India and Pakistan could not control their respective reflexes during a debate on UN Peacekeeping: A Multidimensional Approach at the UN Security Council in New York. Jalil Abbas Jilani Foreign Secretary of Pakistan made a statement that Pakistan is also host to one of the oldest UN peacekeeping missions – the United Nations Military Observer Group in India and Pakistan (UNMOGIP). This Mission has played an important role in monitoring peace along the Line of Control (LoC) in Jammu and Kashmir.
Indian ambassador HARDEEP SINGH PURI matched the Pakistani rhetoric with 41 year old (since 1972) unconvincing and flawed statement that UNMOGIPs role has been overtaken by Simla Agreement of 1972. Puris suggestion that UN observer groups presence on LoC was not required has its flaws.
Kashmiri leadership (Separatists) has expressed its anger at the Indian expression in regard to UNMOGIP. Although the people of Kashmir have an embedded interest in the merits of any debate on UNMOGIP, it continues to escape our notice that the US in particular and world in general remains unconvinced of the merits of Kashmiri leadership. Our leaders have been urging upon USA to take active interest in the resolution of Kashmir dispute. It is an irony that they failed to either understand or remain badly blinkered about the evidence that has surfaced against them over the years.
At least one very important country USA and many others including India who have arrangements to share intelligence between them rate the credibility of Kashmiri leadership at a very low. We know from para 3 and 5 in the FBI Affidavit submitted in the Court in UNITED STATES OF AMERICA Versus SYED GHULAM NABI FAI and ZAHEER AHMAD case that FBI had secured court-orders to use electronic surveillance and obtain telephone call or an email message records from internet service providers.
The evidence is based on personal knowledge of FBI officials, review of records and other materials obtained during the course of this investigation, intercepted telephone, audio, and in-person communications, information provided by other government personnel. In addition to this evidence FBI have the statements of three important witnesses described as CW1, CW2 and John. It is likely that these three are Kashmiri citizens.
This evidence gathered by the FBI through continued surveillance, co-operation given during the investigation and the admissions made in the Plea Agreement between United States of America and Syed Ghulam Nabi Fai is a running commentary on the manner of relationship of Kashmiri leadership with officials in the Government of Pakistan and others outside Kashmir. There is hardly any aspect of Kashmiri politics and militancy which has not been exposed in this evidence gathered for many years by FBI. 131 paras of the FBI Affidavit and 18 titles of the Plea Agreement leave the credibility of Kashmiri leadership badly bruised.
Loss of credibility of Kashmiri leadership does not mean that it affects the jurisprudence of Kashmir Case and in any manner overrides the merits of UN Mechanism on Kashmir. Indian State has its own problems of credibility. It does not have a person like Nehru who had said in 1940 some 73 years ago, In prison or outside, Kashmir haunted me, and, though many years had passed since I had set eyes on its valleys and mountains, I carried the impress of them on the tablets of my mind Friends in Kashmir invited me repeatedly to go there. Sheikh Abdullah pressed me again and again, and everyone who was of Kashmir reminded me that I, too, was a son of this noble land and owed a duty to it. I smiled at their insistence, for the urge within me was far greater than any that they could have placed before me.
Indian stand in respect of Kashmir and in particular UNMOGIP has a fundamental flaw. The Government of Jammu and Kashmir has entered into a provisional bilateral agreement with the Government of India (Instrument of Accession) in respect of the State defined under article 4 of the J & K Constitution. In defence of this provisional bilateral agreement, India facilitated the people of Jammu and Kashmir to take the merits of this provisional agreement to UN and to explain the manner in which the future of the State was to be determined.
Indian Government misdirects its diplomatic wisdom when it rules out its obligations towards the people of Jammu and Kashmir and yields to a flawed wisdom that Kashmir has to be resolved bilaterally with Pakistan. If it is a bilateral issue and has to be resolved with Pakistan, the vires of the Instrument of Accession are vitiated. India cascades into an occupying State. Indian presence is provisional and in respect of protection of life, honour and property until a final decision is made as explained in the application made by India at the UN and the statement made by Kashmiris through Sheikh Abdullah at the UN Security Council.
India has to make up its mind as to whether it has an Instrument of Accession with the people of Kashmir, has defined obligations under the terms of accession (provisional), has facilitated Kashmiris at the UN and that both India and Kashmir have made a commitment in regard to the future of Kashmir.
Pakistan has woven itself into Kashmir tangle through her counter claim at the UN and her interest in Kashmir in the counter claim is sparse and self-serving. India cant rule out the jurisprudence of the Kashmir Case and nudge pass for any bilateral quid pro quo with Pakistan. Kashmiris are an equal people and they have been recognised for their right to self-determination. It may (or may not) end up in endorsing the provisional accession with India.
The wisdom that Simla Agreement overrides the role of UNMOGIP is fully flawed. Article 4 (ii) of Simla Agreement states, In Jammu and Kashmir the line of control resulting from the cease-fire of December 17, 1971 shall be respected by both sides without prejudice to the recognized position of either side. Neither side shall seek to alter it unilaterally irrespective of mutual differences and legal interpretations. Both sides further undertake to refrain from the threat or the use of force in violation of this line.
It is important to point out that Simla Agreement refers to a cease-fire of December 17, 1971. Four days after the cease fire UN Security Council Resolution 307 (1971) of 21 December 1971 demands, that a durable cease-fire and cessation of all hostilities in all areas of conflict be strictly observed, and remain in effect, until withdrawals take place, as soon as practicable, of all armed forces to their respective territories and to positions which fully respect the cease-fire-line in Jammu and Kashmir supervised by the United Nations Military Observer Group in India and Pakistan. Item 7 of the Resolutions decides, to remain seized of the matter and to keep it under active consideration.
Indian wisdom on UNMOGIP role may have its reference in Article 1 (ii) of Simla Agreement, That the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them. Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and to refrain from the threat or the use of force in violation of this line. It is an intra-State obligation and meets the State obligations under UN Charter. It does not affect or override the UN Resolution of 21 December 1971 confirming the role of UNMOGIP in respect of cease-fire-line in Jammu and Kashmir.
India has to delink Kashmir from its bilaterally conducted dialogue with the Government of Pakistan and yield to the status of the people of Kashmir. It has to revert back to the terms of the provisional agreement made with the Government of Jammu and Kashmir in respect of all the territories defined in article 4 of J & K Constitution and duly referenced in UN SC Resolution of 30 March 1951.
Government of India has walked with the Kashmiri leadership through the corridors of UN and helped them to set out their case before the world community. If it reneges on its promises made and agreements entered into with the people of Kashmir, it would be bringing its presence in Kashmir into a serious dispute. At the same time it would mean that India had brought a spurious case against Pakistan at the UN in January 1948.
Kashmiri leadership has a duty to start pressing that the two countries delink Kashmir from the on-going bilateral jargon. A case of deceit could also be brought against the Kashmiri leadership on the basis of evidence in the hands of USA and others.
Author is London based Secretary General of JKCHR NGO in Special Consultative Status with the United Nations. He could be reached on email email@example.com
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