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The Rediff Special/ Zia Mian

Law rather than War on Kashmir

At its simplest, the current fighting between Pakistan and India along the Line of Control is just another bloody and savage interlude in a fifty year pattern of India and Pakistan alternately negotiating and fighting over Kashmir. Hardliners in India are demanding that their armed forces be used to settle matters with Pakistan, once and for all. Their soul mates in Pakistan seem to welcome the chance to try again. For many people, journalists and policy makers included, truth, lies, fears and ambitions have merged into the crudest kinds of nationalism and hysteria. Forgetting how easily they have stumbled into war in the past, both countries have mobilised their armed forces.

But this time things are far more dangerous. To the risk of war is added the possibility that it may become nuclear. Pakistan has long insisted it would be prepared to be the first to use nuclear weapons and India, through Brajesh Misra, has already announced "if any attempt is made against us, God forbid, we will go all out.'' It is worth recalling that the casualties in the 1965 India-Pakistan war were around 20,000. A single nuclear weapon of the kind that India and Pakistan tested last year would likely kill ten times as many, and probably far more. For what? The tops of some mountains, a glacier that will melt away in its own time, for land on which no one lives and on which no one depends, a line on a map that is now worth more than life.

There is no denying that the crisis in Kargil is a consequence of Pakistan's policy of brinkmanship in Kashmir. Pakistan's leaders have done this before. If they emerge unscathed, they may likely do it again. They will keep trying until they get what they want. They will provoke in Kashmir and try to keep a significant portion of India's armed forces tied up there, increasingly frustrated and demoralised and soaking up resources. Their calculation seems to be that there must come a time, some level of conflict and danger, at which the international community will surely intervene and do for Pakistan what it cannot do by itself, which is make India negotiate about the future of Kashmir.

There can equally be no denying that the journey to Kargil started last year in Pokhran. When Mr Vajpayee points the finger at Pakistan, he should recognise that curled up in his fist the other fingers are pointing back at him. It was the BJP that crossed the line of nuclear self-control and unleashed its tests on May 11 and 13, and let Mr L K Advani pound his chest and declare that Pakistan had better behave or else India would sort it out. This both scared Pakistan's leaders witless and gave them the opportunity that they had hoped would come one day to gain their "nuclear shield."

Many people, all of them from the peace movement, warned then that the nuclear tests would add to the insecurity and crisis, and that a settlement on Kashmir was more urgent than ever. This is not the time to say we told you so. Rather, it is a time to discuss what is to be done.

To start with, Pakistan and India must act immediately to calm the conflict along the Line of Control. They must declare a cease-fire, stop shelling each other's armed forces and defenceless civilians across the Line of Control, and take their respective armed forces off alert.

There must be no more armed men crossing the Line of Control, whoever they are. This requires the Line of Control be monitored. Pakistan has asked the United Nations to station a large group of observers to monitor the LoC. India should take this up -- let it be SAARC monitors with a mandate only to monitor and report attempted infiltration if the United Nations is unacceptable. Stopping infiltrators is in everybody's interest. They are the spark that light the fuse that leads to disaster. The Line of Control has to stop being the place where Pakistan and India choose to show their lack of control.

Once this is done, Pakistan and India must negotiate to repair the damage done by the present crisis, to improve relations and to find a resolution to Kashmir.

The major problem facing any effort to break the impasse between India and Pakistan over Kashmir is that the two states disagree fundamentally on the terms for talking about the issue and the Kashmiris are never consulted. Pakistan insists any discussion has to be based on the 1948 and 1949 UN resolutions on Kashmir; coming after the 1947 war, they envisaged the United Nations Commission for India and Pakistan supervising a settlement "in accordance with the will of the people" of the region. India claims primacy lies with the 1972 Simla Agreement; signed after the 1971 India-Pakistan war the treaty commits the two states to settle their disputes "through bilateral negotiations or by any other peaceful means mutually agreed upon between them" and makes no mention of the UN.

These positions have stalled any effort at a settlement and in the process put Kashmir through the meat grinder and now threaten to push a billion people into war. There has to be a way to break out of this potentially terminal dynamics. This must start by recognising the fact that bilateral negotiations have gone nowhere in almost three decades. This ground has been gone over so many times it is sterile. India and Pakistan must honestly start to look for the other "peaceful means" that can be "mutually agreed upon between them."

One possibility is to agree to intervention. But not intervention of the kind that Pakistan has traditionally aimed for, nor India traditionally refused. India and Pakistan could ask the United Nations General Assembly to take a legal initiative on their behalf. They could ask the General Assembly to request the International Court of Justice for an advisory opinion on the standing within international law of India and Pakistan's claims over Kashmir, the existing UN resolutions on Kashmir, bilateral treaties and agreements dealing with the dispute, and the right to self-determination of the Kashmiris.

The International Court of Justice (otherwise known as the World Court), based at The Hague in Holland, is the highest legal authority within the United Nations system, and thus within the international community. The UN Charter provides the General Assembly the right to ask the World Court for an "advisory opinion" on "any legal question." This "opinion" is understood to be authoritative as a statement of the law.

An independent, authoritative interpretation of international law on Kashmir would clear the ground of fifty years of argument. It would offer a place from which to start looking for a just and lasting settlement. Living with recurring crises, in the shadow of war, waiting for Hiroshima, is not an option.

Pakistan-born Zia Mian is a lecturer of Public and International Affairs at Princeton University.

EARLIER INTERVIEW:

'It is a matter of life or mega-death'

The Kargil Crisis

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