Travel advisory: Pinochet, Modi, and crimes against humanity
When Spanish Judge Baltasar Garzon issued an arrest warrant asking for the extradition to Spain of Chilean General Augusto Pinochet while the latter was visiting London in 1998, he did not use the words "universal jurisdiction for crimes against humanity". But the Pinochet case made headlines worldwide drawing much attention to that concept. Judge Garzon limited himself to citing human rights abuses against Spanish citizens in Chile during Pinochet's dictatorship starting on September 11, 1973 (Chile's own "9/11"). Britain's highest courts complied with Judge Garzon's warrant and had Pinochet placed under virtual house arrest in London that lasted about a year and a half.
Pinochet's friend, former British Prime Minister Margaret Thatcher, lobbied hard for his release (quid pro quo for his cynical backing for her war with Argentina over the ownership of the Malvinas Islands) as did US President George W Bush. Eventually, the government of Tony Blair let Pinochet go home, despite opposition from most of the judiciary and civil society. Chile which was already under a democratic regime despite much impunity (officially "amnesty") granted to the armed forces, had begun to mature by then and the Chilean judiciary pursued cases against Pinochet, although he died in 2006 without being convicted of any crime. The Pinochet saga afforded a few months of great celebration for human rights activists but, alas, it did not last long. And it is distant memory now: several other people who can be accused of crimes against humanity, including Britain's own Tony Blair (for his complicity in the second Gulf War), are free and are fattening on lecture fees and corporate largesse.
Prime Minister Narendra Modi has breezed through Europe over the past four days not only with no questions asked as regards his role in crimes against humanity in Gujarat in 2002, but after having been feted by the leaders of France and Germany.
And before his supporters and other members of the Sangh Parivar – the family of Hindu fanatic groups including the ruling Bharatiya Janata Party (BJP), Rashtriya Swayamsevak Sangh (RSS), Vishwa Hindu Parishad (VHP), Hindu Mahasabha, Bajrang Dal – and other assorted backers of Modi plunge in waving a mythical "clean chit", they need to take a reality check. Modi got no clean chit from the Supreme Court of India for his role in the anti-Muslim pogrom of 2002. Rather it was RK Raghavan, who enjoyed many direct and indirect connections to Modi, who had already been implicated in a shoddy security job in Sriperumbudur (the assassination of former prime minister Rajiv Gandhi), and who for whatever strange reasons was picked to head the Special Investigation Team, who issued the dubious "clean chit". And the Supreme Court-appointed Amicus Curiae (friend of the court) Raju Ramachandran said clearly in his report that there was sufficient evidence to proceed against Modi.
Modi, however, managed to have not only the courts in Gujarat off his back but stymied action from the centre. The long ruling Congress party which has even more Sikh blood on its hands treated Modi with kid gloves. Meanwhile, the Sangh supporters and call centres posting on news sites like their Chinese paid counterparts have made "but what about 1984?" into one of their stocks in trade. Modi is obviously having a remarkably easy time outside of India and he has logged thousands of air miles flying to various countries in just the last ten months since he became prime minister. He can thank successive Indian governments' tolerance of impunity and abject failure to accede to the Convention Against Torture (practised on a massive scale in most police stations and other detention centres in India daily).
More importantly, India has ignored the Rome Statute, dating to mid-1998, (incidentally just months before Pinochet was grounded in London) which set up the International Criminal Court (ICC). Alas, the ICC got hobbled from the start. China, India, the United States and a host of other countries have shunned it. Although the Clinton administration had taken active part in fashioning the Rome Statute, the succeeding George W Bush actively undermined the ICC by demanding most signatory states to grant immunity to US citizens .
In Spain itself last year – by this time the country had elected a conservative party – legislators moved to prevent any action against those elsewhere implicated in massive human rights abuses. Neo-liberalism and a rise in anti-human rights sentiments and, especially in India, anti-NGO propaganda, has put paid to activism. About ten years ago, the United Nations came up with the doctrine of Responsibility to Protect. "The duty to prevent and halt genocide and mass atrocities lies first and foremost with the State, but the international community has a role that cannot be blocked by the invocation of sovereignty. Sovereignty no longer exclusively protects States from foreign interference; it is a charge of responsibility where States are accountable for the welfare of their people," the UN says.
However, there are few takers for this doctrine. US invasions in Afghanistan and Iraq have been hugely unpopular, to say the least. If this is the kind of destructive foreign intervention and interference that grave human rights violations attract, the world in general prefers to stick with state sovereignty. Moreover there is widespread disappointment with the functioning of the ICC: It has only proceeded against a few African leaders thus far, whereas far greater violations of human rights and crimes against humanity have taken place elsewhere. Thus the concept of universal jurisdiction has taken some beating. And yet, those implicated in massive human rights violations do need to watch where they are going. Pinochet was not the only one to have had trouble in London. A former Israeli armed forces commander, Doron Almog, had to abort his visit in 2005 after reports that some Palestinian activists planned to get him charged with crimes against humanity. Former Israeli foreign minister Tzipi Livni had to scrap a trip to London in 2009 following reports that an arrest warrant would greet her for her role in alleged war crimes in Gaza (She eventually did visit London after the British government moved an amendment to prevent such arrests).
In 2007, Chile extradited Peru's former president Alberto Fujimori to Lima: "universal jurisdiction" was not invoked because obviously he was being returned to his own country but "crimes against humanity" was. In September 2013, a district court in New York issued a summons to be served on Sonia Gandhi over the 1984 anti-Sikh pogrom following a complaint by a US-based group named Sikhs For Justice . The same group had previously sought action against former Union minister Kamal Nath with equal lack of success.
Nevertheless, it is clear that people such as Kamal Nath, Jagdish Tytler and Sajjan Kumar will face such attempts in courts abroad, the activists hoping that somewhere they might succeed, as the Indian judiciary has failed them. And incidentally, the Sangh parivar weren't exactly falling over each other in denouncing the summons against Sonia Gandhi or defending Indian sovereignty.
It is well known that Henry Kissinger, George W Bush and Tony Blair need to plan their travels carefully and avoid jurisdictions where they might be hit with an arrest warrant. Just last December, the European Centre for Constitutional and Human Rights in Berlin lodged criminal complaints against officials of the George W Bush administration, citing their responsibility for torture, illegal detentions and other abuses.
A day might yet come when "universal jurisdiction for crimes against humanity" regains currency and Modi too might have to pick his destinations carefully, lest he gets grounded the way Pinochet was.