13081948 Fifth Graham Report Supporting Documents--277 Elucidations and assurances given by the UNCIP to the parties before their respective acceptance of the 13 August 1948 resolution and the 5 January 1949 resolution: in regard to (A) the Azad Kashmir forces (B) defence, and (C) local authorities and sovereignty
13081948 Fifth Graham Report Supporting Documents--277 Elucidations and assurances given by the UNCIP to the parties before their respective acceptance of the 13 August 1948 resolution and the 5 January 1949 resolution: in regard to (A) the Azad Kashmir forces (B) defence, and (C) local authorities and sovereignty
A. THE AZAD KASHMIR FORCES
In the 13 August 1948 resolution, which Pakistan did not accept until late in December 1948, no reference was made to the Azad Kashmir forces. The representatives of India have emphasized the view that they would not have accepted the 13 August 1948 resolution if they had been aware at the time of the strength and fighting efficiency of the Azad Kashmir forces. They hold that if they had been so aware they would have insisted on including the matter of the disarming and disbanding of the Azad Kashmir forces in the truce arrangements. Pakistan stood on the resolution as written.
On 19 September 1948 Pakistan was assured by the chairman of the Commission, inter alia, that :
... the Commission agrees that it will be anxious to reduce the truce period to a minimum and that them resolution does not contemplate the disarmament or disbanding of Azad Kashmir forces" [Letter dated 19 September 1948 from the Commission to the Pakistan Minister for Foreign Affairs, S/1100, paragraph 108, 2 (c)].
Previous to the agreement of the two Governments on the basic principles which became the 5 January 1949 resolution, conversations were held in New Delhi between members of the Commission and the Prime Minister of India. In a conference on 20 December 1948:
"... the Prime Minister [of India] drew attention to the fact that the Azad Kashmir forces which had been armed and equipped by Pakistan and were under the operational command of the Pakistan Army ran into tens of thousands. Their presence in the territory referred to in A. 3 of part II of the resolution of 13 August [1948] even after demobilization, would be a constant threat to the territory under the control of Indian and State forces, a deterrent to the return of many refugees, and an obstacle to the free expression of opinion regarding the future status of the State by those who might be opposed to the accession of the State to Pakistan. Mr. Lozano pointed out that it was the Commission's intention that there should be a large scale disarming of these forces, though it would not be possible to require withdrawal from these territories of genuine inhabitants of these areas'' [S/1196, annex 4, aide-memoire 1, para. 4, B. 4 (b) ].
The same subject was discussed further in a meeting between the Prime Minister of India and members of the Commission on 22 December 1948:
"Mr. Lozano said that the aide-memoire of the conference which took place on Monday, 20 December, was a correct account of the proceedings. He suggested, however, that the phrase 'large-scale disarming' of the Azad Kashmir forces used in the portion of the aide memoire dealing with B. 4 (b) of the Commission's plebiscite proposals did not, perhaps, represent the Commission's intention. What the Commission had in mind was the disbanding of these forces; disarming, it was assumed, would follow.
"The Prime Minister pointed out that disbandment was not the same thing as disarming. Pakistan had raised something like thirty-five battalions of 28,000 to 30,000 men who now formed part of the Azad Kashmir forces. The presence of such a large number of armed people even if the regular formations were disbanded, would not be conducive to ensuring either the security of that part of Jammu and Kashmir which is under the control of Indian and State forces, or the security of those inhabitants of the territories referred to in A. 3 of part II of the resolution of 13 August who did not fully subscribe to or share the political views of pro-Pakistan elements.
"Moreover, the question of the re-entry into these territories of State citizens who had left it on account of the present conflict had to be kept in mind. With such a large number of members of the Azad Kashmir forces under arms, former inhabitants of these territories who held different political views would not dare to re-enter and would therefore be debarred from participation in a 'free and impartial' plebiscite. In view of this explanation, Mr. Lozano agreed that the phrase 'large-scale disarming' should be regarded as correctly interpreting the Commission's intention" [S/1196, annex 4, aide memoire 2, para. 2].
In the agreed memorandum attached to Pakistan's acceptance on 25 December 1948 of the principles which were then embodied in the 5 January 1949 resolution it is stated in relation to clause B. 4, inter alia:
"(ii) The intention of the Commission is to ensure a large-scale reduction and disarmament, the exact scope of which will be determined by the Commission and the Plebiscite Administrator in consultation with the authorities concerned" [S/1196, annex 5, communication (ii) ]
Principles embodied in the 5 January 1949 resolution. were accepted by India on 23 December 1948 and by Pakistan on 25 December 1948.
B. DEFENCE
Among the concerns of the Government of India previous to its acceptance of the 13 August resolution was the one that:
"(v) India should retain such strength of forces in Kashmir as to guarantee defence and the maintenance of law and order and the protection of the territory against external attack." [S/1100, para. 77 (v) ].
At the meeting of members of the Commission with the Prime Minister of India in New Delhi on 17 August 1948, the Prime Minister, with reference to part II, section B, paragraph 2.[of the 13 August 1948 resolution :
... remarked that it would be necessary for India to retain troops in Kashmir for defensive purposes as well as for the maintenance of law and order. Recalling that the same issue had been raised in the Security Council, he said that the Government of India must have suffi cient troops to protect the territory against external attack. Mr. Korbel commented that in his understanding the phrase 'law and order' could be interpreted to include maintenance of adequate defence inasmuch as that was essential to law and order." [S/1100, annex 12, page 106].
In the letter of 20 August 1948 from the Prime Minister of India to the Chairman of the Commission, the Prime The Minister asked for certain assurances regarding responsibility for defence of the State. He stated:
"That from our point of view the effective insurance of the security of the State against external aggression, from which Kashmir has suffered so much during the last ten months, was of the most vital significance and no less important that the observance of internal law and order, and that, therefore, the withdrawal of Indian troops and the strength of Indian forces maintained in Kashmir should be conditioned by this overriding factor.
"Thus at any time the strength of the Indian forces maintained in Kashmir should be sufficient to ensure security against any form of external aggression as well as internal disorder" [S/1100, para. 78, 3 (2) 1.
The Prime Minister continued:
"If I understood you correctly... as regards paragraph
3 (2), the paramount need for security is recognized by the Commission, and the time when the withdrawal of Indian forces from the State is to begin, the stages in which it is to be carried out and the strength of Indian forces to be retained in the State, are matters for settlement between the Commission and the Government of India.
"Finally, you agreed that part III, as formulated, does not in any way recognize the right of Pakistan to have any part in a plebiscite" [S/1100, para. 78, 4].
The Chairman, replying for the Commission on 25 August 1948, stated, inter alia:
"The Commission requests me to convey to Your Excellency its view that the interpretation of the resolution. has expressed in paragraph 4 of your letter coincides with its own interpretation...." [S/100, para. 79]. In a letter of 3 September 1948 from the Commission to the Minister of Foreign Affairs of Pakistan, in response to a request for certain additional clarifications of the 13 August resolution, the Chairman wrote, inter alia:
"As regards paragraphs B. 1 and B. 2, of part II, the Commission, while recognizing the paramount need for security of the State of Jammu and Kashmir, confirms that the minimum strength required for the purpose of assisting the local authorities in the observance of law and order would be determined by the Commission and the Government of India. The Commission considers that it is free to hear the views of the Government of Pakistan on the subject" [S/1100, para. 90 (3) ].
C. LOCAL AUTHORITIES AND SOVEREIGNTY
In a meeting held in New Delhi on 17 August 1948 between representatives of the Commission and the Prime Minister of India, the Prime Minister inquired if the wording of A. 3 of part II of the 13 August 1948 resolution:
... envisaged any change in the status of the territory, or whether it recognized the jurisdiction of the Government of Jammu and Kashmir over that territory. Mr. Korbel remarked that that point incorporated the suggestion which the Prime Minister himself had advanced and that the phrase 'pending a final solution' was intended to recognize the temporary nature of the administration by local authorities. Sovereignty over the territory was not to be changed" [S/1100, annex 12, page 105].
In the letter, previously referred to, dated 20 August 1948 from the Prime Minister of India to the Chairman of the Commission the Prime Minister maintained:
"That, paragraph A. 3 of part II of the resolution should not be interpreted, or applied in practice, so as
"(a) To bring into question the sovereignty of the Jammu and Kashmir Government over the portion of their territory evacuated by Pakistan troops;
"(b) To afford any recognition of the so-called Azad Kashmir Government or
"(c) To enable this territory to be consolidated in any way during the period of truce to the disadvantage of the State" [S/1100, para. 78, 3(1)].
In the same letter the Prime Minister said:
"If I understood you correctly, A. 3 of part II of the resolution does not envisage the creation of any of the conditions to which we have objected in paragraph 3(1) of this letter. In fact, you made it clear that the Com 20mmission was not competent to recognize the sovereignty Autof any authority over the evacuated areas other than that of the Jammu and Kashmir Government" [S/1100, para. 73, 4].
In the reply of the Chairman of the Commission to the Prime Minister of India on 23 August 1948, it was said:
"The Commission requests me to convey to Your Excellency its view that the interpretation of the resolution as expressed in paragraph 4 of your letter coincides with its own interpretation, it being understood that as regards point (1) (c) the local people of the evacuated territory will have freedom of legitimate political activity. In this connection the term of evacuated territory refers to those territories in the State of Jammu and Kashmir which are at present under the effective control of the Pakistan High Command" [S/1100, para. 79].