Published On: Tue, Aug 29th, 2017

If Kashmir goes to ICJ – Jurisprudence of Kashmir Case

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Dr. Syed Nazir Gilani
123The State of Jammu and Kashmir is presently fractured into three administrations, namely, Jammu and Kashmir (Srinagar), Azad Kashmir(Muzaffarabad) and Gilgit and Baltistan (Gilgit) on either side of a UN brokered and UNMOGIP supervised cease-fire-line (aka LOC). Jammu and Kashmir is flagged in the United Nations as a sovereign Government, charged to carry out a UN outsourced work on the arrangements and holding of a UN supervised vote, to determine the question of a conditional and limited accession that it has with the Union of India. It is important to point out that Jammu and Kashmir Government has been cautioned by the United Nations in its resolution of 30 March 1951 that it is not a representative government because it is elected from only a part of the territory of the State.
UN Security Council resolution has warned All Jammu and Kashmir National Conference in regard to its resolution of 27 October 1950 that it could not take any decision to determine the “future shape and affiliation of the State of Jammu and Kashmir”, and has warned National Conference that, “action is proposed to convene such a constituent assembly and that the area from which such a constituent assembly would be elected is only a part of the whole territory of Jammu and Kashmir”.
The resolution addresses India, Pakistan and the Government of Jammu and Kashmir, “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”.
It was in this context that UN Secretary General Dag Hammarskjold visited Srinagar on Friday 20 March 1959 and was there from 20-22 March 1959 to assess the Kashmir situation. He was accompanied by Lieut. General Robert H Nimo, Chief of the UN Military Observer Group in India and Pakistan (UNMOGIP), Wilhelm Wachtmeister, Personal Assistant, and William Ranallo, Personal Aide to the Secretary-General.
During his two day visit in Srinagar, the Secretary-General studied the work of UNMOGIP and on 20 March he was entertained at a dinner by the Prime Minister of Jammu and Kashmir, Bakshi Ghulam Mohammad. United Nations has issued a separate Press Release SG/801 dated 21 March 1959 covering the Secretary-General’s two day visit in Srinagar.
It was an official visit to ten member countries, Pakistan, Burma, Thailand, Laos, Cambodia, the Federation of Malaya, Nepal, India, Afghanistan and Soviet Union. Since Jammu and Kashmir was not a part of India or Pakistan and a member country of the United Nations, it was shown separate as Srinagar (Headquarters of UNMOGIP). Indian and Pakistani stops of the visit are identified in the visit plan as Karachi, Pakistan and New Delhi, India. Karachi was the capital of Pakistan in 1959.
Therefore all actions that have emanated from Delhi or Srinagar from 30 March 1951, running repugnant to this UN resolution (it reiterates and confirms all previous resolutions), not representing the trust of Azad Kashmir and Gilgit and Baltistan, have no representative character and are void in law. Any arrangement in the Jammu and Kashmir Constitution of 17 November 1956 or any other arrangement with Delhi by the Government of Jammu and Kashmir that does violate the spirit of this resolution is without any merit.
Indian Government has justified the landing of its troops in Srinagar, on the basis that there “exists a grave emergency” in Jammu and Kashmir. Today we do not have the Jammu and Kashmir that India wanted to defend on 27 October 1947. Jammu and Kashmir was recognised sovereign only for the purposes of arranging a plebiscite in collaboration and under the supervision of UN. Jammu and Kashmir was required to set up a provisional government under the supervision of United Nations and it had to be fully representative, including a representation from Azad Kashmir and Gilgit and Baltistan. A UN envisaged Government at Srinagar, had to reflect the presence of Muzaffarabad, Gilgit and the trust of Government of Pakistan as a party to the dispute.
Indian army has a designated role in the terms of conditional accession and in the UN resolutions. At first it was a sub-ordinate supplement to the State forces to defend the territory, which it could not. Under the UN resolutions it has to be there to provide law and order before and during the administration of a plebiscite. Other roles designated in the conditional and limited accession were to protect life, property and honour.
The fact that Kashmir has suffered the death of a generation, habitat is in turmoil and that the inhabitants have been severely wronged by the security forces, does cancel out the role designated for these forces in the instrument of accession. It is for the Jammu and Kashmir government to revisit the designated role of the Indian forces and if the matter lands at the ICJ, it would be for the Security Council to check upon the role of Indian forces, as envisaged by the UN.
The argument that Pakistan did not withdraw its forces, so Indian Government could not follow upon the UN mechanism and did not withdraw its forces has no merit. The expression of the free will of the people on the conditional and limited accession has been entertained by the Government of India in October 1947 before surrendering the matter at the UN Security Council for adjudication in January 1948. India has entered into a written agreement with the Government of Jammu and Kashmir that “as soon as law and order have been restored in Kashmir and her soil cleared of the invader the question of the State’s accession should be settled by a reference to the people”.
If Government of India and opinion makers appreciate the merits of Accession, there is no accession at this point. It has been surrendered at the UN Security Council, and India has asked the UN SC to find “whether she should withdraw from her accession to India and either accede to Pakistan or remain independent, with a right to claim admission as a Member of the United Nations – all this we have recognized to be a matter for the unfettered decision by the people of Kashmir, after normal life is restored to them”.
Law and order has been restored in all the three administrations of the State. However, since 1990 the people of Jammu and Kashmir took to arms (militants) against the Indian forces. It is a war between State Subjects and a regular army of non-State Subjects. It would be legally important to point out that the Indian army recognized in the instrument of accession and the UN resolutions cannot engage in a war with the people of Jammu and Kashmir. If it engages into a war or is in any manner violates the human rights, it erodes all the legal vestiges of its presence in that part of the State. It would render itself into an occupation force. If Azad Kashmir and Gilgit and Baltistan had retained their army, a full-fledged war would have erupted in self-defence.
Technically Government of Jammu and Kashmir could terminate its agreement with Government India on the presence of Security Forces in Kashmir and invoke its Stand Still Agreement with the Government of Pakistan. It could make a reference to the six elements recognised in the UN debates on Kashmir for self-defence.Self – Defence of the people at present has been frozen by the UN mechanism on Kashmir. Hizb-ul-Mujahideen would qualify as one of the six elements discussed at the 241st meeting of the UN Security Council.
Azad Kashmir on the Pakistani side of cease fire line is an autonomous administration and shares a Constitutional arrangement with the Government of Pakistan “to provide for the better Government and administration of Azad Jammu and Kashmir until such time as the status of Jammu and Kashmir is determined in accordance with the freely expressed will of the people of the State through the democratic method of free and fair plebiscite under the auspices of the United Nations as envisaged in the UNCIP Resolutions adopted from time to time.”
Azad Kashmir could invoke its shared responsibilities with the Government of Pakistan and prevail upon the latter to make a reference to International Court of Justice. To break the present logjam and check the growing loss of life at the hands of Indian Security Forces UN Security Council could also refer the question of noncompliance of UN Security Council Resolutions and the status of Indian Security Forces in Kashmir to ICJ.
Making a reference to ICJ on Kashmir was first proposed by British Prime Minister to Prime Minister of Pakistan on 22 November 1947. In para 4 of the telegram Prime Minister of United Kingdom proposed, “Would you like me to take private soundings from the President of the International Court of Justice to find out whether he is of the opinion that it would be practicable and he would be willing to try to get together a small team of international experts, not connected with India, Pakistan or the United Kingdom, in the event of a joint request being preferred by the Governments of India and Pakistan for this to be done”.
Pakistan was only 3 months old and did not have the reliable generation or a team of experts as it has today, to take up the offer. The reply from Prime Minister of Pakistan to Prime Minister of United Kingdom, when seen in the climate of today, seems very unconvincing and unimpressive. There is no evidence that the voice or input from Kashmiris was either sought by Pakistan or they made any effort to render it on their own.
Exactly after 3 years and 9 months on 27 August 1951 Office of South Asian Affairs and Office of United Nations Political and Security Affairs of United States prepared a document on Kashmir titled, “Kashmir Dispute: Future Action” . The document stated, “At some time in the course of our efforts, we might consider asking the Security Council to request the International Court of Justice to render an advisory opinion regarding the legality of the act of the Maharaja of Kashmir in signing an instrument of accession to India. If the ICJ finds the accession was invalid, this would knock out one of the principal Indian arguments supporting their occupation of Kashmir.” US had taken United Kingdom Foreign Office on board but put the desire of going to ICJ on hold, fearing it might take considerable time. The law in regard to a reference to ICJ in 1951 was just developing and its tools of interpretation were nowhere near to what we find them today.

India has continued to drag its feet and rely on the excuse that Pakistan had to withdraw its armies first. This argument has no merit for the people of Kashmir. Firstly a vote on the conditional accession is an agreement between the Government of Jammu and Kashmir and the Government of India. Pakistan has been entertained as a party to the dispute at a later stage in January 1948.
The accession has been surrendered before the UN Security Council for a UN supervised vote. Belgium, China, United Kingdom and Northern Ireland, Syria and USA have played a fundamental part in finalising a mechanism for the UN supervised referendum in Kashmir. China has presented Article of Settlement at the UN Security Council to achieve maximum agreement and keep the minimum disagreement. It would also be argued at the ICJ that Sheikh Abdullah mislead the UN Security Council by his speech on 5 February 1948, assuring the world community that “the Indian forces were there on a provisional basis and need not be feared because they would be supervised by the Commission of the UN Security Council. The supervision of the Commission is missing.
A strong case could be made out at the ICJ for the noncompliance of UN Security Council Resolutions by India and on the status of Indian Forces in Jammu and Kashmir. India at this point cannot plead the case of any emergency in Kashmir and she has no case to defend the territory, protect life, property and honour or maintain law and order. It would have to vacate the last soldier from Kashmir. If India loses the consent of the people, it has no foothold to stay in Kashmir. India would no more have the benefit of a Russian veto. No permanent member would use its veto against the principle of ‘equality ‘and ‘self-determination’ which form the basis of UN Charter.
Pakistan has already committed itself in its constitutional arrangement with Azad Kashmir that it is there to discharge duties under UNCIP resolutions till a UN supervised vote takes place. It should not have any problem if ICJ wants Pakistan to demilitarise to any extent. In fact Prime Minister of Pakistan has proposed demilitarization at the 70th session of UN General Assembly.
– The author is the President of JKCHR – NGO in Special Consultative Status with the United Nations. He is on UN Register as an Expert in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. Author could be reached at dr-nazirgilani@jkchr.com

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