Was the tribal invasion of Kashmir contrary to International Law?

To adjudge the soundness or otherwise of the Indian allegation that Pakistan committed aggression through the tribesmen, we propose first of all to look at the relevant facts and then apply the law to the situation. The tribesmen from the North West Frontier Province of Pakistan are regarded amongst the hardiest fighters in the world and are born soldiers as they carry their guns since their childhood. They do not depend upon the outsiders for the supply of weapons as they manufacture them locally. They are also amongst the most religious minded. The exact time of the start of the involvement of the tribesmen in Kashmir is unclear but if it took place before 20 October, it must have been individualized and isolated. However, there is a consensus that on 20 October, a large Lashkar of 2000 to 5000 crossed Domel-Muzaffarabad road in lorries in order to wage a holy war against the Dogra forces. There is a difference of opinion in the literature covering this event both in terms of the quantum of overall forces involved and their objective. The official Indian estimates of the tribesmen are put at 70,000, whereas generally the maximum figure given by independent and some Indian writers does not go beyond 5,000. The debate on the strength of the tribesmen involved has an academic interest for us as the issue of number does not have much significance from the legal perspective.

Regarding the motivation of the tribesmen which appears to be more relevant here, India considers the crossing and attack by the tribesmen on the Dogra forces as preplanned with the view to occupying Kashmir whereas Pakistan looks upon it as being spontaneous in response to the atrocities and massacres committed against the Muslim population of Jammu where about half a million people were eliminated by the combined forces of the Maharaja and the Hindu and Sikh bands. There are other differences in the Indian and Pakistani versions of events as well. What is noteworthy here from our viewpoint is the fact that before the arrival of the tribesmen in Kashmir the troops belonging to the State of Patiala, which was part of the Indian Union, were present at the request of the Maharaja both in Srinagar and Jammu since 17 October or four or five days before the arrival of the tribesmen. [1]

Having recounted the principal events briefly, we propose to look at the relevant principles of international law applicable in the matter. We begin by giving a definition of civil war. The term is highly vague and is liable to be defined differently by different writers. In fact, there are practically as many definitions of civil war as are the number of writers on the subject. [2] In order to get out of this difficulty, we propose to give here two definitions which have more or less a representative character. The first definition is culled from the Encyclopaedia of International Law which states as follows:
“A civil war is a war between two or more groups of inhabitants of the same State. A civil war may be fought for control of the Government of a State, or it may be caused by the desire of part of the population to secede and form a new State. These two types of civil war are the most common, but there can also be other types of civil war; for instance, the rebels may try to force the Government to make concessions (e.g. the granting of regional autonomy) without trying either to overthrow the government or to form a new State. It is even possible for a civil war to be fought between factions while the government remains neutral and impotent.” [3]

The second definition is given by the Institut de Droit International, which, being composed of eminent jurists of international law attempting codification of a given area in an unofficial capacity, carries a lot of authority. According to its Resolution on the Principle of Non-Intervention in Civil Wars adopted in 1975, the term “civil war” applies,

1. To any armed conflict, not of an international character, which breaks out in the territory of a State and in which there is opposition between: a) the established government and one or more insurgent movements whose aim is to overthrow the government or the political, economic or social order of the State, or to achieve secession or self-government for any part of that State; or b) two or more groups which in the absence of any established government contend with one another for the control of the State.
2. The term “civil war” shall not cover: a) local disorders or riots. b) armed conflict between political entities which are separated by an international demarcation line or which have existed de facto as States over a prolonged period of time, or conflicts between any such entity and a State.” [4]

It is noteworthy that the overthrow of the established government and its replacement, by that of insurgents is a common objective in both definitions.

Next, dealing with the question of assistance to insurgents, there is a consensus in the international community on the prohibition imposed on third States to furnish armed assistance of every type, such as the despatch of auxiliary troops and war material to rebels.[5] Nor is the third State permitted to allow recruiting of troops or to assist the insurgents in organizing volunteer forces or provide bases to them.
How about the third State providing help (of the type which would violate the rules of neutrality if given during an international war) to the established Government in a civil war aimed at crushing the rebellion? There are jurists who look upon such an intervention by a third State to be legitimate [6] but the preponderance of opinion does not support it even on the ground of having being invited by a lawful government.[7] Thus T. J. Lawrence writing in the first quarter of the twentieth century observed:

“Any attempt in an internal struggle is an attempt to prevent the people of a State from settling their own affairs in their own way… It is an attack on independence without adequate cause, and consequently a gross violation of International Law. In no case can an incitement to do wrong render the act done in consequence of it lawful and right. The same reasoning applies to interventions for the purpose of putting down revolution… But all alike must allow their neighbors to make such changes in their governments and institutions as seem best to them, and to make them by force as well as by constitutional means.”[8]

C. C. Hyde, writing in the 1940s shared the foregoing view when he stated:
“Acts on the part of an outside State in the form of military or other aid given to an existing government to enable it to overcome an insurgent movement of large proportions within its territory in so far as they constitute intervention may prove to be difficult to excuse. Nor is the situation legally altered by reason of the fact that intervention occurs in pursuance of a treaty of guaranty or that such action is in response to an invitation from either party to the conflict.”[9]

Oppenheim justifies foreign assistance if the State is in overall control and is confronted with internal disturbances essentially limited to matters of local law and order or isolated guerrilla or terrorist activities. However, in case of civil war, he writes;
“…any form of interference or assistance (except probably of a humanitarian character) to any party amounts to intervention contrary to international law. In such a case the authority of any party to the conflict to be the government entitled to speak (and to seek assistance) on behalf of the state will be doubtful, and assistance to any party will prejudice the right of the state to decide for itself its form of government and political system.”[10]

Finally, the Institut de Droit International has supported the preceding viewpoint in the Resolution referred to above in these words:

1. Third States shall refrain from giving any assistance to parties to a civil war which is being fought in the territory of another State.
2. They shall in particular refrain from
   a) sending armed forces or military volunteers, instructors or technicians to any party to a civil war, or allowing them to be sent or to set out;
   b) drawing up or training regular or irregular forces with a view to supporting any party to a civil war, or allowing them to be drawn up or trained;
   c) supplying weapons or other war material to any party to a civil war, or allowing them to be supplied;
   d) giving any party to a civil war any financial or economic aid likely to in influence the outcome of that war, without prejudice to the exception provided for in Article 3 (b) (giving any technical or economic aid which is not likely to have any substantial impact on the outcome of the civil war);
   e) making their territories available to any party to a civil war or allowing them to be used by any such party, as bases of operations or of supplies, as places of refuge, for the passage of regular or irregular forces, or for the transit of war material. The last-mentioned prohibition including transmitting military information to any of the parties.
3. Third States shall use all means to prevent inhabitants of their territories, whether natives or aliens, from raising contingents and collecting equipment, from crossing the border or from embarking from their territories with a view to fomenting or causing a civil war.[11]

Now in case a third State, in contravention of the foregoing rule of international law, intervenes in a State involved in a civil war at its invitation in order to help it crush the rebellion, what remedy do the insurgents in such a situation possess? They are under international law entitled to seek help from States sympathetic to their cause. In other words, insurgents who normally are not entitled to seek foreign help for their cause can do so if the Government of that State does so. For example, the Encyclopaedia of International Law approvingly cites this viewpoint in these words:

“An exception to this rule of non-intervention probably exists when the government is receiving foreign help. In these circumstances, States sympathetic to the rebels often claim a right to help the rebels, in order to counter-balance the help obtained by the Government from other States… This right of counter-intervention, as it is sometimes called, is often supported by the argument that counter-intervention is necessary to protect the independence of the country where the civil war is taking place, on the grounds that the government of that country has lost popular support and has become a puppet controlled by its foreign supporters.”[12]

Similarly, Oppenheim supports this viewpoint in these words: “It is, however, widely accepted that if there is outside interference in favor of one party to the struggle, other states may assist the other party.” [13] Again, the Institut de Droit International shares the foregoing viewpoint which it expressed in the Resolution referred to above in these terms;
“Whenever it appears that intervention has taken place during a civil war in violation of the preceding provisions. third State may give assistance to the other party only in compliance with the Charter and any other relevant rule of international law, subject to any such measures as are prescribed. authorized or recommended by the United Nations.”[14]

The proviso in the preceding passage means that while counter intervening the State concerned “must act consistently with the prohibition against the use or threat of force laid down in the United Nations Charter, its actions must be proportional to the circumstances occasioning the intervention, and other means of remedying the situation (such as diplomatic representations) must be shown to have failed or to be so unlikely to succeed as to make recourse to them unnecessary.”[15] In other words, since in counter-intervention, force is bound to be used, the only justification available to the State concerned is the right of collective self-defence based on customary international law. Additionally, before resorting to collective self-defence, it must have tried pacific means of settling disputes. According to the above passage, it is also necessary that the State involved in counter intervention must follow measures, if any, laid down by the UN.

Now applying the foregoing principles of non-intervention in a civil war to the Kashmir dispute, the first thing that we need to know is whether or not Kashmir was embroiled in a civil war at the time when the tribesmen entered there. To pronounce in this matter, we need to look at the relevant facts. There is no denying the fact that before the entry of the tribesmen, Kashmir was not a quiet place. In fact, it was brewing with revolt as the political opposition of earlier years turned into an open resistance in 1946. In the summer of 1947, following the outbreak of communal frenzy in Punjab, situation in Kashmir reached its critical climax. The nucleus of resistance, Poonch was home to around 70,000 ex-servicemen who had served in the Indian army during the Second World War. It was in June 1947 that as a result of no tax campaign a rebellious movement against the State developed. The Maharaja gave a free rein to the marauding gangs of members of the RSS and Akali Sikhs in the region of Jammu. Later towards the end of July, he ordered the Muslims of Poonch to deposit their weapons with the police. The Poonchis retaliated by organizing a guerrilla movement in the hills. The movement was led by a young Kashmiri by the name of Sardar Mohammed Ibrahim Khan who gave it a formal command structure. In early September clashes were taking place in the region of Poonch and in Mirpur district of Jammu between the Poonchis and the forces of the Maharaja. The latter tried to suppress the revolt but did not succeed. In fact, the fighting spread to the eastern part of Jammu. The entire district of Poonch except the city itself was captured by the rebels. It is noteworthy that the objective behind the fighting between the Maharaja’s forces and the extremist Hindu and Sikh gangs on the one hand and the rebel Muslim forces on the other was eventually the struggle for the control of the State for the purposes of its disposal. That explains the establishment on 24th October of the independent Government of Azad Kashmir. On the basis of these events, we can conclude that Kashmir was clearly embroiled in a civil war rather than anything else.

We have seen above that under international law third States are forbidden from intervening in a civil war situation even on invitation by the established Government for the purpose of helping it control the rebels for the reason that the struggle for power, even if violent and bloody, must be settled by the internal forces alone without outside intervention of any kind. In the present situation, however, we see that the Patiala troops were present both at the Srinagar airport and in Jammu on 17 October, four or five days before the Lashkar of tribesmen entered Kashmir. The presence of these troops even if invited by the Maharaja, as was apparently the case in the present situation, was illegal for reason of violation of the rule of international law in the matter.

Since the Maharaja invited the Patiala troops, in violation of the relevant rule of international law, Pakistan retaliated by sending tribesmen to help the Kashmir rebels win the power struggle in Kashmir. By doing so, was Pakistan acting legitimately? In other words, could it be said that the counter-intervention through the tribesmen was not in violation of international law as laid down in the resolution of the Institut de Droit International law on non-intervention as spelled out above?

In our judgment, the counter-intervention by Pakistan could be amply justified. To begin with, Pakistan made serious diplomatic démarche to settle the question of the accession of Kashmir by dispatching a senior diplomat Major Shah to Kashmir but his efforts bore no fruit. He requested the Prime Minister of Kashmir Mahajan to visit Lahore in this connection but the latter refused to go there. Commenting on this Mahajan made the following observation in his autobiography which is quite revealing: “I was in no mood to present myself at Jinnah’s Darbar in Lahore to discuss this or any other matter.”[16] Apparently, he justified his refusal to go to Lahore on the ground that the object of the invitation was to coerce him into securing the accession of Kashmir to Pakistan.[16]

It was during this time that the question of stoppage of supplies of daily needs which Pakistan was under obligation to let go unhindered became a contentious issue between the Maharaja and Pakistan. The Maharaja blamed the Pakistan Government for deliberately hindering the flow of supplies with the view to forcing him to accede to Pakistan. Following this allegation, the Pakistan Government proposed the establishment of an inquiry commission to look, among other things, into this question but the Maharaja did not respond. Instead, the Maharaja threatened Pakistan that he would invite outside troops for help rather than solve the problems through peaceful means.

In the light of the foregoing, it was obviously futile for the Pakistan Government to pursue further diplomatic and other peaceful means to settle the problems with the Government of Kashmir. This raises the question whether we can justify here the counter-intervention by Pakistan through the tribesmen as an exercise of the right of collective self-defense. We propose to look at it in the following paragraphs.

The right of collective self-defense finds its justification if certain conditions are fulfilled. First, it is necessary that it is exercised in response to a wrong suffered. In other words, there must be a breach of legal obligation owed to the latter. This is not to be confused with the doctrines of self-preservation, self-help, or reprisals as they have not survived the UN Charter. In the context of the Kashmir civil war of 1947, a wrong was committed against the rebels by the Maharaja when, in violation of international law, he invited the Patiala troops to help him crush the rebellion. This provided a justification to the rebels to invite outsiders for help.

Secondly, the measures taken in self-defence must be both proportionate to the threat and necessary. This stipulation was laid down in the famous Caroline case where it was stated that self-defence must involve “nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity and kept within it.” This condition was equally fulfilled in the Kashmir context by the tribesmen except for certain acts of pillage and arson, etc., which cannot be condoned.

Thirdly, the measures taken in self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation”. This condition was also laid down in the Caroline case. It envisages the measures to be an immediate response to attack rather than acts of reprisals. The fact that Patiala troops were deployed on 17 October and the counter-intervention took place just four or five days later on 21/22 October shows that this condition too was amply fulfilled.

In the light of the foregoing, we can say that the counter-intervention by Pakistan through the tribesmen on behalf of the Kashmir rebels was justified as it fulfilled the conditions laid down by the right of collective self-defense. Consequently, it is in conformity with the Resolution of the Institut de Droit International on non-intervention.

Pakistan has, however, claimed that she was not involved in the tribesmen’s intervention and that the latter’s intervention was spontaneous being in response to the massacres and atrocities of their co-religionists in the Jammu region and that in view of the prevailing enraged sentiments, she could stop the tribesmen only at her own peril. Before we attempt to investigate the soundness or otherwise of the Pakistani contention, we propose to look at the law in the matter.

There are two documents which are relevant here, namely, the Declaration on Friendly Relations [17] and the Resolution on the Definition of Aggression, [18] which prohibit the use of irregular forces against another State. Thus according to the Declaration on Friendly Relations, every State is under obligation “to refrain from organizing or encouraging the organization of irregular forces or armed guards” including mercenaries for incursion into the territory of another State. It further provides that every State is under obligation “to refrain from organizing, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts when the acts referred to in the present paragraph involve a threat or use of force.”

The Resolution on Definition of Aggression in its article 3 enumerates six acts each of which constitutes an act of aggression, irrespective of a declaration of war or not. One of these acts relates to despatch by or on behalf of a State “armed bands, groups, irregulars or servicemen, which carry out acts of armed force against another State” of gravity such as invasion, occupation, or blockage, etc., or its substantial involvement therein.

Now before pronouncing on the guilt or otherwise of the Government of Pakistan in sponsoring the tribesmen’s intervention in Kashmir, we propose to look at the precise evidence adduced in favor of the charge.

The first and perhaps foremost evidence in the matter is provided on the authority of Lord Mountbatten, the Governor-General of India. Following the intervention of Indian troops in Kashmir on the morning of 27th October, a conference between the latter and the Governor-General of Pakistan Jinnah was held in Lahore in order to identify measures to be taken for defusing the explosive situation. In the meeting, there was a sharp exchange of words between the two about which side was responsible for the violence through which, as alleged by Jinnah, the accession of Kashmir had been obtained. Following the exchange of this diatribe, the latter proposed the simultaneous and immediate withdrawal of forces by both sides. According to Lord Mountbatten, when he asked Jinnah as to how the tribesmen would be taken care of, “he [Jinnah] said that all he had to do was to give them an order to come out and to warn them that if they did not comply, he would send large forces along their lines of communication… I expressed mild astonishment at the degree of control that he appeared to exercise over the raiders.”[19] H. V. Hodson, who held the post of constitutional advisor to the Viceroy of India during 1941-42, and whose book the Great Divide is a kind of Lord Mountbatten’s authorized version of events of the period, [20] describes the episode on the same lines when he says that “Mr. Jinnah replied that if India would withdraw he would “call the whole thing off.”[21]

Regarding the veracity of Lord Mountbatten’s statement, it is very difficult for anyone who was not present in the meeting to pronounce upon. However, it is noteworthy that the latter completely lacks credibility because of his proven bias against Pakistan and Jinnah; and the treacherous role that he played as the Viceroy in the Radcliffe Boundary Commission award. For example, Lord Mountbatten, in his Personal Report to the Secretary of State in which he gave a detailed history of his efforts to persuade Jinnah to accept the proposal of a common Governor-General, inter alia, wrote:

“He [Jinnah] is suffering from megalomania in its worst form… I asked him, “do you realize what this will cost you? He said sadly, “it may cost me several crores of rupees in assets,” to which I replied acidly, “it may well cost you the whole of your assets and the future of Pakistan.[22]

On another occasion, he described the new proposed Muslim country as “this mad Pakistan”[23] and Jinnah as “a psychopathic case.”[24]

The manipulation of the Radcliffe Boundary Commission, which was established to draw the boundaries of the two countries, in favor of India and against Pakistan reflects adversely on the credibility of Lord Mountbatten. According to Christopher Beaumont, the Private Secretary to Chairman of the Boundary Commission, Sir Cyril Radcliffe, the Boundary Commission had completed its work and Ferozpore had been allotted to Pakistan. However, on 12 August Radcliffe went to a lunch hosted by Lord Ismay, the Private Secretary to Lord Mountbatten, to which the latter had also been invited. Christopher Beaumont was excluded from the dinner on the pretext of lack of sufficient space at the table for an extra guest which the latter says was untrue. What happened during the lunch is described by Christopher Beaumont in these words:

“That evening, the Punjab line was changed – Ferozpore was going to India… So Mountbatten cheated and Radcliffe allowed himself to be overborne… As to Radcliffe, he was without doubt persuaded by Ismay and Mountbatten at the lunch from which I was so deftly excluded… The episode reflects great discredit to Mountbatten, and Nehru and less on Radcliffe.”[25]

Given the implacable hostility and bias of Lord Mountbatten towards Pakistan and its founder as well as the fact that he cheated in order to favor India at the cost of Pakistan in the demarcation of boundary in Punjab, his credibility rating is naturally to be regarded as being irretrievably in the negative. Consequently, it is hard to give credence to his version of Jinnah’s remarks on the withdrawal of the tribesmen from Kashmir.

H. V. Hodson, on the authority of General Sir Frank Messervy, the British Commander-in-Chief of the Pakistan army in 1947, states that the latter had strongly advised the Pakistan Prime Minister, Liaquat Ali Khan, against allowing the tribesmen from invading Kashmir. He also states that shortly before the tribesmen’s invasion, the Governor of the North West Frontier Province, Sir George Cunningham, asked the Pakistan Prime Minister on the phone about his Government’s policy in the matter as the Chief Minister, Khan Abdul Qayyum Khan, was encouraging the tribesmen to intervene in Kashmir and even collecting Frontier Scouts and militia transport for the purpose. Sir Frank reportedly emphatically repeated his advice against the invasion of the tribesmen to the Pakistan Prime Minister. According to Hodson, then a conference was held in Lahore between Jinnah, Liaquat Ali Khan, and Khan Qayyum Khan whose outcome, in his opinion, “maybe presumed from actual events.” Continuing his narration of events, Hodson observes that Sir Frank sent one of his officers on some pretext to the house of the Commissioner of Rawalpindi where he discovered him to be presiding over a meeting which included Badshah Gul and other tribal leaders.[26]

As far as the foregoing testimony of Sir Frank and Sir Cunningham is concerned, Hodson himself admits that the “evidence is, of course, circumstantial rather than conclusive.” [27] In other words, what he contends is that the evidence in question supports the allegation of Pakistan’s involvement in the tribesmen’s intervention but falls short of fully supporting it. We are not so sure whether the conclusion that Hodson has drawn from the above evidence is justified. Honestly speaking, in the absence of independent witnesses, it is very hard to verify the veracity of the statements of Sir Frank and Sir Cunningham. It is a question of their word against the accused and since the latter is not in a position to ‘defence himself, the allegation must remain just an allegation and no more, unless more compelling and convincing evidence is unearthed and presented.

Secondly, even if the testimony is accepted to be true for the sake of argument, the conclusion drawn by Hodson is still hard to defend. Thus while advising the Pakistan Prime Minister against allowing the tribesmen from entering Kashmir, Sir Frank, as admitted by Hodson, was “aware of agitation by the tribesmen to be allowed to invade Kashmir.” [28] This statement is a confirmation of the Government of Pakistan’s justification at that time of its failure to act on account of the mitigating circumstances. As far as the conference between Jinnah, Liaquat Ali Khan, and Khan Qayyum Khan is concerned, it is anybody’s guess as to what transpired there. The concatenation between the said conference and what was happening in Kashmir amounts to straining the facts. Finally, the episode relating to the Commissioner of Rawalpindi, iſ true, could be explained by the fact that he, like many others, might have helped the tribesmen privately, clandestinely, and without the knowledge or permission of the Pakistan Government.

As far as Khan Qayyum Khan is concerned, he made no bones about his sympathy for the Muslim cause in Kashmir. He gave free vent to his feelings about it to American journalists. There were rumors of his involvement with the tribesmen’s operations but no concrete and incontrovertible evidence of his role in the matter has been presented so far.

Next evidence to consider is that of Colonel Akbar (later Major-General who was found guilty in the Rawalpindi Conspiracy case for attempting to overthrow the Government) who operated under the pseudonym “Tariq” during the Kashmir war of 1947-48. Describing his role in the Kashmir war, he says that he was contacted by a leader of the ruling political party to prepare an unofficial plan of action for Kashmir. He says that the whole thing was kept secret from the Commander-in-Chief and the senior British and Pakistani officers. Describing the conference with the Prime Minister in which others also participated, Colonel Akbar, says: “In my presence, the allotment of funds received much attention and some points here and there were lightly touched upon. The operational details and their pros and cons were not discussed. The Prime Minister questioned me regarding what help I could render and I promised to do what I had already written in the paper as well as anything else which they might require.”[29]

The approach by a leader of the ruling political party does not prove the involvement of the Pakistan Government. As suggested earlier many people were feeling very strongly for their co-religionists in Kashmir where about half a million people were eliminated. It is noteworthy here that whereas the matter was to be kept secret from the senior British officers, the same was to apply with regard to the senior Pakistan officers too. Does it not prove that the whole affair was private? Finally, the passage quoted above does not reveal much about Pakistan Government’s involvement in the matter. Colonel Akbar talks of allotment of funds but does not identify the purpose for which they were allotted. Nor is there any reference to the training of tribesmen, procurement of weapons and the operational details of the invasion, etc., of which Pakistan was charged by India and which should have been discussed in such a conference. Honestly speaking, this passage falls well short of convincing documentary evidence of Pakistan Government’s involvement in the tribesmen’s intervention in Kashmir.

Then there is the charge of Pakistan Government’s involvement in the tribesmen’s intervention in Kashmir based on press reports, The London Times, for example, accused the former of aiding the tribesmen by making arms, ammunition, and supplies available to the Azad Kashmir forces. [30] It is also reported that a few Pakistani officers were helping to direct the operations. The New York Times also made a similar charge by accusing Pakistan of supplying gasoline to the tribesmen. It also “found Pakistan Army personnel running the Azad Kashmir radio station, relaying messages through their own Pakistan Army receivers, organizing and managing Azad encampments in Pakistan, and supplying uniforms, food, arms and ammunition which… came from Pakistan Army stores.”[31]

However, as opposed to the foregoing press reports which accused Pakistan of involvement in the tribesmen’s intervention in Kashmir, there were others who did not agree with that assessment and absolved the Government of Pakistan in the matter. For example, Margaret Parton of the New York Herald Tribune reported as follows:
“If Pakistan is giving direct assistance to ‘Azad’ (‘Free’) lighting forces in Kashmir, evidence is not on the surface to be seen by prying foreigners. Below the surface is a mass of rumors, contradictions, and paradoxes which. during a just-completed week along the border of Pakistan and Kashmir, have alternately balled and amused groups of press correspondents who followed Liaquat Ali Khan, Prime Minister of Pakistan, on his tour of the frontier.
During the entire 600 mile trip we saw no raiders’ bases, no training centers, no stocks of arms and ammunition, and no soldiers slipping off to the Kashmir front. Even those ‘neutral observers’ – British officers and civilians – denied the existence of any of those material aids which India charges Pakistan is giving the lighters in Kashmir.”[32]

In fact, Pakistan tried its best at that time to stay clear of any involvement in Kashmir. Thus, for example, when in September 1947 the Poonch rebels acquired a formal command structure with Mohammed Ibrahim Khan as its head, the latter, who was also an elected member of the Kashmir Legislative Assembly on behalf of the Muslim Conference, tried to meet Jinnah, the Governor-General of Pakistan who refused to oblige him on the ground that such a meeting might be viewed in terms of Pakistan’s involvement in Kashmir.[33] In fact, senior British officers in Pakistan at that time were of the view that the Governor-General “Mr. Jinnah at least was honestly and completely taken by surprise.”[34] As far as the Government of Pakistan is concerned, it is noteworthy that the Maharaja in his letter of accession accused it only of “knowledge” of the tribesmen’s operation.[35] The remaining charges such as training of tribesmen, supply of arms and ammunition, abetment, direction of operations by the personnel of Pakistan army, etc., appear to have been an afterthought.

It is noteworthy here that Pakistan never denied the involvement of Pakistani nationals in the fighting in Kashmir including members of armed forces on or without leave. Sir Zafarullah Khan, in the course of the Security Council debate on Kashmir, defended the action of these men by stating that faced with what was happening in Kashmir (as stated earlier Jammu was ethnically cleansed of about 1/2 million Muslims), it was but natural for them to act the way they did: “That kind of thing might be expected of angels, but it cannot be expected of human beings. I will say that a man would be a despicable coward, if, under those circumstances, he did nothing to help.”[36]

Lord Birdwood who never hesitated to subject the Pakistan Government to criticism on the question of the latter’s involvement in the Kashmir war does not go beyond saying that “there was no plan of control by the Pakistan Government at the highest level, there was knowledge and tacit consent.”[37]

The charge of Pakistan’s involvement in the Kashmir operation may or may not be true but given the use of the Pakistan territory by the tribesmen for intervention in Kashmir, the question arises whether Pakistan took any steps to stop them from transiting through its territory to enter Kashmir as required by the Declaration on Friendly Relations and the Resolution on the Definition of Aggression as seen above. Pakistan did make an attempt to deny the tribesmen the use of Pakistan territory. Lord Birdwood as a neutral observer testified to such an attempt in these words:

“The first news of actual movements reached the Governor of the frontier Province on 20th October, when it was reported that 900 Mahsuds had left Tank in lorries for Kashmir. He immediately ordered their advance to be blocked at Kushalgarh, but they were already across the Indus. Simultaneously, news came from General Ross McCay, who commanded the Peshawar Division, that tribesmen in lorries were crossing the Attock Bridge. McCay was then asked by the Governor to take preventive action, but he was quite unable to do so, since at the time. he had no formed units ready.” [38]

However, it appears as if Pakistan failed to make any concerted effort to stop the tribesmen from intervening in Kashmir. This was acknowledged by Liaquat Ali Khan who, justifying his Government’s policy in the matter, stated that any attempt by Pakistan authorities to stop the movement of the tribesmen in defense of their suffering co-religionists would have precipitated trouble with the rest of tribes on the frontier. Hodson, who, as seen above, is highly critical of Pakistan Government’s policy on the tribesmen virtually accusing it of complicity in their intervention in Kashmir, however, shares Liaquat Ali Khan’s assessment in the matter in these words: “It was also a fact that the Pakistan army was not in good order after partition, with its units scattered and its administration disjointed, and was in no shape to take on a campaign against Frontier tribesmen who were, in their own view, rescuing their co-religionists in Kashmir.”[39] The Deputy Prime Minister of Kashmir, R.L. Batra, apparently shared the foregoing assessment when he declared on the morning of 24 October, that the insurgent forces were “tribesmen who are out of control of the Pakistan Government.”[40] Commenting on this Alastair Lamb termed it as a collapse of internal law and order rather than an act of aggression by a neighboring State.[41] Sir William Barton not only accepts Pakistan’s judgment in the matter but also goes beyond when he says:

“If an attempt had been made to drive them [the tribesmen] back, the whole border from Chitral south to Quetta would have burst into flame, and at that time Pakistan forces were still disorganized and largely unequipped, thanks to India’s refusal to hand over Pakistan’s share of the military supplies Ieft by the British. They could not have held down a tribal rising and might have been driven across the Indus. This would have given the Afghans an opportunity of taking territory as far as the Indus, which they look on as Afghanistan irredenta. In such an event Pakistan would have been absorbed in India, or have become a satellite of that country.”[42]

In the light of the foregoing evidence from independent sources that any concerted attempt by Pakistan to stop the tribesmen’s intervention in Kashmir would have posed a serious threat to its own security, can we exonerate its inaction in the matter? As seen above, according to the Declaration on Friendly Relations and the Resolution on the Definition of Aggression, a State is under obligation not to organize or assist irregular forces in the use of force against another State nor acquiesce in the use of its territory for such a purpose. Its conduct in terms of its responsibility in the matter is to be judged by the concept of “due diligence” which signifies that it has to act to prevent activities prejudicial to another State within the means of its disposal. The concept which is not of a subjective nature refers to a State’s pre-existing obligations for the violation of which the State is responsible as underlined by the World Court in the Corfu Channel case. To engage the responsibility of a State for lack of due diligence an act of carelessness or negligence on the part of individual agent is not needed; a general defect or failure in the structure of the State or its public administration is sufficient.[43] However, given the circumstances of 1947, would the concept of due diligence hold the same meaning as it would do in normal circumstances? In other words, would not the expression within the means of its disposal be construed depending on the circumstances in which Pakistan found itself in 1947? The answer seems to be in the positive as, following the trauma of the Partition and the communal holocaust in which the Subcontinent was engulfed in 1947, the State administrative apparatus had broken down, the armed forces were in a state of disarray and above all, in view of the religious sentiments involved, any action by Pakistan authorities might have resulted in setting the newborn country ablaze, posing a serious threat to its territorial integrity and political independence. In our estimation, the present case is a good candidate for exoneration for mitigating circumstances that accompanied the tribesmen’s incursion into Kashmir.

Notes & References:

1. For Patiala troops, see; Maj. Gen. D. K. Palit, Jammu and Kashmir Arms: History of the J and K Rifles (Dehra Dun: Palit and Dutt Publishers, 1972), p. 197; Lt. Gen. L. P. Sen, Slender was the Thread: Kashmir Confrontation 1947-48 (New Delhi: Orient Longmans, 1969), p. 64; The White Paper on Jammu and Kashmir by the Indian Government 1948, p. 4. See also, Robert G. Wirsing. India, Pakistan and the Kashmir Dispute: On Regional Conflict and its Resolution (New York: St. Martin’s Press, 1994), p. 50.
2. See A. Rougier, Les Guerres Civiles et le Droit des Gens (Paris: Larose & Forcel, 1920), p. 18, for older definitions which generally emphasize armed conflict between members or rulers and ruled of the same State. A. Rolin, Le Droit Moderne de la Guerre, Vol. 1 (Brussels: A. Dewit, 1920, p. 143), defines civil war in terms of an open and public strife between the Stare and a political entity within a State. For more recent definitions, see G, H, Hackwonh Digest of International Law, Vol. VI (Washington D.C.: Department of State Publication, 1940-44, p. 166) and; H. Wehberg. “La Guerre Civile et le Droit International”, 63 Hague Recueil, 1938 (1), p.39.
3. Rudolf Bernhardt (ed.). Encyclopaedia of Public International Law (Amsterdam/New York: North Holland, 1981). See Vol. 3 under the heading “civil war.”
4. Annuaire de l’Institut de Droit International, 1975, pp. 544-49.
5. See on this point the Declaration on Friendly Relations adopted by the UN General Assembly by consensus in 1970 (Resolution 2625-XXV) which states:
   “Every State has the duty to refrain from organizing. instigating or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force”, and that “no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.”
6. The following writers consider intervention on behalf of the established Government to be lawful: Woolsey, Introduction to International Law (New York: Charles Scribner’s Sons, 1892), para. 42; G. Scelle. “La Gucrre Civile Espagnole et le Droit des Gens”, Revue Générale de Droit Imernational Public, 1939. pp. 197-228; Wehberg, ‘La Guerre Civile et le Droit International.” 63 Hlague Recueil, 1938 (1), p. 229; La Pradelle. 2; New Commonwealth Quarterly, p. 295 (It is noteworthy that while stating such intervention to be lawful, he, at the same time, opposes it on policy ground); J.C. Bluntschelli. Le Droit International Codifié (Paris: Guillaumin, 1886), paras. 476-77.
7. The following writers regard intervention on behalf of an established Government as being unlawful. W.E. Hall, International Law (Oxford: Clarendon Press. 1924), pp. 346-47; C.C. Hyde, International Law, Vol. I (Boston: Little Brown and Co., 1945), pp. 253-54; T. J. Lawrence, Principles of Internatinal Law (Boston: D.C. Heath & Co., 1910) pp. 134-35: F. Bretano & A. Sorel, Droit des Gens (Paris, 1877); E.C. Stowell, Intervention in International Law (Washington, D.C.: John Byrne and Co.. 1921). p. 331: Rudolf Bernhardt (ed.), Encyclopaedia of Public International Law, sec Vol. 3 under the heading “civil war”, p. 89: Resolution of the Institut de Droit International, see its “Annuaire”, pp. 544-49: Cosentini, “Preparatory Study concerning a Draft Declaration on the Rights and Dutics of States” (1948), UN Doc. A/C.N. 4/2, p. 65: E. Lauterpacht. “The Contemporary Practice of the United Kingdom in the field of International Law – Survey and Comment V (with notes on Intervention by Invitation)”, 7 International and Comparative Law Quarterl: January 1958, p. 103; Jennings and Watts (eds.), Oppenheim’s International Law: Peace, vol. I (Logmann 1992), p. 438; Sir G. Fitzmaurice, “The General Principles of International Law”, 92 Hague Recueil. 1957. pp. 176-79: (Schachter, “International Law in Theory and Practice”. 178 llague Recueil, 1982 (5), pp. 160-66; I. Brownlie, International Law and the Use of Force by States (Oxford: Oxford University Press, 1963), pp. 3-14. It is to be noted that Brownlie both opposes and supports intervention at the same time.
8. Lawrence, op. cit., pp. 219-20.
9. Hyde, op. cit., pp. 253-54.
10. Jennings and Watts (eds.), op. cit. 64, ch.2, p. 438.
11. “Annuaire”, op. cit., pp. 547-49 (emphasis supplied). Oscar Schachter, in his course on international law at the Hague Academy, has argued against outside military aid to a Government or insurgents in case of an organized insurgency on a large scale involving a substantial number of people or control over significant areas of the country. In his view, involvement of foreign troops though invited by a Government would amount to contravention of article 2. paragraph 4, of the UN Charter.
12. Bernhardt (ed.), op. cit., p. 89.
13. Jennings and Watts (eds.), op. cit., p. 438.
14. “Annuaire”, op. cit., p. 549.
15. Jennings and Watts (eds.), op. cit., p. 439.
16. Mehr Chand Mahajan, Looking Back (New York: Asia Publishing House, 1963), p.142.
17. International Legal Materialss, 1970, p. 1292.
18. Ibid., Vol. 13. 1974, p. 710.
19. See, “Note of a Discussion with Mr. Jinnah in the presence of Lord Ismay at Government House. Lahore, on 1 November 1947.” Sardar Patel’s Correspondence, Vol. 1 (Ahmedabad: Navajivan Publishing House. 1971), p. 79.
20. It is noteworthy that Yusuf Saraf writes that when he contacted Lord Mountbatten for a personal interview in connection with the book on Kashmir that he was engaged on writing, the latter referred him to consult Hodson’s book entitled The Great Divide. See M. Y. Saraf, Kashmiris Fight For Freedom. Vol. 1 (Lahore: Ferozsons Ltd., 1978), p. xvi.
21. H. V. Hodson, The Great Divide (Karachi: Oxford University Press, 1985), p. 459.
22. M. P. File No. 62 quoted in Latif Ahmed Sherwani, The Partition of India and Mountbatten (Karachi: Council for Pakistan Studies, 1986), pp. 94-5. See also, Hodson, op. cit., p. 218.
23. M. P. File No. 192. Sherwani, op. cit., p. 21; see also Hodson, op. cit., p.523.
24. M. P. File No. 207, quoted in Sherwani, op. cit., p. 15.
25. See. “The Truth of the Partition of the Punjab in August 1947,” in Prem Shankar Jha, Kashmir 1947: Rival Versions of History (Delhi: Oxford University Press, 1996). p. 141.
26. Hodson, op. cit., p. 447, note I.
27. Ibid.
28. Ibid.
29. Gen. Akbar Khan, Raiders in Kashmir (Islamabad: National Book Foundation, 1970), p. 17.
30. Times (London), 13 January 1948 cited in Joseph Korbel, Danger in Kashmir (Princeton University Press, 1966) p. 94.
31. Cited in Korbel, op. cit., p. 94.
32. New York Herald Tribune, January 24, 1948, cited in ibid., p. 93.
33. Alastair Lamb, Birth of a Tragedy – Kashmir 1947 (Hertingfordbury: Roxford Books. 1994) op. cit., p. 124.
34. Lord Birdwood, India and Pakistan: A Continent Decides (New York: Praeger. 1954) , p.53.
35. The relevant passage reads as follows: “The mass infliteration of tribesmen drawn from distant areas of the North West Frontier coming regularly in motor trucks using Mansehra-Muzaffarabad road and fully armed with up-to-date weapons cannot possibly be done without the knowledge of the Provincial Government of the North West Frontier Province and the Government of Pakistan.”
36. S.C.O.R., 3rd Year, 229th meeting, 17 January 1948, p. 107.
37. Birdwood, op. cit., p.55.
38. Ibid.
39. Hodson, op. cit., p. 448.
40. Daily Express, 25 October 1947, cited in Lamb, op. cit., p.82. See also, Lord Birdwood’s observation on the same lines, Birdwood, op. cit., p.53.
41. Lamb, op. cit., p.82.
42. Sir William Barton, “Pakistan’s Claim to Kashmir”, Foreign Affairs. January 1950. p. 303.
43. EJ. de Arechaga, and A Tanzi, “International State Responsibility” in Bedjaoui (ed.), International Law: Achievements and Prospects (Paris: Unesco/Martinus Nijhoff, 1991), p.350.

Some excerpts from the book “Kashmir Dispute: An International Law Perspective” by Ijaz Hussain posted for educational purposes only without any copyright infringement intent.