​Jamil Maqsood on the legal process followed by the UN on the question of Jammu and Kashmir

Jamil Maqsood, Director for International Human Rights Council (NGO), for Europe and Eastern Europe, Representative for the European Parliament & Eurasia Dialogue, speaking at the Free University of Amsterdam, delivered the following presentation:

"Dear Mr. Chair, esteemed panelists, academicians, Students, respected guests, ladies and gentlemen,

"First of all I’m grateful to EFSAS & Free University of Amsterdam for taking the lead to discuss historical, political and especially the legal process followed since the question of Jammu and Kashmir was taken to the United Nations. The topic which is given to me how Pakistan has jeopardised those restrictions.

"The state of Jammu and Kashmir was created after the first Anglo- Sikh war in 1846, under the Treaty of Amritsar signed between Fredrick Currie, Esq and Brever- Major Henry Montgomery Lawrence acting under directions of the Rt, Hon, Henry Hardinge, Governor General on the part of the British Government and by Mahrajah Gulab Singh in person. The treaty of Amritsar was followed by the Treaty of Lahore on 9th March-1846.

"The Mahrajah Gulab Singh had to pay 7.5 million rupees as ransom of war. According to the article 9 of the said treaty the British Government has assured him to protect his territories from external enemies.

Maharaja Ranbir Singh

"So the state of Jammu and Kashmir had become a suzerainty of the British empire. Maharajah Ranbir Singh ascended to throne in 1856, after Gulab Singh abdication due to his poor health. Maharajah Ranbir Singh helped British to besiege Delhi in 1857.

"During his reign the areas of Gilgit, the princely states of Hunza and Nagar started paying tributes to Jammu and Kashmir. He has also established modern judicial system, civil and criminal laws were compiled into the Ranbir Panel Code. He was a scholar of Sanskrit and Persian languages and had translated many books. Maharajah Ranbir Singh also rejected the British request to appointment of a Resident in the state, and submitted a memorandum to 5e British government that there was no such clause in the Treaty of Amritsar. On 12th September-1885 Ranbir Singh died and Governor General Lord Ripon announced that Partap Singh would succeed him, in return Partap Singh yielded to the British demand of appointing a Resident.

"During the reign of Maharajah Partap Singh forced Labour was abolished. During his reign statewide educational institutions were established. He had a very especial interest in the construction of roads and bridges to modernise the infrastructure for social and agricultural development for the people of his state. He died on 23rd of September-1925 during his stay in Mirpur which is a district in Pakistani Administered Jammu and Kashmir today.

"He was succeeded by Maharajah Hari Singh in 1926, soon after ascending throne he had introduced State Subject Rule on 20th of April-1927. The high court of Jammu and Kashmir was also established on 26th of March-1928. The seat of the court shifts between the summer capital Srinagar and winter capital Jammu. In 1934, the first elections of legislative assembly called Prajah Sabah. It was consisted of 75, members of which 12 were officials, 33, elected members and 30 nominated members. Our of those 33, seats 21 were allocated to Muslims, 10 to Hindus and 2 for the Sikh. Immunity. The Ladakh and Gilgit wazarat ( Ministries), only had nominated members (2 & 1 ). respectively.

"The rule of Jammu and Kashmir Maharajah Hari Singh was hesitating to accede to either dominion of India or pakistan because of the demographic composition of the state.

"Nevertheless the Muslims were constituting majority but non Muslims were also having great number in the length and breadth of the princely state. Keeping his population sentiments he had decided to remain neutral. So on 12th of August -1948, he offered pakistan a standstill agreement. The government of pakistan accepted Maharajah’s offer and signed standstill agreement on 15th of August -1948.

"Simultaneously the government of Jammu and Kashmir also offered same agreement with government of India, and the Indian government asked government of Jammu and Kashmir to send a delegation to further negotiate on the terms and conditions of the aforementioned agreement.

"While the Maharajah of Jammu and Kashmir willing to keep his population out of the communal fire that was ignited in rest of the India mainly in Punjab and other provinces. But unfortunately all his intentions were thwarted when Pakistani military organised Tribals from Former Sarhad province today’s Khyber- Pakhtoonkhaw, that is adjacent to Afghanistan. Operation Gulmerg was launched by Pakistani military to capture Jammu and Kashmir by force . not only Pakistani military and tribals entered into Jammu and Kashmir but the people of other areas close to the western part of Jammu Jammu Kashmir also entered into our state and inflicted death and destruction, hundred thousand of people were mercilessly killed, women raped and kidnapped and later sold into brothels of Peshawar and Lahore.

"Hundred thousands were forced into an exodus from their ancestral home land.

"The invaders killed people indiscriminately. Master Abdul Aziz who was struggling to save non Muslims in Muzaffarabad was brutally killed, the same happened with Maqbool Shervani a political leader in Baramula.

"The Baramula town was destroyed by these invaders. They were raping women, killing male members and looting whatever than can, on 26th of October -1947. Under duress the Maharajah of Jammu and Kashmir wrote a letter to Lord Mountbatten, Governor General of India and I quote, "As your excellency is aware the state of Jammu and Kashmir has not acceded to the dominion of India or Pakistan. Geographically my state is contiguous to both the dominions. It has vital economical and cultural links with both of them. Beside my state has a common boundary with the Soviet Republic and China.

"In their external relations the dominion of India and Pakistan can’t ignore this fact. I want to take time to decide to which dominion I should acceded, or whether it is not in the best interest of both the dominions and my state to stand independent, off course with friendly and cordial relations with both. In the latter Maharajah Hari Singh has also reminded Lord Mountbatten that the Government of Pakistan steady and increasing strangulation of supplies like, food, salt, and patrol to my state and postal services have been suspended too.On 27th of October-1947.

"The Treaty of Accession was signed between the Maharajah Hari Singh and Lord Mountbatten Governor General of India.

"On 27th of October-1947, Indian military forces were airlifted at Srinagar Airport and they start an expedition to push back invaders.

Pakistan Troops Kashmir

"In the meantime a small portion of the Jammu Kashmir army was struggling to protect their state, notwithstanding the Muslim members of the military had revolted against their own country. Brigadier Rajinder Singh, Brigadier Usman and many others valiantly fought against Pakistani military incursion.

"On January 6th 1948 the Government of India informed United Nations Security Council about the Pakistani military invasion in Jammu and Kashmir. On 15th January-1948, the government of pakistan emphatically denied that they were giving any aid and assistance to the so called invaders, or had committed any act of aggression against India. Pakistan pretended that those who entered into Jammu and Kashmir were volunteers and pakistan has nothing to do with their activities.

"According to Government of India it was an act of aggression and likely to endanger the maintenance of international peace and security. So the government of India requested UNSC to take cognisance under article 35 of the UN charter. Later the who scheme of Pakistani military incursion was penned by Major General Akbar alias Tariq Bin Zayad in his book Raiders in Kashmir and Rawalpindi Conspiracy Case, the president of then Pakistan Muslim League Sardar Shaukat Hayat has revealed similar events in his book “ History of a lost nation”. Raiders in Kashmir has utterly changed the course of our history and the state and ignited a culture and hate, extremism and terrorism.

"The government of pakistan urged UNSC to look Jammu and Kashmir into wider scheme of the division of British India. Both the state parties have presented their respective views before the UNSC. Finally the question was included in the agenda at the 226th meeting on 6th January,1948under the title “ The Jammu and Kashmir question”. The Pakistani foreign Minister Mr. Zafrullah Khan requested United Nations Security Council on 20th January -1948 to change the agenda meeting from “ TheJammu & Kashmir question” to India – Pakistan question. (UN document reference S/ 655)."

Resolution of 20 January 1948

"The UN Security Council, considering that it may investigate any dispute or any situation which might, by its continuance, endanger the maintenance of international peace and security and that, in the existing state of affairs between India and Pakistan, such an investigation is a matter of urgency, adopted the following resolution:

A. A Commission of the Security Council is hereby established, composed of representatives of three Members of the United Nations, one to be selected by India, one to be selected by Pakistan, and the third to be designated by the two so selected.[1] Each representative on the Commission shall be entitled to select his alternates and assistants.

B. The Commission shall proceed to the spot as quickly as possible. It shall act under the authority of the Security Council and in accordance with the directions it may receive from it. It shall keep the Security Council currently informed of its activities and of the development of the situation. It shall report to the Security Council regularly, submitting its conclusions and proposals.

C. The Commission is invested with a dual function: (1) to investigate the facts pursuant to Article 34 of the Charter of the United Nations; (2) to exercise, without interrupting the work of the Security Council, any mediatory influence likely to smooth away difficulties; to carry out the directions given to it by the Security Council; and to report how far the advice and directions, if any, of the Security Council have been carried out.

D. The Commission shall perform the functions described in clause C: (1) in regard to the situation in the Jammu and Kashmir State set out in the letter of the representative of India addressed to the President of the Security Council, dated 1 January 1948,[2] and in the letter from the Minister of Foreign Affairs of Pakistan addressed to the Secretary-General, dated 15 January 1948;[3] and (2) in regard to other situations set out in the letter from the Minister of foreign Affairs of Pakistan addressed to the Secretary-General, dated 15 January 1948, when the Security Council so directs.

E. The Commission shall take its decision by majority vote. It shall determine its own procedure. It may allocate among its members, alternate members, their assistants, and its personnel such duties as may have to be fulfilled for the realization of its mission and the reaching of its conclusions.

F. The Commission, its members, alternate members, their assistants, and its personnel shall be entitled to journey, separately or together, wherever the necessities of their tasks may require, and, in particular, within those territories which are the theatre of the events of which the Security Council is seized.

G. The Secretary-General Shall furnish the Commission with such personnel and assistance as it may consider necessary.

Adopted at the 230th meeting by 9 votes to none, with 2 abstentions (Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics).

"The United Nations Security Council then adopted another resolution on 21st April 1948. The Security Council having considered the complaint of the Government of India concerning the dispute over the State of Jammu and Kashmir, Having heard the representative of India in support of that complaint and the reply and counter-complaints of the representative of Pakistan, Being strongly of the opinion that the early restoration of peace and order in Jammu and Kashmir is essential and that India and Pakistan should do their utmost to bring about a cessation of all fighting,

"Noting with satisfaction that both and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite, considering that the continuation of the dispute is likely to endanger international peace and security, the UN reaffirmed its resolution 38 (1948) of 17 January 1948:

"Resolves that the membership of the Commission established by its resolution 39 (1948) of 20 January 1948 shall be increased to five and shall include, in addition to the membership mentioned in that resolution, representatives of . . . and . . . , and that if the membership of the Commission has not been completed within ten days from the date of the adoption of this resolution the President of the Council may designate such other Member or Members of the United Nations as are required to complete the membership of five;

"Instructs the Commission to proceed at once to the Indian subcontinent and there place its good offices and mediation at the disposal of the Governments of India and Pakistan with a view to facilitating the taking of the necessary measures, both with respect to the restoration of peace and order and to the holding of a plebiscite, by the two Governments, acting in co-operation with one another and with the Commission, and further instructs the Commission to keep the Council informed of the action taken under the resolution; and, to this end,

"Recommends to the Governments of India and Pakistan the following measures as those which in the opinion of the Council are appropriate to bring about a cessation of the fighting and to create proper conditions for a free and impartial plebiscite to decide whether the State of Jammu and Kashmir is to accede to India or Pakistan:

A. Restoration of Peace and order

1. The Government of Pakistan should undertake to use its best endeavours:

(a) To secure the withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistani nationals not normally resident therein who have entered the State for the purpose of fighting, and to prevent any intrusion into the State of such elements and any furnishing of material aid to those fighting in the State;

(b) To make known to all concerned that the measures indicated in this and the following paragraphs provide full freedom to all subjects of the State, regardless of creed, caste, or party, to express their views and to vote on the question of the accession of the State, and that therefore they should co-operate in the maintenance of peace and order.

2. The Government of India should:

(a) When it is established to the satisfaction of the Commission set up in accordance with the Council's resolution 39 (1948) that the tribesmen are withdrawing and that arrangements for the cessation of the fighting have become effective, put into operation in consultation with the Commission a plan for with-drawing their own forces from Jammu and Kashmir and reducing them progressively to the minimum strength required for the support of the civil power in the maintenance of law and order;

(b) Make known that the withdrawal is taking place in stages and announce the completion of each stage;

(c) When the Indian forces have been reduced to the minimum strength mentioned in (a) above, arrange in consultation with the Commission for the stationing of the remaining forces to be carried out in accordance with the following principles:

(i) That the presence of troops should not afford any intimidation or appearance of intimidation to the inhabitants of the State;

(ii) That as small a number as possible should be retained in forward areas;

(iii) That any reserve of troops which may be included in the total strength should be located within their present base area."

3. The Government of India should:

"Agree that until such time as the Plebiscite Administration referred to below finds it necessary to exercise the powers of direction and supervision over the State forces and police provided for in paragraph 8, they will be held in areas to be agreed upon with the Plebiscite Administrator.

4. After the plan referred to in paragraph 2 (a) above has been put into operation, personnel recruited locally in each district should so far as possible be utilized for the re-establishment and maintenance of law and order with due regard to protection of minorities, subject to such additional requirements as may be specified by the Plebiscite Administration referred to in paragraph 7.

5. If these local forces should be found to be inadequate, the Commission, subject to the agreement of both the Government of India and the Government of Pakistan, should arrange for the use of such forces of either Dominion as it deems effective for the purpose of pacification."

B. Plebiscite

6. "The Government of India should undertake to ensure that the Government of the State invite the major political groups to designate responsible representatives to share equitably and fully in the conduct of the administration at the ministerial level while the plebiscite is being prepared and carried out.

7. The Government of India should undertake that there will be established in Jammu and Kashmir a Plebiscite Administration to hold a plebiscite as soon as possible on the question of the accession of the State to India or Pakistan.

8. The Government of India should undertake that there will be delegated by the State to the Plebiscite Administration such powers as the latter considers necessary for holding a fair and impartial plebiscite including, for that purpose only, the direction and supervision of the State forces and police.

9. The Government of India should, at the request of the Plebiscite Administration, make available from the Indian forces such assistance as the Plebiscite Administration may require for the performance of its functions.

10.

(a) The Government of India should agree that a nominee of the Secretary-General of the United Nations will be appointed to be the Plebiscite Administrator.

(b) The Plebiscite Administrator, acting as an officer of the State of Jammu and Kashmir, should have authority to nominate his assistants and other subordinates and to draft regulations governing the plebiscite. Such nominees should be formally appointed and such draft regulations should be formally promulgated by the State of Jammu and Kashmir.

(c) The Government of India should undertake that the Government of Jammu and Kashmir will appoint fully qualified persons nominated by the Plebiscite Administrator to act as special magistrates within the State judicial system to hear cases which in the opinion of the Plebiscite Administrator have a serious bearing on the preparation for and the conduct of a free and impartial plebiscite.

(d) The terms of service of the Administrator should form the subject of a separate negotiation between the Secretary-General of the United Nations and the Government of India. The Administrator should fix the terms of service for his assistants and subordinates.

(e) The Administrator should have the right to communicate directly with the Government of the State and with the Commission of the Security Council and, through the Commission, with the Security Council, with the Governments of India and Pakistan and with their representatives with the Commission. It would be his duty to bring to the notice of any or all of the foregoing (as he in his discretion may decide) any circumstances arising which may tend, in his opinion, to interfere with the freedom of the plebiscite.

11. The Government of India should undertake to prevent, and to give full support to the Administrator and his staff in preventing, any threat, coercion or intimidation, bribery or other undue influence on the voters in the plebiscite, and the Government of India should publicly announce and should cause the Government of the State to announce this undertaking as an international obligation binding on all public authorities and officials in Jammu and Kashmir.

12. The Government of India should themselves and through the Government of the State declare and make known that all subjects of the State of Jammu and Kashmir, regardless of creed, caste or party, will be safe and free in expressing their views and in voting on the question of the accession of the State and that there will be freedom of the press, speech an assembly and freedom of travel in the State, including freedom of lawful entry and exit.

13. The Government of India should use and should ensure that the Government of the State also use their best endeavours to effect the withdrawal from the State of all Indian nationals other than those who are normally resident therein or who on or since 15 August 1947 have entered it for a lawful purpose.

14. The Government India should ensure that the Government of the State releases all political prisoners and take all possible steps so that:

(a) All citizens of the State who have left it on account of disturbances are invited, and are free, to return to their homes and to exercise their rights as such citizens;

(b) There is no victimization;

(c) Minorities in all parts of the State are accorded adequate protection.

15. The Commission of the Security Council should at the end of the plebiscite certify to the Council whether the plebiscite has or has not been really free and impartial.

C. General provisions

16. The Governments of India and Pakistan should each be invited to nominate a representative to be attached to the Commission for such assistance as it may require in the performance of its task.

17. The Commission should establish in Jammu and Kashmir such observers as it may require of any of the proceedings in pursuance of the measures indicated in the foregoing paragraphs.

18. The Security Council commission should carry out the tasks assigned to it herein.

Adopted at the 286th meeting.[1]

The five members of the United Nations Commission for India and Pakistan were: CZECHOSLOVAKIA (nominated by India on 10 February 1948); BELGIUM and COLOMBIA (appointed by the Council on 23 April 1948 - see the decision below); ARGENTINA (nominated by Pakistan on 30 April 1948); UNITED STATES OF AMERICA (designated by the President of the Council on 7 May 1948, in the absence of agreement between Argentina and Czechoslovakia on the member to be designated by them).

1 The draft resolution was voted on paragraph by paragraph. No vote was taken on the text as a whole.

Decision

At its 287th meeting, on 23 April 1948, the Council, pursuant to its resolution 47 (1948), appointed Belgium and Colombia as the additional members of the United Nations Commission for India and Pakistan.

Adopted by 7 votes to none, with 4 abstentions {Belgium, Colombia, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics

Resolution adopted by the United Nations Commission for India and Pakistan on 13 August 1948.

(Document No.1100, Para. 75, dated the 9th November, 1948).

THE UNITED NATIONS COMMISSION FOR INDIA AND PAKISTAN

Having given careful consideration to the points of view expressed by the Representatives, of India and Pakistan regarding the situation in the State of Jammu and Kashmir, and Being of the opinion that the prompt cessation of hostilities and the correction of conditions the continuance of which is likely to endanger international peace and security are essential to implementation of its endeavours to assist the Governments of India and Pakistan in effecting a final settlement of the situation,

Resolves to submit simultaneously to the Governments of India and Pakistan the following proposal:

PART I

CEASE-FIRE ORDER

[A] The Governments of India and Pakistan agree that their respective High Commands will issue separately and simultaneously a cease-fire order to apply to all forces under their control in the State of Jammu and Kashmir as of the earliest practicable date or dates to be mutually agreed upon within four days after these proposals have been accepted by both Governments.

[B] The High Commands of Indian and Pakistan forces agree to refrain from taking any measures that might augment the military potential of the forces under their control in the State of Jammu and Kashmir. (For the purpose of these proposals '-forces under their control" shall be considered to include all forces, organised and unorganised, fighting or participating in hostilities on their respective sides).

[C] The Commanders-in-Chief of the Forces of India and Pakistan shall promptly confer regarding any necessary local changes in present dispositions which may facilitate the cease-fire.

[D] In its discretion, and as the Commission may find practicable, the Commission will appoint military observers who under the authority of the Commission and with the co-operation of both Commands will supervise the observance of the cease-fire order.

[E] The Government of India and the Government of Pakistan agree to appeal to their respective peoples to assist in creating and maintaining an atmosphere favourable to the promotion of further negotiations.

PART II

TRUCE AGREEMENT

Simultaneously with the acceptance of the proposal for the immediate cessation of hostilities as

outlined in Part I, both Governments accept the following principles as a basis for the formulation of a truce agreement, the details of which shall be worked out in discussion between their Representatives and the Commission.

A.

(1) As the presence of troops of Pakistan in the territory of the State of Jammu and Kashmir constitutes a material change in the situation since it was represented by the Government of Pakistan before the Security Council, the Government of Pakistan agrees to withdraw its troops from that State.

(2) The Government of Pakistan will use its best endeavour to secure the withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistan nationals not normally resident therein who have entered the State for the purpose of fighting.

(3) Pending a final solution the territory evacuated by the Pakistan troops will be administered by the local authorities under the surveillance of the Commission.

B.

(1) When the Commission shall have notified the Government of India that the tribesmen and Pakistan nationals referred to in Part II A2 hereof have withdrawn, thereby terminating the situation which was represented by the Government of India to the Security Council as having occasioned the presence of Indian forces in the State of Jammu and Kashmir, and further, that the Pakistan forces are being withdrawn from the State of Jammu and Kashmir, the Government of India agrees to begin to withdraw the bulk of their forces from the State in stages to be agreed upon with the Commission.

(2) Pending the acceptance of the conditions for a final settlement of the situation in the State of Jammu and Kashmir, the Indian Government will maintain within the lines existing at the moment of cease-fire the minimum strength of its forces which in agreement with the Commission are considered necessary to assist local authorities in the observance of law and order. The Commission will have observers stationed where it deems necessary.

(3) The Government of India will undertake to ensure that the Government of the State of Jammu and Kashmir will take all measures within their power to make it publicly known that peace, law and order will be safeguarded and that all human and political rights will be guaranteed.

C.

(1) Upon signature, the full text of the Truce Agreement or communique containing the principles thereof as agreed upon between the two Governments and the Commission, will be made public.

PART III

The Government of India and the Government of Pakistan reaffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will of the people and to that end, upon acceptance of the Truce Agreement both Governments agree to enter into consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured.

The UNCIP unanimously adopted this Resolution on 13-8-1948.

Members of the Commission: Argentina, Belgium, Colombia, Czechoslovakia and U.S.A.

Personal torment.

"I’m affiliated with the rights movement of the Pakistani peripheries since 1993. I had to leave my native homeland in 2000. And start living at Brussels. Was the first person to initiate lobbying at the Europeen Parliament along with Sardar Shaukat Ali Kashmiri and other Hrs defenders.from 2010 onwards have been highlighting rights violations in Pakistani Administered Jammu and Kashmir and Gilgit- Baltistan.

"Have travelled throughout EU- capitals to lobby and organise Jammu and Kashmir diaspora. Due to these political activities I’ was blacklisted as mentioned by you Mr. Chair. At present pakistan has declared me persona non grata. In fact it is an honour for a political and human rights activist that my peaceful struggle has been regarded.

"But on the other hand it is mockery of the Pakistani stance with regard to its ostensible claim on supporting right to self- determination of the people of Jammu and Kashmir. Blacklisting me and especially the due legal course isn’t followed. It’s quite unusual that any embassy may take such decision against any person living abroad."

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