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Kashmiri Hindu genocide - Pakistan's complicity in terrorism
Folks:
The next three parts of this posting is a pamphlet I came across
recently. This was titled "Pakistan's Complicity in Terrorism in J & K".
This represents the legal opinion of the advocate, A. G. Noorani.
This pamphlet provides a legal basis for indicting Pakistan in the
terrorist phenomenon currently ravaging in J & K which led to the
uprootment of Kashmiri Pandits from their ancestral homeland and are
currently living under (concentration) camp-like conditions in India.
I thought this information will be of use in understanding
the current crises in J & K.
- Kanwal K Dhar kanwal@mbcl.rutgers.edu Sun Feb 27 17:48:03 CST 1994
Pakistan's Complicity in Terrorism in J &K
The Evidence and the Law
Legal opinion by
A.G. NOORANI
Advocate
There is overwhelming and incontestable evidence of Pakistan's direct
complicity in the preparation, initiation and continuous assistance to
terrorism in Kashmir over a significant period in a form which is beyond
challenge. It consists of admissions by both the leaders of the terrorist
movements residing in Pakistan as
well as by the persons they aid and instruct in Kashmir, the leaders of the
militant groups. To add to this direct evidence, there are reports by
responsible correspondents not only in the international press but in the press
in Pakistan as well. Ordinarily in cases of foreign assistance to terrorism
within a country, while the aid is susceptible to proof because of the capture
of men and material, the planning and preparation that went on earlier in the
neighboring State is almost impossible to prove. It is a singular feature of
Pakistan's complicity in terrorism in Kashmir that there is clinching proof of
the initial processes of preparation and guidance as well. There is a
remarkable coincidence in all credible reports-from altogether different and
independent sources- of the period when Pakistan began to concern itself in
right earnest about launching such an operation within Kashmir, 1984, the
manner in which it went about it-enlisting the services of the Jammu & Kashmir
Liberation Front, splitting this body and establishing a rival, Hizbul
Mujahideen-and, indeed, the precise date on which the JKLF struck admittedly in
execution of a plan that had long been in the making, July 31, 1988.
Proof of this earlier phase of Pakistan's complicity is as direct and complete
as it is of the subsequent developments from July, 31, 1988 to now, three years
later. In both phases the
Inter-Services InteIIigenences (ISI) of Pakistan pIayed a dominant role.
The chairman of the JKLF AmanuIIah Khan reveaIed in a interview to Zahid
Hussain of the Karachi monthly News line of February 1990 how far back the
planning had begun in answer to a specific question: "How did you mobilize the
uprising ? Was it a long term plan ?" He replied "Yes, it, was .. it had to be
well-prepared and well-planned So we actualIy started politicaI planning in
1986 and continued till the end of 1987. For one and a haIf years we were
planning our strategy and it began in July 1988 " Asked "Was guerrilla training
part of the preparations ?", he replied "Yes, there was training.
Amanullah Khan mentioned precisely that "it started on July 31, 1988 and it
went on. There were bomb explosions "
In an interview to Sunday a weekly published from Calcutta, in its issue of
March 18,1990, he repeated "Our armed struggle started on July 31,1988 , by
blasting three buildings belonging to the Government of India in Srinagar"
The interviewer mentioned that Khan is "normally based in Karachi where he
runs a school" It is unthinkable that he could have embarked on operations
such as these for some years without the knowledge, approval and assistance
of the Government of Pakistan.
Significantly, he mentioned 1986 as the year in which he "actually started
political planning". For it was On December 15, 1986 that he was deported by
the British Government to Pakistan. In 1985 he had been arrested and
prosecuted under
the Explosive Substances Act, 1983 but was acquitted on September 19, 1986. He
was re-arrested immediately thereafter and served with a deportation order
which survived legal challenges in the High Court and the Advisory Panel which
reviews deportation orders.
1986 is very relevant for another reason, besides. Hashim Qureshi was once a
leading operative of the JKLF and had shot into limelight in 1971 when he
successfully hijacked an Indian Airlines aircraft to Pakistan. He has since
settled down in Amsterdam from where he wrote a series of articles to a
Srinagar weekly Chattan in November 1988. Excerpts translated into English were
published by O.N. Dhar in The Statesman of April 19, 1989.
Qureshi revealed that the Pakistani Military intelligence had started preparing
for its new phase of training and arming of Kashmiri youth as far back as in
1984. He said: "The military wanted to use us, i.e. the liberation front in the
Indian part of Kashmir. For this purpose word was sent to us during May-June
1984 for discussions. Since I happened to be the Chairman of the organizing
committee of the front at the time, the negotiations with the authorities were
held under my leadership. I and my colleague, Mr. Ansari, made it clear that
our aim was to achieve an independent Kashmir which could be the only solution
of
the problem.
"We talked and held discussions for three months and just when we had begun to
think that the Pakistani military negotiators were perhaps beginning to
appreciate our viewpoint, they had a surprise in store for us. In the final
round top officials told us in clear terms that all that we (KLF) ought to
concern ourselves with should be to get young
---
men from across the border and hand them over to any of our military posts.
These young men, we were told, would be taken care of by the military, trained
by it and then sent back. We were asked to utilize all our influence and energy
in the task of getting such young men. All the four of us in the negotiating
committee namely, myself, Dr. Hyder, Rashid Hasrat and Z.H. Ansari, felt
infuriated and told the military officer in no uncertain terms that we are not
agents but revolutionaries. (As will be mentioned later, page 12, Qureshi's
account was fully corroborated two years later by a disclosure in a Kashmir
weekly Friday Times.)
"We cannot be your agents. Nor can we fetch agents for you." The talks broke
down and following this my life was made miserable to such an extent that I had
to flee Pakistan along with my family. I have come to know that the present
leadership of the Liberation Front later entered into a compromise with the
authorities and a secret drive was started to fetch agents. In this connection
I have received information from Srinagar also."
Khan's interview to Zahid Hussain (Newsline , February 1990) fully corroborates
Qureshi's account. Having failed with Qureshi in 1984, the ISI turned to Khan
on return to Pakistan in 1986. He accepted eventual accession to Pakistan under
the cloak of independence. "My experience tells me that we will not be able to
enroll international support on the issue of accession, even among friends of
Pakistan... It becomes a territorial dispute in which no one will intervene.
Whereas if it is a movement for national liberation, then it will generate
international public opinion. It becomes a matter of conscience and can gain
the UN's support."
---------
Like Amanullah Khan, Dr. Farooq Hyder, Vice-Chairman of the JKLF, also
co-operated with the ISI. He told a correspondent of The Economist (London;
June 9,1990): "We chose Srinagar and the Kashmir valley as the first stage of
our attack. What has happened so far is the urban phase, mostly sabotage and
hit-and-run tactics". The correspondent reported "The doctor claims the Front
has 10,000 armed supporters" .
The question brooks no evasion since Dr. Hyder "lives in Rawalpindi", virtually
a suburb of Pakistan' s capital Islamabad, could he have embarked on such
operations without the Government's approval and assistance? This is quite
apart from the Government's responsibility in international law under the
doctrine of "State responsibility."
The correspondent "went with five Front supporters" and met the Front's armed
men in Kashmir. "They said they had been trained years ago, sent back to their
villages and told to wait until they were needed. For the past two months, they
claimed, they had been crossing into Indian Kashmir, carrying on raids and
ambushes".
Amanullah Khan was not less explicit in a press interview published in The
Times (London) of January 30,1990 to Zahid Hussain. The report, filed from
Islamabad, destroyed the myth of a "spontaneous uprising." For, Khan claimed,
that "the present uprising is the result of well-laid plans and that the
militants receive arms and training through his organisation based in
Pakistan".
The evidence also exposes the falsehood of Pakistan' s assertion, made by its
then Foreign Minister Sahebzada Yaqub
Khan on January 30, 1990, that "a civil disobedience movement"
had been launched by "the Kashmiri freedom fighters''. It was clearly an
intentionally aided terrorist programme exploiting the sentiments of two
people.
Unlike Amanullah Khan and Farooq Hyder, Shabir Ahmed Shah of the People's
League openly lauded the late General Zia-Ul-Haq and the lSl's role in the
affair, in an interview with Zafar Meraj published in The Kashmir Times of
February 10,1989. He said "Shaheed (Martyr) Zia, late General Rahim Khan and
others knew about this plan and it was their permission that training centers
were established in different parts of Pakistan where youth from this place
were given latest arms and other weapons"
Mr. Meraj explained: "These camps according to him were closed, soon after
Benazir assumed office. The new government had also removed the Chief of Field
Intelligence Unit (FIU) who was the link between Kashmir youth and Pakistan
Army and was co-ordinating the whole programme. However, the move to replace
another senior officer involved in Kashmir plan had to be given up by the
Pakistan Government following strong opposition from the Army top brass. Shabir
Shah claimed that even the present Pakistan president Ghulam Ishaq Khan was in
the complete know of the plan for giving arms training to Kashmir youth and
added that General Aslam Beg, the present Army Chief of Pakistan, was also not
averse to the plan."
Shabir Shah claimed that "of late" Ms. Bhutto had come under " severe pressure"
from influential people to adopt a "tough" line. He hoped that "Benazir in the
days to come
would be forced to follow the line of action adopted by late Zia-ul-Haq". She
did so.
Herald a Karachi monthly, published in April 1990 an article by Abbas Nasir
who quoted an analyst as saying "even a child in this country knows that the
Kashmir policy's architect is the Army and not Ms. Bhutto". In May 1990 Zahid
Hussain quoted "an insider" in Newsline to the same effect: "Like the Afghan
policy, the Kashmir policy is also now practically run by the armed forces".
Shabir Shah's account received the fullest corroboration from the very source
he had lauded, albeit posthumously. In the biography titled "FATEH" (Victor) of
late General Akhtar Abdul Rehman, former chief of the Inter Services
Intelligence (ISI) of Pakistan, Haroon Rashid, the biographer makes these
revealing observations on the Pak plan to destabilize Kashmir: The plan which
General Akhtar Abdul Rehman had made for Kashmiris' movement for independence
was to come into effect in 1991. It appears that this plan was made with the
struggle for liberation in Afghanistan in mind, which it was thought would be
achieved by spring 1989. However, the Kashmir plan was inaugurated in 1984. As
against the Afghan freedom fighters who had been trained in large numbers by
the ISI, an altogether different scheme was worked out in respect of Kashmir.
Since it was difficult to get Kashmiris from across the border, only those
leaders of the movement were trained who could thereafter train others. This
was confirmed by the Kashmiri extremist Shabir Shah in his interview with
'India Today'. General Akhtar was so profoundly involved in this that he
himself met with these Kashmiris who were prepared to lay down their lives
for the
liberation of Kashmir from the stranglehold of India and its accession with
Pakistan. It was kept such a tightly guarded secret that even the Afghan
Mujahideen were not taken into confidence. They regarded the Kashmiris as
Pakistanis who spoke Urdu and were accompanying them in the spirit of Jehad.
The Kashmiris were provided with some arms which were not suitable for the
Afghan Mujahideen. The Kashmir plan had to be prematurely implemented following
the untimely death of General Zia's most likely successor (Gen. Akhtar) in the
air crash of August 17,1988."
All this constitutes testimony from persons directly involved. It has not been
controverted by the Government of Pakistan. It has, moreover, received fullest
corroboration from a correspondent of high repute. Mr. Seling S. Harrison,
South Asian correspondent of The Washington Post thirty years ago, is now
Senior Associate at the Carnagie Endowment for International Peace. He wrote in
The Washington Post on April 23,1990 a detailed report in which the years he
mentioned as milestones in Pakistan's programme of terrorism coincide fully
with these mentioned by Khan and others.
Harrison wrote: "Pakistani stimulation of the Punjab insurgency goes back to
the beginnings of the Zia-ul-Haq regime in 1978. By 1984, the Pakistan Army's
Field Intelligence Unit was helping to organise the liberation Front in the
Kashmir Valley. By 1988, the Inter Services Intelligence (ISI) Directorate in
Islamabad had begun to set up training camps in Pakistan-held Azad Kashmir
manned by retired Pakistan army officers.
"Evidence obtained in Pakistan as well as from Indian and American intelligence
sources indicates that some 63 Pakistan operated camps have been functioning
at various times during the past two
years, roughly half located in Azad Kashmir and half in Pakistan. At least 11
have operated continuously.
Captured agents and guerillas have provided detailed evidence that Pakistan has
trained hundreds of guerilla leaders and has smuggled more than 600 weapons
into valley, including rocket launchers and Kalashnikov rifles from US supplied
Afghan aid stockpiles".
Thus, the sponsorship of terrorism in Kashmir by successive regimes in Pakistan
since the days of General Zia in 1984 is fully established. It was left to a
responsible Pakistani journalist M.A. Niazi to reveal in the prestigious Lahore
daily The Nation that in embarking on this course Gen. Zia had reckoned with
the possibility of war with India. It was a cold-blooded decision. Reporting
from Muzaffarabad, capital of Pak-Occupied Kashmir (POK) in the issue of May
21,1990, he wrote that its ruling party "credits Zia with laying the
foundations for the present uprising" in Kashmir. On May 31, he reported that
the "operations mounted during the late President Zia-ul-Haq's time caused
fierce debate in policymaking circles with opponents warning that such
activities would cause war".
Gen.Zia knew that he was not assisting an "uprising" but launching a covert
terrorist operation against India in Kashmir which, inevitably, was fraught
with such grave consequences.
In this, the regime Pakistan installed in POK has served as a channel parallel
to the JKLF and HM. It had an earlier start.
Presenting the budget to the Assembly on June 24,1985 the
PM of POK, Sardar Sikandar Hayat Khan, announced an allocation of Rs. 20 lakhs
as token money to be spent on the "liberation" of Kashmir. The "freedom
movement, "he declared on September 29, 1985 would be stepped up. On January
12,1986 he said that the amount allocated "would be enhanced according to
requirements."
Not to lag behind, the POK's President, Sardar Mohammed Abdul Qaiyum Khan,
spoke on October, 18 1986 of "reactivating the movement for the liberation of
Kashmir".
Amanullah Khan has cited July, 31,1988 as the date on which the armed attacks
in Kashmir began. On September 17,1988, "the Prime Minister" of POK Sikandar
Hayat Khan boasted at a press conference in London that his regime was
responsible for stepping up unrest in Kashmir. His line was similar to
Amanullah Khan's-Kashmir should be wrested forcibly from out of the Indian
Union and "independent Kashmir" should merge with Pakistan. (The Times of
India; September 18, 1988).
Shortly thereafter on October 31, 1988 The Times of India published a report
from Srinagar from its correspondent Askari H. Zaidi. He reported that "the
introduction of sophisticated weapons like the Kalashnikov rifle and the
training of Kashmiri youth in camps across the border have added a new
dimension to the Pakistan-sponsored terrorist activity in the State".
Only three days earlier, on October 28,1988. The Telegraph, a daily published
from Calcutta, carried a report by its, Srinagar correspondent which said
"Forty people including 15 policemen and a woman judge, were injured in a
series of
bomb blasts and shoot outs in Jammu and Kashmir during the past
48 hours". This was three months after Amanullah Khan had struck on July
31,1988 as he himself claimed. The Pakistan sponsored campaign of terrorism had
begun in Kashmir.
The POK regime's efforts went parallel with those of the JKLF and other bodies.
Sardar Abdul Qaiyum Khan "President, Azad Kashmir Government" the Pakistan
installed regime in Occupied Kashmir, admitted to Zahid Hussain of Newsline in
February 1990 that "it is a fact that Kashmiris from the other side of the
control line have been coming here and have fought along with the Mujahideen in
Afghanistan. The same people have gone back home to Kashmir with their
experience of guerrilla warfare. As far as the supply of arms is concerned, it
is not difficult to acquire arms nowadays."
In keeping with official Pakistani denials, he also denied that Pakistan was
providing the arms. But he did add, significantly, that "if any section or
group in Pakistan is providing arms to the Kashmiris, they are to be
commended".
The JKLF militant leader in Kashmir Javed Mir fully and openly corroborated
Qaiyum Khan and Amanullah Khan's claims in a press interview: "We get our arms
from our brothers in Azad Kashmir and other places in the world" (India Today;
March 15,1990). No less significant is the fact that like them he also made a
studied, if futile, effort to deny that the Government of Pakistan was
providing the arms.
A Lahore Weekly Friday Times carried the following report (May 17,1990) which
described the modus operandi:
"They (the 'Mujahideen') arrive at the LOC bearing code letters from their
organisations and are taken over by the Field Investigation Units (FIUs), the
main grass root operations and counter-intelligence units of the Inter Services
Intelligence (ISI). The FlUs after interrogating them, hand them over to their
respective organisations like the JKLF and the Hizb." This corroborates
Qureshi's account of what the ISI desired him to do (See Page 4)
Denials of official help are, therefore, futile; for three reasons. One is that
the involvement of two governmental agencies stands proved as a matter of
fact-the ISI and the FIU of the Army. Secondly, it is inherently impossible for
men and arms to flow from across the line of control in Kashmir for so long and
in such numbers and quantities without official involvement. Lastly, as will be
pointed, in international law Pakistan is responsible in any event for any
hostile activities on its soil and even more so for such activities on the part
of the State of Jammu & Kashmir under its occupation.
Qaiyum Khan in fact, accused the JKLF of sending "Ill-trained young men to
their deaths in publicity-seeking attacks, on Indian targets inside Kashmir"
(The Guardian; May 2,1990). On April 30,1990 a BBC-IV report from POK; gave
details of the supply of arms and the imparting of military training to those
who had crossed over from the Indian side of the line of control (The London
correspondent of The Times of India; May 2, 1990).
Mumtaz Rathore, then Prime Minister of POK, went so far as to say at Islamabad
on November ?9,1990 that his government had decided to "practically join in the
fighting" in Kashmir. He
12
explicitly told the news conference that only moral and
political support was not enough (The Muslim; Islamabad; November 20,1990).
Indeed, he admitted six days later at Abbotabad on November 25 that, to quote
the report in The Nation of November 26,1990, "the very purpose of the State
(of POK) is serve as base camp for the liberation of held Jammu and Kashmir".
This is the raison d'etre of the regime set up by Pakistan in Occupied Kashmir.
Reports in the Pakistan and international press fully corroborate admissions by
Pakistan's agents themselves be they the officials of the POK regime or
Amanullah Khan and the men who follow his instructions in Kashmir.
Those excerpts from "The Guardian" report by Kathy Evans: (May 1, 1990) reveal
a lot. It was filed from POK capital Muzaffarabad:- Six political groups from
Indian-occupied Kashmir as they call it here have already rented offices and
houses. Some accommodation has been provided free by Pakistani fundamentalist
parties....
Although all deny it the groups are said to be arming themselves. One Kashmiri
leader Raja Muzaffar of the Jammu & Kashmir Front showed me crumpled receipts
for 2.5 million rupees for guns he bought a fortnight ago from arms dealers in
Pakistan's tribal belt. The bill included $ 900 for transporting weapons to
Srinagar.
"The groups appear to be providing basic military training to the fresh
recruits who make their way each day through Indian army lines. Pakistani
officials as they have for the last 11 years in Afghanistan deny any
involvement in training and weapons procurement."
Around this time, M.A. Niazi also reported from Muzaffarabad in The Nation of
May 31,1990 that "Kashmiri militants continue to trickle into Azad Kashmir in
search of training and arms". But he added "the original intention of hitting
military targets in a co-ordinated fashion has gone to pieces". He revealed
that "though the Muzaffarabad-based NGO disbursed the funds, the camp
administrators are from the Army. If the militant's accusations are true, then
some officers are piling up a modest nest-egg for themselves."
The reason for officiaI circumspection was two-fold. One was the fact which
Niazi mentioned at the end of this very report, namely, that even in Zia's time
there was a fear that Pakistan's covert operation could lead to war with India.
The other was the Gates mission. In May 1990 the President of the United States
Mr. George Bush had sent the Deputy National Security Advisor Robert M.Gates to
India and Pakistan "in view of his deep concern for peace and stability in
South Asia and the increasing tensions caused by the situation in Kashmir".
Arif Nizami, the highly respected editor of The Nation, later revealed in his
News Analysis column (June 13, 1990) that "the Gates Mission has confirmed that
the information (regarding Pakistan's running of 31 training camps for the
Kashmiri militants) was supplied by the Pakistani officials." A senior Indian
journalist Inder Malhotra reported in the The Times of India (in May, 1990)
that the Gates mission "volunteered" to Indian officials about their
conversations in Pakistan and their warning "that Pakistan was doing something
the consequences of which could not be good. To this the Pakistani side's
reply, according to the U.S. team, was that it had 'already closed down 31
training camps' for the Kashmir terrorists and subversives." This was
substantially confirmed by a report in The New York Times of
June 17, 1990.
The implications of such an official admission are obvious. They assume a
graver aspect, still, in view of the year and more that has elapsed since.
For around this time, Pakistan added yet another dimension to its programme of
terrorism. It was the infusion of religious bigotry. Not content with the
JKLF's shabby compromise, it floated the Hizbul Mujahideen, an armed group of
the fundamentalist Jamaat-a-Islami. From this it was but a short step to
getting its covert war (declared) a jehad, a religious war. Proof of both is
available from Pakistani sources themselves.
Newsline of May 1990 published an article by Ms. Maleeha Lodhi, former editor
of The Muslim, in which she noted that "the movement also appears to be
undergoing another transformation, with its symbolism changing from the
secularism of Amanullah Khan's JKLF (Jammu and Kashmir Liberation Front) to the
Islamic slogans of the newer, younger militants. Initially in the vanguard, the
JKLF is increasingly losing out to what can be seen as a fundamentalisation of
the movement". This new fundamentalist organisation was Hizbul Mujahideen. It
advocated Kashmir's accession to Pakistan. The JKLF stood ostensibly for
independence.
Prof. Khurshid Ahmad, former Federal Minister, now Naib Amir of
Jamaar-e-Islami, sent out a circular letter dated February 17, 1990 appealing
for funds and instructing followers to "establish funds for Jehad in Kashmir".
POK's Premier Rathore secured a fatwa (edict) from theologians that
the Rs. 430 million Zakat fund, (derived from the religious obligation on all
Muslims to pay 1/40th income as Zakat) could be used on this "Jehad" (The
Muslim; November 20, 1990)
Nor was there any restraint in the aid to terrorism after the Gates Mission.
Yusuf Jammel of The Telegraph (July 27,1990) reported an interview with Ahsan
Dar "Commander-in-chief" of the Hizbul Mujahideen. Dar admitted that it was "an
armed wing of the Jamat-e-Islami" and claimed that he had "11,000 trained
guerrillas" ready to launch, a "major offensive against the security forces
from August 14, Pakistan's independence day". The JKLF was being downgraded and
the HM boosted deliberately in the provision of arms and otherwise. On August
17 the BBC broadcast an interview with the JKLF's deputy commander-in-chief
"Hamid Sheikh who bitterly complained that while his organisation was getting
arms and ammunition "from party headquarters across the border" there "are
certain organisations whose resources are very wide" (The Kashmir Times, August
20,1990).
Steve Coll reported from Karachi in International Herald Tribune of December
10,1990 that "Muslim guerrillas fighting the Indian government in Kashmir
acknowledge that they are receiving arms and training form Pakistan, as well
as advice from Pakistan's Inter-Services Intelligence Ageny. The level of
Pakistani assistance has been substantial and steady since earlier this year,
according to the guerrillas. In the Indian State of Punjab, radical Sikh
separatists continue wreak havoc with weapons obtained in Pakistan. But the
level of assistance to the guerrillas from Pakistan's government appears to be
lower than that in Kashmir".
16
The assassination of Mr. Rajiv Gandhi on May 21, 1991, tragic as it was,
boosted the morale of the Hizbul Mujahideen and other terrorist groups. The
independent of London quoted (May 25) JKLF spokesman in Islamabad as saying
that the assassination of Rajiv Gandhi will escalate the chaos in India and the
struggle for freedom in Kashmir". The Independent of June 6 carried a report by
its correspondent Ahmad Rashid from Atmuqan in POK: "Some army generals and
right wing politicians see the instability in India as a golden opportunity to
escalate support for the Kashmiri militants. However, Mr. Sharif and the
majority of the military are opposed to any escalation which could trigger off
a war.
This record proves to the hilt, beyond challenge, two propositions. One is
that, notwithstanding the denials, the government of Pakistan itself, its Army
and its Field Intelligence Unit as well as the ISI are completely involved in
the initiation and execution of terrorism in the State of Jammu & Kashmir in a
manner which constitutes a covert war. Secondly from the days of Zia-ul-Haq to
Nawaz Sharif, the present Prime Minister, the operations of the covert war have
been tightly controlled by Pakistan so as not to provoke India to launch any
major military effort in self-defense. Hence, the steady stream of denials in
this low-risk operation.
The ISl's role is additionally confirmed by the Afghan connection. As far back
as January 30, 1990, The Times (London) published a report from Pakistan that
the Hazb-elslami led by the extremist Afghan militant Gulbuddin Hekmatyar "was
one of the main groups which helped in training Kashmiri activists. The Afghan
Mujahideen are also said to be a source of arms for the Kashmiris. The Pakistan
Times of April 21, 1991 published a PPI report which said Afghan commander
Jalaluddin Haqqani, and party political leader Gulbuddin Hekmatyar have done
much to train their Kashmiri brethren in Afghanistan. Hekmatyar, on a number of
occasions, has stated that the jehad should be encouraged in Kashmir as well as
in the Soviet Central Asia. "
The gravity of the situation can well be gauged from an article by one of
Pakistan's leading journalists, Mushahid Hussain, in Frontier Post of May
18,1991. He gloated over the predicament which India faces: Compounding the
Indian problem is a security nightmare that defines the Kashmir insurgency as
an increasingly Islamic movement and views its close proximity to Punjab as
creating a 'security opening' in India's jugular in the north-west vis-a-vis
Pakistan and China. For instance, one of the prominent groups in Kashmir, the
Jammu and Kashmir Students Liberation Front (JKSLF), which was responsible for
the kidnapping of Naheed Imtiaz, has renamed itself as 'Ikhwanul Muslimeen'
(Muslim Brotherhood) .
The Islamic component of the Kashmir struggle is also evident from the linkage
of the Kashmir freedom fighters with the Afghan Mujahideen and recently after
the liberation of Khost, visiting journalists saw at least 500 Kashmiri youth
fighting with the Afghan Mujahideen. The JKSLF's parent partly the Jammu and
Kashmir liberation Front (JKLF), traditionally espoused a secular line seeking
an independent Kashmir."
All this is in aid of a campaign of stark terrorism which JKLF, the HM, the
JKSLF and other such bodies own up readily: "We are in contact with our people
in Srinagar. We give them
guidelines and they have to carry our specific tasks independently as the
situation on the ground demands", Amanullah Khan told the correspondent of
Sunday (March 18, 1990). One such "specific task" which he mentioned with
approval was the kidnapping of Rubaiya Sayeed, daughter of the then Union Home
Minister Mufti Mohammed Sayeed. He justified it thus: "It was not a kidnapping.
Rubaiya Sayeed was not kidnapped, she was taken hostage".
An Associated Press report under a Rawalpindi, December 17, 1989 dateline reads
thus: "Pakistan trained Kashmir subversives who traded Indian Home Minister's
daughter for five of their jailed colleagues, have vowed to continue hitting
Indian targets in Jammu and Kashmir, a leader said today.
''Amanullah Khan Chairman of the Pakistan based Jammu and Kashmir Liberation
Front, said the subversives will wage an 18 month-old campaign of terror,
including hijackings, killings and more kidnappings.
"The Front's underground guerrilla force, operating in Jammu and Kashmir, has
been given guidelines by the organization's leaders," Khan told a news
conference. Guidelines for terrorist activity clearly. He added:
"They have been told': Don't touch our own people, but hit Indian property,
including airlines, post offices, public buildings", said Khan. There have been
dozens and dozens of bomb blasts in the Indian State during the past 18 months,
he said. 'Basically our military needs are being met', Khan said. The Front
leader said his organisation has been receiving weapons, but declined to
specify the types of arms. 'The
(sophistication) of our weapons has been growing with the passage of time'.
The JKLF has claimed responsibility also for the killings of the HMT Manager,
Mr. H.L. Khera, and of the Vice-Chancellor of Kashmir University, Prof.
Mushirul Haq, and his aids, Abdul Ghani.
Khan told a New York periodical "Why shouldn't a ViceChancellor be killed? Why
should V.P. Singh not be killed? Why should Mr. Rajiv Gandhi not be killed? We
will not hesitate if it comes to that". (The Time of India: April 13,1990).
Other Groups are no better. Newsline of May 1991 published a report by Anwar
Iqbal which is revealing: "Rustam, Jahangir and two other members of the Muslim
Janbaz Force had come all the way from the valley (two-day walking distance) to
meet journalists along the line of control. The MJF is the group responsible,
for kidnapping Swedish engineers Johan Jasson, 35 and Jan-Ole Loman, 37, on
March 31 from Gulmarg. The men admit to kidnapping the Swedes and openly state
their intention of continuing to abduct westerners unless the UN and other
international agencies send their observers to the valley. . . "
>From kanwal@mbcl.rutgers.edu Sun Feb 27 17:48:34 CST 1994
For reasons more than one, Pakistan is morally as well as legally responsible
for terrorist crimes in Kashmir. Following his notorious press conference at
the UN Correspondents Club in New York on April 9,1990, Amanullah Khan had to
leave the United States. The State Department spokesperson, Margaret Tutwiler
said on April 12: "We are deeply disturbed by the statements attributed to
Amanullah Khan during his
press conference in New York. If accurate, we believe that the statements
promote terrorism... We consistently and unequivocaly condemn terrorist acts by
any organization, including the JKLF."
Pakistan, however, rushed to extend its full diplomatic protection to Khan
threatening that if his visa were cancelled "there will be a very, very strong
reaction in Pakistan and elsewhere" (Frontier Post, April 27, 1990). The
Foreign Secretary Dr. Tanveer Ahmad disclosed that the warning had been
conveyed to the United States through diplomatic channels (Frontier Post; April
25,1990).
This protection was extended in the face of Khan's admitted terrorist acts of
murders and kidnapping and open threats to persist in them. There is evidence,
indeed, of Pakistan's approval of terrorist attacks for its own political ends.
On April 26, 1990, the Jammu and Kashmir Liberation Front issued a statement in
which it claimed that the kidnapping of Mushir-ul Haq, Abdul Ghani and Khera
was carried out jointly by the Hezb-ul Mujahideen and the JKLF, but that the
JKLF leaders agreed to the plan only after Hezb-ulMujahideen leaders and an ISI
official named Imtiaz threatened a cut-off of ISI aid unless they did so. ("The
Kidnapping and Execution of Mushir-ul Haq and Abdul Ghani: An Explanation."
Statement published by the JKLF on April 26, 1990). This explains threats to
end the systematic killing of politicians who favoured a dialogue with the
government of India.
In view of the evidence summarised above, mostly of an incontestable nature in
the form of admissions, I answer the first Query in the affirmative. The
Question arises next as to
the nature and extent of Pakistan's responsibility in
international law for its conduct.
Text books on international law abound with dicta on a state's responsibility
for hostile expeditions from its territory. "It is the duty of every State to
prevent individuals living on its territory from endangering the safety of
another State by organising hostile expeditions or by preparing common crimes
against its Head, members of its Government or its property" (Oppenheim's
International Law).
It is, however, unnecessary to cite text books because there are precedents for
censures of such conduct in the records of the United Nations, two of which
arose from similar conduct by Pakistan in Kashmir, and the International Court
of Justice has given two authoritative rulings on the subject.
Sir Owen Dixon, former Chief Justice of the High Court of Australia, said in
his Report to the Security Council on September 15,1950 (S/1791) as U N
Representative for India and Pakistan: "Without going into the causes or
reasons why it happened, which presumably formed part of the history of the
sub-continent, I was prepared to adopt the view that when the frontier of the
State of Jammu and Kashmir was crossed on, I believe 20 October 1947, by
hostile elements, it was contrary to international law, and that when in May
1948, as I believe, units of the regular Pakistan forces moved into the
territory of the State, that too was inconsistent with international law".
On August 4, 1965, the Chief Military Observer of the UN Military Observer
Group in India and Pakistan reported
"armed men, generally not in uniform, crossing the cease-fire line
from the Pakistan side for the purpose of armed action on the Indian side" on
August 5, (S/6651).
It is for this reason that the Security Council's resolution of September
6,1965 (210 (1965)) called for a withdrawal of "all armed personnel back to the
positions held by them before August 5,1965". Mr. Altaf Gauhar has in his
Foreword to Air Marshal Asghar Khan's book The First Round: Indo-Pakistan War
1965 revealed authoritatively and in detail how Pakistan mounted first the
guerrilla operation from August 5, "Operation Gibraltar", and its follow up,
"Operation Ground Slam", an open military attack on Kashmir on September 3.
The Commission of Investigation established by the United Nations Security
Council at its 87th meeting on December 19,1946, "to ascertain the facts
relating to the alleged border violations along the frontier between Greece on
the one hand and Albania, Bulgaria and Yugoslavia on the other" concluded in
its Report that "the existence of disturbed conditions in Greece in no way
relieves the three-Northern neighbors of their duty under international law to
prevent and suppress subversive activity on their territory aimed against
another government, nor does it relieve them of direct responsibility for their
support of the Greek Guerrillas." (U.N. DOC S/360, 27 May 1947, report by the
Commission of Investigation concerning Greek Frontier Incidents to the Security
Council Vol. I, Part, III, Ch. 1, p. 181) Although a minority of the Commission
challenged the credibility of witnesses upon whose testimony the majority
conclusions of fact were, in part, based, the principle of international law
was not
questioned. See also Resolution 109 (II), adopted by the General Assembly at
its 100th plenary meeting on 21 October 1947. Referring to the obligations of
Members of the United Nations to carry out the Purpose and Principles of the
Charter, the Resolution calls upon Albania, Bulgaria and Yugoslavia to do
nothing which could furnish aid and assistance to the said guerrillas fighting
against the Greek Government (U.N. DOC. A/519, 8 January 1948, pp. 12-13, G
A.O.R. 2nd Sees., Resolutions).
Although the SAARC Regional Convention on Suppression of Terrorism signed by
India, Pakistan, Nepal, Sri Lanka, Bhutan, Bangladesh and the Maldives on
November 4,1987, has not been ratified, Article I which defines terrorist acts
says clearly that they "shall not be regarded as political offense" while
Article IV obligates contracting States to extradite or prosecute terrorists on
its soil. The Convention only reflects modern international law on this
subject.
In the Corfu Channel Case (International Court of Justice Reports (1949): p. 4)
the International Court of Justice held that the passage of two cruisers and
two destroyers, all British, through a part of North Corfu Channel constituting
Albanian territorial waters, was an innocent passage. As to the laying of the
mines which damaged the destroyers Saumarez and Volage , the Court looked for
evidence of knowledge of this on the part of Albania and said the fact of this
exclusive territorial control exercised by a State within its frontiers has a
bearing upon the methods of proof available to establish the knowledge of that
State as to such events. By reason of this exclusive control, the other State,
the victim of a breach of international law, is often unable to furnish direct
proof of
24
facts giving rise to responsibility. Such a State should be allowed a more
liberal recourse to inferences of fact and circumstantial evidence...
"The Court must examine therefore whether it has been established by means of
indirect evidence that Albania has knowledge of mine-laying in her territorial
waters independently of any connivance on her part in this operation. The proof
may be drawn from inferences of fact, provided they leave no room for
reasonable doubt. The elements of fact on which these inferences can be based
may differ from those which are relevant to the question of connivance."
The Court ruled that the use of indirect evidence is recognized by
international decisions. It is of special weight when based on a series of
facts linked together and leading logically to a single conclusion. Examining
the evidence, in Court found that Albania's plea of ignorance of mine laying in
the the Corfu Channel was improbable and the action could not have happened
without its knowledge . There was a duty to pay compensation to the United
Kingdom for Albania's breach of its responsibility in international law.
On Jun 27,1986 the International Court of Justice ruled inter alia that the
supporting anti-Government forces in Nicaragua, the United States was in breach
of its duties under customary international law.
In view of the Importance of this ruling, it is appropriate to set out here
extracts from the authoritative official report of the judgement.
(International Court of Justice Report 1986; page 14)
The Court observed:
"There appears now to be general agreement on the nature of the acts which can
be treated as constituting armed attacks. In particular, it may be considered
to be agreed that an armed attack must be understood as including not merely
action by regular armed forces across an international border, but also 'the
sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries which carry out acts of armed force against another State of such
gravity as to amount to' (inter alia) an actual armed attack conducted by
regular forces, 'or its substantial involvement therein'. This description,
contained in Article 3, paragraph (g), of the Definition of Aggression annexed
to General Assembly to resolution 3314 (XXIX), may be taken to reflect
customary international law. The Court sees no reason to deny that, in
customary law, the prohibition of armed attacks may apply to the sending by a
State of armed bands to the territory of another State, if such an operation,
because of its scale and effects, would have been classified as an armed attack
rather than as a mere frontier incident had it been carried out by regular
armed forces."
The Court further added:
"The principle of non-intervention involves the right of every sovereign State
to conduct its affairs without outside interference; though examples of
trespass against this principle are not infrequent, the Court considers that it
is part and parcel of customary international law. As the Court has observed:
"Between Independent States, respect for
territorial sovereignty is an essential foundation of international
relations'' (I.C.J. Reports 1949, p.35) and international law requires
political integrity also to be respected. Expression of an opinio juris
regarding the existence of the principle of non-intervention in customary
international law are numerous and not difficult to find. Of course, statements
whereby States vow their recognition of the principles of international law set
forth in the United Nations Charter cannot strictly be interpreted as applying
to the principle of non-intervention by States in the internal and external
affairs of other States, since this principle is not, as such, spelt out in the
Charter. But it was never intended that the Charter should embody written
confirmation of every essential principle of international law in force. The
existence in the opinio juris of States of the principle of non-intervention is
backed by established and substantial practice. It has moreover been presented
as a corollary of the principle of the sovereign equality of States. A
particular instance of this is General Assembly resolution 2625 (XXV), the
Declaration on the Principles of International Law concerning Friendly
Relations and Cooperation among States. In the Corfu Channel case, when a State
claimed a right of intervention in order to secure evidence in the territory of
another State for submission to an international tribunal (I.C.I. Reports 1949,
p.34), the Court observed that:
"the alleged right of intervention as the manifestation of a policy of force,
such as has, the past, given rise to most serious abuses and such as cannot,
whatever be the present defects in international organization, find a place in
international law. Intervention is perhaps still less admissible
in the particular form it would take here; for, from the
nature of things, it would be reserved for the most powerful States, and might
easily lead to perverting the administration of international justice itself.
(I.C.J. Reports 1949, p.35)."
The Court rejected all the possible excuses that a State could possibly advance
in support of the right of intervention. For instance, in para. 206 of the
Judgement the Court said that:
"It has to consider whether there might be indications of a practice
Illustrative of belief in a kind of general right for States to intervene,
directly or indirectly, with or without armed force, in support of an internal
opposition in another State, whose cause appeared particularly worthy by reason
of the political and moral values with which it was identified. For such a
general right to come into existence would involve a fundamental modification
of the customary law principle of non-intervention".
Finally, the Court laid down in para. 209 a vital principle of international
law in these categorical terms:
"the Court therefore finds that no such general right of intervention, in
support of an opposition within another State, exists in contemporary
international law. The Court concludes that acts constituting a breach of the
customary principle of non-intervention will also, if they directly or
indirectly involve the use of force, constitute a breach of the principle of
non-use of force in international relations".
The Court was emphatically of the view that aid and assistance to armed bands
by one State in order to carry out acts of violence or to overthrow the
government in another State
28
constitute a grave violation of international law. This is what the Court
observed on this point:
"The Court considers that in international law, if one State, with a view to
the coercion of another State, supports and assists armed bands in that State
whose purpose is to overthrow the government of that State, that amounts to an
intervention by the one State in the internal affairs of the other, whether or
not the political objective of the State giving such support and assistance is
equally far-reaching".
These observations of the World Court, delivered a mere five years ago on June
27,1986, apply a fortiori to Pakistan's aid and assistance to instigation of
and connivance in the activities of Kashmiri militants whose leaders in
Pakistan have declared openly and explicity to representatives of the World
Press that they are guiding, aiding and directing the militant groups which are
wreaking heinous acts of terrorism in the State of Jammu & Kashmir. Pakistan
asserts that there is an international dispute concerning the future of this
State. India denies that. However, under the UN Charter a State is not entitled
under any circumstances to use force for the resolution of international
disputes. As will be pointed out later, the Simla Agreement of July 3, 1972,
binds both sides to refrain from committing precisely those acts which Pakistan
has been committing systematically and openly against India in its state of
Jammu & Kashmir.
While the above observations of the Court apply to Pakistan's use of, or
connivance in the use of, its own territory for expeditions by armed men into
Kashmir, its responsibility in regard to POK is far greater still.
Para A 3 of the UN Commission for India and Pakistan's
Resolution of August 13, 1948 said:
''Pending a final solution, the territory evacuated by the Pakistani troops
will be administered by the local authorities
under the surveillance of the Commission" . It was in reference to this that
Mr. Nehru sought and obtained explicit assurances that it did not "bring into
question" India's sovereignty over that area.
The Prime Minister of India, Mr. Jawaharlal Nehru wrote to the Chairman of the
U.N. Commission for India and Pakistan On August 20, 1948 in reply to this
Resolution of August 13, 1948:
Para 3 (1) of his latter read thus: "1) That paragraph A-3 of Part ll of the
resolution should not be interpreted, or applied in practice, so as:
(a) to bring into question the sovereignty of the Jammu and Kashmir Government
over the portion of their territory evacuated by Pakistan troops;
(b) to afford any recognition of the so-called "Azad Kashmir Government", or
(c) to enable this territory to be consolidated in any way during the period of
truce to the disadvantage of the State.... "
Para 4 read thus: "If I understood you correctly, A-3 of
Part ll of the resolution does not envisage the creation of
any of the conditions to which we have objected in paragraph 3 ( I ) of this
latter. In fact, you made it clear that the Commission was not competent to
recognize the sovereignty of any authority over the evacuated areas other than
that of the Jammu and Kashmir Government."
By his letter dated August 25, 1948, the Chairman Mr. J. Korbel assured Mr.
Nehru in these terms:
"The Commission requests me to convey to Your Excellency its view that the
interpretation of the resolution as expressed ( in paragraph 4 of your letter
coincides with its own interpretation, it being understood that as regards
point (1) (c) the local people of the evacuated territory will have freedom of
legitimate political activity. In this connection, the term 'evacuated
territory' refers to those territories in the State of Jammu and Kashmir which
are at present under the effective control of the Pakistan High Command".
The Simla Agreement of July 3, 1972 further obligates the parties "to refrain
from the threat or the use of force in violation of this line" (of control in
Kashmir) as also to "prevent the organization, assistance or encouragement of
any acts detrimental to the maintenance of peaceful and harmonious relations."
On the evidence it is clear that Pakistan has violated the Simla Agreement. It
is also clear that it is in breach of its responsibilities in international law
for instigating and aiding acts of terrorism in the State of Jammu & Kashmir by
sending across the line of control men trained in Pakistan and POK in
the use of arms and by supplying arms and ammunition to such
persons and their associates.
In accordance with the rulings of International Court of Justice, Pakistan is
bound to pay compensation to India for the losses it has suffered.
y
