Kashmir: The Key to a Grand Bargain

It has been abut four months since the government of Indian Prime Minister Narendra Modi decided to revoke by presidential order Jammu and Kashmir’s (J&K) special autonomous status within India. In a nutshell, the presidential order of August 5 scrapped provisions of Article 370 of the constitution, which allowed J&K to make its own laws, except in matters dealing with foreign affairs, defense, and communications, and cancelled Article 35A, which gave the J&K legislature the power to determine who is a permanent resident of the territory. Only permanent residents of J&K are legally allowed to own land and apply for government jobs, scholarships, and financial assistance. Both these articles enshrined the 1952 Delhi Agreement between the Nehru government and the then-chief minister of J&K, Sheikh Abdullah.

A direct consequence of this action is that J&K as a state has been abolished and replaced by two Union Territories (Jammu and Kashmir, and Ladakh), which will be governed directly from New Delhi. This came into effect on October 31.

The scrapping of the special status for J&K was on the manifesto of Modi’s party for the national election held in April and May, which returned his Hindu nationalist Bharatiya Janata Party (BJP) to power with an increased majority in parliament. So there was no real surprise to this move. However, what surprised J&K residents was the heavy-handedness of Modi’s tactics in the lead-up to the announcement. Some 38,000 additional troops were brought into the territory – already the most militarized zone on earth – to deal with the inevitable popular reaction to this unilateral decision. In addition to the increase in the security force presence, a curfew was imposed; schools and universities were closed; the internet was shut down; thousands of tourists and pilgrims were told to leave; and politicians, including former chief ministers Mehbooba Mufti and Omar Abdullah, were put under house arrest.

While the massive clampdown has eased somewhat for the people of Jammu and Ladakh, the situation remains significantly different for the people living in the Kashmir valley. This is the Muslim-majority area of J&K, which has been getting special attention from the security forces whose approach to crowd control has been brutally heavy-handed. There’s only limited mobile phone connectivity, the internet remains shut down, and some curfews are still in place. The security forces continue to use, as they have for months, shotgun pellets for crowd control, injuring hundreds of civilians, including women and children. The valley is effectively still in lockdown mode. This has severely affected the daily lives of some 8 million residents of the Kashmir valley. And while shop owners are allowed to reopen for business, they have decided instead to resist New Delhi’s unilateral move and have self-imposed a shutdown en masse of their businesses. Finally, parents fear for their children’s safety, leading the majority to keep their children at home and out of school.

This intolerable situation, however, has begun to get the attention of world leaders, such as German Chancellor Angela Merkel and U.K. Prime Minister Boris Johnson, who have condemned the security forces’ unacceptable tactics. The U.S. Congress held a public hearing recently on the situation in Kashmir, during which members were highly critical of India’s approach to Kashmir. U.S. newspapers such as The Washington Post and The New York Times, which are generally sympathetic to the Indian government, have begun to run stories much less favorable to New Delhi’s position. Finally, the Office of the United Nations High Commissioner for Human Rights (OHCHR) has been scathing about the situation and has demanded that the Indian authorities “fully restore the rights that are currently being denied.” This has not been the first time that OHCHR has been critical of India’s governance approach to the territory. In July, it released its second report on the situation in Kashmir, which called for an international commission of inquiry to investigate the allegations of human rights violations.

Although Modi has declared that the situation will be back to normal after four months, few people are convinced that is the case. Normality is far from being close to restored. And no one is convinced either that the reason for the change of status was to bring development to J&K and to better integrate it with the rest of India. The big worry for everyone is that once the clampdown is lifted – which it will have to be eventually – the situation will get worse before it gets better. Or as Prime Minister Imran Khan of neighboring Pakistan put bluntly when addressing the UN General Assembly in September, there “will be a bloodbath when the curfew is lifted.”

It’s important to remember that the present unrest in Kashmir didn’t start in August. Its genesis goes back to the rigged state elections of 1987 and the subsequent uprising against the state government’s draconian laws. These led to the start of the insurgency, assisted by Pakistan, across the border. The (Jammu & Kashmir) Public Safety Act (PSA) and the Armed Forces Special Powers Act (AFSPA) have been used ruthlessly against political opposition and militants, allowing the detention of someone without trial for up to two years. These laws have effectively given the Indian security forces carte blanche against all opposition and feed much of the anti-Delhi sentiments among the Muslims of J&K. As noted above, the OHCHR has been particularly scathing about Indian security’s behavior in Kashmir.

Bearing in mind the long history of political suppression in Kashmir and the subsequent abrogation of J&K’s autonomy, it’s obvious the present situation in Kashmir cannot continue and will simply get worse. There are three reasons why there needs to be a circuit-breaker. First, the Kashmiris are hurting, and their human rights are being trampled daily. This needs to stop. Second, India aspires to great nation status, but Kashmir is making it bleed on the world stage. The behavior of its security forces in Kashmir is appalling, and the lack of accountability is staggering. This is unacceptable for a country that prides itself as being the largest democracy in the world. It needs to heal this public relations wound. Third, since Partition, Kashmir has been a festering issue that has poisoned relations between nuclear-armed India and Pakistan; wasted billions of rupees on defense spending by both countries; caused three wars; and utterly stunted normal economic and trade relations between the two countries, which could have helped lift millions of Indians and Pakistanis from abject poverty. This absurdity must also stop.

The circuit-breaker would be a grand bargain between India and Pakistan. While it would cost a lot of political capital from both Khan and Modi, the reward down the road would be worth it. It would cut the 70-year-old Gordian knot. The broad outline of the five-step bargain would be as follows.

First, Pakistan and India would co-sponsor a UN General Assembly resolution to refer the Kashmir question to the International Court of Justice (ICJ) for an advisory opinion under Article 96 of the UN Charter. While an ICJ advisory opinion is nonbinding, it would certainly assist in informing and framing the subsequent negotiations, whether it’s at the UN Security Council or in other international fora. Modi has long argued that Kashmir is a domestic issue, but, however much he would like it to be, this is no longer the case. Kashmir is today very much in the international public eye.

Second, Pakistan would permanently and irrevocably shut down all Jaish-e-Mohammad (JeM), Lashkar-e-Taiba (LeT), and any other Indian-focused terrorist camps based in Pakistan and put its leaders under house arrest. Pakistan’s 30-year-old business model of training, supporting, and bankrolling these terror groups is now outdated, if ever it was valid. The LeT and JeM have become a very serious liability for Pakistan. Because of its association with terrorist groups, Pakistan is on the “Grey List” of the intergovernmental Financial Action Task Force (FATF) and just managed to avoid being placed on the “Black List” at the last meeting in October for failing to crack down on terrorist groups and their activities. Only Iran and North Korea are on the Black List.

Third, India would revoke the August 5 presidential order and reinstate J&K’s autonomy status. New Delhi would also revoke the draconian laws applied in Kashmir, notably the notorious AFSPA. It would also release all political prisoners.

Fourth, in return for agreeing to these painful and courageous political moves in their respective countries – which would demonstrate their true commitment to finding a permanent solution to Kashmir  – the two leaders would agree to the Commonwealth Eminent Persons Group (CEPG) mediating between the two countries over how to resolve Kashmir peacefully. The CEPG has a sound track record in resolving difficult issues. Importantly, both countries are members of the Commonwealth and CEPG would not have a bias toward one or the other of the parties involved. Other potential mediators, such as U.S. President Donald Trump, the UN, or a think tank, either have too much historical baggage, are inherently biased toward one or the other of the parties, or lack political clout to be effective mediators.

For too long the Kashmir question was all about who the territory belonged to, Pakistan or India. But over the last 70 years things have moved on, and the issue now is really about the self-determination of all Kashmiris, those in J&K and those in Pakistan, i.e., Baltistan and Azad Kashmir. The ideal for fulfilling this act of self-determination would be a referendum. This would be the fifth step. Accordingly, and because of the religious mix of Indian and Pakistan-administered Kashmir, there would need to be four UN-supervised referenda, each with the same three options: Join Pakistan; join India; or independence. The four referenda would be held simultaneously but counted separately in Baltistan and Azad Kashmir, the Kashmir valley, Jammu, and Ladakh.

The role of the CEPG would be to negotiate and manage this difficult five-step process, including the modalities and how the results would be implemented peacefully. A critical element for the success of this process would be to put in place systems that would prevent one or the other party from going back on its commitments. Critically, this would include the demilitarization of all of Kashmir, the Indian and Pakistani-administered parts, prior to the holding of the referenda. Whichever part decided to go for independence – probably only the Kashmir Valley (the others would most likely stay put) – should be a demilitarized country, with only a police force for maintaining law and order.

The big unknown would be the attitude of China toward this mediation process, given that it occupies a part of Ladakh as spoils of the 1962 China-India War. Suffice to say, it wouldn’t be in Beijing’s interest to play the spoiler in this process.

As an added incentive to ensure the parties stayed the course, including countering potential disgruntled spoilers, would be the promise of significant international economic assistance for the development of all parts of Kashmir at the end of the process. As part of the economic aid package, there would have to be free movement of people between all parts of Kashmir after the referendum, regardless as to how the vote went.

Admittedly, this would be a very, big gamble for both leaders to take. There would be many skeptics trying to stop them. And while the stakes are high for both, the win of finally achieving peace in Kashmir after so many years wasted would absolutely be worth the risk. Only Khan and Modi, who both have strong personalities and large followings in their respective countries, would be able to pull off such a bold, out-of-the-box move. Everything else having failed, there is nothing to lose in trying, and it may result in the grand bargain we’ve long been waiting for.