India, Pakistan and the Kashmir Conflict: Making Progress through International Law

By Georgia Marks

On the 27th February Dr Aman Hingorani came to the Temple of Peace to give a talk about the Kashmir conflict and suggest solutions with reference to his book ‘Unravelling the Kashmir Knot.’ John Harrington for the Law and Global Justice Research Group in Cardiff Law School introduced the speaker. Harrington gave some context to the speaker and his work, describing Dr Hingorani as an advocate of the High Court in Delhi. It appears that work in human rights is a family affair, with Harrington referring to Hingorani’s parents as the mother and father of public interest litigation.

Hingorani began his talk by explaining that his research into the conflict in Kashmir began as part of his PhD research. Hingorani described Kashmir as a strategically placed area, as geographically it is to the side of both India and Pakistan. He went on to establish that the two latter countries both want more territory and have both dug their heels in Kashmir, at the expense of lives. The two countries are at a stalemate as they both want to keep the territory that they have.

After a brief introduction, the speaker stressed that unless we understand the narrative we cannot understand the way forward. A member of the audience questioned how the historical background has shaped the current situation. To this the speaker answered that neither domestic not international law can resolve it, the issue is based in politics, but it is important to use law to adapt political discussion. He went on to say that the current phase of radicalisation is buried in the subcontinent. The situation described by the speaker as the creation of a situational environment of mutually hostile nations with heightened sense of nationalism. I think this is a really good point as we cannot find a solution to the conflict if we do not understand the history that led up to it.

The speaker then went on to establish the history associated with the conflict which gives a good overview of the reasons behind the current situation highlighted above. 1857 marked what Britain referred to as the Mutiny in India, but what Indians call the War of Independence. As a result the government became centralised and the Queen declared that no more provinces were to be acquired and certain sovereign aspects were given to other countries. Hingorani made the point that before 1857 Muslims were seen as the enemy of Britain, but after 1858, middle class Hindus were established as the new enemy. The official British policy was communalisation, where Britain gave India the freedom, however the country was incapable of resolving the Muslim-Hindu conflict. Britain then used this to enforce its influence, as it created the perception that India needed Britain to resolve such conflicts. In 1939, the beginning of the Second World War meant India was declared as a country in war. Hingorani stated that according to the British archives the partition was decided then and not in 1947. At this point, Britain knew that they had to leave the subcontinent but wanted to keep part of it, so India used Islam as a geographical boundary, with Kashmir falling within this. However, the speaker made clear that Indians did not want the partition. When the partition was refused, violence was used as direct action to force congress to agree; they eventually did which resulted in the Independence Act 1947. Britain used Pakistan as a means of gaining power and assumed that Kashmir would go to Pakistan, so when it did not, it led to the Kashmir issue. Hingorani described the Kashmir issue as being based on British interest on the subcontinent. This is an interesting comment to make as it suggests the detrimental effects British colonialism had on other countries. In this sense, I think it is debatable whether intervention on an international level would do more harm than good in this context unless intensely supervised by the UN.

The speaker then went on to explain why Kashmir did not go to Pakistan. The ruler of Kashmir was Hindu and did not want to be part of Pakistan, a country with an Islam majority, and instead wanted to be independent. However, Pakistan wanted Kashmir, but the ruler of Kashmir was difficult and so Pakistan forced the ruler to exceed to Pakistan through the use of weapons given by Britain. Therefore, from what Hingorani has established up to this point is that Britain have been an integral political part of this conflict and have contributed greatly to the violence in this area.

Hingorani then went on to describe it in terms of international law, if Kashmir exceeded to India then it cannot be vetoed. Kashmir was deemed by the speaker as an international issue that needed Pakistan to comment on it. He then went on to say that the minute that India refers to the UN, a ceasefire will be demanded. In my opinion, this would be the best possible option from a human rights perspective as it would help to prevent the violence inflicted on civilians in Kashmir. The UN Security Council expressed the desire for the future of the state should be decided under UN supervision and presented the idea to take Kashmir issue out of the domestic context and give it an international platform. Another member of the audience asked if there were any serious efforts of countries to refer to the issue on an international level. Hingorani said that there had been no effort on the part of these countries. Kashmir has always been seen as a political issue and we need to distinguish it from law. However, India is going against legal policies and law is seen as abstract and we do not have military, political or diplomatic solution. The main problem is that India is not sure about what the Kashmir issue is, so a political will needs to be created. I think to take the issue to an international level will benefit Kashmir as it will provide an international check and balance on the actions of India, Pakistan and other countries involved such as Britain, and would hopefully influence positive change in this area, particularly for the people of Kashmir.

The speaker then established that New Delhi had disowned the part of Kashmir owned by Pakistan while retaining their part, however part of Kashmir was owned by China. So clearly Kashmir is split dramatically which is detrimental for their national identity. In addition to this, the Chinese were investing money and wanted the deeds from Pakistan but an issue arises here that if Pakistan agreed to give over the deeds then they agree to the partition which is not what they wanted. India had a control constitution but in 1973, in order to seek territory, India needed to amend their constitution because there was a constitutional limit to give up territory and while there is a constitution, India cannot disown territory or people.

So after a dispute spanning seventy years, India wants a partition but Pakistan wants a whole state. Hingorani then went on to stress the need to depoliticise the issue by making it subject to legal analysis. I think this is a valid point as if the countries are currently at a stalemate then it seems right to change tactics and focus the discourse on a different analysis to see if a solution can be found. We do not know how successful it will be, but the conflict has been going on for so long, it seems that any alternative is worth trying.

The narrative was established by the speaker as a constitutional framework. Both Pakistan and India were created by controlled constitutions, so the question is where India got the power to grant the wishes of the people. The same law that created Pakistan made Kashmir part of India. The main question presented by Hingorani was this, how did New Delhi have the power of accession when the law did not give them the power. The speaker went on to express that as a first step to depoliticise we should let the International Court of Justice test who has the title. John Harrington asked whether reference to the International Court of Justice would have any effect on the serious human rights violations in Kashmir. Hingorani responded by saying that in such conflict there are bound to be violations, and in India there has been reference to the domestic court- people want to see results.

 

At the point in the talk, Hingorani referred to his book that has been the basis of his discussion. He wanted to make clear that he wrote the book as an Indian. He then emphasized that law cannot resolve the issue but it can change political discourse. I think that this is powerful as if law is capable of changing the current discussion then the countries involved can attempt to get themselves out of the stalemate they have got themselves in. Hingorani was asked if he had visited Kashmir and he said that he deliberately had not visited as he did not want to be swayed by emotions as he written the book as a lawyer. The speaker expressed that he did not want to take sides as his book is from a jurisdictional perspective. I think this aspect is also important as it provides a rational view of how the conflict can try and be solved.

The speaker then established the current situation; Pakistan feels cheated and Kashmir feels backstabbed, and these are ingredients for terrorism. That is why, Hingorani said, that the political discourse needs to be changed. The problem is that there is unequal bargain power between India and Pakistan because if Pakistan disputes legal propositions then there is no Pakistan. Nonetheless, the UN has recognised Pakistan and India as sovereign countries, however Kashmir was recognised as part of India but not part of Pakistan.

The speaker concluded by relaying the realities of Kashmir. As a result of the partition it is a violent society, with part of the country being disowned by India. However, the country just wants to be independent and away from this 70 year old conflict. There has been terrible trauma as a result of the partition and all countries involved need closure. When a member of the audience asked Hingorani how he classed what is going on in Kashmir. The speaker reaffirmed that Kashmir want independence because they were promised it. The people of Kashmir are expressly being denied their human rights, these people are stateless.

Overall, I found Hingorani’s talk insightful as it offered a fresh perspective on how to resolve the ongoing conflict. Using law as a way to bring about change although uncertain in its effect, is an idea that is bound to help with relations between the countries by giving the discourse a different platform. In addition to this, it is really important to establish the history behind the conflict in order to understand the narrative that we need to address. It cannot be argued that this issue is not pressing as the current situation is having a detrimental effect of the human rights of the people of Kashmir.

 

The Orlando Mass-Shootings: Homophobia or Terrorism

Megan Griffiths

On the morning of the 12th of June, the world woke up to the news of a mass shooting in a LGBT nightclub in Orlando, Florida. Another mass shooting. As the death toll in the Orlando shooting has increased to 49 people, debates on homophobia, terrorism and gun control have been stirred up. Mateen’s homophobic and religious motives are not mutually exclusive but entangled, and the events resonate painfully with both recent terrorist attacks in Paris, Ankara and Beirut but also, attacks on gay men and women in New Orleans and London.

In the next few days and weeks, as is the case with every act of violence, messages of solidarity, prayers and love will be sent from all over the world. Yet the range of different controversial issues will no doubt spark debate and will lead to an array of different perceptions of the deeper rooted issues in American society. It’s easy to point the finger towards terrorism, especially considering the inherent American fear of radical Islam. This crime cannot be simply ascribed to being an act of terrorism but as Obama pointed out, also an act of hate. According to Mateen’s father, Mateen became completely enraged when he and his young son saw two men kissing in Miami a few months back, and according to media speculation, it seems his sexuality may be more of a motivation for his actions than his religion. Statistics show that US Muslims are actually more likely to support same sex marriage (42%) than US evangelicals (28%) and are just as likely to support it as general US Christians, suggesting opposition to same sex relationships may not necessarily be a product of any particular religion but of their extremist factions.

T Lt. Governor Dan Patrick tweeted early on Sunday morning a bible verse from Galatians 6:7 ‘Do not be deceived: God cannot be mocked. A man reaps what he sows.’ The very fact that a prominent political figure can take such an anti-gay stance in such a public way illustrates perfectly the depth of homophobia amongst certain Americans, and how, in some ways, it is actually accepted. A pastor from California gave an impassioned sermon on the shootings, lamenting that “The tragedy is that more of them didn’t die. The tragedy is — I’m kind of upset that he didn’t finish the job!” He went on to add that “I wish the government would round them all up, put them up against a firing wall, put a firing squad in front of them, and blow their brains out.” If a member of the Muslim community used these words, they would likely be used as newspaper headlines to inspire shock amongst people. But due to his supposedly ‘Christian’ faith, the effect is not the same. What is more, Trump’s use of the attack to forward his ideas on banning Muslim immigrants shows the extent of his ignorance on the state of his own country. Mateen was born in America. Whilst he undoubtedly had outside influences on his ideology throughout his life, he was also brought up in an American society where there is often some form of negative stigma on being gay. Politicians such as Trump will use the attack to ignore the flaws in society and place the blame on anyone but straight white Americans.

Of course, America has made real progress in legalising same-sex marriage and equality for homosexual and transgender people, and indeed does not see this as a crime unlike some countries around the world. Still, the fact that this took place in a LGBT club, during the national pride month, needs to be observed and we should reflect on the homophobia and transphobia that evidently still exists. We should not become complacent in how far we have come. An attack directly on LGBT people has shattered the security that many people had come to accept and has revealed the deeper roots of hate, prejudice and insecurity that have evidently been bubbling under the surface of society. Through the juxtaposition and intertwining of terrorism and homophobia in this particular case, it is impossible to extract one from the other.

Indeed, to some, it is easier to simply place the blame for his homophobia on his radicalisation. It is easier to continue our debates on ISIS and terrorism strategies than also consider our attitudes to gays and lesbians, often a slightly taboo subject at the best of times. Owen Jones’ reaction live on air on Sky News shows just how sensitive the situation is and how people’s perceptions of the attack differ. But this totally ignores the fact that Mateen was brought up in America and was therefore exposed to home-grown ignorance and anti-LGBT rhetoric in American society and government which itself leads to marginalisation and violence against the community on a day-to-day basis. He may be Muslim, but is this actually relevant when we consider how anti-LGBT policies are a fundamental mainstream in many parts of America, regardless of faith.

It would be interesting to ask ourselves if the dialogue surrounding the shootings would be different if Mateen was not a seemingly radicalised Muslim, but an anti-gay Christian acting in the name of God. Where does the fact that, completely aside from his faith, he is cited to be a violent and perhaps mentally unstable individual fit in? Would the event have taken on the shape of a less high-profile hate crime? Or merely another mass shooting? By solely labelling it as a ‘terrorist attack’ and linking it to ISIS, it inspires a specific response in us due to recent events attributed to ISIS. The fact that homophobia is not exclusive to a single religion or belief system means that we cannot allow ourselves to simply focus on this as an ISIS inspired terrorist attack. Much focus has been placed on the fact that the attack marks the deadliest domestic terror attack since 9/11 yet it is also the largest targeted attack on the LGBT community since the holocaust.

Increasing acts of terrorism around the globe, coupled with the European refugee crisis, have led to general negative shifts in attitudes towards immigrants and often, islamophobia, ordinary peaceful Muslims are tarred with the same brush as radicalised extremists, leading to ill-conceived fears of Islam itself. Donald Trump’s presidential campaign in the US and the rise of right wing movements in Europe have led to a general increase in ‘hatemongering’. United Nations High Commissioner for Human Rights Zeid Ra’ad al- Hussein warned that ‘Hate is becoming mainstreamed’. We cannot afford to allow this latest attack to inspire yet more hatred and fear by using Mateen’s Muslim faith as a scapegoat and exploit his faith to forward political agendas on terrorism. To do so blatantly ignores the cracks in tolerance and acceptance within our society and towards the LGBT community. Homophobia, Transphobia and Islamophobia all come together under the same umbrella of hatred and it is not until we have dismantled them all that we can be completely peaceful.

The shows of humanity in Orlando as people go out of their way to help and the messages of solidarity and vigils for the victims and the LGBT community held all over the world show us that love can indeed win. But love will only win if we don’t allow tragedies like this to inspire yet more hatred towards other innocent people. We owe it to the 49 individuals who lost their lives and their families.

 

The Abu Qatada Show: Prejudice and Hatred versus the Right to a Fair Trial

Idealized_Lady_Justice_on_Old_Bailey,_London,_UK

Abu Qatada, public enemy number one, on trial by public opinion for over a decade, was last month acquitted of terror offences by a Jordanian court. The verdict was met with members of the British government and the opposition clambering to issue sound bites to the media about how vital it is that, despite being found innocent of this charge, Qatada would not be allowed back into the UK.

In one such desperate example, deputy Prime Minister and lame duck Nick Clegg has said that ‘What is absolutely clear to me is this man needed to face justice and needed to do so out of the United Kingdom and that’s what this government finally achieved.’

And despite his shameful attempt at defending the decade long campaign by the British government to deport Qatada by equating the government’s actions with justice, Clegg has unwittingly said something quite true. Qatada needed to face justice and needed to do so out of the United Kingdom – he certainly wasn’t going to face justice whilst he remained there. As Clegg said, the government has indeed finally achieved justice for Qatada by deporting him in order to face a fair trial after over a decade of attempts to unjustly deny him his freedom.

The whole fiasco was never, as the government claim, about justice. The real issue was that, if they failed to deport Qatada, the political establishment envisaged the unwashed masses, agitated by the sensationalist gutter press, lethargically marching to their local church hall to vote UKIP in the next election. The Qatada problem had captured the minds of the proles and they were annoyed. Things got political and it became a priority for the government – get rid of Qatada at all costs. The public agreed – out with Qatada or out with the politicians.

But the public’s judgement of the government’s actions had been skewed by underlying simmering prejudices which lead to the search for a scapegoat, an outlet at which the public could direct their anger and bile, a stereotype, pantomime villain type that encompasses all of what they see as wrong and ugly with Britain. The media tapped into this demand and obliged in building up such bogeymen as Qatada and Abu Hamza. Immigrant Muslims on benefits, the latter sporting an eye patch and hooks for hands for good measure, being kept in our green and pleasant land by another perpetual annoyance of the British public – European human rights laws.

Even though you would be hard pushed to find someone who has actually read up on Qatada’s views, the allegation that Qatada ‘hate’s Britain and British values’ was often erected as a façade to justify the deportation calls, yet even this was to miss the most important point of the whole affair, no matter how vile and depraved the clerics words.

Whilst there are legitimate arguments to be had over immigration, state benefits, the teachings of Islam and international human rights, in setting up this hate figure and calling for his deportation, along with the media, the British public are complicit in the political establishments attempt to erode what was until recently held as a fundamental right to all those residing in the United Kingdom. Whilst the public focused on the hate figure, under the shroud of detestation the British government did their best to circumvent the right to a fair trial.

Qatada astonishingly spent the best part of the 10 years up to 2012 at her Majesty’s pleasure despite never even being charged with any criminal offence, let alone being put on trial. Not content with this worrying and flagrant denial of basic rights of liberty which a British judge labelled ‘lamentable … extraordinary … [and] hardly, if at all, acceptable’, the British government then attempted to deport Qatada to Jordan to face trial over a terror plot despite the danger of torture being used by the Jordanian authorities to obtain evidence.

Not only did Qatada face standing trial with the use of compromised evidence but the judge reviewing Theresa May’s decision to deport Qatada to face trial in Jordan over a terrorist plot said that the evidence against Qatada was ‘extremely thin’. The Jordanian case against Qatada rested solely on the fact that he once bought a computer for another alleged terrorist. ‘If that’s the only evidence in the case’, said Justice Mitting, it’s difficult to understand on what basis… [Abu Qatada] could be prosecuted’. Despite such a damning ruling, it was the lawyers of the Home Secretary that disreputably claimed Qatada was ‘scraping the barrel’ in his attempt to avoid deportation when it was plainly apparent that it was the Government who were the barrel scrapers in their zealous case against Qatada.

After Qatada’s rights to a fair trial were secured by the UK and Jordan signing of a treaty containing assurances against torture evidence, Qatada was finally deported. With the final scene drawing to a close, our heroine, Theresa May was congratulated on finally defeating the pantomime villain, exiled to the east, never to stain our green and fertile land again. Yet, under much rejoicing from the British subjects and their news tellers, the real victor was ignored, or even blamed for delaying our home secretary’s triumph.

After the curtain falls on the tale of Abu Qatada, the audience should be leaving the Qatada Show feeling dirty and shameful. They experienced themselves screaming at the stage for the government to disregard basic human rights. In their hatred for the villain they booed and hissed at the British justice system as it, against public and government demand, stood firm and upheld the right to a fair trial. As the victorious wheels of justice turned, forcing the false heroine to sign fair trial guarantees into Qatada’s deportation treaty, in what should have been a humiliating climb down the public witnessed a home secretary and a government shamefully take credit for deporting a man they had spent over a decade attempting to illegally deny his freedom.

As the British public emerge blinking into the light, away from the seedy darkness of the media theatre that stirs up feelings of contempt and revulsion in its audience, one would hope that in the hard light of day they would see that they have acted shamefully and that Theresa May and the British government are not the heroes of this story, but are instead a real danger to our rights, not just those of the European Convention, but our British legal rights. One would hope but on the lessons of the Qatada affair, the prejudices of the people of the UK mean they will have to rely on the independence of the justice system to ensure their rights they seem so hostile against and so willing to squander.

For more information


Benjamin Francis Owen is a regular contributor for WCIA Voices.