Tuesday, 25 December 2018
Mass Killings: How About a Law for Genocide?
~By Colonel R
Hariharan | India Legal | December 22, 2018| http://www.indialegallive.com/
The sentencing of Congress leader Sajjan Kumar to life
imprisonment for his role in the 1984 anti-Sikh riots, where more than 2,700
were killed in the capital, is not the first case of mass killing. Nor is it
the first time when the long arm of the law was not strong enough to deliver
justice as the accused had the right political connections.
This is an apt case study for a host of things that are wrong
with our law enforcement, judicial system, criminal prosecution, et al. When
it comes to handling real life cases, particularly mass killings like the 1984
anti-Sikh massacre, politics seems to take precedence over all other
considerations.
In this context, the observations of the Delhi High Court bench
of Justices S Muralidhar and Vinod Goel while convicting Sajjan Kumar are
relevant. They said “cases like these are to be viewed in the larger context of
mass crimes that require a different approach”. Noting that in Delhi alone,
2,733 Sikhs were killed and nearly 3,350 Sikhs done to death all over the country,
the judges said
this was “neither the first instance of mass crime, nor tragically, the last”.
They indicated a
familiar pattern of killings in Mumbai in 1993, Gujarat in 2002, Kandhamal,
Odisha, in 2008 and Muzaffarnagar in UP in 2003. The common link in such crimes
was targeting of minorities and “attacks spearheaded by dominant political
actors being facilitated by law enforcement agencies”.
While they were stating the obvious, this is not the first time
judges have made such a statement. On August 21, 2009, additional sessions
judge Surinder S Rathi in Delhi had found three persons guilty of rioting,
attempt to murder and arson. He had observed: “Though we boast being the
world’s largest democracy and Delhi the national capital, the sheer mention of
the incidents of 1984 anti-Sikh riots in general and the role played by Delhi
Police and state machinery in particular makes our heads hang in shame in the
eyes of the world polity.”
In a way, the
1984 riots were a watershed in Indian politics. Delhi-based lawyer HS Phoolka,
who represented the 1984 victims, had said it showed the creeping
criminalisation of Indian politics. “Before the 1984 riots, there were no
criminals in politics. Criminals followed politicians. But 1984 made them
realise people leading mobs and killing others could get elected and become
leaders. So a way was opened for criminals to make politics a profession,” he
said.
This probably sums up the problem in handling mass
killings—political actors and subservient law enforcement agencies conniving to
protect criminal elements. Politics rides on the back of governance like King
Vikram’s Vetala, a spirit that would not get off, until the King solved the
riddle. Unfortunately, governance is not the king in our case, so it is the
politician, the Vetala, who solves the riddle to suit his end.
The judges also called for changes in criminal law to include
specific offences for “crimes against humanity” and “genocide”. Such a loophole
allowed the accused responsible for mass crimes to evade prosecution and
punishment. The bottomline is that India has not defined genocide by law,
though the UN convention on genocide ratified it in 1959. “Genocide” does not
find a place in the Indian Penal Code.
The UN General Assembly adopted the Convention on the Prevention
and Punishment of the Crime of Genocide on December 9, 1948, as Resolution 260.
It came into force on January 12, 1951. And on December 2017, 149 states
ratified or acceded to the treaty. India had participated in the 1948 genocide
convention and contributed to its drafting. India ratified it on August 27,
1959.
Actually, by ratifying the convention, India has recognised
genocide as an international crime, which it has undertaken to prevent and
punish as per Article I of the Convention. It has also undertaken to enact the
necessary legislation “to give effect to the provisions” of the Convention, to
provide effective penalties for persons guilty of genocide or any other acts
related to genocide through a competent tribunal.
The Convention in
Article II defines genocide as “any of the following acts with intent to
destroy, in whole or in part, a national, ethnic, racial or religious group, as
such: (a) Killing members of the group; (b) Causing serious bodily or mental
harm to members of the group: (c) Deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction in whole
or part; (d) Imposing measures intended to prevent births within the group;
(and) (e) Forcibly transferring children of the group”.
Article III renders punishable not only acts of genocide but
other acts related to it like conspiracy to commit genocide, direct and public
incitement to commit genocide, attempt to commit genocide and complicity in
genocide.
Though the Narendra Modi government showed alacrity in reopening
the 1984 anti-Sikh riots case of Sajjan Kumar, it still does not seem to be in
a hurry to recognise the need for enacting laws in conformity with the UN
convention on genocide. In fact, in the Rajya Sabha on March 2, 2016, a
question was raised about the government’s plans in enacting laws in conformity
with the UN convention on genocide and racial discrimination and, if not,
reasons for not enacting them. Answering the questions, Kiren Rijiju, minister
of state for home, said:
“By acceding to the Convention on the Prevention and Punishment
of the Crime of Genocide in 1959, India has recognised genocide as an
international crime. The principles embodied in the Co-Convention are part of
general international law and therefore already part of common law of India.
The provisions of the Indian Penal Code including the procedural law (Criminal
Procedure Code) provide effective penalties for persons guilty of the crime of
genocide and take cognisance of the acts which may be otherwise taken to be in
the nature of genocide.”
The catch in the
minister’s contention that the provisions of the IPC, including the procedural
criminal law, “provide effective penalties for persons guilty of crime of
genocide” is flawed because genocide is not defined in the IPC. This probably
shows the government’s reluctance to enact separate laws to handle genocide and
crimes related to it because Article IV of the UN Convention says “persons
committing genocide or any other acts enumerated in Article III shall be
punished, whether they are constitutionally responsible rulers, public
officials or private individuals”. In other words, a separate law for genocide
would mean sacrificing the protection given to public servants from prosecution
under Section 197 of the Code of Criminal Procedure, 1973, which had been used
to prevent and delay prosecution of guilty public servants.
But Article 51(c) of the Constitution enjoins the State to
“foster respect for international law and treaty obligations”. Article 253
mandates the Parliament “to make any law for implementing any treaty, agreement
or convention”. So both the government and Parliament have an obligation to
enact separate laws for genocide and related acts as required by the UN
Convention.
HL Mencken, editor of The Baltimore Sun, described democracy as
the art and science of running a circus from the monkey cage. As the world’s
largest democracy, we seem to be a living example of it.
Bangladesh was able to overcome both domestic and international
roadblocks to prosecute those involved in the mother of all genocides in the
run-up to its independence? Why can’t we?
—The writer is a military intelligence specialist on South
Asia, associated with the Chennai Centre for China Studies and the
International Law and Strategic Analysis Institute
Tuesday, 4 December 2018
Sri Lanka Perspectives: November 2018
Col R Hariharan | 30-11-2018 |Courtesy: South Asia Security Trends, December
2018 | www.security-risks.com |
Breaking the political impasse
President Maithripala Sirisena is trying hard to work out a face
saving compromise to break the political deadlock created by him after
installed former president Mahinda Rajapaksa as Prime Minister, sacking PM
Ranil Wickremesinghe, three weeks ago. Though PM Rajapaksa and his cabinet have
taken over the government, the parliament has refused to accept his
appointment. The country is in a drift as day to day functioning of the
government is hamstrung by the crisis.
Former PM Wickremesinghe refusing to vacate the PM’s official
residence Temple Trees, and his party said to be meeting the expenditure for
his continued stay there, typically illustrates the confusing ground situation.
A defiant speaker Karu Jayasuriya, rejected President’s order to
prorogue the parliament and later dissolve it. He has ensured two no confidence
motions are passed against the Rajapaksa government. The parliament boycotted
by Rajapaksa’s UPFA-SLPP coalition, has passed yet another resolution to block
any expenditure by PM’s office.
A plethora of cases against President Sirisena’s actions dubbed
as unconstitutional by Wickremesinghe and his erstwhile coalition partners is
pending in the supreme court. These cases are likely to be disposed of on
December 7, 2018. Added to this,
Wickremesinghe’s quo warranto
petition filed to prevent PM Rajapaksa
from functioning filed in the Court of Appeal is coming up for hearing on
December 3, 2018.
With pressure building up on two fronts - in parliament and the impending
verdict in the cases in Supreme Court - President Sirisena has probably
realized the only way to defuse the situation is to work out a deal with the
opposition leaders. The Speaker agreed to arrange a one-on-one meeting between
the President with the leaders of the United National Front (UNF) constituent
parties led by Wickremesinghe and with the four-party Tamil National Alliance
(TNA) members led by the leader of the opposition P Sampanthan to explore a
possible way out of the crisis.
The meetings took place on November 30, 2018 as scheduled. But
it was probably inconclusive. According to TNA sources, the President is said
to have advised them to pass another no confidence motion against Rajapaksa
government in the parliament in accordance with the standing orders when it
meets on December 5, 2018. This could
pave the way for swearing in another UNP nominee as PM. President Sirisena has
repeatedly vowed not to accept Wickremesinghe again as PM again; so far the UNP
has not chosen another leader from the party to be the PM. The President will
probably withdraw the notification dissolving the parliament as the price for
striking a deal with the opposition. Seeking UNF cooperation for holding a
fresh parliamentary election could also be another trade off for President
Sirisena.
PM Rajapaksa in his first televised address after taking over as
PM said the country’s stability could be restored through a fresh round of
parliamentary election. He added that the UNP, unlike other parties, was not
ready to face the people. The PM said President Sirisena had entrusted him to
resurrect the falling economy and living standard of the people. Referring to
his government, he said “what we have now is only an interim government. When a
downward trend manifests itself, it is difficult to turn things around in a
month or two.” He alleged that the
Wickremesinghe government had borrowed $20.7 bn in three years and it would
take a while to turn things around.
However, in May 2018, when a no confidence motion against
PM Wickremesinghe was defeated, the PM described the motion as an attempt not
to just oust him, but the first step to topple the National Unity government
led by President Sirisena. He had asked the party should prepare for the coming
provincial, presidential and parliamentary elections. Is the UNP ready now for
a parliamentary election?
Arrest of the CDS
and attempted transfer of CID Inspector
President Sirisena speaking to foreign correspondents has
assured non interference in ongoing investigations into abductions, killing of
journalists, and other crimes allegedly committed by those connected to the new
government. He said ‘no one can interfere’ with police and courts. Apparently,
the President’s assurance was a damage control measure after political parties
raised a furore when Inspector Nishantha Adrian Silva of the CID branch,
investigating a number of highly sensitive cases, was suddenly transferred by
the Inspector General of police. It was allegedly done due to pressure from the
President’s office.
The cases he was handling included the assaulting of journalist
Keith Neyhr by suspected military intelligence personnel and the case of Lt
Comdr Hettiarachchi involved in the kidnapping and disappearance of 11 Tamil
youth in 2008-2009.
However, the police commission intervened to cancel the transfer
of Inspector Nishantha, indicating at least the Yahapalana government has indeed
made a difference in making the commissions function independently.
Curiously, while the whole drama
of the CID inspector’s transfer was being enacted, Sri Lanka’s highest ranking
serving military officer Chief of Defence Staff Admiral Ravindra Wijegunaratne,
appeared before Colombo Fort Magistrate and was remanded to custody till
December 5, 2018.
It is interesting to note that earlier the CDS failed to appear
before the CID and give a statement on
his alleged help to Lt Comdr Hettiararchchi to evade arrest in the case of
kidnapping 11 youth.
The arrest and prosecution of the CDS could set a precedent for
the arrest of other service officers allegedly involved in war crimes. President
Sirisena has repeatedly said he would never to prosecute armed forces personnel
on alleged war crimes. So, how he reacts to the arrest of the CDS is likely to
determine whether other cases involving two naval officers would be allowed to
take its logical course.
Tail piece: Even the constitutional crisis and its questionable status did
not deter the government from signing two contracts totaling more than $50
million with two Chinese firms. The contract worth $32 million with China
Harbour Engineering Company (CHEC) was to enhance the deep berth capacity of
the state-run Jaya Container Terminal in Colombo. The other contract worth
$25.7 million was for the supply of three cranes from Shanghai Zhenhua Heavy
Industries for the same project. India had expressed its concern at the deal
earlier as 80 per cent of its marine
trade passes through the port.
Col R Hariharan, a retired MI officer, served as the head of
Intelligence of the Indian Peace Keeping Force in Sri Lanka from 1987 to 90. He
is associated with the Chennai Centre for China Studies, South Asia Analysis
Group and the International Law and Strategic Analysis Institute, Chennai. E-mail: haridirect@gmail.com Blog: http://col.hariharan.info
Monday, 3 December 2018
Security: Can India Handle Another 26/11 ?
Even 10
years on, the country is not fully prepared for another terrorist attack and is
bogged down by petty politics and lack of co-ordination between various agencies
at the grassroots level
By Colonel R Hariharan
| December 1, 2018| India Legal |
Are we better prepared for another attack like 26/11?
Unfortunately, the answer is not simple as it is interwoven with the
international environment, and internal political and structural dynamics.
On the 10th anniversary of the Mumbai attacks of November 26,
2008, in which 166 people lost their lives, relatives of the victims came
together at the Gateway of India, facing the iconic Taj Mahal Hotel which bore
the brunt of them. The media went on a high, bashing Pakistan and its “deep
state” while recounting details of the attack.
INTERNATIONAL
DIMENSION
Internationally, Israel and the US came out with strong
statements of solidarity with the victims of the attack and India. US Secretary
of State Mike Pompeo in his message said that the fact that the perpetrators of
the attack had not been prosecuted so far was “an affront to the families of
the victims”. He called upon all countries, “particularly Pakistan, to uphold
their UN Security Council obligations to impose sanctions against the
terrorists responsible for this atrocity, including LeT and its affiliates”.
International solidarity, particularly from the US and Israel,
is expected as their citizens were victims of the attack; moreover, they had
been in the forefront of the international war on jihadi terrorism. Despite
this, in the world of realpolitik, national interest is invariably the sole
consideration for nations aiding other countries in fighting their wars,
particularly terrorism. So India has to fight its own war on terrorism.
There is unlikely to be any change in Pakistan’s attitude in prosecuting Hafiz Saeed and
six others involved in the Mumbai attack. This was evident from the
presence of Punjab minister Fayyaz ul-Hasan at a function organised by the
Jamat-ut-Dawa, founded by Saeed, on November 26, 2018. The backdrop on the
stage was a huge blow-up of Elias Davidsson, author of the book, The
Betrayal of India: Revisiting the 26/11 Evidence. Hasan’s presence
at the function lends credibility to Pakistan’s right-wing narrative of how
India orchestrated the whole Mumbai “drama” in November 2008.
This was not unexpected. The Pakistan Army calls the shots
regarding defence and India policies and uses trans-border terrorists as a
strategy to bleed its neighbour.
In fact, there are clear indications of Pakistan trying to
revive Khalistani terrorism in Punjab, leveraging this movement’s connections
in Canada, Italy and the UK. On November 4, 2017, the Punjab police arrested
five men said to be part of a Khalistani module that killed RSS members in
Ludhiana, Dera Sacha Sauda followers and a Christian pastor in
October-November, 2017. The suspects, on interrogation, confirmed that
the Khalistan Liberation Force carried out the killings at the bidding of
Pakistan spy agency, the Inter Services Intelligence. Since then, Punjab police
and intelligence agencies have scaled up their vigilance on Khalistani
activities.
According to the Punjab police chief, tech-savvy young men are influenced by
Khalistan separatist propaganda on social media. The grenade attack by two
Khalistani terrorists on a Nirankari satsang in a village near Amritsar on
November 18 is a strong reminder that Punjab could emerge as an option for
Pakistan-supported terrorist operations in the near future. So the question
really is not our readiness to face yet another Mumbai-type attack, but to face
a massive attack launched by educated, tech-savvy and indoctrinated terrorists
and aided by inimical powers. And the way to face them is to overcome our core
weaknesses in the war against terror and structurally improve our systems.
IMPROVE SYSTEMS
The abysmal response of the counter-terrorism apparatus to the
26/11 attacks showed that the national leadership had failed to establish a
fool-proof system to handle terrorist threat. In fact, these attacks showed the
same systemic weaknesses seen in the earlier Mumbai blasts case of 1993 and the
parliament attack in 2001.
The 26/11 episode revealed that there were glaring systemic
weaknesses, both at the state and central levels. There was lack of
co-ordination in intelligence gathering and dissemination which could forewarn
and help agencies respond before a terrorist strike. After an attack takes
place, the security response is often uncoordinated, tardy and delayed.
CO-ORDINATION OF
INTEL
After the 26/11 attacks, Union Home Minister P Chidambaram
mooted a radical overhaul of India’s security and intelligence apparatus. The
National Intelligence Grid (NATGRID), a network to collate data from the
databases of various agencies and ministries, came up in 2016. NATGRID’s data
is now available to 11 central agencies, including the Research and Analysis
Wing and the Intelligence Bureau. Two phases of NATGRID have been implemented
and two more, related to banking transactions and internet usage, are in the
offing. The National Investigation Agency was created on December 31, 2008, to
combat terror. Its director-general, YC Modi, has claimed it is a success story
with a conviction rate of 95 percent in 165 of the 185 cases registered since
its inception.
However, the National Counter Terrorism Centre (NCTC), modelled
on the lines of the National Counter-terrorism Center of the US and meant to be
receiving actionable intelligence inputs, has run into rough weather due to
political wrangling. Many chief ministers see it as an instrument of the centre
to poach on the preserve of states where public order and policing are
concerned. This stalling is a major failure in intelligence sharing on a real
time basis between states and the centre.
State policing continues to be the weakest link in national security. Many
states have not implemented the recommendations of successive police
commissions to improve the quality of policing. So, after 2008, though the
centre allocated more funds to improve and strengthen state police forces,
their capability varies widely from state to state.
MARITIME SECURITY
The fact that 10 LeT terrorists could travel by sea unchecked
for four days and infiltrate Mumbai to carry out the 26/11 strikes exposed the
vulnerability of our maritime security. To rectify this, the Coastal Security
System was refurbished with more fund allocations for coastal infrastructure,
including police stations and radar installations.According to the Indian Navy website, at the apex level, the
National Committee for Strengthening Maritime and Coastal Security (NCSMCS)
co-ordinates all matters related to maritime and coastal security. Joint
Operations Centres have been set up by the Navy in Mumbai, Visakhapatnam, Kochi
and Port Blair, manned by the Navy, Coast Guard and marine police. They act as
command and control hubs for coastal security. As a result, inter-agency
co-ordination between nearly 15 national and state agencies has improved. Also,
a chain of 74 automatic identification system receivers, complemented by 46
coastal radar installations, cover the entire coast.
After Prime Minister Narendra Modi came to power, a proposal to
create a National Maritime Authority to ensure cohesive policymaking and
effective co-ordination for coastal security figured in the president’s address
to Parliament in June 2014. However, this has not materialised so far; so
NCSMCS continues to be an ad hoc solution. Overall, our coastal security is
better than it was in 2008 but it is still a work in progress. Its weakness is
the continued neglect by states, reflected in the indifferent performance of
coastal police personnel who lack marine capabilities.
LEGAL ASPECTS
The world over, governments have been grappling with enacting
laws to handle terrorist threats. India is no exception. Our judicial process,
never known for speedy disposal of cases, adds to the agony of enforcement
agencies. There is lack of a viable counter-terrorism act. There is confusion
in jurisdiction between multiple central and state security agencies. Cross-border
issues, with political ramifications, also affect the apprehension and
prosecution of terrorists in sanctuaries abroad.
The Indian Penal Code and the Code of Criminal Procedure, 1973,
already contain provisions related to terrorist activity, including the offence
of waging war against the government, sedition to bring hatred or contempt or
inciting disaffection towards the government. These have been used in
prosecuting terrorists involved in almost all cases of terrorist attacks,
including the 1993 Mumbai blasts case and 26/11 terrorist Ajmal Kasab’s trial.
After the assassination of Indira Gandhi in 1984, the parliament enacted in
1985 the terrorism-specific Terrorism and Disruptive Activities (Prevention)
Act (TADA). It was used extensively to combat insurgency in Punjab. The
Act defined “terrorist act” and “disruptive activities”, put restrictions on
the grant of bail and gave enhanced power to detain suspects and attach
properties. After widespread allegations of misuse, TADA was allowed to lapse
in 1995.
In 2001, after the terrorist attack on Parliament, the
Prevention of Terrorism Act (POTA), 2002, was enacted. POTA covers political
dissent, allowed prolonged pre-trial detention and reversed the presumption of
innocence of an accused. Misuse of some of its draconian provisions led to
widespread protest and it was repealed in 2004. However, courts allowed
investigation and prosecution of cases booked under TADA even after repeal of
the Act. As a result, a number of cases are still pending and many
accused are languishing in jails without trial.
At present, the Unlawful Activities (Prevention) Act (UAPA),
originally enacted in 1967, is used as the primary anti-terrorism law. It
enables the State to impose reasonable restrictions on the rights to freedom of
speech and expression, peaceful assembly without arms and formation of
associations or unions that threaten national sovereignty and integrity.
However, it has been amended by Parliament five times. It was under the UAPA
that five activists were recently arrested in the Bhima-Koregaon case for
alleged support to CPI (Maoist-Leninist) activities (it is a proscribed
organisation).
Since Independence, India’s integrity and unity have been
threatened from time to time by separatists, left-wing extremists and terrorist
organisations supported by Pakistan. However, its enactments to combat these
disruptive forces lack clarity. Law-enforcing agencies, too, have to respect
the constitution and be accountable for their actions to prevent misuse of Acts
like the UAPA. Unfortunately, with party polemics vitiating the political
climate, we may continue to meander in combating the forces threatening our
national sovereignty.
—The writer is a retired officer of the Intelligence Corps and
associated with the Chennai Centre for China Studies and the South Asia
Analysis Group
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