UNHRC Report on ‘Situation of Human Rights in Kashmir from June 2016 to April 2018'
Amb Bhaswati Mukherjee

Created as a follow-up to the Vienna Declaration on Human Rights in June 1993, the Office of the newly created High Commissioner for Human Rights was intended to ensure a balanced and equitable implementation of all human rights, be they ‘political and civil or economic, social and cultural’. This formulation was considered to be a major step forward in ensuring a more universal and less Western oriented approach towards human rights implementation.

Seven High Commissioners later, the Jordanian Prince Zeid Raad Al Hussein, when appointed by the Secretary-General of the United Nations (UNSG) after due consultation, was expected to focus on the Middle East and its ‘hot spots’, particularly Syria and Iraq. He was after all the first Asian and Arab to occupy the post. It is almost unheard of for the High Commissioner to unilaterally focus on a particular global situation, when he has not been requested to do so, either by the UN Human Right Council (UNHRC) or the General Assembly or the Security Council. Hussein chose to introduce into the working of the High Commissioner’s Office issues high on the agenda of the Organisation of Islamic Cooperation (OIC) and its patrons, notably Pakistan. A perusal of the 49 page Report could make one imagine that it is an OIC document, rather than a serious analysis from the highly respected Office of the High Commissioner for Human Rights.

On 14 June, 2018 the UNHRC issued a one sided, factually flawed and politically insensitive document on ‘Situation of Human Rights in the Indian state of Jammu and Kashmir from July 2016 to April 2018’. The Report of OHCHR asserted: “Impunity for human rights violations and lack of access to justice are key human rights challenges in the Indian state of Jammu and Kashmir”. In a separate statement accompanying the release of the Report, Hussein urged the UNHRC to “consider establishing an independent Commission to conduct a comprehensive independent international investigation into allegations of human rights violations in Kashmir”.

It is not surprising that the Report has been rejected in India across the political divide as a “prejudiced attempt by vested interests to hurt India’s sovereignty and national interests”. Ministry of External Affairs official spokesperson Ravish Kumar stated: “Our views in the matter have been conveyed unequivocally to the Office of the High Commissioner for Human Rights. We are deeply concerned that individual prejudices are being allowed to undermine the credibility of a UN institution.” The Indian spokesperson described the Report as “selective compilation of largely unverified information” and based on “overt prejudice” which “seeks to build a false narrative”.

Factual errors in the Report reflect Hussein’s bias and faulty interpretation of human rights Covenants and Instruments which over a period of 70 years form the basis of international human rights law. The Report states that India is bound by its obligations to the International Conventions against Torture and Enforced Disappearances. Hussein is fully aware that India is not a State Party to either instrument. As a responsible State Party to the International Covenant on Civil and Political Rights (ICCPR) since March 1976, India has brought its laws into conformity with its obligations and submits reports on the implementation of its obligations to the Human Rights Committee.

The Report alleges “patterns of impunity in Indian administered Kashmir”. Hussein must be fully aware that impunity cannot be practised in a vibrant democracy where fundamental rights and freedoms are guaranteed under the Constitution to every Indian citizen, including in the state of Jammu & Kashmir. Even more unacceptable is the recommendation that “India fully respect the right of self determination of the people of Kashmir, as protected under international law.” Hussein must be aware that human rights law, based on Article 2 of the Vienna Declaration of 1993, delineates the limitations relating to the right to self determination. The Vienna Declaration makes a clear distinction between colonial situations and independent states whose citizens enjoy all human rights. Article 2 states: “In accordance with the Charter of the United Nations, this shall not be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction of any kind.”

The Report casts a long shadow on the credibility of the Office of the High Commissioner when it refers to international terrorist organisations listed by the Security Council as “armed groups”. This is the terminology used to describe the Lashkar-e-Taiba (LeT), the Jaish-e-Mohammad (JeM) and the Hizbul Mujahideen (HM). Terrorist Burhan Wani has been described like a fallen hero, as a “leader” of the HM. As with the definition of self-determination, Hussein is deliberately distorting the clear distinction made multilaterally between UN-proscribed terrorist entities and terrorists and armed groups fighting for self determination. This obfuscation and false ideologies, if accepted and implemented in the Middle East or in Hussein’s home country, Jordan, which presently enjoys a limited form of democracy, would result in wide spread regime change across the Middle East.

Hussein fails to acknowledge that many of these so called violations of human rights listed in the Report such as restricted access to health or education is the direct result of cross-border terrorism emanating from Pakistan and territories under its illegal control. Cynically, analysis of the situation in ‘Pakistan-occupied Kashmir’ (PoK) is described very differently. It is no surprise that the Report has been enthusiastically embraced by Pakistan. According to Hussein, human rights violations in PoK are of “a different calibre or magnitude and of a more structural nature”. These comments have been questioned by the human rights community in Geneva.

In the ultimate analysis, the Report demonstrates the continuing bias of the West and the OIC against the emergence of India as the world’s largest democracy, with its high annual GDP growth and whose citizens enjoy human rights and fundamental freedoms enshrined in its Constitution. They also have the right to recourse under India’s independent judiciary. Impunity cannot be practised in a state based on rule of law. As far as Hussein’s personal prejudice against India is concerned, it could emanate from Jordan’s traditional tilting towards Pakistan in multilateral fora. Another distinguished Jordanian and former judge of the International Cout of Justice (ICJ) from 2000 to 2011, Awn Al-Khasawneh, was the lone judge in ICJ who voted with Pakistan in the Atlantis case, which India won with an overwhelming majority. Later, Khasawneh resisted stepping down for the Indian judge even though the agreement had been made at the highest political level between India and Jordan.

Hussein would do well to recall that India is one of the most respected states within the UN and its human rights fraternity. It would be difficult for his office and himself to function effectively for the remainder of his term (till 2019) within the HRC and outside, if he continues to demonstrate such prejudice and hostility towards India. He would be well advised even at this late stage to change course and focus on issues identified by the Human Rights Council as deserving scrutiny, including in his own backyard.

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