By Bhaswati Mukherjee
The Commission on Human Rights (CHR) established in 1946 was a deeply flawed and over-politicised body which rapidly lost its legitimacy. When it was replaced by the Human Rights Council (UNHRC) in 2006, it was hoped that it would have a more even handed approach to human rights scrutiny and monitoring and focus on violation of economic, social and cultural rights, common violations among minority and migrant groups in developed countries.
Unfortunately, the Council rapidly developed the same political orientation as its predecessor Commission. Council’s members were reduced from 53 (CHR) to 47 with the stipulation that no member can remain in the Council for more than two consecutive three-year terms. As a result, India is not in the Council till 2020. Asian and Arab members include Saudi Arabia, Qatar, UAE and Pakistan. The composition is not very "India friendly".
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”. Jordanian Prince and UNHRC Commissioner Zeid Raad Al Hussein urged the Human Rights Council to “consider establishing an independent Commission to conduct a comprehensive independent international investigation into allegations of human rights violations in Kashmir”.
India's Ministry of External Affairs official spokesperson Ravish Kumar described the report as “selective compilation of largely unverified information” and based on “overt prejudice” which “seeks to build a false narrative”. The report alleges “patterns of impunity in Indian administered Kashmir”. Raad must be aware that impunity cannot be practised in a vibrant democracy where fundamental rights and freedoms are guaranteed under the Constitution to every Indian citizen. 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.” Raad should know that human rights law, based on Article 2 of the Vienna Declaration of 1993, delineates the limitations relating to the right to self-determination.
Cynically, the analysis of the situation in ‘Pakistan-occupied Kashmir’ is described very differently. Human rights violations in PoK are of “a different calibre or magnitude and of a more structural nature”. This has been interpreted as an attempt to exempt POK from any international scrutiny in the event of the Council deciding to send a human rights mission to Kashmir. Commissioner Raad has been photographed recently with the Pakistani Hurriyat faction leader Syed Faiz Naqshbandi and some other separatist leaders from Pakistan. This demonstrates his bias and prejudice and violates the High Commissioner's mandate which says that he should conduct his work respecting "sovereignty, territorial integrity and domestic jurisdiction of member states".
The report is now being debated under the "General Debate on the overall update of the High Commissioner on the situation of Human Rights worldwide". Not a single member barring Pakistan has come out in support of either Pakistan or the report. Many have questioned the timing and the veracity of the report itself. Several have rejected the report. These include two from Asia (Bhutan, Afghanistan), one from Africa (Mauritius), one from Eurasia (Belarus), and two from Latin America (Cuba, Venezuela).
As expected, Pakistan's Permanent Representative Farukh Amil made an ardent appeal on behalf of his own country to establish a Commission of Inquiry. However, he did not have much more to add when he spoke on behalf of the OIC (Organisation of Islamic Cooperation). "The OHCHR report on Jammu & Kashmir also points to a grave situation in Indian Administered Kashmir and needs appropriate follow up by this Council."
The report has cast a long shadow on the credibility of the Office of the High Commissioner when it refers to international terrorist organizations listed by the Security Council as “armed groups”. As with the definition of self-determination, Raad is deliberately distorting the clear distinction made multilaterally between UN-proscribed terrorist entities and terrorists and armed groups fighting for self-determination. Of particular concern, as underlined by Bhutan, was the omission in the report of the impact of terrorism on the ground situation. As pointed out by India, it is an attempt to redefine the international consensus on terrorism as accepted by the international community in the Vienna Declaration on Human Rights in 1993.
The Council which began its session on 18 June will conclude on 6 July, 2018. India would need to rally its friends and allies to ensure that the High Commissioner’s recommendation on sending a mission is rejected and his personal credibility impacted. Fortunately, the Council is more preoccupied by the sudden decision of US President Donald Trump to withdraw from the Council because of its "chronic bias" against Israel. Coming at a time when the Council is expected to strongly criticise Washington for separating migrant children from their parents at the Mexico border, many in the human rights community predict that the latter issue may dominate the proceedings of this session, rather than a biased recommendation from a Jordanian prince which has not even been enthusiastically embraced by the OIC. Many expect that India’s position will prevail.
(The author is a former Indian ambassador.She can be contacted at firstname.lastname@example.org)