(Mandatory Brief History)
Born from the partition of India in 1947, the conflict in Kashmir continues today, involving three nuclear powers – China, India and Pakistan – who are in dispute over the territory. The conflict is set against the backdrop of the Himalayan mountains and valleys and involves a patchwork of languages, religions and ethnicities: notably Kasmiris, Dards, Ladakhis, Dogras, Hanjis, Gujjars and Bakarwals.
The dispute over the region has continued for more than six decades, at huge cost. Since the 1989 insurgency – 42 years after the partition – there are estimated to be at least80,000 dead and 9,000 missing by local human rights groups. Today Kashmiris face life alongside a huge military presence and ongoing militia operations. Although a ceasefire agreement was made between India and Pakistan in 2003, and the 2000s saw internal violence largely give way to non-violent protest, the calm is often punctuated by military and insurgent operations from both sides.
Since the 2008 Mumbai attacks by Pakistani militants, there have been numerous violent incidents between India and Pakistan along the border, leading to a statement by the Indian defence minister A.K. Anthony that there has been an 80% increase in ceasefire violations compared to the same period last year by Pakistan, pushing the likelihood of successful peace talks even further away.
As of 2013, India administers 43 per cent of the region – including most of Jammu, the Kashmir Valley, Ladakh and the Siachen Glacier. Pakistan controls 37 per cent of Kashmir, namely Azad Kashmir and the northern areas of Gilgit and Baltistan. In addition, China occupies 20 per cent of Kashmir following the Sino-Indian War of 1962. The Shaksam Valley, which China claims, is part of Tibet.
Indo-Pakistani War of 1947
Amidst the tumult of independence the Hindu ruler Maharaja Hari Singh of Kashmir signed the Standstill Agreement with Pakistan. The Maharaja delayed his decision to accede to either India or Pakistan in an effort to remain independent, but was forced to choose when internal revolt in the Poonch region turned into an organised rebellion of the majority Muslim population. Mass killings of Hindus, Sikhs and Muslims throughout the year led to hundreds of thousands of refugees fleeing their homes where they were in the religious minority, and culminated in Pathan tribesmen and the Poonch rebels invading Kashmir, killing large numbers in Baramula.
Even though Kashmir had a large Muslim majority, the Maharaja eventually signed the Instrument of Accession putting Jammu and Kashmir under Indian control, allowing India to send in forces to repel the Pakistani presence and kick-start the war. This move was, as suggested and accepted by India, supposed to be temporary until a plebiscite could be conducted which would enable the Kashmiri people to choose who would rule them, though this has never materialised.
The war continued until 1948 when India requested the involvement of the UN Security Council. The Council passed a resolution that imposed an immediate ceasefire and called on Pakistan to withdraw all military presence. In addition, it stated that India could retain a minimum military presence, while Pakistan would have no say in administration and “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.” The ceasefire was enacted on 31 December 1948, however Pakistan did not withdraw its troops from the region and a plebiscite was not conducted, leading to the beginning of increasing unrest in the region.
Sino-Indian War of 1962
The increasing unrest and escalating violence culminated in 1962 when military from China and India clashed in territorial disputes. China quickly overpowered the Indian military and occupied the area, claiming the area under administration and naming the region Aksai Chin. The border dispute between this area and other smaller areas is known as the Line of Actual Control.
China states that Aksai Chin is an integral part of China and does not recognise the inclusion of Aksai Chin as part of the Kashmir region.
China did not accept the boundaries of the princely state of Kashmir and Jammu, north of Aksai Chin and the Karakoram as proposed by the British.
- China settled its border disputes with Pakistan under the 1963 Trans Karakoram Tractwith the provision that the settlement was subject to the final solution of the Kashmir dispute.
1965 and 1971 wars
In 1965 and 1971, heavy fighting broke out again between India and Pakistan. The Indo-Pakistani War of 1971 resulted in the defeat of Pakistan and the surrender of the Pakistani military in East Pakistan (now Bangladesh), which led to the signing of The Simla Agreement between India and Pakistan. By this treaty, both countries agreed to settle all issues by peaceful means and mutual discussions within the framework of the UN Charter. However, this form of track-two diplomacy was merely a ‘paper peace’ and did not reflect the situation in Kashmir that had left a bitter legacy of a deadly 20-year war.
The Simla agreement defined the Line of Control (not to be confused with the Line of Actual Control between India and China) separating Indian- and Pakistani-administered Kashmir. Current construction of a ‘fence’ around the Line of Control has been disputed by both China and Pakistan. India claims that the ‘fence’ reduces insurgent attacks. Until the ceasefire in 2003 the Line of Control was one of the most violence-prone de facto borders in the world and saw daily shelling, mortar fire, and machine gun exchanges between Indian and Pakistani troops and other militant groups.
The Simla Agreement had little bearing to events on the ground and there were increasingly organised uprisings. Opposition to the Indian administration, disputed state elections and military occupation led to some of the state’s legislative assemblies forming militant wings, which further created the catalyst for the Mujahideen insurgency, which continues to this day.
The three main militant groups in Kashmir are Hizbul Mujahideen; Lashkar-e-Toyeba; and Harkat-ul-Mujahideen. All have to some degree fractured into different, sometimes opposing factions, many of which have different objectives, views on how to resolve the conflict, and opinions on the use of violence. In recent years their membership and influence has diminished. A fourth militant group, the Jammu and Kashmir Liberation Front, a secular and nationalist group, has sought full independence for Kashmir from both India and Pakistan, and increasingly found its support reduced over the past few decades.
India claims these insurgents are Islamic terrorist groups from Pakistan-administered Kashmir and Afghanistan, fighting to make Jammu and Kashmir a part of Pakistan. They claim Pakistan supplies munitions to the terrorists and trains them in Pakistan. India states that the terrorists have killed many citizens in Kashmir and committed human rights violations whilst denying that their own armed forces are responsible for human rights abuses. On a visit to Pakistan in 2006, former Chief Minister of Kashmir Omar Abdullah remarked that foreign militants were engaged in reckless killings and mayhem in the name of religion. The Indian government has said militancy is now on the decline
The Pakistani government calls these insurgents “Kashmiri freedom fighters”, and claims that it provides them only moral and diplomatic support, although India believes they are Pakistan-supported terrorists from Pakistan Administered Kashmir. In October 2008, President Asif Ali Zardari of Pakistan called the Kashmir separatists “terrorists” in an interview with The Wall Street Journal. These comments sparked outrage amongst many Kashmiris, some of whom defied a curfew imposed by the Indian army to burn him in effigy.
The Kargil War of 1999
In mid-1999 insurgents and Pakistani soldiers from Pakistani Kashmir infiltrated Jammu and Kashmir. The insurgents took advantage of the severe winter conditions and occupied vacant mountain peaks of the Kargil range. By blocking the highway, they wanted to cut off the only link between the Kashmir Valley and Ladakh. This resulted in a high-scale conflict between the Indian Army and the Pakistan Army. International fears that the conflict could turn nuclear led to the involvement of the United Statespressurising Pakistan to retreat.
The main opinions of India, Pakistan, and Kashmiris can be summarised as follows:
- India claims that as the Maharaja Hari Singh signed the Instrument of Accession in October 1947, handing control of the Kingdom of Jammu and Kashmir over to India, the region is theirs, having been validated by the Indian Independence Act and the departing British Empire.
- India claims that the UN Resolution 1172 in 1948 accepted India’s stand regarding all outstanding issues between India and Pakistan.
- India claims that Pakistan has not removed its military forces, which India views as one of the first steps in implementing a resolution.
- India accused Pakistan of funding military groups in the region to create instability, and accuses Pakistan of waging a proxy war.
- India accuses Pakistan of spreading anti-India sentiment among the people of Kashmir, through the media, to alter Kashmiri opinion.
- According to India, most regions of Pakistani Kashmir, especially northern areas, continue to suffer from lack of political recognition, economic development and basic fundamental rights.
- Pakistan claims that according to the two-nation theory Kashmir should have been with Pakistan, because it has a Muslim majority.
- Pakistan argues that India has shown disregard to the resolutions of the UN Security Council, and the United Nations Commission in India and Pakistan, by failing to hold a plebiscite.
- Pakistan rejects Indian claims to Kashmir, centring around the Instrument of Accession. Pakistan insists that the Maharaja did not have the support of most Kashmiris. Pakistan also claims that the Maharaja handed over control of Jammu and Kashmir under duress, thus invalidating the legitimacy of the claims.
- Pakistan claims that India violated the Standstill Agreement and that Indian troops were already in Kashmir before the Instrument of Accession was signed.
- Pakistan claims that between 1990-1999 the Indian Armed Forces, its paramilitary groups, and counter-insurgent militias have been responsible for the deaths of 4,501 Kashmiri civilians. Also from 1990 to 1999, there are records of 4,242 women between the ages of 7-70 that have been raped. Similar allegations were also made by some human rights organisations.
- Pakistan claims that the Kashmiri uprising demonstrates that the people of Kashmir no longer wish to remain part of India. Pakistan suggests that this means that either Kashmir wants to be with Pakistan or independent.
- It is difficult to assess Kashmiri public opinion, and the region contains supporters of various different solutions to the conflict. Alongside those who align more closely to either the Pakistani or Indian government views, there are also those who favour independence for Kashmir. According to one independent survey public opinion:
- 43% of the total adult population want complete independence for Kashmir.
- 1% of Azad Kashmir (in Pakistan-administered Kashmir) want to join India compared to 28% in Jammu and Kashmir (in Indian-administered Kashmir).
- 50% of Azad Kashmir want to join Pakistan compared to 2% in Jammu and Kashmir.
- 14% of the total population want to make the Line of Control a permanent border.
- The All Parties Hurriyat Conference represent the main separatist movement in Kashmir. However, it has multiple branches, each holding differing views on how Kashmir should proceed independently, which is indicative of the vast array of opinions that exist across the territory.
- Whether it be due to religion or region, Kashmir is not a unified voice on the matter of its future. Apart from the unending call for democracy and human rights standards, Kashmiris differ in their opinions all over the territory, and this must be taken into account when discussing solutions.
- 2008 Kashmir elections
- Jammu and Kashmir state assembly elections, 2008
- State elections were held in Indian administered Kashmir in seven phases, starting on 17 November and finishing on 24 December 2008. In spite of calls by separatists for a boycott, an unusually high turnout of more than 60% was recorded. The National Conference party, which was founded by Sheikh Abdullahand is regarded as pro-India, emerged with a majority of the seats. On 30 December, the Congress Party and the National Conference agreed to form a coalition government, with Omar Abdullah as Chief Minister. On 5 January 2009, Abdullah was sworn in as the eleventh Chief Minister of Jammu and Kashmir. In March 2009, Abdullah stated that only 800 militants were active in the state and out of these only 30% were Kashmiris.
2009 Kashmir protests
- In 2009, protests started over the alleged rape and murder of two young womenin Shopian in South Kashmir. Suspicion pointed towards the police as the perpetrators. A judicial enquiry by a retired High Court official confirmed the suspicion, but a CBI enquiry reversed their conclusion. This gave fresh impetus to popular agitation against India. Significantly, the unity between the separatist parties was lacking this time.
- 2010 Kashmir Unrest
- The 2010 Kashmir unrest was series of protests in the Muslim majority Kashmir Valley in Jammu and Kashmir which started in June 2010. These protests involved the ‘Quit Jammu Kashmir Movement’ launched by the Hurriyat Conferenceled by Syed Ali Shah Geelani and Mirwaiz Umar Farooq, who had called for the complete demilitarisation of Jammu and Kashmir. The All Parties Hurriyat Conference made this call to protest, citing human rights abuses by Indian troops. Chief Minister Omar Abdullah attributed the 2010 unrest to the fake encounter staged by the military in Machil. Protesters shouted pro-independence slogans, defied curfews, attacked security forces with stones and burnt police vehicles and government buildings. The Jammu and Kashmir Police and Indian para-military forces fired live ammunition on the protesters, resulting in 112 deaths, including many teenagers. The protests subsided after the Indian government announced a package of measures aimed at defusing the tensions in September 2010.
- UN Resolution
- The United Nations Security Council Resolution 47 was passed by United Nations Security Council under chapter VI of UN Charter Resolutions passed under Chapter VI of UN charter are considered non binding and have no mandatory enforceability as opposed to the resolutions passed under Chapter VII
- On January 24, 1957 the UN Security Council reaffirmed the 1948 resolution.The Security Council, reaffirming its previous resolution to the effect, “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 United Nations,” further declared that any action taken by the Constituent Assembly formed in Kashmir ” would not constitute disposition of the state in accordance with the above principles
- In March 2001, the then Secretary-General of the United Nations, Kofi Annan during his visit to India and Pakistan,remarked that Kashmir resolutions are only advisory recommendations and comparing with those on East Timor and Iraq was like comparing apples and oranges, since those resolutions were passed under chapter VII, which make it enforceable by UNSC.
- In 2003,then Pakistan President Pervez Musharraf announced that Pakistan was willing to back off from demand for UN resolutions for Kashmir.
- Moreover, India alleges that Pakistan failed to fulfill the pre-conditions by withdrawing its troops from the Kashmir region as was required under the same U.N. resolution of 13 August 1948 which discussed the plebiscite.
- Jammu and Kashmir is out of UN dispute list: In Nov 2010 the United Nations has removed Jammu and Kashmir from its list of disputed territories.
- It was major setback to Pakistan’s efforts to internationalise the Kashmir issue, the United Nations has excluded Jammu & Kashmir (J&K) from its list of unresolved international disputes under the observation of the UN Security Council (UNSC). Pakistan’s acting envoy in the UN, Amjad Hussain Sial, has lodged a strong protest, while Indian authorities welcomed the decision
- In 2010, United States Ambassador to India, Timothy J. Roemer said that Kashmir is an ‘internal’ issue of India and not to be discussed on international level rather it should be solved by bilateral talks between India and Pakistan.
- He said, “The (US) President ( Barack Obama), I think was very articulate on this issue of Kashmir. This is an internal issue for India
- Separatist Hurriyat leader Syed Ali Shah Geelani said that, “First of all when they say Kashmir is an internal issue, it is against the reality. The issue of Jammu and Kashmir is an international issue and it should be solved. As long as promises made to us are not fulfilled, this issue will remain unsolved
- The UN later affirmed that the Jammu and Kashmir dispute remains on the United Nation Security Council’s agenda and denied claims that the UN had removed Kashmir from the list of unresolved issues.
The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990
The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 was enacted in September, 1990
One such act passed on September 11, 1958 was applicable to the Seven Sister States in India’s northeast. Another passed in 1983 and applicable to Punjab and Chandigarh was withdrawn in 1997, roughly 14 years after it came to force. An act passed in 1990 was applied to Jammu and Kashmir and has been in force since
The Acts have received criticism from several sections for alleged concerns about human rights violations in the regions of its enforcement alleged to have happened.
Irom Chanu Sharmila who is also known as the “Iron Lady of Manipur” is a civil rights activist, who has been in a hunger strike for nearly 15 years. Her primary demand to the Indian government has been the repeal of the AFSPA.
The Articles in the Constitution of India empower state governments to declare a state of emergency due to one or more of the following reasons:
- Failure of the administration and the local police to tackle local issues
- Return of (central) security forces leads to return of miscreants/erosion of the “peace dividend”
- The scale of unrest or instability in the state is too large for local forces to handle
In such cases, it is the prerogative of the state government to call for central help. In most cases, for example during elections, when the local police may be stretched too thin to simultaneously handle day-to-day tasks, the central government obliges by sending in the BSF and the CRPF. Such cases do not come under the purview of AFSPA. AFSPA is confined to be enacted only when a state, or part of it, is declared a ‘disturbed area’. Continued unrest, like in the cases of militancy and insurgency, and especially when borders are threatened, are situations where AFSPA is resorted to.
By Act 7 of 1972, the power to declare areas as being disturbed was extended to the central government.
In a civilian setting, soldiers have no legal tender, and are still bound to the same command chain as they would be in a war theater. Neither the soldiers nor their superiors have any training in civilian law or policing procedures. This is where and why the AFSPA comes to bear – to legitimize the presence and acts of armed forces in emergency situations which have been deemed war-like.
According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as “disturbed”, an officer of the armed forces has powers to:
After giving such due warning, Fire upon or use other kinds of force even if it causes death, against the person who is acting against law or order in the disturbed area for the maintenance of public order,
- Destroy any arms dump, hide-outs, prepared or fortified position or shelter or training camp from which armed attacks are made by the armed volunteers or armed gangs or absconders wanted for any offence.
- To arrest without a warrant anyone who has committed cognizable offences or is reasonably suspected of having done so and may use force if needed for the arrest.
- To enter and search any premise in order to make such arrests, or to recover any person wrongfully restrained or any arms, ammunition or explosive substances and seize it.
- Stop and search any vehicle or vessel reasonably suspected to be carrying such person or weapons.
- Any person arrested and taken into custody under this Act shall be made present over to the officer in charge of the nearest police station with least possible delay, together with a report of the circumstances occasioning the arrest.
- Army officers have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. Nor is the government’s judgment on why an area is found to be disturbed subject to judicial review.
- Protection of persons acting in good faith under this Act from prosecution, suit or other legal proceedings, except with the sanction of the Central Government, in exercise of the powers conferred by this Act.
United Nations view
When India presented its second periodic report to the United Nations Human Rights Committee in 1991, members of the UNHRC asked numerous questions about the validity of the AFSPA. They questioned the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR. On 23 March 2009, UN Commissioner for Human Rights Navanethem Pillay asked India to repeal the AFSPA. She termed the law as “dated and colonial-era law that breach contemporary international human rights standards.
On 31 March 2012, the UN asked India to revoke AFSPA saying it had no place in Indian democracy. Christof Heyns, UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions said “During my visit to Kashmir, AFSPA was described to me as ‘hated’ and ‘draconian’. It clearly violates International Law. A number of UN treaty bodies have pronounced it to be in violation of International Law as well.
Current Unrest: Ever since Commander Burhan Wani was martyred by Indian Security Forces on July 8th 2016, Entire valley is again in turmoil. Valley is seized under severe curfew and Human Rights violations are happening in every nook and corner. More than 100 unarmed protesters have been killed and thousands injured. More than 100 youth have lost their eye sight due to pellet injuries. There is massive hit to economy and Education. Mental Trauma is increasing each day passing. A peaceful resolution is in need to resolve this political issue of Kashmir once for all. This Political Dialogue needs to include people from Hurriyat, J-E-I Civil Societies and other Non Governmental Bodies of Jammu&Kashmir who can sit together and resolve Kashmir peacefully. Please be aware that this is not possible without bringing India and Pakistan delegates together on a table to discuses. According to various intellectual i have spoken these days gave me an idea as how and what should we do next to resolve Kashmir. I personally believe that we should start following points
1: Talk to Hurriyat Fractions and Let them come on one moral ground of
Seeking resolution to Kashmir. There should be no second thought .Full Autonomy should be given to the kashmiri people on the both sides by constituting regional assemblies in all the five regions and only the portfolios of defence, Foreign affairs and Currency must be managed by India and Pakistan respectively in their current administrated parts of J&K.
2: We have to bring Human Rights organizations on board to discuses Kashmir and violations happening here.
3: There should be withdrawal of Para military forces in entire Jammu&kashmir.
4: There should be revocation of Laws like PPO, PSA and AFSPA from entire J&K, To start with Government can remove the AFSPA from JAMMU CITY AND SRINAGAR CITY and later on removal can be moved further.
5: There should be immediate halt to terrorism and Religious Extremism sponsored by rogue elements in Pakistani military establishment and Extremist parties.
6: All the political prisoners must be released in india and Pakistani administrated Kashmir.
7: Establishment of Judicial enquiry commissions on disappearances and political killings.(An international Human Rights organization to sit in the commission)
8: Opening up of the borders in order to help people to people interaction are immediate steps which could provide relief to the Kashmiri people and initiate an atmosphere of tranquillity for the next step.
9:Rehabilitation of Kashmiri Pandits according to their own wishes.
10: Institutionalizing Intra-Kashmir Dialogue among all Kashmiris living in the Valley, Ladakh, Jammu, Pakistan Administered Kashmir and Gilgit Baltistan.
11: Compensation and amnesty to those killed, tortured and injured under rehabilitation policies to be implemented by International NGO’S.
12: Return of power Projects to the state government or yearly share of profit to be given to the state.
13: A sustainable economy consisting of models for industrial agricultural and touristic developments should be encourages and invested by both countries.
14: J-E-I has been involved into extremism vis-a-vis sponsored by Pakistan,we must talk to them and bring them into confidence of accepting ground realities of kashmir in south asian conflict.
15: We must involve sane voices of j&k, india and Pakistan for whom people have acceptance of listening and understanding.
Post Unrest or Current Position
Keeping the current situation in mind, Our youth in particular needs much attention. They have seen worst times .We must initiate Peace camps, Leadership building and advocacy trainings innovation and acceleration. With these initiatives, we can pull our young generation out of this Makabra.
(Special thanks to Sir, Junaid Qureshi for various inputs and Zaffar Sahib for brief History)
“Muzamil Maqbool is a Peace Educator and Life-Skills Specialist at Various.
He is founder of Rumi Centre for GLOBAL PEACE.He can be reached at firstname.lastname@example.org”
Other Inputs: Internet