16 November 2002
Economic & Political Weekly, Vol.37 No.46
Knowledge is power. In few other fields is the saying as true as in the struggle for rights and justice. News about global developments in human rights is sparse. A recent issue of Human Rights Features (HRF) (July-September 2002) brings this home all too clearly. It is published by the South Asia Human Rights Documentation Centre at New Delhi. Its executive director, Ravi Nair, began as a trade unionist and braved police harassment to emerge as not only India’s foremost expert on human rights, but as one with an international repute.
His standards of research match those of the best anywhere in the world. His mastery of the mass of documentation, which receives enormous accretions every year from international bodies, is amazing. Two publications of the SAHRDC particularly deserve mention. One is Preventive Detention and Individual Liberty, the other is Eliminating Sovereign and Official Immunity in Fundamental Human Rights Cases. The HRF’s latest issue bares the disgraceful record of the Indian delegation at the 58th UN Commission on Human Rights. The government of India made much of its decision to sign the Convention Against Torture. But deliberately did not ratify it. In Geneva recently at the UN Human Rights Commission’s 58th session India voted in favour of a no-action resolution on the Draft Optional Protocol to the Convention Against Torture. It aims to create a global system of inspection of places of detention as a way of preventing torture and ill-treatment. Article 1 of the Protocol states that the objective of the Protocol is to “establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment”.
A Sub-Committee of the Committee Against Torture, composed of 10 independent experts, will be empowered to carry out missions to any state that ratifies the Optional Protocol. On the basis of its visits, the Sub-Committee will submit a confidential report to the State Party, including practical recommendations. It will initiate a dialogue with the State Party on practical, remedial measures to improve the conditions of persons in custody with the aim of preventing torture.
The second important element of the Protocol is the requirement to put in place national preventive mechanisms. Article 3 of the Protocol requires ratifying states to “set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment”. The emphasis of the Optional Protocol is on prevention. International standards prohibiting torture and ill-treatment are already in place: The Optional Protocol aims to implement these standards more effectively. India not only refuses to ratify the CAT but even obstructs others which wish to make it more effective through this Optional Protocol. Its ‘natural ally’, the US, supported this negative motion. India refuses entry to the UN Special Rapporteur on Torture.
Chechnya brought India and Pakistan closer. The HRF records:
Throughout the CHR session, the delegation of Pakistan, on behalf of the Organisation of the Islamic Conference (OIC), emphasised two points: that Islam is a religion of peace, and that the OIC stands solidly behind its Muslim brothers. The OIC readily and consistently championed the cause of its Muslim brethren in the Occupied Palestinian Territories.
But the ‘brotherhood’ club is evidently not open to all. Not one Islamic country voted to protect the rights of the Chechens as proposed in Draft Resolution L 29 on the ‘situation of human rights in the Republic of Chechnya of the Russian Federation’.
The draft resolution was a balanced text. It deplored the lack of cooperation of the Russian Federation with the mechanisms of the CHR, while affirming the right of Russia to defend its territorial integrity and welcoming positive developments in the region. The text also highlighted the Russian military’s continued use of torture, summary executions, arbitrary detention and forced disappearances against the Chechens. The resolution was nevertheless defeated with 15 in favour, 16 against and 22 abstentions. The majority of OIC member delegations abstained, while Indonesia, Nigeria and Syria voted against the resolution.
Page 6 of HRF records the doings of Pakistan’s partner in hypocrisy, India:
In view of New Delhi’s sympathy and solidarity with Russia’s ‘problem’, the Indian delegation voted against the EU-sponsored resolution on Chechnya. In doing so, it revealed its disregard for the continuing violation of human rights in Chechnya, and threw its political weight behind such worthies as Burundi, Cuba, the Democratic Republic of the Congo. Nigeria, Sudan and Syria, all of whom also opposed the resolution.
Invoking the twin threats of ‘international terrorism’ and ‘Islamic fundamentalism’, Moscow and New Delhi have found an easy justification for excesses in Chechnya and Jammu and Kashmir, respectively… The ‘campaign’ against terrorism, however, has been perverted in many cases. In Chechnya, international human rights organisations report a continuing policy and practice of torture, abductions and political killings. The Special Rapporteur on extrajudicial, summary or arbitrary executions in her latest report to the 58th session of the CHR states: “Russian government forces are reported to have committed grave human rights violations, including deliberate and targeted extrajudicial executions of unarmed civilians”.
The Kremlin, for its part, has persistently tried to rebuff censure from the international community. Russia described the 25-7 vote on the CHR Resolution on the Situation in the Republic of Chechnya of the Russian Federation at the 56th Session – as being in the ‘best traditions of the cold war’ and that it constituted ‘meddling in Russia’s internal affairs at a time when life in Chechnya is returning to normal’.
The resolution, which called on the Russian government to establish a “national, broad-based and independent commission of inquiry to investigate promptly alleged violations of human rights and breaches of international humanitarian law” committed in Chechnya and to extend invitations to Special Procedures of the CHR to undertake missions to the region, was sponsored by the European Union with the backing of the US.
But to secure Russian cooperation for a war on Iraq the US has become reticent on Chechnya of late. How many in India know of the Like Minded Group (LMG) at the CHR in Geneva? The journal reports:
This group – consisting of, among others, the delegations of Algeria, China, Cuba, Egypt, India, Indonesia, Malaysia, Nigeria, Pakistan, Syria and Tunisia – notched up yet another ‘successful’ CHR by ensuring that little progress was made on strengthening and elaborating human rights standards. In recent years, the LMG has relied on a number of tried and tested techniques to hamper the efficiency of the CHR.
These include an excessive number of interventions (well over 30 per cent of state intervention at the 57th session of the CHR were made by the Asian Group alone), promoting superfluous, superficial and often regressive resolutions and marginalising the work of NGOs. These methods were all employed in 2002.
Current developments are intelligible only if one is aware of the corpus of the law of human rights. Richard Clayton and Hugh Tomlinson’s two-volume work, published last year, draws on decisions of the European Court and the Commission of Human Rights, on judgments of American, Canadian, Australian, Indian and other Commonwealth courts and on their respective Bills of Rights.
The second volume contains texts of the British Human Rights Act 1998 and the rules of court and practice directions under it; European materials, United Nations texts – the Universal Declaration of Human Rights, the two International Covenants on Human Rights (1966) and other conventions – the Canadian Charter of Rights and Freedoms (1982), Part III on fundamental rights of the Constitution of India, and similar provisions of the constitutions of Ireland, New Zealand, South Africa, the US and Zimbabwe.
Annual Supplements updating the formidable volumes were promised. The First Annual Updating Supplement has just appeared. Its 288 pages, including a very helpful Index, shows how swiftly the law on human rights marches the world over.
Civil rights awareness is growing in India. Witness the excellently documented Open Letter to the Chief Justice of India from teachers at Delhi University and the JNU on the trial of Syed Abdur Rehman Geelani, a lecturer at Zakir Hussain College of Delhi University, and protests by the press at the arrest of a highly respected journalist, Iftikhar Gilani. The case against the lecturer suffered a massive setback when the high court rejected phone intercepts as evidence. The press has freely commented on the injustice in prosecuting Iftikhar Gilani under the Official Secrets Act in respect of a document freely available to all.
Like the parent volumes the Annual Supplement records cases on every single human right recognised by the two UN Covenants on Human Rights and the European Convention on Human Rights; in other words, on Part III of the Indian Constitution embodying the fundamental rights. There is a chapter on ‘Remedies and Procedures’. Appended is the Charter of Fundamental Rights of the European Union. This Charter of 54 articles is a model of elegant draftsmanship and comprehensiveness. It is in law not a treaty to be respected. It has been cited in proceedings before European Court of Justice. No student of the law of human rights can afford to ignore these volumes.
Nor the formidable compilation on prisoners’ rights prepared by the Human Rights Law Network. Its moving spirit, Colin Gonsalves, a noted lawyer, and his colleagues have rendered yeoman service to the cause of human rights. The monthly journal Combat Law and a host of publications on human rights as well as Reports of Indian Peoples’ Tribunal on Environment and Human Rights testify to their record. This is a formidable compilation of important court rulings on arrest and detention, bail and remand; police interrogation, illegal detention, torture, compensation; paupers and juveniles; women; legal aid, speedy trial, fair procedure; humane sentencing; prison facilities; the press Chapter Cases, surveillance, etc; preventive detention and the rights of detainees; Narcotic Drugs and Psychotropic Substances Act, 1985; TADA, 1987; extracts from Maharashtra Prison Manual and Maharashtra State (Visits of Jails and Homes for Children) Project Rules, 1993.
It is very appropriate that the volume is dedicated to Sardar Jaswant Singh Khalra, a human rights activist in Punjab, who was ‘abducted’ by the police and is ‘believed eliminated’ and to Jalil Andrabi, a lawyer and human rights activist in Kashmir, who was abducted by an officer of the Indian Army on March 3, 1996 after two public warnings of the imminence of this action by Andrabi himself. The officer whose identity is known to all is yet to be brought to justice. The compilers’ dedication testifies to their sincerity. For them, concern for human rights does not end at the Banihal Pass, unlike for some human rights activists in Delhi.
Each section is prefaced by a lucid and comprehensive analysis prepared by the editors which puts the cases in perspective. No student of the subject and no lawyer who is concerned with this branch of the law can afford to ignore this volume.
Source: http://www.epw.org.in/showArticles.php?root=2002&leaf=11&filename=5152&filetype=html