India’s Kashmir faux pas & UN role

By Syed Qamar Rizvi.

 

 

Kashmir remains an international humanitarian, political and legal issue. Years after years both the governments and leaderships remained changing in India but what has not been changed is the toxic Indian policy or attitude in the Indian held Kashmir. Unfortunately the Indian thinking for the last 69 years has been that as longer as India delays a resolution on Kashmir the better. Yet what India cannot be changed is the irrevocable, unmutable and irrefutable truth: Kashmir legally, ethically, morally and culturally does not belong to India.

The territory of Kashmir belongs to its people. India can suck every drop of Kashmir blood but it can never make the soul of Kashmiri people sick under its ‘tutelage’. This is why the truth of Kashmir is as live today as it was 69 years before. Same rest with the truth about the UN’s resolution on Kashmir. The ‘resolutions’ which are never moribund. As per the compliance of the UN’s Charter, the UN’s resolutions can never be inapplicable or ineffective.

Today India has been deploying more than 80,0000 military troops in the Kashmir vale. About 3rd fouth of the Indian Army has been positioned in the valley. This holds sufficient warrants to the fact that India is terrified with the psyche of the Kashmiri people whose unflinching, unwavering and uncompromising commitment to the cause of Kashmiri freedom is the real might against the Indian military and its government. Every fragment of the Kashmiri community, man, woman and child is strongly determined to foil the Indian military occupation of Kashmir.

But Kashmir, even according to India’s constitution is a ‘disputed territory’ and the more than six-decade-old bloody conflict in the region has so far claimed at least 98, 000 human lives, including civilians, Kashmiri and freedom activists. While the unfamiliarity of majority of Indians vis-à-vis Kashmir issue can’t be neglected, a major chunk, despite being aware of the legitimate rights of the kashmiri people, are playing deliberately attempted tactics because of their ‘ultra-nationalism’.

On 1 January 1948, India brought the Kashmir issue to the attention of the Chairman of the Security Council of the United Nations. The ‘Presentation’ of the Indian case, the Pakistani reply, and the series of debates which followed over the years, have all tended to obscure the ‘original terms’ of that Indian reference. This was made under Article 35 of the Charter of the United Nations in which the mediation of the Security Council was expressly sought in a matter which otherwise’ threatened’ to disturb the course of international relations. The issue was an Indian ‘solicitation’ for United Nations mediation in a dispute which had transcended the ‘diplomatic resources’ of the two parties directly involved, India and Pakistan, and not, as it is frequently represented, an Indian demand for United Nations condemnation of Pakistan’s aggression.

This point, despite much Indian and Pakistan rhetoric, can be determined easily enough by relating the contents of the reference to the ‘specifications of Article 35’ of the United Nations ‘Charter’. The United Nations was asked to devise a formula whereby peace could be restored in the State of Jammu & Kashmir so that a fair and free ‘plebiscite’ could be held to determine the State’s future. The matter of the Maharajah of Kashmir’s accession to India was not in this context of the slightest relevance.

Pakistan’s army chief General Raheel Sharif has spoken about “raining” of bullets on people in Kashmir and made veiled references to India by talking of “covert and overt intrigues of enemies”.

Describing Kashmir as Pakistan’s “lifeline”, he said the true solution to the Kashmir issue lies not in “raining bullets” upon people in the Valley but in “heeding” to their voices and respecting their aspirations. “Kashmir issue can only be resolved by implementing the UN Resolutions,” he said during a ceremony marking ‘Defence Day’ in Rawalpindi . “The international community, especially the permanent members of the UN Security Council and the European Union have an important role to uphold the principles of human rights and international humanitarian law,” said the adviser to the prime minister on foreign affairs Sartaj Aziz.

The United Nations itself principally promised the people of Kashmir the opportunity to express their wishes regarding their governance and the international status of their country through a fair plebiscite. Even absent that express recognition of the right to determine their status, the Kashmiri people meet all international law tests for the right to self-determination.

The right to self-determination is end-all and be-all of fundamental principle of human rights law, is an individual and collective right to freely determine political status and to pursue economic, social and cultural development. The International Court of Justice refers to the right to self-determination as a right held by ‘people’ rather than a right held by ‘governments’ alone. The right to self-determination is indisputably a norm of jus cogens.

The two important United Nations studies on the right to self-determination set out factors of a people that give rise to ‘possession’ of right to self-determination: a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self- governance.The cases of Kosovo and East Timor are the current examples.

The Kashmiri claim– to the right to self-determination–seems an exceptionally strong. The area had a long history of self- governance pre-dating the colonial period. The ‘territory’ of Kashmir has been clearly defined for centuries. Kashmiri people speak Kashmiri, which, while enjoying Sanskrit as a root language as do all Indo-European languages, is clearly a separate language from either Hindi or Urdu. The Kashmiri culture is similarly ‘distinct’ from other cultures in the area in all respects — folk-lore, dress, traditions, cuisine.

The war in Kashmir between the Indian armed forces and Kashmiri freedom fighters automatically invokes the ‘humanitarian law’. Humanitarian law will remain in effect for the duration of an armed conflict or as long as India occupies Kashmir, a territory to which it has no ‘legitimate claim’. Humanitarian law rightly became applicable in Kashmir in 1947 with the first military actions of the Azad Kashmir forces.

The Kashmiri War is a war of national liberation in ‘defense’ of the right to self-determination. It is legally invalid, unfair and unfit to refer to this war as a ‘civil war’. Such a ‘characterization or frame of reference’ would assume that India’s occupation of Kashmir is legitimate and the Kashmiri resistance is composed of dissident or opposition groups within the meanings set out in the Geneva Conventions of 1949 Article 3 or Protocol Additional II to the Geneva Conventions. It is also legally incorrect to refer to resistance groups as ‘terrorists’, given their status as military resistors to foreign occupation in a war of ‘national liberation’.

The Kashmiri people first ‘established’ military units in the late 1940s to defend themselves against the ‘maharajah’s forces’ and then the Indian forces and to vindicate their right to self- determination. At present there are manifold opposition military factions of Kashmiris resisting India of which the Jammu Kashmir Liberation Front (JKLF) is one of the oldest and widely supported and espoused. It is reasonably reported that several other groups also enjoy wide following. Kashmiri armed militants operate under their own military commands. Since the Indian forces entered into combat against the Azad Kashmir forces in 1947, military actions against the Kashmiri people has continued to the present. It blatantly worsens in response to renewed demands by the Kashmiri people for their self- determination.

The Modi government’s policy to suppress the cause of Kashmir freedom by dint of military might can no more be a successful tactic in preventing the Kashmiris to defend their substance of freedom granted and protected by the UN Charter.

The herein abovementioned arguments are sufficient enough to draw the attention of the international community to play its ascribed moral, legal and ethical role in the Indian held Kashmir. In the upcoming session of the UN at its New York based headquater, the matter must be given an urgent consideration. And for course the issue has to be rightly upheld and tabled by the would-be Secretary General of the United Nations whose election is being currently processed and operated by the UN.

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