Pakistan and India: Perspective from Kashmir (Part II)

Syed Mujtaba, J B Graves
According to Zeid Ra’ad Al Hussein, the former UN High Commissioner for Human Rights, “there is almost total impunity for enforced disappearances” in Kashmir. Enforced disappearance are particularly cruel and subversive to human rights in that they usurp the power of democratic institutions by detaining people without causality. States by law require transparency when arresting individuals and disclose arrests as a matter of public record whereby upholding judicial rights and the presumption of innocence is a human rights protection. On the other hand, forced disappearances operate outside of governmental accountability and transparency and the application of the law is not mandated nor is the judicial proceedings of a fair trial. Forced disappearances in Kashmir are legally justified by the Armed Forces Act which itself is the subject of criticism for human rights abuses and the lack of moral stringency. Simply put, these forced disappearances in Kashmir stand on shaky legal grounds and arrests are never deliberated before a magistrate nor are lawyers accessible. Without accountability, the presumption of innocence is abandoned, and the likelihood of torture, murder, or extortion is all but assured. The Association of Parents of Disappeared Persons (APDP) conservatively estimates the number of individuals who have disappeared from Kashmir and Jammu since 1989 at approximately 8,000 people.
The Mujahedeen insurgency in Kashmir started in 1989 as the result of contested elections; Yasin Malik led the Jammu Kashmir Liberation Front which militarized the region with violence whereby India responded by labeling Kashmir and Jammu as “disturbed areas” where the application of the Armed Forces Act could be utilized. India claims that Pakistan is supporting terrorist groups to overthrow Indian rule and return Kashmir to Pakistani control. Pakistan claims that India is suppressing Kashmiri freedom fighters and that their support is merely moral and diplomatic towards and end goal of allowing Kashmiri’s the right to self-determination. Indian forces have consistently exploited the Armed Forces Act which allows the detainment of prisoners without trial and has enabled forced disappearances which have deprived families of income, justice, and from ever seeing their loved ones. In 1994, the International Commission of Jurists supported the idea that Kashmiri citizens had the right to self-determination; furthermore, Indian security forces were accused of violating human rights and Pakistan was found not to have the right to provide Kashmiri freedom fighters with material support. The fight over Kashmir has caused thousands of families to bear the costs of losing their loved ones and sewn chaos, violence, and instability in the region since WWII. India maintains that the Instrument of Succession signed by Maharaja Hari Singh and the Governor General of Kashmir in 1947 is legal and valid because the Constitutional Assembly of Jammu and Kashmir ratified the agreement unanimously. UNSCR 1172 accepts India’s stance on Kashmir but advocates for a mutual resolution based on dialogue between India and Pakistan. India views UNSCR 47, which would utilize a plebiscite to decide the fate of Kashmir, as obsolete because Pakistan failed to withdraw its armed forces from Kashmir. Article 370 of the Indian Constitution provides Kashmir with autonomy as a region and the bilateral Simla Agreement ensures that any resolutions on Kashmir must be a mutual arrangement between India and Pakistan. India Writ large is accustomed to discontent within its large borders and the government has expressed willingness to resolve disputes that it says cannot occur unless Pakistan withdraws its military and financial support of terrorist groups operating within the region. Pakistan allegedly supports anti-Indian sentiment in the region by spreading hate through radio and television. Lastly, Indian authorities approximate the Kashmiri death toll to be about 47,000 people since the start of the conflict after WWII.
Pakistan believes that Kashmir is an intricate part of its territory as evidenced by the 95% Muslim majority that makeup of Kashmiri ethnic population; Pakistan alleges that Kashmiri citizens were misrepresented by Maharaja Hari Singh who was an unpopular tyrant and a minority leader. The popular Kashmiri insurgency is further evidence to Pakistan that Kashmir is truly Pakistani territory; just as Russia invaded Ukraine on the pretext of defending ethnically Russian people, Pakistan could invade Kashmir and make the same argument. While Pakistan prefers annexing Kashmir, independence for the Kashmir region is palatable to Pakistani leaders. India’s Defense Minister, Kirshnan Menon even stated that Kashmiri people would vote to join Pakistan and that India’s government would not survive such a plebiscite acquiescence. Extrajudicial killings are evidence of India’s brutal rule in Kashmir and the fact that these killings go unpunished should be a wakeup call to the United Nations as a severe violation of human rights.
According to the Center for the Study of Developing Societies, 87% of people residing in the majority Muslim Srinagar advocate for independence whereas 95% of the people in the majority Hindu Jammu advocate for Indian rule. Simply put, the Kashmir Valley is the only region in flux where most of the population is unhappy with its current status. The Hindus of Jammu and Buddhists of Ladakh are content under Indian administration just as the Muslims of Azad Kashmir and the Northern Areas are content under Pakistani administration. Kashmir Valley’s Muslims want to change their national status and be truly independent as their own country, yet India and Pakistan have refused to back down. Can a peaceful resolution in Kashmir be achieved based on the right of people to self-determination? With dialogue, mutual respect, and eliminating preconditions, India and Pakistan can come to an agreement with Kashmiri citizens to ensure the region is emancipated from violence that has plagued its borders for 70 years.
(The authors are human rights defenders. Views are their own)