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EFSAS Commentary

OHCHR Report on Kashmir: ‘Remote Monitoring’ fraught with serious methodological and analytical flaws


The Office of the United Nations High Commissioner for Human Rights (OHCHR) on 14 June 2018, released its first ever report on Jammu & Kashmir titled 'Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan'. This 49-page report of the High Commissioner for Human Rights Zeid Ra'ad Al Hussein displays a pronounced pro-Pakistan bias in its assessment of the human rights situation on the two sides of the Line of Control. While being unfairly and unreasonably critical of India’s human rights record, it glosses over the cross-border terrorism being perpetrated by Pakistan in Jammu & Kashmir that India is defending itself against. In the absence of such terrorism exported to India by Pakistan, the OHCHR would in all likelihood not have the occasion to even refer to Jammu & Kashmir, let alone prepare lengthy, motivated reports on it. 

The OHCHR report has serious methodological, factual and analytical shortcomings that render its correctness, neutrality, and above all motives, highly dubious. The timing of the report, with Al Hussein being at the twilight of his controversial and often divisive tenure, the narrow time-frame that the report covered, the appalling use of inappropriate terminology that contradicts that used in common UN parlance, and the indirect, unverified and incredible basis on which serious inferences have been loosely drawn raises serious questions about not only the OHCHR but also the integrity of Al Hussein, who authored the report. It is pertinent to point out that the report was not that of the United Nations Human Rights Council (UNHRC) but of the Office of the High Commissioner. This is significant as reports suggest that Al Hussein had not been mandated by the UNHRC to undertake any monitoring of Jammu & Kashmir, and that he was primarily motivated by the desire to seek the limelight prior to fading into oblivion in August, when he demits office. These reports are borne out by the fact that at the Universal Periodic Review (UPR) at the UNHRC as recently as in May 2017, member countries had been supportive of India’s human rights record. 

The Government of India while rejecting the report questioned "the intent in bringing out such a report". A spokesperson for the government informed that "our protest and views in the matter have been conveyed unequivocally to the Office of the High Commissioner for Human Rights. We are deeply concerned that individual prejudices are being allowed to undermine the credibility of a UN institution". The government described the report as "fallacious, tendentious and motivated" and a "selective compilation of largely unverified information" that is "overtly prejudiced" and seeks to build a false narrative. It stressed that "the report violates India’s sovereignty and territorial integrity. The entire state of Jammu and Kashmir is an integral part of India. Pakistan is in illegal and forcible occupation of a part of the Indian state through aggression. We have repeatedly called upon Pakistan to vacate the occupied territories. The incorrect description of Indian territory in the report is mischievous, misleading and unacceptable. There are no entities such as Azad Jammu and Kashmir and Gilgit-Baltistan". It underlined that terrorism was the most "egregious violation" of human rights and yet the authors of the report had conveniently ignored the pattern of cross-border terrorism emanating from Pakistan and territories under its illegal control. "Cross-border terror and incitement is aimed at suppressing the will of the people of Jammu and Kashmir, disrupting its political and social fabric and undermining India's integrity", it emphasized. "The motivated report deliberately ignores that fundamental rights and freedoms guaranteed under the Constitution to every Indian citizen, including in the state of Jammu and Kashmir, are protected also by an independent judiciary, human rights commissions, free and vibrant media and an active civil society", it averred. 

That the report is seriously flawed is evident from even a cursory perusal of its Executive Summary. A more thorough examination reveals the leaning and prejudices of the author, as also his disregard for facts and history. To begin with, any serious observer of Jammu & Kashmir would find the choice of the starting point of the OHCHR’s first ever report on the region, the 2016 killing of Hizbul Mujahideen (HM) terrorist Burhan Wani by Indian security forces, inexplicable and irrational. They would contend that the biggest violation of human rights in Jammu & Kashmir, the one that has had the most profound and enduring impact on its people, was the violent and illegal invasion of Jammu & Kashmir, in violation of a signed 'Standstill Agreement' with the legal ruler, and subsequent occupation of part of the erstwhile princely state in 1947 by Pakistan. It is an indubitable fact that Jammu & Kashmir had chosen to accede to India in 1947 on its own volition, under a legally binding 'Instrument of Accession' under the provisions of the Indian Independence Act 1947. In legal and constitutional terms, the accession of the State of Jammu & Kashmir to India on the basis of the ‘Instrument of Accession’, completely excludes Pakistan, which manifests itself as a self-styled protector of the rights of the people of Indian Administered Jammu & Kashmir while it illegally administers almost half of the princely state of Jammu & Kashmir. Hence, Pakistan’s illegal occupation of a sizeable part of Jammu & Kashmir in 1947 caused the forced separation of an entire people, alienated existing family structures and destroyed the social fabric of the state. This momentous violation of the most fundamental of human rights has been continued unabated for over 70 years now by a remorseless Pakistani State. The OHCHR report’s starting point of 2016, therefore, is not only very intriguing but is also enlightening as it puts the author’s motivation and predisposition into clear perspective. 

Knowledgeable watchers of Jammu & Kashmir, even if they granted Al Hussein the benefit of the doubt by conceding that he may not really be a keen student of history that ancient, would assert that given the high position he holds Al Hussein should at least be aware of what happened in Jammu & Kashmir about 30 years ago. Surely he would know that in the late-1980s, Pakistan created dozens of terrorist groups on its territory as well as that occupied by it illegally, funded them, provided training to several thousand young men that it helped recruit into these groups, and launched them to carry out horrific attacks in Jammu & Kashmir on a scale that not only shattered the peace and prosperity but indeed the very way of life of Kashmiris. This cross-border terrorism has continued unabated since then. Close to 14,000 civilians and over 5,000 security personnel were killed because of Pakistan-sponsored terrorism in Jammu & Kashmir since the 1990s. India responded as any state protecting its people and territory in the face of concerted and incessant state-sponsored terrorism would, and in such a war-like scenario some undesirable incidents did occur, as they are bound to. As the world’s largest democracy, India is in possession of the requisite administrative and legal processes to deal with such incidents, as it does and must continue doing. The point here though is that any violation by India only occurred as a part of its defensive response to terrorism unleashed by Pakistan. This fact, of course, did not fit into the questionable agenda of the author of the report and was therefore conveniently overlooked in it. Instead, a vain and motivated effort at equating the human rights record of a vibrant, responsible and open democracy with a state that is widely acknowledged as a sponsor of terrorism has been attempted. 

In addition to the narrow time-period covered by the report, the great rush to issue it also speaks volumes about the motivation of the author. This resulted in questionable methods and basis being adopted in its preparation. The report states that "OHCHR conducted a small number of interviews to corroborate information; due to access issues and security concerns of witnesses, it was not possible for OHCHR within the timeframe available for producing this report to use direct witness testimony".  The phrase "within the timeframe available" gives away the author’s desire to pilfer some thunder prior to demitting office, even if by proffering merely his own personal, partial views as against those of the organization he was entrusted to supervise. Propriety demanded that an office as exalted as that of the High Commissioner carry out due diligence on a report on an issue as weighty as the one in question, rather than superficially attempt a biased, agenda-driven account based on an artificially imposed timeline. 

The terminology used in the report is not only inappropriate for an arm of the UN, but also contradicts that used by the other arms. This blatant disregard by the OHCHR of the sanctity of the UN has only served to detract from the credibility of the already beleaguered world body. Equally pertinent is that the author has chosen to use terms that are commonly used by Pakistan and disdainfully spurned by India, reflecting a complete lack of neutrality and an affirmative pro-Pakistan bias. Despite the report stating that "three of these armed groups (Lashkar-e-Taiba, Jaish-e-Mohammed and Harakat Ul-Mujahidin) are listed on the Security Council 'ISIL (Da'esh) & Al-Qaida Sanctions List' for their activities in Indian-Administered Kashmir among other places", Al Hussein steadfastly refuses to acknowledge that these outfits are terrorist organizations and mischievously chooses instead to term them as "armed groups" as many as 38 times in his report. In Al Hussein’s view, Burhan Wani, the HM terrorist whose killing by Indian troops served as the inspiration for the report, was a "leader" of HM, which he also described as an "armed group". HM, which has been designated as a terrorist organization by the United States, the European Union and India, is widely ascribed with the dubious distinction of bringing an Islamic ideology to the Jammu & Kashmir dynamic. Similarly, what India believes is Pakistan occupied Kashmir (PoK) has been described as "Azad Jammu and Kashmir" 26 times in the report. This latter term, which was coined by Pakistan and is used by it, is abhorred by India. The UN normally refers to PoK as Pakistan Administered Kashmir. Further, UN resolution 48/141 requires the High Commissioner for Human Rights to respect the sovereignty and territorial integrity of member countries. Experts believe that Al Hussein has violated this resolution through usage of terms such as "Azad Jammu and Kashmir" in a situation where, even today, India is the only country which has a valid, legal and constitutional claim to the whole of the erstwhile princely State of Jammu & Kashmir. Further, by deliberately resorting to semantic deception, Al Hussein has left no doubt about his personal biases or his lack of qualms about using his high office to promote them. 

The excuse used by Al Hussein to explain the grossly inadequate focus on Pakistan in the report is as untenable as it is surprising. The report states: "The quantity and quality of information available on Indian-Administered Kashmir contrasts significantly to Pakistan-Administered Kashmir. Despite challenges, NGOs, human rights defenders and journalists are able to operate in the Indian state of Jammu and Kashmir, generating documentation on the ongoing human rights violations there. Restrictions on the freedoms of expression, opinion, peaceful assembly and association in Azad Jammu and Kashmir and Gilgit-Baltistan have limited the ability of observers, including OHCHR, to assess the human rights situation there". This statement raises a number of questions. Firstly, is it correct for an arm of the UN to use the freedoms and liberties inherent in a democracy like India to castigate it for alleged human rights violations, while hiding behind the pretext that "restrictions on the freedoms of expression, opinion, peaceful assembly and association" imposed by the security State of Pakistan had rendered it impossible for the OHCHR to "assess the human rights situation there" ? If that was the case, should the OHCHR not have refrained from issuing the report at all in the interest of fairness and equity? This is especially so as the report itself admits that it is primarily based on secondary sources of information. Further, did the author falsely and maliciously try to convey the impression of the report being balanced in its assessment by including a short section, shorn of facts and the due denigration, on Pakistan, while contrarily claiming that "the focus of the report is on the situation of human rights in the Indian state of Jammu and Kashmir from July 2016 to April 2018"?

In addition to the above, Al Hussein has shown the ultimate disrespect for the UNHRC, an organization he is mandated with guiding, by completely disregarding the valuable information that is made available to it at the various sessions it hosts every year. Several of the Pakistan and Pakistan Administered Kashmir-based human rights activists and representatives of NGOs who are brave enough to appear at these sessions do so at great risk to their lives, as also that of their family members back in Pakistan and Pakistan Administered Kashmir. They provide invaluable insights into the atrocities committed by the Pakistani State in Pakistan Administered Kashmir, but their expectation of redressal by the premier world body for human rights has been shattered by the plea of lack of adequate information taken by the OHCHR report. That the OHCHR report takes no cognizance of the vast amounts of information, a sizeable portion of it based on first hand experiences shared at the UNHRC sessions, renders both the credibility of the report and the motive of its author highly suspect. That such suspicion was well-founded was established just a few days after the report was released. A photograph of Al Hussein in the company of alleged agents of the Pakistani spy agency, the Inter-Services Intelligence (ISI), taken a few hours after the report’s release, appeared in the media. 

The need to respect human rights and bring violators to justice is universal and paramount, and should be adhered to scrupulously by all countries including India and Pakistan. However, through its biased and motivated narrative the OHCHR has failed miserably at conveying this simple message.