Punishing the Modis

Print edition : September 11, 2009

NARENDRA MODI, the Chief Minister of Gujarat, is likely to be examined by the Special Investigation Team headed by R.K. Raghavan, the former head of the Central Bureau of Investigation (CBI). Former Chief Election Commissioner N. Gopalaswamy only exposed himself to ridicule when, in the midst of an election campaign, he issued a show-cause notice to Congress president Sonia Gandhi, on December 22, 2008, for calling Modi a merchant of death (maut ka sau dagar). He was ignorant of the fact that Modi had earned that certificate from the Supreme Court itself.

Nero was emperor of Rome (A.D. 37 A.D. 68). In A.D. 64, half of Rome was destroyed in a fire. He took advantage of it to build himself a magnificent palace, the Domus Aurea (Golden House). But the fire and his fiddling do not complete the picture or the analogy. Nero made the Christian minority scapegoats for his Godhra and persecuted it savagely. According to tradition, St. Peter and St. Paul suffered martyrdom at this time.

Justices Doraiswamy Raju and Arijit Pasayat of the Supreme Court advisedly mentioned Nero in their judgment in the Best Bakery case, delivered by Justice Pasayat, on April 12, 2004: Those who are responsible for protecting life and properties and ensuring that investigation is fair and proper seem to have shown no real anxiety. Large number of people had lost their lives. Whether the accused persons were really assailants or not could have been established by a fair and impartial investigation. The modern-day Neros were looking elsewhere when Best Bakery and innocent children and helpless women were burning and were probably deliberating how the perpetrators of the crime can be saved or protected. The Nero here is the one at the apex of power, like the emperor himself. (Zahira Habibullah Sheikh vs State of Gujarat (2004) 4 SCC 158; page 1,987).

Gone are the days of the sovereign immunity of heads of state, let alone heads of government, from criminal liability for the wrongs they commit. Modern jurisprudence has travelled a long way in recent years. Indian law is not inadequate. Section 107 of the Indian Penal Code, 1860, defines abetment very widely. It covers instigation, intentional aid and participation in a conspiracy. The aid or participation can be by illegal omission. Explanation 2 to Section 107 says: Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof is said to aid the doing of that act (emphasis added throughout).

It is very much a legal and constitutional duty of the Chief Minister of a State of the Union of India not to facilitate the commission of a pogrom whether by instigation, connivance or any form of facilitation. This is a question of fact to be proved in a court of law. Narendra Modi will, doubtless, receive a fair trial. There are two hurdles. One is proof oral, documentary or circumstantial. The other is the sanction of the authority that appointed him to the office, the Governor of the State, as Section 197 of the Criminal Procedure Code, 1973, requires. It is more than arguable that it is unconstitutional. In any case, the Governors refusal of sanction is open to judicial review.

In a court of law, Modi will be presumed to be innocent unless his guilt is proved beyond reasonable doubt. The evidence, therefore, must meet this test. It will depend on the court to assess its weight. When Henry II exclaimed, in the presence of his courtiers, Who will rid me of this turbulent priest? was he not instigating them to kill Beckett? Is not Modis famous remark Every action has an equal and opposite reaction connivance at the Gujarat pogrom in 2002 in retaliation for imagined wrongs at the Godhra railway station? (The quote is from The Times of India, March 3, 2002.)

Jean-Pierre Bemba, former Congolese warlord, is standing trial on charges of war crimes.-FRANCOIS LENOIR/REUTERS

Annexure 10 to Volume I of the report of the Concerned Citizens Tribunal Gujarat 2002 contains a tabulation of Hate Speech; many of the speeches are by Modi himself. (The report, entitled Crime Against Humanity, is in two volumes. Professor Richard Bonneys writings on the carnage are available in Harvest of Hatred, Media House, Delhi. There is much useful material in an excellent compilation of essays edited by Siddharth Varadarajan, Gujarat: The Making of a Tragedy, Penguin.)

We now have the International Criminal Court (ICC) set up by the Statute of Rome. Besides, there is the International Criminal Tribunal for Rwanda (ICTR) as well as one for the former Yugoslavia (ICTY). A former President of Liberia is charged before the Special Court of Sierra Leone with attacks on the country. The statutes constituting the two tribunals define the offences. The definitions thus acquire sanction in international criminal law.

Justice Richard Goldstone of South Africa, former Chief Prosecutor at both the tribunals, wrote an instructive article in the International Herald Tribune on June 1, 2009. Aptly entitled Stretching the reach of the law, it recalled: When Perus Supreme Court found former President Alberto Fujimori guilty in April of the kidnapping, injury and murder of civilians in the 1990s and sentenced him to 25 years in prison, the historic verdict resonated around the world; the first conviction of an elected Latin American leader for human rights abuses by his own country. Fujimori joins a growing list of former leaders facing charges of human rights abuses in domestic and international courts. They include Charles Taylor of Liberia; Hissene Habre of Chad, Jean-Pierre Bemba of the Democratic Republic of Congo; and Kaing Guek Eav of Cambodia.

The author of this book was involved in negotiations in the Preparatory Commission for the ICC and has practical experience at the Prosecutors Office and Chambers in the ICTY and the ICC since 2002. It is a work of great learning.

In this context, one must mention also a book by Anja Seibert-Fohr of the Max Planck Institute for Public Law and International Law. It is entitled Prosecuting Serious Human Rights Violations (Oxford University Press; pages 350, 70). It discusses the duty to prosecute serious human rights violations, an under-explored new concept in international law, and provides a comprehensive overview of all international human rights law mechanisms and jurisprudence as well as development of proposals for improving the accountability of human rights offenders.

The Peace Palace is home to a number of international judicial institutions, including the International Criminal Court set up by the Statute of Rome.-ERMINDO ARMINO/AP

Hector Olasolos book is indispensable to anyone interested in bringing top leaders, political or military, to account for their complicity in crimes. It is a work on criminal international law but lawyers concerned with domestic law will also find it most rewarding. The concepts of Joint Criminal Enterprise (JCE) or Control of Crime (CoC) should be common to domestic and international law. They are clearly defined and thoroughly analysed by Olasolo in this erudite work. The Tables of Cases and of Legislation reflect its comprehensive sweep. It provides, in effect, a detailed commentary on the Rome Statute as well as the statutes of the two tribunals.

The author points out that the single most important issue during the trials of senior political and military leaders is the determination of the specific mode of liability the respective leader has incurred in criminal liability for the crimes charged in the indictment. Other important issues raised during the trials against senior political and military leaders include the problems relating to the need to prove a broad range of criminal activities, as shown by the unfinished four-year-long trial against Slobodan Milosevic and the specific defences raised by the defendants.

Senior political and military leaders are usually geographically remote from the scene of the crime when the crimes take place and have no contact whatsoever with the low level members of their organisations who physically carry out the crimes (the physical perpetrators). As a result, the gravity of their actions or omissions is not well reflected by the traditional modes of liability in national criminal law because they never amount to an objective element of a crime.

Indeed, despite the fact that senior political and military leaders are usually the individuals who plan and set into motion campaigns of large-scale and systematic commission of international crimes (or at least have the power to prevent or stop them), the application of the traditional modes of liability in national criminal law leads to the conclusion that they are mere participants in the crimes committed by others (accessories to the crimes), as opposed to perpetrators of the crimes (principals to the crimes). This does not reflect the central role that they usually play in the commission of international crimes, and often results in a punishment, which is inappropriately low considering the wrongdoing of their actions and omissions.

Alberto Fujimori, former President of Peru, listens to his sentence after his trial, in Lima on April 7.-FRANCISCO MEDINA/REUTERS

Two rulings are relevant. The District Court of Jerusalem said in Eichmanns case in 1968: In such an enormous and complicated crime as the one we are now considering, wherein many people participated at various levels and in various modes of activity the planners, the organisers and those executing the acts, according to their various ranks there is not much point in using the ordinary concepts of counselling and soliciting to commit a crime. For these crimes were committed en masse, not only in regard to the number of the victims, but also in regard to the numbers of those who perpetrated the crime, and the extent to which any one of the many criminals were close to, or remote from, the actual killer of the victim, means nothing as far as the measure of his responsibility is concerned. On the contrary, in general, the degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands and reach the higher ranks of command, the counsellors in the language of our Law. As regards the victims who did not die but were placed in living conditions calculated to bring about their physical destruction, it is especially difficult to define in technical terms who abetted whom; he who hunted down the victims and deported them to a concentration camp, or he who forced them to work there.

The Appeals Chamber of the ICTY delivered a ruling in the Tadic case in 1999, 30 years later, which is regarded as a landmark: Under these circumstances, to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abetters might understate the degree of their criminal responsibility.

Hence the evolution of the new concepts of joint enterprise and common purpose. Section 107 of the Indian Penal Code covers them in its definition of abetment.

Olasolo remarks: Although the notions of joint criminal enterprise and control of the crime have not been created by international criminal law, the latter has not merely borrowed them from national law. Quite the contrary, international criminal law has developed them to comprehensively reflect the wrongdoing and culpability of senior political and military leaders as principals to the widespread and systematic commission of international crimes.

GUJARAT CHIEF MINISTER Narendra Modi.-RAVEENDRAN/AP

The march of the law has not stopped at that. Awareness of the substantial likelihood that crimes would occur as a direct consequence of the pursuit of the common goal suffices to fix guilt. Also relevant is the concept of organised structures of power. It covers the state as well as the political party that runs it.

The ICTY appeal judgment in the Tadic case explicitly states that crimes under international law do not result from the criminal propensity of single individuals but constitute manifestations of collective criminality; the crimes are often carried out by groups of individuals acting in pursuance of a common criminal design.

Common law jurisdictions, such as in Australia, Canada, South Africa, England and Wales and the United States, have traditionally applied the notion of control of the crime to convict, as a perpetrator, the person who uses an innocent agent as a tool to commit a crime. In these cases, the person behind the scenes is said to have control of the crime because he controls the will of the person who physically commits the crime.

The author holds that to incur criminal liability as a co-perpetrator for participating in a joint criminal enterprise, it is necessary to contribute to the implementation of the common criminal plan. This can take place through a variety of roles as long as the participation takes the form of assistance in, or contribution to, the execution of the common plan. One way of participating in the enterprise is by physically carrying out the objective elements of the crime. However, there are also other means through which an individual can participate. Indeed, a participant in a joint criminal enterprise does not even need to be present at the time the objective elements of the crime are carried out by the physical perpetrators, and he can make his contribution not only through actions but also through omissions. It is the state of mind with which the contribution is made, and not the significance of the contribution, that marks the distinction between principals and accessories to the crime.

In the Kuocka Case (2001) before the ICTY, the Trial Chamber held: It may be that a person with significant authority or influence who knowingly fails to complain or protest automatically provides substantial assistance or support to criminal activity by their approving silence, particularly if present at the scene of criminal activity. In most situations, the () co-perpetrator would not be someone readily replaceable, such that any body could fill his place.

FORMER LIBERIAN PRESIDENT Charles Taylor sits in the courtroom of the International Criminal Court in The Hague during his trial, on July 13. He faces 11 charges of war crimes and crimes against humanity for his role in the 1991-2002 civil war in Sierra Leone.-AFP/REUTERS

The arm of the law is much longer and far stronger than is imagined, as the author points out: Senior political and military leaders who substantially assist in the commission of a crime do not need to act motivated by any ulterior intent or dolus specialis required by the crime in question. Senior political and military leaders only need to know that the physical perpetrators actions are motivated by such ulterior intent. However, the senior political or military leader providing the assistance does not need to know who the specific physical perpetrators are and who the specific victims will be. As a result, if a camp commander leaves the gate of a detention camp open for the sole purpose of letting unknown non-staff members enter the camp and mistreat some unidentified prisoners, he will be criminally liable for aiding and abetting as long as he is aware that, by leaving the gate of the detention camp open, he is substantially facilitating the mistreatment of prisoners by non-staff members.

If a mob is either controlled by the leader, through his colleagues, or is controllable by him through the police and he allows it to roam free, he is liable as a participant in the joint criminal enterprise to kill members of the community which the mob had targeted.

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