Kashmir is not Palestine, India is not Israel

Ray · 12-26-2005, 15:39 PM

Quote:

Kashmir is not Palestine, India is not Israel

In recent weeks, Pakistan's military dictator, General Parvez Musharraf has been claiming that the situation in Kashmir is akin to Palestine. Such a position is not new because some Islamists, particularly in the US have been arguing for many years that just as Palestine is occupied territory, so is Indian Kashmir. As a reaction to such misguided polemics, some Hindus frustrated with Pakistan's machinations against India, (and the inability of many in the Islamic world to distinguish fiction from reality in Kashmir) are beginning to identify with Israel.

But nothing could be further from the truth. Kashmir is not Palestine, India is not Israel. While parallels do exist, they are not the ones touted by the advocates of the two-nation theory in Pakistan or by Islamic chauvinists (or revivalists) and other sectarian Islamic elements elsewhere in the world.

For one thing, unlike the Palestinians, who were neither consulted, nor given any choice in the creation of the state of Israel, the people of Kashmir voluntarily chose to merge with India under the leadership of the secular and progressive Jammu and Kashmir National Conference. When Pakistan invaded Kashmir after 1947, the people of Kashmir formed their own civil-defense committees and thousands of National Conference activists and supporters fought tooth and nail against Pakistani invaders. The Indian Army was welcomed with open arms, and Kashmir was integrated into the Indian nation with some special constitutional rights and privileges. (See Self-Determination in Jammu & Kashmir)

Thus, Kashmir became an equal member of the Indian Federal Union, and this merger took place through the democratic will of the people of Jammu and Kashmir, unlike in Palestine where the state of Israel was formed on a thoroughly undemocratic basis, where the will of the Palestinian people was simply ignored. The state of Israel was foisted on the people of Palestine - it was presented to them as a fait accompli - as a colonial imposition that would eventually leave them refugees in their own ancestral land. India did not impose any such unity on the people of Kashmir - it invited the people of Kashmir to merge, who did so in full volition, and full support of the ideals represented by secular and democratic India.

Unlike Israel which was founded on the sectarian ideology of Zionism, that privileged Jews and Judaic religion and culture over other belief-systems of the Middle East, India was not founded on any such narrow and limiting ideology. Unlike Israel, which unabashedly defends the rights of Jews over all others, India (as a state) has never claimed religious exclusivism for it's Hindu citizens.

India was envisaged as a nation where democratic rights were to be broadly respected - and the Indian constitution explicitly calls for the respect of ethnic, religious, linguistic and cultural diversity. Unlike Israel, India was not a unitary state founded on the basis of religious hegemony, but a highly pluralistic state that brought together a very diverse group of people in a hard fought and delicately wrought political unity.

Not only did India bring together people who spoke many different languages and followed a variety of regional customs and traditions, even India's Hinduism was too diverse and too varied to allow for any sort of over-arching centralism or hegemony as is provided for in the mono-theistic religions of the world. Hindus worship a variety of gods and goddesses, they have no single holy book, no single holy place of pilgrimage, nor do they believe in just one messiah. The philosophical systems of the Hindus are equally varied, with some schools rejecting all belief in a super-natural entity.

In India's mosaic of religions and cultures, there has been as much space for the people of Jammu and Kashmir as there is for the Tamilians of the South, for the Goans of the West Coast, for the Mizos of the North East hills, or for the Hindi speakers of the plains. The Indian constitution recognizes several Indian languages as official languages, and India's currency notes are printed with denominations marked in several different languages. And anyone truly intimate with the contemporary history of India will know that no one religious or ethnic group has succeeded in complete political domination of the country. Any time any single group attempts to monopolize power, a coalition of forces rises up to combat such a would-be usurper. Thus attempts at religious or regional bullying have invariably been confronted and resisted by opposing factions. That is why, in recent years, India has had to be ruled by multi-party alliances that represent different regional aspirations, and coalitions change with each new election. And each coalition government has demanded sacrifices and compromises from political entities that might otherwise try to dominate the political landscape.

But in the conflict between the Palestinians and the Israeli state, there appears to be little possibility of such give and take, of such checks and balances. Unlike in Israel, where all the top political posts have always been assigned to Zionist Jews, India has had a Muslim President, a Sikh President, a Muslim Vice President, and Sikhs, Muslims, Parsis and Christians holding senior cabinet posts, as well as senior leadership positions in the Indian military and the Indian judiciary. It should also be noted that three of India's Prime Ministers have been Kashmiri or part-Kashmiri - i.e. Jawaharlal Nehru, Indira Gandhi and Rajiv Gandhi. Many of the leading icons of India's Planning Commissions have been Kashmiri and Kashmiris are also represented in the Indian Armed Forces and Police Forces. India's current Minister of State for External Affairs Omar Abdullah is a Kashmiri.

Whereas the state of Jammu and Kashmir will always find allies in India's fractious politics, Palestinians cannot count on such fractiousness within Israel to give them any hope or confidence in the future. Although to some extent, the people of Palestine have been compelled to see their oppression in religious terms because of Israel's Zionist ideology, religious differences are not the best way to understand the complexities of the Indian situation. Just as Muslims make up a significant percentage of the Indian population (there are roughly 150 million Muslims in India), roughly one-third of Kashmir's population is non-Muslim i.e. Hindu, Sikh or Buddhist. Whereas the Palestinian Intifada enjoys widespread support throughout the towns and villages of the West Bank and Gaza in Palestine, the cause of Islamic separatism attracts the support of only a minority of the people living in Jammu and Kashmir (who are mainly concentrated around the Srinagar Valley). (See this essay on Kashmir) And while the Arabs still living in Israel overwhelmingly support an end to the occupation of the West Bank and Gaza, India's Muslims are not in favor of Kashmiri religious separatism.

There are other important points of departure. Unlike the West Bank and Gaza where the Israeli state has built a network of exclusive settlements for it's Zionist citizens, (through the illegal and arbitrary expropriation of Palestinian lands), the constitution of Kashmir prevents non-Kashmiri Indians from buying up land in the state. Unlike in Gaza and the West Bank where the Israeli state routinely confiscates weapons from struggling Palestinians, the Indian state (in recent years) has provided small arms to tens of thousands of villagers (Hindu, Muslim and Sikh) who make up the thousands of village-defense committees scattered across Jammu and Kashmir.

If there is any parallel in the Indian situation with Palestine, it is between how both Israel and Pakistan were created on the basis of artificially hyped religious contradictions by the same former colonial power - Great Britain. In the Indian subcontinent, it was Pakistan that was imposed in an undemocratic manner on the people. (See this essay on partiiton). Just as Palestinian Christians and Muslims became refugees upon the creation of Israel, Hindus and Sikhs became refugees when Pakistan virtually drove out it's entire non-Muslim population to create a religiously "pure" state. Similiar attempts at creating purely Muslim conclaves have also been made in parts of Kashmir. But if any part of Kashmir is occupied by another nation, it is the part of Kashmir that is under Pakistan's military rule. (See this essay on Kashmir).

Although the Kashmiri separatist movement has received considerable publicity, separatist movements are just as active within Pakistan (in Baluchistan, Sindh and the Pathan and Pakhtoon regions). Nationalist activists in Gilgit and Baltistan particularly resent Pakistani military occupation. Abdul Hamid Khan, chairman of the Balawaristan National Front has asserted that Gen. Musharraf and other Pakistani generals and political and religious leaders should be booked as "war criminals for the genocide" carried out by them in this region. The Balawaristan leader has stated that more than 900 youth have been killed, 1000 have become disabled and wounded, while 40 were still missing, and several civilian buildings had been destroyed as a consequence of Pakistan sponsored terrorist activities. He said that the region had been denied all political and human rights activities as a result of which more than 100 political activists were facing sedition cases and "no impartial judicial system existed in Balawaristan." (From a report in the Times of India, Aug 3, 2001)

Hence, a more appropriate comparison is one between the undemocratic Islamic militaristic state of Pakistan and the Zionist militaristic state of Israel. Rather than India being an oppressor in Kashmir, both India and Kashmir are victims at the hands of Pakistan sponsored terror. And just as the US has invariably sided with Israel against the Palestinians, the US continues to defend General Musharraf against India and against those fighting for democracy in Pakistan.

Kashmir is not Palestine, India is not Israel

Note: Some Indians have also noted how both nations - India and Israel - have been homes to refugees fleeing from persecution - Jews from anti-Semitic Christian Europe, and Hindus and Sikhs from Islamic Pakistan and Bangladesh.

These Indians are thus torn between sympathy for a people who only 50 years ago were the tortured Pariahs of Europe, and sympathy for the Palestinians who languish in refugee camps - without a country to call their own.

But unfortunately, the Jews who may have had every justification for fleeing from the horrendous and catastrophic crimes in imperial and fascist Europe were unable to transcend the ideology of Zionism, and help create a secular and democratic state that could have united Jewish refugees and Jewish Palestinians with Muslim and Christian Palestinians. This has been the tragedy of the Jews, who must now live in a state of perennial war in Israel.

A secular, democratic and pluralistic nation comprising Jews, Christians and Muslims in Palestine could have put all the other Islamic fundamentalist and despotic nations of the Persian Gulf to shame, but instead, the oppression of the Palestinian people has legitimized the existence of some of these socially backward and politically undemocratic regimes. It is precisely for this reason that many of the so-called backers of the Palestinian cause at best offer only lip-service to the Palestinian struggle - largely leaving the beleaguered Palestinians to fend for themselves. And this is the tragedy of Palestine.

Of course, the US role in the Middle East has been far from helpful. US policy in the region has been especially duplicitous, targeting Iraq, one of the most modern and secular amongst the Arab nations, while backing regressive monarchies and regimes based on sectarian chauvinism or religious fundamentalism and exclusivity.
http://members.tripod.com/~INDIA_RES...diaisrael.html

This is from South Asian Voice and the authorship is from Northern Area of Pakistan.

Comments would be appreciated.

Gautam · 12-26-2005, 15:48 PM

Assuming we accept Gen Musharaff's theory, what would be the basis of this theory.

Did India occupy Kashmir

hmm I don't think so for Maharaja Hari Singh signed the document of accession to Indian Union.

Did India drive out any Kashmiri's

Hmm. No the answer is that for more than 50 years India has been trying to protect them.

To compare Kashmir to Palestine would be stupid and further complicate any peaceful solution. Gen Musharaff should stop analysing and making comments about how kashmir is simillar to this and that and should instead focus on working towards a peaceful solution and to solving Pakistan's conundrum, the weakness of democractic institutions in Pakistan and the rise of Islamic-Fascists.

Neo · 12-27-2005, 17:06 PM

Quote:

Originally Posted by Gautam

Did India occupy Kashmir

hmm I don't think so for Maharaja Hari Singh signed the document of accession to Indian Union.

Yes, but the treaty was rejected by the International Cometee of Jurors as I can remember...

lemontree · 12-28-2005, 00:09 AM

Quote:

Originally Posted by Neo

Yes, but the treaty was rejected by the International Cometee of Jurors as I can remember...

Who comprised this committee and on what grounds did they reject this treaty of accession?

Neo · 12-28-2005, 07:54 AM

Quote:

Originally Posted by lemontree

Who comprised this committee and on what grounds did they reject this treaty of accession?

LT,
Asim opened a thread about this issue some time ago with a lot of supporting liks.
I'll ckeck if I can find the thread.

Ray · 12-28-2005, 09:39 AM

The International Court of Justice on Indo Pak has opined

Quote:

International court of justice

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Sanjoy Ghose elaborates the tricky nature of the Pakistan-India tussle over border issues that have been on-going for decades. He underlines the need for change in the working of the international legal machinery when tackling such situations.

The radar at the Nalya Air Base had been picking up signals of Pakistani intrusions for some time. August 10, 1999, was just another day. The area was the Rann of Kutch, the site of two wars, a barren land that had been hotly contested by the midnight's children.
The background

Sometime between 10:30 and 10:55 hours the Pakistani Spy Plane "Atlantique" was shot down by India. She claimed that the craft had intruded into her territory and had tried to retreat when attacked. Pakistan countered this position. The plane was well within Pakistani territory, she asserted. Both sides took the media to the site to show them the debris which lay scattered both on Indian as well as Pakistani soil.
On August 30, 1999, the Government of Pakistan made a demarche to the Government of India, through its High Commission demanding USD60.2 million as compensation for the loss of the Pakistani aircraft and the 16 persons on board.
Pakistan moves court

Upon India's rejection of the claim, Pakistan knocked the gates of the Peace Palace at The Hague. On September 21, 1999, the registry of International Court of Justice (ICJ) received the application of the Islamic Republic of Pakistan filed through agent Saeed M Khan.

The application raised the following legal grounds:

* Breaches of the United Nations Charter, in particular Article 2(4) which prohibits use of force against the territorial integrity and political independence of a state
* Breaches of the bilateral agreement ie 1991 Indo-Pak Agreement on Prevention of Air Space Violations
* Breaches of the customary international law on use of force and infringement of sovereignty

On November 2, 1999, the Indian agent indicated to the registry that the Republic of India wished to contest the jurisdiction of the Court. At a meeting convened by the President of the Court on November 10, 1999, the parties agreed that a detailed memorial and counter memorial shall be filed by the parties confined to the preliminary issue of jurisdiction and that the same would first be decided.

Detailed arguments were heard from April 3r to 6, 2000. Article 36 of the Statute of the International Court of Justice (ICJ) addresses the jurisdiction of the Court and states that the ICJ can hear only those disputes that are referred to it by the disputants and such other matters specially provided in the Charter or in treaties. While acceding to this Statute a State can make reservations i.e. state circumstances under which the ICJ would have no jurisdiction to entertain any complaint. India for instance has filed a reservation, excluding the ICJ's jurisdiction in any dispute involving a Commonwealth nation.
Pakistan's arguments

Given India's contest of the ICJ's jurisdiction, Pakistan had to prove to the Court that India was bound by a Charter of Treaty Obligation to compulsorily accept the jurisdiction of the Court.

At the kernel of Pakistan's submissions was Article 17 of General Act for Pacific Settlement of International Disputes of 1928 (1928 Act) which states that disputes between members of the League of Nations would, subject to reservations, should be referred to the Permanent Court of International Justice (PCIJ), unless the parties agree to resort to any arbitral tribunal.

Pakistan contended that as British India had acceded to this Treaty, India and Pakistan were bound by the same as successors in interest. However, akin to India's reservation to the ICJ Statute, even British India had made a reservation to the 1928 Act insofar as the dispute arose within the Commonwealth. Pakistan brushes aside the "Commonwealth Reservation" to the 1928 Act as well as to the ICJ Statute on the grounds of discrimination and antiquity.

Pakistan also fell back on the text of Article 36 of the ICJ Statute to make a case that in matters related to the Charter or Treaty Obligations the ICJ would have a compulsory jurisdiction.

In a cheeky twist, Pakistan even paid obeisance to the Shimla Agreement of July 2, 1972 which provides that the India and Pakistan shall settle their disputes bilaterally or "any other peaceful means mutually agreed between them." According to Pakistan, the 1928 Act adjudication was a "mutually agreed" means for dispute settlement.
Indian response

India fell back upon a catena of juristic scholarship to establish that it was a "well established principle of international law" that the ICJ could only exercise jurisdiction over a State with its consent. In its memorial India cited the Fisheries Case (December 4, 1998) and the Phosphates in Morocco Judgement 1938 PCIJ, Series a/b No 74 p, 23) and President Mc Nair's Separate Opinion in the Anglo-Iranian Oil Company case (ICJ Reports, 1952, p116) among others to emphasise that "consent" was the basis for the jurisdiction of the ICJ and even while accepting the compulsory jurisdiction, a State could make any reservation to its declaration.

The Indian submissions on the 1928 Act may be summed up as follows:

* The 1928 Act was an antiquated treaty and referred to the League Organs which were long extinct. Even the UN had recognised its redundancy by revising the same in 1949, a revision neither acceded to by India or Pakistan.

* The 1928 Act was political in character and thus not binding upon the successor states i.e. India and Pakistan and was not in the contemplation of the Indian Independence (International Arrangements) Order, 1947 which comprehensively listed the British Indian Treaties which the dominions would inherit.

* The Pakistan Supreme Court itself in 1961 held that the Indian Independence (International Arrangements) Order, 1947 did not provide for the devolution of treaties which in international law were incapable of devolving upon only a part of the parent state, for eg treaties of alliance, arbitration and commerce.

* Even the conduct of the parties (e.g. during the Rann of Kutch Dispute) clearly establishes that they never considered the 1928 Act as applicable to them.

* In any event the British Indian reservation to the 1928 Act included one in respect of any party which was not a member of the League of Nations and it could not be the position that Pakistan was a member of the League of Nations.

* The Government of India had, in any event, by its note of September 18, 1974, clarified that it never considered itself to be bound by the 1928 Act

Pakistan's tongue-in-cheek argument based on the Shimla Agreement was countered by India by simply stating that the plain language of the treaty clearly establishes that the parties were referring to a forum that many be mutually agreed upon in future and was not referring to allegedly pre-existing forums. It also pointed out that Pakistan did not protest against India's denunciation of the 1928 Act in 1974.

With respect to the argument centred around Article 36(1) of the ICJ Statue, India's position was that the UN Charter did not provide for any matter where there would be a compulsory jurisdiction of the ICJ.
The ICJ verdict

By 14 votes to two, the ICJ held: (Justice Al-Khasawneh and ad hoc Judge Pirzada dissenting)

* Even assuming arguendo, India was a party to the 1928 Act, after the Indian communication of September 1974, it may be construed that India has denounced the 1928 Act and is ceased to be bound by the same.
* The reservations where not "extra-statutory" as alleged as the language of the ICJ statute as well as state practice has clearly established that a State can enter any reservation it may desire.
* The Pakistani argument that the Commonwealth reservation was obsolete does not hold water, as the court has to interpret the reservation having due regard to the intention of the State "at the time" it accepted the compulsory jurisdiction of the ICJ.
* The Shimla Agreement merely refers to "peaceful means" to settle disputes but does not in any manner modify the specific rules governing recourse to any such means.

The Court, while declining to entertain jurisdiction, impresses upon the parties to settle their disputes pacifically through the Shimla Agreement and the Lahore Declaration of February 21, 1999.

In his separate opinion Judge Oda emphasised the point that jurisdiction can be vested in the ICJ only in terms of Article 36 of the ICJ Statute and not in terms of the 1928 Act. Judge Koroma in his opinion pointed out that the ICJ had discharged its duty under the UN system by judiciously reminding the parties of their obligation to pacifically settle their disputes.

Indian nominee Judge Jeevan Reddy, did not waste the opportunity to refer to the Shimla Agreement, the Lahore Declaration and Obligation to combat cross-country terrorism!

Dissenting Judge Al-Khasawneh was of the opinion that by not pronouncing on issues such as the parties status with reference to the 1928 Act, the transmutability of the 1928 Act, etc. the Court left the door open for recurring doubts. The Judge brushed aside the "multilateral treaty reservation" by stating that the dispute related to the breach of customary international law. On the point of the Commonwealth Reservation, while the Judge was of the opinion that it was not exactly obsolete but it was directed towards Pakistan and had no rationale or reasonably defensible justification.

Pakistan-nominee Pirzada remained faithful to his mother country and ruled that India and Pakistan both equally inherited the mantle of succession, and thus became parties to the 1928 Act. His judgement bristles with a judicial lack of logic. While citing the Pakistan Prime Minister Liaquat Ali Khans' protest against India's invocation of the Commonwealth Reservation, from as early as 1950, the judge concluded that India was bound by the doctrine of estoppel!

The Judge stated that the Indian denunciation of the 1928 Act was not in good faith and was a mere counter to the Pakistan Declaration of May 30, 1974 that it was bound by the 1928 Act. The Judge skirted the international law doctrine that a nation, in enlightened national self-interest may disassociate itself from any treaty as per the terms provided therein. This is applicable even more strongly in the case of a pre-colonial State rescinding/denouncing a colonial treaty. The Judge then proceeded to term India's Commonwealth Reservation as Pakistan-specific. As his Indian brother Judge, he too did not resist the opportunity to embarrass the opponent. He exhorted that the parties should solve the Kashmir Problem!
In conclusion

While "terrorism" and "Jammu and Kashmir" may be linked in real-politick to the Atlantique incident, in "international law" the Indian and Pakistani ad hoc judges had no logic to connect the same to the case, save to embarrass the opposite party.

The case yet again exposes the lacunae in the UN System whereby a State can evade the process of legal adjudication and jurisdiction of the World Court rests on the consent of the allegedly errant State. Pakistan cannot be faulted for approaching the World Court for reparations. Unfortunately, international justice is as cold as the climes where it is dispensed. International law must move forward and interpret treaties in a manner to claim space for the law court, if the alternative is the battlefield. I wish we had consented to judicial determination by the ICJ under the Shimla Agreement. Of course, the World Court would also have to simultaneously try Pakistan's dastardly role in the Kargil incident.
Sanjoy Ghose is an advocate practising in Delhi with a keen interest in issues of national and international governance.

http://www.lawyerscollective.org/lc_...of_justice.htm

Ray · 12-28-2005, 09:44 AM

To the best of my knowledge I could be wrong but I don't think I am wrong, there is no organisation of authority called an International Committee of Jurors.

lemontree · 12-29-2005, 00:22 AM

Thank you sir.

Jay · 12-29-2005, 01:13 AM

I guess he is talking about ICJ at the Hague.

I dont see a reason how ICJ can annul the accession treaty between India and Maharaja Hari Singh.

indianguy4u · 12-29-2005, 03:04 AM

Those are type of systematic brainwashing things taught in land of pure. Bunch of lies if repeated again & again becomes truth for the receiving public & from such things increases their victim's mentality. They dont think its imp to cross check the facts just take those as gospel truth. Similar to what platinum wrote in that closed thread that his father had told him PA armymens become human mines to stop IA tanks, can a sane person believe that? Few unorganised incidents by irregulars could happen but can that be expected from prof armies?

12-28-2005, 09:44 AM	#7 (permalink)
Ray Postmaster General *Military Professional* Join Date: 08-20-03 Posts: 28,236 Country:	To the best of my knowledge I could be wrong but I don't think I am wrong, there is no organisation of authority called an International Committee of Jurors. Last edited by Ray : 12-29-2005 at 00:59 AM.

12-29-2005, 01:13 AM	#9 (permalink)
Jay Tamizhanban *Senior Contributor* Join Date: 08-06-03 Location: Edison, NJ Posts: 6,485 Country:	I guess he is talking about ICJ at the Hague. I dont see a reason how ICJ can annul the accession treaty between India and Maharaja Hari Singh. __________________ A grain of wheat eclipsed the sun of Adam !!

12-29-2005, 03:04 AM	#10 (permalink)
indianguy4u Real Madrid CF *Senior Contributor* Join Date: 03-07-05 Location: Mumbai Posts: 3,213 Country:	Those are type of systematic brainwashing things taught in land of pure. Bunch of lies if repeated again & again becomes truth for the receiving public & from such things increases their victim's mentality. They dont think its imp to cross check the facts just take those as gospel truth. Similar to what platinum wrote in that closed thread that his father had told him PA armymens become human mines to stop IA tanks, can a sane person believe that? Few unorganised incidents by irregulars could happen but can that be expected from prof armies? __________________ Hala Madrid!!

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12-26-2005, 15:48 PM	#2 (permalink)
Gautam Banished Join Date: 08-28-05 Location: London Posts: 903	Assuming we accept Gen Musharaff's theory, what would be the basis of this theory. Did India occupy Kashmir hmm I don't think so for Maharaja Hari Singh signed the document of accession to Indian Union. Did India drive out any Kashmiri's Hmm. No the answer is that for more than 50 years India has been trying to protect them. To compare Kashmir to Palestine would be stupid and further complicate any peaceful solution. Gen Musharaff should stop analysing and making comments about how kashmir is simillar to this and that and should instead focus on working towards a peaceful solution and to solving Pakistan's conundrum, the weakness of democractic institutions in Pakistan and the rise of Islamic-Fascists.

12-29-2005, 00:22 AM	#8 (permalink)
lemontree Bandaid *Military Professional* Join Date: 10-04-04 Location: India Posts: 5,928	Thank you sir.

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