‘Right to Investigate’ in International Law 

Justice Markandey Katju and Aiman Hashmi-

The Union Foreign Minister Jai Shankar 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 which 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 molded to refer to a community which 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.


It is in this context that criticism of Westphalian Sovereignty emerged when international legal scholars saw the extent of 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 which 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 states would intervene in circumstances of human rights abuses. Humanitarian Intervention gained ground as a prime exception to principles of absolute sovereignty. On the flip-side, for a post-colonial nation such as ours however, the term ‘intervention’ often carries reminders of imperialist invasions. ‘Humanitarian interventions’ have also been criticized 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. The External Affairs Minister 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 U.S. administration that India be designated as a “country of particular concern”, 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 the special status of Jammu and Kashmir, enforcement of cow slaughter and the Delhi riots in February, creating a “culture of impunity for nationwide campaigns of harassment and violence against religious minorities”. According to Mr. Jaishankar, statements upon the fundamental rights of Indian citizens is “misrepresentation” and “unwarranted”.


The question raised therefore is, whether the Indian Government was justified in their refusal of visas to the USCIRF teams?  It cannot be disputed that harrowing echoes of Nazi-style persecution is being collectively experienced by the Muslim minority; Names of Akhlaq,  Pehlu Khan and Tabrez Ansari evoke bitter remembrances of hundreds of victims of mob-lynchings still awaiting justice, 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” which sees Union Ministers garlanding lynchers, communalizing instances of animal violence, and sheltering individuals such as Kapil Mishra and Minister Anurag Thakur, who incited their supporters in 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 into any individual who pledges allegiance to the right wing seems woefully compromised.


A textbook weaponization of media which is complicit in demonizing minorities- a harkening to the radio-based incitement of Rwandan Genocide for any international legal expert- is also seen when the religious congregation of the ‘Tablighi Jamaat’ is covered 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 utilized.


In our opinion, in today’s world neither can a state 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 but 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 globalized. 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 but it can certainly investigate into what is going on within that country where there is prima facie proof of oppression of minorities or such other atrocities.

In this uneasy slope towards violent and institutionalized 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 its citizens. To clarify, the right to investigate that is being advocated for refers to serious allegations of oppression of minorities. To allow for independent experts to look into allegations of human rights violations is not something that the international body 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 centers 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 the Union Foreign Minister, Mr. Jaishankar was not justified under international law in denying visas to the USCIRF delegation which wanted to investigate the allegations of atrocities on minorities in India.



[Justice Markandey Katju, former Judge, Supreme Court and Aiman Hashmi, a final year law student in Faculty of Law, Delhi University. The views expressed are their own]