By Muhammad Abdul Qadeer
The government of India blames Pakistan for not fulfilling the preconditions for a plebiscite in Jammu and Kashmir (J&K). It maintains that plebiscite was “conditional upon Pakistan fulfilling Parts (I) & (II) of the United Nation’s resolution of August 13, 1948 which required Pakistan to withdraw its troops and to secure the withdrawal of both tribesmen and Pakistani nationals” from Jammu and Kashmir. India would then withdraw, “the bulk of its forces once the UN Commission confirms that the tribesmen and Pakistani nationals and Pakistani troops are being withdrawn.” The government of India believes that Pakistan never fulfilled these commitments and argues, because Pakistan did not withdraw its troops from the state, normal conditions under which a plebiscite could be held were never created.
The Indian argument does not rest on real principles of plebiscite as determined by the United Nations Commission for India and Pakistan (UNCIP) Resolution of August 13, 1948. A United Nations Mediatory Report on Kashmir submitted in October 1967 by UN representative, Dr Frank P. Graham noted in detail that in the provisions of part II of the August 13, 1948 resolution, the requirement for the withdrawal of all the Pakistani forces was related to the required withdrawal of the bulk of Indian forces in stages to be agreed upon by India and the UN Commission. The report stated that such an agreement was never reached between India and the UN Commission and the Indian failure and that of the UN Commission became the reason for Pakistan to not withdraw all its troops from the state. This report also noted that Pakistan withdrew some of its forces from Kashmir. However, it could not withdraw its remaining forces from Kashmir due to India’s failure to reach an agreement with the UN Commission, or its successors, on related withdrawals of the Indian forces provided in B 2 of part II of the August 13, 1948 resolution. The report also noted that Pakistan had accepted even as India rejected most of the basic proposals of the several UN mediators for resolving the deadlock in demilitarisation.
This paper will analyse the persistent deadlock in the process of demilitarisation that became the reason for the non-implementation of the UNCIP resolution of August 13, 1948, which were the basis for holding plebiscite in the state. The first part of this paper will examine the UNCIP resolution of August 13, 1948 and will discuss in detail the deadlock involved in the two stages of demilitarisation explained in the 1967 UN Mediatory report by Frank P. Graham. The second part will analyse how the Kashmiris right to self-determination was affected after 9/11 terrorist attacks in the US, when India managed to capitalise the Global War on Terrorism in the Kashmir situation. The third part will examine the law on belligerent occupation and the liberation wars under international humanitarian law.