Dr. Siegfried O. Wolf, Director of Research at SADF (Coordinator: Democracy Research Programme); he was educated at the Institute of Political Science (IPW) and South Asia Institute (SAI), both Heidelberg University. Additionally he is member (affiliated researcher) of the SAI as well as a former research fellow at IPW and Centre de Sciences Humaines (New Delhi, India).

Abstract

Since the end of the British colonial rule over the Indian subcontinent in 1947, the subsequent restructuring of the political map of the region, and the transfer of power to the successor states, the former principle state of Jammu & Kashmir (J&K) turned into the major flashpoint in South Asia. Despite the fact that the then ruler of J&K declared its accession to India, Pakistan not only illegally holds large parts of the territory but also questions India’s legitimate claims over said territory and tries to systematically destabilise Kashmir, the region under New Delhi’s administration. Islamabad did realise that the dispute over Kashmir is in a political stalemate. Furthermore, Pakistan was not only defeated in all conventional armed confrontations with India but also was forced to realise that a military ‘solution’ is impossible due to the tremendous asymmetries in available economic and financial resources. In consequence, Pakistan started a three-fold strategy in its Kashmir approach: (1) To support destabilising activities in the Indian state of Jammu and Kashmir; (2) To portray India on the international level as a repressive force in Kashmir forced to conduct extra-ordinary security measures so as to maintain law and order; and (3) To portray itself as a ‘protector’ of the Kashmiri people. This article argues that there is a clear discrepancy between the Pakistani government’s claims and true ambitions when it comes to the well-being of the Kashmiri people. The Pakistani leadership claims to be the ‘champion of the right to self-determination’ and other political freedoms as well as human rights of the Kashmiri people. Yet Islamabad denies these same rights to the citizenry living within its own administration – in Kashmir and elsewhere. It also systematically suppresses local communities. It seems clear that Pakistan’s Kashmir agenda only aims to destabilise India, challenge its territorial integrity and target the basis of India’s statehood, governance and political identity as a democracy. Furthermore, Pakistan is not interested in the improvement of the social and economic conditions among Kashmir’s citizenry but in the region’s resources. In short, Islamabad’s role in the Kashmir imbroglio needs a comprehensive clarification and contextualisation.

Keywords

Pakistan, India, Kashmir, Gilgit-Baltistan, Azad Kashmir, Jammu and Kashmir, State-Terrorism, State-Sponsorship of Terrorism, Cross-border Terrorism, Human Rights, Political Freedoms, Democracy, Political Repression

Introduction- Historical context and outlining the puzzle

Often described as ‘the unfinished business of Partition’ (Haqqani, 2005), Kashmir is the main point of contention in India-Pakistan relations. The competing territorial claims represent opposing visions of state and nationhood: for India, a Muslim-majority state of J&K symbolises the secular nation state, while for Pakistan an Indian-administered Kashmir represents the incompleteness of Pakistan. The territorial dispute has its roots in the immediate aftermath of independence, when the Hindu Maharaja of Kashmir was pressured by the leadership of the then newly emerged Pakistan to join its state entity. Facing an invasion from irregular forces and an armed uprising among local tribesman – both backed by Pakistan, the Maharaja looked towards India for assistance, which was granted. Hari Singh declared on 26 October 1947 the accession of his state to India (via the ‘Instrument of Accession’). But despite this accession by Jammu and Kashmir’s legitimate ruler, the ‘Kashmir dispute’ was born, closely followed by the first Indo-Pakistani war in 1947–48 when Pakistani forces tried to gain control over the whole of Kashmir. The war ended with the establishment of a 740 kilometre ceasefire line which, for a while, was patrolled by the UN Military Observer Group in India and Pakistan[1] and which has been the de facto border ever since. Despite a second war in 1965[2], during which Pakistan tried and failed to instigate mass uprisings in Kashmir, the ceasefire line was upheld. In 1971, the third Indo-Pakistan war, though not fought over Kashmir, produced the Simla Agreement of 1972[3], in which the cease-fire line became the Line of Control (LoC), in the hope of reducing tensions and avoiding further armed Pakistani inroads. But the border remains contested as is evident from regular fights and skirmishes. The latest major armed confrontation took place in the Kargil sector of the LoC in 1999[4]. While armed conflict and the use of regular forces in an overt confrontation has had little impact on the border, bilateral talks between the countries’ leaders have also failed. As a result, since 1989 Pakistan has continued to fund, militarily train, and otherwise support a host of Kashmiri political organisations – specially terrorist groups – in order to destabilise the Indian administration (Byman, 2005, p. 155).

Today, the former princely state of Jammu and Kashmir (J&K) became a disputed territory – disputed mainly between India and Pakistan but also partly between India and China. Moreover, due to the occupation of large parts by the neighbouring countries Pakistan and China, the Himalayan state was divided into several territorial entities. As a result, J&K is today administered by three countries, namely China (Aksai Chin, Shaksgam Valley), Pakistan (Azad Kashmir, Gilgit-Baltistan), and India (Indian state of Jammu and Kashmir – including the so-called Kashmir Valley home to the majority of the Kashmiri people). Yet the only country with a legitimate claim over the whole area within the traditional boundaries of J&K is India. However, whereas Beijing seems to be interested in the manifestation of the status quo and just ‘silently ignores’ New Delhi’s demands to hand-over the parts of Kashmir under Chinese control, Islamabad never accepted any Indian entitlements in these areas.

Lacking legal justification for its claims over J&K, Islamabad initially insisted on religious claims – adding Muslim disputed areas to the home of all Indian Muslims. This notion determines the essence of the so-called ‘Two-Nation-Theory’ which was already manipulated so as to force the outgoing colonial administration to conduct the partition of the former ‘British India’ along religious lines contrary to any social and economic considerations.

However, this already extraordinary weak rationale of identity (especially since India itself hosts one of the largest Muslim communities world-wide) became impossible to justify after West Pakistani forces carried out a genocide in East Pakistan, leading to the death of 3 million Bengali, including Muslims, and eventually to the emergence of the independent state of Bangladesh in 1971. Since then, the Pakistani leadership changed its rhetorical strategy regarding J&K. Instead of portraying their country as the home of all South Asian Muslims, Pakistan now positioned itself as the ‘protector’ of all Kashmiri Muslims (as well as the other religious communities), especially in Indian-administered areas. For Islamabad, it goes without saying that the ‘protection’ of the Kashmiri people – including their interests and demands – can be only ensured under Pakistani administration – which rigorously rejects Indian claims and any autonomy of the area worth the name. Part of Pakistan’s revised political agenda for Indian-administered Kashmir is based on following strategy:

To create an anarchical situation in Indian-administered J&K in order to undermine local governance. In this context, Pakistan persistently conducts efforts to stir up political unrest and promote Jihadism. It also sponsors and conducts terrorist activities (Wolf, 2017). Furthermore, Pakistan is involved in building-up a crime-terror nexus intended to create instability in the area, for example through the inflow/trade of illicit narcotics into J&K (Sild, 2019). It is clear that the major goal of this destructive roadmap for Kashmir followed by the Pakistani leadership (which includes military and civilian aspects) is to provoke restrictive security measures by the Indian government and thus damage New Delhi’s international reputation. More concretely, India is to be portrayed as a force suppressing the people of Kashmir’s right to self-determination. In order to promote such a negative image of India, Islamabad became engaged in intensive diplomatic campaigns, especially in western capitals. It also created and/or started to support groupings within Indian administered Kashmir describing themselves as local human rights organisations raising claims of alleged atrocities conducted by Indian security forces. However, some of these organisations are linked with terrorist networks, justifying Jihadist agendas and the militant, fanatic indoctrination of Kashmiri society. In sum, the strategy serves as patsy justification in Pakistan’s official rhetoric for the necessity to act as a ‘protector’ of the Kashmiri people.

But the realities on the ground tell a different story. Pakistan’s Kashmir approach is driven by the determination to harm India and not by the realisation of well-being among the Kashmiri citizenry. There are numerous trajectories indicating this fact:

Truncation of political rights, freedoms & democracy

Pakistan’s central government keeps the areas under its administration under strict and repressive control via several measures ranging from bureaucratic restrictions to physical coercion. There are clear indications that country’s civilian and military leadership systematically truncates political rights and freedoms of the citizenry – including the freedom of association and assembly, freedom of expression and speech, right to information, electoral self-determination, among others. The right to education is also largely ignored by both central and provincial authorities (SADF, 2017, February 7). Furthermore, the absence of institutional protection against racial discrimination and the extraordinary restrictions on the freedom of religion or belief lead to multi-dimensional persecutions of the country’s religious and ethnic minorities, including the areas of Gilgit-Baltistan and Azad Kashmir. What worsens the situation is the fact that the Pakistani state fails to provide sufficient protection against sectarian and religiously motivated violence not only to its minorities but also as concerns the whole citizenry (USCIRF, 2018). The measures[5] taken by the state authorities in this context are mainly symbolic in nature since they are not reflected in concrete policy implementations and actual ‘day-today’ politics.

Additionally, through bans, censorship and intimidation, both government and security sector agents undermined the successful establishment of free and independent media (Freedom House, 2019a, 2019b). In this context, it is also reported that the Inter-Services Intelligence (ISI) – the country’s leading intelligence agency – conducts extensive surveillance measures intended to identify and subsequently silence critical voices and political opposition who question the dismal conditions of rights and freedoms and/or asking for more self-determination and autonomy. The Freedom House reports that the “security agents have allegedly warned journalists against coverage of taboo subjects, such as abuses by the military, or given reporters instructions on how to cover specific political issues “(Freedom House, 2019c, p. 5).

Furthermore, Islamabad does not allow free and fair democratic processes. For example, only those candidates supporting a pro-Pakistani stand (understood as promoting union and/or merge with Pakistan) are allowed to stand up in elections. Anyone or any political organisation who questions the accession of Kashmir to Pakistan faces harsh persecution. Such political parties ‘are actively marginalized or barred outright from the political process’ (Freedom House, 2019a). According to Alan Kronstadt (2019, August 23), Azad Kashmir and Gilgit-Baltistan have no representation at the national level despite the fact that the central government exercises all significant political decision-making powers in both areas. The Freedom House (2019a) points out that Azad Kashmir and Gilgit-Baltistan have locally elected assemblies and government with limited autonomy. However, the Pakistani central government controls—both directly and indirectly—key executive functions and most important policy matters. Additionally, federal authorities are not accountable to voters in either region (Freedom House, 2019a).

It is not surprising that Gilgit-Baltistan and Azad Kashmir are both featured by a lack of effective democratic institutions and rule of law. Observers note that Pakistan is not only conducting severe abuses of democratic norms both domestically and in areas under its administration (Kronstadt, 2019, August 23) but has also vehemently opposed all elections held in the Indian-administered part of Kashmir (Casaca, 2019, August 12).

The abysmal status of human rights

It is reported that the activities of Pakistan’s security sector agencies in Gilgit-Baltistan and Azad Kashmir are characterised by an excessive use of force. These agencies are also involved in severe human rights violations, ranging from forced disappearances, torture, kidnapping, extra-judicial killings (officially described as ‘police encounters’), ‘kill and dump’ cases (mostly killings in custody in combination with torture), arbitrary raids and detentions, as well as other types of harassments (DTAF, 2019; HRCP, 2018; OHCHR, 2018, Freedom House, 2019a). Here, the 2017 HRCP annual report states the practice of extra-judicial killings in the form of ‘police encounters’ has become institutionalised, occurs with impunity, and is viewed by the police as an effective and legitimate way of dispensing justice (HRCP, 2018, p. 42). In May 2017, the UN Committee against Torture (CAT) reported in its concluding observation on Pakistan that it found widespread practice of torture by the police, the military (including para-military forces such as the Frontier Corps and the Pakistan Rangers), and intelligence agencies (especially ISI), particularly so as to obtain confessions (CAT, 2017, p. 2, 3). The Commission found evidence that the country’s security sector agents had used torture without facing punishment, and expressed concern that extra-judicial executions and enforced disappearances may also have involved torture (DFAT, 2019, p. 60; CAT, 2017, p. 2).

Another major factor involved in this extraordinarily high level of human rights violations is the fact that there lack any institutional mechanisms for the protection of human rights. As such, the country’s security forces can act with total impunity and are not held accountable for their atrocities. Here, the CAT states that there is inadequate investigation of reports of torture by either state, military, paramilitary or intelligence services (CATS, 2017, p. 3).

The fact that the inhabitants of Gilgit-Baltistan and Azad Kashmir lack access to justice and have no guarantee for fair trials of course worsens the situation. The fact that people[6] are committing suicide because of harassment by state authorities must be seen as a clear indication of the extraordinarily poor human rights situation. In this context we highlight the high and increasing number of female suicides, especially among young women (HRCP, 2017, April, p. 19; Rahnuma et al., 2017). The process of Islamisation pushed by central authorities in both Gilgit-Baltistan and Azad Kashmir is not only leading to an increase of violence and religious radicalisation but also to further decline in the protection of rights among women and girls. The HRCP states that ‘young women are generally married off and they are not afforded the opportunities allowed to men, such as leaving their homes and using their education and skills; this results in depression and leads to suicide’ (HRCP, 2017, April, p. 20). Besides the ongoing process of state-sponsored Islamization in Gilgit-Baltistan and Azad Kashmir, deteriorating social and economic conditions constitute additional factors forcing people to commit suicide. It is reported that Gilgit-Baltistan has the highest rate of suicides among all Pakistani provinces and administrative areas (Rahnuma et al., 2017).

Misuse of the Anti-Terrorism regulations

There are numerous cases in which Pakistan’s law enforcing agencies (LEAs) are misusing the country’s anti-terror regulations, foremost the Anti-Terrorism Act/ATA (Freedom House, 2019a), especially after the National Action Plan (NAP)[7] came into effect (HRCP, 2017, April, pp. 17-20). These malpractices clearly aim at the suppression of political opposition, human and political rights defenders, and social activists expressing their resentments against discriminating government policies and mistreatment of local inhabitants[8] (CAT, 2017, p. 6). In this context, the Section 11EE of the ATA, better known as the ‘Schedule Four’[9], is particular misused by members of the LEAs (HRCP, 2017, April, pp. 17-20). Schedule Four, supposed to provide the necessary legal framework to monitor suspects of sectarianism and terrorism, is being misused to keep the opposition in check and silence voices critical of the central government. Individuals and organisations listed under schedule for are classified as threats to security and face consequences impacting severely their daily life. Concretely, they are forced to report their movements and not allowed to leave their districts without reporting their intended movements to local authorities (HRCP, 2017, April, p. 20). In practice, this means that listed people have to ask for permission to move, which truncates significantly a fundamental right. If the listed people fail to comply with the Schedule Four regulation, they can be arrested (HRCP, 2017, April, p. 20).

A particular reason to worry is that since 2015, the central government via the 21st (and the 23rd)[10] constitutional Amendment and Pakistan Army (Amendment) Act, 2015 has allowed civilians facing charges of terrorism or sectarian violence to be tried in special military courts (Speed Trial Courts/STCs), which have fewer due-process protections and hold the power to impose the death penalty (Freedom House, 2019c; Wolf, 2015).

In this context, the CAT is‘concerned about the possibility provided in the State party’s laws for retroactive immunity for acts of torture committed by members of the military and paramilitary forces after the February 2008 events, under provisions of the Actions (in Aid of Civil Power) Regulation of 2011 [especially Articles 2 & 15[11]] and the 2015 amendment to the Army Act, which grants all personnel associated with military courts complete retrospective immunity from prosecution for actions taken in “good faith”.’ (CAT, 2017, p. 3)

Both history and contemporary politics shows that Pakistan’s security circles have a quite idiosyncratic definition of terrorism, which is not necessarily in line with common understandings of this phenomenon. Fears exist that the trials will be used not only against terrorists but also against political opposition forces, critical media, and social activists (Wolf, 2015). As such, it does not come by surprise that the respective UN Commission expressed concerns over ‘the exclusive jurisdiction of the military justice system over soldiers accused of offences against civilians’ (CAT, 2017, p. 3). The latest two tenures of the military courts ran out on 31 March, 2019. Due to judicial concern by the country’s highest benches as well as lack of support by the opposition, the current government could not find a consensus for a second extension for military courts. Nevertheless, there is still a strong lobby for the military courts among the civilian leadership and one should consider their revival, especially when the security situation as regards CPEC projects further worsens. Finally, one needs to mention that despite the establishment of military courts, the counter terrorism legislation of 2015 – particularly the Anti-Terrorism Act – ‘eliminated legal safeguards against torture contained in other legislation relating to persons deprived of their liberty’ (DFAT, 2019, p. 60). This lack of safeguards persists today.

Economic exploitation and destruction of traditional livelihoods

The central government conducts large-scale exploitation of the territories under its administration. Central authorities do not apply fair mechanisms for sharing revenues (with the local citizenry) obtained from resources extracted from areas they administer (Wolf, 2019).

Another area of concern regards the persistent violations of land rights. It is reported that in the context of the CPEC’s implementation local citizens were forcibly evicted and their land allocated to state authorities to be used for corridor projects. Those affected claim that they did not received any adequate compensation for their land and property – or any offer for relocation (OHCHR, 2018).

Islamabad grants non-local/regional and foreign companies – overwhelmingly Chinese firms – large-scale rights to exploit the resources in both Azad Kashmir and Gilgit-Baltistan as well as conduct mega infrastructure projects – foremost within the framework of the China-Pakistan Economic Corridor (CPEC) – without considering much as regards local interests (Wolf, 2019). Moreover, most CPEC projects lack sufficient cost-benefit calculations and Environmental Impact Assessments (EIAs) – and it seems that many of the executing companies do not recognise the need for environmental awareness. In consequence, the citizenry suffers exponentially from environmental degradations, for example deforestation and destruction of valuable land for agriculture, pollution (air, water andnoise), causing damages to public health in the affected areas. Traditional livelihoods are also strongly affected – it appears that there is a causal link between negative environmental impacts on biodiversity, destruction of traditional livelihoods, and subsequent modern forms of slavery. The situation faced by local populations becomes even worse when one considers the increasing economic distortion inflicted by Islamabad, for example the side-lining of local entrepreneurs in granting public contracts and licenses and the employment or ‘outside workforces’.

The ignorance of existing environment protecting regulations, combined with the absence of awareness regarding the need to protect nature, lead to the creation of a vicious cycle of ‘devastation and exploitation’ in the areas under Pakistan’s administration. Especially the destruction of agricultural land and massive deforestation in the context of the CPEC (and other Chinese economic and development activities), together with forceful and uncompensated land acquisitions, increasingly make many local communities extremely vulnerable forced and bonded labour (Wolf, 2019, pp. 259-260).

Victimising the Kashmiri people

As indicated above, since the emergence of Pakistan as an independent state it conducts not only an armed confrontation against India but also – directly and indirectly – a war against the people of Kashmir on both sides of the LoC. For example, already in 1994 Islamabad deployed proxy militias to attack Kashmir; in 1999 it conducted a foray into Kargil, and numerous skirmishes along the LoC. Pakistan also facilitates major terrorist attacks. These have severe implications for the citizenry in Azad Kashmir since Pakistan uses the area not only as a launchpad for persistent aggression against India but also to set-up terrorist camps. There are reports that locals are being forced to join the Jihad in Indian-administered Kashmir and/or to support terrorists residing in Azad Kashmir. The ongoing terrorist attacks by Pakistani proxies result not only in human losses but also in the destruction of property. Furthermore, Pakistan is not only disturbing Indian efforts to facilitate good governance in the region but also undermine a smooth functioning of daily lives with negative impacts on social and economic conditions. Another way in which Pakistan acts to the disadvantage of the Kashmiri people is the fact that Pakistan used part of Kashmir’s territory of as a ‘bargaining chip’ in its relations with China. Concretely, Pakistan illegally ceded land (the Transkarakoram Tract comprising Shaksgam from Baltistan and Raskam from Gilgit) to China in 1963[12] in order to improve not only its ties with Beijing but also to win over China as a partner against India.

Final thoughts

Based on the elaboration on Pakistan’s massive violation of human and political rights combined with a large scale, systematic socio-economic marginalisation of the Kashmiri people under their administration, one must conclude that Islamabad’s attempt to portray itself as ‘protector’ and ‘champion of self-determination’ of all the people living in Indian Kashmir must be described as hypocrisy at best. As such, it is deeply ironic from Pakistani leadership to name some parts of Kashmir under its control as Azad – which means free – since local communities are far from being free. In sum, instead of protecting, Pakistan is turning the Kashmiri into victims.

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[1] For more information, see: https://unmogip.unmissions.org/background

[2] For more information on the wars between India and Pakistan, see Sumit Ganguly (2002).

[3] For more information on the 1972 Simla Agreement, see: https://mea.gov.in/in-focus-article.htm?19005/Simla+Agreement+July+2+1972

[4] The Kargil conflict, which took place in 1999 between India and Pakistan shortly after a summit between the countries’ then Prime Ministers, resulted in more than 1,000 casualties on the Indian side. This was the first conventional war since India and Pakistan became official nuclear powers. The effort to seize territory on the Indian side of the LoC around Kargil in the Indian state of Jammu and Kashmir was the brainchild of the then Pakistan’s Chief of Army Staff, Gen. Pervez Musharraf. It is speculated that while then Prime Minister Nawaz Sharif was informed, he may not have known details about the operation (Mitra, Wolf & Schöttli, 2006, p. 201).

[5] For example, a National Commission for Minorities (NCM) under the Ministry of Religious Affairs was established. Yet the impact of this new institution remains limited for several reasons: Firstly, the NCM has hardly any access to Pakistan’s top civilian leadership, notably the Prime Minister’s Office (Swett & Glendon, 2015, June 3) and no formal interaction with the country’s armed forces. Secondly, there is an unwillingness from Islamabad to entrust the NCM with sufficient powers and capacities to fulfil its function in an appropriate manner (Wolf, 2019, p. 252).

[6] For example, the Human Rights Commission of Pakistan reported that Fazal Kareem, a mechanic who worked in Aliabad – a place known for political protest against the central government – was listed under the ATA by the security forces. Facing continuous harassments by police and other LEAs, he committed suicide (HRCP, 2017, April, p. 17).

[7] For more information on the National Action Plan (NAP), see https://nacta.gov.pk/nap-2014/

[8] It is reported that several members of the Awami Workers Party (AWP) fall victim to the misuse of anti-terror laws. One of the most well-known examples is Baba Jan, who was charged with a 40-year jail sentence (Naviwala, 2012; HRCP, 2017, April, p. 18).

[9] The Schedule Four (List) is meant to for proscribed organisations, terrorists and individuals or organisations involved in sectarianism. Being listed under this regulations has severe consequences.

[10] In 2015, National Assembly passed the 21st Amendment and created military courts for the period of 2 years. In 2017, the 23rd Amendment was passed to re-establish military courts for further two years till end of March 2019. At the end of this period, all the amendments will expire/ be automatically removed and a process for the enactment of legal-constitutional justifications for a second extension of the military courts need to commence.

[11] These articles provided the Armed Forces with very broad powers to detain people suspected of involvement in terrorist activities without charge or judicial supervision in internment centres (CATS, 2017, p. 4)

[12] This ceding of land was facilitated within the framework of the 1963 Sino-Pakistan Agreement, also known as the Sino-Pakistan Frontier Agreement and Sino-Pak Boundary Agreement.