Dr. Ghulam Nabi Fai
Former UN Secretary General, Ban Ki-moon has said, “On Human Rights Day, I call on States to fulfill the promises they made at the Vienna Conference.”
We all know that the United Nations World Conference on Human Rights, held in Vienna in June 1993, was a landmark event. It was stated that the Vienna Declaration was ‘reflective of the spirit of our age and the realities of our times’. The conference was attended by more than 7,000 delegates from all over the world, including 22-member delegation from Kashmir which included among others, Dr. Ayub Thakur, Dr. Nazir Gilani, Barrister Trumboo, Dr. Nazki, Dr, Mehroo and Dr. Ghulam Nabi Fai.
The Vienna Declaration called upon the states to abrogate legislation leading to impunity for those responsible for grave violations of human rights and to prosecute the violators, thereby providing a firm basis for rule of law.
The United Nations supports an array of human rights institutions, the Universal Declaration of Human Rights and many human rights treaties that have been adopted. These institutions and officials collectively testify to the blossoming of human rights on the international agenda in the past 73 years since promulgation of the Universal Declaration of Human Rights in 1948. They also underscore the Charter obligation on all nations to promote and protect human rights, which includes an obligation to consider human rights implications in all bilateral and multilateral negotiations.
The basic human rights provisions of the Geneva conventions including the ones protected under common article 3 of these conventions are also non derogable in the sense that they must be respected even in times of international and non-international conflicts, international disturbances and foreign occupation.
The candor and fair-mindedness support the conclusion that the United Nations has been painfully ineffective measured by the yardsticks of international peace, human rights, and self-determination.
The presence of the ‘Universal Declaration of Human Rights’ and other human rights instruments offers no consolence for the people of Kashmir because its framers have not lived up to its spirit, at least applying it selectively to suit the objectives of certain powers.
The people of Kashmir are simply perplexed as to how to interpret such joi de vivre. Over seventy-three have lapsed since the adoption of this Declaration but the people of Kashmir have not seen an iota of change in the human rights situation in Kashmir. For worse may be but never for the better. Such documents are meaningless for the people of Kashmir or for any other people who do not see their application, or even a negative mention to those who ride rough shod over them with total impunity while enjoying the good graces of some of the members of the world community to aspire to a high moral station above others.
The people of Kashmir can hardly believe that august bodies such as the United Nations recognize that the preservation of international peace and the realization of human rights are shared and common concerns of humankind.
As an example, the draconian laws continue to remain in operation in Kashmir, with full impunity to the perpetrators of crime against the humanity and violations of fundamental human rights, threatening the very existence of Kashmiri people. The appeals from the UN Special Rapporteurs on Freedom of Expression; Freedom of Religion; Torture and Extra-judicial execution; the Amnesty International and other international NGOs have failed to make India to withdraw these laws. Dr. Nazir Gilani in his letter to UN Secretary General wrote, “Indian allegation that the OHCHR June 2018 report was ‘false and motivated’ and further accusation that the Special Rapporteurs had ‘individual prejudices’ against India, would not help the member nation of UN to undo the massive evidence brought against its human rights record in Indian administered Kashmir.”
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 Milosevich did in Kosovo and Bosnia pales in comparison to what Indian civilian and military grandees have done in Kashmir for 73 successive years, something resembling genocide on the installment plan.
That is why adding teeth to human rights is urgent. On that count, the news is 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.
Kashmir is not beyond a solution if all involved parties make concessions: Pakistan, India, and Kashmiris. The next step is not to craft a solution, but to set the stage for crafting a solution. Key to that objective is an appointment of a person of international standing by the United Nations.
The grave situation in Kashmir demands that it could be brought to the attention of the Security Council. Whether this could be done successfully depends on the attitude and policies of the permanent members, but they should be left in no doubt that any failure to resolve the problem could lead to serious disorders throughout the South Asian Subcontinent and possibly to yet another war between India and Pakistan, with incalculable consequences for the whole world, since both states are now nuclear powers.
The question arises what should be the point of departure for determining a just and lasting basis? The answer obviously is (a) the Charter of the United Nations which, in its very first Article, speaks of ‘respect for the principles of equal rights and self-determination of peoples’ and (b) the international agreements between the parties to the dispute at the Security Council.
If the peaceful settlement to Kashmir crisis is to be reached, and if India is to stop dealing with the crises through sheer brutality and terror, world attention must be focused on Kashmir. Today, in this hour of darkness, in this hour of trial, in this hour of total isolation and entrapment, the people of Kashmir are being mangled and decimated, their land is being scorched. Everyday scores of people of dying, with them are dying the hopes of an entire generation and entire civilization.
Dr. Ghulam Nabi Fai is the Secretary General, Washington-based World Kashmir Awareness Forum. He can be reached at: 1-202-607-6435. Or. firstname.lastname@example.org