A Briefing Paper

OF

HUMANITARIAN LAW PROJECT
INTERNATIONAL EDUCATIONAL DEVELOPMENT
ASSOCIATION OF HUMANITARIAN LAWYERS

Prepared by
Karen Parker, J.D.

Presented to

The United Nations
Commission on Human Rights
1996 Session
March
Geneva

Humanitarian Law Project
International Educational Development
8124 West Third Street
Los Angeles, California 90048
tel. (213) 653-6583
fax. (213) 653-2741

Humanitarian Law Project/International Educational Development

(HLP/IED) is a non-sectarian, non-governmental organization granted consultative status at the United Nations by Dag Hammarskjold. IED was originally founded by Jesuit fathers to assist hospitals and schools in developing countries. In 1989 IED merged with the Los Angeles-based Humanitarian Law Project (HLP) and broadened its scope to advocate and promote world-wide compliance with human rights and humanitarian law.

Karen Parker, a director of HLP/IED, is an attorney at law specializing in human rights and humanitarian law. She is the organization's chief representative to the United Nations, Geneva and New York.

This report was funded by a grant from the Association of Humanitarian Lawyers.

 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 4

SYNOPSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . 6

UNITED NATIONS ACTION ON KASHMIR . . . . . . . . . . . . . . . 7

THE KASHMIRI RIGHT TO SELF-DETERMINATION . . . . . . . . . . . 10

THE KASHMIRI WAR AND HUMANITARIAN LAW. . . . . . . . . . . . . 17

THE WAR -- EVERYDAY REALITY. . . . . . . . . . . . . . . . . . 19

SOME RECENT EVENTS . . . . . . . . . . . . . . . . . . . . . . 22

INDIA'S HUMANITARIAN LAW VIOLATIONS. . . . . . . . . . . . . . 25

VIOLATIONS OF RIGHTS OF DETAINEES IN KASHMIR . . . . . . . . . 29

THE ECONOMIC DESTRUCTION OF KASHMIR. . . . . . . . . . . . . . 32

FINAL ASSESSMENT . . . . . . . . . . . . . . . . . . . . . . . 33

WHAT SHOULD THE UNITED NATIONS DO. . . . . . . . . . . . . . . 34

U.N. ACTION ON KASHMIR . . . . . . . . . . . . . . . . . . . . 36

BIBLIOGRAPHY . . . . . . . . . . . . . . . . . . . . . . . . . 37

 INTRODUCTION

The Humanitarian Law Project/International Educational Development (HLP/IED) and the Association of Humanitarian Lawyers have been concerned for many years about the Kashmiri war and the serious violations of humanitarian law and human rights in Indian-occupied Jammu and Kashmir. With grants from the Association of Humanitarian Lawyers we have undertaken 7 confidential missions to Kashmir, including one each in 1991 and 1992, two in 1993, and one in the Fall of 1994 of several months duration each and two in 1995 of shorter duration.

At the United Nations Commission on Human Rights and its Sub-Commission on Prevention of Discrimination and Protection of Minorities we have presented extensive written and oral statements on the Kashmiri war. In October 1995 we co-hosted a reception at UN Headquarters in New York for leaders of the Kashmiri people, with funds also provided by the Association of Humanitarian Lawyers.. This report is our fourth on Kashmir. 

SYNOPSIS

India seized much of Kashmir in 1947 during the break-up of British colonial rule in the region. In 1949, the United Nations Security Council and its Commission for India and Pakistan decided that Kashmiris themselves should determine their future rule, and authorized a UN-administered plebiscite of Kashmiris to determine their status. This plebiscite has not yet been held.

Kashmiris have resisted Indian rule all along, and there have been many periods of upheaval since 1947. The current crisis dates from 1988 and over its nearly 8 years has steadily escalated. At the present time, India has an occupation army of at least 600,000 military and paramilitary troops in Indian- occupied Kashmir. The Indian troops in turn face growing organized political and armed resistance by Kashmiri forces and a wide-spread popular uprising. A steadily escalating cycle of repression and resistance to repression has engulfed the area and there are rampant and widespread violations of the Geneva Conventions and human rights.

This report presents a background to the current crisis, including a summary of United Nations action on the Kashmir question. It then shows that the Kashmiri people have a right to self-determination, including the right to decide their political affiliation and concludes that India's claim to Kashmir is undefendable. The report then sets out violations of humanitarian law and human rights in the area. It concludes by recommending a course of action by the United Nations and the international community to restore full human rights to Kashmir, including the right to self-determination. Annexed to the report are citations to all major UN documents and a list of recent reports on Kashmir.

 BACKGROUND

Kashmir, independent for much of its long history, is located between India, Pakistan, China and Afghanistan. During the British colonial empire in the sub-continent, Kashmir was set up as an autonomous State or principality headed by a maharajah but ultimately controlled by Britain. The maharajah was a descendent of a warlord who had been "sold" the area by the British East India Company in 1846.

In the 1930s a "Quit Kashmir" movement began with the aim of reestablishing independence through the withdrawal of the maharajah and the termination of British "paramountcy". The British and the maharajah brutally put down this movement, but it continued to exist secretly until 1947 when it became part of the newly-formed Azad (free) Kashmir movement.

When the British withdrew from colonial India in 1947, a settlement was reached between the British and the new States of India and Pakistan. Under the decolonization plan, the autonomous States such as Jammu and Kashmir were to be given the option of joining either India or Pakistan under the principle of partition or to become fully independent. The Kashmiri people are largely Muslims, so even though its maharajah was Hindu, it was widely assumed that they would choose independence or accession to Pakistan. In fact, the newly-formed Azad Kashmir or free Kashmir movement which strongly opposed accession to India was vigorously supported by the Kashmiri people. On the other hand, two autonomous States (Hyderabad and Junagadh) had Hindu majorities but Muslim maharajahs, strengthening India's resolve that any accession must be approved by the people in question.

The political leadership of the new India reiterated again and again to the Kashmiri people and the world that the Kashmiri people would be able to decide their own future. For example, in 1947 Indian Prime Minister Nehru stated:

We have declared that the fate of Kashmir is ultimately to be decided by the people. That pledge we give not only to the people of Kashmir but to the world. We will not and cannot back out of it.

However, at that same time Maharajah Hari Singh, a Hindu, sought help from Indian troops to quell the anti-maharajah and anti-India fervor in Kashmir. In exchange for the assistance of the Indian army to put down an escalating revolt, he signed an instrument of accession with India. The Indian army then took over from the maharajah's forces and it began fighting against Azad Kashmir forces. By 1947 the Azad Kashmir controlled one third of the State of Jammu and Kashmir but were unable to hold

the whole of it. A portion in the north came under Pakistan authority and another part under Chinese control. The largest part Kashmir including the valley and Srinagar fell to Indian forces.

UNITED NATIONS ACTION ON KASHMIR

In 1948 the United Nations began addressing the crisis in Jammu and Kashmir, and in January of that year the Security Council, with the agreement of both Pakistan and India, first passed a resolution urging measures to improve the situation followed by one setting up a Security Council Commission (later named the United Nations Commission for India and Pakistan) to defuse the armed confrontations. In April, 1948, the Security Council first addressed the question of a plebiscite to determine the future of the State of Jammu and Kashmir. Under Security Council resolution 47/48, the Security Council Commission was enlarged to five persons and ordered to travel to the area at once and

place its good offices and mediation at the disposal of the Governments of India and Pakistan with a view to facilitating the necessary measures, both with respect to the restoration of peace and order and to the holding of a plebiscite by the two governments.

On August 13, 1948, the Security Council Commission, now called the United Nations Commission for India and Pakistan, adopted a resolution mandating a cease-fire and withdrawal of troops. This was followed by another resolution which included principles regarding the plebiscite which was now to be under the authority of the Security Council itself. The Peace Plan proposed by the Commission for India and Pakistan and accepted by both parties had three stages: (1) a cease fire, (2) a truce involving an agreed plan for a balanced military withdrawal of both sides and (3) a plebiscite. The cease fire took effect on January 1, 1949.

Also in January 1949, the United Nations Military Observer Group in India and Pakistan (UNMOGIP) was established with a mandate "to supervise, in the State of Jammu and Kashmir, the cease-fire between Indian and Pakistan." It continues today, with 38 military observers.

India objected to the truce plan proposed by the Commission for India and Pakistan. The Commission proposed arbitration over the truce plan with Admiral Nimitz as arbitrator. Pakistan accepted this plan. However, even with strong appeals for this arbitration made by U.S. President Truman and United Kingdom Prime Minister Attlee, India refused to accept arbitration over the truce.

In exercise of his good offices, Security Council President

General McNaughton (Canada) issued a proposal (the McNaughton Proposal) in which the first of four principal considerations was the need for determination "of the future of Jammu and Kashmir by the democratic method of free and impartial plebiscite, to take place as early as possible." The proposal then sets out a plan called "Demilitarization Preparatory to the Plebiscite." In accordance with the McNaughton Proposal the Security Council, in its resolution 80/1950, noted the appointment of Admiral Chester Nimitz of the United States Plebiscite Administrator, appointed a United Nations Representative whose mandate was "to supervise the implementation of the programme of demilitarization" and set out other steps "for the expeditious determination of the future of the State [of Jammu and Kashmir] in accordance with the freely expressed will of the inhabitants."

Between 1950 and 1957, neither Admiral Nimitz nor a series of Representatives appointed by the United Nations Security Council (General McNaughton; Owen Dixon -- Australia; Frank Graham -- United States; Gunnar Jarring -- Sweden) were able to fulfil their mandate to demilitarize the area and arrange for the plebiscite. In 1965, tension between India and Pakistan increased dramatically due to, inter alia, the Kashmir question, and war broke out for a brief time. The matter was brought to the Security Council and with the efforts of the Secretary-General there was a cessation of hostilities and a return in force of the cease fire line. In 1971, war broke out again between India and Pakistan, although Kashmir was only a minor factor, and the United nations again responded. The Simla Agreement concluding that war, signed by Prime Ministers Indira Gandhi of India and Zulfikar Ali Bhutto of Pakistan, committed both countries to reach a "final settlement of Jammu and Kashmir", as yet unfulfilled. Several times since, India and Pakistan have again been poised for war, and since a near-war in 1990 there are growing concerns about the possible use of nuclear weapons. However, the General Assembly and United Nations human rights bodies have not acted on the question, in spite of voluminous testimony of serious violations of humanitarian law by governments and non-governmental organizations and several draft resolutions presented.

[SEE PART II]