Pragmatism-led foreign policy
POLITICALLY, External Affairs Minister Jaswant Singh’s policy enunciation was very important. But journalistically, Mr Madan Lal Khurana’s trouble with the Patents Bill and Mr Yashwant Sinha’s reiteration of an emerging financial crunch were more interesting and hence crowded out the subtle shift in the thrust of foreign policy.

Politics of new districts
WHEN Ms Mayawati as Chief Minister of Uttar Pradesh, during the short-lived marriage of convenience between her party (the BSP) and the BJP, went on a spree of creating new districts, many political observers thought that there should be some way to put a stop to such recklessness. But nothing could be done then. BJP leaders, including Mr Kalyan Singh, now Chief Minister, did not go much beyond expressing their displeasure.

Proxy voting
ONE can be never too sure about the fate of a Bill till it is passed by both Houses of Parliament and gets the assent of the President but considering that most major parties have agreed to support it, the Bill introduced on Tuesday last to permit defence and paramilitary personnel to get an opportunity to vote by proxy should have a smooth sailing.

Amnesties: where to draw the line?
by Anupam Gupta
“FOR anyone trained in the British tradition,” Sir Alfred Zimmern wrote in his book on the League of Nations, “the term International Law embodies a conception which is, at its best, confusing and at its worst exasperating.

Gearing up for New Year celebrations
by Humra Quraishi
I AM sure you must have noticed those not-to-be-missed advertisements how some of the New Delhi hotels are gearing up to usher in the new year. One has managed to cart in a Lebanese dancer, a second is said to have got four pairs of white legs from another part of the world to intermingle them with our desi ones, whilst a third has like the previous few years sent out invites for a cosy cocktail start to the new year.

75 Years Ago

Railway strikes and gratuity
THE following communication has been received by Mr C.F. Andrews from the Secretary of the Labour Party, House of Commons, with reference to a question put in the House of Commons regarding the Indian Railway Employees and their gratuities:—

Time to re-assess Iraqi situation

US presidency degraded
by V. Gangadhar
FOR the USA the season of goodwill and Christmas celebrations was gloomy. The nation was divided as never before. Only for the second time in the history of America, a President stood impeached.

UN Charter violated
by Praful Bidwai
THE massive bombing of Iraq by Anglo-American forces is an act of brigandage which “diminishes and degrades” not so much Iraq’s military capabilities as the USA’s and Britain’s global stature.

Pragmatism-led foreign policy

POLITICALLY, External Affairs Minister Jaswant Singh’s policy enunciation was very important. But journalistically, Mr Madan Lal Khurana’s trouble with the Patents Bill and Mr Yashwant Sinha’s reiteration of an emerging financial crunch were more interesting and hence crowded out the subtle shift in the thrust of foreign policy. Maybe, Mr Singh did not say anything startlingly new, but said it with startling impact. He is categorical that pragmatism will shape this country’s approach “unburdened by the ideological preoccupations of the past”. So out goes ideology, and in comes pragmatism, uncoupled from five decades of even-handed, Third World-centred and morality-weighted basic frame. True, the old stand, practised erratically, had long ago failed to yield results, particularly after the collapse of the Soviet Union and the advent of liberalisation. The policy needed finetuning, perhaps even an overhaul by jettisoning some elements and grafting some others. But to abruptly abandon it creates some problems. The Congress will demur as it looks up to the Nehruvian legacy as a precious part of its own legacy. Many party members, including some old Congressmen, cling to it as an article of faith. If they hold back support, Mr Jaswant Singh will find it difficult to build a consensus on the new policy, and without consensus, he will not be able to effectively push it through, given the BJP-led government’s handicaps. Of course, the Left will holler as will some parties and individuals still searching for an ideological identity. The new look policy may even turn out to be a “well” issue, with MPs filling the well space in Parliament to express their opposition.

The main worry is about pragmatism itself. It is a concept without a secure anchor. As a problem-solving instrument, (a favoured expression of Mr Jaswant Singh) pragmatism may not produce the desired results. A solution forged today with pragmatism as the sole guiding principle may undo an earlier one or create a new problem. The various aspects of a country’s relations with another country keep changing, often as a result of developments in a third country. This is evident from two cases: India’s stable ties with the Soviet Union (then) and Russia (now) based on ideology, and the course of the USA’s “pragmatic” relations with Pakistan and Iraq. India does not have the kind of diplomatic strength to withstand such buffeting. Mr Jaswant Singh retrieved some bits of old policies and gave them a dramatic airing. He will launch “economic diplomacy” with one eye fixed on “energy security”. What this means is that as in the past, India will accord priority to maintaining good relations with the Gulf countries. He also promised duty-free trade with SAARC countries, as is being offered to Sri Lanka. But for this arrangement to be meaningful, Pakistan has to walk in without reservations. It won’t, notwithstanding its proposed sale of power to India. That is where his “extended neighbourhood” theory runs into an obstacle.

Politics of new districts

WHEN Ms Mayawati as Chief Minister of Uttar Pradesh, during the short-lived marriage of convenience between her party (the BSP) and the BJP, went on a spree of creating new districts, many political observers thought that there should be some way to put a stop to such recklessness. But nothing could be done then. BJP leaders, including Mr Kalyan Singh, now Chief Minister, did not go much beyond expressing their displeasure. They just talked of the proper procedure not being followed, and not the financial viability of the thoughtless decisions. Ms Mayawati ordered the carving out of five new districts within 47 days of her rule last year. She had the dubious distinction of having created two new districts during her earlier four-month Chief Ministership. She was so ruthless in her misguided mission that she named two of the new districts after the social reformers who had nothing to do with UP — Mahatma Jyotiba Phule and Chhatrapati Shahuji Maharaj. They worked for the emancipation of the Dalits in Maharashtra! She did not care even for the sentiments of the local populace while choosing the names. Like a dictator, she ordered the formation of a new district comprising certain areas of Banda and named it as Chitrakoot Dham-Karvi but changed it soon as Chhatrapati Shahuji Maharaj district. Resentments expressed by the local people were ignored, though their plea for retaining the original name was quite meaningful and had every justification. As legend has it, Lord Rama had spent several years of his “vanavas” at Chitrakoot, and Tulasidas wrote his classic, the Ramacharitmanas, at Karvi. The BJP leaders’ acceptance of all that Ms Mayawati did was obviously because they did not want to disturb the political arrangement, as they had their own agenda to pursue after coming to power.

The BJP did get the reins of power but with the help of other means, which only gave a bad name to the party. It had kept silent for over one and a half years. During this period it suffered much loss of face on the Uttaranchal issue. The bone of contention was Udham Singh Nagar, one of the new districts born during Ms Mayawati’s first four-month tenure as Chief Minister. Udham Singh Nagar, with its headquarters at Rudrapur, was earlier part of Nainital district. Retaining the new district as part of UP did not fit into the scheme of things of the BJP, though the Akali Dal, one of its coalition partners at the Centre, was hell bent upon preventing its inclusion in the proposed state of Uttaranchal. The UP Chief Minister has been among the bitter opponents of the Akali demand and both have had their political interests to protect. Now Mr Kalyan Singh has come out with an excellent remedy, of course in consultation with his party bosses sitting in Delhi. He has set up a Cabinet sub-committee to study the viability of 22 newly created districts from financial and other angles. Anyone who has been observing the developments in India’s most populous and one of the most poorly managed states would be knowing well that many of these districts do not have their own buildings to house their headquarters. Most of them are financial cripples. Small administrative units have their own advantages, but they must not be economically sick. This is a highly valid point and may lead to the scrapping of some of the districts. Reports have it that Udham Singh Nagar may also go back to Nainital — slated to be a part of Uttaranchal. The BJP leaders, including Mr Kalyan Singh, can now convincingly argue that a part of a district cannot be retained in the parent state. This is politics — UP style!

Proxy voting

ONE can be never too sure about the fate of a Bill till it is passed by both Houses of Parliament and gets the assent of the President but considering that most major parties have agreed to support it, the Bill introduced on Tuesday last to permit defence and paramilitary personnel to get an opportunity to vote by proxy should have a smooth sailing. This would fulfil a long-standing demand of the defence personnel. Over 2.5 million such personnel posted far off from their homes in most difficult terrains have been virtually deprived of their constitutional right ever since the first elections took place in 1951 because of the vagaries of the postal ballots. These would never reach them on time and the ballots sent by them also reached the destinations long after the election process was over. Nobody admitted it but it was clear that the postal ballot system had failed miserably. That is why it was estimated that barely 10 to 15 per cent of the personnel took part in the elections. Since politics today has come to be governed by the demands of vote banks, nobody took good care of even the legitimate demands of the defence personnel. Things became even more difficult after the campaign period was reduced from 20 days to 14. After all, the ballot papers could be despatched to the defence personnel only after the finalisation of the lists of candidates. It was almost impossible to ensure that the papers reached them on time. That is why the Election Commission took active interest in ensuring that proxy vote was allowed.

The new provisions will enable a soldier to give his power of attorney to his wife or adult children or any other relative to cast his vote. It can be prophesied safely that the percentage of defence people voting would go up dramatically because most of them not only treat it as a right but also view it as a civic duty. As it always happens, politicians have been rather lukewarm in providing them this facility, at least to begin with. They raised objections that through proxy vote, the confidentiality would get destroyed. They also expressed the apprehension that there was reason to suspect that the person to whom the power of attorney was given might misuse it. Their disinclination is not entirely without merit. But considering that the imperfect solution is for a problem which is not given to any other remedy, this exceptional measure has become inescapable. Defence personnel rightly argue that if they cannot have faith in their wives and sons, who else can they depend on? In any case, the protesters do not seem to realise that in most Indian families, the word of a dear one doing his duty on the borders is almost the law. Even if a few persons misutilise the facility, it should not be denied to millions of defence personnel. There is another reason for ensuring that they get an effective means to cast their vote. In most recent contests, the margin of victory has been very small. The proxy votes will help ensure that the rightful candidates win in the future elections. After all, even if defence personnel are apolitical, they take an active part in the events of the country and should have a say in deciding who represents them.

Time to re-assess Iraqi situation

US presidency degraded
by V. Gangadhar

FOR the USA the season of goodwill and Christmas celebrations was gloomy. The nation was divided as never before. Only for the second time in the history of America, a President stood impeached. Whether he was voted out of office did not matter. William Jefferson Clinton had degraded America and its imperial presidency.

I lost much sleep listening to the endless debates on the impeachment issue in Congress. They were emotional, soul-searching and at time defiant. Congressmen stuck to their basic politics, the Republicans arguing for impeachment and the Democrats totally against it. As I listened to the Republican Congressmen pointing out how their President had lied on oath on the Monica Lewinsky and other issues, I wondered why no one thought fit to refer to the other major lies of the Clinton administration. This was on the issue of bombing Iraq.

Unfortunately, neither the Republicans nor the Democrats like President Saddam Hussein of Iraq and hence there was little remorse for Iraq’s plight. The Democrats often argued this was not the time for weakening the President’s hand because thousands of “brave” Americans were battling the “evil” Iraqi dictator. Since patriotism was the last refuge of scoundrels, it was only natural that the US Congressmen from both parties were so concerned about their pilots who were bombing Iraq. No one had the courage or inclination to question Clinton Big Lie, the so-called “hidden weapons” in Iraq.

The cowboy approach is strongly implanted in the American mind. As the US and British planes pounded hapless Iraq, there were cries of admiration and wonder at the “valour” of the pilots. This was not a war of individual bravery or courage. The only super power in the world and its faithful poodle were attacking a country, bled white by economic sanctions and which had nothing to retaliate. The Arab world, shamefully, neglected to rise to defend Iraq. They would definitely rue their action. In the days to come, their own independence will be threatened by the Big Bully and its sidekick.

Why was Iraq bombed at this juncture? The motives were clear. Since any kind of military action led to rabble-rousing patriotism, Mr Clinton decided to bomb Iraq to shore up his falling popularity and prestige. It was no coincidence that the bombing clashed with the vote in the US Congress over the impeachment issue. This was an approach inherent with the nature of the US Presidents. Act as the bully, send the Marines to attack small, helpless nations and climb up the popularity polls. Former Presidents had used this technique to attack Guatemala, Grenada or kidnap the Panamnrian strongman who once functioned as a CIA agent, and then decided to do some drug trafficking on his own. The bloodthirsty American nation likes nothing better than watch live on TV bombs cascading down opponents who had nothing to shoot back. It makes a diversion from serial killers and 12-year-old kids who go out on shooting sprees. That is the philosophy of the most powerful nation in the world!

The bombing of Baghdad was clearly meant to divert attention from the messy details of the impeachment debate in Congress. But, then, the Republicans would not be fooled and were not taken in by all those patriotic references to “our armed forces fighting a savage battle” eloquence. They were meant to get the President who had lied shamelessly on a variety of issues. Mr Clinton’s sexual escapades may be “personal issues”, but he was the President of the nation. He chose a young woman aide, young enough to be his daughter and had all kinds of kinky sex with her within the Oval Office. And then lied about it.

Forget the “sexual lie”. The lies over the Iraqi weapons were more significant. Ever since Iraq was routed in the Gulf War in 1990, the UN teams had been searching for chemical, biological and nuclear weapons, allegedly “hidden” in Iraq. Despite snooping around all the time, the UN inspectors had not been able to locate any of these weapons. Did they really exist or were they products of the sick imagination of a few Western leaders who could not stand the sight of President Saddam Hussein?

The Western leadership and media had portrayed Mr Saddam Hussein as the most dangerous man on earth and spread all types of horror stories about him. He was “cruel, arrogant, deceitful, violent and mentally unstable”, we had been told. If that were so, why didn’t the Iraqi leader make use of the nuclear, biological and chemical weapons when the UN forces invaded his country in 1990? Megalomaniacs did not bother about the consequences of their actions. That was why Hitler decided to fight till the end, though it meant the total destruction of Germany. So why should Mr Saddam Hussein bother about the future of his country and not use the so-called deadly weapons which he had “hidden” all over the place? There had been no satisfactory answer to this question.

The USA today has no direct interest in West Asia except to prop up Israel. The Jewish nation, as everyone knows, has an arsenal of the same weapons which Iraq has been supposed to possess, but the international community has never clamoured for the elimination of these weapons. There are supposed to protect Israel from its hostile neighbours. But, then, how can Iraq protect itself from its hostile, more powerful Western enemies. British Prime Minister Tony Blair openly called for the ouster of the Iraqi President and pledged his nation’s resources for this purpose. This was the worst kind of jingoism, not easily found in modern times. Was Mr Tony Blair still under the impression that Britain ruled an empire where the sun never set? How would he react if some of the Arab nations called for his ouster on the grounds that under him Britain had become a bootlicker of the USA, without an independent foreign policy?

Mr Saddam Hussein may not be an ideal ruler. But, then, what about Saudi Arabia where the ruling royal family has suppressed dissent, human rights and the rights of individuals for several decades? Till recently the Western powers led by the USA had supported dictators like Gen Pinochet of Chile, whose hands had been stained with the blood of millions of innocent people. It was the American intelligence agency, the CIA, which plotted and achieved the ouster and killing of democratically-elected President Allende of Chile and replaced him with the military junta. All over the world, the USA had propped up tinpot dictators on the pretext of fighting communism. These dictators were highly unpopular with the people and survived only because of American help.

But there are no indications of Mr Saddam Hussein losing his popularity among the majority of the Iraqi people despite the horror stories spread by the Western media. The citizens of Iraq, bombed out of their homes and deprived of food and medicines, viewed the USA as the modern Satan. This is very clear from the public demonstration of support to their President. The Western powers have failed to realise that unless his own people turn against him, Mr Saddam Hussein is safe. And they are doing their best, to make him a martyr of the Arab cause.

Once the bombing was over, the American war machine was unable to assess its impact. How many real targets were hit? What types of weapons were they manufacturing? The world could not ignore the Iraqi claims that civilian targets, including hospitals, were destroyed. The mass funeral of the 68 victims of the American bombing was no put-up show. It was cold-blooded murder by the Americans and their British lackeys. The world should not forget these acts of villainy in a hurry. Will the United Nations, rendered impotent by American bullying, reassess the situation?

Time to re-assess Iraqi situation

UN Charter violated
by Praful Bidwai

THE massive bombing of Iraq by Anglo-American forces is an act of brigandage which “diminishes and degrades” not so much Iraq’s military capabilities as the USA’s and Britain’s global stature. If the USA stooped to a new low in contriving at and executing this operation, Britain to quote Labour MP George Galloway, was “reduced to being a tail on this verminous and mangy Desert Fox”.

There are three sour ironies about Desert Fox. First it may have ended up strengthening, not weakening, Mr Saddam Hussein. This is likely to happen, especially if no internal revolt — which the USA is praying for – materialises, and if Washington’s “covert operations” do not yield dramatic result. Second, it has weakened the USA’s claim to leadership even within the Western alliance and strained its relations with Russia and China. And third, the timid Indian and Pakistani responses to the attack expose the futility of the claim that possession of nuclear weapons helps enhance independence in foreign policy-making or expand the room for diplomatic manoeuvre.

America’s stated objectives behind the assault were confused and contradictory: “degrading” Mr Hussein’s weapons of mass destruction (WMD) facilities is not the same as “degrading” his military power. Overthrowing and replacing him is an entirely different kettle of fish. And yet that is what Mr Clinton indicated: “The best way to end the threat that Saddam poses to his own people.... is for Iraq to have a different government”; the USA would “intensify its engagement with the Iraqi opposition groups....” and “stand ready to help a new leadership in Baghdad...” The conflation of objectives derives as much from Mr Clinton’s “Wag the Dog” response to his impeachment, as from the way the USA has manipulated the UN Security Council to push a wartime objective — overthrow of a hostile regime —in peacetime, under UNSCOM’s convenient cover. The truth is that the USA and Britain had no legal sanction for the use of armed forces.

Nothing in the UN Charter permits any state to use force against another except in self-defence. In Iraq’s case, the only sanction for armed forces came from Security Council Resolution 678 authorising the vacation of Iraq’s invasion of Kuwait. But that was in 1990; it ceased being effective after Kuwait’s liberation. Resolution 687 (of 1991) authorised disarmament in Iraq, but in the context of a regional process, including a zone free of all WMDs. That is how UNSCOM was born. Its inspections were to last 40 days. They have gone on for 86 months — without yielding clinching evidence of WMD production except laboratory-level biological experiments. Resolution 1154 (March, 1998) warned Iraq of “the severest consequences” if it did not grant UNSCOM “unconditional and unrestrained” access. However, what these consequences would be was not specified. In no case was Washington or London authorised to impose such consequences.

The USA and the UK are dishonest to cite UNSCOM chief Richard Butler’s report as the basis for the armed action. The report overdrew its conclusions, and yet was ambivalent. It exaggerated the five instances where Iraq resisted inspections, but noted that it cooperated in 300 cases in a month. It had to concede that “the majority of inspections were carried out with Iraq’s cooperation”. The International Atomic Energy Agency was even more positive. This time around, unlike in August, 1996, when Iraq was obstructive, there was general cooperation and compliance.

According to The Washington Post, Mr Butler unscrupulously wrote his anti-Iraq report at the behest of the USA. And he did something even more disgraceful by withdrawing inspectors without consulting the UN Secretary-General or the Security Council. The Security Council only started discussing his report after the attack — supposedly based on that report — was already launched. Nothing could be a worse case of collusion between a UN agency and a super power which owes the UN $ 1.5 billion in dues.

So brazenly wrong was America’s conduct that even its NATO allies were lukewarm towards Desert Fox. France and Italy were sharply critical. Even more so were Russia and China. This has not changed with Washington’s new plea that its real objective is to promote democracy in Iraq by dislodging “Saddam, the Dictator”. Mr Hussein is indeed a dictator; he has ruled Iraq as such for 20 years. But in 12 of those 20 years he was America’s ally and received its support in containing Iran. Washington did not let out even a sequel of protest when Mr Hussein used chemical weapons against the Kurdish minority in 1988.

The truth is that the USA has shifted its policy — from dual containment (of Iran and Iraq) — to exploring a more cooperative relationship with Iran, while militarily targeting Iraq. In 1991, it did not dislodge Mr Hussein when it had a chance to, because it wanted him to contain Iran. It also allowed him to crush the Shia rebellion in southern Iraq. In the region as a whole, Washington finds itself in a cleft stick. Iraq’s northern Kurds are highly disaffected and ready to fight Mr Hussein, but supporting them militarily in a big way risks serious trouble in Turkey where too they are numerous. And Turkey is a US ally.

Iraq’s unfortunate civilians have been paying the price of US venality. Their situation was grim even before the attack. According to UNICEF, between 5,000 and 6,000 Iraqi children have been dying each month from infections, starvation and lack of medicines, all related to sanctions. Surgical operations are routinely performed without anaesthesia. Scholars and doctors have turned into taxi-drivers. School children have to do without pencils because graphite imports are not permitted for fear of being used to make weapons. Nor can chlorine be used to purify water. No wonder, even the French President is moved to call for reviewing the oil embargo and “improving living conditions in Iraq. This contrasts sharply with the established US objective of bombing its adversaries back “into the Stone Age” — as in Vietnam.

Unlike some of the USA’s own allies, India and Pakistan were timid and mealy-mouthed in criticising the Anglo-American action. India only “deplored” it. This is a far cry from New Delhi’s initial position of 1991, until the US warplanes refuelling, and its call in 1993 and 1996 to soften sanctions as well as its strong recent opposition to armed action. The principal reason for this is New Delhi’s extreme reluctance to upset the USA with which it has held seven rounds of talks on the nuclear weapons issue. That alone explains why there was only a weak joint statement with Mr Yevgeny Primakov on the Gulf crisis. India wants to do nothing that might remotely upset the USA.

There lies a home truth. Those who had thought that nuclearisation would at least enable India and Pakistan to pursue an independent foreign policy, if not achieve other objectives, must now concede that they were wrong. Nuclearisation has shrunk, not expanded, our room for manoeuvre. India and Pakistan stand isolated in the world; they have courted their neighbours’ hostility and suspicion; and they have lost leverage and moral stature. Nuclear weapons have proved to be a counterfeit currency of power. They have yielded no benefits in spite of high costs.

But, then, nuclear weapons have always been a devalued currency. Nuclear America could not prevent China from joining the Korean war in the 1950s, or avoid its own humiliation in Vietnam in the 1970s. The mighty Soviet Union had to beat an ignominious retreat from Afghanistan: indeed, its nuclear weapons could not even ensure its own survival. Britain’s nukes did not deter Argentina from fighting the Falklands war. And France’s bombs have done little for it except satisfy the craving for national pomposity.

There is a larger lesson in all this. This pursuit of hegemony through massive military force is not just immoral. Ultimately, it may not even be realistic. The USA and the UK will gain little by turning Iraqis — who at one time had among the highest living standards and health indicators in West Asia – into half-starved, sullen paupers.

Amnesties: where to draw the line?

by Anupam Gupta

“FOR anyone trained in the British tradition,” Sir Alfred Zimmern wrote in his book on the League of Nations, “the term International Law embodies a conception which is, at its best, confusing and at its worst exasperating. It is never law as we understand it, and it often, as it seems to us, comes dangerously near to being an imposter, a simulacrum of law, an attorney’s mantle artfully displayed on the shoulders of arbitrary power.”

With great respect to the British law lords, their November 25 decision against the former Chilean dictator, General Augusto Pinochet, resting on a highly original and creative perception of international law, fits this description. Fortunately for history and students of international law, the dissenting opinions of the two seniormost Judges on the Bench — Lord Slynn of Hadley and Lord Lloyd of Berwick — provide a strong, cogent answer to the majority decision. It is to their opinions that I now turn, in this third, concluding piece on the Pinochet case.

It is strange to think of murder or torture (the crimes alleged against General Pinochet) as “official” acts or as part of a Head of State’s “public functions”, says Lord Lloyd, clearing a semantic obstruction to begin with. But if for “official” one substitutes “governmental”, the true nature of the distinction between private and official acts becomes apparent. Where a person is accused of organising the commission of crimes as the head of the government, in cooperation with other governments (Argentina in this case), and carrying out those crimes through the agency of the police and the secret service, the “inevitable conclusion” must be that he was acting in a sovereign, not in a personal or private, capacity.

The majority in the House of Lords, I may be permitted to interject, refer to Hitler’s example in support of their conclusion that a Head of State who commits “high crimes” acts thereby in his private, not official, capacity and cannot claim the benefit of sovereign immunity as Head of State. If no line between private and official acts of a Head of State is drawn, says Lord Steyn (one of the majority Judges) in a much-quoted observation, it would follow that when Hitler ordered the “final solution” his act must be regarded as an official act deriving from the exercise of his functions as Head of State.

Impressive as the majority’s commitment to human rights is, the reference is, to say the least, surprising. On what basis can it be said that Hitler’s acts were not the official acts of the German state or government? That the brutal wars that he unleashed in pursuit of his policy of “lebensraum”, and the extermination, enslavement and deportation of millions of people on the Continent, were not acts of State planned and committed with the aid of the entire State apparatus (including the army), but the private acts of an individual? Lance Corporal Adolf Hitler became such a grave and unprecedented danger to the survival of mankind only because he took over the German state in 1933, and not inspite of it.

Though in a minority Lord Lloyd is, therefore, absolutely right when he holds that, both under customary international law (which forms part of the common law of England) and under statute, a former Head of State enjoys continuing immunity in respect of governmental acts which he performed as Head of State because the acts are “attributed to the State itself.”

It would, he adds, be “unjustifiable in theory, and unworkable in practice, to impose any restriction on Head-of-State immunity by reference to the number or gravity of the alleged crimes.” Otherwise (he says) one would get to this position: that the crimes of a Head of State in the execution of his governmental authority are to be attributed to the State only so long as they are not too serious. “But beyond a certain (undefined) degree of seriousness the crimes cease to be attributable to the State, and are instead to be treated as his private crimes. That would not make sense.”

That international law crimes should be tried before international tribunals, says the other dissenting Judge, Lord Slynn, or in the perpetrator’s own State is one thing. That they should be “impleaded without regard to a long-established customary international law rule in the courts of other States is another.” The fact (he says) that an act is recognised as a crime under international law does not mean that the courts of all States have jurisdiction to try it, nor does it mean that the immunity recognised by States as part of their international relations is automatically taken away.

There is, he says in an important statement of principle after reviewing historical developments, “no universality of jurisdiction for crimes against international law, there is no universal rule that all crimes are outside immunity ratione materiae.” Ratione materiae is Latin for “by reason of the subject matter”.

The only permissible way for “cutting down” Head-of-State immunity (in Lord Slynn’s opinion, and I would entirely agree) is to adopt an international convention. The convention must clearly define a crime against international law and empower a State to prosecute the crime, regardless of jurisdiction and nationality. It must also expressly provide that a national court can try a former Head of State or that having been a Head of State is no defence. Both the States concerned (between whom the dispute arises) must be party to the convention and it must have been given the force of law, where necessary by legislation, in both of them.

Lord Lloyd’s opinion as well rises to great heights of statesmanship. He points to the “widespread adoption of amnesties” for those who have committed crimes against humanity, sometimes with the blessings of the United Nations as a means of restoring peace and democratic government. He cites the amnesty at the end of the Franco-Algerian War in 1962 and, most significantly for us in India, the decision of India and Bangladesh in 1971 not to pursue charges of genocide against Pakistan troops accused of killing about 1 million East Pakistanis.

That reference alone should induce readers to look at the Pinochet case more closely.

Gearing up for New Year celebrations

by Humra Quraishi

I AM sure you must have noticed those not-to-be-missed advertisements how some of the New Delhi hotels are gearing up to usher in the new year. One has managed to cart in a Lebanese dancer, a second is said to have got four pairs of white legs from another part of the world to intermingle them with our desi ones, whilst a third — which is incidentally a very well known five star chain of hotels — has like the previous few years sent out invites for a cosy cocktail start to the new year. But for some reason (inexplicable or extremely explicit) this invite remains heavily circulated only amongst the bureaucracy. Only once I went for this particular new year party and needless to write found the ongoings pathetic, as though I had been sandwiched between some corridors of power.

Whilst on the countdown Sahmat has decided to indulge us with a bit of introspection. With a five-day convention on secular cultural action beginning on December 28, Sahmat once again focuses on secularism. “A large number of individuals and organisations actively engaged in contesting the communal majoritarian interpretation of our cultural heritage, contemporary art practices and scholarly pursuits are being invited to participate in this convention......major secular groups will be participating from not only India but also from the entire South Asian region, the South Asian diaspora communities in the USA, Canada and UK.....” And out of the two documentary films to be screened during this convention Anand Patwardhan’s “Ram Ke Naam” and Gauhar Raza’s “Zulmaton Ke Daur Mein”, I have earlier seen Ram Ke Naam when it was screened at the IIC and one can sum up its impact — the director had to be outrageously brave to depict so much of the potent truth of the communal ongoings. Another noteworthy item could be Habib Tanvir’s play “Jis Lahore nahin wekhya woh jammya hi nahin” to be staged on the opening day of the convention.

PM’s astrologer

Sitting in this fog I really haven’t the foggiest idea of how we are still surviving in the midst of this pollution encircling us like a opaque sheet, power cuts in almost one third of the city, crime wave carrying on unabated, rising numbers of bronchial and respiratory diseases getting reported from every possible segment. And in all this if I telephone Prime Minister Atal Behari Vajpayee’s astrologer Gita Sen about how the Prime Minister fared on his birthday she seemed so indifferent, almost as though she has washed her hands off from all the astrology fare. “No, on this birthday (25 December) Atal Behariji didn’t come to my home for the puja...Yes, last year he did come down because then he wasn’t the prime minister so all those official rules were not there. I have been told that this year because of protocol reasons he cannot come. Anyway, on my part, I sent my (adopted) daughter to his house and did some havan and puja for him”.

About any predictions for him for the coming year? “None really for now I have decided to give up astrological predictions and will henceforth concentrate on just spiritual aspect and do some social work.

“From whatever she had studied of his horoscope, what will his fate and that of his political party be? He will continue being the prime minister till the party is in power and party will be in power for the full term.”

But when I point out contradictions in her statement — when I had last interviewed her she had stated that by the end of this year his health would decline steadily and there could be a new prime minister — she cautiously chooses her words to counter all those earlier utterances “yes around May he wasn’t too well because of the sheer tension he was undergoing but once tension eased, he has regained his health so I change my earlier prediction and stress that he will continue as the prime minister till the party is in power.”

Iraq crisis far from over

Talking to the Iraqi Embassy’s Charge d’Affaires Muhsin Hadi one gets the impression that the crisis in Iraq is far from over, or to put it more blatantly just begun. The latest tussle is revolving around Iraq’s point blank refusal for UN arms inspectors to land in Iraq. “Why should we allow those inspectors to land in our country when the USA and the UK say they have destroyed all our nuclear weapons during these latest round of missile raids. So tell me what is left for these inspectors to inspect in Iraq? Hadi gives the impression that under no circumstances Iraq will allow those inspectors to land and this could invariably lead to fresh trouble for Iraq. Coming to the list of those dead, injured and the property destroyed he says official figures of those dead is 62, the injured are so many that the exact figures are yet to reach here and so is the case with the damaged property. “It is not just the civilian houses that lie destroyed but even factories and schools. And contrary to US reports Basra port was attacked and not only our refineries destroyed but even the docked ships totally burnt out...”

On this Christmas

Though on this Christmas it felt good to see the general merriment around but, then latest round of news from Gujarat left a chill — hardcore Right wing fundamentalists didn’t spare members of the Christian community even on this Christmas day. To quote John Dayal, convener of the United Christian Forum for Human Rights “Even on Christmas day in Gujarat’s Dangs district (in which earlier in the year chaples were burnt down) two Christian schools were attacked and burnt down and a prayer service was not only disrupted but three Christians were critically injured whilst being attacked. News of this latest round of attacks on this minority community makes one wonder whether the rule of law prevails in Gujarat especially in the context of Home Minister LK Advani being an MP from Gujarat...”One is also left wondering at those rounds of assurances and hollow promises made to the minorities in the recent weeks. Whatever happened to them, I wonder? But, then, seeing the track record of those in power one needn’t even bother to wonder.

75 YEARS AGO

Railway strikes and gratuity

THE following communication has been received by Mr C.F. Andrews from the Secretary of the Labour Party, House of Commons, with reference to a question put in the House of Commons regarding the Indian Railway Employees and their gratuities:—

Further answer has just been received from the India Office a copy of which is enclosed. The copy reads as follows:—

You will remember asking me last month a question concerning the possibility of granting retrospective effect to the amendment of the Gratuity Rules for the subordinate Railway Employees of the Indian State Railways, in reply to which I said that the Secretary of State would consult the Government of India.

We have now had report from the Government of India upon the matter, but after very careful consideration of the suggestion they find themselves unable to recommend that the order in question should have effect prior to the middle of the next month and the Secretary of State after consideration of arguments put forward by the Government of India has concurred with the view held by them.