A Pakistani perspective

Print edition : September 01, 2001

Kashmir Dispute: An International Law Perspective by Ijaz Hussain; Quaid-i-Azam Chair, National Institute of Pakistan Studies, Quaid-i-Azam University, Islamabad; pages 309; Rs.450.

"THE Kashmir dispute which has bedevilled relations between India and Pakistan for the last half century has been the subject of a number of political and historical studies. However, its legal perspective has been largely ignored. For example, there are some old publications by Indian writers (Agarwal, H.O., Kashmir Problem: Its Legal Aspects, 1979; Khan, R., Kashmir in the United Nations, 1966; Rao, H.S.G., Legal Aspects of Kashmir Problem, 1967) but they are far from adequate as the treatment, apart from being antiquated, is either polemical or pseudo-legal or both," writes Ijaz Hussain.

After citing three other books by Western writers which did not focus on the legal aspect, the author continues with great modesty: "The result is that no professional systematic and serious study of the subject from the international law perspective exists in the English language, and perhaps in any language. The present book attempts to fill this huge gap by approaching the subject in a professional, dispassionate and exhaustive manner."

Ijaz Hussain's comments on the three Indian works are justified. They belong to an era and tradition in which Indian and Pakistani scholars vied with each other in producing apologias to establish that their own country's case in any dispute with any other state, particularly a neighbour, was right and the adversary was wrong. But what Ayesha Jalal said of South Asian historians who "privilege the gloss of nationality rather more than the thrust of scholarship" is all too true of Ijaz Hussain himself.

His book appears incongruously at a time when many thinking Indians and Pakistanis have begun to pose questions about the morality and expediency of their countries' policies. Yet his work is one of the worst specimens of the earlier tradition. This is a great pity. He has laboured hard on the legal aspect and has served his country as a member of its delegation to many an international conference.

The book makes pathetic reading. At places it amuses the reader as a lawyer would amuse the judge by pleading that his client did not conclude any contract so that the charge of its breach is groundless; assuming he did, he performed it; in the alternative, the contract was concluded under coercion; in any event it is void for several reasons. Now sample this: "Reacting to these massacres (in Jammu) and to those taking place in East Punjab, on 22 October a large lashkar from Pakistan's tribal areas poured into Kashmir with the aim of liberating it from the Dogra forces. By 24 October the lashkar captured the power house near Srinagar and could have posed a threat to the airport but for the fact that good part of the forces stayed back as it got engaged in pillage."

We are next told that "since the Maharaja invited the Patiala troops, in violation of the relevant rule of international law, Pakistan retaliated by sending tribesmen to help the Kashmir rebels win the power struggle in Kashmir." So, it was an officially sponsored venture; not a spontaneous one by tribesmen.

On page 109 emerges another thesis: "We can say that the counter-intervention by Pakistan through the tribesmen on behalf of the Kashmir rebels was justified as it fulfilled the conditions laid down by the right of collective self-defence... Pakistan has, however, claimed that she was not involved in the tribesmen's intervention and that the latter's intervention was spontaneous being in response to the massacres and atrocities of their co-religionists in the Jammu region and that in view of the prevailing enraged sentiments, she could stop the tribesmen only at her own peril." This joke is also accepted and retailed on page 118: "In our estimation, the present case is a good candidate for exoneration for mitigating circumstances that accompanies the tribesmen's incursion into Kashmir."

Only a wrong is "exonerated" or "mitigated"; virtuous conduct calls for neither. At yet another place (page 114) he suggests that "the (tribal raid into Kashmir) was private". Which was it - a private affair or the government of Pakistan's "counter-intervention"?

Of what avail the many legal citations when the author cannot bring himself to face and state the truth on a matter of such crucial importance? He writes: "In view of the fact that the Indian troops were present in Srinagar when the Instrument of Accession was signed points (sic) to the use of force in obtaining consent of the Maharaja to the said Instrument. This makes it patently defective." Now, it is no one's case that the Maharaja felt oppressed by the arrival of Indian troops. As everyone knows, he felt relieved. He had sought India's help against the raiders.

There is an attempt to suggest that Jinnah was "completely taken by surprise." The Governor of the North West Frontier Province (NWFP), Sir George Cunningham's diary recorded that Jinnah had heard of the venture a fortnight earlier but said "Don't tell me anything about it. My conscience must be clear" (vide R. J. Moore; Making the New Commonwealth; p. 51).

None in Pakistan contests the fact that it had launched Operation Gibraltar and Operation Grand Slam in 1965 to settle the Kashmir question by force. Can Pakistan hope to get by plebiscite what it lost at its own chosen forum, the battlefield? What is the relevance of "the U.N. resolutions" when Pakistan violated the U.N. charter? The resolutions themselves it tore into shreds. Under the resolution of the United Nations Commission for India and Pakistan of August 13, 1948, Pakistan-Occupied Kashmir was to be "administered by the local authorities under the surveillance of the Commission." The Commission having vanished, Pakistan installed a government there under a Constitution which bars the cry of plebiscite and debars non-Muslims from public office. Under "the U.N. resolutions" Pakistan has not a leg to stand upon. Apologias like Ijaz Hussain's, like narcotics, constitute nothing but a flight from the reality. Ijaz Hussain has taken considerable pains to demonstrate with the help of Indian and U.N. documents that the Kashmir question is very much a "dispute". One thought that was overdone. Agra makes one think that his labour was not expended in vain.

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