Oppression leads to breach of peace and security
To save succeeding generations from the scourge of wars”are amongst the first words of the UN Charter in its Preamble, and was the main motivation for the creation of the United Nations. These motivational words were coined by the founders of the United Nation, who saw and lived through the devastation of the two World Wars by 1945. Thus, the object for the United Nations being created in 1945 was to prevent disputes or to help restore peace following the outbreak of any armed conflict and to promote lasting peace in societies.
In the recent past,the world saw one of the permanent members having veto power, in “Aggression” against Ukraine. The war of Yemen, where Saudi Arabia with the blessing of the powerful, continue to cause misery and destruction there. We have seen breach of peace in the world,powerful states attacking various smaller and weaker countries, for material gains or for reasons of their security. The members of the United Nation, instead of calling for peace and moving to secure peaceful existence of the weaker nations, have subscribed to such wars. The destruction of Libya, Iraq, Kuwait, Afghanistan are some examples of ‘Aggression’ causingbreach of peace in the world.
A dispute as old as the United Nations
One of the first such disputes after the second World War was Kashmir dispute, where the United Nations Security Council intervened on account of its mandate to save the succeeding generations from the scrouge of war, thus stopping the war between India and Pakistan and by passing the famous resolution of the Security Council being 38 and 39 of 1948.The resolution called for the war to stop immediately and required peace to prevail. In the 287th meeting on the 23rd of April 1948, the UNSC passed Resolution 47 of 1948 which ruled that the people settled in Jammu and Kashmir shall have the right to decide their own fate through a plebiscite. The responsibility was given to India to arrange the Plebiscite to be conducted under the supervision of the United Nations.
Additionally, observers were appointed on both sides of the ‘Line of Control’. It was in that resolution stated that India agreed to appoint a nominee of the Secretary General of the UN for the conducting of the plebiscite, where the nominee would be the Administrator giving him full authority. Thus, the State of Jammu and Kashmir was not considered to be a part of India, though the said Resolution did allow India to keep minimum forces there. There have been 13 Resolutions of the UNSC till 1971 reiterating the Resolution 47 of 1948 to be acted upon. It is simply unfortunate that the UN hasn’t yet forcedits Resolutions to be implemented in its letter and spirit since 1948 till date.
The dispute continued, for that reason,India and Pakistan have since been engaged in two wars and numerous skirmishes, the recent being the aggression by Indian Airforce, by entering Pakistaniterritory, where the Indian plane was shot down and the Indian Pilot was captured. Wars in the world commenced and ended. Vietnam War continued for 20 years however, ended and since then the said country continues to progress. The Iraq War, the Kuwait War continued but has since been concluded and the said countries continue on the path of progress. The war in Afghanistan has concluded, but continues to be isolated from the world being a weak country. Lebanon and Palestine remain at war with Israel without any intervention from the United Nationsdespite the many resolutions of the UNSC in that regard. Similarly, the dispute in Kashmir remains unsolved.
Sadly, the voices of the Kashmiris are muffled by the oppressive attitude of India. Kashmir is a Stateless nation where, in 1947 the Ruler of Kashmir Maha Raja Hari Singh signed an Instrument of Accession which was accepted by Lord Mountbatten of Burma, then the Governor General of India, whereby, it was categorically stated:
I hereby declare that I accede to the Dominion of India on the assurance that if an agreement is made between the Governor General and the ruler of this state whereby any functions in relation to the administration in this state of any law of the Dominion Legislature shall be exercised by the ruler of this state, then any such agreement shall be deem to form part of this Instrument and shall be construed and have effect accordingly.
The terms of this my Instrument of accession shall not be varied by any amendment of the Act or of the Indian Independence Act 1947 unless such amendment is accepted by me by an Instrument supplementary to this Instrument.
Nothing in this Instrument shall empower the Dominion Legislature to make any law for this state authorizing the compulsory acquisition of land for any purpose, but I hereby undertake that should the Dominion for the purposes of a Dominion law which applies in this state deem it necessary to acquire any land, I will at their request acquire the land at their expense or if the land belongs to me transfer it to them on such terms as may be agreed, or, in default of agreement, determined by an arbitrator to be appointed by the Chief Justice Of India.
Jammu & Kashmir, not an Indian territory
In view of this only, the defence, the currency and foreign policy of Jammu & KashmirState was given to the State of India however; there was a serious dispute as to this accession by the people of Kashmir who were predominantly Muslims. This led to uprising which was initially crushed by force by the Indian Army, followed by a war between Pakistan and India in December 1947, as a part of Kashmir within the area controlled by Pakistan, whereafter, the matter was taken up at the UNSC and the aforesaid resolutions were passed.
Serious resentment continued and continues till date. It is the Indian Army, Police and other forces that are and continued to be posted by India in Jammu and Kashmir with a view to crush the uprising or freedom fight. India callsthese Freedom Fighters as terrorists. It is said that one man’s terrorist is another man’s freedom fighter.
India has continued to keep itself away from the International Criminal Court by not having subscribed to the ICC Statute, for obvious reasons,thus; the jurisdiction of the International Criminal Court is barred as against India and its citizens. By this, India continues to create crime against humanity, murder, extermination, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rights rules of international laws, torture, rape, sexual slavery, sexual offences, persecution against all the identifiable groups, enforced disappearances of parsons and other inhuman acts including terror by use of brutal force including the use of Pellet Guns and other fire arms killing thousands of people amounting to genocide in the occupied Jammu and Kashmir.
Jammu & Kashmir has its own Constitution and a State within its own right, though presently under control of India on account of the UNSC Resolution No. 47 of 1948. In the Constitution of India, Article 370 was introduced whereby, it was provided that the Parliament needed the consent of the government of Jammu and Kashmir for applying a law of India except for the laws of Defence, Foreign Affairs, Finance and Communication. The laws of citizenship, ownership of property, and fundamental rights of the residents of Jammu and Kashmir is different from the residents of India. Under Article 370, citizens of India cannot buy property in Jammu and Kashmir. However, by the blatant action by India the provision was done away with, and the Constitution of India was made applicable to Jammu and Kashmir, making the area as Union Territories of India. India violated the Resolution 47 of 1948 and all subsequent resolutions of the UNSC. The UNSC for political reasons keeps quiet, despite its mandate to cause peace for the oppressed.
Article 35(A) and Jammu & Kashmir
Article 35A of the Constitution provided that the Jammu and Kashmir Legislature has full discretionary power to decide the ‘permanent residents’ of the state of Jammu and Kashmir. It gave them the special right and privileges regarding employment with the State Government, acquisition of property in the state, settling in the state and other similar rights. The provision has now been taken away. Thus, has by ‘Aggression’ annexed the State of Jammu and Kashmir, which could not have been done in terms of the UNSC Resolutions, which gave the power to the people of Jammu and Kashmir to choose through an UN controlled Plebiscite. The question thus is as to why the United Nations keeps quiet, especially when the Charter of the UN in Chapter VII clearly provides for action with respect to Threat to the Peace, Breaches of Peace and Acts of Aggression.
Knowing all this, it is apparent and clear that Jammu and Kashmir was dealt with as a State, controlled byIndia, it not being the Union of India, had a special position on account of its being a disputed territory. In 2019, India on the basis of Article 370(3) caused the said Article to be revoked and made the State of Jammu & Kashmir including Ladakh, as two Union territories, controlled and governed now by the Government of India under the Constitution in its entirety, whereby, the special status of Kashmir being a State itself under its own Constitution was taken away thus, by force and coercion annexed by India unlawfully, by force causing its armed forced and para-military to take over the same despite serious riots against the unlawful annexation.
It is also unfortunate that India has closed the entire State of Jammu and Kashmir, made a defacto prison, violating the Geneva Convention, which relates to the treatment of ‘Protected Persons’, being the Kashmiris. It could be disputed that Kashmir was not a product of War, but may I remind the audience that the State of Jammu and Kashmir is a disputed territory, being so declared by the UNSC, being a consequence of the aggression by India, in sending their forces to stop the indigenous uprising there, blaming Pakistan in 1948. It is after India sent in their troops did Pakistan move their forces. This conflict has caused two wars between India and Pakistan and numerous Line of Control violation by India. The Indians openly claim aggression against Pakistan, have violated the Pakistan air space. Peace has, continues and can further be breached, and that is the main issue. It is mandated upon India under the Geneva Convention to protect the said ‘Protected Persons’ which is being violated by India.
UNCHR cannot under the said Convention be restrained from entering the area. India chooses not to allow the UNCHR from entering the area. Phones have been restricted, Media and Press are not allowed so that they cannot cause the real condition to be reported. But the world and the UNSC keeps quite over all the violations.
United nations & kashmir
It is the duty of the members of the United Nations to assume responsibility for the administration of the State of Jammu and Kashmir. The principle that ‘might is right’ cannot be allowed in the presence of the numerous UNSC Resolutions. The UN has to take action to take the issue in their hands and free the prisoned Kashmiris. We are aware that the International Trusteeship System enshrined in Articles 75 to 91 of the UN Charter have not been tested nor activated. One fails to understand as to why the UN chooses not to implement the Trusteeship System in the said State of Jammu and Kashmir, where India has acted in complete violation.
The United Nations General Assembly Resolution 3314 has defined the term “Aggression”, being the use of armed forces by a State in contravention of the Charter would be an act of “Aggression”. The State of Jammu & Kashmir being a disputed territory, a State having its own Constitution was annexed by the armed forces of India thus being in contravention of the Charter of the United Nations. Article 5 of Resolution 3314 also provides, that no consideration of whatever nature whether political, economic, military or otherwise may serve as a justification for aggression and no territorial acquisition of special advantage resulting from aggression is or shall be recognized as lawful. Article 7 clearly states and allows the right of self-determination, freedom and independence. Resolution 47 of 1948 clearly provides for a self-determination which India resists till date. The Charter of the United Nations categorically provides that the formation of United Nation was to protect the scourge of war and create peace in the world. Such an aggression, whether it be by Russia in aggression against Ukraine or annexation of Crimeaor war in Afghanistan, Iraq, or Libya is in no way acceptable. It is the United Nation which needs to protect and cause its own Resolutions to be implemented if peace is to be guaranteed in the various regions of the world.
It is genuinely unfortunate that the United Nation has now become a platform for political maneuvering rather than diplomacy and having power to cause to implement its resolutions for the purpose of achieving peace. Permanent Members of the United Nation need to think over this critical issue and deal with it strictly in accordance with the Charter of United Nation and various Resolutions passed by it, such that each Resolution is implemented in terms of Chapter VII speciallyArticles 39 to 51 its Charter. In the end, whether these members choose their countries’ prosperity over the charter and the very reason for UN’s existence, poses a great responsibility upon them.
