The Background: Prelude to 27 October
To understand the events of October 27, 1947, we must first consider the historical context. Kashmir, a beautiful region in the Himalayas, had been a princely state under British rule since the late 19th century. When India gained independence in August 1947, princely states were faced with a choice to join either India or Pakistan.
As Hindu-majority India and Muslim-majority Pakistan emerged from colonial rule, the decisions of the princely states became increa
singly complicated. Maharaja Hari Singh ruled Kashmir, which had a Muslim majority. Despite the majority demographics, the Maharaja resisted making a definitive decision regarding accession.
During this period, unrest was growing. By mid-October 1947, the civil unrest broke out again Maharaja and Indian interference in Kashmir politics.
The Invasion: A Crucial Turning Point
Confronted with this looming threat, Maharaja Hari Singh found himself in a difficult situation. As tribal forces advanced, the Maharaja requested military support from India. The key condition set by Indian leaders was that he must agree to accede to India first. Faced with an existential crisis, the decision weighed heavily on him.
On October 26, 1947, amidst intense pressure, the Maharaja signed the Instrument of Accession, (but the legal document is not been presented in any international court of justice as per Indian government that instrument of accession was lost during the Kashmir uprising, it is farce and false statement) apparently granting Indian troops permission to enter Kashmir which deem illegal by UNSC. The following day, October 27, Indian forces landed in the valley, marking the start of a military presence that would alter the region's landscape forever.
To review the instrument of accession please critically evaluate the below documents and make your mind whether the instrument of accession is a legal agreement with all alteration and deletions, this document since has not been presented to any international court of justice.
27 October 1947: The Beginning of a Turbulent Era
October 27, 1947, is remembered by many Kashmiris as a day of mourning and protest, often called "Black Day." The arrival of Indian troops was seen differently by various groups—some viewed it as liberation from invaders, while many locals felt it signaled the start of an occupation that endures to this day.
The military escalation sparked significant unrest. By the end of 1948, estimates suggested that 1.5 million people had been displaced due to the ongoing violence, and the region slipped into a prolonged state of conflict. The struggle for identity and statehood began, with Kashmiris expressing their desire for self-determination, further complicating the situation.
Historical context and peace accords and international convention:
3.1.2 UNCIP and UNMOGIP mandate
As referred to earlier in this Chapter, the UNSC adopted Resolution 39 in 1948 (establishing a Commission on the India-Pakistan question), which established the UNCIP in order to maintain and mediate peace between India and Pakistan. The UNSC wanted to enlarge its operation in the disputed territory of Kashmir between India and Pakistan, and so, as mentioned previously in this Chapter, on 30 March 1951, following the termination of the UNCIP, the Security Council, by its Resolution 91 created the UNMOGIP (UNCIP, 1951). The UN has played a pivotal role in safeguarding regional peace after the independence of Pakistan and India in 1947. After the landing of Indian forces in Kashmir at the capital Srinagar’s airfield in October 1947, a violent civil uprising started in Kashmir. Prime Minister Jawaharlal Nehru of India approached the UN and sought resolution on the Kashmir dispute at the UNSC in January 1948. The UNSC mandated the UNCIP to investigate the Kashmir area. Soon after this, the UN found it imperative to establish the UNMOGIP to maintain and monitor peace in the region (UNMOGIP, 2019). UNMOGIP’s military observers are mandated to monitor the LoC and to report any incidents, or any perceived violations of the ceasefire, to the UN Secretary-General (UNMOGIP, 2019).
In early 1965, India and Pakistan became embroiled in a territorial dispute on the Rann of Kutch marshland on the south-eastern border of Pakistan. During mid-September 1965, a full-scale war broke out between the two countries along the LoC in disputed areas of Kashmir. On 4 September 1965, the UNSC passed Resolution 209 calling for an immediate halting of the war. The Council also adopted Resolutions 210 and 211 in 1965 that renewed the UNMOGIP’s mandate to implement a ceasefire and continue its observer mission in the region. When the ceasefire was subsequently not affected across the border, the UNSC passed another Resolution 214, on 27 September 1965, instructing both countries again to bring about a ceasefire and respect the UNSC resolution (UNCIP, 1965).
India continues to maintain that the need for UNMOGIP is redundant as both countries have their bilateral agreements on the issue with no need of further extending the UNMOGIP. In continuing the historical parallel to South Africa at the time, when the UNCIP and UNMOGIP resolutions were passed, South Africa was facing upheaval from the international community concerning the newly installed apartheid government.
3.1.3 Tashkent Accord
Between August and September 1965, India and Pakistan were once again at war with each other over Kashmir. After 17 days, the UNSC had secured a ceasefire on 22 September 1965. The Tashkent Accord, a peace agreement named after the meeting place in modern-day Uzbekistan, was initiated by the Union of Soviet Socialist Republics (USSR). On 10 January 1966, the agreement was signed by India’s Prime Minister Lal Bahadur Shastri, who passed away the day after the signing, and Pakistan’s President Ayub Khan (Wirsing, 1998).
This peace initiative was mediated by Soviet Premier Aleksey Kosygin. A brief summit took place and, finally, both India and Pakistan agreed to withdraw their armies to positions held before the start of the war in August 1965; to restore diplomatic relations, and enter into discussions on economic issues, refugees, and other relevant concerns. The agreement was criticised in India because it did not contain a no-war pact or any repudiation of cross-border insurgencies in Kashmir (Bajwa, 2013: 362). To consider South Africa’s political history at this point of the discussion, South Africa was facing a challenging time after the Sharpeville massacre in March 1960, when the police killed 69 black demonstrators protesting against apartheid and wounded almost 200 more, as well as a subsequent economic and political boycott of South Africa in 1962 by the United Nations General Assembly (UNGA) (Vaqué, 1989: 77-79).
3.1.4 Simla Accord
The Simla Accord followed the 1971 Indo-Pakistani war. This war was initiated by India who covertly became involved in the Bangladeshi struggle for separation from Pakistan and supported Bangladesh’s War of Liberation in 1971. Formerly, Bangladesh was known as East Pakistan. The Simla Accord was seeking a way forward by establishing principles that should guide future relations between India and Pakistan. It also anticipated steps that needed to be taken to further normalise relations between the two neighbours. It was important to bring the two countries “to settle their differences by peaceful means through bilateral negotiations” (Cutts, 2000: 73).
Essentially, the Simla Accord was signed to recognise Bangladesh as a sovereign nation and to normalise diplomatic relationships between India, Pakistan and Bangladesh. This agreement also recognised the de facto border LoC as both India and Pakistan signed an agreement that the Kashmiri dispute should be resolved bilaterally, without the involvement of any third party. It is important to point out that no consultation took place between the leaders of Jammu, Kashmir and Azad Kashmir or Pakistan-administrated Kashmir. The Simla Accord was signed without the Kashmiri leadership’s involvement; thereby deciding their future without their consent. This has been a bone of contention for the Kashmiri people who regard this agreement as a betrayal. Please refer to annexure “B” on the page 171 for the full text of the Simla Accord.
3.1.5 Lahore Summit
The Lahore Summit denoted an Indo-Pakistan bilateral agreement which was signed on 21 February 1999 by the Prime Ministers of Pakistan and India, Nawaz Sharif and Atal Bihari Vajpayee respectively. This summit was held to normalise the tense relationship between the two countries on the issue of atomic tests, which had been undertaken by both countries in May 1998 (Mumtaz, 1999). This agreement holds a symbolic value as it comes after a long gap of 27 years, when the last agreement, the Simla Accord of 1972, was signed between the two countries.
The background of this agreement had two salient points: first, the agreement was to normalise the relations of the two strained countries after the tit-for-tat nuclear tests initiated by both countries in 1998, and, second, it served as a stalemate on the Kashmir issue. The Non-Nuclear Aggression Agreement (NNAA) was signed in 1998, and soon after the Vajpayee visit, was ratified by both countries’ Parliaments. A peaceful resolution of the Kashmir dispute was on the agenda along with the normalisation of trade and tourism as both countries agreed to issue travel visas for road and air travel through their respective high commissions in India and Pakistan.
Although this agreement was applauded by the international community, the relationship between India and Pakistan became strained once again with the start of the Kargil conflict just three months later. The prospect of extending the Lahore Agreement was doomed after this unfortunate incident. After a few months, a dramatic military coup d’état took place in Pakistan, where Pakistani Army Chief General Pervez Musharraf ousted Prime Minister Nawaz Sharif (Akbar, 1999).
Drawing South African political history into this discussion once again, there were notable events that provide anecdotal evidence that South Africa’s new democratic political dispensation, post-1994, was more inclined to pay attention to the Indo-Pakistani relationship in regard to the Kashmir issue. South Africa’s first democratic President Nelson Mandela gave a compassionate plea during his address at the inaugural session of the 12th Conference of Heads of State of Government of the Movement of Non-Aligned Countries, in Durban in 1998:
All of us remain concerned that the issue of Jammu and Kashmir should be solved through peaceful negotiations and should be willing to lend all the strength we have to the resolution of this matter (Mandela, 1998).
Nelson Mandela visited Pakistan in May 1999, a few months after the signing of the Lahore Agreement, and delivered a speech where he said:
It is our earnest hope that the spirit which led to the signing of the Lahore Declaration will sustain progress towards peace and security in the South Asian subcontinent. We must continue, with still greater speed, to change the lives of our people, especially the poorest of the poor, by eradicating what remains of apartheid and its legacy (Mandela, 1999).
Since its embryonic stages from 1947 to 1998, there has been a long absence of a South African foreign policy regarding Kashmir due to reasons briefly discussed earlier in the chapter. This is understandable as South Africa had a goal to safeguard its territories in southern Africa against USSR intervention in Africa (the red menace) and against South African terrorist groups domestically; it had little interest in South Asia and why should it at the time when internal anarchy was at its height and South Africa was more focused on protecting its own affairs.
3.1.6 Agra Agreement
Following the fall of Pakistan’s Nawaz Sharif’s government in 1999, and in the wake of the 11 September 2001 terror attacks in the US and the subsequent War on Terror, Pakistan was under immense pressure to mend fences with its neighbour. A two-day summit was held in Agra, India in July 2001, with an aim to negotiate all outstanding issues between India and Pakistan and pave the way to peaceful relations between the two countries. There were great expectations that both countries would be able to find solutions on all outstanding issues. The summit’s agenda included discussions around radically reducing the number of nuclear warheads and resolving the matter of Kashmir through bilateral dialogue. Unfortunately, the meeting collapsed, and the summit ended without any resolution. Later, in July 2015, it was disclosed by an Indian external intelligence agency chief, AS Dulat, that the Indian Union Home Minister, LK Advani, had allegedly played a major role in collapsing this promising Agra Summit of 2001 (Dulat, 2015: 49-50). The Agra summit made some vital progress on the predetermined agenda points like the unresolved Siachen glacier, terrorism in the region, and peaceful resolution of the Kashmir dispute. They were the most important items on the agenda beside Confidence Building Measures (CBM), narcotics, peace and security, and promotion of bilateral trade and tourism (Schofield, 2000: 49-62).
The failure of the summit was not a surprise to the world as there had been a series of composite dialogues between the two countries, which have been conducted in the most cordial manner without producing any fruitful results. The declaration at the end of the summit was promising but given that declarations/proclamations such as those in 1972 in Simla (Indira Gandhi − ZA Bhutto); in 1987 in New Delhi (Rajiv Gandhi-Zia − Ul Haq); in 1989 in Islamabad (Benazir Bhutto – Rajiv Gandhi); in 1997 in New Delhi (IK Gujral – Nawaz Sharif); in 1999 in Lahore (Vajpayee − Nawaz Sharif); and in 2001 in Agra (Vajpayee − Musharraf); all ended up in both disagreement and some agreement; with the main issues of Kashmir at the peril of discussions, its future was uncertain.
It is important to examine and to introduce South Africa and the Indo-Pak historical comparative journeys in order to arrive at a better understanding of the political position of South Africa towards India, Pakistan and Kashmir. While these events outlined above were taking place in the Indo-Pakistan region South Africa was going through its own political evolution. South Africa was trying to find its place in the international community as a respected political and economic powerhouse of the southern African region but, paradoxically, had to defend its racialist policy of apartheid. Balancing the discord between domestic and international issues was difficult for South Africa because its foreign policy was not consistent, only evolving with the unfolding of domestic events, which put the state in an unfavourable position in the eyes of the international community. Eventually, South Africa was forced to adjust its foreign policies according to the standards of the international community. The following section will shed light on these poignant historical crossroads which eventually resulted in the new democratic Republic of South Africa (Thomson, 1996).
It must be noted that Malan was following the political ideologies and foreign policies that were conceived by apartheid’s founder figures like Paul Kruger (1883-1902), Louis Botha (1910-1919), General Jan Smuts (1919-1948) and James Barry Hertzog (1924-1948). It is interesting to observe that while the British were negotiating with Paul Kruger’s triumvirate council and following the London conference of 1881 and 1884, where the resolution was to relinquish the British paramountcy of Transvaal and the Orange Free State, at the same time, they were busy annexing Indian territories and entering into treaties like Amritsar and Lahore, which saw the sale of the British annexed region of Jammu and Kashmir to the Sikh empire and, eventually, to Hindu Prince Hari Singh.
The period between 1948 and 1994, was dominated by some heavyweights of the apartheid regime that were at the forefront of the South African foreign policymaking and implementation abroad. It could be said that the foundation the regime laid 80 years ago is still having its presence and reminiscence felt in contemporary South African foreign policy.
3.3 Surveys and Human Rights Abuses
3.3.1 Chatham House Survey “Kashmir: Path to Peace”
The UK-based think tank Chatham House’s Kashmir survey was organised and funded by Dr Saif Al Islam Al Qadhafi in 2009. This survey was to ascertain the aspiration of the Kashmiris on both sides of the LoC. The survey was conducted between September and October 2009. The study had a supposition that the Kashmiri opinion represents a vital interest in regional peace, politics, and stability for the entire South East Asian region (Bradnock, 2010).
The survey was conducted on both sides of the LoC and it was the first of its kind since the ceasefire was initiated by the UN in 1949.The findings of the survey produced unexpected results. Close to 44% of people in Pakistani Kashmir favoured independence compared to 43% in Indian Kashmir. However, in the Muslim-majority Kashmir valley, which is at the centre of the 70-year long anti-India uprising, between 75% and 95% supported freedom from both India and Pakistan. This finding validates the unresolved issue of the right to self-determination as enshrined in the UNSC Resolution 47 of 1948 (Bradnock, 2010).
3.3.2 The OHCHR Report on Human Rights Violations
After a long period of silence by the UN on the Kashmir dispute, a 2018 OHCHR report shocked the world. This report consisted of 49 pages with authenticated facts of human rights violations, extra-judicial killing, and abduction, the use of pellet guns, rape and torture in Indian occupied Kashmir. The report covers the said incidents between July 2016 and April 2018. This report also investigated the situation in Pakistan-administered Kashmir within that time frame where the human rights violations were of a different, more structural, nature (UN OHCHR, 2019).
This report put the spotlight on atrocities committed in Kashmir especially in Indian-administered Kashmir as 49 pages (85%) and remaining of its reporting questioned Pakistan-administered Kashmir. It is a major milestone in the Kashmir struggle as it validates Kashmiri claims of the Indian iron fist’s handling of the Kashmiri’s resistance of the Indian occupation; this report tarnished the image of India in the international community and asked many questions about the Indian secularism and democratic values as enshrined in its own constitution (Güldoğan, 2019). Amnesty International (AI) and Human Rights Watch (HRW) have repeatedly asked the Indian government to respect the civil and political rights of Kashmiris and halt ongoing human rights violations on both sides of the disputed territories of Kashmir (HRW, 2019). Thus, it is important to bring this topic into this research study to shed light on the gross human rights violations and it is also part of this dissertation’s research question of why the 73 year Kashmir dispute remains unresolved.
The Indian government vehemently rejected the report and denied UNHRC personnel access to Jammu and Kashmir as requested by the United Nations Human Rights Commission to conduct a fact-finding mission. The Pakistani government, however, welcomed the report and provided the UNHRC personnel with unobstructed access to Pakistan-administered Kashmir (Ganguly, 2019).
A report was compiled by Jammu and Kashmir Coalition of Civil Societies (JKCCS) on alleged Indian atrocities which focused on the registered cases at police stations in Jammu and Kashmir. The report consists of 500 pages and includes First Information Reports (FIRs) to police. The foreword for this report was written by Juan E Mendez, a former UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (2010-16). This report is a useful example of how civil society should monitor, investigate, and report violations of internationally recognised standards, and of how governments must behave towards all persons under their jurisdiction. This second report published by the OHCHR about human rights abuses in India and Pakistan-administered Kashmir reviewed the period from mid-2018 to mid-2019 (UN ONCHR, 2019).
International Reactions: The Global Perspective
The global community was closely monitoring the situation in Kashmir. The United Nations quickly intervened, leading to resolutions that called for a ceasefire and a plebiscite to determine the wishes of the Kashmiri people. Resolutions 38 and 47 specifically highlighted the need for both India and Pakistan to withdraw their forces.
However, the subsequent fulfillment of these promises has remained elusive, and the status of Kashmir remains a contentious issue. Reports suggest that over 70 UN resolutions have been tabled regarding Kashmir, yet meaningful progress has yet to materialize. This ongoing stalemate has only intensified tensions between the two nuclear-armed nations, with clashes regularly occurring along the Line of Control.
The Legacy of Occupation
Reflecting on the consequences of October 27, 1947, it is essential to recognize the continued legacy of this event. The prolonged political conflict has resulted in serious human rights abuses. Reports indicate that over 100,000 people have been killed in conflict-related violence since the 1947s, with many more injured or displaced.
Furthermore, the conflict has hindered economic growth, resulting in a staggering unemployment rate of around 60% among youths in Kashmir. The observance of mourning on Black Day is not only about past events but also signifies the ongoing suffering that shapes Kashmiri identity today. Since 1947 the Kashmir remain under Indian illegal siege and people lives under perpetual Martial Law –curfew with total suspension of civil and human rights as prescribed in UN Universal Declaration of Human Rights (UDHR) and ICCPR convention clauses.
A Call for Dialogue
Given this complex history, it is essential to prioritize dialogue and reconciliation. Continued discussions among India, Pakistan, and the Kashmiri people are vital for fostering peace. Open conversations about the aspirations of the Kashmiri population could pave the way for practical solutions.
A sincere commitment to address historical grievances can help break the cycle of violence. With approximately 70% of Kashmiris expressing a desire for dialogue, it is crucial that all parties listen to their voices and work toward a more peaceful future. There will be no solution to Kashmir until Kashmiris take part in dialogues and negotiation not only India and Pakistan.
Reflecting on the Path Forward
The events of October 27, 1947, are not only historical milestones; they shape the lives of millions while influencing geopolitical dynamics in South Asia. Understanding this story is vital for the Kashmiri people, the governments of India and Pakistan, and the international community.
Remembering Black Day serves as a poignant reminder of the costs of unresolved conflicts and the pressing necessity of pursuing peace through dialogue and mutual respect. By recognizing and respecting the aspirations of the Kashmiri people, we can hope for a just and peaceful future they deserve.
Recommendations
Even though there seems to be no hope of enduring resolution in the near future, as the India-Pakistan enmity over Kashmir has continued for more than seven decades, there is still a silver lining as in recent years there has been a renewed interest shown by the international community, civil societies and social media which has played a significant role in reviving the dying struggle of Kashmir’s liberation. A host of features opposing an enduring resolution of the enmity in Kashmir; is the prime cause of conflict between both countries. Several peace processes, peace agreements, UN resolutions, and even wars have not solved this obstinate global problem. Besides the Kashmir conflict, other territorial issues, political irreconcilability, trust deficit positions on national identity, and lack of significant economic and trade relations do not make for peace on the Indian subcontinent (Westcott, 2020). These factors also prevent the diplomatic resolution of the Kashmir conflict. The Kashmir nationals’ narratives have always been ignored, as they profoundly look to practice their right to self-determination. Most of the peace processes in the past, namely Sir Owen Dixon’s peace plan for Kashmir, Musharraf’s four points formula, and Washington initiatives; all lacked ingenuity, as they failed to consult with the people of Kashmir.
A peaceful resolution for the Kashmir conflict is possible but would require a systematic and scientific approach, as only a proper peace plan with a structured approach can resolve the matter. This would require root cause analyses, force field analyses, carefully thought out stakeholder management, and full participation from all stakeholders, which includes Indians, Pakistanis, Kashmiris from both sides of the divide, and the Chinese. Perhaps Indians, Pakistanis and Kashmiris are all waiting for a neutral and honest ‘peace broker’, and South Africa could fill this noble role and bring peace to the violence-ridden Kashmir region. This could be the silver lining for the Kashmir conflict; South Africa might hold the key to the Kashmir peace process.
It is encouraging to note that last year, in 2019, during the visit of the Prime Ministers of India and Pakistan to the US, President Trump offered to mediate the Kashmir issue if both countries were willing to accept his role as mediator (Miglani, 2019). Unfortunately, his offer fell on deaf ears as Indian Prime Minister Modi decided unilaterally to annex the semi-autonomous state of Kashmir into the Indian union territories, by abrogating Article 370, 35a on 5 August 2019 (Dutta, 2020). There had been more attention on the Kashmir conflict in recent years than ever before, as two lengthy UN OHCHR reports were published on India’s alleged involvement in gross human rights abuses in Indian-occupied Kashmir, which listed issues to be debated. Moreover, the UNSC has to take a vote on UN interventions if the unobstructed access to Indian-occupied Kashmir is not granted by the Indian government (OHCHR, 2019).
1. The UN and the international community should enable a platform for an all stakeholder engagement strategy and assure Pakistan of its serious intention to respect the latter’s sovereignty and territorial integrity.
2. The government of India must treat the people of Kashmir more humanely, respecting their human rights, as applicable in mainstream India, which includes the right to self-determination, should they choose this option.
3. The UN and international human rights bodies must be given unobstructed access to Kashmir for their fact-finding missions, as requested in both UN OHCHR reports of 2018 and 2019.
4. The international community and trade blocs like IBSA, BRICS, Mercosur and G7 must hold India and Pakistan accountable, and use their economic power to pressure both countries to resolve the conflict of Kashmir amicably, peacefully, and equitably for Kashmiri people to accept it. Since South Africa is already in economic blocs with India, such as IBSA, BRICS, IORA-ARC, it is well placed to leverage its influence on India. Mercosur is the Latin American regional trade and economic cooperation bloc with a GDP of US$3.4 trillion, making it the world’s largest trade bloc and having permanent members of Argentina, Brazil, Paraguay and Uruguay. Venezuela is a full member but has been suspended since 1 December 2016. Associate countries are Bolivia, Chile, Colombia, Ecuador, Guyana, Peru and Suriname (CFR, 2019).
5. India and Pakistan should boost trade and relax visa regulations.
6. Military-to-military exchanges should be initiated to obviate the trust deficit.
7. The South African government must use its neutral morality position to leverage its influence on both countries to resort to the peaceful resolution of Kashmir.
8. The AU must leverage its position, especially with India being the fourth largest trading partner on the African continent, to use the power of political economy to convince India to respect human rights and resolve the issue of Kashmir peacefully.
Salman Khan.
Kashmiri human right activist
Founder of Kashmir Global Movement
Chairman South Africa Kashmiri Action Group
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