'Pre-1953' Kashmir Not Feasible
Role of Human Rights Organisations
by Dr. T.N. Shalla
Rights and Human Survival are inalienably linked. In concrete terms, the
endurance of the society is a human right. But this basic human right to live
with peace and security, liberty and equality and prosperity cannot be
rejuvenated by any government faced with the threat of terrorism. Terrorism is a
negation of life and violation of norms of human behaviour recognised by all
civilised people of the world. By spreading terror and panic among people, it
hits the very roots of democracy. So every society cherishing the democratic way
of life is bound to fight terrorism. But any democratic government, while
countering terrorism becomes subject to charge of "excesses" and
"violation of human rights" and are thus "damned if they do and
doomed if they do not". This is due to the fact that while the permissible
spectrum of terrorism is being narrowed in international law, the growing
international commitment to human rights tends to further legitimize political
violence and terrorism. As a result, public interest and opinion continue to
press more and more for effective controls not only over the "siege of
terror" but also over "reigns of terror". It is here that the
role of human rights activists and organisations become relevant and important.
A modest attempt is made in this paper to evaluate the role of human rights
organisations in the context of ongoing terrorism in the state of Jammu &
Before touching the main aspect of my
submissions, allow me to put on record some preliminaries:
(i) A democracy, even when
confronted with a serious terrorist threat, is still reluctant to suspend
basic freedoms as a counter measure in the belief that this action is a
greater danger to the legitimacy of the democratic state and the mass
consensus vital to its preservation than a terrorist challenge itself. Aware
of this situation, the terrorist is often able, sometimes openly, to
manipulate the democratic process to create a climate favourable to himself.
In fact, the very ambivalence of free societies concerning their operations is
what lays the democratic process open to manipulation by terrorists.
(ii) However laudable one might find
the objective of any militant group, the employment of terror as a means to
press for the attainment of that objective is abhorrent. International
conventions and treaties, even those pertaining to human rights, do not
recognise terrorist violence as legitimate political action, arising out of
any ideological or political commitments or any value-basis.
(iii) No quibbling can hide the
inherent bestiality of terrorism. To quell terrorism, its primitive savagery
should be eliminated. It is no use rationalising terrorism. Shorn of verbose
jingoism, terrorism is nothing but an organised system of intimidation and, as
such, it should be dealt with most sternly and without vacillation simply
because terrorists undo and threaten the very basic regime of human rights.
For, to violence they take and violence they evoke.
(iv) Implementation of human rights
had come to be acknowledged nationally and internationally as a major concern
and essential in the development of not only the individual but also the
nation and, ultimately the world. But one of the most dangerous and pernicious
threats to humanity today is terrorism, both territorial and
extra-territorial, and the forces internal and external which back terrorists
and terrorist organisations. It is, therefore, necessary that while assessing
the human rights situation, consideration should be given to the way in which
international terrorism, especially state-sponsored terrorism, cuts at the
very roots of society's enjoyment of human rights.
(v) In countries having a liberal
democratic order, the extent and guarantee of human rights for the terrorists
is a real bone of contention between human rights activists and the
nationalists of the terrorist infected countries. If the aim of terrorists is
to break a multi-ethnic and multi-religious country to carve out their own
sovereign home-land on the basis of religion or ethnicity then such terrorists
are not entitled to full-scale guarantee of human rights as postulated by the
International Human Rights Law. They are entitled to "minimum of human
rights" guarantee which must include a guarantee of fair-trial conducted
by an independent judiciary, right to appeal, right to represent one's case
through an Advocate at least in an appellate court and guarantee against
extra- judicial killings, etc.
(vi) Unlike bilateral and
multilateral inter- governmental forms of inquiry, the authority and
competence for NGO fact-finding is usually self- created. NGOs define the
scope of their study and try to legitimize it after the fact by the
reliability of these findings. In doing so, these organisations must put
together a puzzling set of isolated pieces of information into a coherent
picture after due scrutiny and cross checking.
With these preliminary remarks let us
try to survey the role of various human rights agencies, as a response to
on-going terrorism in the state of Jammu and Kashmir.
Fact finding is the heart of human
rights activity. The prescription of human rights norms implies an understanding
of the needs to be addressed, which in turn requires an appreciation of factual
conditions. Since the application and supervision of human rights norms do not
take place in abstracts but in relation to specific circumstances and
situations, what we require is an awareness of the factual conditions.
Therefore, all claims, that human rights are, or are not, being respected, or
are being violated, turn essentially on the question of fact. And as for all
human institutions, the success of the difficult task of fact-finding in the
field of human rights will depend on men as well as procedures. For in a divided
and distrustful world, and on questions where there exists a profound difference
of views, fact- finding itself and the conclusions and recommendations emanating
from it are more likely to find acceptance if it is done by impartial persons
competently and objectively and without any bias. The entire process should take
care against any suppression or distortion to arrive at its findings.
Non-governmental organisations (NGOs)
working at the international and/or national level engaged in the implementation
of human rights profess to function as unofficial ombudsman safeguarding human
rights. In this endeavour, these NGOs gather information which can be
effectively mustered- either directly or indirectly- to influence the
implementation of human rights by governments. In order to inspire remedial
action by governments, human rights organisations must demonstrate that their
factual statements are true, that is, they constitute a reliable basis for
remedial governmental policy. Since the truth or falsity of any given statement
may be very difficult to know, human rights organisations must pursue
reliability by using well-accepted procedures and by establishing general
confidence in fairness, impartiality and truthfulness. Admitting that such
fact-finding should not be constricted within unduly a priori rules, it must be
based on certain rules and respect certain principles. These rules and
principles must be such that, having regard to the procedures followed and the
persons entrusted with it, the fact- finding process enjoys the confidence of
the international community as well as of the state concerned.
With these basic postulates and
fundamental assumptions, let us now try to examine and evaluate the role of
human rights organisations by probing some critical areas:
(A) Who are these human rights activists/organisations ?
It has become a fashion in
contemporary politics and a good recipe to instant leadership to become a
self-appointed champion of human rights in India. Whenever a terrorist or an
assassin is arrested under TADA or killed in an encounter, issue a statement
condemning the police or para-military forces. Obliging press is ready to give
you much-needed newspaper coverage and project you as a political messiah and
human rights leader over-night. To formalise the credentials, all that one has
to do is gather half a-dozen people (all interested in a synthetic approach) for
a human rights organisation with a catchy name and issue a statement that the
organisation will fight against violation of human rights of thousands of
"innocent" people being killed or arrested by the police.
(B) Blind to inhuman wrongs and
sufferings of terrorist victims
It is a matter of pity that some of
these fast- mushrooming organisations pretending to be human rights groups are
so short-sighted and devoid of objectivity that they either cannot, or do not
want to, see the inhuman wrongs and blatant violations of human rights committed
by those very people whose cause they champion. It seems that these human rights
activists remain tongue-tied to these inhuman wrongs because of fear of
terrorists or political compulsions. Needless to say that the single most
important threat today to the enjoyment of human rights comes from terrorists.
It is, indeed, deplorable that some
human rights organisations reporting on the Kashmir situation have conveniently
ignored the gross human rights violations against Kashmiri Pandits. Their
silence on the genocide of this community and the terrible plight facing the
community after the exodus, is intriguing and exasperating and puts the
credibility of these organisations into shade. Reports about violation of human
rights in the Indian State of Jammu & Kashmir issued by international
organisations like Amnesty International, Asia Watch, International Commission
of Jurists, and at the national level by organisation like Initiative on
Kashmir, Indian Peoples Front, Peoples Union of Civil Liberities, Radical
Students Organisation and some State-based human rights organisations have all
suppressed this vital and basic information. While raising howls about
violations of human rights by security forces in the valley they make no more
than passing references to the inhuman brutality with which Pak-backed
terrorists in the state massacred large number of Kashmiri Hindus. They
conveniently forger to focus on the plight of more than three lakh
"internally displaced" Kashmiris who were hounded out of their homes
and hearths for their belief in secularism, nationalism and democracy. These
groups are yet to report the details of unpardonable crimes indulged in by the
terrorists. They simply ignore the dictum that "Terrorists are greatest
violators of human rights".
(C) Partisan evidence and biased
The success of human rights activists
and bodies depends upon whether true human understanding and democratic process
comes to prevail over narrow group interests and partisan thinking;
Unfortunately, certain Human Rights and Civil Liberities Organisations in our
country and abroad have shown sympathy for a group of people whose only aim is
to break India in the name of decentralization and autonomy. Most of their
assessments and reports are based on avowedly partisan evidence. So much so that
in some cases, blatant lies are projected under the garb of human rights
violation details. These biased and one-sided reports serve as propaganda
material for the anti-India forces and terrorists. In this process, a distorted
picture about the human rights situation in India is being projected.
(D) Attempts to rationalise
Attempts have been made to draw a
distinction in variety of terrorist violence involved in various parts of India
and to rationalise terrorism. Aggrandised and monopolised academic scholarship
and chorus of human rights activists lends its prestige and sophistication to
this wasteful exercise in refinement and micro-analysis of terrorism in India.
In their zeal to over-do the job, these so-called experts try to give contrived
meaning to universally established concepts of "state sovereignty",
"rule of law" and other democratic norms. This art of "social
science sorcery" has complicated the issue. As a result, the truth becomes
a matter for disputation and, if need be, suppression. They seem to have
forgotten the dictum that "a terrorist is a terrorist".
The level of procedural due process
manifested by a fact-finding mission has a direct correlation with the fairness
of the mission's report, as well as being an important factor in the reports'
credibility. In the field of human rights, the report of a mission which has
conducted itself in accordance with a high standard of due process would carry
far greater weight in the organs of international public opinion thereby
increasing pressure on a state violating human rights to comply with
international norms. Unfortunately, it has been generally observed that NGOs
engaged in human rights activities have neither separately nor jointly
articulated procedures for fact- finding to ascertain violations of human
rights. Consequently, it is not possible to distinguish between
"allegations" and "established facts" of human rights
violations from their reports. In the context of ongoing terrorism, the task of
these groups is very delicate, sensitive and important. In order that these
groups have respectability and their reports have credibility, they have to
conduct themselves fearlessly in such a way that the state and the people are
convinced about their bonafides, as being genuinely concerned about protection
of human rights free from biased political propaganda and political overtones.
To ensure this, following suggestions are made:
(1) Organisations working in the
field of human rights should include within all substantial factual reports an
account of the methodology and procedures used in making the findings
contained in the reports.
(2) The methodological note or the
body of the report should contain the terms of reference.
(3) If witnesses were interviewed,
the report should state who generally did the interviews and what were the
circumstances of the interviews.
(4) Government statements or efforts
to obtain government materials on the incident under scrutiny should be
(5) The report should indicate what
methods were used for ensuring the reliability of information received.
(6) The report should specify the
national and international substantive legal norms, which it uses to assess
the facts found.
(7) The report should separate the
factual findings from any recommendations the organisation may wish to make.
(8) Lastly, the report should state
what efforts, if any, were made or will be made, to obtain a government
response to the report and any reaction forthcoming.
To conclude, it is submitted that when
the issue juxtaposes the lives of innocent citizens and the possible curtailment
of personal liberties we all cherish, the answers are not easy. Human Rights
Organisations must handle the tangled web of facts, circumstances, perceptions
and the situations more realistically. The tendency to be selective while
choosing facts, opinions and aspects to fit pre- determined concepts must be
avoided. This is the minimum imperative to establish their credibility.
Source: Koshur Samachar