Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy by Steven R. Ratner and Jason S. Abrams; Oxford University Press; pages 435, £16.99.
International Law and the Rights of Minorities by Peter Thornberry; Clarendon Press, OUP; pages 451, £25.
International Law by Antonio Cassese; Oxford University Press; pages 469, Rs.645 (in India).
OF all the democracies in the world India has the worst record in the matter of international accountability for human rights. It has refused to ratify the Refugee Conventions; the Protocols to the 1949 Geneva Conventions, concluded under the auspices of the International Committee of the Red Cross; the Torture Convention and the Rome Statute of the International Criminal Court.
During the Emergency, India's Permanent Representative to the United Nations said, on June 7, 1976: "The protection of fundamental human rights is the concern of each sovereign state and is a matter which is essentially within the domestic jurisdiction of member-states of the U.N." The spokesperson of the Ministry of External Affairs (MEA) was instructed to say on April 22, 2002, that "India does not appreciate interference in our internal affairs." Finnish Foreign Minister Erkki Tuomiojia's interview was sharply criticised: "Utilisation of the Indian media... to make public statements in order to pander to their domestic lobbies." This was obviously aimed at the British. Finland does not have a Gujarati diaspora. But this censure is very much applicable to India's own utterances on Sri Lanka, Fiji and elsewhere as, indeed, is the spokesperson's angrier statement on April 24. Foreign countries and missions were accused of "injecting themselves into the highly politically charged internal debate in the country and creating an impression of playing a partisan role" - the pot calling the kettle black.
Three years ago, on January 22, 1999, Minister for External Affairs Jaswant Singh became "furious" when German Ambassador Heinrich-Dietrich Dieck-man conveyed his concern about the attacks on Christians. On January 12, the Ambassador had characterised the attacks mildly as "an internal affair with international implications". His government had instructed him to raise the matter.
His meeting with Jaswant Singh was held soon after the launch of the Minister's book Defending India in which he wrote: "While Mrs. Gandhi's support for Sri Lankan Tamil aspirations was correct and justified, her policy of materially supporting Tamil militant separation was wrong" - a sound distinction.
Section 405 of the U.S. International Religious Freedom Article 1998 lists 15 forms of protest against such wrongs, ranging from "a private demarche", "an official public demarche" and "a public condemnation" to sanctions. The first Annual Report under the Act revealed that on five occasions (from October 22, 1998 to February 22, 1999) U.S. officials had discussed with Indian leaders attacks on Christians in India. U.S. Ambassador Richard Celeste met Union Home Minister L.K. Advani (October 22) and even the chiefs of the Bharatiya Janata Party (November 6) and the Vishwa Hindu Parishad (January 12).
Three Attorneys-General of India were grilled by the U.N. Human Rights Committee - on March 28-30, 1984; March 26-27, 1991, and July 24-25, 1997 - on India's observance of human rights. This body is set up by the International Covenant on Civil and Political Rights to which India is a party. India is bound to file reports on its enforcement of the Covenant. The committee examines them closely, asks questions and demands answers.
The U.N. General Assembly adopted in 1992 a Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. In December 1996, the Special Rapporteur appointed by the U.N. Human Rights Commission, Abdel Fattah Amer, visited India and reported on "the situation of" Muslims, Christians and Sikhs.
India freely comments on other countries. Jaswant Singh's statement on Fiji in the General Assembly on September 19, 2000, demanded restoration of the rule of law and end to racial discrimination. Annual Reports of the MEA from 1987-1988 to 2001-2002 record India's exertions on Fiji. Indian expressions of concern on the lot of the minorities in Bangladesh, Pakistan and Sri Lanka are well known. In the mid-1980s a demarche was made to Malaysia on Hindu temples there. Wrath on foreign comments on the human rights situation in India is utterly inconsistent with this record.
It is now universally accepted in international law that violation of human rights is a matter of international concern. The MEA's Canutian warnings will not stem the tide of protests which the Gujarat carnage has provoked. The European Union has not singled out India for criticism. In 2000 it came down against Austria because Joerg Haider's pro-Nazi Freedom Party entered the government. Narendra Modi is far worse than Haider. He is a practising Nazi.
The technique is a familiar one and it has worked on occasions - impute motives to critics; complain of hostility and violation of India's sovereignty; work up synthetic anger and smile in secret as "regrets" follow. On January 24, 1999, President K.R. Narayanan said that the Staines murders "belonged to the world's inventory of black deeds". Far worse happened in Gujarat. Can the world be asked to ignore that? Atal Behari Vajpayee had no qualms about peddling the Modi line on the Gujarat carnage to the international media in Singapore on April 9: "The riots have been brought under control. If at the Godhra station the passengers of the Sabarmati Express had not been burnt alive, then perhaps the Gujarat tragedy could have been averted. It is clear there was some conspiracy behind this incident."
The BJP's spokesman V.K. Malhotra criticised (April 26) the use of the word "genocide" to describe the Gujarat carnage. Article II of the Genocide Convention (1948) says: "Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious groups, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the groups; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;..." India is a party to this Convention.
These three books are most instructive and make a timely appearance. They show that the government's stand on international concern about the fate of minorities in India is untenable and retrograde. Jason S. Abrams is a Legal Officer with the Office of Legal Adviser of the U.N. Steven R. Ratner is Professor of Law at the University of Texas School of Law. Requested in 1994 by the United States Department of State to write a brief study on the legal options for bringing to justice the Khmer Rouge officials who governed Cambodia in the late 1970s, they found no comprehensive analysis of this area of contemporary international law. They undertook to study the entire issue of accountability first, and only then reached conclusions about the historical case at issue and commenced work on a book for a larger audience; a one-volume treatment of the field as a discrete subject, one integrating international human rights law, international humanitarian law, and international criminal law, and considering the broad range of mechanisms available for holding individuals accountable. This second edition came after only three years, thanks to the speedy growth of the law.
The book is in three parts. One traces the evolution of the law of individual accountability for human rights abuses. It analyses the definition of genocide; "crimes against humanity"; war crimes; torture; forced disappearances and related offences in international law.
Another discusses mechanisms for accountability - the Nuremberg Tribunal and the International Criminal Tribunals for Rwanda and for the former Yugoslavia. The atrocities of the Khmer Rouge form the subject of a separate part. In 21 appendices the texts of all the pertinent Conventions and Statutes are reproduced. Narendra Modi would be ill-advised ever to go abroad.
Peter Thronberry, a Senior Lecturer in Law at the University of Law, has written able monographs on the subject for Minority Rights Group in London. His is a definitive work on the status of minorities in international law today. They enjoy three basic rights - the right to existence; the right to preserve their identity and the right not to be discriminated against. Appendices record the march of law since the Polish Minorities Treaty (1919). The law picked up speed under the U.N.
Professor Antonio Cassese, former President of the International Criminal Court for the former Yugoslavia, has produced a textbook on international law for law students; but journalists and students of politics will also find it useful. It is concise, comprehensive and written lucidly. A case he records deserves to be cited fully. In 1933 Franz Bernheim complained to the Council of the League of Nations about breaches by Germany of the German-Polish Treaty of 1922 protecting minorities in Upper Silesia (at the time belonging to Germany); in particular he insisted on the fact that the anti-Jewish laws promulgated in Germany in 1933, and by virtue of which he (like all Jewish employees) had been sacked by a German firm, were contrary to the Treaty.
The German delegate asked that the complaint be dismissed because Bernheim had no link with Upper Silesia. The Polish delegate noted that admittedly from a formal point of view the Council could only deal with the fate of Jewish minorities in Upper Silesia. Nevertheless all members of the Council had at least a moral right to make a pressing appeal to the German government to ensure equal treatment for Jews in Germany. He wrapped up his eloquent speech by stating that "a minimum of rights must be guaranteed to every human being, whatever his race, religion, or mother tongue."
This was in 1933. A committee of Jurists was appointed. The Council adopted a report inviting Germany to bring the violations to an end. Germany ignored the Council's exhortation.
A few months later, the question of whether in every modern civil state all citizens ought to enjoy equal treatment came up before a Committee of the League's Assembly. Germany insisted that this was an internal matter. Shortly thereafter, on October 14, 1933, Hitler announced Germany's withdrawal from the League of Nations because international censures had put Germany in an "undignified" position.
Seventy years later Vajpayee, Narendra Modi & Co. respond in the same spirit. But, as these works establish, international law on minorities has become more explicit and the world has become a global village. Europeans drag their own country to the European Court on Human Rights at Strasbourg. It is not unpatriotic to complain to international forums about violations of human rights in one's country. Nor is it improper for foreign missions to report and their governments to comment on these violations in India.