Bringing barbarians to book

All possible forums, including national tribunals and the soon-to-be-established International Criminal Court, must be explored to prosecute the communal killers of Gujarat in an exemplary manner.

AS the orgy of killing, burning, persecution, harassment and humiliation of Muslims continues in Gujarat for the sixth consecutive week with the full complicity and connivance of the state, a pernicious disinformation campaign has been launched by Hindutva's apologists to advance one or some of the following propositions:

The Godhra violence was largely "spontaneous and natural"; Chief Minister Narendra Modi "effectively" brought it under control "within 72 hours"; things could have been "much worse" under a less "firm" government; the violence, although disproportionate, reflects widespread "sentiment" for "retaliation" within the majority community; Gujarat shows that "artificially" imposed secularism will always remain an oddity in India; indeed, secularism may itself be "dead" - as the Hindus "assert themselves", at last.

Each of these propositions can be exposed as a lie. Indeed, some of them have already been so exposed by the National Human Rights Commission's "preliminary" report, and the fact-finding missions of independent civil society groups, including Sahmat, the People's Union of Civil Liberties and Citizens' Initiative (Ahmedabad), besides some outstanding media coverage. Gujarat is clearly India's worst pogrom since Partition, with extensive collusion between the state and communalism even to the point of the state actively sponsoring violence.

Yet, Gujarat is in some respects an exception to the rest of India. The first recorded communal riot in modern India occurred in Gujarat, in 1713. Gujarat has since witnessed waves of intense communal violence repeatedly in the same locations, especially from 1967 onwards. Three of its cities - Ahmedabad, Baroda (Vadodara) and Godhra - figure in the list of ten cities which account for about half the deaths in communal violence in the country since 1950. By contrast, as Ashutosh Varshney points out (Far Eastern Economic Review, March 21): Some 95 per cent of India's population has not been "riot-prone". Eightytwo per cent of the urban population has never experienced riots. And villages, where 70 per cent of Indians live, only account for 4 per cent of all deaths in communal violence.

A number of factors explain why Gujarat is as commualised as it is - a unique upper-caste configuration arrayed against any challenge from below to elite rule; an early consolidation of Sardar Patel-style conservative politics; the co-optation and disarming of a militant labour movement through the pro-employer Majoor Mahajan; the general weakness of a liberal culture; exceptional influence of affluent right-wing non-resident Indians; and Hindutva's role in cementing elite bonds in repeated violent riots of the 1980s.

It would thus be grotesquely illogical to generalise from Gujarat, and then argue that this "majority sentiment" is somehow the "natural" or basic state of Indian society before which politics and the state must genuflect. This is a dishonest plea for condoning or exonerating some of the worst hate-crimes India has witnessed. It makes a travesty of the most elementary notion of fairness and justice underlying any concept of democracy and accountable governance, leave alone secularism.

There is an overwhelmingly powerful case to identify, prosecute and punish systematically all those who conceived, instigated, organised, directed or participated in the violence in Gujarat from February 27 onwards, including those who became complicit in its planning and execution and in its legitimisation or rationalisation. Implicated here are not only those who led the 5,000 to 10,000-strong mobs that rampaged, killed and burned, carrying jerrycans of petrol, but also those who tortured and slit the throats of their own neighbours, and the policemen, firemen and civil servants who passively watched and thus committed a grave dereliction of duty.

Not to be excluded are some of the top people in the State govenment who reportedly directed the police operations (or inaction) on the crucial first day of the post-Godhra violence, and numerous high officials who colluded with the communalists.

THE case for the energetic prosecution of communal thugs arises from three basic ethical considerations. First, individual, personal liability and culpability of the culprits must be established in some of the most gruesome episodes of violence seen anywhere, including such barbaric acts as slitting open the belly of an eight-month-pregnant woman, and chopping the foetus.

The appalling state of our justice delivery system prevents the effective prosecution, leave alone deterrence, of a large number of "ordinary" crimes and iniquities. The least we can do is punish the most serious and gravest of hate-crimes, those driven by religious, ethnic or caste prejudice. Or else, no grievous wrong-doing will ever be punished or deterred.

Second, what Gujarat witnessed were not just crimes against people, but crimes against society as a whole, indeed offences against the pluralist-democratic order and the Constitution of India. Gujarat's barbarism falls into the category of crimes against humanity, such as "widespread or systematic extermination of civilians" or their "persecution on political, racial, ethnic or religious grounds", and "enforced disappearances". These call for relentless prosecution and the strictest norms of exemplary punishment. This is the very least that the victims deserve.

And third, what is at stake is not just legal and moral principles of responsibility for crime and punishment, but foundational values about what kind of society we want to build, and what worth we attach to human life and dignity, and to respect for fellow-human beings and their rights. A situation of recurring communal violence, especially for the besieged minorities, roughly conforms to the following description by Erich Fromm, the psychologist and philosopher who had profound insights into fascist and extremist politics: "To live for any length of time under the constant threat of destruction creates certain psychological effects in most human beings - fright, hostility, callousness... and a resulting indifference to all the values we cherish..."

Concludes Fromm: "Such conditions will transform us into barbarians."

Is this the India we want?

PROSECUTING the culprits of Gujarat is not a mere option, but an imperative. Regrettably, in our legal system the state alone can prosecute individuals for their criminal acts. And so long as the state is in the grip of forces that are communal, or compromised and sympathetic to communalism, the people cannot be assured that it will do its duty by the Constitution and the law of the land. We must nevertheless try our utmost - by collecting evidence, identifying individual mob leaders and their instigators, naming names in first information reports, lobbying public-spirited state functionaries and policemen with a conscience.

However, we should entertain no illusions that the judicial system will respond positively or quickly. Its record in this respect is embarrassingly bad. For instance, it has failed to bring to book most of the culprits in the anti-Sikh riots of 1984 or of the Bombay pogrom of 1992-93 - with their four-digit casualties.

For all its obiter dicta about secularism being the cornerstone of the Constitution - and the government's own description of the makeshift Ram temple at Ayodhya as the result of "a most reprehensible act" whose perpetrators "struck not only against a place of worship but at the principles of secularism, democracy and the rule of law..." - the Supreme Court has not ordered the removal or destruction of this manifestly illegal monument to an act of communal vandalism and "national shame".

Perhaps the saddest case of judicial failure as regards communalism pertains to a remarkably precise, well-drafted 1994 petition by J.B. D'Souza and Dilip Thakore, quoting irrefutable evidence in the form of editorials from Saamna instigating communal violence in Bombay, and praying for a writ mandating the Maharashtra government to sue Bal Thackeray (Saamna's editor) under Section 153(A) of the Indian Penal Code. The Bombay High Court dismissed this petition on flimsy grounds. And the Supreme Court rejected an appeal against that dismissal.

Thus, the people must simultaneously explore other forums too. There are three ways of doing so. First, several United States and United Kingdom nationals, who happen to be Muslims from Gujarat, were killed or seriously injured in the Gujarat violence, or their property was destroyed. They or their relatives can bring charges in the U.S. and Britain against Modi & Co, and against specific individuals who attacked them. There are also special laws like the Alien Torts Act in the U.S., which allows civil prosecution of the culprits.

Second, Belgium has just passed a law which accepts universal jurisdiction to pursue and prosecute serious human rights violators. Some other European countries are similarly considering adopting such laws. In Spain, General Augusto Pinochet was famously put on trial recently for gross human rights violations in the 1970s against Spanish citizens living in Chile. The Belgian law offers a criminal forum to non-Belgian citizens too - as happened with a few Rwandan nuns convicted of abetting ethnic genocide. It is imperative that progressive secular Indians living abroad bring charges in Belgium against Narendra Modi and his officials.

The third, and potentially the most productive, option is to approach the International Criminal Court (ICC), which at long last is due to come into existence on July 1 following a long process, including the formation of an International Law Commission under the United Nations (1994), the holding of an international conference which drafted the Rome Statute in 1998, and ratification by 60 states (just under way). The ICC will fill a major legal void by allowing prosecution for genocide, war crimes and crimes against humanity, especially where there is failure of national jurisdiction or where a dictatorial government refuses to punish its own abusers. The ICC's mandate was agreed through the adoption of the Rome Statute by 120 countries.

The ICC would be the appropriate forum to bring to book gross human rights violators from Henry Kissinger to Ariel Sharon (see separate stories elsewhere in this issue on both), from Pol Pot to Yahya Khan, and from Pinochet to Milosevic - and Modi. The 18-member court will have an independent powerful Prosecutor who can act on complaints from individuals, non-governmental organisations, states and the Security Council. The ICC is path-breaking insofar as it has inherent international jurisdiction.

Some countries, including Britain, have recently amended their own criminal laws, to allow for the arrest and surrender of individuals for trial by the ICC. There is genuine enthusiasm for the ICC in more than 100 states. After all, the ICC represents a long-overdue attempt in the direction of bringing criminal jurisprudence and law in line with the reality of globalised economics, politics, crime and migration in a world which has for 400 years allowed itself to be hemmed in by the doctrine of absolute national sovereignty sanctified by the Treaty of Westphalia of 1648.

Only three major states - the U.S., India and China - oppose the ICC, the first two actively (although the U.S. signed the Rome Treaty under Bill Clinton). The Indian objection to the ICC amounts to an utterly untenable and contemptible plea for absolute sovereignty and for refusal of any extra-national jurisdiction even in support of genocide. But genocide and crimes against humanity are everybody's business, all humanity's concern, not merely a "national" concern.

A vigorous campaign needs to be launched against the official Indian stand, demanding New Delhi's signature to the ICC treaty. Meanwhile, citizens' groups and human rights organisations must approach the ICC, as soon as it is constituted, with evidence and charges against the guilty of Gujarat. This will confront New Delhi with a clear choice: cooperate with the ICC in the spirit of genuine multilateralism which it has always advocated and defended, or shield the butchers of Baroda and Ahmedabad.