The Office of the High Commissioner for Human Rights (OHCHR) issued its first ever report on Kashmir, recommending that the United Nations Human Rights Council establish a Commission of Inquiry (COI) into human rights violations. The Indian government rubbished the report, calling it “fallacious, tendentious and motivated,” a compilation of “largely unverified information” meant to build a false narrative.
This knee-jerk emotional reaction by the Indian government is a wasted opportunity — both to expose the serious methodological and analytical failings by Zeid Ra’ad Al Hussein and to improve upon its record in Kashmir.
{mosads}The OHCHR became concerned after the July 2016 killing by Indian troops of Burhan Wani, leader of the Hizbul Mujahideen. The OHCHR describes the Hizbul Mujahideen as an “armed group,” a gross euphemism given that the United States has designated it a “foreign terrorist” organization. The group has claimed credit for numerous killings, and is reported to have ties to al Qaeda and terrorist groups in Pakistan and Afghanistan.
Following Wani’s death, the OHCHR sought “unconditional access” to Kashmir. Unsurprisingly, India declined — and without such access, common sense should have dictated that the OHCHR focus on other, more pressing concerns. It also is not clear that the commissioner’s mandate authorizes him to intrude on a peaceful sovereign state to investigate a terrorist’s death. Nonetheless, the commissioner decided to conduct “remote monitoring of the human rights situation.”
The methodology used is a “reasonable grounds” standard of proof, meaning the OHCHR needed to obtain “a reliable body of information” about an incident such that a “reasonable and ordinarily prudent person” would conclude it had occurred. But the report fails to show this standard was met. Instead, the OHCHR offers a random list of vague claims from various groups without any assessment of veracity. Further, the report gives insufficient credence to contrary official documentary evidence. Frequently, the report’s conclusions do not conform to what “a reasonable person” might conclude from assessing the facts.
For example, the report notes that the Kashmir government reported 51 people were killed between July 8, 2016, and Feb. 27, 2017. Why doesn’t the report give this figure any weight?
The report notes that in July 2016, “Indian security forces used excessive force that led to unlawful killings and a very high number of injuries” — stating this as fact. But the source document has no support for the claim; it lists names and details of deaths, but a list of names doesn’t tell us that the force used was excessive. A detailed investigation would be necessary to make such a finding of fact.
The OHCHR seems to assume that security forces are engaged in killings and disappearances with impunity. The report acknowledges that allegations against security forces are being investigated. For example, the report notes that in January 2017, the chief minister (CM) established “district-level investigation teams … for carrying out time-bound investigations into all cases of civilian deaths in the context of protests.” On Jan. 27, 2018, following two civilian deaths in stone-throwing incidents and large protests, the CM ordered a magistrate-level inquiry. In a March 4, 2018, instance, after four civilians and two militants were killed in Shopian, an investigation was instituted following political protests.
These incidents actually contradict the conclusion canvassed by the OHCHR. They illustrate that people are free to raise complaints against human rights abuses and might succeed in obtaining independent investigations.
Perhaps the strongest portion of the report is its criticism of Indian troops’ use of the pellet-firing shotgun, which disperses pellets over a wide area and may be unsuited for accurate use. India should accept this finding and adopt alternatives that do not use indiscriminate force.
There is no precedent for the report’s recommendation to establish a COI in India, similar to inquiries into horrific human rights situations in North Korea, Syria, Burundi and Eritrea. India is a democratic country noted for its judicial independence, independent press and strong constitutional protections. There is no civil war, internal/international armed conflict, or massive displacement of people. The OHCHR report also fails to mention that Kashmir has experienced terrorism for decades, and all of the incidents are under investigation.
As with any major terrorist conflict, human rights violations are an unfortunate reality. The report does acknowledge these violations are met with accountability mechanisms. In addition, at the national level, the Indian Supreme Court has well-established human rights jurisprudence that mandates magisterial inquiries into encounter killings and custodial deaths.
Despite its failings, the U.N. report is a wake-up call for India, which should use this opportunity to improve before a future report causes embarrassment. India’s constitutionally-protected human rights system is its best defense against terrorists. By expanding its access to ordinary Kashmiris and fostering accountability for violations, India could win the moral high ground.
Sandeep Gopalan is a professor of law and pro vice chancellor for academic innovation at Deakin University in Melbourne, Australia. He previously was co-chairman or vice chairman of American Bar Association committees on aerospace/defense and international transactions, a member of the ABA’s immigration commission, and dean of three law schools in Ireland and Australia. He has taught law in four countries and served as a visiting scholar at universities in France and Germany.