wikipedia

[12] Earlier there were 14 districts, six each in Kashmir and Jammu and two in Ladakh.    The religious composition of these were as follows: ten were Muslim majority, six in Kashmir, three in Jammu and one in Ladakh.

[13] Wikipedia