The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (58 page)

At the partition of British India on 14/15 August 1947, conducted on the basis of demography and geography, predominantly Muslim contiguous areas went to Pakistan and the rest to India. The 562 princely states, nominally self-governing units, had realistically to opt for either India or Pakistan. Only Junagadh, Hyderabad and J&K were different, with Muslim ruling families governing predominantly Hindu populations in the former two, and the opposite in J&K. Although both Junagadh and Hyderabad were to be surrounded by Indian territory, J&K bordered both India and Pakistan. When the ruler of Junagadh acceded to Pakistan, the Indian government resisted his decision and called for a plebiscite to determine the will of the
people. Indian troops subsequently moved into Junagadh (in Exercise Peace) on 9 November 1947. The plebiscite held by the Indian government on 20 February 1948 resulted in the majority Hindu population voting overwhelmingly in favour of India.
¹
In the case of Hyderabad in southern India, the Indian army invaded in September 1948 (in Operation Polo) and took control of the state.

Although the ruler of the largest princely state of J&K, Maharaja Hari Singh, preferred independence, this was not a viable option in the political climate following partition. While dithering over the future of the state, he signed a ‘standstill agreement’ with Pakistan on 14 August 1947 to continue trade, travel, and communication linkages, but not with India which sought prior consultations with the popular leadership of the state. At the same time, both India and Pakistan began to compete for J&K’s accession on ideological grounds. For Pakistan, created on the basis of the two-nation theory that Muslims of the Indian subcontinent could not live alongside the majority Hindu population,
²
the incorporation of Kashmir would legitimize its claim as a Muslim state, even though a large number of Muslims continued to live in India. For India, Kashmir would legitimize its claim as a secular state for both Hindus and Muslims alike.

It was a pro-Pakistan Muslim tribal rebellion against Hari Singh in Poonch in late August and September 1947 that led him to sign the treaty of accession with India. Supported by Pakistan, the armed Pathan tribesmen from the North-West Frontier Province (NWFP), along with Pakistani nationals, moved towards Srinagar, the J&K capital, to overthrow Hari Singh. On 22 October, they reached Muzaffarabad and began moving towards Uri and Baramula, thirty-five miles from Srinagar.
³
With local state troops unable to halt the advance, Hari Singh panicked and sought Indian arms and ammunition to prevent being overthrown. Jawaharlal Nehru agreed to do so, but only if Hari Singh formally opted for India. As a result, four days later (on 26 October) Hari Singh signed the Instrument of Accession in Jammu and acceded princely J&K to India; this was accepted by Mountbatten the next day.
⁴
In accordance with the Instrument of Accession, India was now responsible for the defence, external affairs, communication, and ancillary matters for J&K. On the morning of 27 October, the Indian air force flew the first batch of the Sikh battalion and military supplies into Srinagar airport, beginning the first India-Pakistan war over Kashmir.
⁵

In the fighting that ensued in J&K between Indian troops and armed pro-Pakistan tribesmen and Pakistani nationals, Nehru was initially reluctant to seek a UN role as he was confident that Indian troops would expel the raiders from J&K. But after eight weeks of fighting, he realized this would not take place without an Indian counteroffensive into Pakistan. At the end of December 1947, he finally accepted the advice of Lord Mountbatten and decided to complain to the UN over Pakistan’s aggression against what had become Indian territory.
⁶
On 1 January 1948, India formally referred the fighting in J&K to the Security Council under Article 35 of the UN Charter, which permits any member state to bring a situation to its notice whose continuance is likely to endanger the maintenance of international peace and security.
⁷

India’s complaint to the UN was based on Pakistan’s aid and support to the raiders. In addition, it threatened to mount an Indian offensive into Pakistan to defend territory in Kashmir.
⁸
India sought Security Council support against the tribal invasion of J&K to prevent an escalation of conflict between the two countries. India expected the UN to act in three ways: first, to prevent the Pakistani government from participating or assisting in the invasion of J&K; secondly, to call upon other Pakistani nationals to desist from taking part in the fighting in J&K; and finally, to deny the invaders access to territory, military supplies, and aid.
⁹
However, Pakistan vigorously refuted these accusations by denying official sanction or support to the invaders (implying that it was a popular uprising), questioning the accession of J&K to India as fraudulent and conditional (thereby denying its legitimacy), alleging the covert presence of Indian troops in J&K prior to 26 October 1947, criticizing India for the violence against Muslims at the time of partition, and accusing India of threatening Pakistan with a direct military attack in an attempt to undo the partition.

In response to the Indian and Pakistani claims and counterclaims, on 6 January 1948, the Belgian President of the Security Council appealed to both India and Pakistan to ‘refrain from any step incompatible with the Charter and liable to result in an aggravation of the situation’.
¹⁰
This was followed ten days later by the first of several Council resolutions on Kashmir. Resolution 38 of 17 January 1948 called upon
both
the Indian and Pakistani governments ‘to take immediately all measures within their power (including public appeals to their people) calculated to improve the situation, and to refrain from making any statements and from doing or causing to be done or permitting any acts which might aggravate the situation’.
¹¹
It also requested both governments to inform the Council immediately of any ‘material change in the situation which occurs or appears to either of them to be about to occur’ while the matter was under Security Council consideration.
¹²
Three days later, in terms of its mandate to investigate any situation that may endanger the maintenance of international peace and security, the Council adopted a further resolution.
¹³
This established a three-member UN Commission on India-Pakistan (UNCIP) and directed it to ‘proceed to the spot as quickly as possible’ to ‘investigate the facts pursuant to Article 34 of the UN Charter’ and ‘to exercise any mediatory influence likely to smooth away difficulties’.
¹⁴

In April 1948, in Resolution 47, the Security Council, while still calling for an end to the fighting, for the first time brought up the issue of a ‘free and impartial’ plebiscite in Kashmir to determine its accession to India or Pakistan.
¹⁵
There was to be no ‘third option’ of independence. By requesting the establishment in J&K of ‘observers’ ‘in pursuance of [the] measures indicated’, the Council also laid the basis for the establishment of the UN Military Observer Group in India and Pakistan (UNMOGIP), established to supervise the Ceasefire Line (CFL) and report upon any violations. In the Karachi Agreement of 27 July 1949, both India and Pakistan agreed to the presence of the UN observers. Under the command of the UN Military Adviser, UNMOGIP (which still exists today) is to ‘observe and report, investigate complaints of cease-fire violations and submit its finding to each party and to the Secretary-General’. UNMOGIP’s effectiveness has been determined by the level of cooperation provided by both sides. While it was most effective in the first fifteen years monitoring the CFL and dealing with allegations of ceasefire violations emanating from both sides, its role declined from the early 1960s. With Pakistan planning to instigate a rebellion in India, its cooperation with UNMOGIP decreased considerably. For its part, India lost faith in UNMOGIP when it did not condemn Pakistan publicly for initiating the 1965 war. After the 1972 Simla Agreement (discussed below), it began to see UNMOGIP as a nuisance, albeit one which had to be tolerated. UNMOGIP’s effectiveness today is minimal.

Divided largely into two parts, Resolution 47 also elaborated on Pakistani and Indian responsibilities in bringing about peace and security in J&K. The first part, on restoration of peace and order, urged Pakistan to withdraw the tribesmen and Pakistani nationals who had entered the state for purposes of fighting, and to prevent any further intrusion by them into the state or the provision of aid to them. It stipulated that India should also withdraw its own forces from J&K virtually at the same time, and reduce them to a minimum for the maintenance of law and order.
¹⁶

The second part of Resolution 47, on the plebiscite, noted the desire of both countries that the question of the accession of J&K to India or Pakistan ‘should be decided through the democratic method of a free and impartial plebiscite’
¹⁷
India was to ensure that the J&K government invited the major political groups to designate responsible representatives ‘to share equitably and fully’ in the administration at the ministerial level while the plebiscite was being prepared and carried out. The resolution also provided for the establishment of a plebiscite administration in J&K and the appointment of a Plebiscite Administrator by the UN Secretary General. The task of the Plebiscite Administrator was to hold a fair and impartial plebiscite as soon as possible. Finally, the resolution increased UNCIP Membership to five, and instructed it to proceed at once to the Indian subcontinent, which the Commission finally did three months later in July 1948.

Resolutions 38 and 47 came as quite a shock to the Indian government, which naively and simplistically believed that the UN would simply see the strength of its case, condemn the raiders, and call on Pakistan to withdraw them, thus putting an end to the invasion of J&K. Instead, the resolutions focused on preventing the escalation of conflict between India and Pakistan rather than branding Pakistan as the aggressor. They also called for the conduct of a UN-supervised plebiscite to determine the accession of J&K to either India or Pakistan, rather than confirming the accession of the state to India. Even worse, from the Indian perspective, was Resolution 47’s request for the simultaneous withdrawal of forces of both countries from J&K – thereby appearing to equate both countries as guilty parties.
¹⁸

Although India had formally agreed to a referendum as the final determinant of J&K’s accession to India, the Security Council’s discussion of a plebiscite was of some concern to the country. In the absence of a precedent for the plebiscite, its idea had originated from Mountbatten. At the meeting of the Defence Committee of Cabinet on 25 October 1947, Mountbatten had urged that the completion of the legal formality of accession be confirmed by ‘a referendum, plebiscite, election, or even, if these methods were impracticable, by representative public meetings’.
¹⁹

Later that day Nehru wrote to British Prime Minister Clement Attlee that ‘our view which we have repeatedly made public is that the question of accession in any disputed territory or state must be decided in accordance with [the] wishes of [the] people and we adhere to this view.’
²⁰
In Lord Mountbatten’s letter to Hari Singh formally accepting J&K’s accession to India, he wrote that ‘as soon as law and order have been restored in Kashmir and its soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people.’
²¹
On 1 November 1947 Mountbatten met with the Muslim League’s Muhammed Ali Jinnah to propose that a plebiscite be held in all the three princely states of Junagadh, Hyderabad, and Kashmir.
²²
In a major broadcast on All India Radio the next day, Nehru promised that Kashmir’s future would be decided in accordance with the wishes of the people through ‘a referendum held under international auspices like the United Nations’.
²³
Yet, to India, the discussion of a UN-supervised plebiscite in Resolution 47 appeared to question the accession of J&K to India, rather than to accept it unless a plebiscite decided otherwise.
²⁴
In view of these objections, India refused to accept Resolution 47, and began its long-standing suspicion of the Security Council and caution in dealing with it when it came to Indian security concerns.

Interestingly, Pakistan also refused to accept Resolution 47, but for different reasons. Its rejection was on the basis that the resolution signalled a retreat from the earlier position taken by the Council (which focused mainly on preventing the escalation of conflict), that the ceasefire should be made a matter of cooperation between both countries, and that Pakistan ought to be entitled to deploy its forces in Muslim majority areas in J&K, with Indian troops stationed only in non-Muslim areas.
²⁵
Nonetheless, Pakistan continued to keep faith in the Council, and began its long-standing public diplomacy in support of implementing the Security Council’s resolutions.

On their first visit to Pakistan and India in July 1948, UNCIP members met senior government leaders in both countries. In Karachi, Pakistani Foreign Minister Sir Zafarullah Khan astounded them by revealing that three regular brigades of the Pakistani army had been involved in the fighting in J&K in the past two months, which he justified on grounds of self-defence.
²⁶
This followed the shift in Pakistan’s official position in May 1948 that its army was needed to protect its borders. However, the presence of these brigades was in violation of Resolution 38, which urged both states to refrain from acts which might aggravate the situation and to inform the Security Council immediately of any ‘material change’ in the situation.
²⁷
In Delhi, Indian leaders made it clear that Pakistan’s aggression in J&K, following its accession to India, needed to be recognized and condemned
²⁸