Dr Nazir Gilani

Human Rights Day–Kashmir

Dr Nazir Gilani

PEOPLE across the world celebrated the Human Rights Day. The date was chosen to honour the United Nations General Assembly’s adoption and proclamation, on 10 December 1948, of the Universal Declaration of Human Rights (UDHR). It is the first global enunciation of human rights and one of the first major achievements of the new United Nations.

The most important of all rights are the right to life, principle of equality and right of self-determination. People of the State of Jammu and Kashmir, currently fractured into three administrations and Kashmiris living outside the State territories, are holding seminars and discussions on the day. One can see that from March 1846 the people of the State of Jammu and Kashmir have remained engaged in resurrecting their dignity through a long drawn rights movement.

Right to self-determination of the people of Jammu and Kashmir was first formally flagged by Government of India on 27 October 1947 when Government of India despatched military aid to the Government of Jammu and Kashmir. It was reiterated on 31 October1947 in the telegram sent to Pakistan by the Prime Minister of India. On 15 January 1948 India invited the United Nations Security Council to arrange for a UN supervised vote on the question of self-determination.

The record of the 229th meeting of UN Security Council held on 17 January 1948 reveals that Government of Pakistan had tried to arrange a tripartite conference between the representatives of the Dominion of India, the State of Kashmir and Pakistan itself on 29 October 1947. It could not be held due to the indisposition of the Prime Minister of India. It was postponed to 01 November 1947 but could not be held then owing to the same cause.

Lord Mountbatten, the Governor General of India came to Lahore to preside over the Joint Defence Council. One notes from the telegram from Prime Minister of Pakistan sent on 24 November 1947 to the Prime Minister of United Kingdom, on the meeting of the two Governor Generals, that Pakistan did not want to delay the ‘plebiscite’ till spring of 1948. Pakistan hoped to hold the ‘plebiscite’ between November 1947 and April 1948.

Under article 35 of UN Charter India petitioned the UN Security Council on 01 January 1948 and surrendered the temporary accession for a UN supervised vote. UN record confirms that the Security Council at its 284th meeting held on 17 April 1948, had a time table of holding the ‘plebiscite’. United Kingdom had proposed that in view of snow in Kashmir, the plebiscite should be conducted between April 1948 and October 1948. Otherwise the weather would delay the conduct of a plebiscite in the early 1949. Pakistan and the United Kingdom seem to have shared more or less a common date for holding a plebiscite, except that in case of a delay, United Kingdom had early 1949 in its mind.

United Nations has delayed the holding of a ‘plebiscite’ for the last 69 years. Out of these we did not raise Kashmir at the UN Security Council for 30 years and 11 months, from 5 November 1965 15 September 1996. Bilateral, trilateral and international agreements bind India and Pakistan into international commitments on Kashmir. Delay in holding a plebiscite does not alter the merits of a basic human right. The right to self-determination remains valid for all times and for all generations. The fracture of the State into three administrations, division and distribution of the people on both sides of the cease fire line, Kashmiris living in India, in Pakistan and as a diaspora in many other countries, are important variables, that need to be addressed. The narrative of holding a plebiscite under the UN supervision has been taken over by deliberate machinations of labelling the rights movement as terrorism. It is unfair and incorrect.

UN resolutions have taken over the work on self-determination and the UN resolutions have frozen the people of Jammu and Kashmir into a non-action. At least six elements have been frozen into a non-action, assuring that a just solution, consistent with UN principles, would be found through a UN supervised Kashmiri vote. The daily loss of life on the Indian side of Kashmir and the on-going abuse of human rights at the hands of State authorities is a serious situation.

United Nations has outsourced specified works in the conduct of a UN supervised vote to India and Pakistan. The ‘emergency’ that was flagged on 26 October 1947 has been reversed by the cease fire on 01 January 1949. Therefore, there is no rationale to continue with the division and distribution of Kashmiri people any more. The cease fire has been enforced between the armies of the two Dominions and other six elements identified by the UN.

Government of India continues to err on its obligations on Kashmir. It has accepted Kashmir as a core issue to be resolved. At the 230th meeting of the UN Security Council held on 20 January 1948 India has said, “We hope to be able to convince the Security Council that once we have dealt with Kashmir question, there will probably not be anything of substance which will divide India and Pakistan to the extent of endangering international peace and security”.

In support of its argument India proposed, “We first set up a Commission for the purpose of dealing with the Jammu and Kashmir issue. We agree that if the Security Council comes to the conclusion that other matters should be referred to a Commission, the Commission may deal with those matters. That is the position on which India necessarily has to stand at this stage”.

In support of Indian statement, the United Kingdom representative further added, “For these reasons I hope that the resolution will be adopted and that we shall set up the commission. As thenext step let us, as our colleague from India has said, proceed swiftly to settle the Kashmir question, that is to say, to stop the fighting, but not to stop the fighting but to get a definite settlement of the whole question and to settle the future of Kashmir on the basis of peaceful co-operation and impartial justice which both parties alike desire”.

Government of India has a clear choice, namely, to live by its commitments made to the people of Jammu and Kashmir on 27 October 1947, 31 October 1947 and 15 January 1948 or use its forces in a war with the people on its side of Kashmir and live in an uninterrupted, wasteful hostility with Pakistan. Government of India should return to the wisdom provided by US at the 571st meeting of UN Security Council held on 30 January 1952. According to this there has to be a definite period for ‘demilitarization’, the scope of demilitarization and quantum of forces that will remain at the end of the period of demilitarization and thirdly the day for the formal induction into office of the Plebiscite Administrator.

Kashmir case came to a halt on the question of demilitarization, in particular, on the character and number of armed forces on either side of cease fire line. At the 608th meeting of UN Security Council held on 8 December 1952 India has conceded to the requirement of a minimum force of 28,000 army personnel to carry out its responsibilities. India has to reconcile her position with the Pakistan argument as highlighted by the United Kingdom.

On 6 November 1952 United Kingdom at the 606th meeting of the Security Council has found that Indian condition was not compatible with the idea of a ‘free plebiscite’. UK representative Sir Gladwyn Jebb said, “I have mentioned earlier that at no stage should demilitarization involve a threat to the cease-fire agreement. This would mean that the forces of each side of the cease-fire-line should be, broadly speaking of the same kind. I should make it clear, that the United Kingdom Government has never thought that the proposal to limit the forces on the Pakistan side of cease-fire-line to an armed civil force while leaving a military force on the other side of the cease-fire-line was consistent with a really free plebiscite. I hope that representatives will join me in urging that the parties should resolve any differences they may still have on this point in the way which I have suggested”.

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