In its concluding session at Islamabad (March 22-23, 2022), the Organization of Islamic Cooperation (OIC), renewed “unwavering solidarity with the people of Jammu and Kashmir” and expressed “full support for their inalienable right to self-determination in accordance with the relevant resolutions of the UN Security Council and the OIC, and the wishes of the Kashmiri people” . Besides, they condemned “massive violations of their human rights in the Indian Illegally Occupied Jammu and Kashmir” (IIOJK).
The participants reiterated “rejection of India’s illegal and unilateral actions since August 5, 2019 aimed at altering the demographic composition of the occupied territory, suppressing the realization of the inalienable right of self-determination of the Kashmiris, in violation of UN Security Council resolutions, and international law including the 4th Geneva Convention”. The declaration added, ‘We declare that the final settlement of the Jammu and Kashmir dispute in accordance with UN Security Council resolutions is indispensable for durable peace in South Asia. We reiterate our call on India to: a) reverse its unilateral and illegal measures instituted since 5th August 2019; b) cease its oppression and human rights violations against the Kashmiris in Indian Illegally Occupied Jammu and Kashmir; c) halt and reverse attempts to alter the demographic structure and to redraw electoral constituencies in IIOJK; and d) take concrete and meaningful steps for full implementation of the UN Security Council resolutions on Jammu and Kashmir’.
Self determination, an inalienable right
The right to self-determination is not only a moral right but also a legal right. In the case of Kashmir, both India and Pakistan agreed to hold a plebiscite to determine the future status of the disputed state. By flouting its commitment to the United Nations, India qualifies as a rogue state to be subjected to international sanctions. A jus cogen of international law is pact sunt servanda, treaties are to be obeyed.
India’s obligations in regard to the Occupied Territory
In international law, a territory is considered “occupied” when it is actually placed under the authority of the hostile army. The definition of occupation and the obligations of the occupying power were initially codified at the end of the nineteenth century. The definition is enshrined in the Regulations Concerning the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 August 1907 (H.IV). Section III of the regulations details the rights and obligations of the military authority over enemy territory (Arts. 42–56). These are very old regulations that, according to the International Court of Justice, have acquired the status of international customary law (infra Jurisprudence). Contemporary international humanitarian law has clarified and added to the rights and duties of occupying forces, the rights of the populations of occupied territory, and the rules for administering such territory (GIV Arts. 47–78; API Arts. 63, 69, 72–79)
Several recent decisions by international courts have also confirmed that the occupying power is obliged to comply with its human rights obligations in occupied territories and in respect of people placed under its effective control as a result of occupation or detention. These decisions thus confirm that the application of international humanitarian law is complementary to the conventions on human rights in these situations. The European Court of Human Rights (ECHR) has passed judgments on violations of the European Convention committed by European countries in relation to their intervention in Iraq and military occupation of the country (infra Jurisprudence).
According to humanitarian law, occupation falls in the definition of international armed conflict and is regulated as such by the four Geneva Conventions and Additional Protocol I. The occupying power faces specific obligations where it has an effective control over the territories occupied. These include obligations related to respect for human rights, law, and order, in addition to respect for relevant provisions of humanitarian law related to occupation. The basic obligations of the occupying power under IHL are to maintain law and order and public life in the occupied territory. For the most part, the occupying power must follow the laws that were already in force in that territory (H.IV Art. 43).
India’s perfidious leaders
The Indian Independence Act of 1947 (based on the Mountbatten Plan) provided for the lapse of paramountcy of the British Crown over the Indian states. It also gave each of these rulers the option to accede to the newly born dominions India or Pakistan or continue as an independent sovereign state.
Right after becoming independent, India harboured nefarious designs to annex the princely states through cajoling, coaxing, coercing and even through naked aggression. Vallabhai Patel and Krishna Menon tried every ploy to integrate these states into the Indian Union. At the time of Partition, the princely states covered 48 percent of the area of pre-Independent India and constituted 28 percent of its population.
Under duress, most of the rulers agreed to the dissolution of their respective states, surrendering control of thousands of villages, jagirs, palaces, and institutes, cash balances amounting to crores and a railway system of about 12,000 miles to the Indian government without receiving any compensation.
By 15 August 1947, the process of integration of princely states was almost complete except for a few, who held out. Some simply delayed signing the Instrument of Accession, like Piploda, a small state in central India that did not accede to India until March 1948.
Some states were a hard nut to crack for India. Junagadh formally acceded to Pakistan. Hyderabad and Kashmir declared that they intended to remain independent.
Jodhpur wanted to accede to Pakistan. But, Patel coerced the state’s ruler Hanvant Singh to accede to India. Patel agreed to connect Jodhpur with Kathiawar by rail and supply grain to it during famines.
Another state that wished to declare independence was Bhopal, which had a Muslim Nawab, Hamidullah Khan, ruling over a majority Hindu population. A close friend of the Muslim League, the Nawab was staunchly opposed to Congress rule. He had made clear his decision to attain independence to Mountbatten. However, the Mountbatten disappointinted him by stating that “no ruler could run away from the dominion closest to him”. By July 1947, the prince became aware of the large number of princes who had acceded to India and decided to follow suit.
Nizam Mir Usman Ali of Hyderabad presided over a largely Hindu population. When the British decided to leave, the Nizam was very clear on his demand for an independent state and consequently becoming a member of the British commonwealth of nations. Lord Mountbatten, however, made it very clear that the Crown would not agree to Hyderabad becoming a member of the British Commonwealth, except through either of the two new dominions.
On September 13, Indian troops were sent to Hyderabad in what came to be known as ‘Operation Polo’. In an armed encounter that lasted for about four days, the Indian army conquered the state. Later, in an attempt to reward the Nizam for his submission, he was made the governor of the state of Hyderabad.
The case of disputed Kashmir
Declassified Nehruvian documents reflect that Nehru was never sincere in holding a plebiscite in the occupied Kashmir. It delayed the plebiscite on one pretext or another until declaring that the United Nations’ resolutions were mediatory in nature. And, it was up to India to accept them or not.
Mirror image of Nehru’s documented perfidy:
Because of Nehru’s failure to keep promises, Sheikh Abdullah had begun to talk of independence. Nehru wanted to keep the bull at bay while concealing his desire to annex the disputed state. He made many assurances to tab Sheikh Abdullah’s over-ebullience.
Avtar Singh Bhasin (India and Pakistan: Neighbours at Odd) tells on page 63 on the basis of Nehruvian diaries, `Nehru addressed a lengthy letter to him [Sheikh Abdullah] on 25 August 1952 from Sonamarg, where he was then camping. After narrating the events since the accession of the State in October 1947, he went on to assure him of his commitment to the people of the State that the future would be decided by them alone, and if they wanted India to be put out of Kashmir, there would be no hesitation. He wrote, if the people of Kashmir clearly and definitely wish to part company from India, there the matter ends, however we may dislike it or however disadvantageous it may to India. If the Constituent Assembly told India to get out of Kashmir, we would get out, because under no circumstances can we remain here against the expressed will of the people.
Kashmir’s assembly’s `accession’ disowned, Security Council owned
Nehru banked on so-called Instrument of Accession and its authentication by `Constituent Assembly’. But in a strange quirk of volte face, Nehru declared, `after consideration of the problem, we are inclined to think that it [plebiscite] should be held under United Nations’ auspices (p. 28 ibid.). He reiterated in New Delhi on November3, 1951 that `we have made it perfectly clear before the Security Council that the Kashmir Constituent Assembly does not [insofar] as we are concerned come in the way of a decision by the Security Council, or the United Nations’(SWJ: Volume 4: page 292, Bhasin p.228). Again, at a press conference on June 11, 1951, he was asked `if the proposed constituent assembly of Kashmir “decides in favour of acceding to Pakistan, what will be the position?”’ he reiterated, `We have made it perfectly clear that the Constituent Assembly of Kashmir was not meant to decide finally any such question , and it is not in the way of any decision which may ultimate flow from the Security Council proceedings’ (SWJ: Volume 15:, Part II, page 394. Bhasin page 56). He re-emphasised his view once again at a press conference in New Delhi on November 3, 1951. He said `we have made it perfectly clear before the Security Council that the Kashmir Constituent Assembly does not [insofar as] we are concerned come in the way of a decision by the Security Council or the United Nations’.
Security Council disowned as just a non-binding mediator
It is flabbergasting that during the period 1947 to 1952, Nehru kept harping commitment to plebiscite. Then there was a sudden metamorphosis in his compliant attitude.
Bhasin points out that `there was a perceptible shift in his [Nehru’s] stand on July 24 1952` about the future of the State _ `if the decision of the Security Council was at variance with that of the Constituent Assembly’. Nehru said, `Unless the Security Council functioned under some other Sections of the Charter, it cannot take a decision which is binding upon us unless we agree to it. They are functioning as mediators and a mediator means getting people to agree(SWJ, Volume 19, page 241. Bhasin page 56).
Security Council re-owned
Bhasin points out (page 57 op. cit.) `At the same press conference on 24 July, 1952 when asked what the necessity of plebiscite was now that he had got the Constituent Assembly, he replied “Maybe theoretically you may be right. But we have given them an assurance and we stand by it (SWJ: Volume 19, pp. 240-241. Bhasin p. 57).
Nehru himself invokes UN’s intervention
Bhasin points out that Nehru made a ‘tactical error’. One `of committing himself to the UN’ (p. 28. op. cit.). But the real question to consider is how far the settlement in Kashmir would affect the rest of India’ (Selected Works of Jawaharlal Nehru: Volume 8: pages 335-340. Quoted by Bhasin, pages 26-27). Nehru spelled out Indian policy towards Kashmir. Extract: `In Kashmir, we or many of the Muslims there’.
Post-Nehru equivocal rhetoric
For about 70 years, India continued to abide by UN resolutions describing Jammu and Kashmir as a disputed state. Simultaneously, it continued to harp that Kashmir was her integral part (atoot ang). At the same time India told the world that Kashmir is a bilateral dispute extraneous to UN. With communication links cut off, food supplies blocked, even on Eid (Muslim annual prayer), occupied Kashmir remained a prison.
The lockdowns has made people’s lives miserable. Winter exacerbated their misery. Suspension of 4G internet made E commerce and online education a farce.
Apple orchards stands destroyed as also wood-carving tradesman. A December report of the Kashmir Chamber of Commerce and Industry, reported successive losses of Rs. 14,296.10 crore and Rs 17,800 crore, besides loss of 4.9 lakh jobs between August and December. In July 2020, it reported revenue loss of Rs 40,000 crore.
New domiciliary policy changed Kashmir’s demography. Currently, at least 17 lakh migrants have applied for a domicile certificate.
Also, with a nudge from the Centre, the underprivileged from other states like Bihar could rush to the Valley for a better life. According to the Centre for Monitoring Indian Economy, the unemployment rate in Jammu and Kashmir is currently 17.9 per cent, far higher than the national average of eight per cent. The domicile law has come at a time when, according to the Union home ministry, there are 84,000 government vacancies to be filled. That would reduce the job chances of real Kashmiris (365 since 370A, The Week, August 09, 2020).
The last nail
India abolished statehood of the disputed Kashmir to control it from the Centre. Large expanse of Kashmir land was allotted to the occupying forces. Now the draconian Unlawful Activities Prevention act is being clamped on women and children.
It is eerie that the whole architecture of India’s stand on Kashmir is erected on the mythical `instrument of accession’ and its endorsement by the disputed state’s assembly. Accession documents are un-registered with the UN.