Opinion Editorials, June 2012

 
Kashmir's Jalil Andrabi and China's Chen Guangcheng:

A Similar Path, but a Fork in the Road

By Ghulam Nabi Fai

Al-Jazeerah, CCUN, June 16, 2012

 
One of the darkest chapters of Indian judicial partiality was left hanging half closed and banging in the wind when Major Avtar Singh, the killer of internationally known human rights activist and Chairman of Kashmir Commission of Jurists, Advocate Jalil Andrabi, was found dead after he killed his wife and two children, and finally himself this past Saturday morning, June 9, 2012, in Selma, California. Avtar Singh, a fugitive from justice, who lived in the hot dry central California community, a suburb of Fresno, was clearly haunted by his past, a past that had seen the blood spilled of more than one man by his own hands. He had killed four others to hide the murder of Andrabi, and now he had killed his own family. 

In killing Jalil Andrabi, Avtar Singh certainly did not act on his own volition. He was only a major.   His act was no doubt a response to orders from above and occurred in a longstanding climate of impunity that the Indian army enjoys in Kashmir.   The Armed Forces Special Powers Act, which gives any Indian soldier the right in Kashmir to take a Kashmiri’s life under any circumstance, has enabled such a climate for decades.  And Jalil Andrabi had become a hated, despised man by the Army, a man dangerous to the status quo of continued murder and torture that had been taking place in Kashmir’s jails, interrogation centers and detention facilities for many years. 

Arshad Andrabi, Jalil Andrabi’s brother, has said that the real killers are still at large, and he is right.   The real killers are not just army officers but all those from the highest office in India on down through Parliament who had arranged his escape from Kashmir to Canada before he moved illegally to the United States, or looked the other way and refused to extradite him when California authorities notified India that they had their man.  They are guilty of maintaining murderous policies, defending hideous acts that take place, encouraging even more grotesque behavior by the mere act of covering up what does occur and failing to prosecute those who have used the law vindictively and without justifiable reason.  One wonders whether the government of India is in control of its own policies or is intimidated by the grip of a military industry that has its own agenda. Had the government acted in a timely manner, more lives would have been saved, and perhaps a new horizon in the Indian judicial system would have finally appeared.   Some say that Avtar Singh’s death was “poetic justice,” and perhaps in some small way it was, but it’s extremely difficult to see the death of his wife and children as anything but just another sad tragedy, and another great stain on the history and reputation of the world’s largest “democracy.”  Arshad Andrabi touched the heights of magnanimity when he said that he was extremely pained by the death of not only his brother but the deaths of the murderer’s own family as well.  This also symbolizes the compassion of not only Arshad but the heart and character of the Andrabi family.

Jalil Andrabi, his primary victim, had been a friend of mine.  His trip to Geneva in August 1995 shortly before his murder to attend a conference was at my invitation, as were other international engagements he had attended in Washington and elsewhere.  On one such occasion, we had traveled by car together, along with my wife, to attend a convention in Columbus, Ohio, in order to talk and exchange views intimately on various issues on which we shared an interest.  It was on this trip that I gained a much deeper appreciation for Jalil Andrabi’s character.   He was a man of deep compassion and vision, high intellect and deep judicial insight and had been personally responsible for bringing many human rights violations in Kashmir into the light of day.   
 
During the 47th session of the United Nations Sub-Commission on Human Rights in August 1995, Jalil Andrabi made two interventions, one on August 7, 1995, under agenda item 18, which was on the issue of ‘Freedom of Movement.’  On that occasion he had said, “Mr. Chairman, the Kashmiris are waging a legitimate struggle for achieving the exercise of their right of self-determination, and the atrocities which constitute war crimes forbidden under the Geneva Conventions and the Universal Declaration of Human Rights are being inflicted upon them only because of this struggle.  Therefore, besides, calling upon India to put an end to the crimes against humanity, it is necessary to compel India to allow the people of Kashmir an unfettered exercise of their right of self-determination under the UN auspices.” 

”The atrocities,” he said,  “which are perpetrated upon my people are not aberrations but rather integral components of a systematic policy. These atrocities are being perpetrated as a weapon of war in order to break the will of the people.”  
 
Jalil Andrabi also spoke under the agenda item, ‘The Administration of Justice’ on August 17, 1995 and said, “ The laws conferring and unrestricted and arbitrary powers on the armed forces continue to remain in operation in Jammu & Kashmir, with full impunity to the perpetrators of crimes against the humanity and violations of fundamental human rights, threatening the very existence of Kashmiri people.”
 
Advocate Jalil Andrabi knew firsthand the facts.  He had been documenting the human rights violations by taking information from victim’s families and witnesses. In personal conversations he had told me how very difficult it was for lawyers to meet with the detainees and how much they are under pressure, and he had also told me that because of his political views the Indian Army had often harassed him.  He knew that his life was on the line, in fact, and had spent a month in New Delhi just prior to his murder, hoping to escape India’s wrath. He had only returned to Kashmir to celebrate Eid with his family and friends.
 
It was in response to information he had gathered that in 1994 he filed a petition in Jammu & Kashmir High Court demanding greater access to prisoners.  The evidence he presented was substantial and his arguments convincing, and the High Court ordered that all district committees consisting of judicial police and medical authorities make regular visits to jails, detention and interrogation centers, and police stations all across the state. 
 
This was a huge victory. It brought the state government to its knees.  Once he had opened the floodgates, much more evidence of torture and other crimes became public and it was then, no doubt, that the Army wanted him dead. The target of guilt had been placed squarely on their backs, and there was no escape.  Many more cases of torture and other human rights violations became known.  
 
Jalil Andrabi was a Muslim but his compassion and love transcended all religious boundaries.  During his intervention in Geneva he said, “My people are intelligent, industrious and peace loving.  The ethical concept of human brotherhood beyond the bonds of closed religious groupings has always animated Kashmiris.”
 
During his visit to Geneva Jalil Andrabi met with more than a dozen United Nations experts, hundreds of members of NGOs, and various delegations representing different governments.  We also had a meeting with UN High Commissioner on Human Rights, Jose Ayala Lasso.  Jalil Andrabi was so convincing in his argument because he presented every detail with documentation and logic that I felt it would be helpful for the cause of Kashmir to invite him to the United States.  In Washington we had meetings with members of Congress, the State Department, the National Security Council and members of think tanks and human rights organizations.  Jalil Andrabi also spoke during the national annual convention of the Islamic Society of North America on Labor Day weekend, 1995, in Columbus, Ohio, which was attended by more than 20,000 people who came from all across America. 
 
I wanted to invite him again in 1996 to attend the United Nations Commission on Human Rights in Geneva, but unfortunately in March of that year, while he was returning home to Srinagar with his wife, the car was stopped, and he was taken into custody.  Twenty days later, his dead body was seen floating in the Jehlum River. His hands were tied, he had been shot, and his eyes were gouged out.  He had been tortured mercilessly, an inhuman brutality which can never properly be explained. 

Here in Washington, we approached the U.S. administration.  Department of State and the U.S. Congress. The spokesperson of the State Department, Mr. Nicholas Burns issued a statement on March 29, 1996, condemning the killing of Jalil Andrabi and called upon the government of India to conduct a full and transparent investigation into the circumstances surrounding Andrabi’s abduction and murder.  Mr. Burns expressed hope that Andrabi’s murderers would be quickly apprehended and punished.
 
Such a statement was also issued by the UN Human Rights Commissioner Jose Ayala Lasso condemning the murder and calling for an impartial investigation.  Various members of Congress wrote a joint letter to then Prime Minister P. V. Narasimha Rao of India on March 27, 1996 conveying their profound dismay at the death of Jalil Andrabi.  They asked that the Indian government thoroughly investigate this shocking murder and bring the perpetrators to justice. 
 
Members of Congress also wrote a joint letter to Secretary of State Warren Christopher on March 27, 1996 and said that Mr. Andrabi’s death was a shocking reminder of India’s brutal conduct in Kashmir.  They requested that the Secretary of State call upon our ambassador to India and raise this matter with the government of India.  They hoped that the Secretary of State would express their shock at this extrajudicial killing to his counterpart in India and call for a thorough investigation to bring the killers to justice.  Amnesty International also issued a statement on March 28, 1996 condemning the killing and asked for an impartial investigation.
 
Unfortunately despite this condemnation at a global level, the government of India not only did not punish the perpetrator but did not even arrest him.  When the Jammu & Kashmir High Court found Major Avtar Singh to be the person who killed Jalil Andrabi, the High Court ordered his arrest in 1997.  The judge who did so was punished by immediately being transferred from Kashmir to India.  In addition, because Indian army personnel have full immunity in Kashmir, the government of India arranged a passport despite the court order for his arrest, and facilitated his exit from India to save him from any legal proceedings. 
 
In 2011, the Selma police in California informed the government of India that they had Avtar Singh in custody and were aware of his fugitive status, a discovery that was made through Interpol when his wife filed a domestic abuse complaint against him.  India failed to respond to this notice.  He was never extradited.  The U.S. Immigration Service could have deported him, but again did not, refused comment when contacted and clearly did not act.  Avtar Singh is reported to have said at the time, “The law here is on my side. The case against me will not stand in court here.’’ The writer interviewing him, Hartosh Singh Bal, asked him, “what if the extradition does go through? He does not hesitate: ‘There is no question of my being taken to India alive, they will kill me.’  Who will, I ask him. ‘The agencies, RAW, military intelligence, it is all the same.’ ‘If the extradition does go through, I will open my mouth, I will not keep quiet.’” [Source: http://www.openthemagazine.com/article/nation/the-man-who-knows-too-much ]
 
The foundation of America’s greatness was established long ago in the Bill of Rights and its underlying recognition of human rights.  Whenever America applied these principles, it set the bar for the highest moral standing in the global community.  But unfortunately today America’s moral weight has foundered upon unnecessary war like Iraq and it seems to worry more about a corporate agenda of business deals and trade than it does human rights. India is being encouraged to take over America’s battle in Afghanistan and restrain the encroachments of China.  Global hegemony takes precedence.  The pot can no longer call the kettle black.  It fails to appreciate or uphold those golden values of universal human rights, which it was forced to acknowledge when the blind advocate, Chen Guangcheng in Beijing came knocking on our embassy door.  Obviously such values do not apply to Kashmir.  The path of justice met a fork in the road.  
 
Yet, paradoxically, it is important to note that it was our State Department which in 1995 not only condemned the murder of Jalil Andrabi but asked for an impartial investigation and had hoped the murderers would be quickly apprehended and punished.  It was kind of them to say so.  But apparently, it doesn’t take much moral strength or political will to utter mere words.  Sixteen years later, the killer had not been apprehended, extradited, deported or punished.  We hope now that this duplicity in the exercise of justice will prick the conscience of our policy makers and motivate them to end these crimes against humanity.  Their justice is awaited. 
 
Dr. Fai Nabi can be reached at:  [email protected]
 

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Dear Mr. Editor,
 
I am sending you this article, “Self-Determination and the Issue of Kashmir” for the consideration of publication. Please do not hesitate to call me if you have any question.
 
With profound regards,
 
Yours sincerely,
 
 
 
Ghulam Nabi Fai
 
**********************************
 
Self-Determination and the Issue of Kashmir

By Dr. Ghulam Nabi Fai
 
 
The evolution of the right of self-determination has been one of the great normative narratives of the twentieth century. It was part of the visionary contributions of President Woodrow Wilson, who despite a deep-seated conservatism, seemed to have an uncontrollable tendency to give credibility to normative ideas that contained implications that carried far, far beyond his intentions. Ever since the words of self-determination left the lips of President Woodrow Wilson, the wider meaning of the words has excited the moral, political and legal imagination of oppressed peoples around the world. Although, self-determination even now, decades later, still seems to be a Pandora’s Box that no one knows how to close, and despite concerted efforts there is little likelihood that the box will be closed anytime soon.

All people appreciate the concept of the right of self-determination. The self-determination of peoples is a basic principle of the United Nation Charter which has been reaffirmed in the Universal Declaration of Human Rights and applied countless times to the settlement of many international disputes. The UN celebrates self-determination in Article 1.2 as a major objective of its Charter.  Self-determination has been enshrined in countless international documents and treaties.  It is guaranteed under the Article 1 of International Covenant on Political and Civil Rights (ICPCR) and Article 1 of International Covenant on Economic, Social and Cultural Rights (ICESCR). 

The experience teaches that certain factors militate in favor of its exercise:  an oppressive ruler; ugly and sustained human rights violations; military support from a foreign country or multinational organization; unwavering resistance; a common culture, history, language, and religion; democracy within the ranks of an oppressed peoples lead by a towering figure on the national or international stage.
 
From some perspectives, the decolonization process has had some successes in the United Nations machinery. However, the entire process of decolonization was not all-smooth sailing. There were many instances when those states still intent on holding on to their colonies put up a strong resistance against having their dominions stripped from them but the calls for independence - in many cases accompanied with well-motivated insurgent movements - brought home to the international community the importance of achieving self-determination in order to ensure peace and security. 
 
In modern international law, self-determination is considered a collective "peoples' right."  It is generally defined as the right of a people not only to preserve its language, cultural heritage and social traditions, but also to act in a politically autonomous manner and -- if the people so decide -- to become independent when conditions are such that
its rights would otherwise be restricted.
 
Slovenia, Croatia, Bosnia and Herzegovina, Montenegro and Kosovo exercised self-determination by seceding from Yugoslavia. Ireland achieved self-determination by revolting against Great Britain. Namibia justified self-determination by force of arms against South Africa.  The Southern Sudan did the same to obtain independence from Sudan. East Timor commanded strong international sympathy and help from the international community in asserting self-determination because of Indonesia’s repressive rule. The United States earned self-determination by defeating the British in the Revolutionary War.  India and Pakistan attained self-determination by a combination of British weakness and exhaustion from World War II, a growing international consensus against colonial domination, and the political and diplomatic skills of the likes of Mahatma Gandhi and Mohammad Ali Jinnah. 

Kashmir may present the strongest facial case for self-determination which has been nevertheless denied. The applicability of the principle of self-determination to the specific case of Jammu and Kashmir has been explicitly recognized by the United Nations.  It was upheld equally by India and Pakistan when the Kashmir dispute was brought before the Security Council in 1948.  Since, on the establishment of India and Pakistan as sovereign states, Jammu and Kashmir was not part of the territory of either. The two countries entered into an agreement to allow its people to exercise their right of self-determination under impartial auspices and in conditions free from coercion from either side.  The agreement is embodied in the two resolutions of the United Nations Commission for India and Pakistan explicitly accepted by both Governments. It is binding on both Governments and no allegation of non-performance of any of its provisions by either side can render it inoperative. These resolutions do not detract from the binding nature of that agreement as far as the obligations of these two parties are concerned.  But they do imply recognition of the inherent right of the people of Kashmir to decide their future independently of the contending claims of both India and Pakistan.
 
It is commonly thought that the United Nations resolutions limited the choice of the people of the State regarding their future to accede to either India or Pakistan.  Though understandable, the impression is erroneous because the right of self-determination, by definition, is an unrestricted right.  By entering into the agreement, India and Pakistan excluded, and rendered inadmissible, each other's claim to the State until that claim was accepted by the people through a vote taken under an impartial authority.  They did not, as they could not, decide what options the people would wish to consider.  No agreement between two parties can affect the rights of a third: this is an elementary principle of law and justice which no international agreement, if legitimate, can possibly flout.
 
To put it in everyday language, it was entirely right for India and Pakistan to pledge to each other, as they did, " Here is this large territory; let us not fight over it; let us make its people decide its status."  But it would be wholly illegitimate for them to say, " Let one of us get the territory. Let us go through the motions of a plebiscite to decide which one".  That would not be a fair agreement; it would be a plot to deny the people of Kashmir the substance of self-determination while providing them its form.  It would amount to telling them that they can choose independently but they cannot choose independence.  It would make a mockery of democratic norms.
 
It must be pointed out that an independent Kashmir would not be a Kashmir isolated from India and Pakistan.  On the contrary, it would have close links, some of them established by trilateral treaty provisions, with both its neighbors.  Indeed, it would provide them a meeting ground.  In this respect, Kashmir could make a contribution to the stabilization of peace in South Asia which no other entity can.
 
Dr. Fai can be reached at: [email protected]
 

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