N. JAYARAM 16 August 2013, Open democracy

Some British MPs have invited an Indian politician widely accused of having committed crimes against humanity in his Gujarat state more than a decade ago. It is not a crisis but an opportunity: Universal Jurisdiction may be invoked to get moving abroad the wheels of justice, which have failed to catch up with him at home.

Narendra ModiDemotix/Bhaskar Mallick. All rights reserved.

Some British MPs have invited Narendra Modi, chief minister of India’s Gujarat state, to visit and address the House of Commons. The initiative appears to have come from Barry Gardiner, Labour MP for Brent North, home to a large number of people of Gujarati upper-caste Hindu origin. Some Conservative Party MPs too have added their support to the invitation.

The news is certain to divide people in India and Britain alike. Social networking sites have been abuzz with heated exchanges among Indians on the issue. In Britain too voices have been raised against the invitation.

Many Indians say Modi presided over an anti-Muslim pogrom in 2002 in which more than 2,000 people were killed. Genocidal slogans were openly aired, including calls for Muslim women to be raped, calls that seem to have been acted on in numerous instances. Although some of his associates have been convicted and sentenced for their hand in the events, Modi has thus far evaded any form of accountability, subverting attempts by courts at various levels to indict him for his role in stoking up the killings, rapes and other acts of violence. He has commandeered the services of many of India’s top lawyers, paying handsomely for their services. Massive monies have also been spent on public relations and Modi has emerged as the de facto prime ministerial candidate of his right-wing Bharatiya Janata Party – currently the principal opposition – ahead of general elections to be called latest by mid-2014.

For human rights groups, the prospect of Modi’s London visit is not a crisis but an opportunity. Should he take up the invitation, they could move courts for his arrest and trial under the principle of Universal Jurisdiction for crimes against humanity. Although Universal Jurisdiction was not invoked in the 1998 arrest of Chile’s former dictator Augusto Pinochet in London, it drew worldwide attentionto the principle. Judge Baltasar Garzon in Spain called for his arrest on the ground that some of the victims of human rights abuses in Chile after the 1973 coup were Spanish citizens. Britain’s Law Lords ruled that Pinochet could not cite diplomatic immunity as certain crimes were too serious for that international arrangement to be invoked.  Pinochet spent nearly a year and a half under mostly house arrest.

Margaret Thatcher, who was a cheerleader for Pinochet’s reign of terror and received his backing during the Falklands/Malvinas war against Argentina in 1982 in return, lobbied hard for his release. US President George W. Bush added his weight to the lobbying. In 2000, Home Secretary Jack Straw announced that Pinochet would be freed on health grounds. Protests from jurists and medical experts fell on deaf ears.

A little while after Pinochet’s return to Chile, justice began to catch up with him: courts were no longer inclined to respect the immunity he had gotten for himself from the legislature. Claims of health issues kept him from facing justice, however, and he died a free man in 2006. Chile has matured greatly in the interim. It is not unlikely that legal action against Modi abroad might jolt Indian courts too to go after him after him and others alleged to have committed crimes against humanity more robustly than they have done thus far.

Pinochet’s arrest and the debate over his fate made front-page news worldwide. It was one of the greatest episodes in international legal history. The words Universal Jurisdiction gained currency beyond the groves of academe. Given the prominent role in the Chilean coup of Henry Kissinger, former US Secretary of State and National Security Adviser, there is widespread speculation that he has difficulty making travel plans for fear of being slapped with a warrant like that by Judge Garzon.

In 2011, former US president George W. Bush was forced to call off a trip to Switzerland in view of threats of large-scale protests. Amnesty International had asked the Swiss authorities to investigate his role in torture. Amnesty was told the authorities had no plans to prosecute Bush. But there have been rumblings in other countries including Spain and Germany, with threats of investigations against leading US officials for torture and other crimes against humanity.

In 2005 a former Israeli army commander, Doron Almog, had to fly back from London without alighting from the aircraft after he was advised that some Muslim groups had planned to get him charged with crimes against humanity. In 2009, former Israeli foreign minister Tzipi Livni cancelled a trip to Britain following reports that an arrest warrant was out for her role in alleged war crimesin Gaza. She was invited back by Foreign Secretary William Hague in 2011 after an amendment that prevents private individuals from seeking such arrests. The Police Reform and Social Responsibility Act 2011 might make it difficult for private individuals to call for Modi’s arrest should he visit Britain. But nothing prevents foreign governments and judges from issuing warrants to be acted upon by the British authorities.

Modi is not the only Indian whose possible visits to Britain and elsewhere are the subject of controversy. Members of the Congress party, the leading group in the ruling coalition in New Delhi, who are accused of having incited the anti-Sikh pogrom in 1984 after the assassination of Prime Minister Indira Gandhi by two Sikh bodyguards, are similarly targeted. In 2009, former minister Jagdish Tytler, who is widely accused of provoked mob attacks on Sikhs, was dropped from a delegation that was to visit Britain following protests.

Meanwhile Modi continues to be denied a US visa because of his alleged role in the 2002 pogrom. Katrina Lantos Swett, vice chair of the United States Commission on International Religious Freedom, has said that in her view that policy should remain even though she has acknowledged that the State Department might have to take into consideration other issues such as trade and security.

India has not signed the Rome Statute that established the International Criminal Court in 2002. China, the United States and Israel are among a number of countries that have chosen to stay out. Thus far the ICC, which has 122 members, has only been able to net perpetrators of mass crimes in Africa. The idea that crimes against humanity such as those that occurred in New Delhi in 1984 or Gujarat in 2002 need to be investigated and punished has yet to catch on in India. But it is an idea whose time may yet come.



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