Kashmir issue – a litmus test for Imran Govt

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By Dr. Syed Nazir Gilani
Kashmiris living in all the four provinces of Pakistan have voted for National Assembly and Provincial Assemblies on July 25. They have 12 seats in the Azad Kashmir Assembly. The Kashmiri vote in Pakistan represents a strong constituency of interest for the government and the people of Pakistan. They have a provincial, national, regional and international legal personality. Their importance in a future UN-supervised vote in Kashmir’s referendum has not been properly appreciated.
The litmus test for Imran Khan on Kashmir begins with his address to the 73rd session of the UN General Assembly (UNGA 73), which is to be held on September 18, 2018 in New York. To be scrutinised is his appointment of foreign minister, minister Kashmir affairs and Gilgit Baltistan and chairman Kashmir committee. One hopes that the new government does not satisfy itself with the wisdom stashed time and again in the same A4 size files for the last 71 years since signing a Stand Still Agreement with the Government of Jammu and Kashmir in August 1947. It should use all intra-agencies mechanism, civil society (NGOs), Hurriyat, AJK Government, diaspora and UN resources to spearhead a strong and convincing policy on Kashmir.
It would be interesting to find how the new government proceeds to resolve the procedural hiccups that continue to impede the process of a UN supervised vote on Kashmiri people’s title to self-determination. Whether it decides to drag on the sac load of confusion hyped by India that Kashmir must be addressed as a bilateral issue as agreed in Shimla Agreement or it would be prepared to argue that bilateral engagement could not be indeterminate and has to be taken over by the wisdom laid down in article 103 of UN Charter. The new government shall have to be clear that it was after failing in their bilateral engagement under article 33 of the UN Charter in 1947, India decided to make a reference to UN Security Council under article 35 of the UN Charter.
The government of Pakistan has a bilateral agreement with the government of Azad Jammu and Kashmir called Karachi Agreement of April 28, 1949. It has assumed duties under UNCIP resolutions in the Constitution Act 1974 in Azad Kashmir, to provide a better administration and a better government, until such time that there is a UN supervised vote in Kashmir.
It means the new government must ensure that India does not succeed in changing the demography of Kashmir. Quebec Independence vote failed for only 54,288 votes. The Kashmiri referendum has been explained by Netherlands at the 566th meeting of the UN Security Council held in 1951. Netherlands representative in the Security Council Mr Von Balluseck stated, “The lack of agreement therefore, does not concern this right of self-determination. It concerns the ways and means and procedures to establish the conditions for a fair expression of the will of the people of the State of Jammu and Kashmir who want to make their choice free from any kind of fear or intimidation.”
He further qualified, “When I spoke about this problem before the Council on 29th March 1951, I contended that the issue should, in the last analysis, be decided by the people of the State of Jammu and Kashmir themselves, and not the rulers heretofore placed over them, and that no prearranged political organization in any part of the State concerned, and set up under the auspices of authorities which had already made their, choice should interfere with their complete freedom of choice.”
Imran Khan’s government shall have to reorganise the Kashmir component, make it genuine, relevant to the distribution of the people and relevant to the jurisprudence of August 1947 Stand Still Agreement with the Government of Kashmir, accession of 27th October 1947, bilateral agreements with India and the jurisprudence of UN Resolutions on Kashmir. The new government has to shake off the lethargy and deny awarding an undue advantage to India.
The most immediate concern has to be saving the youth of Kashmir. Neither the UN High Commissioner’s report nor the Pakistan Mission in New York have made any input on the profiling of Kashmiri youths by the Indian security forces. Kashmiri youth have been profiled into five categories, for killing.
The reward for killing category A++, A+, A, B, and C militants is fixed at Indian Rupees 12.5 lakh, 7.50 lakh, five lakh, three lakh and two lakh, respectively. JKCHR has made a written statement to the UN Working Group on the use of mercenaries by India as a means of violating human rights and impeding the exercise of the rights of peoples to self-determination for consideration on 21 July 2016. The matter has to be picked up for further action by the Pakistan Mission in New York. Every Pakistani Mission abroad and those attached to the United Nations in Geneva and New York, should have an online record of their work on Kashmir.
Pakistan should come out of the tangle that it has failed to withdraw the bulk of its forces from Kashmir. This argument has passed its expiration date. The requirement of a Pakistani pullout was reversed on January 15, 1948 when India surrendered Kashmir’s accession for an UN-supervised vote and when UN brokered a ceasefire on January 01, 1949. The Kashmir question has moved ahead from the “emergency” of October 27, 1947. For a free and fair plebiscite, there must be an equity between the armies of India and Pakistan. Even before moving to the UN Security Council India has pledged to the people of Kashmir, to Government of Great Britain and the Government of Pakistan that its presence in Kashmir is temporary and is subject to a free and fair vote.
It may be a bit different from the routine if Prime Minister Imran Khan informs the General Assembly that Indian army has violated the four conditions placed on it at the time of granting it a temporary admission into a part of Kashmir. It has further violated the three restraints placed on its number, behaviour and location under UN SC Resolution of 21 April 1948. The violation makes the Indian army an occupation force. He should be accompanied by a delegation of people of Kashmir from all disciplines of life from both sides of Kashmir (including GB) and the diaspora. The last and the only formal contact of the Government of Azad Kashmir with the UNCIP chair was in writing on July 8, 1948.
(The writer is the President of JKCHR — NGO in Special Consultative Status with the United Nations. He is on the UN Register as an Expert in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. He is a senior advocate of the Supreme Court. He can be reached at dr-nazirgilani@jkchr.com)