Back to Simla....forward to peace ? | Newsline magazine

September 2013

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

Our neighbour's acceptance of multi-lateralism is selective. On trade and WTO, laws of the sea and air, currency, finance, telecommunications et al, 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, recognizes international arbitration to resolve differences on water issues.

However, on Kashmir, for the past 40 years since Simla, India has insisted on a bilateral approach. A systematic global campaign has been conducted 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 27th August 2013 that Kashmir was no longer an international issue, that since Simla, it had long become and remains a bilateral matter between the countries.

Pakistan needs to remind India and the world at large that the Simla agreement does not exclude multi-lateralism.Nor do problems simply " go away " merely because the world or world media lose interest in them.

At three crucial points, the Simla accord affirms the importance of applying an international perspective to relations between 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 multi-lateralism 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 recognizing multi-lateralism 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 ". Which 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. Which is not to absolve Pakistan of its own share of responsibility. But at least in Pakistan's case, there is a willingness to use multi-lateral means to seek peace.

A third reiteration of international principles and processes being relevant to both countries is made in sub-clause (vi) of Article 1 of the Simla accord which reads : " 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 multi-lateralism 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. That requires separate reflection. The four decades between the signing of Simla and the LOC situation in August 2013 have been marked by several initiatives by both sides to use bilateral means to tackle Kashmir.

Yet such initiatives stall, sooner or later. Extremist organizations on both sides of the LOC, or in both countries are increasingly able to hold the two States hostage to their terrorism or violence. And such extremist outfits are not necessarily all non-State actors ! Some years after the massacre of 30 Sikhs in Chattispura in Indian-occupied 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 operations 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 the book on this subject by Arundathi Roy.Official operatives covertly working with extremists have been exposed as the actual crafters 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 November 2008 massacre of over 160 persons by a team of murderers trained reportedly 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, as do even States friendly with each other( a la Americans and Israelis on nuclear secrets, a la the electronic surveillance of its allies by the USA, etc ). Leave alone States like 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 Siachin. 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 recognized 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. "

While the LOC in 1972 was delienated, the area north of the map co-ordinate known as NJ 9842 is glacier-filled and encased in steep, inhospitable mountainous landscapes difficult to demarcate. There was a general tacit understanding between both countries and amongst overseas analysts and governments that neither side would by itself attempt to define a line of control, that consultation would be undertaken.

But on 13th April 1984, with Operation Meghdoot, Indian forces took control of the Saltoro Ridge and the 70 km. length of the Siachin glacier, alongwith 3 high altitude passes, in effect taking over about 2,400 square kilometres of Kashmiri territory. This action represented a direct violation of sub-clause (ii) of Article 4 of the Simla accord, as quoted above,that prohibits arbitrary changes to the LOC. The action also contradicted the principle of bilateralism. Apart from the fact that in 1984 there was no military threat or conflict either on the international border or even in other sections of the defined, mutally agreed LOC. The rest is continuing history.

Unable to deal politically and peacefully with the hard reality of the authentically indigenous uprising in Indian-administered Kashmir in 1989, India began to militarize 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 unethical ( one may well ask : since when do States respect ethics ? ! ) advantage of the Ceasefire agreement of 2003, India resumed and completed construction in 2004 of a strong fence stretching over 464.6 kms of the total length of about 674.6 km.of the LOC . The Indian fence is more than just barbed wire that can be easily cut. This is a highly sophisticated structure. 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 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. They presumably 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-adminstered 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 as they magically glided over the strong double-row of fences, there was also the unanswered question as to how they could proceed undetected in a heavily militarized 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 counter-part. 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.

One version ( as yet unverified ) on the local media grapevine is that the episode of the killings of the Indian soldiers was possible retaliation by local residents alienated by inappropriate advances attempted on one or more village women by Indian soldiers.

Be that as it may : 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 multi-lateralists, except where they retain dominant status, as in NATO. Even Pakistan's dear 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 one. 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 which 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. 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 Siachin section of the dispute. So substantive has the Indian Army become ---with India being the world's largest importer of arms --- that it 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 special status to Kashmir and declare it to be an inalienable part of its territory. Whereas 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. On prior notification of missile tests; on regular exchange of information on nuclear installations ;on trans-LOC travel, transport, trade; on more relaxed visa regimes ; on increased people-to-people exchanges . But on Kashmir, for various reasons, for over 40 years, bilateralism has been unable to forge ahead.

A shift from bilateralism to multi-lateralism 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 that it detracts from India's civilizational stature as a richly pluralist society that is officially secular .Careful, dextrous, sustained leadership is needed. The task is 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 ---which 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. (The writer is a former Senator and Federal Minister and is a member of the longest-running---since 1991 --- Pakistan-India Track 2 Dialogue known as the Neemrana Initiative).