America's War

By Rajeev Dhavan

THE TERRORIST attacks on America on September 11 have left behind an awesome legacy. The destruction is immense. The loss of life is similar to that of the Bhopal and many other human and natural disasters. But it is not the scale of the tragic losses that contrives the legacy to follow; but, the fact that the disaster was inflicted on the most powerful nation in the world. America swears retaliation, revenge and an undeclared `war' against Osama bin Laden and all the countries that harbour or support him. India has been invited to join this `war'. Pakistan has its own reasons to join the invitation. Should India do so?

But, what exactly is the U.S. demand? Is it simply to get hold of Osama? Or, to crush his network which stretches across 34 countries? Or, to root out `terrorism' in all countries? Or, to fight separatist movements chosen by the U.S. wherever they might be? In the past, the U.S. has made up its own `international' rules for intervention. When it destabilises regimes, the U.S. calls the armed intruders it supports `revolutionaries'. All others are terrorists. It was indicted in the Nicaragua case (1986) for organising counter-insurgency against the Sandinista regime. America supported the `rebels' in Afghanistan against Russia to create Osama bin Ladens. Acquiring a U.N. or NATO label, it instrumented attacks on Iraq in the Kuwait war; and in Serbia. It has made up its own rules to become the victim of attacks. In 1993, the World Trade Center was attacked by Ramzi Yousef, who is linked to Osama bin Laden and is now in U.S. custody. This was followed by attacks on U.S. personnel in Saudi Arabia in 1995 and 1996, U.S. embassies in Kenya and Tanzania in 1998 and the `suicide' bombing of the uss Cole in Yemen in 2000. When they de-stabilise foreign regimes, U.S. armed and funded forces are called `rebels' and `insurgents'. Everyone else is a `terrorist'. By its own logic, U.S. foreign policy maintains a distinction between `insurgency' (which is acceptable) and `terrorism' (which is not).

The present demand of the U.S. is for Osama bin Laden. The legal decks for such a demand have already been cleared by U.S. law. Fortified, by the Anti-Hijacking Conventions of 1970 and 1971, the Anti-Hijacking Act, 1982, and other legislation, India has never really been troubled by the `extra-territoriality' of such offences. In the Eichman case (1960), Israel took a wide view of its jurisdiction of Nazi crimes before Israel was created.

The U.S. has gone further. In the Yunis case (1998), U.S. courts claimed jurisdiction over a surreptitiously obtained Lebanese citizen involved in the Jordan airlines hijacking on the basis that ``when another Government harbours international terrorists or is unable to enforce international law, it is left to the world community to respond and prosecute the alleged terrorists''. The normal procedure to try all criminals in international law is the due process of extradition. However, in the Alvarez-Machain case (1992), the U.S. Supreme Court in a divided decision (6:3) proclaimed that the U.S. courts also had jurisdiction over a criminal, abducted contrary to extradition procedure. Thus, over the last 20-odd years, the U.S. had been re-interpreting its laws to acquire a universal jurisdiction over all persons, such as terrorists and others, including those handed over or illegally abducted by U.S. authorities contrary to international law.

The U.S.' call for an attack on terrorism also seems to create a signal for strong anti-terrorist laws throughout the world. In India, this will inevitably find an echo in the demand for the Terrorist and Disruptive Activities (Prevention) Act (TADA). As is well known, the Union Home Minister, Mr. L. K. Advani, advocates such a law even though he defeated the revival of TADA in 1995 when it was proposed by the Congress. In 1999-2000, the Law Commission has faithfully supported the BJP Government's call for a new TADA. But, in July 2000, the National Human Rights Commission (NHRC) strongly dissented on such a revival.

There are various reasons for not using the attacks in America to revive the TADA in India. In the first place, TADA was randomly abused to cause panic and havoc and alienate both innocents and suspects alikes. That is why, even in the Irish terrorist situation, the Europeans Court in Brogan's case (1988) counselled a strong watered-down liberal reading of anti-terrorist legislation. Second, strong anti-terrorist legislation is not a universal panacea for all situations. There are many `insurgencies' taking place in India. In the Northeast, India's objective is not to just crush the insurgents, but also to negotiate a peace. This is equally true of the predicament of Sri Lanka. Where peace has to be negotiated with one's own people - whether in Kashmir, the Northeast or elsewhere - the instruments of war and counter-insurgency cannot lose sight of the goal to win people over. American solutions may not be in line with India's objectives. India cannot be placed at risk to please America.

India has been invited to join America's war against terrorism in general; and, Afghan terrorism in particular. Such an invitation to fight an undeclared `war' cannot be taken lightly as a logical addendum to the tour de force of American outrage. The initial demand being made on India may be to provide air bases for American planes to bomb terrorist hideouts in Afghanistan. American bombing in Iraq and Serbia confirms that it would extend to civilian areas and innocent civilians. The war that India is being asked to join is in India's region. Even in the Taliban hijack of the Indian Airlines plane from Nepal in December 1999, India tread warily so as to preserve its immediate and future negotiating position. Joining America's war, in fact, means declaring war on Afghanistan and its allies in the region. Providing air bases is a act of war. Symbolically, it is joining a future NATO offensive. This is a war that India can ill afford.

In all this, there is always the fear of being misunderstood. As a people and a nation, India is shocked at the barbaric attack in New York and Washington. India's foreign policy has always been to abhor such attacks; and, to use force only in self-defence. We have not been wholly consistent on this as self-evident from our support for the, then, nascent Bangladesh in 1971 and Sri Lanka in 1985. But, the broad parameters of India's policy of peace are a sound basis for the world's future. America is convinced that Osama bin Laden should be surrendered on the basis of a strong undisclosed intuition. Although, the correct legal procedure remains the law of extradition, it is possible to give qualified support for such a handover. But, what happens when such a handover is refused?

America contemplates the possibility of bombing. After Vietnam, America knows better than to commit ground troops for guerilla warfare. This failed in Vietnam for the U.S. and Russia in Afghanistan. But, the very act of taking steps to enter such a war invites a gruesome future. The U.S. President, Mr. George W. Bush, may win support for appearing to be strong. But, the results of such an undeclared war will invite a general conflagration in the whole region, including India. We are already involved in a major armed conflict in Kashmir and insurrection in various parts of India to which we are trying to negotiate solutions. While generally opposing terrorism, neither a revival of the TADA nor general lease of air base or space are called for. Specific cooperation on proof of specific issues merits scrutiny and support. India must think carefully before it wages America's war against all its neighbours. Nothing could be more dangerous.

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