That question is simply a political one created by an international promise of right of self determination to people of J&K upon partition of British India in two domains India & Pakistan. The two successor states have duly accepted to implement this promise in letter & sprit.
The more I read or listen to the debates & discourses on Indian media, both print & electronic, the more I am bemused at the ignorance or deliberate attempt to ignore the fundamental question of Kashmir dispute. That question is simply a political one created by an international promise of right of self determination to people of J&K upon partition of British India in two domains India & Pakistan. The two successor states have duly accepted to implement this promise in letter & sprit.
Indian Writers or debaters, with few honorable exceptions, would simply like to skip or reduce this question to terrorism which reared its head after Nineties around the same time when Kashmiris started their armed struggle. It provided a god send opportunity to these Indians to juxtapose the two and present the struggle to world as an act of Islamic terrorism.
In October 1947, Maharaja of Kashmir signed an instrument of accession with India to thwart what India calls a ‘Tribal raid to annex Kashmir’ and Pakistan an indigenous initiative supported by tribal Muslims to liberate Kashmir from the tyrant Mahraja’s rule under which a genocide of Muslims was in progress in Jammu. Incidentally Mahraja had signed a Stand-still agreement with Pakistan few months earlier. Looked in this background the accession, (whose authenticity is also under challenge) gave India only a limited claim and not a perpetual right to be in Kashmir.
When the matter went to UN at the instance of India, it resolved to hold a plebiscite in Kashmir to know the will of people as to which of the two domains they want to join. Both the two Countries accepted this decision but India, after first adopting dilly-dallying tactics, finally reneged on the promise on a flimsy ground of Pakistan having joined Anglo-American military alliances CEATO & CENTO
So since 1947, Kashmiris have been waging a peaceful resistance to Indian occupation and when these means failed, the people started an armed struggle. To crush this struggle, Indian army used its massive fire-power to such an extent that all Indian military operations are in reality the collective punishment of whole districts, towns and cities. Targeted killing of young men, rape of women & enforced disappearances has been the hallmark of its policy & strategy to subdue a whole population. Crimes against humanity have been so grave that human beings have even been burnt in live infernos prompting reputed TIME magazine to say PERHAPS THERE IS A SPECIAL CORNER IN HELL RESERVED FOR INDIAN SOLDIERS——(re: TIME magazine on Sopore Massacre of 6th Jannuary 1993). A small coterie of collaborators & agents has been propelled to paint the occupation with a democratic brush mainly to mislead the international community.
India is taking advantage of a global anti-terrorism atmosphere by juxtaposing Kashmir issue with terrorism aided and abetted by Pakistan. As stated earlier an armed struggle was started by Kashmiris in 1990 but a peaceful transition was also made in 2008. So two peaceful struggles from 1947 to 1990 & from 2008 till now have not yielded any fruitful dividend for people of Kashmir and there are now strong indications that its youth may again be driven to guns out of a sense of hopelessness & desperation. Burhan Wani’s rise & martyrdom is an indication of that situation.
In this background it is extremely important to know whether an armed struggle to evict an occupier amounts to terrorism. The answer is provided in United Nations General Assembly (UNGA) resolution No. 3314 passed in 1974.The said resolution while adopting the definition of word ‘Aggression’, forbids states and coalitions of states from “any military occupation, however temporary.” It also prohibits bombardments, blockades, or forced annexations of any lands. The Definition warns that no consideration of whatever nature, whether political, economic, military or otherwise, justifies aggression. The definition also treats acts of aggression as crimes against peace.
Interestingly, however, the Definition provides an exception for the right to armed struggle. It states: “Nothing in this definition of aggression could in any way prejudice the right to self- determination, freedom and independence of peoples forcibly deprived of that right, particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to STRUGGLE to that end and to seek and receive support.” Although the text mentions “struggle” and not “armed struggle,” the context in which it is used amply makes it clear that it includes both forms of struggles. Even logic yields such an interpretation. Since the Definition lists unlawful uses of force, the exception must refer to the lawful use of force. Accordingly, the people under occupation and alien domination may resort to armed struggle in pursuit of freedom and independence. They may also seek and receive arms and other support from external sources.
The above law of armed struggle as pronounced by UN was further reinforced and all doubts set at rest when UNGA passed yet another historic resolution No. A/RES/37/43 passed on 3rd December 1982 which justifies use of armed struggle by people for liberation of their land from foreign occupation. The said resolution is reproduced below:
“This House reaffirms the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including ARMED STRUGGLE”.
Some developments regarding global terrorism particularly the 9/11 event may have muddled the right to armed struggle. Few members of international think tanks opine the law of armed struggle has been overtaken by the necessity to fight global terrorism. This argument has no merit, whatsoever on two grounds. First that despite these developments & opinions, international law has not yet repudiated the right to armed struggle and two various international organizations and institutions reaffirm the right of self-determination against colonial and occupying regimes every year with right of armed struggle intact.
(The author is a practicing chartered Accountant. E mail: email@example.com)