International responsibility to stop genocide in Tibet and restore right to self-determination of Tibet

Paper read by Mr. J.M.Mukhi, International Law Scholar , at Supreme Court of India at the symposium organized by Federation of Human Rights Organizations of India on 28.3.2008 on the subject GENOCIDE IN TIBET- WHAT THE WORLD SHOULD DO ?

International responsibility to stop genocide in Tibet and restore right to self-determination of Tibet -- J.M. Mukhi (28 March 2008)

GENOCIDE IN TIBET ; WHAT THE WORLD SHOULD DO ?

The Right to Self-Determination of Tibet and International Responsibility

J.M.Mukhi

28th March, 2008

Friends

Thank you for the kind words and kind welcome.

In March 1947 when Prime Minister Nehru was caretaker Prime Minister of the Interim Government of India, before independence, the flag of Independent Tibet proudly fluttered in New Delhi at the Asian Relations Conference along with the flags of other independent countries.

Tibet has a history of independence over centuries. During World War II, in spite of pressures from President Roosevelt and Winston Churchill, Tibet, like Switzerland, maintained its neutrality. China was at war with Japan and Germany, but Tibet was not.

In 1950 Communist China invaded Tibet. The Peoples' Army, as it was called, came attacking, pillaging and burning the poor and defenceless people of Tibet. Tibet had hardly an army to defend itself. I was at that time 22 years old and a student at the London School of Economics. A Deputy Minister of External Affairs, I think Keskar was his name, came on a visit to London and to the London School of Economics. I asked him why India was supinely indifferent to the invasion of Tibet. His words were lofty:

"Our policy is based on an understanding of Chinese psychology"!

So Tibet's independence was snuffed out.

Sadar Patel was dying. You should read his letter of deep anguish which he addressed to Prime Minister Nehru from his sick bed. It is dated 7.11.1950. He said:

" The tragedy it is that the Tibetans put faith in us; and we have been unable to get them out of Chinese malevolence... We had friendly Tibet which gave us no trouble.... As a result of the disappearance of Tibet China has expanded up to our gates ".

And to our eternal shame, we, India, through the late C.S. Jha, I.C.S, told the Security Council not to discuss the invasion of Tibet. Tibet was struck off the Agenda of the Security Council, and of the General Assembly.

The world slept and snored.

Meanwhile, the miseries of the Tibetan people were immense.

It was in 1949 that Communist China laid its claim in its maps on vast tracts of the territory of its neighbours Vietnam, Thailand, Burma, India and Nepal. In fact the whole of Arunachal Pradesh, then NEFA, was shown as part of China. In spite of that we struggled to get recognition for Communist China in the United Nations and other

fora ! We also launched the "Hindi Chini Bhai Bhai", and in 1954 we gave recognition to China's absorption of Tibet. All India Radio thenceforth referred to Tibet as the "Autonomous Region of China"!

But, then, China disputed the McMahon line.

At this time I was doing India's case with Portugal at the International Court of Justice at The Hague. The late Shri M.C. Setalvad, then Attorney General of India, was the leader of our team. The hearing had ended and we were awaiting Judgment. (This was the Right of Passage Case - the Dadra, Nagar Haveli Case. The Judgment finally came in our favour in April 1960.) On Christmas day in 1959 the then Foreign Secretary called me and asked me to look at and advise on the boundary question with China.

What was this McMahon line ?

I found that India did not have a border with China. Right from Jammu and Kashmir to Assam, India's border was with Nepal, Bhutan and Tibet. In 1914 the natural and traditional boundary was delineated in a map and was confirmed by an Agreement between Sir Henry McMahon, on behalf of India, and by Lonchen Shatra, Prime Minister of Tibet, on behalf of Tibet. So I set down to study the status of Tibet. I looked at Encyclopaedia Britannica and various other books and chronicles. Indeed there is a vast literature. You should read the book by Michael van Walt, The Status of Tibet. And of course, the International Commission of Jurists at Geneva under the leadership of our very own Purshottam Trikamdas, Senior Advocate of the Supreme Court, Mahatma Gandhi's disciple, gave two Reports on the International Status of Tibet and the Genocide that had happened there.

Today we are not concerned with the status of Tibet, or the invasion of Tibet, or whether the World should strive for Tibetan Independence or

Tibetan Autonomy.

Today we are concerned with Genocide in Tibet, gross violations of basic human rights, the trampling of Tibetan expression of aspirations under a military jackboot, with China not responding with words of solace and comfort but with bullets and ruthless repression.

What should the World do ?

That there is Genocide of the Tibetan people there is no doubt. Genocide is defined as a murder of a people. You destroy their culture, their language, their religion, their traditions and values, their spirit. You indulge in demographic aggression, you introduce into their land hordes of outside population and you reduce them to an insignificant and powerless minority with a third class status in their own land. You destroy their monasteries, humiliate and torture the monks, you interfere in their worship, you try to destroy the soul of a people for whom prayer is life and life is prayer. You take away from them the freedom even to keep and venerate the picture of their spiritual leader. It is a criminal offence to keep the picture of His Holiness The Dalai Lama. It invites brutal punishment.

Can we imagine the plight of the Tibetan People ? It is not only mass scale torture and denial of equal rights, it is subjection to constant fear. How would you or I keep our sanity or life if we have to hide a picture of Guru Nanak, Shri Rama or Shri Krishna and even of Mahatma Gandhi ? How would you or I feel if whatever we hold as our sacred scriptures such as the Ramayana, the Mahabharata, the Bhagavad Gita, the Puranas were put in the dustbin, and our children were taken away from us and brought up on Chinese language and on Communism ?

China has brought into Tibet 7 ½ million Chinese of the Han race. Tibetans are only 6 million. About 1 ½ million Tibetans have perished as a result of Chinese actions. For some details of Genocide and violations of Human Rights I recommend that those of you who are able to surf on the internet should go to the website of the Tibetan Centre for Human Rights and Democracy. The address is www.tchrd.org. You will find the Death Toll. Prisoners. Beatings. Torture. Destruction of Monastries and Temples. Persecution of Monks and Nuns. Arrests Detentions. Abductions. Forcible abortions.

A few days ago, I put a question to the French Ambassador in India:

" France is the home of the idea, the notion, of Liberty.

How does France react to the Genocide in Tibet ?

Does France have any influence with China ? "

He was good enough to say that France was talking to China.

Did you see a recent article in the Times of India by Jug Suraiya ? He said that out national bird is not the Peacock but the Chicken. He said that we are chicken-hearted, so it must be Chicken !

It is true that countries in Asia are paralysed by fear of China. In the past China has attacked its neighbours including Vietnam, Thailand and Burma. It is true that China has sited long range, middle range, short range nuclear ballistic missiles on the Tibetan plateau aimed directly at major Indian cities. It is true that, if Western countries are not paralysed by fear of China, they are overpowered by greed - greed for markets in China and trade with China.

But Europe has shown courage. The European Parliament has stood up for Tibet. Germany has shown courage, Chancellor Angela Merkel has made her position clear. President Sarkozy of France has also made his position clear. And the Speaker of the House of Representatives of United States, Nancy Pelosi has made her stand clear and has boldly and clearly condemned China's treatment of Tibet and the Tibetan people.

It is not that we as a people do not believe in standing up for what is right. We have the examples of Shri Rama and Shri Krishna who came to the rescue of the oppressed ones. From our childhood we have heard so many stories of demons oppressing defenceless people and our gods and heroes coming to the rescue of the oppressed. We have the example of Mahatma Gandhi who stood up against the mighty British Empire with all its arms and weapons, its air force and warships.

What the World should do is to call on China to put an end to repression; to talk to the Tibetan people; to restore to the Tibetan people their inalienable rights.

What is it that the Chinese have not done ? The China have invaded the sanctity of large and famous monasteries including the Sera, Drepung, Gaden, and harangued and persecuted the monks and nuns. They have destroyed and closed down more than 4000 monasteries, nunneries and temples. They have arrested monks and nuns and subjected them to torture. There have been many many deaths in monasteries and nunneries; there have been punitive restrictions on religious practices. There has been a violent and repressive curtailment of freedom of expression so much so that the most peaceful protests have attracted severe punishment. Hundred and thousands have been sentenced to imprisonment without trial 10 years and above. Arrest and denial are the order of the day. Long list of torture and disappearance. Open discrimination has taken place in case of education and health services. There have been innumerable instances of enforced miscarriage and infanticide. Inhuman treatment of children including torture of children particularly child refugees. Over and above all of this has taken place a population transfer with parts of Tibet being depopulated and hordes of people from Chinese Han race being brought in. The documentation and statistics and the photographs are horrifying.

Does this not all merit investigation ?

The International Court of Justice in its Advisory Opinion in the Reservations to the Genocide Convention Case observed that:

"The principles underlying the Convention are the principles recognized by civilized Nations as binding upon States even without any conventional obligation."

On 9.12.1948 the General Assembly of the United Nations adopted the Convention on the Prevention of the Punishment of the Crime of Genocide.

Genocide comprises acts committed with intent to destroy in whole or part, a national, ethnic, racial or religious group. The acts of destruction include mental harm. The definition is very wide. The parties to the Convention have the right to call upon the competent parties to the Convention to take appropriate measures both for prevention and suppression of Genocide. The International Court of Justice has jurisdiction with regard to disputes including pinning responsibility on the parties for acts of Genocide.

The United Nations Commission for Human Rights also plays an eminent part in the field of human rights and monitors the Covenants and Conventions relating to Human Rights.

The World need not ask for full independence of Tibet but the World is entitled to ask for full autonomy of Tibet and for the reversal of demographic aggression.

Of course, if China does not listen, the World has several options:

1. First and foremost, if China does not adhere to International Law and does not apply or respect the Rule of Law and Human Rights in respect to the Tibetan people, the World should declare China an outlaw and boycott China's goods and trade.

2. Leading States can take up the investigation of Genocide in Tibet and find ways and means of raising the issue within the United Nations Charter and under the Conventions.

3. The Security Council or even the General Assembly can refer the question of Tibet for the Advisory Opinion of the International Court of Justice at The Hague and the means of restoration of status quo ante.



I am proud of my country and its people for having given comfort and hospitality to the Tibetan people who have taken refuge here. India has always opened its doors to people who have fled from tyranny. India has taken in its embrace Syrian Christians, and, of course the Parsis. For them there is no question of returning to their former lands. But all the Tibetans in India and indeed all Tibetans scattered all over the world, are keen on restoration of their freedom so that they can go back and be with their kith and kin whom they have left behind.

The Tibetans are sincere Buddhists. Innately they are peaceful and non-violent. His Holiness The Dalai Lama is wedded to non-violence and compassion, even for the adversary. He has pleaded with young hot heads not to give vent to their anger with violence. And certainly not to bear any ill-will towards Chinese brethren.

Indeed, it seems that for the Tibetan people the only course is prayer, and fasting, and rousing the conscience of the World.

It is for the World to do something.

In 1946, when I was student at Government Law College at Bombay, now Mumbai, I had attended a Prayer Meeting of Mahatma Gandhi by the sea near Malabar Hill. What he said seared into my soul. He said in Gujarati:

" Hari no marag chhe shurano

Na kaam kayar jo "

The way to God is that of the brave. It is not the work of a coward.

I am a citizen of India, a citizen of the world, a human being. It is my right, and my duty, to speak out. An invasion in 1950, in spite of the United Nations Charter should not have been tolerated. In the 21st century, in an era of Globalisation and Liberalization, the Rule of Law and sanctity of Human Rights, there is no room for colonialism of any kind whatsoever. There is no room for Genocide or violation of Human Rights.

I am free not only to speak out, I am free to pray. I am free to pray in the morning to Bajrang Bali for the emancipation of the Tibetan people. I am free to pray morning, noon and night.

I urge on you to think of Tibet and the Tibetan people and to pray for them as often as you can.

Jai Bajrang Bali.


Thank you.

J M MUKHI
A - 27 Neeti Bagh
New Delhi 110049
India
Tel: (+ 91 11) 2652 3216
Fax: (+ 91 11) 2686 4679