India risks permanent position in Security Council by defying UN Working Group

Defying the United Nations’ Working Group on Arbitrary Detention’s unsparing indictment regarding the 27-month imprisonment of British businessman Christian Michel could cloud and imperil whatever limited prospect India possesses of being considered for permanent membership of the UN Security Council.

WGAD’S ruling was passed on 22 February. It could be made public later this week.

The Indian Ministry of External Affairs’ spokesman’s reaction on 26 February was defiant. More pertinently it attempted to mislead the public. The Working Group may not be a judicial body; but there are – as the order unmistakably indicates – consequences for non-compliance with its recommendations.

To claim WGAD’s findings “are based on limited information, biased allegations from an unidentified source” is disingenuous, as the argument presented and the facts behind this – as the consideration amply illustrates - is extensive and the names of the petitioning lawyers have been in the public domain at least since the UK’s Mail on Sunday broke the story in December.

The spokesman insisted: “The Government of India, therefore, rejects the opinion rendered by the Working Group.” Such petulance risks further embarrassment before the Human Rights Council – a 47-member inter-governmental body recognised as the highest global forum in the field. Indeed, there are several nations in the Council who may not be favourably disposed towards the present Indian government, including China and Pakistan. The United Kingdom, also a member, cannot but stand by its national.

The order requested New Delhi to report back “within six months of the date of transmission of the present opinion” or by 21 August next. It categorically said “the Working Group reserves the right to take its own action in follow-up to the opinion if new concerns in relation to the case are brought to its attention”. Such action would mean informing “the Human Rights Council of progress made in implementing its recommendations, as well as any failure to take action”. Being dragged before the HRC is a kind of censure only despotic nations endure. Not genuine democracies.

The five-member Working Group comprises eminent jurists drawn from as many different continents. They are Australian Leigh Toomey (chair-rapporteur), Latvian Elina Steinerte (vice-chair), South Korean Seong-Phil Hong, Zambian Mumba Malila and Ecuadorian Miriam Estrada. To question their intellect, integrity and intent is a fruitless pursuit. Pursuing it can only result in regret.

Michel, who resided in Dubai, has been in custody for 27 months in Delhi for allegedly paying bribes to the Gandhi family of the Congress party to secure a Rs 3,600 crore VVIP helicopter deal for Anglo-Italian firm AgustaWestland (AW) in 2010. He has consistently denied the charge.

The chief executive officers of AW and its parent company Finmeccanica, who were accused in the matter, were acquitted by an Italian court in October 2014. In April 2016, the Milan Court of Appeal found them guilty. This adjudication was overturned in December 2016 by the Italian Court of Cassation. In January 2018, the Court of Appeal of Busto Arsizio upheld this. Finally, the Italian Court of Cassation further ratified it in May 2019.

In effect, Michel was held to be fully innocent.  One of the judges remarked the insinuation against Michel was “an accusatory hypothesis” and that there was “conclusively no evidence of corruption”.

In other words, the Indo-UAE joint action against Michel was premature and gratuitous since the prevailing Italian decree when he was controversially smuggled to Delhi from Dubai on 4 December 2018 was entirely in his favour. Moreover, after the ultimate May 2019 Italian judgement, his capture and detention could have been remedied. It did not happen.

JUDGMENT OF THE UN WORKING GROUP

This correspondent has obtained advance sight of the Working Group’s instructions.

In an apparently unanimous 16-page judgement (for there is no discernible dissentient view) – which the UN diplomatically terms an “opinion” - WGAD affirmed: “The deprivation of liberty of Christian James Michel by the Government of India, being in contravention of articles 3, 9, 10 and 11(1) of the Universal Declaration of Human Rights and articles 9(3), 10(1), 14(10, (2) and (3) (b), (c), (d) and (g) of the International Covenant on Civil and Political Rights, is arbitrary and falls within category III (which is the most serious level of offence in this realm).”

It continued: “The Working Group considers that, taking into account all the circumstances of the case, the appropriate remedy would be for the Government of India to release Mr Michel immediately and for both Governments to accord him an enforceable right to compensation and other reparations, in accordance with international law.”

Michel’s French advocate Francois Zimeray estimated: “No doubt what happened is very damaging.” The recompense could run into millions of pounds.

Furthermore: “In the current context of the global corona virus disease (COVID-19) pandemic and the threat that it poses in places of detention, the Working Group calls upon the Government of India to take urgent action to ensure the immediate release of Mr Michel.”

WGAD also urged the Modi regime “to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr Michel and to take appropriate measures against those responsible for the violation of his rights.” This is really tricky, as the authorisation could only have emanated from the very top.

The demand did not end there. It asked the Indian government “to provide it with information on action taken in follow-up” on, among others, “(a) Whether Mr Michel has been released and, if so, on what date; (b) Whether compensation or other reparations have been made to Mr Michel; (c) Whether an investigation has been conducted into the violation of Mr Michel’s rights and, if so, the outcome of the investigation.”

It has also suggested “a visit by the Working Group” for “technical assistance”. In diplomatic parlance this is insulting and interprets as the UN wanting to intervene because of a country’s inability to adhere to its stipulation – generally reserved for failed states. Worse, WGAD asked Michel’s British and French lawyers who had moved the petition on his behalf, to monitor the Indian response and update it.

The evidence presented before the Working Group laid out: “After the BJP won the (2014) elections, the Indian Prime Minister denounced the involvement of the Congress party and the Gandhi family in the AW affair.” It added that after the UAE refused India’s request for Michel’s extradition in May 2017, “Indian authorities visited Mr Michel in Dubai (where he was resident), in the presence of Emirati officials, and interrogated him for hours before getting him to sign statements implicating the Gandhi family, under threat of further prosecution.”

In January 2018, Michel was falsely informed the Indian ambassador in the UAE (then Navdeep Suri) wished to meet him. Instead, a deputy director of the Indian Central Bureau of Investigation (said to be Rakesh Asthana) surfaced. Asthana “allegedly attempted to coerce Mr Michel into signing a 20-page pre-drafted statement admitting corruption activities related to the AW case and threatened him with prosecution if he refused to sign”, Michel’s lawyers maintained.” The Briton did not oblige; hence he was forcibly taken to India.

The Working Group heard: “On 4 December 2018, Mr Michel was reportedly handcuffed, blindfolded and transported by a private jet to India, in a hurried and unlawful manner which prevented him from challenging any decision.”

In Delhi he was interrogated by the CBI and the Enforcement Directorate for a month, the Working Group was told. It was also apprised that he “was reportedly interrogated every day for up to 21 hours... He was thus only allowed to sleep for three hours a night while some nights he could not sleep at all… On 5 January 2019, after having been interrogated for 600 hours over a 30-day period, Mr Michel was placed in custody at Tihar Prison”.

It was argued that at Tihar, he has been “in total isolation”, “solitary confinement” or “de facto solitary confinement” and “prevented from leaving his cell and from obtaining adequate food supplies, which seriously jeopardised his health and physical integrity”. He reportedly lost more than seven kilos in weight and developed kidney stones, “having been unable to drink for several days during temperatures exceeding 51 degrees C”.

The Working Group decided to refer this alleged inhuman treatment to the UN Special Rapporteur on Torture “for appropriate action”.

Analysing the violations cited by the petitioner, the Working Group in a significant imputation said Michel “has been detained without any real or proper basis”, that “the extradition to India has not followed any due process and is an attempt to override international protocols relating to extradition” and that “it is unlikely that there will be any form of a trial, in the strict sense according to a process following the rule of law, as there is no proper legal basis for the detention, and no offence committed”. It inferred: “Mr Michel is reportedly being detained with a view to coercing him to provide false evidence of unlawful conduct by members of the current Government’s political opponents.”

The analysis points out: “Various procedural deficiencies also appear to be present in the papers submitted (by India) for the extradition hearing (in Dubai); the charge sheets were reportedly not attested by the UAE embassy in Delhi and the extradition request was issued not by the competent authority in India, which is the Minister of Home Affairs, but by the Minister of External Affairs.”

On 8 May 2020, the Working Group sent the allegations outlined in Michel’s application to the Indian government. The latter responded on 26 June 2020. WGAD recorded: “The Government of India disputes the allegation that due process was not followed in Mr Michel’s extradition.” It also noted: “The Government denies any procedural deficiencies in the presentation of the extradition request.” Clearly, these protestations were insufficient in the eyes of the rapporteurs.

The Working Group explained: “The Working Group has in its jurisprudence established the ways in which it deals with evidentiary issues, which establishes the evidentiary position for claims to succeed in human rights cases.”

This means that if a complaint establishes a prima facie case for breach of international law constituting arbitrary detention, “the burden of proof should be understood to rest upon the Government if it wishes to refute the allegations”. It clarified: “Mere assertions by the Government that lawful procedures have been followed are not sufficient to rebut”. Therefore, the Ministries of External Affairs and Law in India were either lackadaisical or unskilful in tackling the challenge or were bereft of a credible defence.

A telling line in the decision was, “the Working Group concludes that the violations of the right to a fair trial and due process are of such gravity as to give Mr. Michel’s deprivation of liberty an arbitrary character”.

Michel’s Indian advocate Aljo Joseph intends to approach an appropriate court in India for his client’s immediate release. Joseph said: “I will be initiating follow-up action soon after getting a copy of the judgement officially.”

Michel’s wife Valerie, who lives in France, decried: “My husband has been detained and tortured under the worst possible conditions, with no regard for his basic rights and dignity.”

She pleaded: “I hope the UK government will do the maximum efforts to put an end to this nightmare endured by a British citizen.”

Although Michel wrote a 35-page letter to British Prime Minister Boris Johnson in January, his Foreign Office recycled a statement it has been trotting out since December.

“Our staff continue to support Christian Michel, who has been detained in Delhi since 2018, and regularly raise his case with the Indian authorities. The Foreign Secretary raised it with India’s Minister of External Affairs, Dr Jaishankar, during his visit to India in December 2020.”

10 Downing Street was asked if Britain is adopting a low profile on the subject, lest it jeopardises the trade deal currently being negotiated with India. The question went unanswered.