Association of Humanitarian Lawyers
It has been a little over a year since our first conference here, also hosted by Congressman Joseph Pitt and Senator Tom Harkin. On behalf of the Association of Humanitarian Lawyers I again thank these legislators for both their leadership role in achieving historic dialogue on the critical issue of the future of Kashmir but also for their commitment to a just and peaceful settlement of this long conflict. While recognizing that this situation is not widely discussed on the main streets of America, they also recognize that no country is safe from what could be dire consequences were India and Pakistan to go to war over Kashmir. For this we should all acknowledge them as true heroes of the American people.
The topic chosen for this panel clearly shows that since our first session last year progress has been made towards dialogue as an essential element in resolving the Kashmir question. Indeed, even before the recent change in government in India, bold new steps had been taken by both India and Pakistan to meet with the Kashmiri people directly through their own leaders. I am certain that other speakers are far more qualified than I to discuss and ponder over prospects for further, tangible progress. Accordingly, I will focus my remarks here on the international human rights and humanitarian law norms at stake in the Kashmir question and how these should inform all aspects of all dialogue on Kashmir, including that here today.
Central of the human rights concerns in Kashmir is the principle of self-determination: there can be no meaningful resolution of the Kashmir question without the realization of the right to self-determination of the Kashmiri people as promised by United Nations resolutions and their insistence on a plebiscite to determine the status of Kashmir. It is for this the reason that the issue of self-determination was raised in so many presentations at last year’s conference. It is also explains the focus of the two hugely important and successful conferences on self-determination that have taken place in Geneva during the United Nations human rights sessions in the past several years.
In my presentation last year I referred to self-determination as the cornerstone to peace in the region, set out the universally accepted definition of self determination and its high legal status, made the case for the Kashmiri people’s right to self-determination, and described in brief the serious consequences of the failure to realize the right of the Kashmiri people to self-determination. I concluded my statement by arguing that restoring the right to self-determination to its proper status in dialogue will not be easy for either India or Pakistan. In this light we welcome the inclusion of the Kashmiri political leadership in direct talks with both India and Pakistan and view this in itself as a tacit understanding by both of the ultimate need to honor the principle of self-determination in this situation.
The United Nations resolutions on Kashmir require a plebiscite by which the wishes of the Kashmiri people regarding their governance may be first established, and then, presumably realized. For any dialogue to be meaningful both India and Pakistan must accept that this plebiscite will occur. It is folly if not delusional to continually side-step that recognition and the delay in taking on this issue reduces the “dialogue” to a trivial exercise. I am certain that you accept the proposition that at the present time the only issue of serious conflict between India and Pakistan is Kashmir. All other areas of contention are far more easily resolved. It is the failure to carry out the plebiscite in Kashmir that has caused the tinderbox and it is Kashmir that will enflame the area if not resolved. I repeat, both India and Pakistan must recognize that the plebiscite will be held. This recognition is an essential confidence building measure. Pretending that other issues have to be dealt with first merely begs the only important matter in an irresponsible manner. The focus, therefore, of the dialogue, must be on establishing the necessary conditions for the plebiscite at the earliest possible time.
While the focus of any dialogue should be on establishing the necessary conditions for the plebiscite, I am aware that it will not be easy to establish such conditions in Indian-occupied Kashmir. Even so, I believe there are many steps in the direction of self-determination that may not only help foster necessary conditions for holding the plebiscite but also help in achieving economic security, personal safety, and improvements in the rather serious situation of human rights and humanitarian law violations in the Indian-occupied area. Some of these preliminary steps could also have a serendipitous effect on the international stalemate over a definition of international terrorism presently held hostage by, inter alia, the Kashmir question and the need to distinguish people fighting for the realization of self-determination from terrorists. This is because India improperly labels the Kashmiri defenders as “terrorist” and does not recognize its legal obligations under humanitarian law the Geneva Conventions, The Hague Conventions and all other rules of the laws and customs of law binding on all States. India is trying to “convert” its armed conflict in Kashmir to terrorism and counter-terrorism measures. Pakistan, on the other hand, is determined to protect the international rules relating to self-determination and the right to resist, with force if necessary, an occupying power. I note that Barrister Tramboo will discuss this issue in his presentation this afternoon, so I will limit my remarks here. However, I do want to point out that the United Nations Special Rapporteur on Terrorism and Human Rights has repeatedly pointed out that those with the right to self-determination who are resisting occupation are combatants under humanitarian law and that military operations by parties to conflicts should be evaluated on the bases of established humanitarian law rules. She cautions against mislabeling armed conflicts as “terrorism” and “counter-terrorism.”
Clearly a key step in diffusing this conflict and establishing conditions for the plebiscite is establishing a cease-fire between the Kashmir forces and the Indian forces in Indian-occupied Kashmir followed by a withdrawal of the Indian troops from the region. The parties to the conflict can agree to this among themselves or can seek outside mediation such as has been the case in Sri Lanka and elsewhere. While important to discuss a cease-fire with the Kashmiri political organizations, ultimately it will be the Kashmiri military organizations that have to be brought to table. Even if a cease-fire agreement cannot be reached, India can still withdraw its forces. Without the large-scale presence of Indian military forces, there would be no need for the Kashmiris to defend themselves with their own military forces. The level of human rights and humanitarian law violations would drop dramatically.
In the wake of Indian military withdrawal the Kashmiri people should be granted the ability to establish order in Indian-occupied Kashmir, enabling them to reestablish themselves and their cultures and assuring that their political leadership speaks to them and for them. Small steps in what I call “every-day” self-determination can have a positive effect on further dialogue, so the importance of small steps cannot be over-emphasized. Here a core concept is normalcy: a normalcy that can also lead to decreasing the tensions and fractious debate among the different indigenous peoples and groups in Kashmir and among them and the Indian government. Normalcy can also aid in review of and solutions to the serious human rights and humanitarian law violations that will, in the end, have to be accounted for and acknowledged in some way. Victims must have their remedies. To that end I would propose some type of truth commission such as those that have been established in a number of other countries after conflicts have been resolved. Even in advance of a full truth commission, the Indian authorities could take lesser steps by investigating serious allegations or allowing outside monitors and investigators to look into some of the incidents. This should be undertaken with a view to both bring perpetrators to justice and to restore confidence in the international community that India is serious about human rights and humanitarian law violations.
With a certain amount of security for the Kashmiri people in the Indian-occupied area established, there could be much more effective international monitoring by human rights and humanitarian organizations. The presence of these groups has greatly assisted in other countries, both during and post-conflict, and there is no reason that their presence in Kashmir would not also be helpful. Additionally, with more international presence in Kashmir, claims about “outsiders” can be more readily investigated as well as what these “outsiders” may be actually doing in Kashmir. I make this point because I am aware that there is some accusations and evidence that there are remnants of the Taliban and, perhaps, Al Qaeda, getting into Kashmir to instigate a more militant “jihad” and to reject the responsible Kashmiri leaders and groups by claiming they are weak and ineffective. If true and if with any sizable numbers, this could be extremely detrimental to Kashmir and the Kashmiri people, bringing in alien ideas and methods that may take partial root due to the frustrations of the Kashmiri people in the face of the oppressive and lengthy military occupation. Establishing conditions for objective, impartial evaluation of this issue would be helpful to Pakistan as well, as some of the persons alleged to have entered Kashmir as “jihadists” may have been organized in Pakistan. If they have entered and engaged in terrorist activities, addressing this becomes essential to both States as well as the Kashmiri people. The appeal of these persons and groups, however, would likely wane with a substantial withdrawal of India troop and continued dialogue between the Kashmiri leaders and India and Pakistan alone and in the inclusion of Kashmiri leadership in joint talks.
While the Kashmiri people in Pakistan-occupied Kashmir have, to a certain degree, been able to operate in a fairly autonomous fashion, there is need for much improvement. Clearly there has not been an armed conflict with massive violations of humanitarian law as have occurred in Indian-occupied areas, but this does not free Pakistan from responsibility for other types of shortcomings bordering on if not actual human rights violations. In this light, Pakistan as well as the authorities in Azad Kashmir should also invite national commissions as well as outside monitors and work cooperatively with them.
Before I conclude I want to point out that I think the United Nations plans for the plebiscite accepts that the Kashmiris may vote for independence. I am also aware that there are divisions among the Kashmiri people regarding possible outcomes of the plebiscite. While it is very important to anticipate a variety of possible outcomes, the first issue is having the plebiscite in the first place. How the results can best be implemented is a post-plebiscite task.
In conclusion I must stress that the Kashmiri people
are entitled to the full right to self-determination, not a “bargained
away” one. Both India and Pakistan must accept that the plebiscite will
occur and work actively to ensuring that it take place at the earliest
feasible time. Both have to ask themselves how much longer they are
willing to have things go on as they are now. It has already been more
than 50 years. Are both willing to have this go on for another 50 years??
Twenty five?? Ten?? Ultimately the Kashmiris will decide their political
fate. Why spend one day more wasting lives, resources and national well-being
keeping them from doing so. Think of what India and Pakistan might be
able to accomplish individually and together without the Kashmir question
ruining it all.