Legitimacy of Indian soldiers in Kashmir ?
THE current presence of Indian soldiers in Kashmir (IIOJK) has degenerated into an occupation.
Concern about its number and operating above the laws have been raised in the two reports of UN High Commissioner for Human Rights, of June 2018 and July 2019.
The temporary presence and a voluntary withdrawal of these forces is an important part of the agreement dated 27 October 1947 between the Maharaja of Kashmir and the Government of India.
Government of India has assured the United Kingdom (Prime Minister Attlee) on 26 October 1947 a day before dispatching the forces and the Government of Pakistan on 31 October 1947 about the temporary stay of these forces in Kashmir. They had to protect life, honour, property and defend the territories of the State.
There is a discipline of duties and anything beyond these duties is a breach of the agreement and entails criminal and civil liabilities.
The forces in fact are temporary, as a supplement and as a sub-ordinate force to the Government of Kashmir. In fact the State Government could terminate their presence, if it so liked.
The first good behaviour certificate was accorded to these forces by Sheikh Abdullah on 5 February 1948 at the Security Council.
The good behaviour certificate had to be accepted on the basis that there would be a UN Commission supervising these forces.
The UN Representative for India and Pakistan under UN Security Council Resolution of 30 March 1951, had to report in three months on the progress of demilitarization.
He had to report to the Security Council if “he has not affected the demilitarization” or if “he has not obtained the agreement of the parties to a plan for affecting such demilitarization Representative shall report to the SC those points of differences between the parties in regard to the interpretation and execution of the agreed resolution of 13 August 1948 and 5 January 1949 which he considers must be resolved to enable such demilitarization to be carried out”.
Government of India has conveyed to Britain and Pakistan the purpose of its forces in Kashmir. They had to be (and have to be) demilitarised.
The final disposal of the Indian forces in Kashmir is in the hands of Plebiscite Administrator and the Commission.
This could also cause a total termination of the presence of Indian soldiers in Kashmir. The 21 April 1948 resolution of the SC sets out a further discipline on the Indian forces in Kashmir.
This has to be carried out in accordance with the following three principles:
(i) That the presence of troops should not afford any intimidation or appearance of intimidation to the inhabitants of the State.
(ii) That as small a number as possible should be retained in forward areas.
(iii) That any reserve of troops which may be included in the total strength should be located within their present base area.
The UN template covers the behaviour, number and location of these Indian forces. Until the conduct of a UN supervised vote in Kashmir, Rule 10 of the Provisional Rules of Procedure of the Security Council grants perpetuity to Kashmir.
Therefore, Indian soldiers could be considered as an occupation force, illegally in Kashmir and engaged in crimes against civilians.
The role of Indian forces was to assist the local administration and in ensuring a fair Plebiscite.
It is to be highlighted that law and order in Kashmir is not a monopoly of Government of India.
Para 5 of the 21 April 1948 Security Council resolution states, “If these local forces should be found to be inadequate, the Commission, subject to the agreement of both the Government of India and the Government of Pakistan, should arrange for the use of such forces of either Dominion as it deems effective for the purpose of pacification”.
In addition we have an ongoing situation envisaged by Canada at the 235th meeting of Security Council.
Canada wanted to “afford security to the people of Jammu and Kashmir under some authority which will be recognised by everyone concerned as strictly impartial; and, most important, to provide for a Plebiscite of the people in which all of them will be permitted to express without fear or favour their wishes as to the future government of the State.” At this point the people of IIOJK are without a credible protection.
It is unfortunate and we have also missed to impress upon the High Commissioner for Human Rights, that the number of Indian soldiers should be examined in the light of terms of temporary admission, promises made to Britain and Pakistan and the three principles laid down in the UN Security Council resolution on the behaviour, number and location of these forces.
The present strength of Indian army after 5 August 2019 and induction of more forces last week need to be taken up by all schools of opinion.
We have grounds to challenge the illegitimacy of Indian forces and that they remain in violation of the Agreement of 27 October 1947, assurances given to Britain on 26 October 1947 and to Pakistan on 31 October 1947.
We have a strong case under UNSC resolution of 21 April 1948 to seek UN intervention on the violation of three principles set out for the presence of Indian forces in Kashmir.
United States of America has argued that UN Security Council had a “positive duty” in Kashmir and “unless the parties are able to agree upon some other solution, the solution which was recommended by the Security Council should prevail.”
America, Argentina, Australia, Belgium, Britain, Canada, China, Cuba, Colombia, France, Netherlands, the Philippines and many other countries have been on the fore front in preparing the template of a UN supervised Plebiscite in Jammu and Kashmir. We need to re-engage these countries and remind them of their contribution.
Labelling a Kashmiri as a militant or profiling a Kashmiri for killing by the Indian security forces and Kashmir police, is a war crime and a crime against civilians.
International Criminal Court has taken cognizance of violation of human rights during counter-insurgency in Darfur, Sudan.
Abd-Al-Rahman is suspected of 31 counts of war crimes and crimes against humanity allegedly committed in Darfur. The confirmation of charges hearing took place on 24 -27 May 2021.
Indian army officers and personnel are no exception. We have to sensitise the illegitimacy of these forces and occupation. Continued
—The author is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations.
