Human Rights Day: Successes and Failures

By
Dr. Ghulam Nabi Fai
December 10, 2009

The statement of Ms. Navanethem Pillay, the United Nations High Commissioner for Human Rights deserves an appreciation who wants to encourage people everywhere to honour Human Rights Day 2009 by embracing diversity and resolving to take concrete and lasting actions to help put an end to discrimination.

The 1948 United Nations Universal Declaration of Human Rights (UNUDHR) on its 61st anniversary needs to be applauded. Everyone knows that fundamental human rights are universal. That is the tacit assumption of the Universal Declaration of Human Rights. The declaration knows no religious, national, or political boundaries. And it is not hierarchical, like caste systems or monarchies. Everyone stands on the same plane when human rights are at issue. Even if all of its lofty provisions safeguarding fundamental human freedoms and liberties remain dishonored in many parts of the globe, it stands as a moral reproach to wrongdoing nations that may facilitate reforms.

It is also a fact that the success is measured not only by objectives, but also by whether an alternate strategy would have been an improvement. Thus, as Churchill said of democracy, it is the worst form of government except for all others that have been conceived or attempted. Similarly, it might be said of the United Nations that it is the worst international organization for achieving peace, self-determination, and human rights, but for all the alternatives that have been attempted or contemplated.

Urgency of adding teeth to human rights is felt everywhere. On that count, the news is less auspicious. The United Nations should officially declare that under international law and human rights covenants, every government official is vulnerable to criminal prosecution in every nation in the world for either direct or indirect complicity in human rights violations that shock the international conscience as determined by the World Court. Every alleged victim of a human rights violation or his or her relatives should be entitled to sue the alleged official culprits in the World Court to determine whether the shock the conscience test has been satisfied. Its verdict would be binding on all countries. Any nation that refused either to prosecute or to assist in the prosecution of the human rights violators would be expelled from the United Nations General Assembly, and its leaders could be held in contempt of court by the World Court.

What is also desperately needed is for the United Nations to promulgate specific guidelines for identifying a people entitled to claim self-determination under international law and the Universal Declaration of Human Rights. A special group of human rights experts and historians should be recruited to provide advice and to compose an initial draft. The World Court should be entrusted with mandatory jurisdiction to decide whether a nation is violating the right to self-determination at the behest of the alleged repressed group. An affirmative judgment should result in the expulsion of the culpable country from the United Nations General Assembly unless remedial action is taken with a specified period, including the holding of a self-determination plebiscite conducted by the United Nations and fully transparent to the international community. Unless something like this ruggedness and bite is adopted, self-determination will remain a crass tool of international power politics, a

cruel hoax to many. I also believe that self-determination must be celebrated whether or not a state of colonial or alien domination or foreign occupation obtains. Self-determination is a right that must be honored irrespective of the

identity of the oppressor.

The candor and fair-mindedness supports the conclusion that the United Nations has been painfully ineffective measured by the yardsticks of international peace, human rights, and self-determination. An initial example was and remains Kashmir. India's international lawlessness has escaped United Nations sanctions or even moral reproach for more than 62 years.

The seeming conspiracy of silence over gross affronts to the UDHR in Indian occupied Kashmir - an occupation which itself violates still binding United Nations Security Council resolutions dictating a self-determination there under international and impartial supervision – is worrisome. That unheroic muteness has emboldened India to a chilling campaign of human rights atrocities against innocent Kashmiris, despite the on and off-going peace talks between India and Pakistan that started in January 2004. The 700,000 Indian military and paramilitary forces operate outside the rule of law under the protective umbrella of an Indian immunity statute. Egregious human rights violations are commonplaces: involuntary disappearances, extrajudicial killings, rape, torture, plunder, abductions, mutilations, arbitrary detentions and recently discovered over 3,000 mass graves in Kupwara. It is even a crime to salute implementation of the Security Council resolutions, a shocking affront to the

Council itself.

If international law were applied evenhandedly in Kashmir, an international war crimes tribunal would have been established years ago to try the scores of Indian civilian and military leaders guilty of crimes against humanity and aggression. What Slobodan Milosevic did in Kosovo and Bosnia pales in comparison to what Indian civilian and military grandees have done in Kashmir for 62 successive years, something resembling genocide on the installment plan.

The Kashmir conflict is not about autonomy, nor about the transfer of power in Jammu and Kashmir. It is about honoring the political and human rights of the Kashmiri people in accord with international law, justice and morality. Dr. Manmohan Singh’s assertion that borders cannot be redrawn in Kashmir is an insult to the intelligence of the people of Kashmir. They know that the line of control is in fact the line of conflict. They have always revolted against the status quo and the status quo cannot be an option to resolve the Kashmir dispute. Dr. Fai emphasized that the gruesome status quo in Kashmir is both legally and morally unacceptable and militarily and economically frightening.

What is needed is for India and Pakistan to include the genuine leadership of the Kashmiri people in all negotiations to set a stage for the resolution of this long-standing dispute. No Kashmir solution that fails to command the consensus of the people of Kashmir has a chance of success. Furthermore, simple justice and morality require permitting Kashmiris to participate in charting their own political destiny.

According to Candidate Obama the United States holds urgent national security and foreign policy interests in a negotiated solution to the 62-year-old Kashmir conflict. This obviously is consistent with international law and practices and human rights covenants. Therefore, an appointment of a special envoy on Kashmir will hasten the process of peace and prosperity in the whole region of South Asia, including Afghanistan.

The author can be reached on gnfai2003@yahoo.com