“O you who have believed, be persistently standing firm in justice, witnesses for Allah, even if it be against yourselves or parents and relatives. Whether one is rich or poor, Allah is more worthy of both….” (Al-Quran 4:135).
BEWARE! Whoever is cruel and hard on a non-Muslim minority, curtails their rights, burdens them with more than they can bear, or takes anything from them against their free will; I (Prophet Muhammad) will complain against the person on the Day of Judgment.” ‘There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.’-Charles-Louis de Secondat. French philosopher.
“The 2023 ‘World Day of Social Justice’ provides an opportunity to foster dialogue with member States, youth and relevant UN institutions and other stakeholders on actions needed to achieve social justice by strengthening the social contract that has been fractured by rising inequalities, conflicts and weakened institutions,” excerpts from the concept paper of ‘World Day of Social Justice, February 13, 2023.’ The international community has recognized that national institutions such as the judiciary are important to ensure the promotion and protection of human rights. It often serves as effective supplements and correctors of State and non-State actors when the organ will not police itself.
While the United Nations has articulated declarations supporting the rights of vulnerable populations, there is a pressing need for increased global commitment from governments, NGOs, businesses and UN agencies to embed peace, justice and human dignity in the processes of internationalization and globalization. These values should not be sidelined as societies engage in global trade, supply chaining and outsourcing. Emphasizing freedom and justice over political and economic considerations, there should be a willingness to terminate trade agreements with nations tolerating severe human rights violations. It is incumbent upon all actors in the international arena to safeguard peace, justice and human dignity. Therefore, global ethics must be seamlessly integrated into the fabric of globalization.
Adopted at the ‘Seventh United Nations Congress’ on the ‘Prevention of Crime and the Treatment of Offenders’ in Milan from August 26 to September 6, 1985, and subsequently endorsed by General Assembly resolutions 40/32 on November 29, 1985, and 40/146 on December 13, 1985, the Charter of the United Nations reflects the global determination to establish conditions conducive to maintaining justice and fostering international cooperation for the promotion of respect for human rights and fundamental freedoms without discrimination. The resolution underscores the formulation of basic principles aimed at assisting Member States in securing and promoting the independence of the judiciary. These principles, initially conceived for professional judges but applicable to lay judges where relevant, should be respected by governments within their national legal frameworks. Moreover, they ought to be brought to the attention of judges, lawyers, members of the executive and the legislature and the public at large.
In the 1994 ‘Compilation of International Instruments’ on human rights, a significant portion addresses individual rights within the administration of justice. This focus is crucial as the potential for systematic human rights violations is particularly high when carried out under the authority of the State. Standards for safeguarding individuals detained by authorities are outlined in the section established by Resolutions 663 C (31 July 1957) and 2076 (13 May 1977). Additional guidelines are found in the ‘Body of Principles’ adopted in Resolutions 43/173 (9 December 1988), 39/46 (10 December 1984), and 47/133 (18 December 1992). The multitude of these resolutions underscores the gravity of the crimes they aim to address, serving as a guide for the United Nations human rights machinery in taking preventive action. Notably, Article 3 from UN General Assembly Resolution 3452 (1975) unequivocally states that “Exceptional circumstances such as a state of war or threat of war, internal political instability, or any other public emergency may not be invoked as a justification for torture.”
Article 4 of the International Covenant on Civil and Political Rights (ICCPR) adopted by the General Assembly vide resolution No. 2200 A (XXI) of December 16, 1966 mandates that even in case of officially proclaimed public emergency, the state’s parties to the said covenant cannot derogate from the fundamental human rights and safeguards including the inherent right to life and subjection to torture or to cruel, inhuman or degrading treatment or punishment. The fundamental human rights outlined in the Geneva Convention, including those protected by common Article 3, are non-derogable. This means they must be upheld even during international conflicts, non-international conflicts, internal disturbances, and foreign occupation. The Vienna Declaration and Programme of Action urge states to repeal legislation that fosters impunity for serious human rights violations and advocate for the prosecution of perpetrators. This call establishes a strong foundation for the rule of law.
Now, let us analyze the conditions of administration of justice in India-occupied Kashmir where the justice system has failed the hapless population of the State. According to the Human Right Watch/Asia Report and entitled, ‘India’s Secret Army in Kashmir,’ “Under pressure from the authorities, the courts routinely grant government official extended time to respond to petition. Detainees who have been held for up to one year have not been granted access to legal counsel…Fearing reprisals, judges have been reluctant to challenge the actions of the security forces.”
Dr Nazir Gillani, President of the ‘Jammu and Kashmir Council for Human Rights,’ an accredited NGO with the United Nations, asserts that the Indian justice system, including courts and the process for human rights claims, falls below international standards. Despite the proclaimed independence of the Indian judiciary, Dr. Gillani highlights its influential role in facilitating the Indian government’s control over India-occupied Jammu and Kashmir, stifling dissent in the region. He points to a troubling breakdown in the legal framework in India- occupied Jammu and Kashmir, violating fundamental principles of international human rights law. Litigants within the Kashmiri court system routinely seek redress for human rights violations by security forces, encompassing assault, torture, rape, extrajudicial killing and arbitrary detention. Given India’s commitment to international human rights treaties, Dr. Gillani calls for the implementation of measures by the Indian government to safeguard and fortify an independent and impartial judiciary, along with an independent legal profession. (To be concluded)
—The writer is the Secretary General, Washington-based World Kashmir Awareness Forum.
Email: [email protected]
views expressed are writer’s own.
