In yet another damning report, the United Nations’ High Commissioner for Human Rights, Michelle Bachelet expressed `concern over restrictions on Non-governmental Organisations, arrests of activists and implications of Citizenship Amendment Act.
She `appealed to the Government of India to safeguard the rights of human rights defenders and NGOs, and their ability to carry out their crucial work on behalf of the many groups they represent’. She `expressed regret at the tightening of space for human rights NGOs in particular, including by the application of vaguely worded laws that constrain NGOs’ activities and restrict foreign funding’. Besides, she `cited as worrying the use of the Foreign Contribution Regulation Act (FCRA), which a number of UN human rights bodies have also expressed concern is vaguely worded and overbroad in its objective’. The Act prohibits `receipt of foreign funds “for any activities prejudicial to the public interest’. But, it leaves vague definition of the `public interest’ ad `prejudicial’ to wild imagination of police officers.
The Act, which was adopted in 2010 and was amended last month, has had a detrimental impact on the right to freedom of association and expression of human rights. Amnesty International was compelled to close its offices in India after its bank accounts were frozen over alleged violation of the FCRA. Bachelet noted, `The FCRA has been invoked over the years to justify an array of highly intrusive measures, ranging from official raids on NGO offices and freezing of bank accounts, to suspension or cancellation of registration, including of civil society organizations that have engaged with UN human rights bodies. ..Constructive criticism is the lifeblood of democracy. Even if the authorities find it uncomfortable, it should never be criminalized or outlawed in this way.’
India keeps the UN in dark: The UN Human Rights Committee oversees implementation of the International Covenant on Civil and Political Rights to which India is a party. The Committee found that India did not `show the specific nature of the threat or risks posed, and limit its responses to those necessary and proportionate to address such threat or risks’ . India was bound to explain to the Committee that it was invoking `national security and protection of public order as a reason to restrict the right to freedom of association’.
The Committee noted that `more than 1,500 people have reportedly been arrested in relation to the [CAA] protests, with many charged under the Unlawful Activities Prevention Act – a law which has also been widely criticized for its lack of conformity with international human rights standards’.
Bachelet drew attention to arrest and continued detention of the 83-year-old Catholic priest Stan Swamy, a long-standing activist engaged in defending the rights of marginalized groups, despite his poor health. She urged India `to ensure that no one else is detained for exercising their rights to freedom of expression and peaceful assembly, and to do its utmost, in law and policy, to protect India’s robust civil society’.
A bird’s eye view of India’s anti-human laws: India claims to be the “world’s greatest democracy”. But, the shiny face of democracy has been disfigured by repressive Indian laws like: (1) Indian Armed Forces (Special Powers) Act, (2) Terrorist-Affected Areas (Special Courts) Act, (3) Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), and (2) Prevention of Terrorism Act, 2002 (POTA).
The aforementioned laws clothed police and security/armed forces with emergency powers without explicitly abrogating people’s fundamental rights under the Indian Constitution (a fundamental right cannot be usurped or altered).
POTA is successor to TADA. The TADA remained in force between 1985 and 1995 (modified in 1987) under the background of the Punjab insurgency and was applied to whole of India. The Act had a sunset provision for lapsing after two years post-commencement, which it did on 24 May 1987. The POTA is just old wine in new bottle. It does not repeal fake cases under TADA. Indian media termed POTA as “draconian’. Verily so as penalties under this law are akin to those stipulated in Draco’s code of 610 BC to forestall future revolts by common men. The code provided death penalty for even trivial offences like stealing an apple, or an earthenware utensil.
The POTA attaches evidentiary value to the telephonic, telegraphic and internet conversations. The brutality of the law was brought into limelight when S. A. R Geelani, a Kashmir lecturer in Delhi University was implicated for attack on the Indian parliament (December 13).
POTA was employed to frame cases against several other Kashmiri leaders _ Yaseen Malik, Syed Ali Geelani et al. Despite his frail health (ailing kidney, heart with right ear subjected to micro-surgery), Malik was arrested on March 25 under POTA for receiving ISI’s money when he was addressing a press conference at the Hurriyat office. The court acquitted him with observation that there is not an iota of believable evidence against him.
Syed Geelani and his journalist son-in-law, Iftikhar Gilani also were detained under POTA. Funny charges on senior Geelani included: (1) “Being a member of Jamaat-e-Islami, he criticised US war against Afghanistan, and described himself as Pakistani”.
Iftekhar Geelani was detained for violation of Official Secrecy Act for possessing information about Indian troops’ movement of pre-1996 period. The alleged information was available on the internet. Having failed to make a case against him, police charged him under the Pornographic Act!
POTA features: In what follows, we would review significant features of POTA. It usurps Constitution-of- India safeguards for fundamental rights (part 3, articles 13-35). The rights include “life and liberty of the person” (article 21) and “freedom of expression” (article 19). The POTA also violates article 21 which provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law”.
TADA was meant to suppress the Sikhs’ freedom movement. POTA is intended to stifle Kashmiris’ freedom movement. Due to heavy opposition from the NHRC, human rights organisations and political parties POTA was not introduced as a bill in parliament. Instead, it was promulgated as POTO, Prevention of Terrorism Ordinance.
POTO became POTA on March 26, 2002. POTA as a modified version of TADA, with similar inconsistencies in protection of human rights.
The POTA violates international-human-rights standards, which provide the framework for international protection and promotion of human rights. It is also incompatible with international human rights standards and treaties, particularly the International Covenant on Civil and Political Rights (ICCPR), to which India is a party.
India has signed but not yet ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to validate torture under POTA. However, notwithstanding non-ratification, adherence to international human rights standards has been upheld by the Supreme Court of India in a number of decisions (for example, Vishaka & Others vs. State of Rajasthan & Others: 1997(6) SCC24).
The Telegraph Act makes intercepts inadmissible as evidence. But POTA allows it. Other rights-suffocative features of POTA include: (1) vague definitions, (2) insufficient pre-trial and trial safeguards, (3) threats to freedom of association and freedom of expression. Ensuing paragraphs highlight the features.
VAGUE DEFINITIONS: Section 3(5) of the POTA, while criminalizing membership of a “terrorist gang” or a “terrorist organisation,” does not clearly define what these terms mean. The crime is considered complete upon proof of membership.
Thus POTA provides for criminal liability for mere association or communication with suspected terrorists or expressing political opinions without the possession of criminal intent. Obviously, the section is repugnant to ` the right to freedom of association’ enshrined in Article 22 of the ICCPR.
Section 3(8), purports to punish those in possession of information of material assistance in preventing a “terrorist acts”. Failure to provide such information is punishable by up to three years’ imprisonment.
Section 4 of POTA allows legal presumption that if a person is found in unauthorized possession of arms in a “notified area,” he/she is automatically linked with terrorist activity. This along with other provisions undermines the basic right to be presumed innocent until proven guilty.
ARREST: Section 48(2) provides for pre-trial police detention for up to 180 days. This provision contradicts Articles 9(2) and 9(3) of the ICCPR which require that all arrested people be promptly informed of the charges against them and that they are entitled to trial within a “reasonable time”, or release.
TORTURE: Torture in police custody is a well-known fact. Section 32 provides that confessions, even those under duress or torture, made to police officers are admissible in trial. This violates Indian Evidence Act, article 14(3) (f) of the ICCPR and article 20(3) of the Constitution of India.
Section 56 of the Ordinance provides for protection from punishment and blanket immunity to police officers who use torture or cruel, inhuman or degrading treatment during interrogations. POTA obviously contradicts India’s repeated promises that she is dedicated to eradicating torture”.
Efforts on the anvil to refine POTA are nothing but palliatives to cure police brutality. Hence, they are not worth discussing. When asked about the POTA, in an interview to The Hindu, Dato’ Param Cumaraswamy, former United Nations Special Rapporteur on Independence of Judges and Lawyers said: “Past experience had shown that draconian legislations did not provide much safety to the state against terrorists or militants but were used only to protect the safety of the government in power”. He added, “My concern is that extensive powers given to the executive can always be abused without there being any independent judicial review”.
Conclusion: India uses its draconian laws to gag dissent. The Hindu-monk chief minister of India’s northern state of Uttar Pradesh regards a cow as a citizen. He directed the police to register cases under National Security Act for offences concerning a cow. One hundred and forty cases were soon registered to terrify the Muslim.
The inescapable conclusion from the above analysis is that the POTA is meant to gag political dissent and crush freedom movements. It baffles one’s imagination that POTA has the same goal as Draco’s code had 2, 613 years back that is “crush common men’s revolt by use of brutal force”. POTA is unnecessary in view of India’s other equally draconian laws like Indian Armed Forces (Special Powers) Act and Terrorist-affected Areas (Special Courts) Act. These laws allow pre-trial detention of “suspected militants” without disclosing reasons and house searches without warrants. An arrestee is considered guilty until he is proved innocent. An appeal against POTA lies to the inaccessible Supreme Court.
Afghanistan: the US and NATO withdrawal and future prospects
On April 14, the United States of America announced that it would withdraw all its troops stationed in Afghanistan from May 1 to September 11, 2021. On the same day, NATO also said it would coordinate with the White House military to initiate the withdrawal.
The year 2021 marks the 20th anniversary of the outbreak of war in Afghanistan, a conflict that has actually been going on since the Soviet invasion of that unfortunate country on December 24, 1979.
What are the plans of NATO and the United States? How will the situation in Afghanistan change in the future?
Regarding the US announcement of the deadline for troop withdrawal, Afghan President Ashraf Ghani has said that the Afghan government respects the US government’s decision to withdraw its troops by the agreed date.
According to the Associated Press, there were 2,500 US troops in Afghanistan before May 1, far below the peak of over 110,000 in 2011.
According to the websites of the Financial Times and theDeutsche Welle, some ten thousand soldiers from the 36 NATO Member States and other US allies are currently stationed in Afghanistan, including as many as 895 Italian soldiers, as well as 1,300 Germans, 750 Brits, 619 Romanians, 600 Turks, etc.
President Trump’s previous Administration signed a peace agreement with the Taliban in Afghanistan in February 2020, setting May 1, 2021 as the deadline for NATO to begin withdrawing from that country. The Washington Post reported that after the current US government issued the withdrawal statement, the Taliban immediately said that if the United States violated the peace agreement and did not withdraw its troops in Afghanistan, the situation would get worse and one of the parties to the agreement would take responsibility for it.
This year is the twentieth since the United States started the war in Afghanistan after the terrorist attacks of September 11, 2001. The war in Afghanistan is the United States’ longest overseas war, and has killed over 2,300 US soldiers and wounded some 20,000 people, at a cost of over 1 trillion US dollars.
Although the United States and its allies attacked the Taliban and al-Qaeda, the situation in Afghanistan has been turbulent for a long time, with over a hundred thousand Afghan civilian casualties in the fighting.
According to The New York Times, both Parties’ members of the US Congress have differing views on the consequences of withdrawal. According to the newspaper, Republicans and some Democrats believe that the troop withdrawal will encourage the Taliban insurgency, while others believe it is necessary to put an end to this indefinite war.
But what considerations can be made for the US and NATO withdrawal from Afghanistan?
It is well known that the purpose of the United States in taking the war to Afghanistan was a very heavy measure of retaliation against al-Qaeda, which had organised the terrorist attacks of September 11, and against the Taliban regime that protected the top leaders of that terrorist organisation. Although al-Qaeda has not been destroyed, it is unlikely to create similar problems. The United States has achieved its strategic goals and is no longer involved in East Asia’s tactics and strategy.
The interests of NATO (considering its individual Member States) in Afghanistan are fewer than those of the United States. As a military alliance with the United States, the achievement of US strategic goals means that NATO’s equal strategic goals have also been achieved. Hence, rather than continuing to run the risk of confronting the Taliban and al-Qaeda after US military withdrawals, NATO is more willing to remove the “political burden” as soon as possible.
While announcing the terms of the withdrawal, the White House has stated that the threat of extremist organisations such as Somalia’s al-Shabaab and ISIS is spreading globally and it is therefore meaningless to concentrate forces in Afghanistan, with a steady expansion of its military cycle. At the same time, however, the White House has stated that after withdrawal, diplomatic and counter-terrorism mechanisms will be reorganised in Afghanistan to face security challenges. Hence, from the US perspective, there is currently a greater terrorist threat than al-Qaeda and the Taliban.
The prospectsfor advancing the Indo-Pacific regional strategy to oppose China also means that it would be counterproductive for the United States to remain in Afghanistan any longer. Even after the troop withdrawal, there will be insecurity in Afghanistan. That being the case, however, the United States will still find ways and means to support the Afghan regime and the armed forces of the Kabul government.
The Washington Post has also reported statements by a Pentagon official who has stressed that Afghanistan is a landlocked country: consequently, once US and NATO forces withdraw, one of the biggest challenges will be how to effectively monitor and combat extremist organisations and resist threats to US security: at that distance it will be even more difficult without sea landings.
According to Reuters, the CIA predicts that the possibility of a further US-Afghan peace deal is little and has warned that once the United States and its allies withdraw, it will be difficult to stop the Taliban.
The Afghan government forces currently control Kabul and other large cities, but the Taliban are present in more than half of the country’s territory and rural areas. In the future, the possibility of a Taliban counter-offensive cannot be ruled out.
Great Britain’s The Guardian has commented that the years of war have generally made Afghans feel a strong sense of insecurity and the withdrawal of troops will not bring much comfort to the local population. According to the London-based newspaper, for the United States this is yet another war that cannot be won.
According to experts, there are two extreme possibilities in the future situation in Afghanistan. The excellent situation is the one in which the less extremist wing of the Taliban mediates so that, once the United States withdraws, the Taliban can gradually move from being an extremist organisation to being an internal administrative one and then negotiate with the legitimate government supported by the United Nations: this would mean a long-term peace after forty-two years of war.
Under extremely unfavourable circumstances, instead, the Afghan government forces would overestimate their military strength and intend to continue the war alone against their traditional opponents, at which point peace negotiations between the two sides would break down.
This would mean falling again into a prolonged civil war and into eternal war.
Bhashan Char Relocation: Bangladesh’s Effort Appreciated by UN
Bhashan Char, situated in the district of Noakhali, is one of the 75 islands of Bangladesh. To ease the pressure on the digested camps in Cox’s Bazar and to maintain law and order, Bangladesh has relocated about 18,500 Rohingya refugees from the overcrowded camps to the island since December last year. The Rohingya relocation plan to Bhashan Char aligns with the Bangladesh government’s all-encompassing efforts towards repatriation. The initial plan was to relocate 100,000 of the more than a million refugees from the clogged camps to the island. From the onset of the relocation process, the UN and some other human rights organizations criticized the decision pointing to remoteness and sustainability. UNHCR showed their concern over the island’s susceptibility to seasonal storm and flood. They proposed for a “technical assessment” of the Bhashan Char facilities.
An 18-member UN delegation visited Bhashan Char Island on March 17 this year to have a first-hand assessment of the housing facility for the Rohingya forcibly displaced Myanmar Nationals (FDMNs). Shortly after the UN’s visit, a team with 10 diplomats including heads of missions of embassies and delegations from Turkey, the EU, US, UK, France, Germany, Japan, Australia, Canada and the Netherlands also went to the island on April 3 to appraise the facilities. All the members of the technical team opined that they are ‘satisfied’ with the facilities in Bhashan Char. The experts of the UN told, they will hand over a 10-page report of their annotations and they have already submitted a two-page abridgment. On April 16, they released the two-page synopsis after a month of the visit. After the three-day study of Bhashan Char by the UN delegates, they recommended the Bangladesh government to continue the relocation process to the island in a ‘phased manner’. The team twigged three points – education for Rohingya children, increasing heights of the embankments and better communication system. The Foreign Minister of Bangladesh A. K. Abdul Momen concerted to take the necessary measures to create a safe and secure environment for the Rohingya refugees until the repatriation takes place. The relocation is not the solution of the Rohingya crisis rather the over emphasis of the relocation and facilities inside Bangladesh is protracting the crisis and distracting the attention from the broader emphasis on the repatriation to Myanmar.
The UNHCR and other concerned parties should plan for a long run repatriation process. Repatriation is the only durable solution, not the relocation of the Rohingya refugees. For the time being, resettlement under the Asrayan-3 project is an ease for the FDMNs but in the long run the Rohingya crisis is going to turn as a tremendous threat for regional peace and stability. Besides, resentment in the host community in Bangladesh due to the scarce resources may emerge as a critical security and socio-economic concern for Bangladesh. It is not new that the Rohingyas are repatriated in Myanmar during the Military rule. Around 20,000 Rohingya refugees were repatriated to Myanmar in the 2000s. The focus of the world community should be creating favourable conditions for the Rohingyas to return safely regardless who is in the power seat of Myanmar-civilian or military government. The UN should largely focus on repatriating the Rohingya refugees in a “phased manner”, let alone deciding their concern in the camps and the Bhashan Char. After the praiseworthy relocation plan, they should now concentrate on implementing speedy and durable repatriation. Proactive initiatives are essential from all walks for a safe and dignified return of the FDMNs. To be specific, the relocation is a part of the repatriation, not the solution of the problem.
Afghan peace options
President Biden’s decision to withdraw unconditionally all foreign forces from Afghanistan by September 11, 2021 will leave behind an uncertain and genuine security concerns that ramifications will be born by Afghanistan as well as the region.
The Taliban seems least interested in peace talks with the Afghan government and appear determined to take control of the entire afghan government territory by force during post-withdrawal of American forces. Short of the total surrender, Afghan government has no possible influence to force the Taliban to prefer talks over violence. Resultantly, the apprehensions that Afghanistan could plunge into another civil war runs very high.
The consequences of yet another civil war will be deadly for Afghanistan and the whole region as well. Among the neighboring countries of Afghanistan, Pakistan will bear the severe burnt of an escalation of violence in particular. A civil war or possible Taliban takeover will surely upsurge and reinvigorate the Islamic militancy in Pakistan, thus threatening to lose the hard won gains made against militancy over the past decade.
The afghan and Pakistani Taliban, nevertheless, are the two sides of the same coin. Coming back to power of the Taliban in Afghanistan is surely emboldened and revives Pakistani Taliban and other militant outfits. Moreover, spread of violence not only reduce all chances of repatriation of refugees but possibly increase the inflow of refugees from Afghanistan to Pakistan.
Furthermore, worsening of the security situation in Afghanistan will jeopardize the prospects of trade, foreign investment and economic development initiatives such as china-Pakistan economic corridor. The chances of Gawadar and Karachi port to become a transit trade route for the region and link the energy rich region of central asia will become bleak until a sustainable peace and stability is achieved in Afghanistan.
It is against this background that the successful end of the intra-afghan talk is highly required for Pakistan, for its own sake. Officially, Islamabad stated policy is to ensure the afghan-led and afghan-owned peace solution of the afghan conflict. It helped in bringing the Taliban on the negotiation table, which finally resulted in the signing of the Doha deal between US and Taliban. Further, Pakistan has time and again pressurized the Taliban to resume the dialogue. Moreover, Islamabad holds that, unlike in the past when it wanted a friendly regime in Kabul, it aims to develop a friendly and diplomatic relation whoever is on the power in Kabul.
Notwithstanding the stated policy and position of the Islamabad, the afghan government and the many in the US remains dubious of Pakistan’s commitment. Against these concerns, Islamabad categorically stated that it does not have complete control over the Taliban.
The success of the peace process will require coordination and cooperation among the all regional actors and the US and afghan government. Pakistan’s role is of an immense significance because of its past relation with the Taliban. There is no denying of the fact that Pakistan has not complete control over the Taliban. Despite, it has more leverage than the other actors in the region.
The Islamabad’s willingness to use its influence over the Taliban is her real test in the achievement of peace process. However, Pakistan has successfully used its leverage and brought the Taliban on negotiations table. Although, history is the testimony of the fact that mere cajoling won’t dissuade the Taliban from unleashing violence.
The prospects of intra-afghan talks will develop in success when the cajoling strategy is backed up by with credible threats of crackdown which may involve denial of safe heaven to militant leaders and their families, stopping medical treatment, and disruption of finance etc. on the other hand, strong arm tactics fail to bring the Taliban to the table, then Pakistan should make sure that its territory is not used to carry out attacks in Afghanistan.
The afghan peace process has an opportunity for Pakistan to bury its hatchets with Afghanistan and start its diplomatic journey with a new vigor. While Kabul every time attach its failure with the Pakistan and shun away from its responsibility of providing peace to people of Afghanistan, it has a fair point about our pro Taliban afghan policy. Now that the US is leaving Afghanistan, it is high time that Pakistan bring forth a shift in its Afghanistan policy. Sustainable peace in Pakistan, especially Balochistan and ex-fata region is unlikely to achieve without Pakistan contributing to peace in Afghanistan.
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