Ishtiaq Ahmed
Since dividing and annexing the disputed state of Jammu and Kashmir on the 5th of August 2019, India has geared up the process of reshaping its demography and identity; while Pakistan’s Kashmir policy continues to suffer from paralysis. During this time, the PTI government has been high on rhetoric but low on action, offering the Kashmiris nothing except token support on occasions such the Kashmir Solidarity Day, observed each year on February 5.
By pursuing a policy of strategic restraint, Islamabad has missed a couple of crucial opportunities for internationalising the Kashmir issue and thus involving the international community for its amicable resolution.
First, the BJP had promised to revoke Article 370 in the party manifesto for elections in early 2019. The Hindu nationalist regime of Prime Minister Narendra Modi fulfilled this promise within months of its second tenure in office by not only taking away the leftover of autonomy in the state of Jammu and Kashmir, but also dividing and annexing the disputed land in clear violation of the UN Security Council resolutions. After the re-election of Prime Minister Modi in May 2019, there were clear signs about the impending hell awaiting the Kashmiri people: the enactment of the Indian Citizenship Amendment Act, the deliberate promotion of Amarnath Yatra, the Hindu pilgrimage in Kashmir, and the intensification of the military campaign in the Kashmir Valley.
Yet, the PTI regime failed to take any preventive or pre-emptive measure to checkmate Indian transgression before August 2019.
A second opportunity missed by Pakistan before this Indian transgression was provided by the United Nations itself. In its first-ever report on the state of human rights in Jammu and Kashmir published in June 2019, the UN Human Rights Office had stated that the Indian security forces used excessive force that led to unlawful killings of 145 civilians during 2016-18. A subsequent report by the UN High Commissioner for Human Rights released in July 2019 had found that Indian security forces often used excessive force to respond to violent protests that began in July 2016, including continued use of pellet-firing shotguns as a crowd-control weapon even though they have caused a large number of civilian deaths and injuries.
While unveiling the report, the UN High Commissioner for Human Rights had pledged to urge “the UN Human Rights Council to consider establishing a commission of inquiry to conduct a comprehensive independent international investigation into allegations of human rights violations in Kashmir.” The International Commission of Jurists had also thereafter called upon India to repeal the Armed Forces Special Powers Act and other punitive laws.
Pakistan could have lobbied for a special session of the UN Human Rights Council by mustering the required support of the member-states. But it could not.
In the aftermath of India’s August 2019 illegal action in Jammu and Kashmir as well, Islamabad has missed some rare chances.
First, it could have, for instance, turned this critical moment into a viable opportunity by challenging India’s unilateral action in the International Court of Justice (ICJ) for violating the UN Security Council resolutions. Prime Minister Imran Khan had expressed his intention to approach the ICJ in his speech before the National Assembly soon after the unlawful Indian decision. But there has been no follow up.
Except for extending moral or material support to Kashmir freedom fighters, successive Pakistani government have either wasted time on pinning false hopes on Track I and II diplomacy with India or remained busy in refuting Indian allegations of sponsoring terrorism and insurgency in the contested territory
Second, in June 2020, Foreign Minister Shah Mahmood Qureshi, unnecessarily annoyed Saudi Arabia by complaining about the unwillingness of the Organisation of Islamic Conference (OIC) to hold a special session of its Council of Foreign Ministers on Kashmir, despite the fact that the OIC Contact Group on Kashmir had earlier issued a resolute statement in response to India’s unlawful action in Kashmir. It could have involved the Contact Group in Kashmir affairs more proactively, in the absence of the diplomatic standoff with Saudi Arabia, which is the pillar nation of the OIC.
Third, both during 2020 and last year, Islamabad failed to organise a special session of the UN Human Rights Council on the matter by failing to muster the necessary support of the member states. More recently, it could not even use the extraordinary meeting of the OIC Council of Foreign Ministers on the humanitarian situation in Afghanistan held in Islamabad to hold a side-line meeting on the emerging catastrophe in Kashmir.
Pakistan’s rhetorical approach to Kashmir is manifested variously. For example, last year, Prime Minister Imran Khan had also said that he would be open to a referendum to determine if Kashmir wanted to join Pakistan or become independent. In his opinion, the proposed referendum could be held after the UN-mandated plebiscite to determine if Kashmiris want to join India or Pakistan. Since this proposition was made at an election rally in Azad Jammu and Kashmir, with the purpose of garnering votes for the ruling party, it only irked the political opposition at home. Otherwise, the idea carried zero value for a Kashmir settlement, as its precondition – the implementation of the UN-mandate plebiscite in Jammu and Kashmir – remainsed a distant dream after more than 70 years.
In fact, Pakistan’s lack of response to Indian unilateralism since 2019 has dashed any remaining hopes in this regard. Yes, Prime Minister Khan spoke well before the UN General Assembly in September 2019, but it was too late by then. After the ceasefire agreement on the Line of Control in February last year, there was even talk of renewed peace and trade with India. “Absolutely not,” said the prime minister, but his government’s inability to formulate a cohesive Kashmir policy has made Pakistan increasingly aloof from the emerging ground realities in the disputed region.
Except for extending moral or material support to Kashmir freedom fighters, successive Pakistani government have either wasted time on pinning false hopes on Track I and II diplomacy with India or remained busy in refuting Indian allegations of sponsoring terrorism and insurgency in the contested territory. At best, Islamabad has tried to remind the world about its obligations in Kashmir. But, that also, to no avail.
Contrary to Pakistan, India has all along been very clear about its goal and action in the disputed territory. It has consistently flouted the will of the international community by refusing to exercise the UN option on Kashmiri self-determination. Since the situation turned violent in 1989, first under the guise of counterinsurgency and then counter-terrorism, India has employed brute force to crush Kashmiri freedom struggle.
India has also used the bilateral peace process with Pakistan to buy time and achieve status quo ante in the disputed territory, be it the Composite Dialogue of the 1990s and its revived form during the Musharraf era, when Pakistan even abandoned the UN option and offered a four-point formula as an ‘out of the box’ solution
In the last three decades or more, the Indian oppression against Kashmiri Muslims is manifested in the presence of estimated 700,000 security personnel (one armed person for every 17 civilians), and enforcement of draconian laws such as the Armed Forces Special Powers Act and the Public Safety Act, and the consequent arbitrary arrests, enforced disappearances and extrajudicial killings. Human rights groups have estimated over 8,000 instances of extrajudicial killings since 1990, including nearly 2,000 such cases during 2008-18.
India has not only bid farewell to its pretence of sovereignty for Jammu and Kashmir by revoking Article 370, but the simultaneous annulment of Article 35-A (which was made part of Article 370 in 1954) has seen Kashmiri land being sold out for cheap, Kashmiri demography being re-engineered to accommodate Hindu settlers, and Kashmiri identity being reshaped with the exclusion of Kashmiri Muslims.
Pakistan’s lack of action on Kashmir, before August 2019 and especially afterwards, has allowed India to extend the scope of its militarisation campaign to the marginalisation of Kashmiri demography and identity.
India has also used the bilateral peace process with Pakistan to buy time and achieve status quo ante in the disputed territory, be it the Composite Dialogue of the 1990s and its revived form during the Musharraf era, when Pakistan even abandoned the UN option and offered a four-point formula as an ‘out of the box’ solution.
The saffron project of the ruling Bharatiya Janata Party aims to Hinduise Kashmir, for which almost half a million non-Muslims have acquired residency in Kashmir through a new Domicile Order. The new Land Act allows non-resident Indians to re-purpose agricultural land, constituting 90 percent of the occupied territory. With vocal state support, Indian investors are claiming their own share of the pie in the guise of tourism and development. Of late, there is also a systematic attempt to redraw the political map of the Kashmir Valley and the Jammu region in order to disenfranchise the majority Muslim population in the Kashmiri Valley.
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Of course, Pakistan has its own contribution towards worsening the Kashmiri situation. Back in the 1990s, it looked the other way as the militants involved previously in the internationally-sponsored jihad in Afghanistan played havoc in the Indian-administered Jammu and Kashmir, eventually providing India with an opportunity to blame Pakistan for sponsoring cross-border terrorism. Pakistan itself became a victim of jihadi terrorism during the War on Terror.
Between 1999 and 2019, at least thrice, the Subcontinent has faced the threat of a conventional combat turning into a nuclear war between India and Pakistan. In between, however, there was one golden opportunity to bilaterally resolve the Kashmir issue after the devastating earthquake in 2005.
The two countries were able to chalk out a framework for Kashmir settlement in 2006. Under this framework, the Line of Control would freeze; the Kashmiris living on both sides would attain self-governance; India and Pakistan would gradually demilitarize the conflict zone; and India, Pakistan and the Kashmiris would work out a joint mechanism to monitor the Line of Control and the concomitant trade and movement of people. After 15 years, a treaty of peace and friendship would be signed if all the outstanding issues had been addressed.
We had lost the winnable Kulbhushan Jadhav case at the ICC in 2019 primarily due to weak work by our legal team
The All-Parties Hurriyat Conference leader, Mirwaiz Umar Farooq, tacitly agreed to this framework and proposed the idea of the United States of Kashmir. Unfortunately, this golden opportunity for a political settlement in Kashmir was also missed due to subsequent deterioration of political situation in Pakistan and lack of resolve on India’s part, especially in the wake of the 2008 Mumbai terrorist attacks.
Now, once again, Pakistan seems amenable to peace. Its National Security Policy for 2022-26, which was unveiled last month, states that “Pakistan, under its policy of peace at home and abroad, wishes to improve its relationship with India,” if New Delhi agrees to a “just and peaceful resolution of the Jammu and Kashmir dispute.” India’s response is still one of defiance. It is not ready to budge an inch from its settler colonial approach in the disputed region.
When it comes to Kashmir, India’s gain is Pakistan’s loss. Yet, the government’s response to Indian excesses remains limited to sponsoring solidarity events on Kashmir, or making declaratory speeches here and there. The Kashmir issue is also absent in media debate or public discourse.
The Kashmiris have already paid a huge price with their blood and tears. They are now at the receiving end of India’s settler colonialism, which is meant to ethnically cleanse the Kashmiri Muslim population.
Ahead of the UN Human Rights Council session in Feb-March 2020, the International Human Rights Association of American Minorities had submitted a report on Indian human rights violations in Jammu and Kashmir, equating them as war crimes and a genocide. Hence, the International Criminal Court could be the most appropriate forum to appeal, but neither Pakistan nor India has signed its protocol.
However, Pakistan is free to sue India in the International Court of Justice, which is mandated to resolve disputes between states. This means that breaches by a state, of international law obligations, can be brought before the court. Invoking its “compulsory jurisdiction” under Article 36 (2) might be a non-starter, as India would not agree. But Pakistan can approach the ICJ under Article 36 (1) of the Statute, as India has violated international law (UN Security Council resolutions) on an international dispute, of which both countries are legitimate parties. Thus, it may not be so difficult to prove that the ICJ does have the jurisdiction to hear this case.
We had lost the winnable Kulbhushan Jadhav case at the ICC in 2019 primarily due to weak work by our legal team. This time, the stakes are very high and it is still not too late. Pakistan must not abandon Kashmiris at the darkest moment of their sordid history.
All that the government needs to do is to put in place an effective team of legal counsels, including from amongst the Kashmiri diaspora, to prepare a convincing case on the basis of India’s unlawful unilateral actions, and its subsequent subjugation and displacement of Kashmiri people. Simultaneously, it can gear up a proactive global diplomatic campaign to expose India’s attempt to permanently colonise the indigenous population of Kashmiri Muslims.
