Morgan Institute for Human Rights
The International Court of Justice Considers Genocide

Terrorism and Human Rights in India

INSTRUCTOR'S MANUAL/TEACHING NOTE

Copyright © ISSN 1529-2215. All Rights Reserved

Howard Tolley, Jr.
University of Cincinnati1

[T]eachers would find their own work less of a grind and strain if school conditions favored learning in the sense of discovery and not in that of storing away what others pour into them;

John Dewey

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"Prime Minister Rao's Dilemma" was prepared for upper division undergraduate political science and sociology classes on International Law and Organizations, Ethics and International Relations, Comparative Government, Human Rights, and Social Change. Law school and graduate students in the social sciences might also benefit from written assignments and seminar discussion or simulation using the problem.

Case Overview

The decision-forcing case presents a challenge posed by two secessionist movements in August 1995 when India's leadership was preparing for national elections. In response to the terrorist assassination of a key ally, the Prime Minister evaluates international and domestic complaints about a repressive counterinsurgency campaign that has caused massive human rights violations.

The introduction informs students about how the government countered terrorist bombings with repression, torture, and extra-judicial killings. Additional background material explains how extraordinary powers exercised under Indian emergency legislation violate international human rights treaty commitments. In responding to the assassination, Rao must decide whether or not to accept demands that his government i) respect international human rights law, ii) prosecute law enforcement officers who commit atrocities, and iii) allow more international observers to visit Punjab and Kashmir.

A three part format offers competing moral, legal, and political arguments for and against specific policy reforms.2 An appended reference section identifies varied sources that students may consult about human rights law, international reports charging India with violations, and the government's published response to those charges. Wherever possible, the bibliography promotes on-line access to materials via computer by offering URL addresses to pages on the world wide web.

Implementation

The exercise works best when all students have the same basic information. Some individuals may know more about the situation or about developments since the case was written. Any additional information that influences students' reasoning should be shared with all. In order to develop analytical skills, students should write papers assessing the strengths and weaknesses of the arguments both for and against reform. Students might consistently favor the policy recommendations for reform, or attempt a synthesis of the rival positions. All choices should be carefully reasoned and cogently explained. Those preparing for in-class debate should prepare advocacy papers.

Small work groups in class should compare their papers and conclusions, noting areas of consensus and disagreement. A designated reporter from each group may then give an oral summary to initiate discussion by the entire class. For superior learning, a three part class debate can be structured with different students, role playing advisers who present opposing view. Direct questioning of the advocates following their prepared statements should challenge students to undertake more critical reasoning.

Objectives

[A]ll that the school can or need do for pupils, so far as their minds are concerned . . . is to develop their ability to think.

John Dewey, Democracy and Education, 1916


By placing factual and legal information in the context of a moral dilemma, the case seeks to develop six cognitive skills identified in Bloom's Taxonomy of Educational Objectives.

Evaluating the policy dilemma obliges students as decision makers to comprehend facts, to apply legal norms, and to analyze different options. The goal is not only to understand the Indian conflict and international human rights law, but also to learn critical thinking skills. Romm and Mahler note that higher level cognitive problem solving overlaps the separate affective domain identified by Bloom. Simulation and role playing are especially educational as "valuing can be achieved when students actually play a character. By experiencing a character as oneself they go beyond a mere accepting of the character's point of view that is typical of 'responding', into an active involvement, internalization and commitment to it."4

Assigning students an unpopular role promotes understanding of alternative values. As advocates for a human rights or authoritarian position they categorically reject, students may become less certain of their knowledge, more willing to entertain new ideas, to learn by questioning and entertaining a range of possibilities. Whether or not they ultimately modify deeply held personal beliefs, the exercise can provide fresh information and the ability to rebut an adversary. Students must identify unresolved issues, recognize relevant facts and legal authority, and reason by analogy. The case method and Socratic dialogue challenges students to balance competing norms and to explain reasoned conclusions.5

The case can also be a vehicle for developing oral and written communication skills in combination with assigned position papers and class debate. Each of the three proposed reforms offers policy choices for the Prime Minister appropriate for writing assignments and/or in-class debates. As a homework exercise or during class, students can write short answers making choices between the proposed reforms. Small class discussion groups of four to six students can then compare their ideas and explore disagreements. Next, selected representatives from each group can explain their reasoning to the full class. Those explanations should lead to a guided debate that clarifies differing value judgments about the importance of justice and security.

Finally, the problem can help develop student research skills. The appended reference section guides students to materials used in preparing the case which contain considerable additional information. The problem was completed in August 1995 at a time when many predicted Prime Minister Rao's defeat in the 1996 elections. Students could be assigned to investigate whether Rao pursued human rights reform and then whether his party won or lost the 1996 elections. Did the outcome vindicate his policy choices?

Analysis

[B]eware of 'inert ideas'--that is to say, ideas that are merely received into the mind without being utilized, or tested, or thrown into fresh combinations.

Alfred North Whitehead, The Aim of Education, 1929


The problem illustrates a policy dilemma that involves national and international pressures, political and legal values derived from rival theories of realism and idealism. The realist argument challenges students to consider whether desirable ends justify means that violate human rights ideals. India's Constitution renounces communalism but compromises its promises of equality and justice by granting the executive emergency powers when necessary to preserve democratic institutions.

Despite obvious differences, reformers also advocate the national interest and want their party to win the 1996 national elections. Sound reasoning supported by factual evidence alone is insufficient to resolve the Prime Minister's a complex dilemma. In a democratic society based on popular sovereignty, the people retain ultimate authority to direct their leaders' basic human rights choices. An educated electorate requires not only information, but also training in the analytical skills required to choose between competing values.

The case forces students to select between competing authority and values to resolve a dispute that has no clear answer. William Perry's work on the stages of intellectual development reveals the need to cultivate uncertainty in undergraduates' world view.6 High school graduates bring to college a dualistic mind set and ask to be taught the truth. Professor, what is the correct answer? How can there possibly be more than one way to solve that problem and still get it right? Dualists with simplistic views of truth and justice regard attorneys as unprincipled hired guns. The case method complicates that reality.7

The author has assigned the case for discussion and role playing in two undergraduate international law and human rights classes that enrolled about forty students at the University of Cincinnati. In written homework papers completed prior to class discussion, most students uncritically defended all the proposed reforms. An international student from the Punjab elected to play an anti-terrorist role and demonstrated greater sensitivity to national sovereignty than his U.S. classmates. The U.S. students eagerly held India's leaders to higher standards under international law than Washington officials have accepted when pressed to honor UN human rights norms. Very few papers attempted to select and combine from the best points competing positions into an original package of policy decisions. Students could have been challenged to think more critically if assigned either to support the case for emergency powers position or to write as a Prime Minister seeking to engineer a balanced decision. For more advanced students, the case might be presented without listing different reform options so that participants would be challenged to create more original recommendations.

Discussion Questions and Answers

[T]he alternative to furnishing ready-made subject matter and listening to the accuracy with which it is reproduced is not quiescence, but participating, sharing in an activity. In such shared activity, the teacher is a learner, and the learner is, without knowing it, a teacher.

John Dewey


Craig Nelson labels the elementary stage of cognitive development the "Sergeant Friday" approach, using "just the facts" to establish an unequivocal truth.8 At the intermediate level of cognitive development, Nelson describes a "Baskin and Robbins" mode when student relativists find some validity in every individual's unique tastes and have little basis for making value judgments. At the highest level of moral reasoning, the course instructor may enlist advanced students in evaluating universal principles, cultural relativism, and situational ethics.

In an undergraduate class of "Sergeant Friday" thinkers, the "Baskin and Robbins" answers that seek to reconcile conflicting values illustrate the type of legitimate uncertainty that would demonstrate development of intermediate level critical thinking skills. Reasonable minds may differ on how Prime Minister Rao should address three main issues presented in the case. What appears correct from a security perspective may seem erroneous to a rule of law advocate. The problem has no simple solution or "correct" answers, and reasonable minds will disagree.

Additional Questions for Comparative and Ethical Analysis

1. If the execution of juvenile killers in Texas and South Carolina violate U.N. human rights standards, should the United States bar the capital punishment of minors to comply with international law?

The United States and India are both pluralistic, federal, democratic systems that resist international encroachment on sovereign prerogatives. Students who supported policy reform by India's Prime Minister must offer a plausible rationale if they object to U.S. compliance with international law on the death penalty.

2. Can Americans legitimately demand that India and other countries observe international human rights law, if the U.S. refuses to respect the same U.N.treaties?

Some international human rights guarantees are inferior to protections afforded by the U.S. Bill of Rights. The case explains how the UN civil and political covenant permits governments to suspend rights in time of emergency. Contrary to Supreme Court interpretation of the U.S. Constitution, international law allows states to censor the press, to punish hate speech, and to impose preventive detention. Capital punishment is one of several government powers subject to greater limit under international than in U.S. law. Individual rights proponents favor extension of human rights otherwise unavailable via the Bill of Rights without yielding to the state any of the internationally recognized power to derogate from Constitutional guarantees.

3. Should national unity or the government's political survival take priority over respect for the rule of law?

A comparative analysis of India and the U.S. again could inform the answer. When southern states seceded to form the confederacy, President Abraham Lincoln unilaterally suspended fundamental Constitutional restraints to save the union. Congress subsequently ratified his emergency measures, and Supreme Court decisions during the Civil War ratified draconian measures. The executive nonetheless was rebuked by the court after the war ended, and Presidents Truman and Nixon were held to have exceeded their powers during the Korean and Vietnam Wars.

4. When vital principles of justice and security conflict, which should prevail?

Moral absolutism dictates universal respect for principle, but there is no global consensus on fundamental norms. If human life is to be cherished above all other values, the policymaker still does not know for certain whether more lives would be saved or lost by greater respect for human rights. Rather than suggesting a clear answer, the case presents a dilemma that may stimulate inquiring minds to further study, reflection and discussion.

References on Case Problems and the Case Study Method

Teaching Cases and Faculty Development Conferences

The Pew Case Study Center of Georgetown University and the John F. Kennedy School of Government at Harvard make available a range of case problems suitable for use in several social science disciplines as well as in business, law, and related professional programs.

Endnotes

1 Contact Person: Howard Tolley, Jr., Political Science Department, M.L. 375, University of Cincinnati, Cincinnati, OH 45221; Phone: (513) 556-3316; FAX: (513) 556-2314; E-mail: Howard.Tolley@UC.Edu; Homepage: http://homepages.uc.edu/~tolleyhb/
2 The debate format was modeled on Pew Case Study #515 by Tom Farer, Human Rights and Foreign Policy: What the Kurds Learned (A Drama in One Act). The appended reference section identifies several online sources and catalogs of case study problems as well as articles explaining the case study method.
3 Benjamin S. Bloom, Taxonomy of Educational Objectives, Handbook I: Cognitive Domain. N.Y., McKay: 1956.
4 T. Romm and S. Mahler, "A Three dimensional model for using case studies in the academic classroom". Higher Education, 15(6), 677-696, at 687, 1986.
5 J. Kleinfeld, "Changes in problem solving abilities of students taught through case methods." Paper presented at the Annual Meeting of the American Educational Research Association, Chicago, IL. (ERIC Document Reproduction Service No. ED 334 154.)
6 W.G. Perry, Jr., Forms of Intellectual and Ethical Development in the College Years, A Scheme. Holt, Rinehart and Winston, 1970. Craig Nelson, Professor of Biology, Indiana University regularly offers workshops on critical thinking at Lilly conferences (see appendix). See Craig Nelson, "Tools for Tampering with Teaching's Taboos," in New Paradigms for College Teaching, William Campbell and Karl Smith, eds., Interaction Books, 1997. Craig Nelson, "Collaborative Learning and Critical Thinking" in K. Bosworth and S. Hamilton, eds.: Collaborative Learning and College Teaching, Jossey-Bass, 1994.
7 Pat Hutchings, Using Cases to Improve College Teaching, AAHE, 1993. Louis Barnes, et al., ed., Teaching and the Case Method, Harvard Business School Press, 1994.
8 Craig Nelson, Professor of Biology at Indiana University, regularly offers workshops on critical thinking at Lilly conferences (see appendix). See Craig Nelson, "Tools for Tampering with Teaching's Taboos," in New Paradigms for College Teaching, William Campbell and Karl Smith, eds., Interaction Books, 1997. Craig Nelson, "Collaborative Learning and Critical Thinking" in K. Bosworth and S. Hamilton, eds.: Collaborative Learning and College Teaching, Jossey-Bass, 1994.