Myth: Pakistan has no moral, legal case for Kashmir

Pakistan wishes for peace with our much larger neighbor India. However, Pakistan along with a large majority of Kashmiris contest India's occupation based on a very strong moral and legal case. If this core issue is resolved, Pakistanis would live in harmony with India. Here is our case for an independent or Pakistan Kashmir:

At the time of the British withdrawal from the Sub-continent and its partition, into India and Pakistan, the numerous princely states like Kashmir, Hyderabad and Junagadh were given the option to join either India or Pakistan. States in which rulers were from the same religion as their populace had no trouble deciding. Hindu states acceded to India and Muslim states naturally went to Pakistan. However in the aforementioned states the rulers belonged to a different religion than that of their respective populations and there was a clash of interest. The Muslim rulers of Hindu Junagadh acceded to Pakistan and that of Hyderabad wanted to remain independent. But the Indian army soon overran these states and annexed them. 
The Hindu Maharajah of Muslim Kashmir wanted to remain independent but his people wanted union with Pakistan, which had come into existence as a result of a union of the Muslim majority areas of pre-partition India. Maharajah's refusal to do so led to disturbances and widespread protests and his subsequent flight from his capital. His subsequent attempts to effect a crackdown failed and he turned to India for help, which immediately invaded the state (27 Oct, 1947). Later the Indians claimed that the Maharajah had acceded to India. There was no public comment from the Maharajah.
However as Alistair Lamb, a journalist of world repute, reports in his in-depth study of the dispute (Jammu & Kashmir; summary of which is available as "The myth of Indian claim to Jammu & Kashmir"), the chronology of events as reported by the Indian government leading to the signing of the "Instrument of Accession", is fraught with obvious inaccuracies and lies. In fact, to date, no satisfactory original of the "Instrument of Accession" has been produced. Realizing the dubious nature of the 'accession' would spark world-wide protests, Indians declared that the "Instrument of Accession" executed by the Maharajah was "provisional" and subject to a "reference to the people". Indeed in a broadcast on 
All-India Radio on 2nd November 1947, the first Indian prime minister, Jawaharlal Nehru pledged "We have declared that the fate of Kashmir is to be ultimately decided by the people. That pledge we have given, and the Maharajah has supported it, not only to the people of Kashmir but to the world. We will not and cannot back out of it". Similar statements were also given by him at other forums, including the Indian parliament, and are on record 
Sir, how ironic and sad is the fact that this pledge, given by the first prime minister of world's largest democracy and further mandated by the United Nations, as is clear from the statement the President of Security Council of the UN made on 28 January, 1948, remains unfulfilled to this day 46 years later. The above mentioned address by the President of the Security Council reflected the various General Assembly and Security Council resolutions which emphasized that the accession of Kashmir to either India or Pakistan shall be decided by a fair and impartial plebiscite conducted under the aegis of the United Nations. The forceful subjugation by Indian troops was rejected by the Kashmiri people and this has resulted in constant upheavals and revolts against the Indian occupation in the last four and a half decades. This problem has caused two out of three Indo-Pakistani wars. Now this uprising has reached a decisive point and India has resorted to deploying 600,000 troops (50% of its total army and greater than the Army of neighboring Pakistan) against the civilian population of that small state which numbers less than 4 million people. 
even this horrifying imbalance of 1 soldier for every 6 Kashmiris (majority of whom are old men, women and children) has failed to suppress the freedom movement. Kashmir is under direct President's rule since 1990, after the state legislature was dissolved (the federally appointed governor had admitted that the Kashmiri legislature had a history of rigged elections). The nature of State-sponsored terrorism is exemplified by such unbelievable laws as "The Armed Forces (J&K) Special Powers Bill (1990), which have been passed by the parliament of world's largest "democracy". This Bill grants authorization to members of Indian Security Forces to "fire upon or otherwise use force, even to the causing of death against any person" without fire orders. No wonder, more than 60,000 people have been brutally murdered by the Indian Security Forces in the past eight years and thousands more have been intimidated and terrorized. What else would you call State-terrorism? And ironically it was Pakistan which almost had the distinction of being branded a terrorist state for professing support for these oppressed people. The Indian security forces have flouted all norms of civilized conduct. Kashmiri youths have been murdered in cold blood in fake encounters and Kashmiri women of all ages were and are gang-raped in the prescence of their families. International human rights organizations and the international press has been refused entry into the State by the Indian government. They can only visit the 
These human rights organization like Amnesty International and Asia Watch constantly report of indescribably inhumane treatment meted out to Kashmiris in government run torture cells and elsewhere. 
While the world has responded to the Bosnian Civil War, it has so far failed to act to stop an even greater problem of abuse of human rights and mass genocide of Kashmiris by an invading army. It seems that commercial interests have taken precedence over the dignity of human life. even as you read this, people who have dared to stand up for their basic human rights are being tortured and killed in Kashmir.




Q: How many resolutions have so far been adopted by the Security Council on Kashmir? How many of them clearly spell out the prescription for the settlement of the dispute?


A: The Security Council has so far adopted 18 resolutions directly or indirectly dealing with the Kashmir dispute, the latest being resolution 1172 adopted in 1998, which while addressing the nuclearization of South Asia urges Pakistan and India in its para 5 to find mutually acceptable solutions that address the root causes of tensions (between them) including Kashmir.




Q: India says that the resolutions on Kashmir have lost their relevance. It further contends that the resolutions are not binding on it. How far is this true?



A: Legally and politically it is not correct. No UNSC resolution can lose its relevance unless the Security Council adopts another resolution calling for its supercession for whatever reasons. This has been confirmed by the UNSG in a Statement on 6 January 1994.

Politically, the resolutions on Jammu and Kashmir have become even more relevant because of the on-ground political situation in Jammu and Kashmir where a legitimate freedom struggle is being suppressed by the Indian army and the situation now poses a grave danger to international peace and security.

India charged Pakistan of committing aggression against India. But it based its complaint on article 35 of Chapter VI of the UN Charter which relates to the "Pacific Settlement of Disputes" and not Chapter VII which deals with acts of aggression. Subsequently, India tried to evade the provisions of the resolution adopted by the Security Council saying that the resolutions were passed under Chapter VI and not under Chapter VII and as such its recommendations were not binding on it.

Contrary to India's distorted logic, under international law all UNSC resolutions which confirm agreements reached among the parties to a dispute-as was the case in Kashmir- become legally binding on all parties concerned- in this case India, Pakistan and the UN.




Q: What decision did the Security Council take in its resolutions?



A: Through its resolutions 47 (1948), later reaffirmed by resolutions 51 (1948), 80 (1950), 91(1951) 122 (1957), the UNSC decided that the final disposition of Jammu and Kashmir will be made in accordance with the will of the people expressed through a UN supervised plebiscite.



Q: Why was this decision not implemented?



A: UNSC resolution 47 of 21 April 1948 called for "the withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistani national not normally resident therein" and the reduction of Indian forces in the state to "minimum strength required" in order to facilitate a plebiscite. The Security Council modified its decision by resolution 98 of 23 December 1952 which provided for synchronized reduction of troops on both sides of the ceasefire line to 3000 to 6000 on the Pakistani side and 12000 to 18000 on the Indian side. Pakistan agreed, India did not. India's reluctance to demilitarize the State of Jammu and Kashmir was confirmed by Sir Owen Dixon, Head of the UN Commission for India and Pakistan (UNCIP), in his report to the Security Council on 15 September 1950. He sated that, "in the end I became convinced that India's agreement would never be obtained to demilitarization in any form or to provisions governing the period of plebiscite of an such character, as would in my opinion, permit the plebiscite being conducted in conditions sufficiently guarding against intimidation and other forms of influence and abuse by which freedom and fairness of the plebiscite might be imperiled".