His role under Article 99 of the Charter in Kashmir
Dr. Syed Nazir Gilani
Welcome Mr. Secretary General to Pakistan and have a rewarding stay, in a country which is home for major religions of the world. It has hosted the Afghan refugees and 2.5 million Kashmiri refugees (five generations) recognised in UN Security Council Resolution 47 of 21 April 1948. Your participation at the International Conference on Afghan refugees would attract criticism of inequity and discrimination, if you fail to uphold the guarantees made to Kashmiri refugees in paras 12 and 14 of UN Security Council Resolution 47.
The principle of ‘equality of peoples’ under the Charter, calls upon the United Nations Secretary General to interpret article 99 in the manner Dag Hammarskjold interpreted in the case of Tunisia in 1961, U Thant in 1971 in Nigerian civil war, Waldheim in North Vietnam and Vietcong, Perez de Cuellar in Iran-Iraq war, Boutros-Ghali in 1994 in Burundi, Kofi-Annan in 2005 in Zimbabwe and Ban-ki Moon in 2006 and 2013 in Fiji and Syria.
UN Secretary-General Dag Hammarskjold, on receiving an invitation from President Habib Bourguiba to visit Tunisia in 1961, told the Security Council that it was “Obvious that he could not discharge the responsibilities flowing from article 99 unless he could make visits and thus be in a position to form a personal opinion about the relevant facts of a situation which might threaten international peace and security”. No member of the Council challenged the interpretation of the duties of the Secretary-General. Nor were there any objections to the fact-finding missions initiated by U Thant in connection with the Nigerian civil war.
UN Secretary-General Dag Hammarskjold visited the summer capital of Jammu and Kashmir, for two days from 20-22 March 1959. He wanted to know for himself the situation in Kashmir. These were the times when Indian citizens, required an Entry Permit (VISA) to visit Indian administered part of Jammu and Kashmir.
Indian Government has committed political vandalism on 5 August and military aggression on 31 October 2019. People have remained under lock and key and cut off from the rest of the world. It is not only article 99 that envisages your duty towards the people of Kashmir but the 9 December 1991, General Assembly resolution 46/59; “Declaration on Fact-finding” in the Field of the Maintenance of International Peace and Security”, has further strengthened the role of Secretary-General. The Secretary-General can start any activity designed to obtain detailed knowledge of the relevant facts of any dispute or threatening conflict, in which the competent UN Organs need effectively to exercise their functions pertaining to the maintenance of international peace and security. He may bring any such matter to the attention of the Security Council.
Seven of your predecessors listed above have explicitly invoked the duties under article 99. “Declaration on Fact-finding” by the United Nations has strengthened this role since March 1991. I wish to quote the UN Security Council record of the 611th meeting held on 23 December 1952 and invite your attention to “a very grave offence”.
The representative of Netherlands addressing the 611th meeting of the UN Security Council on 23 December 1952, has said, “In obtaining the consent of the parties to have the final and deciding process, that of an impartial plebiscite, held under the offices of the United Nations, the Council has placed the authority of our world Organization at the service of both parties and at the service of the people of Jammu and Kashmir themselves. We believe that this in itself constitutes a guarantee of considerable value. The party that would dare to violate an agreement thus reached would load upon itself a very grave offence against the other party, against the United Nations, and against the right of the people of Jammu and Kashmir to self-determination, a right which, in other contexts, both parties have so often and so eloquently defended.” Para 28.
On 5 August and 31 October, 2019 Government of India has “loaded upon itself a very grave offence against the other party (Pakistan), against the United Nations, and against the right of the people of Jammu and Kashmir to self-determination.” The Netherlands has further added that “So when there is a difference of opinion on the question of the remaining military forces, let us not underestimate the significance of the fact that the authority of the Security Council has become a factor in the solution of this matter- unless an agreement can be found outside of the Council and that the auspices of the United Nations are involved.”
The two OHCHR reports on the Human Rights Situation in Jammu and Kashmir and your report of May 2019 on Children and Armed Conflict, warranted an urgent consideration of your role under article 99 and Under UN “Declaration on Fact-finding” in saving Kashmiris defined by UN as “Historic” and “People of Legend”, entitled to “Rights and Dignity” and “Security and Self-Determination.” Maharaja of Kashmir was able to impose a curfew for 11 days in 1931, but the present Government of India led by Narendra Modi has placed men, women, children, sick and elderly under the guard of over 900,000 soldiers.
The character, number, and location of Indian forces in Kashmir have been defined in UN Security Council resolutions. These forces do not have an occupational role. They were required, “for the maintenance of law and order and of the cease-fire agreement, with due regard to the security of the State and the freedom of the plebiscite.” These forces are sub-ordinate to the Local Government. As a supplement, these forces remain under seven restraints.
Secretary-General has to address the Kashmir Case on the basis, that India has surrendered its Kashmir accession at the UN Security Council on 15 January 1948, for a UN-supervised vote. The earlier arrangements from 27 October 1947 to 14 January 1948, changed on 15 January 1948. Authority of the Security Council has become a factor in the solution of this matter
UN Security Council has explained that “Security of the State”, would not be the exclusive responsibility of India. In respect of Resolution, S/2839 Netherlands has argued that “The draft resolution takes into account a difference in the basic positions of the two parties with regard to the State of Jammu and Kashmir. It recognizes a difference in the responsibility of the remaining forces on both sides of the cease-fire line when it refers to the principles and criteria contained in paragraph 7 of Mr. Graham’s, proposal of 4 September 1952. According to that paragraph, there shall be, on the Pakistan side, the minimum number of forces required for the maintenance of law and order and of the ceasefire agreement, with due regard to the freedom of the plebiscite; on the Indian side, in addition to these two criteria, the stipulation “with due regard to the security of the State” must be taken into account – although that does not mean that India has the exclusive responsibility in this respect.”
India has “loaded upon itself a very grave offence” and there is an urgent need for the UN to unfreeze the five out of the six elements (sixth being India), from inaction, frozen under UN Resolutions and allow them to structure a credible defence of the people of Kashmir. Or it is time that the UN Security Council revisits Pakistan’s proposal to induct UN Forces into Kashmir. The proposal has been supported by Australia, Cuba, the United Kingdom and the United States of America. Thirdly, UN Security Council needs to move in and ensure to establish a “Provisional and Responsible” Government of Jammu and Kashmir, represented by all principal elements, to re-appoint the Plebiscite Administrator and consider the final disposal of an Indian soldier, to ensure the freedom of Plebiscite.
Azad Kashmir Government (on the Pakistan side) established to discharge responsibilities under UNCIP Resolutions, has its berth in the UN-supervised Government in Jammu and Kashmir (at Srinagar). Its forces (Azad Forces) need to be re-organized and the UN should assist the Azad Kashmir Government, to be able to build institutions and prepare for participation in holding the Plebiscite. Although Pakistan has taken on to help Azad Kashmir Government to discharge the responsibilities under UNCIP resolutions, it needs further support of all member states of the United Nations.
The second UN Secretary-General Dag Hammarskjold visited Srinagar in March 1959. It is high time that the 9th UN Secretary-General, António Guterres, should visit Srinagar and Muzaffarabad in March 2020. It would be in keeping with the traditions set by your predecessors. It is right time that the UN Secretary-General invokes article 99 and UN “Declaration on Fact-finding”, in the interests of peace and self-determination.
The author is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations.