Oppression is Kashmir leads to breaching of peace

‘To save succeeding generations from the scourge of war’ are amongst the first words of the UN Charter Preamble. These motivational words were coined by the founders of the United Nations, who lived through the devastation of the two World Wars by 1945. Thus, the objective of the UN was to prevent disputes, and help restore peace following the outbreak of armed conflict and to promote lasting peace.

In the past, there has been breach of peace in the world as powerful states attacked smaller and weaker countries for material gains or for their security. One of the permanent members having veto power, Russia has been involved in aggression against Ukraine. Saudi Arabia continues to cause misery and destruction in the war waged against Yemen. Instead of calling for peace and moving to secure peaceful existence of the weaker nations, the members of the UN have subscribed to such wars. The destruction of Libya, Iraq, Kuwait, Afghanistan are some examples of aggression causing breach of peace in the world.

One of the first such disputes after the second World War was the Kashmir dispute, where the United Nations Security Council (UNSC) intervened to save succeeding generations from the scrouge of war, thus stopping the war between India and Pakistan and by the famous resolution of the UNSC resolution no. 38 and 39 of 1948 that the war should be ceased immediately so that peace can prevail for a peaceful resolution of the Kashmir conflict.

On 23rd April 1948, the UNSC passed Resolution no. 47 which ruled that the people settled in Jammu and Kashmir shall have the right to decide their own fate through a plebiscite. The responsibility was given to India for the plebiscite to be conducted under the supervision of the UN. Observers were appointed on both sides of the ‘Line of Control’. It was in that resolution that India agreed to appoint a nominee of the UN Secretary General for conducting the plebiscite, where the nominee would be the Administrator giving him full authority. Thus, the state of Jammu and Kashmir was not considered to be a part of India, though the said resolution did allow India to keep minimum forces there. There have been 13 resolutions of the UNSC till 1971, reiterating the Resolution 47 of 1948 to be acted upon. It is simply unfortunate that the UN could not force its resolutions to be implemented from 1948 till date. Hence, the dispute continued, and India and Pakistan have since been engaged in two wars and numerous skirmishes, the recent being the Indian Airforce entering in Pakistan’s territory, where the plane was shot down and the pilot Abhinandan Varthaman was captured.

Wars in the world have commenced and ended. The 20-year-old Vietnam War came to an end and today Vietnam continues to progress. The wars in Iraq and Kuwait ended and these countries continue on their path of progress. Although the war in Afghanistan has concluded, it continues to be isolated from the world being a weak country. Lebanon and Palestine remain at war with Israel without any intervention from the UN despite the many resolutions of the UNSC. Similarly, the dispute in Kashmir has not ended.

The voices of the Kashmiris are muffled by the oppressive attitude of India. Kashmir is a stateless nation where in 1947 the ruler of Kashmir, Maharaja Hari Singh, signed an Instrument of Accession which was accepted by Lord Mountbatten of Burma, then the Governor General of India, whereby, it was categorically stated:

“I hereby declare that I accede to the Dominion of India on the assurance that if an agreement is made between the Governor General and the ruler of this state whereby any functions in relation to the administration in this state of any law of the Dominion Legislature shall be exercised by the ruler of this state, then any such agreement shall be deem to form part of this Instrument and shall be construed and have effect accordingly.”

“The terms of this 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.”

“Nothing in this Instrument shall empower the Dominion Legislature to make any law for this state authorizing the compulsory acquisition of land for any purpose, but I hereby undertake that should the Dominion for the purposes of a Dominion law which applies in this state deem it necessary to acquire any land, I will at their request acquire the land at their expense or if the land belongs to me transfer it to them on such terms as may be agreed, or, in default of agreement, determined by an arbitrator to be appointed by the Chief Justice Of India.”

In view of this, the defence, the currency and foreign policy of Jammu and Kashmir state was given to the State of India. However, there was a dispute as to this accession by the people of Kashmir who were predominantly Muslims. This led to an uprising initially crushed by the Indian Army, followed by a war between Pakistan and India in December 1947, as a part of Kashmir within the area was controlled by Pakistan; the matter was later taken up at the UNSC and the aforesaid resolutions were passed.

However, serious resentment continues. It is the Indian Army, police and other forces that continue to be posted by India in Jammu and Kashmir with a view to crush the fight for freedom. India calls these freedom fighters terrorists. It is said that one man’s terrorist is another man’s freedom fighter.

India has continued to keep itself away from the International Criminal Court (ICC) by not subscribing to the ICC Statute, for obvious reasons; thus, the jurisdiction of the ICC is barred against India and its citizens. India continues to create crime against humanity like murder, extermination, deportation or forcible transfer of population, imprisonment, or other severe deprivation of physical liberty in violation of fundamental rules of international laws, torture, rape, sexual slavery, sexual offences, persecution against all the identifiable groups, enforced disappearances of persons and other inhuman acts including terror by use of brutal force including the use of pellet guns and other fire arms killing thousands of people amounting to genocide.

Jammu and Kashmir has its own Constitution and a State within its own rights, though presently under control of India on account of the UNSC Resolution No. 47 of 1948. Article 370 was introduced in the Constitution of India where it was provided that the Parliament needed the consent of the government of Jammu and Kashmir for applying a law of India except for the laws of defence, foreign affairs, finance, and communication. The laws of citizenship, ownership of property, and fundamental rights of the residents of Jammu and Kashmir is different from the residents of India. Under Article 370, citizens of India cannot buy property in Jammu and Kashmir. However, due to the blatant action by India, the provision was done away with, and the Constitution of India was made applicable to Jammu and Kashmir, making the area Union Territories of India. India violated the Resolution no. 47 of 1948 and all subsequent resolutions of the UNSC. The UNSC, for political reasons, kept quiet despite its mandate.

Article 35-A of the Constitution provided that the Jammu and Kashmir Legislature has full discretionary power to decide the ‘permanent residents’ of the state. It gave them special rights and privileges regarding employment with the state government, acquisition of property, settling in the state and other similar rights. The provision has now been taken away. Thus, India has annexed the State of Jammu and Kashmir which could not have been done in terms of the UNSC Resolutions that gave the power to the people of Jammu and Kashmir to choose through a UN controlled plebiscite. The question is: why did the UN keep quiet, especially when the Charter of the UN in Chapter VII clearly provides, ‘action with respect to threat to the peace, breaches of peace and acts of aggression’.

It is apparent that Jammu and Kashmir was dealt with as a State, controlled by India, and not being the Union of India. Hence, it had a special position on account of its being a disputed territory. In 2019 India, on the basis of Article 370(3), caused Article 370 to be revoked and made the State of Jammu and Kashmir, including Ladakh, as two Union territories, controlled and governed now by the Government of India under the Constitution in its entirety, whereby, the special status of Kashmir as being a State itself under its own constitution was taken away by force and coercion by India, its armed forces and para-military taking over despite riots against the unlawful annexation.

It is also unfortunate that India has closed the entire State of Jammu and Kashmir making it a de facto prison, violating the Geneva Convention, which relates to the treatment of ‘Protected Persons’, being the Kashmiris. It could be disputed that Kashmir was not a product of war, but it should be noted that the State of Jammu and Kashmir is a disputed territory, being so declared by the UNSC as a consequence of the aggression by India, in sending their forces to stop the indigenous uprising there and blaming Pakistan in 1948. It is after India sent in their troops that Pakistan moved their forces.

This conflict has caused two wars between India and Pakistan and numerous Line of Control violations by India. The Indians openly claim aggression against Pakistan after violating the Pakistan air space. Peace continues to be breached which is the main issue. It is mandated upon India under the Geneva Convention to protect the said ‘Protected Persons’ which is being violated by India.

The UNCHR cannot under the said Convention be restrained from entering the area, but India chooses not to allow the UNCHR from entering. Phones have been restricted, media is not allowed so that they cannot report the actual situation.

It is the duty of the members of the United Nations to assume responsibility for the administration of the State of Jammu and Kashmir. The principle that ‘might is right’ cannot be allowed in the presence of the numerous UNSC Resolutions. The UN has to free the imprisoned Kashmiris. The International Trusteeship System enshrined in Articles 75 to 91 of the UN Charter has not been tested, nor activated. One fails to understand why the UN chooses not to implement the Trusteeship System in the State of Jammu and Kashmir, where India has acted in complete violation.

The United Nations General Assembly Resolution 3314 has defined the term ‘Aggression’, being the use of armed forces by a State in contravention of the Charter would be an act of ‘Aggression’. The State of Jammu and Kashmir being a disputed territory, a State having its own Constitution that was annexed by the armed forces of India thus being in contravention of the Charter of the United Nations. Article 5 of Resolution 3314 also provides, that “no consideration of whatever nature whether political, economic, military or otherwise may serve as a justification for aggression and no territorial acquisition of special advantage resulting from aggression is or shall be recognized as lawful” while Article 7 clearly states and allows “the right of self-determination, freedom and independence.” Resolution no. 47 of 1948 clearly provides for self-determination which India resists till date.

The Charter of the United Nations categorically provides that the formation of United Nation was to protect mankind from the scourge of war and create peace in the world. Such aggression, whether it is Russia against Ukraine or annexation of Crimea or war in Afghanistan, Iraq, or Libya, is in no way acceptable. It is the UN which needs to protect its own Resolutions and implement them if peace is to be guaranteed in the world.

It is unfortunate that the UN has become a platform for political manoeuvring rather than diplomacy. Permanent Members of the UN need to analyse the critical Kashmir issue and deal with it strictly in accordance with the Charter of United Nations and various Resolutions passed by it, such that each resolution is implemented in terms of Chapter VII specially Articles 39 to 51 of its Charter.

Finally, whether these members choose their countries’ prosperity over the Charter and the very reason for the UN’s existence, poses a great responsibility upon them.

The writer is a Senior Advocate of the Supreme Court of Pakistan and former Attorney-General