The Hindu : Gujarat: a plea and a proposal

Online edition of India's National Newspaper
Wednesday, Mar 27, 2002

Opinion

Opinion - Leader Page Articles

Gujarat: a plea and a proposal

By Balakrishnan Rajagopal

The ideal response to the Gujarat atrocity is domestic legal and political sanction... So far the indications are not hopeful... If the mass killers of the Balkans and Rwanda can be prosecuted internationally, why not those of Gujarat?

The tragedy of Gujarat has deeply scarred us. Burning Hindu women and children on the train, mobs looting and pillaging Muslims' property, gang rapes of countless Muslim women, systematic and planned pogroms that slaughter hundreds of innocent Muslims, a criminally complicit state administration that stood by, watched and, by some accounts, even participated, a complete failure to support the traumatised Muslims by the state as well as civil society, and a shocking partisanship by the state in awarding compensation that shows that it values Hindu lives more than Muslim ones. It is almost too hard to do worse. There is a complete breakdown, not just of order or Government but of humanity. Yet, there is no outrage around the world. India is a mini-Rwanda where the natives are simply expected to slaughter each other in their primeval fury. The western media is openly anti-Muslim. It plays up the brutality of the Islamists while ignoring the savagery of the Sangh Parivar, even when they attack the Orissa legislature. For its part, the national Government refuses to address a blatant breakdown of constitutional order and takes refuge behind the time-tested device of judicial enquiry. It is evident that the killers will literally get away with it.

Of course, none of this is unfortunately new. In 1984, the anti-Sikh pogroms were instigated and supported by the Government and the killers walked away free. The Mumbai `riots' in 1993 were found by judicial enquiry to be the result of official connivance and complicity with organised thuggery and yet no one has paid for it. It seems as though the Indian state and society are systematically unwilling or unable to ensure accountability for massive atrocities involving minorities. It is quite touching to see the faith in the Indian state on the part of intellectuals but evidence tells us that it is not going to punish and deter those who commit atrocities against minorities. Domestic legal sanctions do exist in Indian law to punish and deter these horrific crimes but time and again, they have not been used. The frustrated citizens of India and those who support Indian democracy and pluralism, both in India and abroad, are increasingly asking how they can do something to prevent India from sliding into more mayhem, and even civil war or Talibanisation.

An important way to go forward is to take individual accountability seriously as a legal principle. The ideal response to the Gujarat atrocity is domestic legal and political sanction. But the state and central administrations are both controlled by the BJP and it is unlikely that effective measures will be taken against the perpetrators of the Gujarat atrocities. So far, the indications are not hopeful. Even if some political or legal sanction is taken against the Modi regime — which looks unlikely — it still won't touch those who actually killed, raped, pillaged, planned and instigated. This looks bizarre in an age when the international trend is to attach legal responsibility to individuals when they commit atrocities. If the mass killers of the Balkans and Rwanda can be prosecuted internationally, why not those of Gujarat? The crimes committed in Gujarat certainly qualify as crimes against humanity in their scale and savagery compared to massacres elsewhere during the recent past.

Sceptics of this approach may object: that what happened is a riot and not a deliberate mass attack, that the Gujarat government did not commit it and is therefore not culpable, that domestic remedies exist and that internationalising this issue will mean a violation of India's sovereignty. For important reasons, the sceptics would be wrong. First, it would be a mistake to characterise the violence in Gujarat as a mere riot. What happened was a state-sponsored, supported and even state-directed orgy of ethnic cleansing. The killers seem to have been very well organised and seem to have had no interference from the police at all. As such, the Gujarat violence is as much ethnic cleansing as in former Yugoslavia.

Second, while it may be true that Gujarat Government did not personally commit violence (though there are reports of State officials' involvement), failing to prevent the violence makes it complicit. The question is: at what point does Government's complicity give rise to legal responsibility? There is a great deal of jurisprudence, both old and new on this issue that indicates that complicity in human rights atrocities may result in individual civil and criminal liability and may also result in collective liability of an organisation. It is now well established under international law that a Government's failure to ensure a `right to remedy' for human rights violations will result in legal liability. This right to remedy, guaranteed under the International Covenant on Civil and Political Rights to which India is a party, is especially important in the case of massive atrocities and will lead to individual liability. After World War II, leading German businesses such as the Krupp corporation were prosecuted in Allied tribunals for complicity in the holocaust. More recently, companies have been sued for complicity in human rights abuses in Myanmar (Unocol) and Nigeria (Royal Dutch Shell). It is clear that complicity in human rights abuses can give rise to legal liability.

Third, the existing domestic remedies have a track record of failure when it comes to crimes against minorities. While some have been arrested for the Godhra train incident, there is nothing to indicate that the perpetrators of the communal orgy will be pursued. Indeed, it may be useful to think about how best to pursue Narendra Modi and other Government and VHP officials through legal processes in other countries. Belgium has adopted a law based on universal jurisdiction for pursuing mass killers anywhere. Under that law, four Rwandan nuns were recently convicted of genocide. An arrest warrant issued by a Belgian judge against Mr. Modi or senior VHP officials can be served in any other country. The Indian Government itself may decline to accede to such a request, but other countries such as the U.K. may. In addition, the VHP as an organisation as well as Mr. Modi and other senior officials in their individual capacity can be sued in the U.S. under the Alien Tort Statute for civil damages. This law has been repeatedly used to pursue dictators such as Radovan Karadzic, Marcos and others.

Finally, it is a mistake to suppose that thinking of an international law remedy for the Gujarat atrocities will result in a violation of India's sovereignty. India has voluntarily become a party to numerous human rights treaties that limit its sovereignty. Also, it is a rather absurd understanding of sovereignty to object to an attempt to support India's constitutional order by pursuing those who pose a threat to it. Whose sovereignty are we protecting?

It is increasingly obvious that violence against minorities in India won't end unless its perpetrators are compelled to pay wherever they may find themselves around the world. The principle of accountability in international human rights law demands as much. More importantly, the heart-wrenching tragedy in Gujarat demands that the citizens of India do more than simply criticise the Government. The victims and Indian democracy deserve better.

(The writer is Director, MIT programme on Human Rights and Justice.)

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