If Israel fails to work together with the commission, then under United Nations Charter Article 22, the U.N. must establish an International Criminal Tribunal for Israel.

National and international laws need to be respected and carried out in its entirety and not selectively. Failure to create viable accountability would only further encourage the Israeli regime to continue their holocaust against the Palestinians.

by Dr. T.N. Shalla

Human Rights and Human Survival are inalienably linked. In concrete terms, the endurance of the society is a human right. But this basic human right to live with peace and security, liberty and equality and prosperity cannot be rejuvenated by any government faced with the threat of terrorism. Terrorism is a negation of life and violation of norms of human behaviour recognised by all civilised people of the world. By spreading terror and panic among people, it hits the very roots of democracy. So every society cherishing the democratic way of life is bound to fight terrorism. But any democratic government, while countering terrorism becomes subject to charge of “excesses” and “violation of human rights” and are thus “damned if they do and doomed if they do not”. This is due to the fact that while the permissible spectrum of terrorism is being narrowed in international law, the growing international commitment to human rights tends to further legitimize political violence and terrorism. As a result, public interest and opinion continue to press more and more for effective controls not only over the “siege of terror” but also over “reigns of terror”. It is here that the role of human rights activists and organisations become relevant and important. A modest attempt is made in this paper to evaluate the role of human rights organisations in the context of ongoing terrorism in the state of Jammu & Kashmir.

Before touching the main aspect of my submissions, allow me to put on record some preliminaries:

(i) A democracy, even when confronted with a serious terrorist threat, is still reluctant to suspend basic freedoms as a counter measure in the belief that this action is a greater danger to the legitimacy of the democratic state and the mass consensus vital to its preservation than a terrorist challenge itself. Aware of this situation, the terrorist is often able, sometimes openly, to manipulate the democratic process to create a climate favourable to himself. In fact, the very ambivalence of free societies concerning their operations is what lays the democratic process open to manipulation by terrorists.

(ii) However laudable one might find the objective of any militant group, the employment of terror as a means to press for the attainment of that objective is abhorrent. International conventions and treaties, even those pertaining to human rights, do not recognise terrorist violence as legitimate political action, arising out of any ideological or political commitments or any value-basis.

(iii) No quibbling can hide the inherent bestiality of terrorism. To quell terrorism, its primitive savagery should be eliminated. It is no use rationalising terrorism. Shorn of verbose jingoism, terrorism is nothing but an organised system of intimidation and, as such, it should be dealt with most sternly and without vacillation simply because terrorists undo and threaten the very basic regime of human rights. For, to violence they take and violence they evoke.

(iv) Implementation of human rights had come to be acknowledged nationally and internationally as a major concern and essential in the development of not only the individual but also the nation and, ultimately the world. But one of the most dangerous and pernicious threats to humanity today is terrorism, both territorial and extra-territorial, and the forces internal and external which back terrorists and terrorist organisations. It is, therefore, necessary that while assessing the human rights situation, consideration should be given to the way in which international terrorism, especially state-sponsored terrorism, cuts at the very roots of society’s enjoyment of human rights.

(v) In countries having a liberal democratic order, the extent and guarantee of human rights for the terrorists is a real bone of contention between human rights activists and the nationalists of the terrorist infected countries. If the aim of terrorists is to break a multi-ethnic and multi-religious country to carve out their own sovereign home-land on the basis of religion or ethnicity then such terrorists are not entitled to full-scale guarantee of human rights as postulated by the International Human Rights Law. They are entitled to “minimum of human rights” guarantee which must include a guarantee of fair-trial conducted by an independent judiciary, right to appeal, right to represent one’s case through an Advocate at least in an appellate court and guarantee against extra- judicial killings, etc.

(vi) Unlike bilateral and multilateral inter- governmental forms of inquiry, the authority and competence for NGO fact-finding is usually self- created. NGOs define the scope of their study and try to legitimize it after the fact by the reliability of these findings. In doing so, these organisations must put together a puzzling set of isolated pieces of information into a coherent picture after due scrutiny and cross checking.

With these preliminary remarks let us try to survey the role of various human rights agencies, as a response to on-going terrorism in the state of Jammu and Kashmir.

Fact finding is the heart of human rights activity. The prescription of human rights norms implies an understanding of the needs to be addressed, which in turn requires an appreciation of factual conditions. Since the application and supervision of human rights norms do not take place in abstracts but in relation to specific circumstances and situations, what we require is an awareness of the factual conditions. Therefore, all claims, that human rights are, or are not, being respected, or are being violated, turn essentially on the question of fact. And as for all human institutions, the success of the difficult task of fact-finding in the field of human rights will depend on men as well as procedures. For in a divided and distrustful world, and on questions where there exists a profound difference of views, fact- finding itself and the conclusions and recommendations emanating from it are more likely to find acceptance if it is done by impartial persons competently and objectively and without any bias. The entire process should take care against any suppression or distortion to arrive at its findings.

Non-governmental organisations (NGOs) working at the international and/or national level engaged in the implementation of human rights profess to function as unofficial ombudsman safeguarding human rights. In this endeavour, these NGOs gather information which can be effectively mustered- either directly or indirectly- to influence the implementation of human rights by governments. In order to inspire remedial action by governments, human rights organisations must demonstrate that their factual statements are true, that is, they constitute a reliable basis for remedial governmental policy. Since the truth or falsity of any given statement may be very difficult to know, human rights organisations must pursue reliability by using well-accepted procedures and by establishing general confidence in fairness, impartiality and truthfulness. Admitting that such fact-finding should not be constricted within unduly a priori rules, it must be based on certain rules and respect certain principles. These rules and principles must be such that, having regard to the procedures followed and the persons entrusted with it, the fact- finding process enjoys the confidence of the international community as well as of the state concerned.

With these basic postulates and fundamental assumptions, let us now try to examine and evaluate the role of human rights organisations by probing some critical areas:

(A) Who are these human rights activists/organisations ?

It has become a fashion in contemporary politics and a good recipe to instant leadership to become a self-appointed champion of human rights in India. Whenever a terrorist or an assassin is arrested under TADA or killed in an encounter, issue a statement condemning the police or para-military forces. Obliging press is ready to give you much-needed newspaper coverage and project you as a political messiah and human rights leader over-night. To formalise the credentials, all that one has to do is gather half a-dozen people (all interested in a synthetic approach) for a human rights organisation with a catchy name and issue a statement that the organisation will fight against violation of human rights of thousands of “innocent” people being killed or arrested by the police.

(B) Blind to inhuman wrongs and sufferings of terrorist victims

It is a matter of pity that some of these fast- mushrooming organisations pretending to be human rights groups are so short-sighted and devoid of objectivity that they either cannot, or do not want to, see the inhuman wrongs and blatant violations of human rights committed by those very people whose cause they champion. It seems that these human rights activists remain tongue-tied to these inhuman wrongs because of fear of terrorists or political compulsions. Needless to say that the single most important threat today to the enjoyment of human rights comes from terrorists.

It is, indeed, deplorable that some human rights organisations reporting on the Kashmir situation have conveniently ignored the gross human rights violations against Kashmiri Pandits. Their silence on the genocide of this community and the terrible plight facing the community after the exodus, is intriguing and exasperating and puts the credibility of these organisations into shade. Reports about violation of human rights in the Indian State of Jammu & Kashmir issued by international organisations like Amnesty International, Asia Watch, International Commission of Jurists, and at the national level by organisation like Initiative on Kashmir, Indian Peoples Front, Peoples Union of Civil Liberities, Radical Students Organisation and some State-based human rights organisations have all suppressed this vital and basic information. While raising howls about violations of human rights by security forces in the valley they make no more than passing references to the inhuman brutality with which Pak-backed terrorists in the state massacred large number of Kashmiri Hindus. They conveniently forger to focus on the plight of more than three lakh “internally displaced” Kashmiris who were hounded out of their homes and hearths for their belief in secularism, nationalism and democracy. These groups are yet to report the details of unpardonable crimes indulged in by the terrorists. They simply ignore the dictum that “Terrorists are greatest violators of human rights”.

(C) Partisan evidence and biased reports

The success of human rights activists and bodies depends upon whether true human understanding and democratic process comes to prevail over narrow group interests and partisan thinking; Unfortunately, certain Human Rights and Civil Liberities Organisations in our country and abroad have shown sympathy for a group of people whose only aim is to break India in the name of decentralization and autonomy. Most of their assessments and reports are based on avowedly partisan evidence. So much so that in some cases, blatant lies are projected under the garb of human rights violation details. These biased and one-sided reports serve as propaganda material for the anti-India forces and terrorists. In this process, a distorted picture about the human rights situation in India is being projected.

(D) Attempts to rationalise terrorism

Attempts have been made to draw a distinction in variety of terrorist violence involved in various parts of India and to rationalise terrorism. Aggrandised and monopolised academic scholarship and chorus of human rights activists lends its prestige and sophistication to this wasteful exercise in refinement and micro-analysis of terrorism in India. In their zeal to over-do the job, these so-called experts try to give contrived meaning to universally established concepts of “state sovereignty”, “rule of law” and other democratic norms. This art of “social science sorcery” has complicated the issue. As a result, the truth becomes a matter for disputation and, if need be, suppression. They seem to have forgotten the dictum that “a terrorist is a terrorist”.

The level of procedural due process manifested by a fact-finding mission has a direct correlation with the fairness of the mission’s report, as well as being an important factor in the reports’ credibility. In the field of human rights, the report of a mission which has conducted itself in accordance with a high standard of due process would carry far greater weight in the organs of international public opinion thereby increasing pressure on a state violating human rights to comply with international norms. Unfortunately, it has been generally observed that NGOs engaged in human rights activities have neither separately nor jointly articulated procedures for fact- finding to ascertain violations of human rights. Consequently, it is not possible to distinguish between “allegations” and “established facts” of human rights violations from their reports. In the context of ongoing terrorism, the task of these groups is very delicate, sensitive and important. In order that these groups have respectability and their reports have credibility, they have to conduct themselves fearlessly in such a way that the state and the people are convinced about their bonafides, as being genuinely concerned about protection of human rights free from biased political propaganda and political overtones. To ensure this, following suggestions are made:

(1) Organisations working in the field of human rights should include within all substantial factual reports an account of the methodology and procedures used in making the findings contained in the reports.

(2) The methodological note or the body of the report should contain the terms of reference.

(3) If witnesses were interviewed, the report should state who generally did the interviews and what were the circumstances of the interviews.

(4) Government statements or efforts to obtain government materials on the incident under scrutiny should be stated.

(5) The report should indicate what methods were used for ensuring the reliability of information received.

(6) The report should specify the national and international substantive legal norms, which it uses to assess the facts found.

(7) The report should separate the factual findings from any recommendations the organisation may wish to make.

(8) Lastly, the report should state what efforts, if any, were made or will be made, to obtain a government response to the report and any reaction forthcoming.

To conclude, it is submitted that when the issue juxtaposes the lives of innocent citizens and the possible curtailment of personal liberties we all cherish, the answers are not easy. Human Rights Organisations must handle the tangled web of facts, circumstances, perceptions and the situations more realistically. The tendency to be selective while choosing facts, opinions and aspects to fit pre- determined concepts must be avoided. This is the minimum imperative to establish their credibility.

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