Dr Syed Nazir Gilani
Any induction of “Hindu vigilante groups” into Kashmir and incitement to lynch a Muslim, would constitute a crime and a war crime
A tweet on November 19 from PSF quoted India’s Chief of Defence Staff, General Bipin Rawat, that “it is a good thing that Hindu vigilante groups that are prevalent throughout India and have now been sent to Occupied Kashmir, would be able to lynch anyone they deem to be a “terrorist” with a free hand.”
This should disturb all without an exception. It is unfortunate to see a decorated soldier inciting violence and crime against Muslims in Kashmir.
The statement disqualifies the General for any future travel abroad to any member nation of the United Nations. It is a serious breach of the various disciplines that have granted admission to the Indian army and a violation of the discipline that defines the behaviour, number and location of the Indian army in their stay and stationing in Kashmir.
The admission of “Hindu vigilante groups” into Kashmir raises many serious questions. Firstly, it proves that the General does not have a sense of history and has lost the sense of gratitude as well. Until March 31, 1959, all Indian citizens required a visa (Entry Permit) to enter Kashmir. Prime Minister of Jammu and Kashmir (elected from only a part of the territory as referenced in UN SC Resolution 91 of March 30, 1951) at the request of the Prime Minister of India rescinded this requirement. General should not overdo himself and play the “Arab Camel” in the “Kashmir habitat.”
What are the merits of the presence of the Indian army in Kashmir? What is the jurisprudence of its admission into Kashmir and the jurisprudence for the stationing of these forces? We need to examine these questions and find an answer.
Indian army has been granted a temporary admission on October 27, 1947, to “help Maharaja’s forces to defend the territory and to protect the lives, property and honour of the people.”
There is a written bilateral agreement between the Government of India and the Government of Maharaja as on October 27, 1947. In fact, Maharaja was not in control of the State territories. There were two separate independent administrations-The Azad Government of the State of Jammu and Kashmir and Gilgit-Baltistan-functioning outside the Maharaja’s rule.
Indian army has entered into Kashmir as a supplement and as a subordinate force. It is subordinate to the State administration. Sheikh Abdullah, in his statement on February 5, 1948, made at the UNSC, has acted as a surety for the good behaviour of these forces. He has assured the UNSC that these armies would be away from the civilian population and would have supervision of the UN Commission as well.
On October 31, 1947, in para 7 of his telegram, the Prime Minister of India has assured the Prime Minister of Pakistan that “Our assurance that we shall withdraw our troops from Kashmir as soon as peace and order are restored and leave the decision regarding the future of the State to the people of the State is not merely a pledge to your Government but also to the people of Kashmir and to the world.”
Any role that these Indian forces decide to assume over and above the four defined duties, would be outside of the agreement and a breach. Every breach has its respective consequences.
The General and all others need to understand that the character of the conditional accession of October 27, 1947, has changed when the Government of India made a reference to the UN under article 35 of the UN Charter and surrendered the accession for an UN-supervised vote on January 15, 1948. We need to have a Government at Srinagar as envisaged in para 6 of UN SC Resolution 47 of April 21, 1948. All major groups have to “share equitably and fully in the conduct of the administration at the ministerial level while the plebiscite is being prepared and carried out.”
The government of India and the General ought to realise that Indian forces have to be stationed according to the three principles set out in the UN SC Resolution 47 of April 21, 1948. The UN has imposed a discipline on the behaviour, number and location of these Indian forces. The lead principle is that their “presence should not afford any intimidation or appearance of intimidation to the inhabitants of the State.” The number has to be small and they should be located in the ‘base area’.
General Rawat keeps the dignity and character of his command as long as he does not err or sin against the jurisprudence of this stay in Kashmir and the jurisprudence of the Kashmir case. Kashmir case is not a Hindu-Muslim case. The UN has defined the people and the four components of the Kashmir case. Therefore, any induction of “Hindu vigilante groups” into Kashmir and incitement to lynch a Muslim, would constitute a crime and a war crime.
General Bipin Rawat as a “conscientious General” should be honest and brave enough to accept that his Government has agreed at the UNSC that India would only need to keep 21,000 forces to carry out its responsibilities in Kashmir. Indian Government has assured the UNSC that “this force will have no supporting arms such as armour or artillery.” (608th UNSC Meeting held on December 8, 1952).
Indian responsibilities in Kashmir are the “maintenance of law and order and of the cease-fire agreement, with due regard to the freedom of plebiscite on the Indian side,” although it does not mean that India has the exclusive responsibility in this respect.
All other actions outside the agreement of October 27, 1947, UNSC Resolutions 47 and 91 and UNCIP Resolutions of August 13, 1948, and January 5, 1949, have civil and criminal consequences. Generals on both sides of the divide should encourage their civilian Governments that war and occupation of Jammu and Kashmir is no solution. Politicians have to engage with each other and the armies shall have to help them to push for peaceful solutions.
India’s Chief of Defence Staff, General Bipin would serve his nation well, only, if he has a reliable understanding of the jurisprudence of the Kashmir case and reliable knowledge of the jurisprudence of the presence of his armies in Kashmir. He needs to examine the character of accession after January 15, 1948, when India laid down its case at the UNSC. General may like to be reminded that his Government has said at the 230th Meeting of the UNSC on January 20, 1948, that, “We hope to be able to convince the Security Council that once we have dealt with the 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.”
General’s encouragement to “Hindu vigilante groups” to sneak into Kashmir and lynch the terrorists, is incitement to violence and in his case would constitute a war crime. The UN has recognised six elements in Kashmir, which include, in addition to India and Pakistan, the “insurgents, tribesmen, other inhabitants of Jammu and Kashmir and the outside world.” (United Kingdom at the 241st Meeting of UNSC on February 5, 1948). Reminding the Government of India to honour the four components of the Kashmiris rights struggle and to return to the agreed role of its forces, which is not terrorism.