Narendra Modi goes (not) to the US: Human Rights and the Politics of Power

-- By Nishan de Mel (with inputs from S.S. Vasan and Anne-Marie Tatham)

On March 18, 2005, Mr. Narendra Modi, Chief Minister of the Indian State of Gujarat, was refused permission to travel to the United States. The reason given was that Modi, while serving as a foreign government official, was responsible for or directly carried out “particularly severe violations of religious freedom”. This was indeed a victory in the campaign to hold Mr. Modi accountable for the pogrom launched in 2002 against the minority Muslim population of Gujarat. (See the Box-A for a background).

Box-A: Brief background on Modi and the 2002 pogrom in Gujarat

Crucial Events and Perspectives: Three years after the pogrom, Modi had an invitation from the Asian American Hotel Owners Association (AAHOA) to be the chief guest at a meeting in Florida, USA. He had further invitations to speak at the Madison Square Garden, New York, and to inaugurate a new Centre for India Studies in California State University at Long Beach. All of this was due to take place in March 2005.

In February 2005, a group of 38 organizations and several other supporting groups and individuals from the US and Canada came together to form the Coalition Against Genocide (CAG), with a single goal: to protest Modi’s visit to the US. In the weeks that followed, the remarkable and resourceful activism of CAG resulted in a resolution being passed in the US House of Congress. The resolution invoked a dormant clause in the Immigration and Nationality Act – which was inserted by the 1998 US law known as the International Religious Freedom Act (IRFA) – to refuse permission for Modi’s planned travel to the US.

Internationally the reactions to the travel restriction on Modi have come in the form of the following three broad perspectives:

·        Applaud the punishment perspective, which argued along the lines that justice delayed (in India) was justice denied, and that the travel restriction by the US was an overdue and well deserved punishment for Modi.

·        India is insulted perspective, which argued broadly that the US action was a slight on the Nation of India because Modi was a democratically elected representative of the Indian people (in Gujarat).

·        No due process perspective, which argued that the ‘judgment’ lacks legitimacy because it was declared without any transparent due process.

These perspectives were widely represented and debated in the international media. In this article we present a different perspective. That is, when accounting for violations of ‘Human Rights’, the ‘politics of power’ is unnecessary and counter-productive.

Politics of Power and Human Rights: By ‘politics of power’, we refer to a state of relating between nations and peoples where entities continually leverage their relative power primarily to promote their particular time-bound interests, creating moral environments in which what is right is constantly amenable to the interests of those who have the military and economic might.

The possibility of speaking about ‘universal’ Human Rights flows from a shared understanding of the inherent dignity and equality of all people, regardless of geography, economy, race or nationality. Where this shared understanding is absent people are more likely to commit atrocities against each other.

The politics of power, however, by every successful invocation, reinforces the recognition that the inherent dignity and equality of all people though proclaimed in principle is not asserted in practice. As such, it is antithetical to fostering support for and normalizing the principles of Human Rights.

There are at least two important aspects of fostering Human Rights. One is to call its offenders to public accountability. The many ad hoc international and national tribunals since WW-II have helped to serve this purpose and generated an important legacy of international standards and laws. The other is to promote and defend a shared understanding of inherent dignity and equality among the peoples of the planet. [1]

The travel restriction by the US Government on Modi achieved in a limited way the public accountability which is so important. But, as evidenced by the international reaction to this action, what it spread was also a renewed recognition of (and dismay at) the politics of power which undermines and retards the shared understanding of inherent dignity and equality.

Two well-known cases and a closer look at the legal justification used will help to illustrate why we argue that the travel restriction against Modi evokes the politics of power.

Evoking the politics of power

Kissinger and Modi: Consider first the case of Henry Kissinger. If Modi was complicit in the murder of one to two thousand people, Kissinger in the secret bombings of Cambodia alone was complicit in the murder of at least a hundred times that number. Over the years, Modi has been increasingly marginalized within his own country, and the political establishment in India, and feared traveling to some European countries because of possible legal proceedings against him. He has now been internationally humiliated by being publicly refused entry to the US on the basis of his alleged crimes.

But no country will dare to humiliate Kissinger in the same manner. Not only was he awarded one half of the Nobel Peace Prize in 1973, he has continued to remain a favored elite of the US political establishment. Even recently, he was appointed by the US President George W. Bush as the Chairman of independent commission to investigate events leading to the 9/11 bombings in the US. [2] (See the Box-B for some additional background on Kissinger).

Apart from the crimes, the common element in the predicaments of Modi and Kissinger is that they both face some restrictions on travel due to the fear of prosecution by legal institutions within different countries. But it is not to those legal institutions that the Coalition Against Genocide (CAG) has appealed in bringing justice to Modi. That the very institution of power that protects and praises Kissinger should be solicited and supported by CAG to punish Modi, inevitably entwines the cause of upholding the standards of Human Rights with the politics of power.

The idea that a person who is culpable in the murder of innocents is a criminal when the innocents live in their country, and is a statesman when those innocents live in other countries, is a only one grotesque corruption of the principles of Human Rights, which is nevertheless normalized and propagated by the politics of power. The politics of power ensures that what it is right to accept and tolerate is suitably defined, and regularly redefined, to serve the interests of those who have the military and economic might. [3]

Anderson and Modi: Consider second the case of Mr. Warren Anderson, the CEO of Union Carbide in 1984 when an accident at its plant in Bhopal, India exposed half a million people to deadly gases. Within a few days, this industrial disaster killed ten times as many people as in Gujarat and has brought disease and death to countless thousands in the aftermath. (See the Box-B for some additional background on Anderson).

For more than ten years, it was claimed by the US authorities that they had no knowledge of Warren Anderson’s whereabouts. However in August of 2002 Anderson was found by activist organisations living a life of luxury in a wealthy beach resort not far from New York. Following this, the Government of India submitted an official request for his extradition in May of 2003, but this was rejected by the US Government in July of 2004.   

While the law courts in the United States have given a limited hearing to cases filed by Indians against Anderson, the US Government has refused to extend its cooperation to the Indian Government in holding Anderson accountable. And yet, it is to the US Government and not to the US courts that the CAG appealed to try to make Modi accountable.

When the politics of forcing accountability gets enmeshed with the politics of power, it exposes a severe disparity in the dignity afforded to people of different societies and undermines the core values of Human Rights. Just as when judges are thought to be corrupt a legal system loses its legitimacy and laws cease to have meaning [4] , similarly, when the accountability for standards of Human Rights becomes conflated with the politics of power, the legitimacy of those standards are also eroded and the idea of Human Rights becomes less meaningful.

Box-B: Brief background on Kissinger and Anderson

Legal justification used: The wording of the IRFA statute which the US cited to prevent the travel of Mr. Narendra Modi has received too little attention. In the IRFA ‘particularly severe violations of religious freedom’ is defined rather widely, and it is the following text that was cited against Modi:

(A)   Torture or cruel, inhuman, or degrading treatment or punishment

(B)   Prolonged detention without charges

(C)   Causing the disappearance of persons by the abduction or clandestine detention of those persons

And yet, the current US-maintained prisons in Afghanistan and Iraq have been widely acknowledged to be in violation of (A) without any significant decision maker being held accountable. The US Guantanamo Bay prison camp called the “gulag of our times” by Amnesty International is a current case of (B) which continues with impunity and without apology. The US policy of extraordinary rendition (see link for details) whereby people are abducted by the secret services both in and outside the US and taken to secret faraway locations to be detained and interrogated for long periods of time is a frightening and current example of (C).

In the developments surrounding Modi, there has been little appreciation of the irony that Human Rights campaigners should manage to invoke this particular statute in the US to have of all institutions the US Government deliver a punishment to Modi.

When Human Rights lobby groups hitch their wagons to the politics of power they may gain quick results against some who seem to deserve punishment. But by invoking the politics of power alongside the cause of Human rights, they run the risk of reducing the credibility of those very standards which they are intending to promote.

Are there alternatives to the realpolitik approach?

If a person commits a crime against humanity, and the country in which s/he resides fails to make that person accountable in a timely manner, then how should the international community respond to ensure that the standards of Human Rights continue to be upheld visibly and globally?

The realpolitik approach suggests that leveraging the politics of power is a path that is relatively quick and effective in forcing public accountability for Human Rights. It is therefore an attractive model for achieving some visible results in the global campaign for Human Rights. For example, the realpolitik approach followed by CAG seems to be a tempting paradigm to follow, given its exemplary success in visibly holding Modi accountable to the global community.

It is also true, however, that the real value of Human Rights standards lies not only in the global recognition and support for holding accountable its detractors, but also in the explicit principles of inherent dignity and equality that they assert for everyone in the global community.

It is the principle of equality invoked in the standards that fosters a global recognition and support. Therefore, even when the principle does not always reflect the facts we observe (that is, real events don’t always underscore the ideal of equal inherent dignity), it still reflects the necessary real idealism upon which support for the concept of Human Rights is based.

This is why the support for and legitimacy of Human Rights standards are necessarily damaged whenever they are seen to abandon the idealism upon which they are based in favor of leveraging the politics of power. Here is the conundrum of the realpolitik approach: the method diminishes that which it seeks to foster by its results.

If the realpolitik approach is self-defeating, are there better alternative methods to achieve global accountability for the standards of Human Rights? We think the answer is yes. Such alternatives may be more demanding but have proved to be feasible and promising. They might be summarized under three headings:

(1) Grassroots organizations without legal jurisdiction: Accountability through grassroots activism is often the first step in forming and shaping institutions that protect against abuses of power. Grassroots organizations also promote wider publicity, identification and debate on moral issues; which is vital for the health of society. CAG also achieved some very encouraging results with Grassroots activism: The MSNBC host Chris Matthews withdrew his participation at the AAHOA convention, a rally protesting Modi (and declaring victory for the campaign) was held outside Madison Square Garden, where Modi had been scheduled to speak, and, even before permission to travel was denied to Modi, pressure was brought against American Express to withdraw its sponsorship of the AAHOA convention.

From opposing the injustices of sweatshops to world trade relationships, grassroots campaigns are fuelled by the increasing moral awareness and concern of people who are willing to ‘identify with the victims’. Such willingness does not depend on the politics of power, but is often poised against it.

(2) International institutions with treaty based jurisdiction: The most important international institution is the International Criminal Court (ICC), which came in to force in July 2002. The ICC is the first International institution with powers to investigate and implement the accountability for standards of Human Rights. [5] As such, it stands in direct confrontation with the politics of power. It is not surprising therefore that the three countries that see for themselves the most advantage from promoting the politics of power: India, China and the United states have chosen to boycott the court.

The United States has even led an active global campaign, leveraging its power over smaller countries, to reduce the global participation in recognizing the ICC. [6]

(3) Local institutions with universal jurisdiction: There have been several initiatives and developments in local institutions asserting jurisdiction over global events. These attempts have spanned three continents, Africa, Latin America and Europe. A pioneering attempt was Belgium's 1993 ‘universal jurisdiction’ law, which permitted victims to file complaints in Belgium for atrocities committed anywhere in the world. This law (now repealed after repeated objections by several countries including the United States) sort to entrench locally, ‘universal jurisdiction’ over international Human Rights standards. [7] The most recent example of such universal jurisdiction being asserted locally is the conviction of an ex-Afghan warlord by a court in the UK, even though the crimes were committed in Afghanistan and the victims did not include any British citizens.

The legitimacy of such local declarations of universal jurisdiction can only be as good as the trust that these institutions manage to garner from the global community and the ratification of their actions by international institutions. [8] The relative independence these institutions have from politics of power, and in fact the constant battle between them and the politics of power remain perhaps the best indications of the trust and legitimacy they have.

Using a long spoon: Throughout history, laws have always been suspect and de-legitimized when they were perceived to be mechanisms for codifying power. If the methods of holding people accountable to the standards of Human Rights are seen to be dependent on and subservient to the politics of power, then those standards will increasingly be perceived as a method of codifying power. Those of us who are concerned for international Human Rights need to be more attentive to this real danger.

There is an old proverb that says “if you are going to sup with the devil, use a long spoon”. For Human Rights advocacy this is an important caution when dealing with the politics of power. It has been and still is important to have Modi held accountable for the pogrom in Gujarat. The Coalition of Human Rights groups that pooled their resources to call Modi to account demonstrated a commendable unity and efficiency in reaching towards this goal. It’s a pity they didn’t use a longer spoon.