GENEVA:A report by the International Commission of Jurists (ICJ) says the final status of Kashmir has to be negotiated between India, Pakistan and the Kashmiri people and the denial of the right to self determination to the people of the state is the heart of the problem.

“This basic right has not been exercised by the people of Jammu and Kashmir,” William Goodhart of the ICJ told newsmen. While Pakistan was financing, training and sending militants across to India, Goodhart said that was only part of the problem in the state. “The people of Kashmir are extremely unhappy with the way they have been treated by India.” He cautioned that elections in the state would be meaningless unless “the Indian government is willing to allow the militants to contest.” Goodhart said Jammu and Kashmir “has a very poor record of free elections.”

The ICJ report, released in Geneva during the United Nations Human Rights Commission condemns India. Pakistan and local militant groups for abuses of human rights in the state of Jammu and Kashmir and regrets that it was not allowed the kind of access it desired in Srinagar. It goes into the history, geography, politics and passion of the Kashmir issue.

“The existence of the people’s right to self determination in International Law can not be denied. Nevertheless there are many controversies about the right which remain to be settled,” the ICJ says. “If the ICJ mission has concluded the people of Kashmir have a right to self determination, it fol- lows that their insurgency is legitimate, it does not, however, follow that Pakistan has a right to provide support for militants.”

The four members of the ICJ mission are of the first representatives of any International Human Rights Organization to be authorized by the Indian government to visit Kashmir since trouble in the state started. They visited Kashmir and Pakistan occupied Kashmir but did not go into the northern areas. The report was discussed in great detail with both governments-and was revised where ICJ thought fit before being made public.

Regarding self-determination, the reports says the people of the State acquired a right to self determination. when India was partitioned, that right has never been exercised nor abandoned and therefore remains capable of exercise, the right belongs to the people of the State and not Pakistan, the State comprises a number of different units which should be allowed to exercise the right to self determination separately and that full or limited independence for Kashmir is a possible option.

Who is a “people” for the purpose of determining this right, how is the “self” defined wish reference to territorial boundaries and where does international law, peace and security fit asks the ICJ as a way of getting out the vipers nest it has ventured into. “The question of self determination is key to the Kashmir conflict-it is fact the root of the problem,” said S William Goodhart of the four menber ICJ team that visited Kashmir August 1993. “A single plebiscite for the whole state would be disastrous, but possibly a referendum approving a previously negotiated solution could be one way out,” he said.

Criticism of India fails under three heads. One part deals with Indian laws including the TADA which deay Human Rights, another part deals with the conduct of the Indian security forces and the third deals with the controversial issue of self determination. “Torture is routine and in the early days was a part of state policy said Justice Micheal Kirby who presented the report along with Goodhar.

Article extracted from this publication >> March 10, 1995