Universality of Human Rights: Myth or Reality

By Dr. Ghulam Nabi Fai

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 5, Universal Declaration of Human Rights

The statement of Mr. Ban Ki-moon – UN Secretary General deserves an appreciation who wants to console people by saying: “On Human Rights Day, let us recommit to guaranteeing the fundamental freedoms and protecting the human rights of all.”

The 1948 United Nations Universal Declaration of Human Rights (UDHR) on its 68th anniversary needs to be applauded. Everyone knows that fundamental human rights are universal. That is the tacit assumption of the Declaration. The declaration knows no religious, national, or political boundaries. 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 progress 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 for either direct or indirect complicity in human rights violations. 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. Its verdict would be binding on all countries. Any nation that refuses either to prosecute or to assist in the prosecution of the human rights violators should be held in contempt of court by the World Court.

In sum, it seems to me that until there evolves a generally accepted moral duty among peoples and nations to assist all victims of widespread human rights violations by force or other stiff retaliation, human rights enforcement mechanisms will operate haphazardly and whimsically for reasons unrelated to the harm to the victims or the villainy of the perpetrators. It is our collective responsibility to jump-start that moral evolution.

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 even moral reproach of the United Nations for more than 69 years.

Kashmir is the Gordian knot of peace and prosperity in South Asia. A just and final resolution of its sovereignty in accord with the wishes of the people of Kashmir is of utmost regional and international importance. Kashmir is the most densely soldiered and most nuclear combustible territory on the planet. The United Nations Security Council exerted jurisdiction over Kashmir as long ago as 1948; and, it remains as an unresolved tragedy to this very day.

The seeming conspiracy of silence over gross affronts to the UDHR in Indian occupied Kashmir – an occupation which itself violates still binding 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. 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 discovery of over 4,000 mass graves in Kupwara and elsewhere. It is even a crime in Kashmir to salute implementation of the Security Council resolutions, a shocking affront to the Council itself.

If international laws 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 69 successive years, something resembling genocide on the installment plan.

It seems to me that when everything is considered, the case for Kashmiri self-determination is overwhelming if historical practice and simple justice are consulted. The claim is thwarted by India’s nuclear arsenal and muscular military profile in other words, by unsentimental and amoral Realpolitik. What is anguishing and dumbfounding to me is not that the United States resists sending troops to Kashmir to vindicate self-determination at the risk of warring with India. After all, nations are not agents of altruism. What is frustrating and confounding is that world powers, including the United States withhold even the moral boost of officially proclaiming the right of self-determination for 18 million Kashmiris in accord with Security Council plebiscite resolutions it heartily approved and has never disavowed.

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. The assertion of some Indian officials that LoC can become an international border 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. The people of Kashmir have always revolted against the status quo and the status quo cannot be an option to resolve the Kashmir dispute. 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.

The procedures contemplated at early stage of the dispute at the United Nations for its solution may be varied in the light of changed circumstances but its underlying principle must be scrupulously observed if justice and rationality are not be thrown overboard. The setting aside of the UN resolution is one thing; the discarding of the principle they embodies is altogether another.

Today, the challenge before us is that a new generation has been raised with blood and tears for which death no longer poses a threat for what can death do that life has not done before: their suffering is freeing them from fear. Kashmiri freedom from fear has led to the powerful protests we are all witnessing today and these are the largest demonstrations in recent years. The presence of hundreds of thousands of people on the streets of Srinagar, marching towards the office of the UNMOGIP, is a proof that the freedom struggle is not a terroristic movement but a movement that is indigenous, spontaneous, peaceful and popular.

We trust that Mr. António Guterres, the Secretary General-elect of the United Nations will bring its influence to bear on both India and Pakistan to initiate peace process with witch the United Nations as well as the people of Jammu and Kashmir will be associated so as to ensure that settlement arrived at will be based on the principle of justice. We hope that the United Nations will not continuance any attempt to ignore the wishes of the people of the State of Jammu and Kashmir and by pass the expression of those wishes.

Dr. Fai is the Secretary General of World Kashmir Awareness

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