Dr Syed Nazir Gilani: A tweet of 19 November from PSF has quoted India’s Chief of Defence Staff, General Bipin Rawat that “it is a good thing that Hindu vigilante groups that are prevalent throughout India and have now been sent to occupied Kashmir, would be able to lynch anyone they deem to be a “terrorist” with a free hand”, should disturb all without an exception. It is unfortunate to see a decorated soldier inciting violence and crime against Muslims in Kashmir.

The statement disqualifies the General for any future travel abroad to any member nation of the United Nations. It is a serious breach of the various disciplines that have granted admission to Indian army and a violation of the discipline that defines the behaviour, number and location of the Indian army in their stay and stationing in Kashmir.

The admission of “Hindu vigilante groups” into Kashmir raises many serious questions. Firstly it proves that the General does not have a sense of history and has lost the sense of gratitude as well. Until 31 March 1959, all Indian citizens required a visa (Entry Permit) to enter into Kashmir. Prime Minister of Jammu and Kashmir (elected from only a part of the territory as referenced in UN SC Resolution 91 of 30 March 1951) at the request of the Prime Minister of India rescinded this requirement. General should not overdo himself and play the “Arab Camel” in the “Kashmir habitat”.

What are the merits of the presence of Indian army in Kashmir? What is the jurisprudence of its admission into Kashmir and the jurisprudence for the stationing of these forces?  We need to examine these questions and find an answer.

Indian army has been granted a temporary admission on 27 October 1947 to “help Maharaja’s forces to defend the territory and to protect the lives, property and honour of the people”. There is a written bilateral agreement between the Government of India and the Government of Maharaja as on 27 October 1947. In fact Maharaja was not in control of the State territories. There were two separate independent administrations – The Azad Government of the State of Jammu and Kashmir and Gilgit-Baltistan, functioning outside the Maharaja’s rule.

Indian army has entered Kashmir as a supplement and as a sub-ordinate force. It is sub-ordinate to the State administration. Sheikh Abdullah in his statement on 5 February 1948 made at the UN SC, has acted as a surety for the good behaviour of these forces. He has assured the UN SC that these armies would be away from civilian population and would have a supervision of the UN Commission as well.

On 31 October 1947 in para 7 of his telegram the Prime Minister of India has assured the Prime Minister of Pakistan that “Our assurance that we shall withdraw our troops from Kashmir as soon as peace and order are restored and leave the decision regarding the future of the State to the people of the State is not merely a pledge to your Government but also to the people of Kashmir and to the world.” Any role that these Indian forces decide to assume over and above the four defined duties, would be outside to the agreement and a breach. Every breach has its respective consequences.

The General and all others need to understand that the character of the conditional accession of 27 October 1947, has changed when Government of India made a reference to UN under article 35 of the UN Charter and surrendered the accession for a UN supervised vote on 15 January 1948. We need to have a Government at Srinagar as envisaged in para 6 of UN SC Resolution 47 of 21 April 1948. All major groups have to “share equitably and fully in the conduct of the administration at the ministerial level while the plebiscite is being prepared and carried out.”

Government of India and the General ought to realise that Indian forces have to be stationed according to the three principles set out in the UN SC Resolution 47 of 21 April 1948. UN has imposed a discipline on the behaviour, number and location of these Indian forces. The lead principle is that their “presence should not afford any intimidation or appearance of intimidation to the inhabitants of the State. The number has to be small and they should be located in the ‘base area’.

General Rawat keeps the dignity and character of his command as long as he does not err or sin against the jurisprudence of this stay in Kashmir and the jurisprudence of Kashmir case. Kashmir case is not a Hindu Muslim case. United Nations has defined the people and the four components of the Kashmir case. Therefore, any induction of “Hindu vigilante groups” into Kashmir and incitement to lynch a Muslim, would constitute a crime and a war crime.

General Bipin Rawat as a ‘conscientious General’ should be honest and brave enough to accept that his Government has agreed at the UN Security Council that India would only need  to keep 21,000 forces to carry out its responsibilities in Kashmir. Indian Government has assured the UN SC that “this force will have no supporting arms such as armour or artillery.” (608th UN SC Meeting held on 8 December 1952).

Indian responsibilities in Kashmir are the “maintenance of law and order and of the cease fire agreement, with due regard to the freedom of plebiscite on the Indian side”, although it does not mean that India has the exclusive responsibility in this respect.”

All other actions outside the agreement of 27 October 1947, UN SC Resolutions 47 and 91 and UNCIP Resolutions of 13 August 1948 and 5 January 1949 have civil and criminal consequences. Generals on both sides of the divide should encourage their civilian Governments that war and occupation of Jammu and Kashmir is no solution. Politicians have to engage with each other and the armies shall have to help them to push for the peaceful solutions.

India’s Chief of Defence Staff, General Bipin would serve his nation well, only, if he has a reliable understanding of the jurisprudence of Kashmir case and a reliable knowledge of the jurisprudence of the presence of his armies in Kashmir. He needs to examine the character of accession after 15 January 1948, when India laid down its case at the UN SC. General may like to be reminded that his Government has said at the 230th Meeting of the UN SC on 20 January 1948, that, “We hope to be able to convince the Security Council that once we have dealt with the Kashmir question, there will probably not be anything of substance which will divide India and Pakistan to the extent of endangering international peace and security.”

General’s encouragement to “Hindu vigilante groups” to sneak into Kashmir and lynch the terrorists, is incitement to violence and in his case would constitute a war crime. UN has recognised six elements in Kashmir which include in addition to India and Pakistan, the “insurgents, tribesmen, other inhabitants of Jammu and Kashmir and the outside world.” (United Kingdom at the 241st Meeting of UN SC on 05 February 1948). Reminding Government of India to honour the four components of the Kashmiris rights struggle and to return to the agreed role of its forces – is not terrorism.

Author: Dr Syed Nazir Gilani is President of London-based J&K Council for Human Rights – NGO in Special Consultative Status with the United Nations.