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Kashmir torture trail - Channel 4 documentary

Blame Pakistan as much as you want, but Kashmiris dont want to be part of India. Even if Pakistan does not support Kashmiris, Kashmir will still not want to be part of India.

Young, educated Kashmiris are taking up arms against Indian occupation. All this while Pakistan stopped supporting the uprising there. Now blame this on Pakistan too!


I suggest you go to Kashmir and see for yourself. The reality is so strikingly different (pun intended).
 
t
There is a legal angle as well.

Baluchistan Insurgency in Pakistan is comparable to the Maoist Insurgency in India , but not Kashmir Insurgency.

Unlike Kashmir, Baluchistan and Northeast Indian states are NOT Disputed Territories under International Law.

Accession of Kashmir is different from accession of any other Indian Princely State (including Khanate of Kalat, Baluchistan) as the accession has been placed before the UN Security Council for arranging a ratification or otherwise by the people of the State under the auspices of the United Nations. Therefore, the arrangement caused through the accession of 26 October 1947 has been taken over by the interests of 195 countries of the UN (including Pakistan as a member nation of UN and as a party). Pakistan as a party to the dispute administers two administrations of the State on its side of cease fire line.

I am so sorry, but you are completely wrong there.

The aggression of Pakistan was placed before the UN Security Council, not the accession. In seeking the reasons for Pakistan's aggression, it emerged that Pakistan in fact challenged the accession, although on legal grounds that accession was sound and tenable.

There was not then nor is there now any question of arranging ratification by the United Nations; there was a recommendation by the Security Council that certain measures should be taken, including a procedure for confirming the will of the people of the state. This recommendation cannot and does not extinguish the legal status of the accession of the state. Nor does a recommendation amount to an assumption of the legal authority over the disputed territory, as would have to be a pre-condition for what you have termed as the taking over of the arrangement caused through the accession by the joint interests of 195 member countries.

It is also wrong to mention 195 countries of the UN as having an interest in the arrangement severally, or to include the nation of Pakistan among those 195 countries as having acquired such an interest. In fact, if there is a putative transfer of interest in the territory, or a transfer of benefits in the accession arrangements, or an extinction of the sovereignty of the original sovereign, and the constructive creation of an unknown and hitherto non-existent sovereign authority, such a transfer would be to the body incorporate of the United Nations, and not in common to its individual components.

Let me illustrate with an example.

A intrudes into the house of B, occupying part of the portion taken up by the tenant C.

B appeals to the gathered community of the neighbourhood, known in the composite as D, to vacate this forcible occupation.

A then claims to D that it is done in defence of its genuine ownership of the portion occupied by C, therefore as a legitimate owner of the portion of the house in which C is resident recovering ownership.

D now says to both A and B that they should stop fighting and A should withdraw, and in the presence of a committee named by D, in the presence of A and B, C should be asked if C wishes to continue as a tenant or wishes to acknowledge the owner of the occupied portion of the house as A.

D has no legal right to adjudicate on the arrangements and merely makes an intervention in good faith to restore law and order in the neighbourhood and a cessation of the public nuisance created by affray.

Your contention that by making this recommendation, D becomes an aggregated accessory, that its constituent portions each becomes an accessory, to the ownership arrangement of the portion of the house in dispute is mistaken; the authority vested by both parties on D to make a recommendation does not transfer any interest in the ownership arrangements, it only confers an interest in the consequential relations between the disputing parties.

At best, furthermore, D becomes a collective owner of an interest in the consequential relations between A and B, not an aggregative one. The individual components of D do not by themselves acquire such an interest in the arrangements. Nor does A, by dint of being a resident of the locality, become an acquirer of such an interest in an individual capacity. A has a claim to ownership of the disputed property separately, and distinctly from the matter lying before D for recommendation not amounting to adjudication.

Most of all, the property rights of neither A nor B are in any manner transferred to D, or may be decided by D. Only the relations between A and B may be considered by D, and may constitute a matter of communal interest to D, not to its individual components but to its collective self as a legal entity.

You might like to verify this explanation by consulting a legally trained person.

@jbgt90
@hinduguy
@hellfire
 
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t


I am so sorry, but you are completely wrong there.

The aggression of Pakistan was placed before the UN Security Council, not the accession. In seeking the reasons for Pakistan's aggression, it emerged that Pakistan in fact challenged the accession, although on legal grounds that accession was sound and tenable.

There was not then nor is there now any question of arranging ratification by the United Nations; there was a recommendation by the Security Council that certain measures should be taken, including a procedure for confirming the will of the people of the state. This recommendation cannot and does not extinguish the legal status of the accession of the state. Nor does a recommendation amount to an assumption of the legal authority over the disputed territory, as would have to be a pre-condition for what you have termed as the taking over of the arrangement caused through the accession by the joint interests of 195 member countries.

It is also wrong to mention 195 countries of the UN as having an interest in the arrangement severally, or to include the nation of Pakistan among those 195 countries as having acquired such an interest. In fact, if there is a putative transfer of interest in the territory, or a transfer of benefits in the accession arrangements, or an extinction of the sovereignty of the original sovereign, and the constructive creation of an unknown and hitherto non-existent sovereign authority, such a transfer would be to the body incorporate of the United Nations, and not in common to its individual components.

Let me illustrate with an example.

A intrudes into the house of B, occupying part of the portion taken up by the tenant C.

B appeals to the gathered community of the neighbourhood, known in the composite as D, to vacate this forcible occupation.

A then claims to D that it is done at the invitation of and in the interest of C, who is not a mere tenant but in fact a legitimate owner of the portion of the house in which C is resident.

D now says to both A and B that they should stop fighting and A should withdraw, and in the presence of a committee named by D, in the presence of A and B, C should be asked if C wishes to continue as a tenant or wishes to acknowledge the owner of the occupied portion of the house as A.

D has no legal right to adjudicate on the arrangements and merely makes an intervention in good faith to restore law and order in the neighbourhood and a cessation of the public nuisance created by affray.

Your contention that by making this recommendation, D becomes an aggregated accessory, that its constituent portions each becomes an accessory, to the arrangement of the portion of the house in dispute is mistaken; the authority vested by both parties on D to make a recommendation does not transfer any interest in the arrangements, it only confers an interest in the consequential relations between the disputing parties.

At best, furthermore, D becomes a collective owner of an interest in the consequential relations between A and B, not an aggregated one. The individual components of D do not by themselves acquire such an interest in the arrangements. Nor does A, by dint of being a resident of the locality, become an acquirer of such an interest in an individual capacity.

Most of all, the property rights of neither A nor B are in any manner transferred to D, or may be decided by D. Only the relations between A and B may be considered by D, and may constitute a matter of communal interest to D, not to its individual components but to its collective self as a legal entity.

You might like to verify this explanation by consulting a legally trained person.


Sir, I know very well what the Indian position is. India took this matter to the UN hoping that Pakistan will be declared an aggressor state in Kashmir. Pakistan responded a few days later and accused India of annexing Kashmir and of trying to throttle Pakistan in its infancy, Pakistan further argued that the Kashmir Question had to be seen in the context of India's attempts to negate the existence of the newly born State of Pakistan and that the conflict in Kashmir was threatening the very survival of Pakistan. What started as "The Kashmir Question" in the UN was changed to "The India-Pakistan Question" on the request of Pakistan. Pakistan's argument had prevailed. Pakistan had outsmarted India in diplomacy.

To the dismay of the Indians, Pakistan wasn't declared an aggressor state by the UN. India rejected the proposals of the UNCIP in July 1948 on the basis of the argument that the proposal did not opportune any blame on Pakistan-which India considered as the aggressor in Kashmir.

Your entire argument is based on the premises that Pakistan was an aggressor state in Kashmir. But the UN didn't declare Pakistan an aggressor. So your argument falls flat on its face.
 
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Sir, I know very well what the Indian position is. India took this matter to the UN hoping that Pakistan will be declared an aggressor state in Kashmir. Pakistan responded a few days later and accused India of annexing Kashmir and of trying to throttle Pakistan in its infancy, Pakistan further argued that the Kashmir Question had to be seen in the context of India's attempts to negate the existence of the newly born State of Pakistan and that the conflict in Kashmir was threatening the very survival of Pakistan. What started as "The Kashmir Question" in the UN was changed to "The India-Pakistan" on the request of Pakistan. Pakistan's argument had prevailed. Pakistan had outsmarted India in diplomacy.

To the dismay of the Indians, Pakistan wasn't declared an aggressor state by the UN. India rejected the proposals of the UNCIP in July 1948 on the basis of the argument that the proposal did not opportune any blame on Pakistan-which India considered as the aggressor in Kashmir.

Your entire argument is based on the premises that Pakistan was an aggressor state in Kashmir. But the UN didn't declare Pakistan an aggressor. So your argument falls flat on its face.

Oh, no, not at all. You have perhaps not had the opportunity to go through the detailed explanation.

My contention is specific to your thought that the existence of a conflict of interest between India and Pakistan and the invocation of the UN as a recommendatory authority could create a share for the UN in that original conflicted interest. It does not. It merely creates an interest in the preservation of good order.
 
My contention is specific to your thought that the existence of a conflict of interest between India and Pakistan and the invocation of the UN as a recommendatory authority could create a share for the UN in that original conflicted interest. It does not. It merely creates an interest in the preservation of good order.

It does, Sir.

70 years on and the Kashmir Dispute still remains on the agenda of the SC. And it will remain on the Agenda until it is resolved. And as clarified by the representatives of the UN, the UNSC resolutions on Kashmir will remain valid until the dispute is resolved, regardless of when they were adopted. As for the share of UN in the original conflict, Only a plebiscite held under UN auspices can determine the final fate of Kashmir.

Under International Law, Kashmir is a Disputed Territory whose final accession (to India or Pakistan) is yet to be decided.
 
It does, Sir.

70 years on and the Kashmir Dispute still remains on the agenda of the SC. And it will remain on the Agenda until it is resolved. And as clarified by the representatives of the UN, the UNSC resolutions on Kashmir will remain valid until the dispute is resolved, regardless of when they were adopted.

Under International Law, Kashmir is a Disputed Territory whose final accession (to India or Pakistan) is yet to be decided.

Let us review the matter once again, dear Sir.

The Kashmir dispute remains on the agenda of the Security Council.
  1. Does that give the Security Council, or the General Assembly any rights over Kashmir?
  2. Does not that merely amount to a retention of the original dispute handling matter and nothing more?
  3. And do not the Resolutions have validity as recommendations and nothing more?
While under International Law, as your country has interpreted it, Kashmir may be a disputed territory, it is not so according to the way my country has interpreted it. The reason I mention this is because the UN is precisely NOT an adjudicating authority, so any dispute in law cannot be taken up there. Only the armed clashes were taken up there, and a suggestion made, based on India's stated position on the matter, but overlooking its charges of aggression.

So the proper forum for adjudication is not the UN, it is elsewhere. The UN is a proper forum for maintaining peace, and nothing more. In direct contradiction of your contention, it entering a dispute to resolve the armed conflict does not amount to an effort at adjudication. And it does not confer any indirect right of sovereignty or an indirect transfer of the rights in dispute to the constituent members of the UN.

Does that make it clearer?
 
Talk Kashmir and Indians are literally on fire.

If Kashmir is yours and Kashmiris want to be part of India then why Kashmiris flare up spontaneously and massive demonstrations against India? Why Kashmiris raise Pakistani flags? Why they support Pakistan cricket team in a match against India? Its all terror!!

It does, Sir.

70 years on and the Kashmir Dispute still remains on the agenda of the SC. And it will remain on the Agenda until it is resolved. And as clarified by the representatives of the UN, the UNSC resolutions on Kashmir will remain valid until the dispute is resolved, regardless of when they were adopted. As for the share of UN in the original conflict, Only a plebiscite held under UN auspices can determine the final fate of Kashmir.

Under International Law, Kashmir is a Disputed Territory whose final accession (to India or Pakistan) is yet to be decided.

You talk sense but your audience is not sensible. Your audience is fed on false nationalistic steroids devoid of any substantive arguement.
 
Let us review the matter once again, dear Sir.

The Kashmir dispute remains on the agenda of the Security Council.
  1. Does that give the Security Council, or the General Assembly any rights over Kashmir?
  2. Does not that merely amount to a retention of the original dispute handling matter and nothing more?
  3. And do not the Resolutions have validity as recommendations and nothing more?


1) Not unless the territory is put under United Nations Trusteeship.

2) In a way, yes

3) That's the tricky part. The UN maintains that 'no security council resolution can be described as unenforceable'

The UN Security Council Resolutions of August 13, 1948, and January 5, 1949, clearly laid down that "the question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite."

These UN Resolutions are still valid. They cannot be declared "null and void" by India (or Pakistan). That authority lies with the UNSC only.


While under International Law, as your country has interpreted it, Kashmir may be a disputed territory, it is not so according to the way my country has interpreted it.


While I do agree that International Law can be interpreted differently by different countries, but saying that Kashmir is not a disputed territory under International Law is not an 'interpretation', it's mere rhetoric. India claims that UN Resolutions have been superseded by Simla Agreement of 1972 (Again, something not accepted by the UN). However, even the Simla Agreement categorically mentions Kashmir as a Dispute between India and Pakistan that has to be resolved (bilaterally). The very fact that India acknowledged Kashmir as a disputed territory in the Simla Agreement, negated its claims of Kashmir being its integral part. This "Atoot Ang" rhetoric is meant for domestic consumption only.



So the proper forum for adjudication is not the UN, it is elsewhere. The UN is a proper forum for maintaining peace, and nothing more. In direct contradiction of your contention, it entering a dispute to resolve the armed conflict does not amount to an effort at adjudication. And it does not confer any indirect right of sovereignty or an indirect transfer of the rights in dispute to the constituent members of the UN.


The UN is a weak and ineffective Forum (due to its restrictive administrative structure). A "veto" from any of the permanent members can halt any possible action the Security Council may take. One nation's objection, no matter on what grounds, cripples any possible UN armed or diplomatic response to a crisis.

The UN made no serious effort to resolve this dispute after early 1950's. Later, the USSR used "the veto" multiple times to avoid discussion on Kashmir in the Security Council. International Law is nothing but International Morality. Simla Agreement was signed in 1972 only. So its not Simla that has made the UN practically irrelevant. The U.N had already been virtually elbowed out of the Kashmir dispute by Russia.

This issue can be resolved through bilateral means only. But India won't do that. Status Quo favors India (and Pakistani military establishment too). The UN is helpful only in prolonging the status quo. Kashmir remains (and will remain) an internationally recognized disputed territory. And the Kashmiris will continue to suffer
 
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,the day when they invited jobless Afghan mujahideens in to Kashmir
.

Ahhh still not over 100s years of rule, does it still hurt? Now we can not change history, Yes everyone went to India to find a job and it was.... lets say it together... Rule HINDUstaaan. Back to bollywood. :lol:
 
1) Not unless the territory is put under United Nations Trusteeship.

2) In a way, yes

3) That's the tricky part. The UN maintains that 'no security council resolution can be described as unenforceable'

Not so, Sir. Once you distinguish in your own constitution between Chapter VI and Chapter VII, you forego your right to impose your will universally. The sentence you have quoted cannot, constitutionally, legally, apply to obiter dicta; resolutions under Chapter VI come in that category, but with a specific object.

The UN Security Council Resolutions of August 13, 1948, and January 5, 1949, clearly laid down that "the question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite."

These UN Resolutions are still valid. They cannot be declared "null and void" by India (or Pakistan). That authority lies with the UNSC only.

Incorrect, Sir.

The Resolutions were passed as recommendations, not as directions. There is nothing binding about them.

Their validity is an entirely different matter. A mother's exhortation to her son to obey the law and never be in breach of it is a recommendation; it cannot be binding, although it might have moral force.

What you have argued, about validity, refers to the perpetuity of that exhortation; it does not have a fixed life, it lives on forever, until rescinded by the mother. Such validity has nothing to do with the binding force that it has.

While I do agree that International Law can be interpreted differently by different countries, but saying that Kashmir is not a disputed territory under International Law is not an 'interpretation', it's mere rhetoric.

If one side states that a matter is disputed, and the other side states that it is not, how is the matter then to be defined?

The difficulty is that even a reservation of homoeopathic proportions renders any matter not free of reserve. All Pakistan has to do is to stick to its guns and say that it considers the matter to be a dispute, and it will be a dispute. To put things in logical structure, if the existence of a dispute is disputed, it then becomes a dispute. That is Pakistan's strength, and that is what she has clung to over the last 69 years. It does not undermine India's position that it is not a dispute.

The difference is that a dispute remains one until adjudication. There has been no adjudication, and Pakistan has stalled the original mechanism for settlement, but retained it in disembodied form to keep alive the disputed status.

And it's not even the Indian official position. India claims that UN Resolutions have been superseded by Simla Agreement of 1972 (Again, something not accepted by the UN).

It does not have to be accepted by the UN.

The UN made a recommendation, the recommendation has to be accepted by both parties, and the moment the two parties reject the recommendations either per se or as a mechanism, they cease to exist between the disputing parties.

Secondly, since Pakistan was a willing, uncoerced signatory of the Shimla Agreement, it is a common position - it has to be a common position - of India and Pakistan.

And even the Simla Agreement categorically mentions Kashmir as a Dispute between India and Pakistan that has to be resolved (bilaterally).

How else would you word the matter? If the existence of a dispute is disputed, it then becomes a dispute.

The very fact that India acknowledged Kashmir as a disputed territory in the Simla Agreement, negated its claims of Kashmir being its integral part. This "Atoot Ang" rhetoric is meant for domestic consumption only.

Sadly, that is not the legal and constitutional situation.

Please recollect sovereignty is an issue here. That says it all. The Atoot Ang is a Sanghi slogan, and what a constitutionalist has to say about Kashmir has no link with such rasta-chhap slogans.

The UN is a weak and ineffective Forum (due to its restrictive administrative structure). A "veto" from any of the permanent members can halt any possible action the Security Council may take. One nation's objection, no matter on what grounds, cripples any possible UN armed or diplomatic response to a crisis.

That is applicable - meaning that is relevant - only when the UN has a thought to take some firm step of binding nature. Its general discussions, the Millennium Goals, various member bodies which exist, and so on, the existence or otherwise of a veto is orthogonal to the purposes sought to be met.

The UN made no serious effort to resolve this dispute after early 1950's. Later, the USSR used "the veto" multiple times to avoid discussion on Kashmir in the Security Council. International Law is nothing but International Morality. Simla Agreement was signed in 1972 only. So its not Simla that has made the UN practically irrelevant. The U.N had already been virtually elbowed out of the Kashmir dispute by Russia.

It was never in. What Russia did was to prevent conversion of a recommendation into a direction.

This issue can be resolved through bilateral means only. But India won't do that.

No, that is not correct.

A bilateral agreement did not come about due to the pettiest of reasons during General Musharraf's visit to India, largely the fright of L. K. Advani that such a great matter would be resolved without his having had anything to do with it. There will be future occasions.

Status Quo favors India (and Pakistani military establishment too). The UN is helpful only in prolonging the status quo. Kashmir remains (and will remain) an internationally recognized disputed territory. And the Kashmiris will continue to suffer

I have no difference with your assessment, except with the last sentence. Of which more anon.

Please do appreciate that my effort in this entire exchange is to put the matter within its legal and constitutional boundaries and not to attempt a resolution, or to interpret recent happenings. It is done with goodwill, irrespective of some unfortunate comments that I have seen.

Talk Kashmir and Indians are literally on fire.

If Kashmir is yours and Kashmiris want to be part of India then why Kashmiris flare up spontaneously and massive demonstrations against India? Why Kashmiris raise Pakistani flags? Why they support Pakistan cricket team in a match against India? Its all terror!!



You talk sense but your audience is not sensible. Your audience is fed on false nationalistic steroids devoid of any substantive arguement.

If you yourself abandon slogans and newspaper column style rhetoric, there is a possibility of discussing the matter. As it stands, on the basis of your post, there is no possibility.
 
Not so, Sir. Once you distinguish in your own constitution between Chapter VI and Chapter VII, you forego your right to impose your will universally. The sentence you have quoted cannot, constitutionally, legally, apply to obiter dicta; resolutions under Chapter VI come in that category, but with a specific object.

Sir, It's not as simple as you think it is. I asked your opinion on this matter in another thread but you didn't reply. Let me repeat myself:

As for the Indian Government's Chapter VI mantra, I would like to raise a few points:



1) UN maintains that "NO SECURITY COUNCIL RESOLUTION CAN BE DESCRIBED AS UNENFORCEABLE."


2) India approached UN under Chapter VI of the UN charter , BUT the decision taken by UN reflected that its resolutions were not based exclusively on this chapter .... The resolutions , apart from chapter VI , are based upon other chapters , including chapter VII

The fact that there does not exist any provision for the deputing of UN peace keeping mission under chapter VI makes it obvious that UN resolutions were not exclusively based on chapter VI .... The interim measures which included cease fire and deputation of United Nations Military Observer Group were based on Article 40 of chapter VII ...

Besides chapter VI and VII , UN resolutions are based on other chapters also(i.e Article 1 , Chapter I (2) and Article 55 , Chapter IX) ...

^^ And this is not my personal opinion. That is Rosalyn Higgins' opinion on 'Kashmir Resolutions and under which chapter they were passed' .. Source: 'Higgins, Rosalyn. United Nations Peace Keeping 1946-67: Documents and Commentary. London, UK: Oxford University Press, 1970. (349-51)

(Rosalyn Higgins is an expert on International Law; a Doctor of Juridical Science. She has served as a Judge in the International Court of Justice for fourteen years (and was elected President in 2006). Her competence has been recognised by many academic institutions, having received at least thirteen honorary doctorates)


3) Moreover, there always has been a general inability of the Permanent Five to agree upon imaginative and expansive applications of Chapter VI ... In Somalia, the Security Council deployed the UN's first operation, UNOSOM I, in mid-1992 to separate warring combatants and help delivery of humanitarian relief ....

UNOSOM I entered and operated without invoking Chapter VII

Further Reading: http://www.ejil.org/pdfs/6/1/1305.pdf






Incorrect, Sir.

The Resolutions were passed as recommendations, not as directions. There is nothing binding about them.

Their validity is an entirely different matter. A mother's exhortation to her son to obey the law and never be in breach of it is a recommendation; it cannot be binding, although it might have moral force.

What you have argued, about validity, refers to the perpetuity of that exhortation; it does not have a fixed life, it lives on forever, until rescinded by the mother. Such validity has nothing to do with the binding force that it has


Already answered. And please go through this as well when you have time :

https://defence.pk/threads/the-kashmir-resolutions-explanations.7904/




If one side states that a matter is disputed, and the other side states that it is not, how is the matter then to be defined?


In such a case, let the UN define the matter. And the UN does recognize Kashmir as a disputed territory whose final accession is yet to be decided.





The difference is that a dispute remains one until adjudication. There has been no adjudication, and Pakistan has stalled the original mechanism for settlement, but retained it in disembodied form to keep alive the disputed status.

Not true Sir. Pakistan didn't stall the original Mechanism, India did. Have you forgotten what the UN appointed official mediator, Sir Owen Dixon, had said ?

"In the end, I became convinced that India`s agreement would never be obtained to demilitarization in any such form, or to provisions governing the period of the plebiscite of any such character, as would in my opinion permit the plebiscite being conducted in conditions sufficiently guarding against intimidation, and other forms of abuse by which the freedom and fairness of the plebiscite might be imperiled." (Para 52 of Document S/1971)
 
For all the Indian members that are comparing the Indian occupied Kashmir with Baluchistan. Below is the list of things that are different in both situations.

1. In Balochistan there are no civil protests
2. No clashes between the security forces and civilian protestors
3. No women and children pelting stones on the security forces and demanding freedom
4. No woman are being raped and no children being killed.
5. The insurgency fueled by our enemies is dieing.

What is happening is

1. BLA and BLF are terrorist organization created by Baloch Sardars hiding overseas (some of them in hostile countries)
2. These Sardars have not done anything for their people and have been looting all the development funds that are allocated to them, but they are not satisfied and want more.
3. These Sardars are living a lavish life outside while getting the poor Balochis to do the dirty work for them.
4. Many of these Balochi fighters are realizing that they have been played with and laying down their weapons.
biggest is they never waved indian flags wheras kashmirirs do teh opposite..
 
whats the opposite ?
waving Pakistan flags.... i meant to say both situation are not comparable... at its peak, BLA and otehrs insurgency was a child's play.. real threat was TTP.. anyway every one had his own agenda and FLAGS... not indian's.. whereas Kashmirirs wave Pak flags (sometimes eastern siders too Naxilite, etc)
 

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