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July 17, 2002 |
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Origins of the Dispute When British India was partitioned in 1947, the rulers of some 500 "princely states" – which had nominal independence under the British—had to choose to join one of the newly independent states, India or Pakistan. For the most part, those whose territory fell within the borders of India or Pakistan joined that state. Kashmir, which straddles both nations at their northernmost border, was an anomaly. The Maharaja of Kashmir equivocated, apparently in the hope that Kashmir could remain independent. A pro-democracy movement in Kashmir led by Sheikh Abdullah, who opposed the Maharaja’s autocratic rule, favored joining India because its leaders felt that Kashmiri interests and its autonomy were best preserved in a secular state. On the eve of partition Sheikh Abdullah was jailed for dissent. In the weeks after partition, Pakistani tribesmen, apparently accompanied by some Pakistani army regulars, invaded Kashmir, prompting a number of uprisings against the Maharaja in the western part of the state. The Maharaja sought India’s help in driving out the invaders. Prime Minister Jawaharlal Nehru agreed, provided the Maharaja accede to India. On October 27, 1947, Maharaja Hari Singh agreed to sign the instrument of accession, and Sheikh Abdullah was released from jail to negotiate the terms. As a condition of accession, the document stated that nothing in it would commit Kashmir to any future Constitution of India. Indian troops succeeded in halting the advance of the Pakistani forces to the western third of the state. Prime Minister Nehru asked the United Nations to intervene, and in January 1948 the UN Security Council adopted Resolution 39 (1948) establishing the United Nations Commission for India and Pakistan (UNCIP) to investigate and mediate the dispute. In April 1948, the Security Council adopted Resolution 48, expanding UNCIP’s membership and mandate to include the use of observers as a way to halt the fighting. In July 1949 India and Pakistan signed the Karachi Agreement establishing the cease-fire line, known as the Line of Actual Control, to be supervised by the observers. 1
In October 1947 the British Viceroy, Lord Mountbatten, accepted Kashmir’s document of accession while noting that in "the case of any State where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State, it is my Government’s wish that as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people." Subsequent UN Resolutions also called for demilitarization and the holding of a plebiscite. Since the early 1950s, however, India has maintained that the conditions have never been met because Pakistan has not withdrawn from the part of the state it controls, and because the Kashmiri people have essentially ratified accession by voting in local and national elections. Pakistan, which supports the idea of a plebiscite, argues that it cannot include the third option of independence, as that was not an option in 1947. Neither India nor Pakistan wants an independent Kashmir. Indian Policy Toward Kashmir As a consequence of Kashmir’s conditional accession, Article 370 was incorporated into the Indian Constitution, conferring a special status on the state of Jammu and Kashmir. It stipulated that only Article 1 of the constitution, which defines the territories of India, applied to the state of Jammu and Kashmir. Most other articles could be applied only with the concurrence of the state government. But the Indian government soon reneged on its promise of autonomy. In October 1951, Sheikh Abdullah was elected unopposed as prime minister of the state. But after he protested the Indian government’s continued interference in Kashmiri affairs, the central government removed him and charged him with conspiracy. Sheikh Abdullah was jailed repeatedly over the next two decades, particularly after he launched a new political party, the Plebiscite Front, to organize a campaign for the plebiscite. The Indian government, meanwhile, installed officials it could control. In 1964, growing frustration among Kashmiris led some to form the first militant organization, the Jammu and Kashmir Liberation Front (JKLF), and to seek out assistance from Pakistan. In March 1965 the state constitution was amended to make the prime minister a chief minister like every other Indian state.
India and Pakistan went to war again in August 1965. The 1965 war began with border skirmishes at the Rann of Kutch near Gujarat in April and spread to the cease-fire line in Kashmir. At that time, UN observers reported infiltrations from Pakistan into Indian-held Kashmir. The U.S. and Britain cut military supplies to both countries, and on September 23, a cease-fire was arranged through the UN Security Council. 2 Civil war broke out in Pakistan in 1971 over the secession of East Pakistan. India intervened in December of that year to defeat Pakistan and assure the independence of Bangladesh. On July 2, 1972, India and Pakistan signed the Simla Accords which stipulated that both countries would respect the cease-fire line, resolve differences over Kashmir "by peaceful means" and negotiate a "final settlement." After Sheikh Abdullah died in 1982, his son, Farooq, succeeded him as Chief Minister and head of the National Conference party. Farooq Abdullah initially adopted a pro-independence stance as well, and for that his government was dismissed in 1984. Jagmohan, the governor who was installed to rule the state, had gained an anti-Muslim reputation in the mid-1970s in Prime Minister Indira Gandhi’s government after she declared a state of emergency and suspended civil rights. Jagmohan’s pro-Hindu policies in Kashmir, and the lack of economic opportunities for educated Muslim Kashmiris, drove many Kashmiri youth to support Islamist parties that were gaining influence in the state3. The turning point came a few years later. In 1986 Farooq Abdullah signed an accord with Prime Minister Rajiv Gandhi that those in the independence movement saw as a betrayal of Kashmiri interests. Pro-independence activists formed a new party, the Muslim United Front (MUF), which appeared poised to win a significant number of seats in the 1987 state assembly elections. Instead, the elections were rigged and scores of MUF candidates were arrested. The elections marked a watershed in Kashmir. Discontent found wider popular support, and political activists in large numbers abandoned politics for armed struggle. Some joined the JKLF, others formed new militant organizations which were openly pro-Pakistan. Through 1988, the JKLF and other groups were responsible for a number of bomb blasts that targeted government installations in Kashmir. Some militant groups also began threatening and attacking local Hindu residents, leading to a slow exodus of Hindus from the Kashmir Valley. After organizing a near total boycott of the 1989 elections, the JKLF adbucted the daughter of the state Home Minister. They freed her after the government agreed to their demand to release five detained JKLF members. The militants returned home to a hero’s welcome, and set off a wave of protests against both the state and national governments. Indeed, the JKLF itself was unprepared for the strength of the mass protests: the uprising preceded any serious military strategy among the militant groups. 4 The Insurgency and India’s Violations of International Human Rights and Humanitarian Law
On January 18, 1990, the government of India again appointed Jagmohan to govern the state and crack down on the militants. The state government resigned in protest, and the state was put under direct rule from New Delhi. In response to widespread threats and targeted attacks and killings by militant groups, many Hindus had fled. Jagmohan’s government ultimately assisted some 90,000 Hindus in leaving the Kashmir Valley for camps in Jammu and New Delhi. Tens of thousands of Indian troops were deployed throughout the Valley. In the weeks that followed, Indian army and security forces opened fire repeatedly on unarmed protesters, in some cases shooting to kill wounded prisoners. These killings constituted a serious violation of international humanitarian law. Foreign journalists were expelled from Kashmir for several months, and new laws enacted granting the security forces increased powers, limiting defendants’ rights, imposing restrictions on public gatherings, and prohibiting virtual any public expression of dissent. 5 India’s counterinsurgency tactics in Kashmir have continued to include practices that directly contravene international humanitarian law, some of which could be considered war crimes. Indian security forces regularly execute captured combatants and suspected militants. Following a massacre in a Sikh village on the eve of President Clinton’s visit to India in 2000, Indian security forces claimed to have killed the "foreign" militants responsible in an "encounter." Angry villagers whose relatives had "disappeared" after being arrested demanded that the bodies be exhumed. When they were, villagers claimed that the so-called "foreign" militants were their relatives who had been arrested and killed in secret by the security forces who were under pressure to show results following the massacre. In the subsequent investigation, DNA samples taken from the bodies were found to have been tampered with, leading Chief Minister Farooq Abdullah to state "that those responsible had something to hide." He promised the incident would be investigated, but there have been no further developments. 6 Indian security forces have also tortured suspected militants, and raped, tortured and killed civilians suspected of supporting them. Human rights organizations have documented many such massacres by Indian forces since 1990. In some cases, Indian forces have burned down entire villages in apparent reprisal for militant attacks. These abuses constitute war crimes. 7 Indian authorities argue that abuses by their forces are rare and those responsible are punished. But in fact official investigations are infrequent, punishments, if any, are light, and the practices continue. While some abuses, particularly indiscriminate shootings of civilians and reprisal killings, were worse in the early years of the insurgency, summary executions of persons taken into custody have never abated and have even increased during periodic counterinsurgency operations.
The courts provide no safeguard against these abuses because the security forces routinely flout procedures that would provide some protection against summary executions and "disappearances." Detainees are held in unofficial detention centers and are frequently moved or handed over to a different security agency; the security forces maintain no records of arrest or falsify the ones they have; and they ignore writs of habeas corpus—hundreds of habeas corpus petitions remained pending before the Jammu and Kashmir High Court. In private, Indian officials admit that they resort to such practices because they believe there is no legal way to combat the militants. 8 In late 1992-1993, a brutal campaign by the Indian security forces succeeded in eliminating a large number of militant leaders, as well as some important human rights activists who had been in regular communication with international human rights organizations and the media. Over the next few years, the security forces organized the death squads into units to operate as subcontractors, carrying out assassinations, kidnappings and other abuses, and informing on former colleagues. Called "renegades" by the Kashmiris, their efforts were directed not only at militants but at other elements of civil society who opposed India’s policies in Kashmir, particularly journalists and lawyers. 9 Ironically, this new strategy only served to further alienate the Kashmir population at a time when Kashmiris were growing disenchanted with the militant groups, whom they blamed for extortion, corruption and other abuses. By 1994, the militant groups no longer commanded the popular support they did in the early 1990s. That support waned further as militant activities came to be dominated by groups with a strong non-Kashmiri leadership, and a very different political agenda. The Militant Groups and Pakistan’s Role The "foreign" element emerged as an important factor in militant activity in Kashmir after 1994. The counter-insurgency campaign had decimated the JKLF, which had also been torn by internal disputes, and in 1994 the group declared a unilateral cease-fire. While other Kashmiri groups continued to operate, those led or directed by Pakistanis came to play an increasingly dominant role in militant activity, and recruited local Kashmiris to join them. During a number of widely publicized incidents, including the kidnapping and apparent murder of five foreign trekkers in 1995, it became clear that the Kashmir militant leaders had no influence with these new groups. Among these groups were Harakat-i Mujahidin and Lashkar-i Toiba. Both groups had apparently received training at camps in Afghanistan established by Pakistan’s Interservices Intelligence (ISI). The character of the attacks also changed, as some militants, particularly those who were not from the valley sought to impose a conservative Islamist agenda on the independence movement. Some have defined their objective as establishing Islamic rule throughout all of India. With no accountability to the local population, the groups have carried out brutal attacks, massacring hundreds of civilians. 10
These killings, and others carried out since the beginning of the insurgency in 1990, constitute violations of international humanitarian law. Those targeted have included Hindus, Sikhs and Kashmiri Muslims who have opposed the militants or who have been accused of providing information to the Indian government. In recent years, the groups have also carried out suicide bombings—a practice previously unheard of in Kashmir. Some two dozen groups are believed to be active inside Indian-controlled Kashmir, many of which are loosely allied under an umbrella group the United Jihad Council. According to India, two of these groups, Jaish-i Mohammad and Lashkar-i Toiba, were responsible for the attack on the Indian parliament on December 13, 2001. Pakistan has been complicit in these violations because of its role in helping to arm and train the militant groups. Although Pakistan has long claimed that it gives only moral support to the militants, there is substantial evidence of its involvement in providing training and facilitating the supply of weapons. Many of the weapons are in fact procured from arms bazaars in Pakistan’s Northwest Frontier Province. In some cases groups have bought arms from Indian soldiers in Kashmir. Pakistan has supported militant groups in Kashmir since perhaps as early as 1964, when the JKLF was founded. But that support increased dramatically in the late 1980s as the withdrawal of Soviet forces from Afghanistan allowed for the diversion of arms and fighters to Kashmir. For Pakistan’s ISI and its Islamist parties, Afghanistan under the control of the mujahidin provided a perfect base for pursuing its objectives in Kashmir: a ready supply of fighters eager to extend their jihad to Kashmir, an enormous cache of weaponry, and territory for training camps. As refugees and militants crossed the mountains into Pakistan-controlled "Azad" Kashmir, the ISI also set up training camps. The militants’ presence served another purpose as well: Groups taking a pro-Pakistan, Islamist line could also stamp out any demands for greater autonomy among minority groups in "Azad" Kashmir and in the Northern Areas. (Pakistan’s claim of support for Kashmiri self-determination does not extend to areas under its control, where it has brutally repressed opposition activity). Pakistan has long claimed in its official dealings that "Azad" Kashmir is independent; with camps there and in Afghanistan, it could deny that any such camps operated on Pakistani soil. But although the ISI has been deeply involved in training and arming Kashmiri militants, its control over them is limited. As was the case with the Taliban, support for the militants is spread over a number of agencies: official, semi-official and private. In addition to the ISI these may include retired army officers and political party leaders as well as religious parties and the madrasas that they operate. The militant groups themselves are only partially susceptible to pressure from Islamabad. The current crackdown by Musharraf appears to have had some effect in curbing cross-border activity, but resistance to Musharraf’s new policy is growing among Islamist activists (as well as some members of the armed forces and ISI) who were already deeply unhappy with the government’s decision to abandon the Taliban and side with the U.S. in Afghanistan. The groups claim they will defy the government’s efforts to rein them in, and Musharraf himself is now a likely target for these groups.
Rethinking Kashmir and the War on Terror The war on terror has cast Kashmir in black and white terms, obscuring the real causes of the insurgency inside Indian-controlled Kashmir. Recent U.S. claims of evidence of al-Qaeda in Kashmir, and its quick about-face on the issue after protests from Pakistan, demonstrate a dangerous lack of understanding about the complexity of the conflict. Whether or not any of the militant groups have contacts in al-Qaeda, balancing Indian claims against Pakistani in Kashmir leaves the demands of the Kashmiris themselves out of the picture altogether. As India has gained support from the West in its own corner of the "war on terrorism," there is the risk that the entire struggle in Kashmir for self-determination could be labeled as "terrorism." In his recent visit to Pakistan, British Foreign Secretary Jack Straw came close to making that claim when he pressed Pakistan to take action against "terrorists dressed up as freedom fighters." India appears ready to use the upcoming elections as a test: only those who participate on India’s terms will escape the terrorist label11. Eager to deflect criticism about its own appalling human rights record in Kashmir, India has long portrayed the conflict as principally a proxy war, and the militants as foreign terrorists. But that is only part of the story. India’s longstanding policy of denying Kashmiris any hope of achieving change through politics and its brutal counterinsurgency tactics have done more to swell the ranks of the militants than any foreign militant organization has managed to do. Elements in Pakistan have taken advantage of the situation to support groups whose agenda now threatens Pakistan’s own survival, pitting factions in the Pakistan government and military-intelligence bureaucracies against each other and against outside agencies beyond their control. While it is appropriate for the international community to pressure Pakistan to stem cross-border incursions by these groups, India must also be pressured to end its repression in Kashmir, particularly its policy of impunity for war crimes committed by its forces. India’s promise of free and fair elections is meant to appease its international critics, but most Kashmiris believe that without other changes, including updating the voter registration list and allowing international monitors, the elections will be meaningless.12 If the international community views Kashmir only through the prism of international terrorism, there is no hope of achieving a peaceful resolution of the conflict. 1. India and Pakistan – UNMOGIP Background 2. "Pakistan: A Country Study by the USA Library of Congress," 3. Pankaj Mishra, "The Birth of a Nation," New York Review of Books, October 5, 2000. 4. For more on this see Tapan K. Bose, "Strategy for People’s Movement in Kashmir," a paper published by the South Asia Forum for Human Rights, July 2002. 5.
Human Rights Watch has documented these incidents in a number of
reports, including Behind
the Kashmir Conflict: Abuses by Indian Security Forces and Militant
Groups Continue
(New York, 1999), India's
Secret Army in Kashmir (New York, 1996), The Human Rights
Crisis in Kashmir: A Pattern of Impunity (New York, 1993), and
Kashmir Under Siege (New York, 1991). 6.
Protest
against Kashmir 'disappearances', BBC World, March 30, 2000 7. See in particular Human Rights Watch, Kashmir Under Siege. 8. Indian officials have admitted this to the author on several occasions, some of which are included in the Human Rights Watch reports. 9. For more on this see Patricia Gossman, "India’s Secret Armies," in Death Squads in Global Perspective: Murder with Deniability, Bruce B. Campbell and Arthur D. Brenner, Eds. (New York: St. Martin's Press, 2000), and Sumantra Bose, The Challenge in Kashmir: Democracy, Self-Determination and a Just Peace (New Delhi: Sage, 1997). 10. For more on this see Human Rights Watch, Behind the Kashmir Conflict: Abuses by Indian Security Forces and Militant Groups Continue (New York, 1999). 11. "UK urges action from Pakistan," BBC World, May 29, 2002 12. See Bose, "Strategy…" Patricia Gossman was a senior researcher at Human Rights Watch for 12 years, and is now an independent consultant and writer on human rights issues in South Asia.
Related chapters from Crimes of War: What the Public Should Know Nuclear
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