The verses of the Holy Quran emphasize that “O believers, steadfastly uphold justice as witnesses for Allah, even if it opposes your own interests, as well as those of your parents and relatives. Regardless of wealth or poverty, Allah deserves unwavering commitment…” (Al-Quran 4:135).
“Caution! Anyone who mistreats a non-Muslim minority, infringes upon their rights, imposes undue burdens, or coerces them against their will; I (Prophet Muhammad) will raise a complaint on the Day of Judgment.”
“No greater oppression exists than that committed under the guise of law and in the name of justice.” – Charles-Louis de Secondat, French philosopher.
“The 2023 ‘World Day of Social Justice’ offers an opportunity to engage in dialogue with member States, youth, and relevant UN institutions, as well as other stakeholders. The focus is on the actions required to restore social justice, rebuilding the social contract fractured by increasing 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 is 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.
Although the United Nations has written declarations that affirm the right of vulnerable populations, there must be greater worldwide effort on the part of governments, NGO’s, businesses and UN agencies to incorporate peace, justice and human dignity into internationalization and globalization. Peace, justice and human dignity cannot take a back seat as societies globalize their trade, supply chaining, and outsourcing. Freedom and justice must prevail above all political and economic aspects of international trade relations, and treaties even if it requires canceling trade agreements with countries that blatantly allow gross human rights violations to continue. It is the responsibility of everyone operating in the international arena to ensure that peace, justice and human dignity are protected. Global ethics must be fully integrated into the process of globalization.
Adopted by the ‘Seventh United Nations Congress’ on the ‘Prevention of Crime and the Treatment of Offenders’ held at Milan from August 26 to September 6 1985 and endorsed by General Assembly resolutions 40/32 of November 29 1985 and 40/146 of December 13 1985 articulated that the Charter of the United Nations the peoples of the world affirm, inter alia , their determination to establish conditions under which justice can be maintained to achieve international co-operation in promoting and encouraging respect for human rights and fundamental freedoms without any discrimination.
The resolution further states that the following basic principles, formulated to assist Member States in their task of securing and promoting the independence of the judiciary should be taken into account and respected by Governments within the framework of their national legislation and practice and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general. The principles have been formulated principally with professional judges in mind, but they apply equally, as appropriate, to lay judges, where they exist.
In 1994 ‘Compilation of International Instruments’ pertaining to human rights, a substantial amount of the articles pertains to the rights of individuals in the administration of justice. Perhaps nowhere in human experience is there more room for the systematic abrogation of human rights than when done under the guise of authority from the State. Under the section adopted by Resolutions 663 C of July 31 1957 and 2076 of May 13 1977, we find standards for the protection of persons who have been detained by the authorities. We also find further guidelines under the ‘Body of Principles’ adopted in Resolution 43/173 of December 9 1988, Resolution 3452 of December 9 1975, Resolution 39/46 of December 10 1984 and Resolution 47/133 of December 18 1992. The sheer quantity of these resolutions should be an indication to us of the seriousness of crimes they are intended to identify, and so it is hoped, guide the United Nations human rights machinery where it must take action for their prevention. Article 3 adopted by the UN General Assembly Resolution 3452 of 1975 states that “Exceptional circumstances such as state of war or a threat of war, internal political instability or any other public emergency may not be invoked as a justification of 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 basic human rights provisions of the Geneva Convention including the ones protected under common article 3 of these conventions are also non-derogable in the sense that they must be respected even in times of international and non-international conflicts, internal disturbances and foreign occupation.
The Vienna Declaration and Programme of Action called upon the states to abrogate legislation leading to impunity for those responsible for grave violations of human rights and to prosecute those violators, thereby providing a firm basis for rule of law.
Now, let us analyze the conditions of administration of justice in Indian 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 Gilani, President, ‘Jammu and Kashmir Council for Human Rights’ an NGO, accredited with the United Nations has said that “the Indian justice system – both the courts themselves and the legal process for victims seeking to bring human rights claims – falls short of international standards. The Indian judiciary, despite its purported independence, has played an instrumental role in ensuring the Indian government’s ability to maintain its control over Indian Administered Jammu and Kashmir and combat the voice of dissent in the region.”
Dr. Gilani emphasizes that ‘the pattern of legal breakdown in Indian Administered Jammu and Kashmir violates basic tenets of international human rights law. Litigants routinely ask the Kashmiri court system to respond to claims against security forces for human rights violations that include allegations of assault, torture, rape, extrajudicial killing, and arbitrary detention. In becoming a party to key international human rights treaties, India undertook to ensure that effective remedies were available to the victims of such human rights abuses. The government of India has to undertake measures that protect and enhance an independent and impartial judiciary, as well as an independent legal profession.”
