The article below, ‘Humpty Dumpty’s occupation’, is based on a rejected submission I had made to the Journal of Legal Pluralism. It is my response to a special issue of the Journal of Legal Pluralism (2017, Vol. 49, No. 3) on ‘States of Occupation’. It was rejected on the basis that it did not meet the conditions the journal’s Editor-in-Chief, Dik Roth, and Editor, Melanie Wiber, had set: that it be “constructively critical, moves beyond mere accusations, and makes your own scientific criteria explicit.” Requests for further clarification of why they considered I had not met the conditions were met with a layering on of further conditions and claims without explaining why they thought I had not lived up to the initial conditions. I should mention that I am and remain, at the time of writing this, a part of the Editorial Board of the journal.
Rather than pursue publication in the Journal of Legal Pluralism or another academic journal, I thought it best simply to make the article available in its original form, though after making typo corrections and style changes that do not affect what I had originally intended to convey, and adding some footnotes for further information about the exchanges referred to here.
I must admit that I had a problem with the requirement that I be “constructively critical”. It is still unclear to me why that condition was made, once I had rejected the proposal of direct discussion with the editors and authors of the special issue. I rejected entering into direct discussion because I just could not see what benefit would accrue to anybody. Any discussion would have occurred behind closed doors, presumably via email, and not out in the open in the form of a public debate. If resolution of differences was the aim, I could not see how our differences could be bridged because I believe they occur at a fundamental level. I also requested that the editors and authors of the special issue be given space in the journal to express their views about my response. My response was transmitted to them and I was told that after reading my response they rejected the opportunity to reply. In addition, since we are not managing people in an organisation, where constructive criticism may be advocated for the smooth running of management-employee relations, I do not see why criticism must necessarily be constructive. Is there no room for destructive criticism when ideas under scrutiny are so badly formulated they should not in fact even be published?
Readers might have to decide whether my response moves “beyond mere accusations” and whether I make my “scientific criteria explicit”. In my view, all I was required to do was to establish that the arguments used by the special issue editors and authors were so poor as to raise questions about their validity and how they were published.
I was also informed that most of the Editorial Board was in agreement that my response did not meet the basic conditions Dik Roth and Melanie Wiber had set. However, one Editorial Board member informed me privately that most Editorial Board members who reacted had not taken that position. Dik Roth and Melanie Wiber refused to send me the reactions of the Editorial Board members or the numbers of those responding for or against publication of my piece, so we will not be able to establish the situation one way or another, although both accounts cannot be true. Despite being copied into them, no other Editorial Board members reacted to the e-mail exchanges between Dik Roth and Melanie Wiber and myself, so it may be that they were satisfied with the decision to reject my response, even though most of those responding may initially have been in favour of publishing it.
Another reason Dik Roth and Melanie Wiber cited for not publishing my response was that “the current situation in India is such, that accusations / allegations of terrorism can be easily used against anybody voicing criticism of state politics and policies, whether researcher, NGO staff, activist or other. Be sure that we do not want to be propagators of terrorism, but neither do we want to contribute in any way to the labelling of researchers as (friends of) terrorists.” The reader can make up his own mind whether what I write amounts to saying that the journal or its editors propagate terrorism or that the researchers are terrorists of friends of terrorists. However, I found this part of their reply disturbing because it amounts to a claim, without evidence, that compared to other people Indians make unjustifiable accusations of terrorism at a higher rate. They did not reply to this point when I raised it with them, while I also stated that it was part of my argument that acts of terrorism that get recognized in Western countries are not recognized as such when they occur in India.
After the exchanges summarised here, and despite my asking for their replies on outstanding points, Dik Roth and Melanie Wiber wrote saying that they did not intend to enter into any further discussion. Although I am not miffed about not being published, I am disappointed that our discussion ended without resolution of outstanding points, especially when my questions were met with replies which begged further questions.
As I write this, a new report on Academic Grievance Studies and the Corruption of Scholarship is being discussed worldwide. The authors of the report, Helen Pluckrose, James A. Lindsay and Peter Boghossian, reveal that they managed to get seven shoddy, absurd, unethical and politically-biased papers into respectable journals in the fields of “grievance studies”, as they term it. What follows at the very least raises the question, which the reader can decide the answer to, whether we have a further example of such corrupted work being allowed to be published, irrespective of whether it falls within the domain of grievance studies.
Postscript: I wrote to the Commission for Legal Pluralism, whose flagship journal the Journal of Legal Pluralism is, about the events outlined above and the article reproduced below. I received the following reply from Janine Ubink, President of the CLP.
“Dear Dr. Prakash Shah,
You have been contacting the Commission on Legal Pluralism to discuss issues related to the Journal of Legal Pluralism. I would like to inform you that we have discussed the issue in our Executive Body meeting a few weeks ago, and that we stand firmly behind the decisions of the journal editors. We do not think it would be fruitful to re-open this discussion.
With kind regards, on behalf of the Executive body of the Commission on Legal Pluralism,
Janine Ubink (President CLP)”
Humpty Dumpty’s occupation
‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean — neither more nor less.’
Lewis Carroll, Through the Looking Glass
I am dismayed and disappointed by the special issue of the Journal of Legal Pluralism (2017, Vol. 49, No. 3) on ‘States of Occupation’. I have multi-fold concerns. There is no discernable relationship between the special issue and what I regard to be the core and legitimate concerns of the journal. The editors and authors are unable to show what occupations of territory are and how their case studies amount to instances of occupation. They work with no theoretical framework and yet their commitment to speaking about occupations suggests an arbitrary and prior decision to classify their case studies as occupations. The contributions that concern Jammu and Kashmir then take an unjustified turn to describing as freedom movements jihadi terrorist movements active in Kashmir. Despite the anti-theoretical predilection demonstrable in the special issue, this contribution offers suggestions for how the background intuition at work can be explained.
The special issue on ‘States of Occupation’ hardly addresses legal pluralism and strays away from what should be the core concerns of the journal. The issues covered are only marginally, if at all, related to the questions of relevance to legal pluralism and unofficial law. It is to be asked why such a special issue was accepted for the journal. When I put the question to him, the journal’s Editor-in-Chief, Dik Roth, responded as follows:
I tend to disagree with you: aside from the more formal argument that the board was in favour of publication, the more substantial and relevant argument is that in my view conflicts and contestations about the legitimacy and justification of rule (whether in local governance issues, concerning national states, or international / global issues, or whatever) should be a key issue of concern for the journal.
The literature on legal pluralism, as it has emerged over the decades, is primarily about the interaction of state law or official laws with other orders (legal, normative, etc.). To the extent that this involves questions of official “legitimacy and justification of rule” (as Roth has it), one might concede that it is within the proper province of legal pluralism as a distinct field of study. But what happens when a set of scholars is interested, not in the character of the kind of interactions mentioned (i.e. between state law and other orders), but merely in questions of “legitimacy and justification of rule”? Are we to consider that any contribution that deals with this more general matter should find space within the Journal of Legal Pluralism?
The articles within the ‘States of Occupation’ special issue are not concerned with the coexistence and interaction of different orders, legal, normative, or otherwise. Their concern is merely with what the special issue’s editors (Haley Duschinski and Mona Bhan) and authors somewhat arbitrarily describe as ‘occupations’ and (vaguely) their legitimacy, as to which they take a dangerously partisan position. The special issue editors and authors themselves do not care to justify how this stance in their work falls within the traditional concerns of legal pluralism scholarship and how we should relate their contributions to the broader field of legal pluralism. As the editors themselves agree, their work falls within scholarship that raises questions about (among others) constitutionalism, self-determination, and the exercise of police and military force. But they fail to demonstrate how this falls within the domain of legal pluralism studies. A feeble effort is made to mitigate this problem by perfunctory reference to “socio-legal” analysis or to “multiple normative orders”, but this doesn’t rescue the editors or authors from the need to justify how their studies contribute to or draw upon the field of legal pluralism studies. The editors and authors should have been better advised to submit their work to any of the plethora of journals that deal with political science, constitutional issues, or even police and military studies, but evidently they were not.
Of course, no scientific domain is an island unto itself. As scholars of legal pluralism, we are vulnerable to the charge that our field of study may be characterized by a certain promiscuity that brings within its scope a large swathe of potentially relevant material. Nevertheless, being committed to a field with its own theoretical problems and research questions, can we not do somewhat better at selecting what lies within the journal’s ambit? Otherwise, we do with legal pluralism what the editors of the special issue have done with occupation. They accept that an abstract concept like occupation has a core and point to its having frontiers, but then take licence to characterize ‘occupation’ in whatever way they want without additional and adequate justification.
I am not saying that occupation is not a relevant study for those interested in legal pluralism. But what I am saying is that this journal should ensure that any such studies are justified by reference to what they bring to the general field or explain how they use the insights of the field to generate new findings. I do not regard the special issue on ‘States of Occupation’ as having done either.
What is occupation?
My particular concern is with Jammu and Kashmir and its treatment by the special issue editors, and by Haley Duschinski and Shrimoyee Nandini Ghosh, who author the article, ‘Constituting the occupation: preventive detention and permanent emergency in Kashmir’. I will attempt to focus my comments mostly on the Jammu and Kashmir case, which defies any possibility of their being able to provide a coherent account of occupation.
Although the special issue is ostensibly about ‘occupation’, the editors and authors offer no theoretical basis or theoretical account of it as a phenomenon. Instead, they provide an arbitrary account and one that can only be put down to their prior decision to classify their various case studies as coming under the rubric of occupation.
While they are evidently concerned that 19th century ideas of occupation are no longer suited to instances of occupation by states and the United Nations, it is unclear what account of occupation they rely on. They refer to Benevisti’s international law ‘definition’ of occupation as “the effective control of a power (be it one or more states or an international organization, such as the United Nations) over a territory to which that power has no sovereign title, without the volition of the sovereign of that territory.” Even if we accept that Benevisti offers a ‘definition’ and not a general proposition (theory) of when acts of jurisdiction can be considered as occupation, we might agree that the definition is nested within the theoretical framework of international law. It seems, however, that the editors do not wish to be tied down to that framework of international law.
Although they do not discuss the matter specifically, the case of Jammu and Kashmir would in any case pose inconvenient problems had they considered it within the international law framework, as it is far from clear, using Benevisti’s ‘definition’, that India has no sovereign title over Kashmir or that it ‘occupies’ Kashmir against the wishes of the sovereign of that territory. In fact, there are good arguments to suggest that Indian sovereignty over Jammu and Kashmir does not violate those conditions, which neither Duschinski and Bhan nor Duschinski and Ghosh address specifically. Indeed, the labelling of India as an occupier appears to coincide with the Pakistani backed jihadist insurgency that began in the 1990s, but it was not so at the time of the accession of Jammu and Kashmir to India in 1947.
The editors obliquely point to the problem of applicability of international humanitarian law in situations unrecognized as occupations by international law. They do not clearly say, however, whether the very framework of international law should be dispensed with in the case of occupations, even though they go on to write as though assessment of a situation as an occupation should entail a suspension of international law. They cannot consistently argue, on the one hand, that the international law framework should be suspended when assessing whether a situation is an ‘occupation’ and, on the other hand, that international human rights law and international humanitarian law must apply by virtue of the very same international law framework in a situation that they characterize as an ‘occupation’.
The editors resort to Adam Roberts’ view of occupation as a “process” that is context-specific and one that cannot be reduced to a singular “character and purpose.” This poses other problems, which they do not discuss, but rather skip over. Let us bracket away the problem of making states into intentional beings by attributing to them a ‘purpose’ and acknowledge that they may have purposes, pretty much like the members of the United Nations (whose Charter speaks of “purposes”). Occupation may nonetheless have a ‘character’ and it could well be a ‘process’, so we might be able to deal rather more easily with those aspects of occupation as a phenomenon.
Does the context-specificity of occupation defy theorizing about it? It should not, since theorizing is generally about extracting relevant elements from their context, allowing us to postulate some theory about a phenomenon. Otherwise, it would be like saying that we could not theorize about photosynthesis or oxidation because they are processes subject to factors that are context-specific to each plant or substance, they occur at different rates, they vary with climate and weather, etc. However, the editors fall into such a trap by pointing to context-specificity as defying any attempt to give a singular character to occupation, thereby appearing to deny the possibility of theorizing.
Had they regarded theorizing as relevant, the editors could have taken at least two possible routes, of which they follow neither. They could have said that they wished to test the available theories about occupation. They intimate this possible course by describing the existing theoretical work in the area, but fail to assess the theories by subjecting them to testing except, as noted, to point out that the application of international humanitarian law is rendered problematic in situations like Kashmir. They also fail in another sense. They could have said that they want to provide an alternative to the theories they discard. They do not do that either. In fact, it is completely unclear what contribution to knowledge they are making.
Not only do they fail to test existing theories of occupation or offer an alternative theory, they actively appear to be against theorizing about the phenomenon. This makes life difficult for them (and for their readers). It also means that they (and we readers) cannot know what the character of occupation is. The editors cite in support “Benvenisti’s call to view occupation as a ‘phenomenon’ that can take multiple forms.” So the best we can do is patiently go along with the descriptions of the different cases the editors and authors provide, and humour their choices as instances of occupation. Because they do not make their criteria explicit, we cannot know when an occupation is really an occupation in a way that can be defended. Anything can potentially be an occupation, or a feature or consequence of one, as the exercise is purely subjective. In fact, the editorial introduction furnishes just such a shopping list of the various features that attend occupation, but we cannot know which of them are essential, optional, consequential, or contingent. Astonishingly, in her article in the special issue, Tyrell Haberkorna describes the NCPO coup in Thailand as an occupation! It might appear odd then that the special issue editors quote the ICRC as having drawn attention to the fact that “the legal literature focuses surprisingly little attention on the standards used to determine the existence of an occupation” since we are not likely to find particular ‘standards’ in their special issue either.
The special issue editors engage in a further admission (or sleight of hand, depending on one’s preference): that their efforts revolve around the personal preferences that post-modernism endorses! The editors say:
Given the many different forms that the “phenomenon” of occupation may take, the contributors to this special issue ethnographically interrogate whether and how occupation emerges as a distinct object of socio-legal analysis – a social phenomenon produced in and through law.
It is unclear why the editors use quotation marks around the word ‘phenomenon’. Presumably, it is to indicate that there are no particular characteristics that one may attribute to occupation and, implicitly, they may be saying what we have noticed already: they are unable and unwilling to theorize about the object. But they assure us that ethnographic interrogation will enable us to see “whether and how occupation emerges” as an object of socio-legal analysis. How should a reader understand this statement? What could it possibly mean to say that something “emerges as a distinct object of socio-legal analysis”? Perhaps the editors want to say that the law produces occupation, but since the laws that allegedly relate to occupation, e.g. in India for Kashmir would not necessarily say they are that, we have to have some sort of prior notion of occupation, a contender being Duschinski and Ghosh’s ‘occupational constitutionalism’. To where should we point for the source of that prior notion?
Kashmir’s occupation and freedom?
Duschinski and Ghosh say theirs is part of the emerging body of ‘Critical Kashmir Studies’ scholarship that approaches the Indian state’s relationship with Jammu and Kashmir as a military occupation in the context of a conflict between an armed resistance movement and the Indian state. Their article is a specific example of postmodern scholarship which the special issue’s introduction already announced. It is no exception to the Humpty Dumpty quality of the special issue. Humpy Dumpty uses words in just the way he wants, puzzling Alice. We might be equally puzzled by the editors and by Duschinski and Ghosh. Some examples should be enough to illustrate the problem.
As stated, we have no theory and the suggested abandonment of international law is not replaced by any other theoretical framework. So we have to rely on the personal preferences of the editors and authors and what they have decided is to be included in any (arbitrary) description of occupation. The editors admit as much when they say that “Duschinski and Ghosh provide an analytic framework for understanding the legal and cultural parameters of the Indian occupation of Kashmir” even when it is “a case that legal scholars, social scientists, and international media have historically failed to recognize through the logics and frameworks of occupation.” The task appears to make into an occupation something that is not generally regarded as one, either theoretically or conventionally, albeit without supplying the conditions under which that could be a regarded as a reasonable conclusion. If analysis is about placing data against theory, the authors and editors fail because no “analytic framework” appears to be in sight.
It is not my intention to recount the ways in which the authors appear to have a prior commitment to selection and rendition of the evidence in such a manner that the Indian exercise of sovereignty is tainted with illegitimacy and comes out as an occupation. They are unprepared to consider the evidence in any other manner. So here, new fictions come into play. Again, the editors’ summary of Duschinski and Ghosh’s formulation of ‘occupational constitutionalism’:
a form of foreign dominance and control produced through the annexation of part of Kashmir’s territory and its legal sovereignty to India in the aftermath of independence and reproduced through a series of legal mechanisms and processes across time that institute a state of emergency and permanent crisis in Kashmir.
This does not appear like an adequate summary, however, as it is not clear why such a situation should be considered occupational constitutionalism unless more is added. Otherwise, it might just be straightforward occupation. It might be if, according to this formulation, Indian control in Jammu and Kashmir is indeed foreign and if Jammu and Kashmir had been annexed. The editors and authors cannot claim unequivocally that this is so. They have to have decided in advance without providing adequate justification that these conditions (foreign control and annexation) are met.
Duschinski and Ghosh juxtapose the freedom movement for independence from Indian rule to what they describe as a foreign (Indian) occupational constitutionalism. As adverted, the foreignness of Indian rule is not established but asserted by the authors. Thus, what this foreignness is constituted by is elusive. The notion of freedom and a movement for it is perhaps a more productive way to come to grips with what they want to refer to, especially given its relational link to foreignness. For example, Duschinski and Ghosh refer to Burhan Wani as a “pro-freedom militant leader” and the editors refer to (Ather Zia’s analysis) “of how India exercised ‘irrefutable sovereignty’ over Kashmir through the state execution of Azfal Guru” demonstrating “the role of the courts in coercing and controlling occupied populations”. Note that these are the only references we get to these two personages. We are provided with no context or other way of evaluating their role in the Kashmir ‘freedom’ movement and the innocent reader would be forgiven for thinking that indeed they were freedom fighters murdered by India.
There is one way in which the problem faced by the editors can be resolved, but it requires the kind of intellectual honesty, which is not widely found in studies of Jammu and Kashmir. It would at least enable us to make sense of the editors’ and authors’ intuition that India occupies Jammu and Kashmir without justifying their approach. Making explicit the presuppositions behind what they appear to hold intuitively requires several steps, the first of which would be an acknowledgement that Jammu and Kashmir population experienced Islam as an invading force, which entailed their forcible conversion. Making of a Muslim South Asia is thus minimally coterminous with a cultural genocide. A parallel is found in what today’s Yezidi population of the Middle East describes as the onslaught they have faced by Islam over several centuries, the attacks by ISIS being only the latest of these.
A second step would require the acknowledgement that the constitution of Pakistan is based on the two-nation theory according to which it was said that Muslims could not live under Hindu domination. The forcible expulsion of non-Muslims from so-called Azad Kashmir, which Pakistan occupies since 1947, is a continuation of that historical trend. The expulsion of the Pandits from Kashmir Valley, especially from the 1990s on pain of murder, rape and forcible occupation of their property, is a further stage in this historical experience justified by the notion that Muslims cannot coexist with non-Muslims. The status of the Pandits or other non-Muslims is mentioned neither in the introduction by Duschinski and Bhan nor in the article by Duschinski and Ghosh. The conceptualization of freedom that the editors and authors speak of thus only makes sense as the moral right of Jammu and Kashmir’s Muslims to be free from Hindu domination, which requires the ethnic cleansing of Hindus from designated territories.
Third, an acknowledgement would be necessary that the basis of contemporary terrorism in Jammu and Kashmir can be conceptualized as a freedom-seeking enterprise only if linked to the two points above. However, we do not read in the special issue that Burhan Wani was a member of, and encouraged others to join, the Hizbul Mujahideen (Party of Holy Warriors or jihadis), a pro-Pakistani organization active in Jammu and Kashmir since 1989. It is designated a terrorist group by India and the United States, and its financial activities are proscribed by the European Union. The Jamaat-e-Islami in Pakistan can be presumed to direct the movement, given the hand of the Pakistani military and security services in its rise to prominence, simultaneously with the demise of the Jammu and Kashmir Liberation Front. The latter organization receives no mention in either the editorial introduction or Duschinski and Ghosh’s article.
Burhan Wani’s association with Hafiz Saeed, the leader of the Pakistani terrorist organization, Lashkar-e-Taiba (LeT), has been reported widely. Hafiz Saeed is suspected to have been behind the 2008 terror attacks in Mumbai. LeT has been designated a terrorist organization by the US government and a US$ 10 million bounty has been placed on its leader, Hafiz Saeed. LeT’s sponsorship of the murders in Mumbai of, among others, British and American citizens, is confirmed by international agencies.
Afzal Guru, meanwhile, was convicted of and eventually executed in 2013 for the 2001 terrorist attack on the Indian parliament, intended to decapitate India’s entire political leadership. The attack was only thwarted by the bravery of a few security guards who perished stopping the assault. The attack was planned by the group Jaish-e-Mohammed (in conjunction with LeT), which is designated as a terrorist organization in Australia, Canada, India, the United Arab Emirates, the United Kingdom, the United States and the United Nations. Although also banned in Pakistan, it continues to operate from that country. These facts about Afzal Guru are not mentioned by the editors (or in Duschinski and Ghosh’s article).
Should the Journal of Legal Pluralism be involved in an effort to contort into ‘freedom’ movements those that are terrorist and jihadist, and that advocate violent ethnic cleansing of non-Sunni Muslims with considerable support from jihad-inspired policymakers, organizations and individuals in Pakistan? The cited contributions are no exception to the asymmetrical pattern characterizing discussion of jihadist terrorism. Would the editors or authors of the special issue have referred to Osama bin Laden, the attackers of the Canadian parliament in 2014, or the killers of British soldier Lee Rigby as anything other than terrorists or murderers? The answer is as obvious as the question is rhetorical, although it is important to recall that Bin Laden was courted as a freedom fighter until his attacks on the United States. Behaving like Humpty Dumpties will not be a prophylactic when our flirtation with terrorism rebounds upon us.
 In further correspondence, I requested Dik Roth to provide reasons why he thought anything turned on something being ‘contested’, the reply to which remains outstanding. Since one might contest absolutely anything, whether or it is done on reasonable or scientific grounds, mere contestation it seems to me is a bogus criterion for entering into any kind of academic discussion. I recognize tough that many academics appear to consider it to possess some important quality.
 Although my formulation here and further below is admittedly brief and without supporting references, the Editor-in-Chief, Dik Roth, and Editor, Melanie Wiber, subsequently described it as “outdated conception of legal pluralism” in their reasons for not publishing my response. Despite being asked to clarify what they meant by that, they did not do so.
 So here we have a different standard applied to the editors and authors of the special issue than the one applied to assessing my response. While the former could not say how their contributions fell within the domain of legal pluralism studies, I was told but without explanation that my objection to their contributions was based on an “outdated conception of legal pluralism”.
 Even here, the taint of illegitimacy must flow from some or other theory of occupation. Otherwise, it is impossible for them to say under what conditions illegitimacy attaches to occupation. Moreover, if legitimacy is not their concern what is the point of their describing India as an occupier?