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The Fate of Kashmir
The history of Indo-Pakistani relations has been characterized by fratricidal conflict and mutual suspicion since the regions independence from Britain in August 1947. Whereas Pakistan claims that the dispute over Kashmir is the root cause of this bitter rivalry, India argues that Kashmir is merely a symptom of larger ideological differences between the two nations. India, however, cannot escape the fact that two of the nations three wars have been fought as a result of events in Kashmir. And now that India and Pakistan are the worlds only hostile nuclear neighbors, the stakes in resolving the Kashmir conflict are greater than ever. The dispute over Kashmir is exacerbated by the immense symbolic value that the state holds to both India and Pakistan. For India, Kashmir is the test of its secular ideology. For Pakistan, Kashmir encompasses the nations Islamic identity. Thus, Kashmir is not merely a territorial dispute, it is also a conflict over two nations ideologies and traditions.
Most observers contend, probably accurately, that any pacific settlement of this conflict will emerge from a political, not judicial, angle. However, the legal aspects cannot be entirely ignored and will likely play a significant role in any resolution of the conflict. Taking this into consideration, this article examines the international legal aspects and implications of the Kashmir conflict. The findings reveal a hardly surprising claim: both India and Pakistan have consistently violated international law. Remarkably, however, both nations have chosen to base their respective claims to Kashmir on legal, moral and normative arguments. In particular, the paper argues that Indias and Pakistans exalted invocations of international law are merely hypocritical devices to pursue their own regional strategic objectives in Kashmir.
Section one presents an extensive historical background to the Kashmir conflict, which provides an essential backdrop to understanding the complexity of the dispute. It also analyzes the effects nuclear weapons have had on the conflict and how they may have been a causal factor in the 1999 Kargil crisis, where Pakistan ostensibly violated international law by infiltrating Indian-controlled Kashmir. Section two analyzes Pakistans and Indias claims on the legality of Kashmirs accession to India. Section three examines whether the Kashmiri people have the legal right to secede from India. Section four comments on the various legal and political implications of state sponsored terrorism occurring on the Indo-Pakistani frontier, which may now be the most pertinent intersection of international law and the volatility introduced by nuclear weapons to the subcontinent.
Britains "divide and rule" colonial strategy went horribly awry on the Indian subcontinent in 1947. In its haste to exit its South Asian dominion, the British crown left a gaping wound between the two infant nations whose bloody creation was a classic manifestation of British colonial tactics. Partition excised a newly born Muslim state, Pakistan, out of the Indian states of Punjab, Sind, and Baluchistan. With over one million casualties in the ensuing mass migration, partition cataclysmically threw the subcontinent, once a bastion of culture and intellect and the jewel in the crown of the British Empire, into deep religious and communal strife. Britains fait accompli left South Asia, once an esteemed model of unity and heterogeneous secularism, with two embittered and wronged nations whose mutual hatred has served as the foundation for one of the most vile and tragic conflicts in the modern world. At the center of this conflict is Kashmir, that gaping wound which Britain recklessly created in its rush to flee the subcontinent.
At the time of independence in 1947, Indias 565 princely states were given the option of acceding to either India or Pakistan. Geographic and religious considerations dictated the decision for most of these states, which were primarily Hindu kingdoms embedded within Indian territory. For them, accession to the Indian republic was a foregone conclusion. However, Maharaj Hari Singh in Kashmir inherited a unique conundrum: he was a Hindu, but held dominion over a Muslim majority. In addition, his was the only princely state bordering both India and the newly born Pakistan, giving rise to the possibility of accession to either nation. Further complicating the already tense birth of two nations was Maharaj Hari Singhs open discussion of an independent Kashmir, which only served to confuse and delay the question of the states accession.
Frustrated by Hari Singhs indecision, Islamabad sent "Pakistani troops disguised as tribesmen [to join] local Pathan tribesmen and [attack] some of the western border areas of Kashmir" in October 1947.1 With the integrity and future of his state threatened, Hari Singh desperately appealed to Jawaharalal Nehru, Indias Prime Minister, for the deployment of Indian military forces to fend off the Pakistani infiltrators. Nehru agreed, on one condition: Hari Singh would have to accede to the Republic of India. Nehru, however, did promise that this accession "would only be confirmed after the Kashmiri people had their say" in a plebiscite.2 Singh agreed, and Nehru immediately dispatched the Indian army to engage the Pakistani and local forces, giving rise to the first war over Kashmir. Indian forces succeeded in halting the Pakistani advance, but not "before Pakistan had occupied the northwestern portion of Kashmir."3 These respective positions defined the Line of Control which, today still, finds armed Indian and Pakistani forces only meters from each other. Kashmir, like the nations battling for its control, finds itself partitioned with the northwest third, Azad (Free) Kashmir, occupied by Pakistan and the rest?the predominantly Muslim Kashmir Valley, the primarily Hindu state of Jammu, and the Buddhist Ladakh region?controlled by India.
After this first war in 1947 over the future of Kashmir, the Kashmiri people sought the right to self-determination promised them by Nehru. It never materialized, however, despite a 1948 UN resolution calling for a fair and free plebiscite. Instead, Delhi attempted to solidify and codify its control over Indian-controlled Kashmir. India supported local elections in 1951 and showed no signs of relenting to either the Kashmiri people, who were clamoring for a voice in their future, or to Pakistan, which had firmly positioned itself face-to-face against Indian forces along the Line of Control.
In 1965, Pakistani military ruler Ayub Khan was convinced by future Pakistani Prime Minister Zulfikar Ali Bhutto that Pakistans "window of opportunity to settle the Kashmir issue on favorable terms was rapidly closing."4 Hence, in September 1965, the Pakistani leadership embarked on a dangerous escapade, termed Operation Gibraltar, where, in a scene that would become familiar, "Pakistani troops disguised as local tribesmen would cross the porous frontier and foment an insurgency" in Kashmir.5 The second phase of Operation Gibraltar called for a full Pakistani invasion and seizure of the Kashmiri state. Unfortunately for Islamabad, the Kashmiri people were not as amenable to Pakistani efforts as they had anticipated. And even more unfortunately for Islamabad, Delhi, which had embarrassingly lost a war in 1962 to China, had an enormous incentive to assert its overwhelming conventional superiority over Pakistan, and swiftly and punishingly crushed the Pakistani act of war. Though India routed the Pakistanis, Delhi stopped short of trying to attain control of Azad Kashmir. Instead, in the 1966 Tashkent Agreement which officially ended the war, Delhi conceded to "return to the status quo ante," which recognized the original Line of Control as the Indo-Pakistani border.6 The future of Kashmir remained unresolved, with the dynamic mix of religion, politics, and military power coalescing in this extremely volatile conflict, which had now seen two full-scale wars tarnish the subcontinents most beautiful state.
Although India and Pakistan fought an intense war in 1971, the focal point was not Kashmir but rather Bangladesh-which was asserting its independence from Pakistan?on whose behalf India fought. Still, Kashmir inevitably crept into the post-war negotiations between Indira Gandhi and Bhutto, who had now become Pakistans Prime Minister. In the 1972 Simla Agreement, the two leaders declared their intent to "resolve to settle their differences by peaceful means through bilateral negotiations."7 More rhetorical than substantive, the Simla Agreement simply reinforced the Line of Control as the de facto border between India and Pakistan, and the fact that neither nation had any novel ideas about how to best solve their long-standing and embittered dispute.
It would not be until 1989 that Kashmir again became a flashpoint for conflict. The 1980s brought a wave of secessionist movements throughout India, from Punjab to Assam to Nagaland. These movements emboldened Kashmiris who wished to assert their own right to self-determination and self-rule. A largely indigenous movement, the Jammu and Kashmir Liberation Front (JKLF), recruited young militant Muslims and called for an independent Kashmir. Other groups, some supported by Pakistan and Afghanistan, such as Hizbul Mujahedeen, also relied upon militant youths to violently disrupt the status quo in Kashmir. This uprising effected the largest domestic military deployment in the 20th century to squelch an indigenous insurgency, with over 500,000 Indian troops being committed to the region (this number has since been reduced to about 350,000 troops).8 The harsh Indian crackdown, which caused international alarm among human rights groups, came in response to credible evidence of Pakistani support for the insurgency, both financial and physical.9 By the mid-1990s, the Indian military presence in Kashmir had become a permanent fixture and a stark reminder of the irreconcilable differences between India and Pakistan. Indigenous and Pakistani-supported opposition to India continued to mount, with the formation of the fundamentalist groups Lashkar-e-Toiba and the Harkatul Mujahedeen complementing the actions of Hizbul Mujahedeen.
On May 9 and 11, 1998, the new BJP leadership in Delhi made the irrevocable decision to introduce functional nuclear weapons into the South Asian security dynamics. Pakistan followed suit less than three weeks later. Regardless of Indias motivations for conducting its nuclear tests, and there has been much written on the subject to be sure, the ex post facto reality of Asian security is that Delhis tests precipitated the creation of the worlds most dangerous nuclear alley, with three nuclear states bordering each other. The insertion of nuclear weapons into South Asia gave rise to the possibility of, for the first time in the worlds history, a hot war between two nuclear powers. And, worldwide, the overwhelming fear was that Kashmir would provide the flashpoint for that war and for the worlds first nuclear exchange. It would be exactly one year later, in May 1999, when that very scenario began to unfold.
Again it would be Pakistani troops under the guise of guerrilla infiltrators that would boldly violate Indian sovereignty and cross the Line of Control, this time in the Kargil sector. The Kargil crisis was conceived following a major Pakistani military purge by then-Prime Minister Nawaz Sharif. The newly appointed Chief of the Army, Pervez Musharraf, who would later overthrow the Sharif government, designed Operation Badr, calling for "a small Pakistani force . . . to grab a sliver of land in Indian Kashmir and thus create a new reality in the region."10, 11 A clear violation of international law, the covert infiltration of an estimated 5,000 mujahedeen into Indian territory evoked a massive response from Delhi, which decried Pakistani actions as a deliberate act of war. Exchange of artillery began on May 9, 1999 and in late May, India began launching airstrikes into Pakistani-held territory. The international communitys worst nightmare had now become a reality: two nuclear powers were actively engaged in live battle. The lack of diffusive rhetoric out of either Delhi or Islamabad only fueled the propensity for escalation, with both sides accusing the other of committing unacceptable violations of sovereignty.
Frighteningly, it was revealed that during the crisis, India "deployed five nuclear tipped missiles"?four short-range Prithvi missiles (150 km range) and one Agni missile (1000 km range)?targeted at Pakistan.12 Islamabad evidently did the same, placing six Hatf-II (500 km range) missiles tipped with nuclear warheads on maximum alert and aimed "at Indian military and economic installations."13 The implication is that nuclear warheads were mated to capable delivery systems at launch-on-command status by bordering states in a de facto state of war?the closest the world has been to nuclear conflict since the 1962 Cuban Missile Crisis. This de facto state of war endured for ten exceedingly tense weeks until President Clinton convinced an increasingly isolated Pakistan to withdraw its troops from the Indian side of the Line of Control.
Although the Kargil Crisis and the role of nuclear weapons delves into a theoretical debate about the deterrent effect of strategic forces, Kanti Bajpai, a visiting fellow at the Brookings Institute, contends that Paksitan "sees nuclear weapons as a shield . . . to protect them against an Indian retaliation," thereby making proxy wars and conventional wars on the subcontinent more likely.14 Pervez Hoodbhoy, a Pakistani analyst, concurs, asserting that "the feeling of security which nuclear weapons bring [to Pakistan] . . . is responsible for what happened in Kargil. This is the first time in history that nuclear weapons have actually caused a war to start."15 With vastly inferior conventional forces, Islamabad relies upon its nuclear force to mitigate the strategic and military asymmetry in South Asia, imparting it a level of unprecedented confidence in its military adventures. Further, the inherent dangers of such a situation?two bordering nuclear neighbors in active combat?are highlighted by George Perkovich, who identifies the heightened propensity for accidents, false-warning launches, and miscalculations owing to the close proximity of the two warring nations.16 The very real danger is that nuclear weapons could be unintentionally employed in a conventional war between India and Pakistan due to the unprecedented proximity variable, which finds two abutting hostile states nuclear forces less than 100 km from their border.17 Ultimately, the introduction of nuclear weapons into the already complicated South Asian security equation magnifies the necessity to achieve salient solutions to any and all potential points of conflict, of which Kashmir is paramount. Absent such stability, Pakistan may feel emboldened with its nascent nuclear arsenal to conduct bold excursions into Indian territory with perceived impunity as it did in Kargil, and India may be encouraged to act more aggressively around the Line of Control, both violating international law and bringing the world that much closer to the brink of nuclear exchange.
Realizing the innate dangers of two nuclear neighbors engaged in war by proxy, both Delhi and Islamabad have taken steps since the Kargil crisis to raise the very real possibility of a peaceful solution to the future of Kashmir. In July 2000, Hizbul Mujahedeen self-imposed a ceasefire, and in November, just prior to Ramadan, Indian Prime Minister Vajpayee responded with an Indian ceasefire, "indicating that Indian security forces would not initiate combat operations against militants in the Jammu and Kashmir regions."18 Musharraf, in turn, responded with a Pakistani ceasefire. Further, Delhi has indicated a willingness to open negotiations with the All Party Hurriyat Conference (APHC), an umbrella political organization indigenous to Kashmir. The roadblock, however, has been Delhis unwillingness to hold trilateral negotiations with the APHC and Pakistan at the table. It views Kashmir as a domestic situation and refuses to hold talks with Pakistan until Islamabad ceases what Delhi considers to be support for cross-border terrorism. Delhi also refuses a third-party mediator, including the US, politely but firmly declining President Clintons offers to broker a peace.19 How Delhi hopes to achieve a viable solution to the future of Kashmir without a tri-lateral process involving both Pakistan and the Kashmiris is entirely unclear. It is too early to determine how and if these latest developments will impact Kashmir. However, it is important to note that these are the first signs of progress since the Kargil crisis, providing hope that the festering wound between these two estranged siblings can be soothed.
The International Legal Validity of Kashmir's Accession to India
From the history of the Kashmir conflict, it is now imperative to analyze the various international legal elements associated with the dispute. Chronologically, the first legal issue is the validity of Hari Singhs accession to the Republic of India. As noted, the British Governments partition plan provided that under the Government of India Act of 1935, which went into effect in August 1947, a state could enter into a federal relationship with either India or Pakistan. Independence was not an acceptable alternative. India argues, quite simply, that Kashmir became an integral part of India the moment Hari Singh signed the Instrument of Accession. Additionally, Indias legal case rests on the argument that the Maharaja of Kashmir was the only competent authority to sign the Instrument of Accession.20 India points to the fact that international juristic opinion has largely recognized the right of heads of states to sign international treaties. For instance, Judge Anzilotti, a former President of the Permanent Court of International Justice, stresses the principle of jus representationis omnimodae, stating that "international law imputes to a State all the manifestations of will and the acts which the head of the State acting in that capacity accomplishes in the domain of international relations."21 Thus, India claims that once the Instrument of Accession was signed by the Maharaja of Kashmir and accepted by Lord Mountbatten and Prime Minister Nehru, India had the international and constitutional right, as well as the duty, to protect Kashmir from the invading tribesmen.
Although, at first glance, Indias claim to Kashmir appears consistent with international law, a more thorough analysis suggests otherwise. First, one may seriously question the Maharajas authority to sign the Instrument of Accession. Pakistan argues that the prevailing international practice on recognition of state governments is based on the following three factors: first, the governments actual control of the territory; second, the governments enjoyment of the support and obedience of the majority of the population; third, the governments ability to stake the claim that it has a reasonable expectation of staying in power.22 The situation on the ground demonstrates that the Maharaja was hardly in control of the state of Jammu and Kashmir. In fact, almost all of Kashmir was under the control of the invading tribesmen and local rebels. The Maharaja held actual control over only parts of Jammu and Ladakh at the time that the treaty was signed. Moreover, Hari Singh was in flight from the state capital, Srinigar. With regard to the Maharajas control over the local population, it is clear that he enjoyed no such control or support. Furthermore, the states armed forces were in total disarray after being thoroughly defeated by the invading forces and the local uprising. Finally, it is highly doubtful that the Maharaja could claim that his government had a reasonable chance of staying in power without Indian military intervention. This assumption is substantiated by the Maharajas letter to the Government of India, in which he states that, "if my state has to be saved, immediate assistance must be available at Srinigar."23 Therefore, if the Maharaja had no authority to sign the treaty, the Instrument of Accession can be considered without legal standing.24
The legality of the Instrument of Accession may also be questioned on grounds that it was obtained under coercion. The International Court of Justice has stated that there "can be little doubt, as is implied in the Charter of the United Nations and recognized in Article 52 of the Vienna Convention on the Law of Treaties, that under contemporary international law an agreement concluded under the threat or use of force is void."25 As already stated, Indias military intervention in Kashmir was provisional upon the Maharajas signing of the Instrument of Accession. More importantly, however, the evidence suggests that Indian troops were pouring into Srinigar even before the Maharaja had signed the treaty.26 This fact would suggest that the treaty was signed under duress.
Finally, there is some doubt as to whether the treaty was ever signed. International law clearly states that every treaty entered into by a member of the United Nations must be registered with the Secretariat of the United Nations.27 The Instrument of Accession was neither presented to the United Nations nor to Pakistan. While this does not void the treaty, it does mean that India cannot invoke the treaty before any organ of the United Nations.28 Moreover, further shedding doubt on the treatys validity, in 1995 Indian authorities claimed that the original copy of the treaty was either stolen or lost.29 Thus, an analysis of the circumstances surrounding the signing of the Instrument of Accession suggests that the accession of Kashmir to India was neither complete nor legal, as Delhi has vociferously contended for over fifty years. Kashmir may still legally be considered a disputed territory.
Pakistan argues that even if the Instrument of Accession is considered legal, Indias refusal to hold a plebiscite in Kashmir makes the accession incomplete. India, however, argues that its expressed "wish" to hold a plebiscite in Kashmir is amoral, not legal obligation.30 Pakistan, however, retorts that Indias obligation to hold a plebiscite in Kashmir arises out of Indias acceptance of the United Nations Commission for India and Pakistan (UNCIP) resolutions of August 13, 1948. This resolution contains proposals for holding a plebiscite in Kashmir which would allow the people to choose between accession to either Pakistan or to India. India asserts that the resolution states that the plebiscite will be held when a ceasefire is arranged and when Pakistan and India withdraw their troops from Kashmir. Neither of these conditions has been met. Thus, Indias position seems to rest on solid legal ground until one considers the legal principle expressed in the Latin maxim nullus commodum capere potest de injuria sua propria (no man can take advantage of his own wrong).31 In the context of the Kashmir dispute, this means that India cannot frustrate attempts to create conditions ripe for a troop withdrawal and ceasefire in order to avoid carrying out its obligations to hold a plebiscite. The evidence suggests that India was clearly at least as equally unwilling as Pakistan to withdraw troops from Kashmir. The London Economist stated that "the whole world can see that India, which claims the support of this majority [the Kashmiri people]...has been obstructing a holding of an internationally supervised plebis-cite."32 Sir Owen Dixon, the United Nations Representative to the UNCIP, reported to the Security Council that,
In the end, I became convinced that Indias agreement would never be obtained to demilitarization in any such form, or to provisions governing the period of the plebiscite of any such character, as would in my opinion permit the plebiscite being conducted in conditions sufficiently guarding against intimidation, and other forms of abuse by which the freedom and fairness of the plebiscite might be imperiled.33
In this regard, Indias apparent efforts to obstruct the holding of a plebiscite in Kashmir stand in violation of international law.
Minorities, Human Rights, and Self-Determination
A significant characteristic of the Kashmir dispute has been Indias and Pakistans insistence on differing norms and principles of international law. Whereas India argues in favor of territorial integrity and sovereignty, Pakistan bases its claims on the principle of self-determination.34 Pakistan challenges Indias sovereignty claims by denying the legality of the Instrument of Accession and also by evoking the principle of self-determination, arguing that this latter right supercedes the signing of the Instrument of Accession. Pakistans Foreign Minister Bhutto argued in front of the United Nations in 1964 that "Kashmir is not a piece of property, that its fate is not to be sealed or signed away through any instrument of accession . . . that [it] is rather the free will of the inhabitants . . . which has to be determined and decided."35 Although Pakistans claim may hold moral appeal, it is doubtful that Pakistans claims are consistent with international law.
Article 1.1 of the 1966 International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic, Social, and Cultural Rights stated that "all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."36 This article bears significance in that it represents the first shift in the rights of self-determination from "states" to "peoples." Yet, the term "peoples" has been subject to intense debate and has never been concretely defined by any international body possessing legitimate claims to the creation of international law. Paragraph 6 of the General Assembly Resolution 1514 may offer a clue as to the real meaning of the rights of "people" to self-determination. While upholding the right of a "people" to self-determine, it states, "any attempt aimed at the total or partial disruption of the national unity and the territorial integrity of a country is incompatible with the Purposes and Principles of the Charter of the United Nations."37 This statement suggests that international law does not provide minorities with the right to unilaterally decide on secession. "Peoples" have the right to secede, but this term encompasses the entirety of the nations citizenry.38
Following this line of argument, Indias claims to Kashmir are strong. India may further refer to Paragraph 6 of the General Assembly Resolution 1514 and point to the fact that the nations security and ideological construction are dependent on Kashmir remaining a part of India. Kashmir, as the only Muslim majority state within secular India, is important to Indias foundation as a diverse union. It may even be argued that Kashmiris, though a Muslim minority within a predominantly Hindu nation, do not constitute a different people, not more so than the Tamils, Sikhs, Bengalis or Assamese (all of whom have either struggled or flirted with the idea of secession from India). India is defined by its subcultures, each of which contribute to the nations identity as a whole. Kashmir can thus be viewed as an essential element to Indian unity. Furthermore, Kashmirs strategic importance is paramount because of its elevation and common borders with Pakistan and China, Indias two main security threats. Indians will also point out that practically every historical land invasion of India has come from its northwest frontier, namely Kashmir. Additionally, as the source of many of Indias major rivers, the glaciers in Kashmir are essential to Indias sustenance. Thus, India may invoke Paragraph 6 of the General Assembly Resolution 1514 by arguing that the loss of Kashmir could represent a threat to Indias existence as a secular and integral state.
International law does not sanction minorities and ethnic groups to pursue secession without the consent of all the peoples of the state. International law, however, clearly declares that states are obliged to treat all of their "peoples" equally and to insure that minorities are treated in a manner that does not threaten their culture or identity. Principle VII of the "Declaration on Principles" in the Helsinki Final Act pronounces that "the participating States on whose territories national minorities exist will respect the right of persons belonging to such minorities to equality before the law, will afford them the full opportunity for the actual enjoyment of Human Rights and fundamental freedoms and will, in this manner, protect their legitimate interests in this sphere."39 As a party to both the Geneva Convention and the International Covenant on Civil and Political Rights, India is obliged to follow standards of human rights enshrined in these treaties. Pakistan declares that India has committed gross violations of human rights in Kashmir, thereby violating international law and justifying Kashmirs right to self-determination.
India has indeed committed and continues to commit human rights violations in Kashmir. Amnesty International and Human Rights Watch/Asia, amongst others, have provided substantial evidence that Indian security forces in Kashmir have killed and raped civilians and rebels in custody, and practiced torture as a means to obtain information from suspected militants.40 These same reports, however, also accuse Pakistan-backed militants of similar human rights violations. Other sources provide substantial evidence that Pakistan commits equally horrendous human rights violations in Azad Kashmir.41 India also argues that, in contrast to the non-democratic Pakistan, Kashmiris?like all Indians?have the right to vote in Indias general elections.
The one apparent fact in this muddled picture is that India, Pakistan, and the militants are all in violation of international human rights law, with India, arguably, being the worst offender. And although international law appears to sanction self-determination in cases of extreme mistreatment (Bosnia and to a lesser extent Kosovo seem to support this argument), it is doubtful that Indias actions in Kashmir, although admittedly not praiseworthy, would warrant the right of Kashmiri self-determination.42
The final international legal element associated with the Kashmir dispute is that of state-sponsored terrorism and overt infiltration of another states territory. As the Kargil crisis demonstrated, this is an extremely volatile scenario, one that is potentially even further complicated, perhaps even caused, by the recent nuclearization of the subcontinent. Terrorist acts and state-sponsored terrorism have been condemned as antithetical to international law by a number of international bodies, including the United Nations. The United Nations has, however, fallen woefully short of taking any meaningful action against terrorism including, even, defining the term.43 The U.S. Department of State has recently adopted a definition for terrorism, stating that "the term terrorism means premeditated, politically motivated violence perpetrated against non-combatant targets by subnational groups or clandestine agents, usually intended to influence an audience."44 This year the U.S. State Department reported that South Asia has replaced the Middle East as the primary center of terrorism in the world.45 Much of this terrorism takes place in Kashmir where, according to the U.S. government, Pakistan not only assists militant passage into Indian occupied Kashmir but also funds, trains, and arms these militants.46 The most recent State Department report on terrorism states that "Pakistans government has supported groups that engage in violence in Kashmir and it has provided indirect support for terrorists in Afghanistan . . . The government has tolerated terrorists living and moving freely within its territory."47
The motivations behind Pakistans sponsorship of international terrorism are misguided and, more pertinently, dangerous to India and the international community. Pakistan believes that increased support of cross-border terrorists will force India to intensify its counter-insurgency operations. Intensified Indian operations may include the clearing of wide strips of land on Pakistans border, thereby creating a severe refugee crisis. This, Islamabad hopes, could create precisely the type of situation that the West considered ethnic cleansing in Kosovo and could, therefore, attract significant international attention to the Kashmir crisis. Pakistan also believes that since it is smaller than India by any index, it must find novel methods to maintain some form of parity with its historical rival. It has chosen the sponsorship of terrorism as a means to maintain this parity in the belief that it is costly to India, but cheap to itself. Although it is indeed costly to India, Pakistan mistakenly believes that the situation they are creating in Kashmir will have few deleterious consequences in Islamabad. By using militants in Kashmir as an attempt to save financial costs in its low-intensity conflict with India, Pakistan is allowing a culture of violence to take root in its own society. Moreover, Pakistan should not assume that these religiously motivated militants will stop at wresting Kashmir away from India. As a member of the Harkat militant group stated, "We wont stop?even if India gave us Kashmir . . . Well also bring jihad here [Pakistan] . . . We want to see a Taliban-style regime here."48 Pakistan runs the danger of being devoured by its own creation: a series of religiously motivated terrorist organizations preaching violence and intolerance.
Pakistans actions have not gone unnoticed by some of the more dedicated Kashmiri freedom fighters. Kashmiris have grown increasingly perturbed by the growing number of foreign mercenaries in Kashmir and by increased domination from Islamabad.49 Sumantra Bose, in his account of Indias actions in Kashmir in The Challenge in Kashmir, states "it is increasingly clear that Pakistans heavy-handed, self-interested meddling in the uprising has boomeranged on the civilian and military establishment of that country, and has seriously damaged the latters credentials in the eyes of most Kashmiris."49 Apart from clearly violating international law with its support of terrorism, Pakistan may unwittingly be creating a much larger legal problem: a threat to international peace and stability. The fact that both nations now have nuclear weapons makes a solution to Kashmir that much more pressing, as nuclear power may serve to only encourage violations of international law and sovereignty, threatening the future of the subcontinent.
It is apparent that India and Pakistan have consistently and shamelessly violated international law in the Kashmir region. Despite these rather apparent violations, both India and Pakistan have emphasized the legal and normative dimensions of their claims to Kashmir. It appears equally evident that lofty arguments on the right of self-determination and state sovereignty are merely subterfuges for Indias and Pakistans selfish regional interests. From Indias and Pakistans actions, we may conclude that in this case international law has had a minimal impact on the regulation of state behavior. It may be that this situation is simply too inextricably linked to national security and too packed with cultural and emotional baggage for international law to have a significant impact on state behavior.
Clearly then, no international legal solution can be imposed on either India or Pakistan. Kargil demonstrated that another possible route, a military solution, would be wrought with immense dangers and would result in unacceptable levels of damage to both nations; a military solution, like any international legal solution, is therefore also unlikely. Consequently, a concerted political effort has the greatest potential for yielding a viable solution to Kashmir. A political solution requires the participation of not only the two sovereign nations, but also of Kashmiris and their representatives. However, such a path is currently plagued by seemingly insurmountable barriers owing to the tremendous emotional and political investments that all parties have made in Kashmir. For Pakistan, Kashmir is crucial to its national and Islamic identity, becoming the defining focal point for the nation. Because Kashmir has been utilized to stir the fires of Pakistani nationalism, mostly as a distraction to the otherwise defunct state of affairs in what some are terming a "dying state," any Pakistani regime that ceded even an inch of Azad Kashmir would be committing political, and perhaps actual, suicide. For India, Kashmir has become the test of its secular identity; it cannot afford to lose its only Muslim-majority state. Another key domestic consideration for India is the precedent for state secession that would be set if Delhi lost Kashmir. From Punjab to Assam, India can ill-afford to appear weak on domestic insurgence, for secessionist movements continue to threaten Indias unity. Finally, Delhi cannot ignore the strategic implications of a Pakistani-held Kashmir, for Islamabad would then have unfettered access to the Karakoram Highway?the only route to China. Thus, it is evident that both Delhi and Islamabad find themselves with nary a sliver of maneuverability in a situation that requires enormous flexibility for any solution to be realized. Given the events in Kargil though, which witnessed the explosive coalescence of sovereignty violations with the added dimension of nuclear weapons, a solution to Kashmir is absolutely crucial to ensuring the integrity of both international law and international security on the subcontinent. Unfortunately, given the historical enmity with which both nations view each other, and the central place that Kashmir holds in that rivalry, any political solution on Kashmir will materialize at only an excruciatingly slow pace, if at all.Endnotes
1 Sumit Ganguly, "Avoiding War in Kashmir", Foreign Affairs, Winter 1990, p. 57. Lexis-Nexis.
2 Alexander Evans, "Reducing Tension is Not Enough", The Washington Quarterly, Spring 2001, p. 181. Lexis-Nexis.
3 Ganguly, p. Lexis-Nexis.
8 "Settling on Kashmir Seems Possible", Defense & Foreign Affairs Strategic Policy, February 1997, p. 24, Lexis-Nexis
9 Evans, p. Lexis-Nexis
10 Yossef Bodansky, "The Kargil risis in Kashmir Threatens to Move Into a New Indo-Pak War with PRC Involvement", Defense & Foreign Affairs Strategic Policy, May 1999, p. 20. Lexis-Nexis.
11 Pravin K Sawhney, "Countdown to War in Kashmir", Janes Intelligence Review, March 1, 2000, Lexis-Nexis.
12 Mohammed Ahmedullah, "During Kashmir Crisis, India, Pakistan Cocked Nuclear Trigger", Space & Missile, August 3, 2000, p. Lexis-Nexis.
14 Kanti Bajpai in ABC World News This Morning hosted by Peter Jennings, March 20, 2000, p. Lexis-Nexis
15 Pervez Hoodbhoy in ABC World News This Morning hosted by Peter Jennings, March 20, 2000, p. Lexis-Nexis
16 George Perkovich inABC World News This Morning hosted by Peter Jennings, March 20, 2000, p. Lexis-Nexis
17 The proximity of Indo-Pak nuclear forces heightens the propensity for military officers to place forces on launch on warning status, potentially short-circuiting command and control procedures to impart a retaliatory capability. Never before have warning times for nuclear powers been on the order of seconds, a very real and dangerous concern for those in Delhi and Islamabad.
18 Evans, p. Lexis-Nexis.
19 Howard B. Schaffer, "Reconsider-ing the US Role", The Washington Quarterly, Spring 2001, p. 201, Lexis-Nexis.
20 Rao, Gururaj. Legal Aspects of the Kashmir Problem. Bombay: Asia Publishing House, 1967: 35.
21 Ibid, 340.
22 Hussain, Ijaz. Kashmir Dispute: An International Law Perspective. Islamabad: S.T. Printers, 1998: 76.
23 Ibid, 78.
24 Slomanson, William. Fundamental Perspectives on International Law. 3rd ed. San Diego: Clark Baxter, 2000: 331.
25 Ibid, 339.
26 Hussain, supra, n. 8: 74.
27 Slomanson, supra, n. 10: 337.
29 "Indias False Claim on Kashmir." http:// www.ummah.org.uk/kashmir/falsecl.htm
30 Rao, supra, n. 6: 39.
31 Hussain, supra, n. 8: 69.
34 Kacowicz, Arie Marcelo. Peaceful Territorial Change. Columbia: University of South Carolina Press, 1994: 100.
35 Ibid, 101.
36 Slomanson, supra, n. 10: 73.
37 Thornberry, Patrick, "Self-Determination, Minorities, Human Rights: A Review of International Instruments," International Law, eds. Ku, Charlotte and Diehl, Paul. Boulder: Lynne Rienner Publishers. Inc., 1998: 140.
39 Ibid, 148.
40 See http://www.igc.org/hrw/ campaigns/kashmir/1996/India-06.htm and http://www.amnesty. se/women/2742.htm
41 "Pakistan Using Our Area, Say PoK Leaders." The Hindu News-paper, December 4, 2000.
42 Thornberry, supra, n. 23: 149.
43 Slomanson, supra, n. 10: 481.
44 Alexander, Yonah. "Terrorism in the Twenty-First Century: Threats and Responses." DePaul Business Law Journal, Spring 2000.
45 Stern, Jessica. "Pakistans Jihad Culture." Foreign Affairs, Nov./ Dec. 2000.
47 "Americas Worst Nightmare?" http:// www.cbsnews.com/now/story/ 0,1597,241115-412,00.shtml
48 Stern, supra, n. 31.
49 According to the Indian government, approximately 40 per cent of the 3,000 to 4,000 "mujahideen" in Kashmir at any given moment are either Pakistani or Afghan nationals. Bose, Sumantra. The Challenge in Kashmir: Democracy, Self-Determination and a Just Peace. New Delhi: sage Publications, 1997: 66.
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Department of International Relations, Stanford University
Last updated: 5/28/06, by Hammad Ahmed and Patrick Callier.