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II. Background

Social and demographic facts

Azad Jammu and Kashmir is 5,134 square miles (13,297 square kilometers) in area. The total population was 2,973,000 according to the population census of 1998, and was estimated to be 3,271,000 in 2002, of whom 87.5 percent live in rural areas and 12.5 percent are urban. The population density is 246 persons per square kilometer. The literacy rate was reported as 55 percent in the 1998 census and was estimated to be 60 percent in 2002, which is higher than in Pakistan.²  The territory also enjoys a very high primary school enrollment rate for both boys and girls, at over 90 percent.³ 

Azad Kashmir is divided into Muzaffarabad and Mirpur divisions, which are further subdivided into eight administrative districts: Muzaffarabad division comprises Muzaffarabad, Neelum, Bagh, Poonch, and Sudhnutti districts; Mirpur division comprises Mirpur, Kotli, and Bhimber districts. Muzaffarabad city is the territory’s capital.

Culture and ethnicity

The people of Azad Kashmir are almost entirely Muslim. However, Islam or its sects are not the principal arbiters of identity in Azad Kashmir. The people of Azad Kashmir comprise not only diverse tribal clans (biradari) but are culturally and linguistically markedly different from the Kashmiris of the central valley of Jammu and Kashmir state in India. Cultural practice in Azad Kashmir has more in common with the Punjab than with the Kashmir valley.

The territory is far from ethnically homogenous. The biradari is the overriding determinant of identity and power relationships within the Azad Kashmiri socio-political landscape.  While the Gujjars, numbering close to eight hundred thousand, are possibly the largest such group, historically the two most influential biradaris have been the Sudhans from the southeast (concentrated in Bagh district and Rawalakot subdivision of Poonch district) and the Rajputs who are spread out across the territory. Sudhans and Rajputs number, respectively, a little over and a little under half a million. Almost all of Azad Kashmir’s politicians and leaders come from one of these two groups.⁴

Azad Kashmir is also home to approximately three hundred thousand Mirpuri Jats hailing from the southern part of the territory. Though the Mirpuris are the closest geographical and cultural relatives of the Potohari Punjabis, in recent decades they have chosen to define themselves increasingly as Kashmiris. Mirpuris have migrated to the United Kingdom (U.K.) in large numbers and constitute the overwhelming “Kashmiri presence” in that country.

The Mirpuri Jats have gained in influence in Azad Kashmir in recent decades largely through the clout that major remittances from Britain have bought them.  Mirpuri economic clout has paid political dividends, helping propel barrister Sultan Mehmood Chaudhry to power as the first Mirpuri leader of Azad Kashmir in 1996. Kashmir expert Alexander Evans writes:

The Mirpuri Jats, looked down upon by Rajputs and Sudhans, gained power in the 1990s largely because of their wealth.… Valley Kashmiris view Mirpuris with much the same condescension as their Punjabi counterparts, but they also consider Mirpuris part of the former princely state of Jammu and Kashmir. They remain Kashmir state subjects – even if not ethnically Kashmiri as Valley Kashmiris would understand it.… [O]n the Pakistani side, the south-east (Sudhan heartland) and south (Mirpur) dominate, while the north (both Muzaffarabad and the Neelum) is less influential.… But Rajputs and Sudhans remain important brokers in local politics – not least as Gujjars tend to follow the lead of local Rajput and Sudhan leaders.⁵

There are also a number of other small tribes and sub-tribes.

Administration

Formally, Azad Kashmir has a parliamentary form of government. The president of Azad Jammu and Kashmir is the constitutional head of the state, while the prime minister, supported by a council of ministers, is the chief executive. Azad Kashmir has its own Supreme Court, High Court, and Legislative Assembly comprising forty-nine members, of whom forty-one are directly elected and eight are indirectly elected—the latter comprise a member each from the technocrats, scholars, and overseas Kashmiris, and five women.⁶ Under the current constitutional dispensation, twelve of the forty-eight seats in the Legislative Assembly are reserved for Kashmiri refugees from Indian Jammu and Kashmir settled across Pakistan. Azad Kashmir also has a multi-tiered system of local governance.⁷

Azad Kashmir maintains a dual judicial system. Judicial officers in districts, high courts and the Supreme Court include Islamic judges dispensing Sharia law. These judges (who do not require a law degree) deal with criminal cases involving Sharia law. Other criminal cases and civil cases are dealt with by regular judges and magistrates. 

All key administrative offices are manned by Pakistani officials.  These include the office of the chief secretary (the principal bureaucrat), the inspector-general of police, the accountant-general and the finance secretary. (Pakistani political control in Azad Kashmir is discussed in detail in Chapter III, below.)

The Pakistan-India dispute over Kashmir

In 1947, the British decolonization plan for India required the partition of the subcontinent into two successor states, India and Pakistan. However, the partition plan was applicable only to the eleven provinces of “British India”—areas directly under British sovereignty as of June 3, 1947. In addition, the Indian subcontinent comprised some 562 “princely states” of varying size that enjoyed defense agreements with the paramount power and remained under the nominal control of their hereditary rulers.

The State of Jammu and Kashmir was an example of the latter. The territory comprising it had been sold by the East India Company to Maharaja Gulab Singh for a sum of 7,500,000 rupees in 1846 in an agreement titled The Treaty of Amritsar. Between 1846 and 1947 Kashmir remained under the direct though nominal control of Gulab Singh and his successors as their hereditary possession. 

As British withdrawal from India became imminent, the princely states were given the choice to either resume their independent status or join Muslim-majority Pakistan or Hindu-majority India. Most of the decisions by the ruling princes were made based on geography or religious majority. However, Kashmir was a problem because it was a Muslim-majority state ruled by a Hindu prince. The British left it for future negotiations when the Maharaja of Kashmir failed to decide whether to accede to either India or Pakistan.⁸

The conflict in Kashmir has its origins in the state’s accession to India in 1947. 

Maharaja Hari Singh, the then ruler of Kashmir, signed a standstill agreement with Pakistan but took no decision on the state’s accession. A month after the end of British rule on the subcontinent, Kashmir was invaded by Kashmiri Sudhan tribesmen encouraged by Pakistan.⁹ Unable to defend his state, the Maharaja of Kashmir sought India’s assistance, and on October 26, 1947, signed an Instrument of Accession,¹⁰ paving the way for Indian soldiers to come to his assistance.¹¹ The first war between India and Pakistan had begun.

In January 1948, Jawaharlal Nehru, then prime minister of India, requested that the U.N. play a role in the resolution of the Kashmir dispute.¹²  The U.N. Security Council passed a resolution on August 13, 1948, calling for the immediate cessation of hostilities by India and Pakistan as well as a truce agreement so that both Indian and Pakistani forces could withdraw from the state of Jammu and Kashmir. It also recognized the right of the Kashmiri people to determine the future status of Kashmir.

After a ceasefire was called, a third of the Kashmiri state remained under Pakistani control.¹³ The rest became India’s Jammu and Kashmir state.¹⁴ Kashmir was divided by a Line of Control. The contour of this line changed slightly after later wars, but has remained more or less the de facto border between Pakistan and India in Kashmir.

Through mutual agreement India and Pakistan successfully lobbied for an amendment to the 1948 U.N. resolution, and the U.N. passed another resolution on January 5, 1949, in which the Kashmiri people were only given the right to accede either to India or Pakistan; there was no mention of their having a right to become an independent nation.

In January 1949, the United Nations Military Observer Group in India and Pakistan (UNMOGIP) was deployed to supervise the ceasefire between India and Pakistan.¹⁵ UNMOGIP’s functions were to investigate complaints of ceasefire violations and submit finding to each party and to the U.N. secretary-general.¹⁶ Under the terms of the ceasefire, it was decided that both armies would withdraw and a plebiscite would be held in Kashmir to give Kashmiris the right to self-determination.¹⁷

The primary argument for the continuing debate over the ownership of Kashmir is that India did not hold the promised plebiscite. In fact, neither side has adhered to the U.N. resolution of August 13, 1948:¹⁸ while India chose not to hold the plebiscite, Pakistan also failed to withdraw its troops from Kashmir as was required under the resolution.¹⁹ Instead, India cites the 1952 elected Constituent Assembly of Jammu and Kashmir, which voted in favor of confirming accession to India.²⁰ New Delhi also says that since Kashmiris have voted in successive national elections in India, there is no need for a plebiscite. The 1948-49 U.N. resolutions can no longer be applied, according to India, because of changes in the original territory, with some parts “having been handed over to China by Pakistan and demographic changes having been effected in Azad Kashmir and the Northern Areas.”²¹

India’s argument for the legitimacy of its claim to all of Kashmir, including the portion administered by Pakistan, is based on the Instrument of Accession. Similar instruments determined the distribution of all princely states in the 1947 partition; questioning the accession of Kashmir would (the argument goes) imply unraveling the constitutional and legal basis for the creation of India and Pakistan.²²

Pakistan, however, has always questioned the legality of Kashmir’s accession and said that India had agreed to the U.N. resolutions calling for self-determination after the Instrument of Accession had been signed. India also overruled the same exercise of powers by the Muslim ruler of the Hindu-majority state of Hyderabad—the largest and richest of the princely states—arguing that the people’s right of self-determination was paramount when the Nizam of Hyderabad sought to declare independence for his state. Hyderabad was forced into the Indian Union through “police action” in 1948.²³ Similarly, the Muslim rulers of the Hindu-majority states of Junagadh and Manavadar signed instruments of accession to Pakistan but were overruled by the Indian government, which seized the states on grounds of geographical contiguity and religious majority.²⁴ 

Pakistan asserts that India cannot argue self-determination and the will of the majority in other instances and ride roughshod over the same principle in Kashmir. Hence, in contrast to India, which considers the part of Kashmir under its control to be part of the Indian Union, Pakistan does not exercise formal sovereignty over the portion of Kashmir it controls. Rather, the territory is theoretically self-governed through its own interim constitution pending a plebiscite to determine the status of the historical state of Jammu and Kashmir.   

Above all, both Islamabad and New Delhi see Kashmir as legitimizing the competing political frameworks that led to the partition of India. Islamabad believes that Muslim-majority Kashmir will choose to be part of Pakistan and it will justify, once again, the ideological basis for the 1947 partition that was predicated on the assumption that Muslims and Hindus were separate nations.²⁵ India, for that same reason, is unwilling to let go of Kashmir: a Muslim majority state is proof that India is secular.

Since the British left the subcontinent almost sixty years ago, India and Pakistan have fought two wars specifically over Kashmir, in 1947-48 and in 1965.²⁶ In 1971, a third war between the two countries led to the secession of East Pakistan, which became independent as Bangladesh. That truncation of Pakistan further exacerbated the distrust between the two countries and drives Islamabad’s policy on Kashmir.²⁷ Since India had helped in dividing Pakistan, it became a priority for Islamabad to ensure unity through an anti-Indian Islamic ideology.²⁸

The role of militant groups

The situation in Azad Kashmir transformed rapidly as the situation in Jammu and Kashmir state worsened and a stream of refugees began to cross into the territory from 1989 onwards. The government of Pakistan and the Azad Kashmir authorities welcomed these refugees at the time with some fanfare; for Pakistan, the propaganda value of hosting the refugees was immense. For one, their arrival underlined the seriousness of the situation in Jammu and Kashmir state and thereby bolstered Pakistan’s stance that Indian control over Kashmir was not only illegitimate under international law but also despised by those living under it. Certainly, many of those who crossed over were fleeing persecution. Others were Kashmiri nationalists who had taken up arms against the Indian state.

The militants who crossed over to Azad Kashmir in the 1989-91 period were strikingly different from those who have spearheaded the insurgency against the Indian state from the mid 1990s onwards. The 1989-91 militants were overwhelmingly Kashmiris from the central valley, many from Srinagar.  Even if they joined Islamist organizations such as Hizbul-Mujahedin, they remained essentially secular nationalists seeking the independence of Kashmir. Kashmiri-speaking, they were also culturally and linguistically distinct from the peoples of Azad Kashmir. Most had little or no idea of what Azad Kashmir was beyond a vague awareness that it was “Azad” (free) under Pakistani control and would be the logical base to take on the Indian state. They viewed Pakistan, which was eager to offer support, much more favorably than India.  Thus, in the early years of the Kashmiri rebellion against Indian control, the indigenous Jammu Kashmir Liberation Front (JKLF) remained the engine of the Kashmiri nationalist movement and in control of it.

The situation had transformed dramatically by 1994 when the ISI organized thirteen groups operating in Kashmir into the Muttahida [United] Jihad Council. Apart from the Hizbul-Mujahedin the other members included the Harkat-ul-Ansar, Jamiat-ul-Mujahedin and Al-Jihad.  By early 1999, there were only four or five member groups of the United Jihad Council that were considered effective, including the LT, Hizbul-Mujahedin, Al Badr and Harkat-ul-Mujahedin.

As the ISI-backed militant groups gained strength and dominance, Kashmiri nationalist militants left the JKLF-led nationalist movement or were sidelined and eventually began to be persecuted by the authorities and their proxies. Hanif Haidry, a native of Srinagar, told Human Rights Watch,

I joined the Jamaat-e-Islami, Hizbul-Mujahedin faction in 1987 at the age of twenty-five and disassociated from it in 1991 as I felt that it had become violent. I then went back to Jammu and Kashmir state and tried to settle down.  But because there was persecution, I returned to the Pakistani-controlled side. My family in [Jammu and Kashmir state] is constantly interrogated by RAW [Research and Analysis Wing, India's external intelligence body] and others too…. I have two daughters and one son—all in Srinagar. And while my family is harassed by the Indians there, I am mistreated by the Pakistanis here.

I totally blame the religious parties for turning our indigenous national struggle into a violent one. This happened in the late 80s and early 90s when money started to roll in and people like us—who genuinely wanted independence—were used by these religious parties which were supported by the Pakistanis. But I equally blame the Indian government. 

We wanted independence and felt that Muslims on this side would be more sympathetic to our cause and therefore we came here—it is true that at the time we were intoxicated by the concept of Islamic jihad. Initially when we started with Hizbul-Mujahedin, our idea was to develop a Kashmiri freedom movement which would also involve Hindu Pandits of Jammu.  However once the ISI became involved the movement took on a new face and lost its initial purpose. It gave many political players an opportunity to initiate their own militant organizations. That was when I decided to leave the movement. I now have nowhere to go. Life is hell in Pakistan and would be harsh in Srinagar. Here, I am regularly harassed by the ISI, often threatened with arrest and torture, and also by my former comrades in the jihadi organizations. I would rather be in my place of birth with my family and suffer there rather than in an unwelcoming foreign land where I have no rights, no respect and no hope for the future.²⁹

Thorough the 1990s, Azad Kashmir was increasingly dotted with militant camps operating under the supervision of the Pakistani army. Only when Pakistan began supporting the U.S.-led “global war on terror” in 2001 did the United Jihad Council cease to operate publicly. Several groups have simply changed their names and operate independently or through clandestine underground networks.³⁰ And there are many reports indicating that the Pakistani intelligence apparatus retains direct association with operations by these groups.

Though militant camps in Azad Kashmir proper have become non-operational in the aftermath of September 11, 2001 and the consequent peace process with India, militant infiltration into Jammu and Kashmir state was ongoing through the October 8, 2005 earthquake (though markedly reduced), and continues at the reduced rate to date. Immediately prior to the earthquake and in the months following it, Human Rights Watch was repeatedly told by independent analysts, members of militant groups, and Pakistan-backed Azad Kashmir politicians and members of the Pakistani military speaking off-the-record, that infiltration is not only ongoing but its cessation is non-negotiable in the absence of a final settlement of the Kashmir dispute. (Most of these commentators are not willing to be named for fear of reprisal from the ISI.)  

A Muzaffarabad journalist, who only agreed to speak to Human Rights Watch on condition of anonymity and on the bank of the Neelum river that runs through Muzaffarabad to ensure he was not overheard, explained his views on the general situation in Azad Kashmir:

Everybody here has reason to hate the militants. They have taken over our lives and hold them hostage.  Meanwhile, Kashmiri nationalists including the All-Parties Hurriyet Conference [an umbrella organization for Kashmiri nationalist groups] across the LoC are deeply resentful of how the ISI has warped and damaged the Kashmir movement. And only fools believe that the ISI has decided to end the jihad. Every day you hear stories of infiltration. I know a group went across last week.  They have moved the camps but not gone out of business. Everybody abhors India of course but nobody loves the jihadis either. We are caught between a rock and a hard place – unable to overthrow the Indian yoke there and at the mercy of Pakistani jihadis and the dreaded ISI here. But the problem is, we are all compromised. If the ISI call me and ask me whether I spoke to you, I will probably tell them everything. That is the price to be paid to live in peace if not in dignity.³¹   

Pakistani military installations have often been placed in close proximity to highly populated civilian areas, ostensibly because of a lack of space. However, many Kashmiris told Human Rights Watch that the Pakistani military used the bases to keep a close watch on the population to ensure political compliance and control. Instead of helping to protect the population, the military uses its close proximity to the civilian population to commit abuses. Given this context, the total collapse of Azad Kashmir’s governmental structures in the aftermath of the October 8 earthquake came as no surprise. Akbar Zaidi, a noted Pakistani academic, explained this collapse:   

While there is… quasi-civilian Government, real power still rests with the President and the military institutions supporting him. The response to [the] earthquake… needs to be seen in this light.… The military is… a key constituent of the government…. [I]t was therefore the force expected to react immediately by providing relief and help, particularly medical support… The quake’s aftermath has exposed a much-trumpeted “success” story of Musharraf's regime, the local government system called “District Government”, to be just as flimsy, apolitical and dysfunctional as many had felt it was. This system and its elected bodies are part of the rubble along with the entire physical infra-structure of the area… The state’s reaction to the devastating earthquake has revealed that despite the continued global appreciation for its role in the war on terror, the military rules an alienated society and fails to respond to local needs in time of crisis. Its obsession with its notion of “security” continues to undermine real human security in Pakistan.³²

Similarly, it was no accident that militant groups were the first on the scene dispensing relief goods and aid in the immediate aftermath of the earthquake. Nor was it a sign of any great organizational prowess. As the Pakistani military prioritized the rescue of its own personnel, it apparently sought the assistance of its closest allies in Azad Kashmir, the militant groups. Jan McGirk, Southeast Asia correspondent for the U.K. daily newspaper The Independent, reported on the inadequate military response and the public reaction to it:

Nearly a quarter of a million troops were already stationed in the area, to enforce a tentative ceasefire with Pakistan’s nuclear-armed neighbor, India, over claims to the disputed territory. After living under the military dictatorship of General Pervez Musharraf for six years, the victims expected a disciplined and professional relief effort to alleviate their suffering… It took days before the army would reach any stricken areas beyond the towns; while it dallied, tens of thousands of loved ones were smothered under the rubble and the injuries of survivors went septic. Without any shelter, vulnerable infants and elders contracted pneumonia when intermittent downpours soaked their bedding. In grief, people could only cling to one another for body heat as hail pelted down and thunderclaps heralded more aftershocks. Villagers grumbled that the army must be tending to its own casualties first and had abandoned its hapless civilians to the elements.³³

These groups had suffered the loss of infrastructure and personnel themselves in the earthquake, as McGirk noted:

[R]eports that the quake killed a hundred militants in training camps established near the Line of Control… have been circulating; the government has never acknowledged that such camps exist, even though India has since 1989 accused Pakistan of arming and supporting Islamic guerrillas and demanded the camps’ closure…³⁴

The militant groups won much appreciation for their rescue and relief efforts in the second week of October 2005.³⁵ This public relations coup could not have been possible without logistical support from sections of Pakistan’s intelligence apparatus. For example, the Jamaat-ud-Dawa, the renamed “welfare” wing of the LT, was in possession of and distributing weatherized tents within two days of the earthquake. The only source of weatherized tents in the immediate aftermath of the earthquake was the Pakistani army.

The post-earthquake role of militant organizations underlines the continuity of the military-militant relationship in Azad Kashmir.  Pakistan’s two-track policy on the militant groups operating in Jammu and Kashmir state—assurances of roll-back for international consumption but only a scale-down and lower visibility in the theatre of operations—appears to be continuing. The Pakistani military apparently saw the earthquake as an opportunity to craft a new image for the militant groups rather than as an opportunity to disband them.

The politics of water

A continuing source of political tension between Kashmiris and Pakistan is over the Mangla Dam project, which affects the waters of the Jhelum and Poonch rivers before they flow into Punjab in Pakistan.  Particularly affected is the relatively well-off Mirpuri community in Azad Kashmir (see above), which has increasingly felt a sense of discrimination and economic exploitation by Pakistan because of the project.  In a 1991 article, Roger Ballard of the U.K.’s Manchester University explained why:  

To Pakistan Mangla is a vital asset which brings many benefits… Mangla is thus critical to the success of the Pakistani economy as a whole. Yet despite the great benefits which Mangla has brought to everyone in Pakistan proper, those unfortunate enough to live immediately upstream of the dam have had… to bear the brunt of its environmental costs.³⁶

The debate around the Mangla Dam, though beyond the scope of this report, is notable because of the central role it has played in shaping the Mirpuri disconnect from Pakistan. Pakistan argues that the construction of the Mangla Dam is a consequence of the 1961 Indus Basin treaty between India and Pakistan with the World Bank acting as guarantor. The Azad Kashmiris, particularly the Mirpuris, argue that water is a Kashmiri natural resource commandeered by the Pakistani state to the disadvantage of Kashmiris. This is a key issue fueling calls for Kashmiri independence.  The acrimony over the dam continues in Mirpur as the dam is currently being raised.

Chaudhry Arif, the convener of the Mangla Dam Action Committee, a protest group formed to demand better compensation for those affected by the Mangla Dam, told Human Rights Watch,

Water is our natural resource. Arabs have oil, the Baloch have minerals. Kashmir has water. All of Pakistan uses our water. In the process, there remain acute water shortages in Mirpur from where we can see the dam feeding the palatial homes of Islamabad. Meanwhile, water-borne disease is on the rise in Mirpur and other parts of Kashmir due to scarce water here. We have been uprooted from our homes, not paid adequate compensation and denied royalty while Pakistan and India steal our natural wealth. This is the worst kind of exploitation and colonization.³⁷