Odyssey Dawn, a Homeric tragedy

Two games of domino are under way in West Asia and North Africa, one of mass struggle against U.S.-backed regimes, the other of military intervention aimed at co-opting or defeating the popular revolts...





March 24, 2011
The Hindu

Odyssey Dawn, a Homeric tragedy

Siddharth Varadarajan

Muammar Qadhafi may be a threat to his own people but the bombing of Libya by France, Britain and the United States demonstrates beyond doubt that these three imperial powers are a threat to international peace and security.

With its overdeveloped military capabilities and astonishing levels of political cynicism, the West's drive to intervene in the internal affairs of the North African republic has been remarkably smooth and swift. Thanks in no small measure to a ‘global' news media with an inexhaustible capacity to serve as cheerleaders for war, U.S., British and French ordnance has started raining down on Libya barely weeks after the civil war there began. The West's latest adventure has also been helped along by the naivety of liberals and leftists, last seen in action during Nato's aggression against Yugoslavia in 1999. Of great help, too, has been the opportunism of the Arab League, all of whose members, without exception, run regimes that throttle the voice and rights of their own citizens.

Though Brazil, Russia, India, China and Germany abstained when the sanction for intervention was put to vote in the United Nations Security Council last week, it does not absolve them of their failure to mount an effective political challenge to the drive for war. Since these countries knew the consequences of this irresponsible course of action, they should have moved quickly to mobilise the African Union, of which Libya is a part, so that the “regional” imprimatur for war which the P-3 fabricated with the help of the League of Arab States could have been countered. Russia and China should also have insisted that they would veto the resolution if any attempt were made to push it through without the Security Council first hearing a comprehensive report on the situation in Libya from the Secretary-General's Special Representative.

We know from the absence of concrete or credible media reports on mass civilian casualties that any delay caused by a high-level external political initiative would not have led to a humanitarian catastrophe. Ironically, journalists from the West and other Arab countries had free access to eastern or “liberated” Libya, for at least three weeks prior to the U.N.'s authorisation of force. This was the period when Col. Qadhafi's use of his air force first prompted western calls for a no-fly zone. Despite this, the death toll of combatants and civilians the journalists in eastern Libya reported was not that much higher than the total number of civilians killed by the Hosni Mubarak regime in Egypt.

The decision to attack Libya is wrong on three grounds. First, the motive is not humanitarian but political and strategic. Second, it rests on dubious legality. Third, the intervention, because it is poorly conceived and ill-thought out, is likely to cause more harm than good for Libya, its people and the wider region.

Let's start with the motives. The ‘responsibility to protect' doctrine which morally underpins the attack on Libya is still not a part of customary international law but even its advocates must agree that the selective and politically expedient invocation of R2P robs the doctrine of its normative force.

Why does only Libya get attacked or referred to the International Criminal Court and not other countries? If there is one country in the Middle East which has threatened international peace and security for decades and which, even as these words are being written, has launched its air force, yet again, against a defenceless civilian population, it is Israel. Yet never have the cheerleaders for the war on Libya argued in favour of a mandatory no-fly zone to protect the Palestinian and Lebanese people from Israeli airstrikes.

Two years ago, just before the inauguration of Barack Obama as President of the United States, the Israeli military killed hundreds of Palestinian civilians in Gaza. Unencumbered by high office but with an election victory securely under his belt, Mr. Obama could easily have said something to urge the Zionist regime to back off. He famously said and did nothing and went on to win the Nobel Peace Prize for his silence. When a U.N. report authored by Judge Richard Goldstone of South Africa catalogued the war crimes Tel Aviv had committed during that war, the U.S. used its diplomatic clout to ensure the matter never came before the Security Council. Had it come, of course, any proposed action — such as a Libya-style referral to the ICC — would have been vetoed in the same manner as the U.S. vetoed the recent 14-1 draft UNSC resolution condemning Israel for its illegal settlements in the Occupied Territories.

Elsewhere in the region, civilians have been killed in Bahrain and Yemen, both client regimes of the U.S., drawing only mild public criticism even as every effort is made by America and its allies to bolster these undemocratic regimes militarily so that they can suppress the aspirations of their people.

Today, there is much hypocritical hand-wringing in Arab capitals that the western coalition's military campaign has gone beyond the original ambit of enforcing a ‘no-fly zone.' In fact, the text of UNSC resolution 1973 of March 18, 2011 is clear and unambiguous. Enforcement action in support of a no-fly zone is only a part of the wider use of force that UNSCR 1973 permits since the resolution “Authorizes Member States … to take all necessary measures … to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory.”

Anyone familiar with U.N. matters knows that the crucial words in the resolution are “to take all necessary measures.” In the past, those five words have been enough to launch a thousand ships and missiles to distant shores and there was no reason to imagine that France, the U.S. and Britain would be restrained in interpreting and implementing their mandate this time round. Since the insurgent forces are operating in “civilian populated areas,” any military attempt by the Libyan authorities to re-establish control over the country can legitimately be considered a trigger for the West “to take all necessary measures.”

The problem with UNSCR 1973 is not the in-built ‘mission creep' but the fact that it is ultra vires. No resolution can violate the principles and purpose of the U.N. Charter. Article 2(7) is quite explicit: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.” Customary international law recognises that a sovereign state indulging in genocide, war crimes or crimes against humanity cannot hide behind the shield of domestic jurisdiction but it is far from obvious that the Libyan regime — odious, undemocratic and violent though it undoubtedly is — has engaged in acts which cross that threshold. There are civil wars and international conflicts where the number of civilians killed by belligerents has been much higher — Iraq, Afghanistan, Pakistan, Gaza — but the international community has not treated these as war crimes worthy of intervention. In the absence of some reliable metric, then, UNSCR 1973 cannot authorise something that the U.N. Charter explicitly prohibits.

Turning from law to politics, one might still conceivably argue that some “higher purpose” justifies the western bombing of Libya if there were a reasonable expectation of a happy ending. Like the West's other wars in the wider region, however, its latest misadventure seems destined to run aground. The Iraqi and Afghan experiences demonstrate that establishing a new state, even in situations where the old regime is overcome quickly by military means, is a difficult process. The U.S. is a distant power and can afford to play games with the lives of other regions. But France and Britain will pay for fuelling instability and violence across the Mediterranean. The highest price, of course, will be paid by the people of Libya who have surrendered the initiative for change within their country to the U.S. and its allies and agents. Like the Iraqis who foolishly welcomed the American invasion of their country in 2003, the Libyans who wanted Operation Odyssey Dawn may well end up taking part in a tragedy of Homeric proportions.

A modest proposal on AFSPA

Change the blanket ban on trials without official sanction to one where the government has the power to bar prosecution in individual cases provided it satisfies the courts that its reasons for doing so are valid...


6 September 2010
The Hindu

A modest proposal on AFSPA

Siddharth Varadarajan

The Armed Forces (Special Powers) Act has come in for widespread criticism in Jammu and Kashmir, Manipur and other parts of the northeast because of the human rights abuses that have come to be associated with its operation. So strong is the sentiment against AFSPA in Kashmir that in recent months Prime Minister Manmohan Singh, Union Home Minister P. Chidambaram and Jammu and Kashmir Chief Minister Omar Abdullah have all spoken of the need to re-examine the law. The Army, on the other hand, says this is unnecessary.

The Army Chief, General V.K. Singh, has gone so far as to say that the demand for the dilution of AFSPA is being made for “narrow political gains.” On his part, Lt. Gen. B.S. Jaswal, GOC-in-C, Northern Command, has compared the Act to scripture. “I would like to say that the provisions of AFSPA are very pious to me and I think to the entire Indian Army. We have religious books, there are certain guidelines which are given there, but all the members of the religion do not follow it, they break it also … does it imply that you remove the religious book …?”

On paper, AFSPA is a deceptively simple law. First passed in 1958, it comes into play when the government declares a particular part of the northeast (or Jammu and Kashmir under a parallel 1990 law) a “disturbed area.” Within that area, an officer of the armed forces has the power to “fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances.”

Even though activists have made this the focus of their criticism, giving soldiers the “right to kill” is not, in my opinion, AFSPA's principal flaw. After all, if a ‘law and order' situation has arisen which compels the government to deploy the Army, soldiers have to be allowed to use deadly force. Even a private citizen has the right to kill someone in self-defence, though the final word on the legality of her or his action belongs to the courts. Similarly, a civilised society expects that the use of deadly force by the Army must at all times be lawful, necessary and proportionate. Here, the Act suffers from two infirmities: the requirement of prior sanction for prosecution contained in Section 6 often comes in the way when questions arise about the lawfulness of particular actions. Second, AFSPA does not distinguish between a peaceful gathering of five or more persons (even if held in contravention of Section 144 of the Criminal Procedure Code) and a violent mob. Firing upon the latter may sometimes be justified by necessity; shooting into a peaceful assembly would surely fail any test of reasonableness.

Leaving this issue aside, however, it is important to recognise that AFSPA does not give an officer the unqualified right to fire upon and cause the death of any person in a Disturbed Area. At a minimum, that person should have been carrying weapons or explosives. The shooting of an unarmed individual, and the killing of a person in custody, are not acts that are permissible under AFSPA. Force is allowed in order to arrest a suspect but the fact that the Act authorises the use of “necessary” rather than “deadly” force in such a circumstance means the tests of necessity and proportionality must be met.

Over the years that AFSPA has been in operation, the Army has opened fire countless times and killed hundreds, if not thousands, of people. Whenever those killed have been armed insurgents or terrorists, there has been little or no public clamour against the Act. It is only when the armed forces violate the provisions of the law and indulge in the unlawful killing of persons — especially unarmed civilians — that voices get raised against AFSPA. The protests in Manipur in 2004 reached a crescendo because of the death in custody of Th. Manorama and scores of others like her. In Kashmir, sentiments against the Armed Forces Act got inflamed because of fake encounter incidents like Pathribal and Macchhil.

If today people are questioning General Jaswal's “religious book,” it is not so much because of its provisions as because of the failure of its custodians to act when the law is flouted. The Lord's Word threatens sinners with fire and brimstone, eternal damnation or the endless cycle of births and deaths. But AFSPA holds out no such horrors for the soldiers who violate its provisions. Section 6 says “no prosecution … shall be instituted, except with the previous sanction of the Central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.” This requirement confers de facto impunity on all transgressors. Thus the CBI may have indicted army officers for the murder of innocent civilians at Pathribal in 2000 but their trial cannot take place because the Central government refuses to give sanction. What is worse, the Minister concerned does not even have to give any reasons.

The ostensible logic behind this Section, a variant of which can be found in Section 197 of the CrPC and in many Indian laws, is to protect public servants from frivolous or vexatious law suits. But though it has not ruled on the ambit of AFSPA's Section 6, the Supreme Court has often declared that the object of Section 197-type protection is not to set an official above the common law. “If he commits an offence not connected with his official duty he has no privilege.”

In the Pathribal case, the CBI took the view that abducting and killing unarmed civilians in cold blood could not be considered part of “official duty.” Not only did the MoD reject this logic, it moved the Supreme Court for quashing of the case on the ground that it has not granted sanction to prosecute. At no time has it been asked to furnish reasons for denying sanction.

A government which has faith in the actions of its officers and the robustness of its judicial system ought never to shy away from allowing the courts to step in when doubts arise. And yet, in case after case, legal proceedings get stymied by the denial of official sanction.

In a democracy, this requirement of previous sanction should have no place. But given the balance of political and institutional forces in India today, it is utopian to believe it can simply be done away with. What I am proposing, therefore, is a modest remedy. Let us not tamper with the government's ability to protect officers from criminal proceedings. But instead of the default setting being ‘no prosecution without official sanction,' let the blocking of a prosecution require official action.

Section 6 could thus be amended to read: “No prosecution … shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act where the Central government provides reasons in writing and the competent court upholds the legal validity of these reasons.”

Such a provision would prevent good officers from being prosecuted for killings which result from acts of good faith while allowing the bad apples to be prosecuted for their crimes. The government would still have the right to intervene on behalf of a soldier who has committed an illegal act. But this would require a Minister to take personal responsibility for a decision that would, after all, be tantamount to denying justice to the victim's family. In the Pathribal case, for example, Defence Minister A.K. Antony would be compelled to inform the trial court of his reasons for opposing the prosecution of soldiers indicted by the CBI for murder. And the court would get to rule on whether Mr. Antony's reasons were valid or not.

There is no reason why this inversion of the “previous sanction” provision cannot be replicated across the board in all Indian laws to cover situations where human rights abuses are alleged. Such a provision would not disturb the basic provisions of AFSPA. But it would bring that “religious book” in closer conformity with an even holier tome, the Constitution of India.

Last chance to fix flawed torture Bill

The draft law excludes many scenarios and forms of torture rampant in India. The Rajya Sabha must insist on amendments...








27 August 2010
The Hindu

Last chance to fix flawed torture Bill

Siddharth Varadarajan

The Prevention of Torture Bill, 2010, which the Rajya Sabha will take up for consideration on Friday, is a deeply flawed piece of legislation that will weaken, rather than strengthen, existing legal sanctions against a crime that is widely acknowledged to be rampant across India.

Though the Lok Sabha approved the Bill without changes on May 6, it is essential that the upper house remedies the flaws it contains before it is too late.

The stated purpose of the law is to fulfil the country's obligations under the United Nations Convention Against Torture (CAT). India signed the Convention in 1997 but is perhaps the only democracy yet to ratify it. But if this belated push for ratification is a welcome development, the weak provisions of the proposed law bear little resemblance to the contents of the CAT.

The definition

Let us start with the definition of torture. This is how the Convention defines it. Article I says “torture” means any act done by or with the consent or acquiescence of a public official “by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind.”

The Indian draft borrows some of this language but arbitrarily narrows the scope of this Article. According to Section 3 of the Bill, torture will said to have been inflicted only when “(i) grievous hurt to any person; or (ii) danger to life, limb or health (whether mental or physical) of any person” is caused by public servants for the purposes of “obtain[ing] … information or a confession from him or a third person”.

In other words, torture that is in inflicted by the police or a public servant as a form of punishment, intimidation or coercion will not be considered “torture” under the new law. Nor will any torture visited on an individual solely on account of her or his religion, caste, gender or economic status.

The omission of such situations — as envisaged by an international convention to which India is a party — is unforgivable given the prevalence of torture for these very reasons.

What makes this definitional narrowing even more problematic is the high threshold set for torture itself. The CAT speaks of “severe pain or suffering” rather than “grievous hurt” or “danger to life, limb or health” because it is the infliction of severe pain which is common to all forms of torture, even those which do not have long-term consequences for the health of the victim. Electric shocks, water boarding and the insertion of chilli powder in the sensitive parts of an individual's body will cause severe pain or suffering without necessarily endangering her or his health or even causing “grievous hurt”. Why has the Manmohan Singh government chosen such a narrow definition, excluding both motives for, and forms of, torture that are widely prevalent in India?

Having defined torture in such a restrictive way, the Bill goes on to narrow it even further in Section 4, which deals with punishment. It says a public servant shall be punishable for up to 10 years if he tortures any person “(a) for the purposes of extorting from him or from any other person interested in him, any confession or any information which may lead to the detection of an offence or misconduct; and (b) on the ground of his religion, race, place of birth, residence, language, caste or community or any ground whatsoever”.

Here, it would seem that even the class of persons who are tortured in order to extract a confession or some information from them must fulfil another condition before they can be considered torture victims: they must also have been targeted on account of some ascriptive identity. When Section 3 defines what constitutes torture, it is strange that the section on punishment should confine itself to torture done on specific grounds.

Cruel irony

Another major flaw with the Bill is the six-month time limit a torture victim is given under Section 5 to file a complaint. This is especially problematic for cases of custodial torture, which, unfortunately, are the norm in India. Most victims of torture may not feel confident about filing a complaint when the policemen or public servants who tortured them continue to have the capacity to inflict bodily harm. And, in a cruel irony, any act of violence inflicted upon a complainant — since the aim is not to make them confess or provide information but simply to coerce them into withdrawing their charges — would actually be excluded from the Prevention of Torture Bill's definition of torture.

Despite the gravity of the offence — which cannot be considered part of the legitimate discharge of duty by a public servant — the Bill has a section which says that “previous sanction” of the Central or relevant State government is needed in order for a court to take cognisance of an offence. In other words, after arbitrarily narrowing the scope and definition of torture and making it extremely difficult for a victim to file a complaint, the government gives the torturers within its ranks yet another layer of protection. Across India, there are dozens of cases in which sanction to prosecute is never given despite public officials being accused of heinous crimes. The inclusion of “previous sanction” in the torture Bill does not speak well of the government's intentions.

Even at this late stage, it is essential that the Rajya Sabha makes four changes.

First, the definition of torture should be harmonised with CAT, to which India is a signatory.

Second, Section 4 dealing with punishment should be harmonised with the updated definition of torture.

Third, there should be no time limit for a victim to file a torture complaint. Torture is a crime and if other crimes are not subject to an arbitrary ‘statute of limitations', why should this?

Fourth, the Section on previous sanction should be deleted or altered to say that where the government is of the view that a public servant should not be prosecuted for the crime of torture, it must state the reasons in writing.



Update #1: 10 MPs want torture Bill referred to panel
The Hindu 29 August 2010

Update #2: Rajya Sabha Refers Torture Prevention Bill to Select Committee
The Hindu 31 August 2010

Ottawa, you have a problem

If Canada denies a visa to individuals accused of specific human rights violations, no one would have a problem. But to treat the Indian armed forces as some sort of criminal outfit is inexcusable...







28 May 2010
The Hindu

Ottawa, you have a problem

Siddharth Varadarajan

Even if legal concepts like universal jurisdiction remain controversial, the globalisation of economic and family life means individuals who violate human rights can no longer count on being shielded forever by the walls of national sovereignty. Your government may not prosecute you for the crimes you have committed but if your offences are serious enough, the chances are that some court in some other country might. As Israeli officers and politicians are today discovering, and as the late Chilean dictator Augusto Pinochet realised in 2000, international journeys are an indulgence to be undertaken with extreme caution if your curriculum vitae includes the commission of war crimes, genocide or crimes against humanity.

Opinions differ but I am convinced this is a good thing. Every country that values the rule of law must ensure that no individual, regardless of official affiliation, enjoys impunity. There are some crimes, like genocide or war crimes or torture, which are an affront to human civilisation regardless of where they have been committed. While foreign courts may or not entertain suits against visiting individuals responsible for such crimes, countries are under no obligation to let them enter their territory. Often, the well-publicised denial of a visa to a leader or official or soldier can have a salutary impact on the struggle for justice in their home country. Subjecting a known violator of human rights to an international boycott is the next best thing to actually prosecuting him.

In 2002, Canada passed the Immigration and Refugee Protection Act to take account of its Crimes against Humanity and War Crimes Act introduced two years earlier. Section 35(1)(a) of the Immigration act says that persons who might have committed an act of commission or omission outside Canada that falls under the definition of genocide, war crimes or crimes against humanity are ineligible for entry into the country.

As a measure of the seriousness with which this provision is regarded, the Department of Citizenship and Immigration/Canadian Border Services Agency has a Modern War Crimes Section with a Resource Centre staffed by 70 to screen visa applicants. According to a 2004 paper by Joseph Rikhof, Senior Counsel in the Crimes against Humanity and War Crimes Section of the Canadian Department of Justice, the Resource Centre is “designed primarily to provide research support to regional field officers, immigration analysts and other enforcement partners in identifying visa applicants and individuals in Canada who may have been involved in war crimes. The Resource Centre also serves as a central repository of current information such as news reports or bulletins gathered from media sources and international human rights organisations”. By 2004, a total of 2,366 “persons complicit in war crimes or crimes against humanity had been refused visas to come to Canada”.

Though the statistics are impressive, one wonders how effective this research process actually is, at least as far as potential migrants from India with a murky past are concerned. For as several visa denial cases which have recently come to light in India demonstrate, Canadian officials appear to have adopted an ill informed, broad-brush approach by which anyone associated with the Indian army, Border Security Force, Intelligence Bureau and other security-related agencies is regarded as a criminal and, thus, ineligible for entry.

When an organisation or agency or state whose involvement in the serious and systematic violation of human rights is so well documented as to brook no second opinion – think the Nazis, the Interahamwe of Rwanda, the Khmer Rouge of Cambodia — denying entry to anyone connected with the regime may well be a good policy. But is it valid to treat the institutions of the Indian state in this manner?

It is true that individual soldiers, constables and officers have committed serious human rights violations in Jammu and Kashmir and virtually every part of the country. It is also true that the Indian criminal justice system often fails to take effective punitive action against these individuals. But the question that needs to be asked is whether these violations – and the failure to prosecute — are so systematic, large-scale and widespread as to cross the threshold and implicate the entire state machinery and system in a vast criminal enterprise.

The Canadian visa officials seem to be operating on the assumption that Indian state institutions are indeed beyond the pale. None of the ex-army men whose cases have come to light were denied visas because of their individual involvement in specific human rights violations. But the fact that they served in Jammu and Kashmir with the army or BSF appears to have become the sole reason for being considered guilty of crimes against humanity.

The irony is that Major Avtar Singh, formerly of the 35th Rashtriya Rifles, an ex-officer accused by a Budgam court of murdering the Kashmiri human rights lawyer Jalil Andrabi in 1996, is by some accounts, happily settled in Canada, having migrated there a few years ago. If the Canadian government were to refuse entry to such individuals or even expel them, it would not only be true to the letter and spirit of its immigration law but would also give a boost to those in India who are trying to push the system to take human rights more seriously. Instead of catching this sort of fish, however, it has cast a huge net. The current visa rejections reflect the futility of this approach.

One of the ‘rejection' letters written by the Canadian High Commission to a former BSF constable refers to ‘open source' material on human rights violations committed in Kashmir. One could easily add that there is open source material on the complicity of the Canadian armed forces in the torture of Afghan civilians.

While Canada will have to reverse its over-the-top approach or face the consequences of a diplomatic chill with India, there is also a lesson in this for the Indian government. It needs to take human rights violations more seriously. The BSF men who killed innocent civilians in Bijbehara in October 1993, for example, despite overwhelming evidence that their firing was unprovoked. The Home Ministry refused to share the proceedings of the General Security Force Court which acquitted them with the National Human Rights Commission. The NHRC said it was “deeply disturbed” by this refusal and even moved the Supreme Court before quietly withdrawing from the matter. Our national outrage at the Canadian characterisation of the BSF would have carried more weight if the Bijbehara episode had a happy ending. The 14 men involved never made it on to any visa blacklist. But they managed to blacken the name of their force.

In much the same way, Canadian peacekeepers involved in the 1993 murder of a Somali teenager, Shidane Arone, may have gotten away with relatively light punishment but they disgraced their country's army in the eyes of the world. Like the BSF, the Canadian armed forces' actions in Somalia or Afghanistan do not make it a “notoriously violent” institution, the phrase used by Ottawa's visa officials to describe the Indian security forces. But they do mean Canada is living in a glass house and cannot afford to throw stones.

Most governments tend to be reluctant to act promptly and sternly against human rights violators in uniform for fear of affecting the “morale” of the security forces. What they don't realise is that a few rotten apples will end up ruining the reputation of the barrel unless they are swiftly dealt with. Long after the current visa crisis blows over, this is a lesson India can ill afford to ignore.

This war can’t be won by mines and bullets

It is not litigants who’ve gone to court seeking the rehabilitation of civilians or ‘civil society activists’ but the Maoists and the State who must answer for the deaths of innocents in Chhattisgarh...






20 May 2010
The Hindu

This war can’t be won by mines and bullets

It is not litigants who’ve gone to court seeking the rehabilitation of civilians or ‘civil society activists’ but the Maoists and the State who must answer for the deaths of innocents in Chhattisgarh

Siddharth Varadarajan

Whether Operation Green Hunt actually exists or is, as P. Chidambaram insists, a figment of the media’s imagination, Monday’s deadly Maoist attack on a bus in Dantewada suggests it is the hunted that are doing most of the hunting.

Over the past six weeks, the Maoists in Chhattisgarh have killed more than 90 policemen or jawans from the CRPF or local constabulary. The 76 men killed in Chintalnar in April represent, perhaps, the highest casualty figure sustained by state forces in a single incident in a war anywhere in the world in years. Apart from the six villagers executed on Sunday after a kangaroo ‘peoples court’ found them guilty of being “informers”, the Communist Party of India (Maoist) killed 15 civilians in their attack on the bus, injuring scores more.

In the latest incident, the primary target was probably the group of Special Police Officers (SPOs) who were travelling on the roof of the bus. But even so, the fact that the bus was full of civilian passengers would have been obvious to the Maoist commanders whose spotters were apparently tracking the SPOs. That they chose to go ahead and detonate the land mine or IED by remote control knowing a large number of non-combatants would die should be a lesson for anyone who harbours illusions about the Maoists and their project.

When I had the opportunity to put some questions in writing to Azad, spokesman of the Maoists, in March, I was keen to push him on whether or not his party believed it had an obligation to conform to international humanitarian law. This is the body of rules which regulates armed conflict. The targeting of civilians and the killing of captives, for example, is expressly forbidden. As a format, written questions and answers do not allow the interviewer to pose counter-questions. Given this limitation, I anticipated the answer Azad would give on the question of the laws of war – that his fighters were not obliged to follow them because the government itself wasn’t doing so – and suggested this was tantamount to admitting the Maoist party subscribes to the same political culture and moral universe as the state it condemns. This suggestion of mine was met with silence but the attack on the bus is answer enough. The Maoists are not Gandhians with guns.

The authorities can console themselves by saying the latest attack shows the “growing desperation” of the Maoists, or that the targeting of civilians by them will be their undoing. But the fact is that by any metric of warfare, they are the ones who seem to have the upper hand. And they have it not because Indian democracy is robust enough to allow for a debate on the rights and wrongs of official policy or for PILs to be filed in the Supreme Court but because the CRPF, local police and SPOs on whom the Chhattisgarh government and Centre rely lack training, discipline, equipment, mobility and motivation. Instead of squarely facing this problem, Mr. Chidambaram and his colleagues in the Home Ministry are busy pointing fingers at others or bemoaning the lack of a “mandate” to fight the Maoists.

More than “social activists”, it is the government that ought to be concerned about the fact that many of the “successes” notched up by the security forces in Chhattisgarh have turned out to be bogus. For example, most of the dozen odd naxals supposedly killed in a fierce encounter last fall near Gompad were innocent villagers, some of them elderly.

There is both a moral and a military issue at stake here. Killing innocent people is wrong but it is also militarily foolish. Passing off ordinary villagers as Maoist combatants and faking entries in official log books may help the security forces present an inflated account of their success but will make actual victory on the ground even more difficult. On Tuesday, the Home Minister reiterated the importance of the so-called “two-pronged strategy” to deal with naxalism: “One prong is police action, and the other prong is development”. Unfortunately, neither prong is being followed very effectively. Indeed, the fact that there is today in Chhattisgarh an inversion of the supposed hunt is precisely because the state and central governments have made a mess of both policing and development. Thanks to a disastrous counterinsurgency strategy, several hundred innocent villagers have been killed, thousands of dwellings destroyed and tens of thousands of adivasis displaced. In Gompad last year, the SPOs cut off the fingers of a two-year old boy, Suresh. The Hindu published his photograph on October 20, 2009. Not one word of condemnation or remorse was heard from Mr. Chidambaram or his ministry.

Far from weakening the Maoists as its supporters claimed it would, the Salwa Judum vigilante movement which both New Delhi and Raipur patronised for years has strengthened the insurgents. This is precisely what the petitioners who filed a PIL in the Supreme Court in 2007 against the vigilantes had warned would happen.

In a recent RAND Corporation monograph, How Insurgencies End: Key Indicators, Tipping Points, and Strategy, Ben Connable and Martin Libicki conclude their survey of 89 past and present insurgencies by noting that ‘anocracies’ are the one form of government least likely to prevail over an insurgent force. Democracies do best and dictatorships sometimes prevail through sheer repression but the anocracies do worst. An anocracy is a phony democracy, which is good at neither proper democratic methods nor full-fledged autocracy. Its institutions are weak and poorly developed, offering little possibility for the government to isolate an insurgency from the people in whose name the fight is being waged. But the need to preserve the façade of democracy also means the full panoply of repressive measures – air strikes, mass arrests, censorship – is not available either.

India may be an imperfect democracy but I do not believe it is an anocracy. And yet, one could argue that state practice in Dantewada and other parts of India is anocratic. Based on the RAND data, then, it is safe to assume the Maoists are not going to be defeated any time soon. The choice we face is to democratise or autocratise the state’s response and the wider machinery of governance. Those who want to autocratise favour a dramatic escalation of the war, the rapid deployment of large numbers of security personnel, the use of air strikes. They are also intolerant of dissent and are quick to label any criticism of official policy as ‘support for Maoism’.

Prime Minister Manmohan Singh and Congress president Sonia Gandhi are coming under intense pressure from this faction but they know the problem will grow exponentially if the government goes autocratic. And yet, they lack the confidence to democratise. What would democratisation as a counter-insurgency strategy look like? First, this requires strict adherence to the laws of war. No one can question the state’s right to fight those who take up arms against it. But non-combatants must never be targeted, let alone allowed to get in harm’s way. This would also mean ending the practice of billeting jawans in school buildings and other civilian infrastructure or hitching rides on civilian transport. India may not have signed the Geneva Convention additional protocol on internal armed conflict but Common Article 3 of the four conventions to which India is a party – not to speak of the Indian Constitution – prohibits violence against those not taking active part in hostilities or against combatants who are in custody. The reason the laws of war are important is that they provide a measure of protection to both sides, not to speak of civilians.

Second, the Centre should support the plan, currently before the Supreme Court, for the comprehensive rehabilitation of all those displaced by the violence in Dantewada. Third, the government should seriously consider a mutual ceasefire so as to push the Maoists towards dialogue. The cessation of hostilities, if extended, would allow the Dantewada rehabilitation plan to be implemented under the overall supervision of the apex court. Fourth, every manifestation of autocratic behaviour – the farcical public hearings on land acquisition for mining and power projects, the filing of criminal cases against poor adivasis for minor violations of the Forest Act, has to stop.

As for the Maoists, they need to realise this is not a war they can win. The Indian state’s capacity to absorb punishment is far greater than the Maoists’ ability to inflict violence. Whatever else its lacks, India certainly doesn’t need more soldiers, guns and IEDs. What it could use is a strong political movement to give voice to the aspirations of ordinary workers, peasants, tribals, women and other marginalised sections. Mao may have said power flows out of the barrel of the gun. But he also said to put politics in command. Alas, in Chhatisgarh today, there is no politics.

The buck must stop at the very top

The SIT’s decision to question Narendra Modi for the Gujarat riots underlines the reason why the new Communal Violence Bill must embrace the doctrine of command responsibility ...






20 March 2010
The Hindu

REALITY CHECK
The buck must stop at the very top
The SIT's interest in questioning Narendra Modi for the Gujarat riots underlines the reason why the new Communal Violence Bill must embrace the command responsibility doctrine...

Siddharth Varadarajan

The Special Investigation Team's decision to summon Narendra Modi marks the first time any judicial or quasi-judicial body has seen fit to ask the Gujarat Chief Minister what exactly he was doing when murderous mobs took charge of his state in 2002.

From February 27 — when the Sabarmati Express was attacked by a mob at Godhra — to mid-March, by which time the worst of the targeted violence was over, more than 1,500 Muslims lost their lives across Gujarat. The Justice Nanavati Commission is probing the matter and criminal cases stemming from the violence are at various stages of completion. Despite these, there has, as yet, been no proper accounting for the mass killing and destruction of property. Disturbed by the lack of investigative and prosecutorial enthusiasm within Gujarat, as evidenced by speedy acquittals of the accused, the Supreme Court transferred two cases outside the State. It set up the SIT to help with the probe into a number of high profile incidents. It also put the State government on notice for its failure to punish the guilty, describing Mr. Modi and his colleagues as “modern day Neros” who chose to look the other way while Gujarat burned.

Any society built on the foundations of law would not require the widow of a victim to petition the highest court of the land in order to investigate the reasons behind the state's failure to protect the life of its citizens during those fateful days. The fact that the apex court's intervention was necessary is itself an indictment of the Chief Minister, under whose watch such large-scale death and destruction took place, and under whose leadership, eight years on, justice continues to be elusive.

The petition filed by Zakia Jaffrey and the Citizens for Justice and Peace asks questions that any honest investigator probing the violence would want to ask. At stake is not so much the individual guilt or innocence of Mr. Modi but the need to unearth and dismantle a system of rule which could allow so many innocent people to be massacred.

The petition, pursuant to which the SIT now wants to question Mr. Modi, began life in 2006 as a criminal complaint filed with the Director-General of Police in Ahmedabad by Ms Jaffrey and the CJP. They wanted a First Information Report to be registered against 62 individuals, including Mr. Modi, his ministers and senior police officials and bureaucrats for their role in the 2002 violence. With the police refusing to file an FIR — a requirement under Indian law — the petitioners approached the Gujarat High Court and then the Supreme Court, which last year asked the SIT to look into the matter.

Two categories

The questions posed in the petition fall into two categories. One focuses on the administration's sins of omission, the other on its alleged acts of commission. Why were the bodies of the victims of Godhra train carnage, all but one of whom were Hindu, brought to Ahmedabad, for example, and why were they paraded in the street? Prima facie, that decision, which was cleared at the highest level, seems to have been designed to inflame communal passions. The petition asks whether senior police officials told the Chief Minister or higher officers in writing about the likely repercussions of parading the bodies. Why was no preventive action taken when a bandh call had already been given by VHP? Why was the Army not called out immediately and why was there a delay in its deployment when it finally reached Ahmedabad? By themselves, none of these questions implies the commission of a crime. But the answers they elicit would obviously provide clues for further investigation.

The petitioners also asked for an investigation into reports that the Chief Minister had held a meeting in Gandhinagar on February 27 evening with senior officers to review the situation arising out of the Godhra incident. A former police officer, R.B. Sreekumar, has alleged in an affidavit that instructions were given to the police at that meeting to allow “Hindus” to “vent their anger” against the state's Muslims. The petitioners also charged collusion between the Modi government and the Vishwa Hindu Parishad -- whose leadership and cadre spearheaded much of the violence against the Muslims – and called for the telephone records of the Chief Minister and senior ministers and officials to be examined.

Some pointed questions

Besides asking the SIT to probe the existence of a conspiracy to unleash communal violence in Gujarat, the petitioners also sought answers to some pointed questions. Why, for example, was there was no response to the desperate calls for help made by Ehsan Jaffrey, the former Congress Member of Parliament and husband of Ms. Jaffrey, who was murdered at the Gulberg housing society in Ahmedabad by a mob along with 68 others on February 28, 2002?

Fearing attacks, many Muslims from the Chamanpura locality of the city had sought refuge in Ehsan Jaffrey's compound believing the police would adequately protect the former MP. As the mob outside grew more menacing, Jaffrey made phone calls to senior politicians and police officers asking for help. But to no avail. In the end, the mob broke in and slaughtered dozens of women, children and men, singling out the elderly Jaffrey for particularly brutal treatment.

One of those who went missing in the violence at the housing society that day was a 10-year-old Parsi boy named Azhar, later to become the subject of Parzania, a feature film on the riots. Last November, his mother, Rupa Mody, testified before a trial court in Ahmedabad that Jaffrey told her he had spoken to Narendra Modi too on the telephone about the threatening mobs outside his compound but the Chief Minister had refused to help.

The Indian Penal Code has powerful provisions dealing with conspiracy and the Prevention of Terrorism Act (which was in force at the time) also has sections which apply well to those responsible for the carnage. But at the heart of the ‘riot system' lies the vicarious responsibility of the political leadership. Both in Gujarat and in Delhi in 1984, when more than 3,000 Sikhs were massacred, the leadership knew mass crimes were happening under its jurisdiction. It could have stopped those crimes promptly but chose not to. Some leaders may even have directly facilitated the commission of those crimes by instructing the police not to act.

As an investigative arm of the Supreme Court, the SIT must be allowed to establish the broad facts about what Mr. Modi did or did not do during the violence. If its investigators find a smoking gun linking him directly or indirectly to the violence or the wider conspiracy to commit violence, one could expect an FIR to be lodged. In the absence of such evidence, the SIT may nevertheless establish the chief minister's vicarious responsibility. If the SIT concludes, for example, that the Chief Minister failed to take timely action to stop the violence and failed to discipline or punish police officers who refused to protect the life and property of those under attack – offences which arguably figure only as dereliction of duty in the IPC and which attract relatively light punishment -- the apex court would have the opportunity to pass judgment by bringing Indian legal practice in line with customary international norms.

Eight years after the Gujarat killings, it is surely time to ask how the Indian legal system could be strengthened so that future day Neros can be held strictly liable for their fiddling in the face of mass crimes. The proposed Communal Violence bill provides one such opportunity formally to embed the doctrine of command responsibility — holding superiors guilty, under certain circumstances, for the acts of those under their command. It also provides an opportunity to strip away the impunity provided to police officers and senior officials, whose acts of omission and commission allow terrible offences to be committed against vulnerable sections of the population. Unfortunately, the draft bill currently lacks such provisions, which means that had it been statute in 2002, it would not have deterred the perpetrators of the anti-Muslim violence in Gujarat. This is the basic test all justice-loving Indians must demand of the proposed new law.

The ICC should prosecute Israeli leaders for Gaza

With Palestine accepting the International Criminal Court’s jurisdiction, Israel should realise there is a price to pay for committing war crimes...







9 February 2009
The Hindu

ICC should prosecute Israeli leaders for Gaza
With Palestine accepting the International Criminal Court’s jurisdiction, Israel should realise there is a price to pay for committing war crimes

Siddharth Varadarajan

Six years after it was established and a week after the first trial of an alleged war criminal Thomas Lubanga from DR Congo began with much fanfare, the International Criminal Court is confronting a serious existential question. Will it be a tribunal where only black and brown men are to be prosecuted? Or will criminals from the ‘civilised’ western world also be arraigned before it? The question is not a philosophical or merely moral one. Earlier this month, Pr esident Mahmoud Abbas of Palestine wrote to the ICC accepting its jurisdiction over crimes committed on his country’s territory. What this means is that Israel’s leaders and military commanders could ultimately be prosecuted for war crimes committed by the Israeli armed forces during their savage attack on the people of Gaza from December 27, 2008 to January 18, 2009.

Israel’s aggression led to the death of 1,300 Palestinians, most of them non-combatants. Children alone accounted for nearly a third of the victims. International human rights groups have accused Tel Aviv of committing serious war crimes by using weapons like white phosphorous in the midst of civilians, targeting civilian buildings and infrastructure, and preventing humanitarian aid and medical relief from reaching the victims. The U.N. High Commissioner for Human Rights, Navi Pillay, has called for an independent investigation and even President Barack Obama’s representative at the U.N., Susan Rice, said last month that Washington “expects Israel will meet its international obligations to investigate” these allegations.

In response to mounting pressure, Israel has said, laughably, that it will conduct an internal probe. But after getting free pass from the world all these years, Tel Aviv is feeling rattled. Israeli military commanders involved in Operation Cast Lead have been advised against travelling abroad, especially to Europe, where universal jurisdiction norms have already led to the opening of a criminal case in Spain stemming from an earlier war crime in the Gaza. Media censorship has also been invoked to ban journalists from naming Israeli officers involved in the war lest they be linked to specific war crimes and prosecuted abroad.

Apart from the piecemeal and politically difficult use of universal jurisdiction, there are two ways of holding Israeli leaders and commanders legally responsible for war crimes committed in Gaza. The U.N. General Assembly can establish an International Criminal Tribunal for Israel (ICTI) under powers granted to it by Article 22 of the U.N. Charter. The ICTI’s mandate would be more or less similar to the ad hoc courts established by the Security Council in the 1990s to deal with war crimes in Rwanda and the former Yugoslavia. Alternatively, an already established tribunal like the ICC could handle the matter.

Unlike the International Court of Justice (ICJ), which deals with disputes between states, the ICC is a court where individuals are brought to book. The court has jurisdiction over serious cases which occur on the territory of a state party or where the accused individual is a citizen of a state party. The UNSC also has the power to send a case to the ICC, something it did in 2005 when the Darfur matter was referred to prosecutors despite Sudan not accepting the court’s mandate.

But with Palestine now accepting the ICC’s jurisdiction, individuals from any country, including Israel, could be prosecuted for war crimes committed within Palestinian territory regardless of whether their own country has ratified the court’s statutes or not. Though 108 countries have joined the ICC, key states like Israel, the United States, India and China remain outside the tent. While this protects their citizens from potential arraignment at The Hague for serious violations of international humanitarian law committed on their own soil, there is no immunity if war crimes are committed on the territory of a state accepting ICC jurisdiction. It is on this basis that President Abbas has asked the court to open an investigation into Israeli crimes in Gaza during its recent aggression.

ICC prosecutor Luis Moreno-Ocampo has said an investigation will only be launched once the legal question of jurisdiction is settled. “It is the territorial state that has to make a reference to the court. They are making an argument that the Palestinian Authority is, in reality, that state,” he was quoted by The Times as saying. On their part, Israeli officials say that since Palestine is not a “state,” President Abbas’ submission is legally worthless.

The international law of recognition is complex but the existence of Palestine as a state and nation with the same rights of self-determination and sovereignty as other nations cannot be disputed. The State of Palestine was proclaimed on November 15, 1988 by the Palestine National Council in its ‘Algiers Declaration.’ Following this proclamation, dozens of countries, including India, China and Russia extended formal diplomatic recognition to it. And on December 15, 1988, the U.N. General Assembly voted to adopt Resolution 43/177 acknowledging the proclamation and granting the new state observer status. As Professor Francis A. Boyle has argued, the UNGA’s recognition of the new state of Palestine “is constitutive, definitive and universally determinative.” In December 2003, when the ICJ invited written submissions from states for its advisory opinion on the legality of the wall Israel was building in occupied Palestinian territory, it wrote to Palestine as well.

Of course, international recognition for Palestine did not then and does not now mean its state enjoys the attributes of independence. But the primary reason for this is that Palestine is under military occupation by Israel, an occupation that the U.N. and the world recognise to be illegal. Today, Palestine exists, its people and territory exist, and the capacity of its state to enter into international relations is attested to by the formal diplomatic relations more than 100 countries have established with it.

The 20th century is full of examples of states continuing to exist despite their territory being occupied. The Nazi conquest of Poland or France, for example, led to the establishment of governments-in-exile that were no more legitimate than what the Palestinian people, through their struggle for self-determination, gave rise to. Following the Oslo Accords, the Palestinian authority returned from exile to discharge its functions under conditions of occupation in the hope that a negotiated transition to an end to the Israeli occupation would be possible. But the fact of military occupation can never extinguish the rights of a people to statehood, a right recognised by the League of Nations for the Palestinians as far back as 1919.

Wilful flouting

As an occupying power, Israel has certain obligations under international law and international humanitarian law, obligations it has been wilfully flouting especially by seizing land for settling its own citizens. In 2005, it effected a withdrawal of its citizens and soldiers from Gaza while maintaining full and effective control over all entry and exit points. At the time, Tel Aviv unilaterally asserted it had “ended” its occupation of Gaza and would no longer be responsible for the well-being of its people as the occupying power. This cynical and astonishing claim was subsequently upheld in 2008 by the Israeli High Court of Justice in the Gabber case.

By withdrawing from Gaza, Israel sought to rid itself of its obligations as an occupying power under the Geneva Conventions and as a belligerent occupant under the 1907 Hague Convention. And now, by claiming that Palestine is “not a state,” it wants to escape liability from the one international instrument that can pin responsibility on its leaders for their wanton violations of the laws of war, namely the ICC.

Why should the Palestinians be denied the protection of an international court expressly set up to provide justice to those who have no other forum to turn to, especially when their internationally recognised authority voluntarily submits its territory to its jurisdiction? If occupation extinguishes a state’s right to international protection, this would make a mockery of international law and of the ICC’s raison d’etre. Tomorrow, if Ethiopia occupies Eritrea and commits war crimes, will the vanquished Eritrean national authority not have the right to assign jurisdiction to the ICC to investigate crimes committed by the occupying power? Even if there is still a dispute with Israel over the precise frontiers of the West Bank, Israel has itself officially and legally washed its hands of the Gaza Strip. There can be no dispute over the right of the Palestinian Authority to ask the ICC to investigate war crimes committed there.

The Palestinian referral will not establish a precedent for other aggrieved peoples to “refer” themselves to the ICC and undermine the sovereignty of states. There is, today, no country other than Palestine which claims to speak for the people of Gaza. The ICC must take up the investigation of Israeli war crimes there with utmost urgency. Its credibility is at stake.

If the prosecutor is unwilling to act, the UNSC should refer the case to him. The question President Obama needs to ask is this: If the court is competent to try Sudanese officials for Darfur, why shouldn’t it be asked to look at Israel’s actions in Gaza as well? Of course, the reality is that the U.S. will likely block any such attempt at the Security Council. Which is why the proposal for the General Assembly to set up an ICTI should also be energetically pushed by the international community.

Diplomatic Notebook: India, the NSG and cluster bombs

The U.S. probably has a pretty good idea of what India and the IAEA secretariat have negotiated. But India is still in the dark about what Washington plans to do at the Nuclear Suppliers Group.

22 May 2008
The Hindu

DIPLOMATIC NOTEBOOK
India, the NSG and cluster bombs

Siddharth Varadarajan

The Indo-U.S. nuclear deal is not part of the principal agenda of the Nuclear Suppliers Group which is meeting this week in Berlin for its annual plenary. Though Indian negotiators have finalised the draft of an India-specific safeguards agreement, the lack of domestic political consensus means the government is not yet in a position to submit the agreement to the International Atomic Energy Agency Board for formal approval. Vienna being a porous place, one can safely assu me the United States has a pretty good idea of what India and the IAEA secretariat have negotiated. New Delhi, on the other hand, is completely in the dark about what kind of exemption the Bush administration is prepared to seek from the nuclear cartel’s export guidelines for India.

Washington circulated a short “pre-decisional” draft in March 2006 but that text has since undergone substantial revision. According to the February 2008 report of the Congressional Research Service, U.S. Nuclear Cooperation with India: Issues for Congress, the United States has now developed a second draft incorporating the suggestions of other NSG members. “However, Washington has not yet circulated the proposal to the NSG Consultative Group out of concern that it would leak, thereby enabling the Indian leftist parties to use the draft to raise additional objections to the deal and stop discussions between New Delhi and the IAEA,” the CRS report states. The source it quotes is a “personal communication” by an unidentified State Department official.

Indian officials have no idea what changes the U.S. has incorporated in its first draft, which envisaged a fairly clean exemption for India without any of restrictions or conditions on the sale of components for safeguarded enrichment and reprocessing plants, reprocessing spent fuel and the like envisaged by the Henry Hyde Act of December 2006 and the U.S.-India bilateral nuclear cooperation agreement (i.e. the 123 agreement) finalised last July. The CRS report notes that the U.S. intends to unveil its new draft at an NSG Consultative Group meeting only after the IAEA Board of Governors has approved India’s safeguards agreement.

*** *** ***

This secrecy is of a piece with the gag order the State Department has imposed on members of the House Committee on Foreign Affairs to ensure its answers to a number of detailed clarifications sought by Congressmen on the nuclear deal do not leak out. The questions were framed by the Committee after House Resolution 711 “expressing the sense of the House of Representatives concerning the U.S.-India nuclear cooperation agreement” was referred to it last October. The resolution states that it is in the U.S. interest to ensure the NSG does not approve an exemption for India “that allows other countries to engage in civil nuclear commerce with India that is prohibited under U.S. law, thus putting U.S. firms at a competitive disadvantage.” The operative part of H.R.711 is that the administration should not move for any revision of the NSG’s guidelines until it has (1) answered “all outstanding questions raised by Congress” on “apparent inconsistencies” between the Hyde Act and the 123 agreement, and (2) resolved “all differences of interpretation” of the 123 agreement’s provisions with India.

What does this mean for India, assuming the nuclear deal is able to pass the gauntlet of Left opposition and move on to the next stage? For one, that the U.S. will likely attempt to claw back the concessions it made in the 123 agreement and close the window on India getting at the international level what U.S. vendors are unable to provide under domestic law. India, for example, does not need enrichment and reprocessing technology from others but would like to import components for safeguarded fuel cycle facilities. The 123 agreement excludes this but the NSG at present has no separate bar on the sale of such components. Second, the Indian interpretation of many of the 123 agreement’s provisions — especially on the right of return — differ significantly from the American one. Since it is this deliberate ambiguity of language which allowed the 123 text to be sold by the two governments to their respective publics, any attempt to resolve these “differences of interpretation” could well lead to the agreement itself unravelling.

Until now, India was willing to swallow some of the unpleasant provisions of the 123 agreement because it knew that what mattered in the final analysis were the NSG guidelines. After all, the 123 agreement gets “operationalised” only when India buys nuclear equipment and fuel from the U.S. And so long as the NSG guidelines allow India to buy what it wants from other countries, a prudential strategy would be one which postpones this operationalisation for a few years. It is precisely this sequencing loophole in the nuclear deal that the U.S. is now trying to plug by denying India the "clean exemption" it wants from the NSG. All indications are that the NSG hurdle will be the hardest of all. But India will always have the option of walking away from the table if the nuclear cartel seeks to impose unreasonable restrictions on the country.

*** *** ***

One of the issues being discussed in the Berlin NSG plenary is a U.S.-initiated proposal to adopt new rules governing the export of enrichment and reprocessing (ENR) technology and equipment. Altering the Nuclear Non-Proliferation Treaty and NSG rules governing ENR has been an American priority for several years now. At present, neither the NPT nor the NSG envisage separate restrictions. The NSG guidelines only prescribe full-scope safeguards as a condition for the sale of nuclear material and equipment and do not impose additional conditions on ENR equipment. Until now, the U.S. has advocated a complete international ban on the sale of ENR technology to countries which did not already posses it, something NSG members have always resisted.

Last month, the U.S. changed tack to propose that the NSG adopt separate rules for such exports. Among the restrictions the U.S. envisages are (1) NPT membership (thereby ruling out India), (2) adherence to the Additional Protocol providing for snap inspections (something India will not allow since it possesses nuclear weapons), and (3) “black box” technology, whereby importing countries would not be able to replicate the safeguarded equipment they buy for use in some hidden facility.

At a meeting of NSG officials in Vienna in April, the U.S. clashed with Canada, Brazil and South Africa over the “black box” proposal.

With enriched uranium emerging as a fuel of the future, countries like Canada (with large uranium deposits) and South Africa (with enrichment technology) do not want the energy market to be cornered by the handful of countries which today supply nuclear fuel. However, it is more than likely that the NSG will adopt an "NPT only" rule for ENR sales. And that the exemption the U.S. seeks for India will not relax the proposed new rules on enrichment and reprocessing.

*** *** ***

A major arms control initiative gets underway this week in Ireland with the convening of the Dublin Diplomatic Conference on Cluster Munitions. A cluster munition is a bomb which contains multiple explosive submunitions that disperse deadly bomblets over a wider area after the principal detonation occurs. Such munitions violate the norms of war because they spread over a wide target area, causing civilian casualties. During Israel’s invasion of Lebanon in 2006, for example, thousands of cluster bombs were dropped in heavily populated areas causing hundreds of civilian deaths and injuries. At the end of the war, one million unexploded bomblets lay strewn across southern Lebanon.

Prompted by the international outcry that Israel’s indiscriminate use of cluster munitions provoked — and the failure of the U.N. Convention on Certain Conventional Weapons (CCW) to move towards prohibiting these deadly bombs — Norway invited concerned countries at the end of 2006 to attend a conference to work towards a ban. The Oslo process led to subsequent meetings, most recently in Wellington, where a Declaration on Cluster Munitions was adopted. The Dublin Conference, at which more than 100 countries are participating, is aimed at drafting a Convention prohibiting the use, production, transfer and stockpiling of cluster munitions. The U.S. is officially staying away. So is India.

Though India is a party to Protocol V of the CCW dealing with explosive remnants of war and is thereby committed to the “responsible use” of cluster munitions, it is wary of the Dublin process. First, it would rather deal with the issue through the U.N. And second, it believes cluster bombs serve a useful military purpose. So as with Ottawa process, which led to an international convention against landmines, India prefers to sit outside. This is unfortunate. Every weapon serves a “useful military purpose” but when it causes unacceptable damage to the civilian population its use should be banned.

Salwa Judum & international humanitarian law

India may not be a party to the Geneva Convention Additional Protocols but it has a legal obligation to protect civilians caught in the cross-fire between the Maoists and state-sponsored vigilantes in Chhattisgarh.










8 September 2007
The Hindu

Salwa Judum and international humanitarian law

Siddharth Varadarajan

States have the right to wage war against one another and against armed insurgents who challenge them but it is a settled principle of international humanitarian law that the methods of warfare employed must at all times conform to the bounds of legality.

While all societies have traditionally grappled with what is and is not permissible on the battlefield, the first systematic attempt to modernise the laws of war was made at the international Peace Conference convened in The Hague in 1899. The Conventions of 1899 that emerged were modest even by the standards of the time but the statesmen and jurists who met there had the foresight to acknowledge the limited nature of their initiative. A preambular paragraph known as the ’Martens Clause’ was added unanimously to the Hague Conventions II of 1899 noting that the legal protection combatants and civilians were entitled to in a conflict could not be circumscribed by what countries were willing to accept either collectively or individually at any moment in time. “Until a more complete code of the laws of war is issued,” the clause said, “the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.”

Neither the principles of international law nor the requirements of public conscience have remained static since then. Law may have always kept one step behind war but it has also tended to catch up each time the actual conduct of warfare outraged the conscience of humanity. The use of poisonous gas and chemicals during World War I led to the prohibition of chemical and biological warfare in 1925. The mistreatment of wounded soldiers and sailors as well as prisoners of war by Nazi Germany and Imperial Japan during World War II led, in 1949, to the revision of the First and Third Geneva Conventions as well as the creation of the Second. The wholesale targeting of civilians by all sides during the war also led to the Fourth Geneva Convention on the protection of civilians during hostilities.

In 1977, with the experience of American military tactics during the Vietnam war fresh in its mind, the international community adopted the two Protocols Additional to the Geneva Conventions. Protocol I relates to the protection of victims of international armed conflict and expands the protections provided by the Fourth Geneva Convention. Protocol II relates to the protection of victims of non-international armed conflict. It builds upon an article found in all four Geneva Conventions — Common Article 3 — prohibiting violence against civilians in conflicts “not of an international character” and expands the explicit prohibitions to include forcible displacement (Article 17) as well as “acts or threats of violence, the primary purpose of which is to spread terror among the civilian population” (Article 13).

Adherence to the Geneva Conventions is now universal. However, despite the fact that more than 160 states have ratified the 1977 protocols, India has preferred not to accede under the belief that non-adherence to the protocols somehow frees it from the obligations enshrined within. This belief is morally unsound, legally untenable and politically unwise. Today, the Martens Clause has become, in the words of Judge Weeramantry, formerly of the International Court of Justice, an “established and integral part of the corpus of current customary international law” whose fundamental validity no state has repudiated. When it comes to the protection of civilians in an armed conflict of any kind, its meaning is clear: no state can cite national law or its non-adherence to an international convention as an excuse to derogate from its obligations.

As a country beset with “non-international armed conflicts” of one kind or another, India sees Protocol II as a burden that would somehow constrain the conduct of counter-insurgency operations. And yet, there is nothing in the protocol that prohibits states from meeting the challenge posed by armed insurgents. Indeed, Article 3 says there is no bar on governments using “all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.” But the emphasis is on “legitimate means,” as defined by national statute as well as international humanitarian law (IHL). The only bar, thus, is on illegitimate means, especially those which victimise civilians. For India to not formally enshrine this prohibition is politically unwise because the laws of war cut both ways. National adherence to the protocol would also make insurgents such as the Maoists or various groups in Kashmir and the North-East formally liable for their violations of IHL, which are legion.

It is also sometimes claimed that there are no “armed conflicts” occurring anywhere on the territory of India and hence the question of acceding to the protocol does not arise. This assertion is false. Prime Minister Manmohan Singh has repeatedly said that the naxalite movement is the “biggest security threat” the country has faced since independence. Clearly, the threat posed by Maoists is not of “isolated and sporadic acts of violence” but of “armed” insurgency, which is why the government has chosen to deploy 33 paramilitary force battalions against them and is considering the additional deployment of another 79 battalions.

Indeed, if ever there was a textbook case of the kind of conflict envisaged by Protocol II, the tragedy that is playing out in Chhattisgarh is surely it.

At the heart of this tragedy is the criminal vigilantism of Salwa Judum (SJ), a government-sponsored counter-insurgent ‘movement’ launched in 2005 with the aim of defeating the Maoists by targeting villages believed to be ‘pro-naxalite.’ Tens of thousands of adivasis have been uprooted from their villages and forcibly regrouped in new settlements or rendered internally displaced. According to official statistics, the total number of civilian deaths in Chhattisgarh in 2005-2006 was 243 while the number of security personnel killed by the Maoists was 65. In the first three months of 2007, as many as 226 civilians were killed in the State. By way of contrast, the official tally of killings by the Maoists in 2003 and 2004 — the years immediately preceding SJ — was 74 and 83 respectively, including policemen. If the idea is to counter naxalite violence, the strategy is clearly not working.

More troubling from the legal standpoint is the gross violation of IHL involved. The political leadership in both Raipur and Delhi cannot evade responsibility on the specious plea that the movement is “spontaneous.” Even if ‘spontaneity’ were conceded, the Union and State governments are legally liable for the consequences. In any case, there is a wealth of documentation establishing the close links between the Chhattisgarh government and the SJ. A 2007 memo by the Collector of Dantewara lists the number of Salwa Judum meetings held from June 2005 till January 2007, the villages which joined SJ and those which have not. Coupled with an earlier document from 2005 — which laid out a ‘work proposal’ for the SJ including identifying ‘friendly’ and ‘enemy’ villages, appointing Special Police Officers, dividing the entire area into clusters and permanently resettling villages next to police stations — the 2007 memo sounds like the report of work successfully done.

The fate of village Vechapad is typical. According to accounts provided by villagers to local journalists and activists, the Naga reserve battalion first came and burnt two houses. All the males in the village then went to Mirtur camp, 10 km away, while the women stayed behind. Slowly, the men fled in ones and twos back to the village. After that, the SJ repeatedly attacked the village. Seven people were killed, most of them old or infirm. Joga refused to join the others in the camp around October 2005 because his sulphi tree was in full sap, so the SJ came to find him. He ran towards the forest, but its members caught and killed him with an axe. In February 2007, Pandru Padami and his son Doga were killed by the SJ as they were cutting bamboo, while Sannu, another old man, was tied to a post outside his house and axed, ostensibly because he gave food to naxalites. Jagannath was killed by the naxalites for being an informer, while Samlu Telam, also an old man, was killed by the SJ and his body thrown into the jungle.

By using the Salwa Judum to target and terrorise so-called “pro-Maoist” villages such as Vechapad and scores of other settlements, and forcibly relocating thousands of civilians, the Government of Chhattisgarh is guilty of violating both Article 13 and 17 of Protocol II, quite apart from Article 19 of the Indian Constitution. Even if India is not a party to the protocols, Common Article 3 of the Geneva Conventions — to which it is a signatory — prohibits the use of violence against non-combatants in an internal conflict. And then there is the Martens Clause. To come back to Judge Weeramantry: “If, as is indisputably the case, the Martens Clause represents a universally accepted principle of international law, it means that beyond the domain of express prohibitions, there lies the domain of the general principles of humanitarian law … A legal system based on the theory that what is not expressly prohibited is permitted would be a primitive system indeed, and international law has progressed far beyond this stage.”

The learned jurist was speaking — in his famous dissenting opinion to the ICJ’s 1996 advisory opinion — about the illegality of nuclear weapons despite the absence of an international convention on the subject. In the case of Salwa Judum, however, the bar is explicit. The targeting of civilians in an internal conflict violates the public conscience and is expressly prohibited by customary law. There is no way India can claim immunity from its sanctions.

Transitional justice in Southasia @ Kathmandu

The concept of transitional justice is familiar to people in South Africa, Chile and other countries but how relevant and useful is it for South Asia? This is a question that formed the basis for a fascinating two day seminar in Kathmandu in January organised by Himal Southasian and the Center for Transitional Justice. While South Asia has witnessed several large-scale mass crimes against civilians -- Nellie 1983, Delhi 1984, Gujarat 2002, the violence in Kashmir, the Colombo massacre of Tamils in 1983, the Bangladesh Genocide of 1971 by the Pakistani army -- is it analytically useful to speak of 'transitional justice'? And how useful is it to adopt a pan-South Asian approach? These were the questions I was asked to address in the opening session. The researchers at Himal have transcribed most of the proceedings and uploaded extracts from the first set of presentations in their March edition.

March 2007
Himal SouthAsian

Special report
Exhuming AccountabilityConference on transitional justice in Southasia
23-25 January, Kathmandu Hosted by Himal Southasian and the International Center for Transitional Justice

The pan-regional problem
Siddharth Varadarajan

Why are we speaking of Southasia? Is there any value in clubbing the experiences and practices of the entire Subcontinent into one meeting? There are valid reasons, primarily because of the pan-Subcontinental institutionalisation of certain state practices as well as of certain practices of those who purport to be resistance. In India, Nepal, Pakistan, Sri Lanka, systematic violation of international humanitarian law by both state and non-state actors in conflict situations is something which is very much present as a common theme.

The second commonality is the presence of, for want of a better term, ethnic or demographic cleansing. Virtually all of our counties have had episodes in the past in which large movements of people have been forced by either the state or non-state actors. Distinct from a process of demographic shifting have been anti-minority massacres. We’ve had specific instances of high levels of targeted violence, most often with state complicity against minorities – the bomb blasts and pressure on the Shia in Pakistan, the low-intensity violence against the Hindu minority in Bangladesh.

The fourth commonality in the context of conflict is systematic violence against women. The fifth commonality which I see in the architecture of insurgency and counterinsurgency is the problem of disappearances, which we have in J & K, the Northeast, Nepal, Sri Lanka, Pakistan. The last point of commonality is that of impunity. Impunity is enshrined not only in the judicial or political practices in Southasia, but also in our national laws. When you have a situation wherein officers cannot be prosecuted for doing things in the line of duty, when you have impunity enshrined in law, you have once again a good reason to take up the issue of transitional justice at a pan-Southasian level.

The second question that I think is worth asking, particularly given the linkages of the transitional-justice phenomenon to the international criminal architecture, is: Which is the best forum in which to seek justice – international, national or regional? I think that even though the emergence of the International Criminal Court and other forums becomes an additional point of pressure, justice that comes through a national forum is likely to be more durable, more transformative.

This brings me to the third question. Can there be transitional justice without transition? Because if you look at the examples of what is classified as transitional justice today – the cases of South Africa, Guatemala, Chile, Argentina, and Peru to a certain extent – virtually all of these mechanisms arose out of the context of a political transformation. We must not lose sight of the fact that it is the transition that is the key to the realisation of justice in many respects.

Can the struggle for justice help us bring about political transition? Can we think of justice as transformative justice in the political sense? I think we can. It’s significant that in the past decade the ability of ruling establishments across Southasia to get away with the kind of crimes they’ve got away with in the past has decreased, the political cost has definitely gone up.

Compare the political fallout for the BJP as a result of the Gujarat massacres of 2002 with the political fallout for the Congress party as a result of the anti-Sikh massacres of 1984. There is a world of difference in the nature of public opinion, in the manner in which the media covered the incidents, in the archiving and documentation and the willingness to collate and bring this information into the public domain. All of these suggest that, in a sense, the preoccupation and struggle for justice does provide an impetus for us to bring out a reconfiguration of power equations in society.

Transitional justice cannot just be about addressing past crimes, or even about preventing future ones. It also has to help all of us in our own different regions put a closure on historically-evolved grievances. Unless the historically-evolved grievance of, say, the people of Kashmir is not addressed, unless their sacrifices are not respected, unless homage is not paid to all the people who were victim to the violence, it will be very difficult for people living in these societies and communities to feel a sense of closure.

Finally, while many of the issues that we raise concern questions that are beyond our domain, what we do control is the process of archiving, documentation, dissemination of information. These are significant efforts, which help to challenge the official silence or the widespread public apathy which comes about due to lack of information or ignorance; I think that this is something that we can do as individuals and as a collective.

Bringing to book the guilty men of Baghdad

The legal arguments used by the U.S.-sponsored Iraqi court to convict Saddam Hussein of crimes against humanity apply even more forcefully to those American leaders who ordered the illegal invasion and occupation of Iraq.

10 January 2007
The Hindu

Bringing to book the guilty men of Baghdad

The legal arguments used by the U.S.-sponsored Iraqi court to convict Saddam Hussein of crimes against humanity apply even more forcefully to those American leaders who ordered the illegal invasion and occupation of Iraq.

Siddharth Varadarajan

OF ALL the excuses served up by the United States in the aftermath of the outsourced lynching of Saddam Hussein on December 30, none is more dishonest than the claim that the trial, conviction, sentencing, and execution of the deposed Iraqi President was solely the handiwork of the "sovereign" government of Iraq.

Apart from micromanaging the trial court's statute, the U.S. actively assisted the Iraqi Higher Criminal Court through the Regime Crimes Liaison Office (RCLO) housed in the American Embassy in Baghdad. U.S. minders from the RCLO oversaw the tenuous evidence produced in the Dujail case against Saddam, the serious deficiencies in trial procedure which have been amply documented by United Nations working groups and others, the blatant politicisation of the trial by the occupation-installed government of Prime Minister Nouri al-Maliki, as well as the deliberate scuttling of Saddam's right to a proper defence.

Moreover, the U.S. military had direct physical custody of Saddam from the point of his arrest until several minutes before his execution. U.S. custody was resumed immediately thereafter, when the body was loaded on to an American helicopter for eventual disposition in Tikrit. One cannot create a court, train its judges, take a man to the gallows, and thence to his grave, and then claim one had nothing whatsoever to do with the manner of his death.

The irony is that there would have been no reason for any American or British leader to disown responsibility for the lynching — or plant stories about "differences" with the Iraqi government about the timing and mode of execution — had the sinister hooded men who finally dispatched Saddam stuck to a sanitised script. Like the widely circulated picture postcards of lynchings across the American south in the early 20th century, the grainy cell-phone video of Saddam's last moments conveyed to the whole world the tastelessness of raw power unrestricted by either law or morality. But unlike those good ol' American lynchings — in which the mob leaders posed proudly by their hanging Black trophies — the ringleaders of the Baghdad hanging party absented themselves from the embarrassing frame, preferring the "plausible deniability" of being sound asleep in Texas and Washington.

When L. Paul Bremer and the Coalition Provisional Authority drafted the original statute of the Iraqi Higher Criminal Court in 2003, they were careful to limit its mandate in two crucial ways. First, the court was given jurisdiction only for war crimes and crimes against humanity committed between July 17, 1968, and May 1, 2003. And secondly, it was stipulated that the court could try any natural person "whether Iraqi or non-Iraqi" suspected of committing these grave offences provided he or she was a "resident of Iraq."

The first limitation ensured that the court would not have any jurisdiction over U.S. occupation troops and commanders stationed in Iraq after President George W. Bush declared the end of "major combat operations" on May 1, 2003. This is regardless of overwhelming evidence that these troops have engaged in the killing and torture of non-combatants in Hadithiya, Fallujah, Abu Ghraib, and other places in Iraq over the past three-and-a-half years. The second limitation — of residency — ensured that the court would not be free to probe charges that U.S. persons had committed war crimes and crimes against humanity against the civilian population of Iraq prior to May 1, 2003. This means that the charge of U.S. collusion with the dictatorship of Saddam Hussein in the commission of atrocities against the Iraqi Kurds and against Iran, not to speak of the genocide of Iraqi children caused by the 12-year-long economic embargo of the country, nor indeed the killing of civilians through the disproportionate, unnecessary, and wholly illegal use of air power and military force from 1991 up to May 1, 2003, would be completely outside the purview of scrutiny by the special "higher" Iraqi tribunal.

For the U.S., the introduction of these caveats was absolutely necessary because any legal process that assigns criminal liability to Saddam would naturally run the risk of assigning criminal liability to others who committed similar acts.

Disproportionate force as war crime

The court's statute stresses that an individual can be charged with war crimes or crimes against humanity if the impugned violence he orders or takes part in is "part of an extensive and systematic action launched against the civilian population" and is known by him to be so. Both the Saddam regime and the U.S. invasion and occupation took the lives of thousands of civilians. Though the U.S. acknowledges countless civilians have been killed in its military actions in Iraq, it denies any criminal liability on the grounds that it does not "intentionally target civilians." Broadly speaking, whatever defence Saddam was allowed to mount essentially revolved around the same claim.

In its 298-page written opinion, the Iraqi court rejected this claim. But in finding Saddam guilty, it has, paradoxically, opened the way for criminal liability to be assigned to U.S. leaders and commanders, as and when a future sovereign Iraqi government has the courage to remove the unnatural restrictions placed on the higher court's mandate. The court listed several pieces of evidence that, it claimed, established Saddam's guilt but not beyond reasonable doubt. To make the final leap, therefore, the court was forced to construe the disproportionate, excessive, and unnecessary use of force as tantamount to extensive and systematic action against civilians.

Since there was no direct evidence linking Saddam to the death of civilians, the tribunal argued that the disproportionate use of force against Dujail town by the Iraqi government and armed forces in the aftermath of the failed assassination attempt on Saddam in 1982 was in and of itself a crime against humanity for which he bore "collaborative" criminal liability. That attack led to the death of eight civilians as well as the subsequent arrest, trial and execution of around 100 others, besides the death in custody due to torture or neglect of another 40. "Saddam Hussein," it ruled, "issued his orders, directly or indirectly... to attack the town of Dujail after the unsuccessful attempt on his life by a few individuals and that large-scale attack was not necessary nor appropriate for that very limited attempt ... perpetrating those acts which were a violation of the law, and shelling of fields while their owners were in them with helicopters was not necessary and was not an `appropriate' answer at all from the points of quantity and quality ... That large-scale and organized attack and its effects constitute crimes against humanity, including deliberate killing as a crime against humanity."

If the attack on a town, which claimed the life of eight civilians and then another 140 more over two years, constitutes a crime against humanity, what about the "large-scale and organised" U.S. attack on the whole of Iraq, which initially claimed the lives of up to 10,000 civilians and has since led to the death of 650,000 more innocent Iraqis? Saddam Hussein could at least claim there was an attempt on his life; but what about the weapons of mass destruction Mr. Bush said the invasion of Iraq was all about?

The legal precedent of establishing criminal liability extends also to torture. The court ruled that though "none of the plaintiffs has stated that Saddam has personally tortured them ... [or] that Saddam has ordered that," the deposed President was nevertheless guilty as charged. Saddam, it said, had "implicitly acknowledged his awareness of those practices that took place at the intelligence and Abu Ghraib prisons" when he said in court, `Such acts and harms that occurred against [the plaintiffs] were a mistake and violate the law.' Based on that, this court sees that the accused Saddam Hussein had issued an order ... which is an order, even if it is not explicit, to torture the victims from the Dujail residents ... Therefore, the accused is criminally accountable for torturing the Dujail residents."

In the case of the torture of Iraqi civilians by U.S. soldiers in Abu Ghraib, there is documentary evidence of the fact that the Bush administration — at the highest levels — had sanctioned illegal interrogation methods. Senior U.S. officials, including President Bush, have acknowledged the reality of what happened and described them as "mistakes," much as Saddam did in court. If Saddam could be held criminally accountable for torture despite the absence of any written order, any honest court would not think twice before convicting Mr. Bush and Donald Rumsfeld for what went on in Abu Ghraib. The Iraqi court and those who control it are, of course, not honest. But a crucial test of sovereignty and democracy for any future Iraqi government will surely be its willingness to hold to account the criminals who have scripted the terrible tragedy that has been enacted in Iraq since the 2003 invasion.