Dr. Syed Nazir Gilani
Indian military machine and surveillance apparatus have managed the 176th day of lockdown in the Valley of Kashmir. India should realise that every occupation and oppression has its sell by date. There are no two opinions that the military and police would not hesitate to stage a blood bath, if the Kashmiris misjudge and offer themselves as a sitting target in thousands on the streets.
It would be a one sided killing and Kashmiris do not have a weapon to defend. United Nations has frozen these Kashmiris into a non-defence through its resolutions. It is time that we demand a credible protection and defence of these people from the United Nations.
Pakistan could and should lead a demand for the international protection of the people of Kashmir placed under a 176th day unlawful lockdown. Pakistan needs to revive its proposal of sending a UN Force into Kashmir, made at the 761th meeting of UN Security Council held on 16 January 1957. In fact the demand should have been made in the first week of the Indian actions of 5 August 2019.
On 16 January 1957 Pakistan has demanded, “In view of this, the Security Council should call upon the parties to withdraw all their troops from the State and should also ensure that the local forces which should be placed under the representative of the Security Council and left behind, are suitably reduced, if not disbanded altogether. The functions of protecting the State and ensuring internal security should be entrusted by the Council to a United Nations Force which should be introduced into the area at once. Let all other forces-Indian, Pakistani and local, be disbanded and non-Kashmiri nationals even in the police forces be removed from the State of Kashmir. It is further requested that an early and firm date be fixed for the induction into office of the Plebiscite Administrator. The situation may be saved even at this late stage-but only by these means. The most important of all is to take immediate steps to prevent India from taking the bit into its mouth and defying this august body.”
Pakistan has not been alone in asking for a UN Force in Kashmir. Australia, Cuba, United Kingdom and Northern Ireland and United States of America, moved a Resolution S/3787 on 14 February 1957 and supported the Pakistan’s proposal. The resolution moved by the four countries said, “resolution therefore, in taking note of the proposal of Pakistan, makes it quite clear that the use of the temporary force could only be considered within the framework of the resolutions in so far as it might contribute towards the achievement of demilitarization as envisaged in the resolutions of the United Nations Commission and towards the pacific settlement of the dispute, the use of such a force would deserve consideration.
The representative of Philippines Mr. Romulosaid, “I must emphasize that the sovereignty of India or of Pakistan is not involved in the proposal to send a United Nations force into the state of Jammu and Kashmir for a temporary and limited purpose.In the view of both the Council and the Commission, neither India nor Pakistan can bring into question the sovereignty of the State of Jammu and Kashmir. This, position is crystal clear in the assurances given by the Commission to the Governments of India and Pakistan and which forms the basis of their acceptance of the resolutions of 13 August 1948 and 5 January 1949 (see documents S/1100, annex 12, p.l05, and S/1430/ Add. l, see also annex V, section A, of the documents submitted as annexes to the statement made by Mr. Krishna Menon [S/PV.762/Add.l].) Under the circumstances and pending the holding of a plebiscite, neither India nor Pakistan can claim sovereignty over the State of Jammu and Kashmir.
There is no merit in hoping that India would return to a behaviour expected of it in bilateral agreements and UN Resolutions on Kashmir. We need to take steps of all kind, at the individual, state and international level to hold India accountable for waging a war against peace, a defenceless people and against her obligations under the UN Charter. In doing so we need to be extra vigilant.
A national newspaper has very rightly said in its editorial on 25 January that “The UN needs to understand that Kashmir is as much a political dispute as it is a legal one.” We need to address the four components of Kashmir case, namely, “Rights and Dignity” and “Security and Self-Determination”, individually and simultaneously.
We have to admit that the new generation of diplomats all over the world would not be up to date on the jurisprudence of Kashmir case, for a variety of reasons. Unless the matter is actively debated at the UN Security Council or at other forums, diplomats do not have enough time to research into a case. Out of the 72 years, Kashmir has not featured at the UN Security Council for about 54 years. Therefore, the new generation of diplomats had no reason to keep themselves abreast on Kashmir in general and in particular on the stand that their respective country had taken at the UN Security Council, during the debates.
The gap in the understanding of Kashmir case by the new generation of diplomats could be easily understood by the statement made by Ambassador of France Mr. Marc Baréty, at National University of Science and Technology (NUST) during a question answer session. He has said, “We are mindful of the situation in occupied Kashmir and our head of states have conveyed their concerns to Prime Minister Narendra Modi. You cannot expect the international community to solve your territorial dispute however the thing which is direly needed from both sides is strong political will.”
The diplomat is not to be blamed for this gap in the stand of his country at the UN Security Council and his own understanding today. We should have remained around, all these years perfecting our narrative on Kashmir. We did not and the gaps have appeared. We welcome the interest of France on the situation in Indian occupied Kashmir but the remainder part of the statement is far remote from the continued position taken by France at the UN Security Council, during debates on Kashmir question.
Kashmir is not a bilateral territorial dispute as stated by the Ambassador. It is contrary to the position taken by France at the “539th meeting of the UN Security Council held on 30 March 1951. French position has remained that, “Resolutions of 13 August 1948 and 5 January 1949, to which we must always return because they won the express agreement of both India and Pakistan. If the parties are unable to reach agreement on the plan submitted to them, provision is made for arbitration, and, to make assurance doubly sure, arbitration is to be carried out b by an arbitrator or panel of arbitrators appointed not by a political body but by the President of the International Court of Justice.”
Bilateral engagement is a component in article 33 of UN Charter, but it would be article 103 that would restrain infinite futile engagement and failure in the bilateral dialogue. The Document III submitted by Pakistan on 15 January 1948, to the UN Security Council, containing Particulars of Pakistan’s Case has admitted that “They have already unsuccessfully tried over a period of many months to seek a solution of the disputes between the two Dominions by the methods described in Article 33 of the Charter.”
France should not only honour her commitments made at the UN Security Council but also highlight the “positive duty” of the Security Council, pointed out in respect of Jammu and Kashmir Situation in February 1957. United States of America was the first UN Security Council member to address the question of a “Positive Duty of the Security Council”.United States of America at the 768th meeting of the UN Security Council held on 15 February 1957 pointed out that Security Council had a ‘positive duty’ and “unless the parties are able to agreeupon some other solution, the solution which was recommended by the Security Council should prevail.” Let us remain around, so that gaps do not intervene.
The author is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations.