March 30, 2005
India’s politicians cutting across party lines have risen to defend Narendra Modi’s right to travel unfettered. As a justifiable dislike for Modi and his problematic governance strategies is pitted against indignation at yet another instance of US unilateralism, the latter appears to have won out. Much as US unilateralism is deplorable, this is one instance in which the US is within its rights in international law. Indeed in denying him a visa, and thereby compelling him to re-evaluate his welcome in various countries, the US may have done Modi a favour. Leaders, like Modi, accused of complicity in perpetrating genocide yet at large, should curb their wanderlust as a matter of prudence. A lesson that Henry Kissinger, accused of war crimes in Indo-China, and elsewhere, has learnt. The days of untrammeled respect for state sovereignty, and unquestioned head of state immunity are long gone.
The expanding protection of certain rights, such as the right to freedom from religious prosecution, and the increasing legal authority of global norms, such as the prohibition on genocide, have led to states exercising universal jurisdiction. This entitles them to exercise jurisdiction over individuals, whatever their nationality, for grave breaches of international law. The US has passed laws to give effect to its exercise of universal jurisdiction, the Alien Tort Claims Act, 1789, and the Torture Victims Protection Act, 1991, to name two. It is under these laws that cases were filed in US district courts against Zimbabwe President Robert Mugabe in 2000, and Jiang Zemin, then Chinese president, in 2002, both on official visits to the US. Under customary international law, heads of state and high ranking officials enjoy immunity, regardless of the gravity of the charges, for as long as he/she remains in office. US courts dismissed the claims against Mugabe and Zemin on these grounds. Yet the law is still evolving. And there are several ways someone like Modi can yet be tried under international law.
International criminal tribunals, such as the International Criminal Court, may indict serving heads of state. It is perhaps with some foresight then that India, as indeed the US, refused to ratify the Rome Statute of the ICC. Further, some states may exercise jurisdiction in an expansive fashion. In the UK, Lord Millet in the Pinochet case, 2001, extinguished immunity for Pinochet on the ground that no immunity could survive for international crimes which are contrary to peremptory norms of international law and “on such a scale as to amount to an attack on the international legal order”.
Arguably, if these conditions were satisfied, immunity would be extinguished even for serving heads of state. Germany, Spain and Belgium present further examples. German courts, for instance, are currently considering a case filed by the Center for Constitutional Rights, New York, and four Iraqi citizens against Donald Rumsfeld and others for war crimes and acts of torture committed in Abu Ghraib and elsewhere. Also, whatever immunity heads of state have, leaves unfettered the possibility of a trial once their terms end. Since the essence of universal jurisdiction is that every state has an interest in prosecuting the accused, the fact that no judicial determination has yet been made on Modi’s complicity in the Gujarat carnage is unlikely to stand in the way of, for instance, an interested party filing charges against Modi if he enters their territory. That he is a democratically elected leader is no hindrance. Democracy can sometimes be little more than tyranny of the majority. Hitler illustrates this.
The US is acting within the bounds of international law in denying Modi a visa. They do not need to await the outcomes of our slow judicial process before closing their borders. This is not to say that the US is consistent in its application of, and respect for, international law. It bars Modi, yet houses the likes of Kissinger, and plays host to the likes of Pinochet. The US also has a deplorable tendency to pursue unilateral rather than multilateral options in the international arena. It exercises universal jurisdiction over grave breaches of international law, yet remains strongly opposed to the ICC which provides a multilateral fora for the trial of alleged international criminals. The reason: the ICC may be able to try US officials for alleged crimes committed in Iraq, and elsewhere. Yet, whatever the contradictions, let it not blindside us into ignoring the real issues.
The Indian government expressed “its deep concern and regret” at the US decision. This is a tad misplaced. The only “regret and concern” it should have is over its inability to bring justice to the Gujarat victims. Admittedly the threshold of evidence required to establish state and personal complicity is high — it may even prove to be impossibly so — but the state of Gujarat under Modi’s leadership can at least be tried for the “comprehensive failure to protect the constitutional rights of the people of Gujarat” (NHRC, 2002) and for being “modern day Neros” (Supreme Court, 2004).
The writer teaches law at Queen’s College, Cambridge
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