Union External Affairs Minister Subrahmanyam Jaishankar has denied visas to a delegation of the US Commission on International Religious Freedom (USCIRF) for visiting India to investigate allegations of atrocities on minorities and assess religious freedom in India. A question arises whether this denial is valid under international law. We submit it is not.
The Peace of Westphalia, 1648, gave birth to the concept of Westphalian sovereignty—the principle in international law that each state has exclusive sovereignty over its territory, protected against foreign intervention into matters that lie within its exclusive domestic jurisdiction. This principle was also interconnected with the notion of a “nation state”, which by the 18th century would be moulded to refer to a community that had a common descent or language. Eventually, these principles would age into the 20th century rise of ethnic nationalism, most infamously effectuated by the Nazi regime in Germany.
It is in this context that criticism of Westphalian sovereignty emerged when international legal scholars saw the extent of the horrors unleashed by the Nazi regime upon its own Jewish citizens under the cover of sovereignty over its subjects. The ignominious premise of such a regime was that a state had absolute authority to cleanse for itself any identity that did not assimilate within the idea of dominant majority.
It is upon the heels of the closure of the Cold War that states began to contemplate a post-Westphalian order, whereby nations would intervene in circumstances of human rights abuses. Humanitarian Intervention gained ground as a prime exception to principles of absolute sovereignty. On the flipside, for a post-colonial nation such as ours, the term ‘intervention’ often carries reminders of imperialist invasions. ‘Humanitarian interventions’ have also been criticised by some to be Trojan horses for justifying or veiling invasions by foreign powers.
This debate has been brought to India with the government’s denial of visas to the team of USCIRF, a non-governmental advisory body to the US Congress, after its denouncement of the state of religious freedom in India.
Jaishankar stated that a foreign entity “lacks locus standi to pronounce on the state of Indian citizens”. His ire at the USCIRF is grounded in their recommendation to the US administration that India be designated as a “country of particular concern” for the first time since the 2002 Gujarat pogrom. The USCIRF in April 2020 had stated a concern coming from all quarters that religious freedom has taken a downward turn in India. It referred to the CAA-NRC issue, scrapping of special status of Jammu and Kashmir, enforcement of laws against cow slaughter and the Delhi riots in February. The USCIRF noted these acts were creating a “culture of impunity for nationwide campaigns of harassment and violence against religious minorities”. According to Jaishankar, statements upon the fundamental rights of Indian citizens are “misrepresentation” and “unwarranted”.
The question raised, therefore, is whether the Narendra Modi government was justified in its refusal of visas to the USCIRF? It cannot be disputed that harrowing echoes of Nazi-style persecution are being collectively experienced by the Muslim minority. Names of Akhlaq, Pehlu Khan and Tabrez Ansari evoke bitter remembrances of hundreds of victims of mob-lynching still awaiting justice while NRC-CAA protestors who voiced concerns against fundamentally discriminatory laws continue to be arrested on trumped up charges, with a singular focus on Muslim activists such as Safoora Zargar, Dr. Kafeel Khan and Sharjil Imam.
These are sharply contrasted with the “culture of impunity” that sees Union ministers garlanding lynchers, communalising instances of animal violence and sheltering individuals such as Kapil Mishra. Union Minister Anurag Thakur incited supporters in Delhi with plain words desh ke gaddaron ko, goli maro saalon ko (traitors to the nation, shoot them down) and yet their names do not even figure in the charge-sheet of the Delhi riots case. Investigations of any individual who pledges allegiance to the rightwing seem woefully compromised.
A textbook weaponisation of media, which is complicit in demonising minorities—a harkening to the radio-based incitement of the Rwandan genocide—is also seen when religious congregations of the ‘Tablighi Jamaat’ are being depicted as Muslims being the carriers of COVID-19. All these years later, Joseph Goebbels can rest easy knowing that his ideas of propaganda continue to be utilised.
In our opinion, in today's world, neither can a nation’s government claim total impunity relying on an absolute Westphalian principle of state sovereignty, nor can foreign nations claim the right to invade a country giving the pretext of a humanitarian crisis within that country. A middle ground has to be found in international law. In our opinion, that middle ground is that while foreign countries cannot intervene in another country to the extent of invasion of that country, at the same time a country cannot claim absolute reliance on the Westphalian principle for denying any kind of intervention by foreign countries altogether. After all, today's world has become a smaller world and has become globalised. What happens in one country may well have an effect on another country.
We, therefore, submit that the correct international law principle is that while a foreign country cannot validly invade another country on the ground of a humanitarian crisis, it can certainly investigate what is going on within that country and whether there is prima facie proof of oppression of minorities or other such atrocities.
In this uneasy slope towards violent and institutionalised oppression of Muslims where no organ of the state seems to be upholding accountability, the idea of right to investigate takes root. It is the middle-ground recourse between Westphalian sovereignty and humanitarian intervention. After all, states cannot reserve sovereignty over systematic persecution of their citizens. To clarify, the right to investigate that is being advocated for in this article refers to serious allegations of oppression of minorities. To allow for independent experts to look into allegations of human rights violation is not something that the UN is a stranger to; the Universal Periodic Review also allows for independent assessment apart from reports submitted by states.
To meet an attempt to assess ground realities with vehement denial and disparagement does not bode well for any international standing. It is a minimum requirement to ensure that the detention centres, which are being built across the country, are not another version of the ‘Final Solution’ to this atmosphere of intolerance.
We, therefore, are of the opinion that Jaishankar was not justified under international law in denying visas to the USCIRF delegation that wanted to investigate the allegations of atrocities on minorities in India.
Justice Markandey Katju retired from the Supreme Court in 2011. Aiman Hashmi is a final-year law student in Faculty of Law, Delhi University.
The opinions expressed in this article are those of the authors and do not purport to reflect the opinions or views of THE WEEK