September Issue 2013

If the Line of Control (LoC) crisis in January and August of 2013 is seen as only the latest evidence of the failure of bilateralism to resolve the Indo-Pak dispute, then a return to the full text of the 1972 Simla Agreement may actually offer a way forward to peace through multilateralism.

Our neighbour’s acceptance of multilateralism is selective. On trade and WTO, laws of the sea and air, currency, finance, telecommunications etc, India abides by the discipline and decisions imposed by global agreements, including modes for dispute resolution. Even in the bilateral Indus Waters Treaty, India accepted World Bank mediation and, over 50 years later, still recognises international arbitration to resolve differences on water issues.
However, when it comes to Kashmir, for the past 40 years since Simla, India has insisted on a bilateral approach. A systematic global campaign has been conducted by India to convince the world that Pakistan has also agreed to using only the bilateral method. Almost crooning with delight at the success of this campaign, the spokesman for India’s Ministry of External Affairs said in Hyderabad, India on August 27, 2013 that Kashmir was no longer an international issue and that since Simla, it had long become and remains a bilateral matter between the two countries.

The post-9/11 fall-out in Pakistan, including the situation in Afghanistan, the spiraling of terrorism and the eruption of new conflicts elsewhere are also cited as reasons why the world is allegedly no longer interested in Kashmir.
Pakistan needs to remind India and the world at large that the Simla Agreement does not exclude multilateralism. Nor do problems simply go away because the world, or the world media, loses interest in them.

At three crucial points, the Simla Agreement affirms the importance of applying an international perspective to relations between the two states. Article 1, sub-clause (1) reads: “…the principles and purposes of the Charter of the United Nations shall govern relations between the two countries.” The first two Articles of the UN Charter in Chapter 1, titled ‘Purposes and Principles,’ enshrine the concept and application of multilateralism for conflict prevention, management and resolution. Article 1 of the UN Charter, in part, reads: “The purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace…and to bring about by peaceful means…adjustment or settlement of international disputes or situations…”

After recognising multilateralism as the conceptual foundation for inter-state relations, Article 1, sub-clause (ii) of the Simla agreement reads: “… the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them…” The determinant factor is that alternative means, other than the bilateral method, need to be “mutually agreed upon.” And this is where India shows no willingness to agree. Because, for obvious reasons, unlikely to be ever admitted but nevertheless real, a third party is sure to assign responsibility where it is due.

A major share of the responsibility for the Kashmir dispute, and for the lack of meaningful, sustained progress towards its resolution lies with India. It is not to absolve Pakistan of its own share of responsibility, but at least in Pakistan’s case, there is a willingness to use multilateral means to seek peace.

A third reiteration of international principles and processes relevant to both countries is made in sub-clause (vi) of Article 1 of the Simla Agreement, which reads: “…in accordance with the Charter of the United Nations, they (both sides) will refrain from the threat or use of force against the territorial integrity or political independence of each other.”

The Indian position on multilateralism is heavily laden with irony. It was Prime Minister Nehru’s government that first took the dispute to the United Nations in 1948. We need not, at this time, delve into the period between then and 1972, as it requires separate reflection. The four decades between the signing of Simla and the present LoC situation have been marked by several initiatives by both sides to use bilateral means to tackle the Kashmir issue.

India contends that it is the Pakistan Army that opposes enduring reconciliation and subverts any civilian political attempts to do so. Assuming that this debatable contention is valid, then an independent international role in the conflict settlement process becomes all the more necessary. Because, if true, the covert negative Pakistani military role could be formally certified and exposed to the whole world. Rendered by a neutral entity, such a finding would be binding and conclusive.

Yet such initiatives tend to stall, sooner or later. Extremist organisations in both the countries are increasingly able to hold the two states hostage to their terrorism. And such extremist outfits are not necessarily all non-state actors! Some years after the massacre of 30 Sikhs in Chattispura in Indian-administered Kashmir, perpetrated on the eve of President Clinton’s visit to India and Pakistan in March 2000, it was revealed that the brutal act was actually committed by operatives of the Indian intelligence agency RAW, who masqueraded as Muslim extremists in order to defame Pakistan and discourage the American President from visiting Islamabad.

Fundamental questions about prior links between the Indian intelligence apparatus and Afzal Guru, the man eventually hanged for the terrorist attack on the Indian Parliament building in New Delhi in December 2001 (instantly ascribed to Pakistani support) remain unanswered: 13 questions are powerfully formulated in a book on this subject by Arundathi Roy. Official operatives covertly working with extremists have been exposed as the real masterminds of the Samjhota Express tragedy in which 75 Pakistanis were burnt to death. Punitive action against the guilty is strangely slow. In the case of the Mumbai massacre of over 160 persons in November, 2008 by a team of murderers, trained allegedly on Pakistani soil by our own extremist elements, there is understandable Indian impatience at the slow speed of the trial of the accused.

Such instances of both state and non-state elements possibly being involved in sabotaging peace moves are precisely why a third party role becomes vital, even more so in a complex dispute such as Kashmir.
All states speak with forked tongues. This leaves little hope for Pakistan and India, whose adversarial relationship began with the very genesis of the two entities in 1947.

In Kashmir, in particular, India breached the trust placed by Pakistan in giving bilateralism a chance, by what it did in Siachen. Article 4, sub-clause (2) of the Simla Agreement reads: “In Jammu and Kashmir, the line of control resulting from the ceasefire of December 17, 1971 shall be respected by both sides without prejudice to the recognised position of either side. Neither side shall seek to alter it unilaterally irrespective of mutual differences and legal interpretations. Both sides further undertake to refrain from the threat or the use of force in violation of this line.”

But on April 13, 1984, with Operation Meghdoot, Indian forces took control of the Saltoro Ridge and the 70-km length of the Siachen glacier, along with 3 high altitude passes, in effect taking over about 2,400 square kilometres of Kashmiri territory.

Unable to deal politically and peacefully with the hard reality of the authentically indigenous uprising in Indian-administered Kashmir in 1989, India began to militarise the entire part of the disputed territory under its control to unprecedented levels. To prevent the UN Military Observer Group stationed in Srinagar (and in Muzaffarabad) since 1948 from providing independent, third-party verification on the origins of incidents on the LoC, India once more acted arbitrarily. It ended access to the LoC for the UN Military Observers. Whereas Pakistan, so often accused of aiding and abetting infiltration across the LoC by armed fighters, continues to facilitate such access without interruption.

Taking advantage of the ceasefire agreement of 2003, India resumed and completed construction of a strong fence in 2004, stretching over 464.6 km of the total length of about 674.6 km of the LoC. This Indian fence is more than just barbed wire that can be easily cut. It comprises two rows of posts 8 to 12 feet in height with sharp concertina wiring. The fence is “…electrified, connected to a network of motion sensors, thermal imaging devices, lighting systems and alarms…to promote fast alerts to Indian troops in case there is an intrusion…the land between the two rows of fences is heavily mined…” Yet, India accuses Pakistan of aiding infiltrators who surely must be an extraordinary species able to circumvent such strong fortifications. Presumably, they simply take to the air and jump across the fence and do so without alerting Indian troops.

The incident that sparked the current situation features remarkable anomalies. Initial reports from India said that men dressed in Pakistan Army uniforms at a location some distance inside Indian-administered Kashmir killed 5 soldiers of the Indian Army. Apart from the foolishness of any genuine Pakistani Army men donning their uniforms to enable easy identification, there was also the unanswered question as to how they could proceed undetected in a heavily militarised area. And supposedly having committed the killings, then calmly walk or glide back to safety in Azad Jammu & Kashmir! Further, during the regular telephone hot-line consultation between the Directors of Military Operations conducted at the brigadier level on/after 6 August 2013, there was no such incident reported by the Indian side to his Pakistani counterpart. It was only later when the Directors-General of Military Operations (at the Major-General level) held their hot-line conversation that the incident was reported, like an after-thought.
The presence of independent, neutral UN Military Observers on the Indian side of the LoC would have ensured a credible, mutually acceptable version that would have prevented escalation.

Large states are reluctant multilateralists, except where they retain dominant status, as in the case of NATO. Even Pakistan’s close friend, China, in the case of the maritime disputes in the East China Sea, prefers bilateral negotiations to collective approaches. The reluctance of large states is, to some degree, understandable. They do not want the smaller states to gang up and find common cause against the big ones. Thus, at the inception of SAARC in 1985, India insisted that bilateral issues be excluded from the ambit of the regional body so that it could deal with each South Asian country separately and use its pre-ponderant size and resources to its advantage.

India contends that it is the Pakistan Army that opposes enduring reconciliation and subverts any civilian political attempts to do so. Assuming that this debatable contention is valid, then an independent international role in the conflict settlement process becomes all the more necessary. Because, if true, the Pakistani military’s covert and negative role could be formally certified and exposed to the whole world. Rendered by a neutral entity, such a finding would be binding and conclusive. Pakistan could not then reject the allegation as being merely hostile propaganda by India.

From our viewpoint, the reverse seems to be true! Visible indicators, as in the aborted 1989 accord, and off-the-record remarks suggest that it is the Indian Army which vetoes any political attempt to settle the Siachen section of the dispute. India is now the world’s largest importer of arms and it appears that the Indian Army has developed its own vested interest in maintaining a certain degree of palpable tension with Pakistan.

To pre-empt an external role, India adopted Article 370 of its Constitution and enacted resolutions in Parliament to give a special status to Kashmir and declare it to be an inalienable part of its territory.

But Kashmir remains on the unfinished agenda of the UN Security Council to this day, and will possibly become one of several obstacles to India’s aspirations for permanent membership of that forum.

To advocate multi-lateralism specifically for Kashmir is not to devalue bilateralism. Direct, one-to-one processes have led to enduring agreements such as on prior notification of missile tests; on regular exchange of information on nuclear installations; on trans-LoC travel, transport and trade; on more relaxed visa regimes; and on increased people-to-people exchanges. But on Kashmir, for various reasons, for over 40 years, bilateralism has been unable to forge ahead.

 India adopted Article 370 of its Constitution and enacted resolutions in Parliament to give a special status to Kashmir and declare it to be an inalienable part of its territory. But Kashmir remains on the unfinished agenda of the UN Security Council to this day, and will possibly become one of several obstacles to India’s aspirations for permanent membership of that forum. 

A shift from bilateralism to multilateralism on Kashmir is a formidable task. A re-shaping of public and political opinion in India is required. India has to be persuaded that acceptance of a third-party role in Kashmir in no way diminishes its rightful status as the world’s largest democracy. Nor does it detract from India’s civilisational stature as a richly pluralistic society that is officially secular. In fact, there are several elements of society who wish to apply a moderate and balanced policy towards Pakistan. The task is still likely to take 10 to 15 to even more years. Or given strong, sincere leadership, far less time. Though the change has to take place in India, the onus for initiating the shift lies with Pakistan, which, as per Prime Minister Nawaz Sharif, considers Kashmir to be the jugular vein of Pakistan.

A fair and equitable settlement of the Kashmir dispute facilitated by a neutral third party or parties — not necessarily the UN — is likely to require unavoidable adjustments and compromises on both sides, and with the participation of the people of Jammu and Kashmir, for the larger cause of enduring peace can transform adversaries into allies. Over 1.4 billion human beings will directly benefit. Taking one step back to the complete provisions of the Simla Agreement could actually help both countries take a giant leap forward.