Mirror writing of responsibilities

( March 25, 2012, Hong Kong, Sri Lanka Guardian) The statement issued by the External Affairs Ministry, 'explaining' the country's position regarding the United Nations' resolution on promotion, reconciliation and accountability in Sri Lanka is worth an analysis from the Indian perspective. Contrary to the misgivings widely published throughout the country, India's affirmative vote at the UN yesterday is not a "foreign policy disaster". It is also misquoted widely as the result of the "pressures from coalition partnership". Those who express such opinions fail to understand and appreciate what it implies by 'state responsibility' in international human rights law and the true sense of democracy.

Painting: South Block, Ministry of External Affairs, Government of India

In that, those states that supported the UN resolution have done nothing more than reaffirming their commitment to universal human rights norms, that 193 states have pledged by joining the only world body constituted to protect, promote and fulfil human rights, the UN. Those who consider policies should override a state's universal obligation under the Universal Declaration of Human Rights, fails to appreciate the legal and moral obligation of a state under international human rights law. Policies must concur to the UDHR and not the other way around.

On the Sri Lankan front, a resolution of the nature would not cast a binding obligation upon Sri Lanka, beyond its 'state party' obligations as a member of the UN. Indeed the resolution casts a shadow upon the island nation's reputation, which is the result of Sri Lanka's demonstrated non-willingness to account for - read investigate and prosecute if necessary - alleged war crimes. The country is a wounded nation, with deep hurting injuries that it sustained from the decades-long civil war, which it has successfully terminated. It must however be acknowledged that the governments that held fort in Colombo over the years, including the political opposition to such governments, have played an equally important role in precipitating and sustaining the civil war.

Human rights violations are unfortunately a collateral consequence in any war. To account for it, is however the responsibility of the parties (states) engaged in the war. Voluntarily undertaking such a task shows a state's maturity, a count on which many states, including the United States that mooted the resolution does not have an impeccable record. The resolution is nothing more than an opportunity for Sri Lanka to jump start vital reconstruction, reconciliation and accountability process in that country.

What is important however is the spirit of the resolution, most importantly for India as the only member in the UNHRC from the Asian regional group that supported the resolution and further chose to publish an explanation, as to why it supported the UN resolution. The position that India has taken, 'that the primary responsibility for the promotion and protection of human rights lies with the states', squarely applies to India. The records however show that the country has not only failed to fulfil its well based understanding of this cardinal component of state responsibility, but has been denying it to its citizens, systematically.

Conditions within the justice apparatus in India do not meet normative and practical standards required to fulfil this responsibility. One could enumerate a few thematic examples, including but not limited to the endemic practice of torture; inability of the state agencies to investigate crimes; the incapacity of the prosecutions to undertake timely and quality prosecutions and the decades long delays in the adjudication process. In fact the state of affairs within the criminal justice apparatus is so wilted that today those who challenge the unacceptable status quo risks death.

The murder of Mr Narendra Kumar Singh, in Madhya Pradesh, allegedly at the behest of the illegal mining mafia and the suicide of yet another police officer, Mr P G Haridath, in Kerala, where the officer accused his colleagues and a former judge as responsible for his death in his suicide note, are two recent examples reported from the country in this month. It is reported that in both cases individuals at very high positions of power are suspected for causing the deaths. In Madhya Pradesh at least, two members of the ruling political party in the state, the Bharatiya Janata Party, are arrested for Singh's murder. The illegal nexus of the criminal syndicates with the ruling elite, shoddy religious leaders and the rich is a cruse in India.

In instances like this and in daily practice, the country's criminal investigation apparatus lacks the resources and skills to investigate a crime, in a manner fitting a modern democracy. The Asian Human Rights Commission and its partner organisations have repeatedly observed that India has consistently failed to address this urgent requirement. Despite the fact that in the near future a citizen may be able to post a first information statement at a police station through the internet as claimed by the Union Home Minister, the fact remains that such advanced capacity to the citizen made available at every police station of the country would be of no use, if the police is damagingly under-resourced, ill-equipped and lack the skills to investigate the complaint. What point is a complaint without the possibility of proper investigation?

Most importantly due to this and also due to several other factors like the lack of understanding that torture is a crime against humanity, investigating agencies resort to torture to investigate cases. The case, which deceased police officer Haridath was investigating, is concerning a case of brutal custodial torture and resultant death in custody. The details of the case reveal that even police officers in the rank of the Additional Inspector General of Police have no means to investigate a crime, other than resorting to torture. The argument that in India criminal investigations begin and end with a confession extracted by brutal torture thus gains considerable weight. The absence of a legal framework against torture completes the vicious architecture of practice of a crime and impunity.

State responsibility concerning human rights does not end with addressing torture. The concept also mandates the inalienable right of a victim to seek and obtain redress for human rights violations on all fronts. This is not a notional extension of reparation for human rights violations, but the enlargement of one of the fundamental rights of a victim, to know the truth.

Draconian legislations like the Armed Forces (Special Powers) Act, 1958 creates an environment of statutory rebuttal of a victim's right to know. According to this law, an armed officer of the state could shoot to kill anyone whom the officer suspects as a threat to the officer's mission in places like Manipur and Jammu and Kashmir, where this law is widely used. Statutory denial of investigations and prosecutions prohibits an aggrieved person's fundamental right to know the truth. Additionally, the law promotes the culture of violence and impunity, two important concerns required to be brought to an end, in order to ensure an environment for reconciliation through a political process, a principle that India has yesterday encouraged Sri Lanka and the rest of the world to follow.

On a similar footing if consultation, rehabilitation and resettlement are important aspects that Sri Lanka should follow to ensure justice in that country, what justification does India have in denying the same to its own citizens? Thousands of families that have been thrown out from their centuries-old habitats, for the state to undertake development projects like the mega dams or for bauxite and other ores mining throughout India, are neither consulted in the process or rehabilitated and resettled satisfactorily. A statement by India that contradicts its actions to what it preaches has no value. It is an act of pretence.

The government's position reflected in the External Affairs Ministry's statement is a mature articulation of what it means by promotion, reconciliation and accountability. The "shared quest for freedom and dignity" as claimed in the statement must not remain in print. Securing the "citizens a future marked by equality, dignity, justice and self-respect" is every Indian's right, just as it is for every one else in the world.

In that respect the statement by India is mirror writing. What that matters is who is willing to read it.

| A Statement issued by the Asian Human Rights Commission