terrorism

No solace in this quantum of accountability

samir abhi

The original article can be found here

 

 

On February 11, the Supreme Court issued notice to the government, seeking its response on making intelligence agencies accountable to Parliament. This question is pertinent and in some ways captures the sentiments expressed by many and best vocalised by two leaders in recent times. Vice-President Hamid Ansari had said in his 2010 speech on this subject “….responsibility to the legislature, and eventually to the electorate, is an essential element of democratic governance to which we are committed by the Constitution.” Thereafter, the Private Members Bill introduced by Manish Tiwari (now Minister of State for Information and Broadcasting), The Intelligence Services (Powers & Regulation) Bill 2011, sought to empower intelligence agencies through a legally mandated charter that included well-thought-out elements of supervision and oversight.

Mr. Tiwari’s effort was supported by a research initiative at the Observer Research Foundation over a period of about two years. Views of and feedback from over 150 experts, politicians, social scientists, mediapersons and security professionals were solicited. The resulting analysis questioned obsolete notions of national security liberally deployed by the security community to protect turfs, prevent change and indeed to defend the indefensible. In this context, four core issues stood out and need early resolution even as the court is appraised of this matter.

 

Regulatory framework

In modern democracies, intelligence agencies are legally created by and operate under a charter drawn up by the legislature. India’s agencies however bear a chilling resemblance to Haiti’s Tonton Macoute, a voodoo police named after a phantom bogeyman having no charter, rules or limits. In effect it is an extra-constitutional body, prey to individuals and politics and, like such institutions, is totally unaccountable. Setting a charter improves efficiency, focussing resources and minds on what needs to be done. It directs operations on the basis of policy, not individual whim. For example if folklore has it right, if RAW had a charter, it would have legally pre-empted a former Prime Minister’s order to abandon operations in Pakistan. It cost India 30 years worth of accumulated ground assets and priceless reach.

Intelligence ombudsman

Intelligence agencies such as Mossad, CIA and MI6 have reformed their structures to include operation and financial audits which have improved their efficiency. These agencies, prior to reforms, had a history of personal and political abuse. Institutions are based on trust, but there is no incompatibility between trust and verification. The taxpayer needs to know from a competent authority that his rupee is not being misused on ballerinas, champagne and settling personal scores. The state has a responsibility to verify and audit. The reports that these agencies are used to spy on political opponents, blackmail them and purchase parliamentary votes are too regular and too consistent to be ignored. “Watergate” was the most visible example of such abuse. Closer home, leaked telephone conversations (recorded dubiously) and allegations of keeping a tab on political opponents tell us that “Trust me” is simply not an argument — unless the government can prove that these agencies are staffed by people with a special mitochondrial DNA that makes them free of incompetence, inefficiency and corruption. As all details obviously cannot be divulged, an independent intelligence ombudsman with the highest level of security clearance is the optimal answer.

Collective responsibility

A National Intelligence and Security Oversight Committee will address the issue of control. Democracy is about deferring to the wisdom of the many. In our system, the Prime Minister is primus inter pares; all governmental decisions are passed by cabinet committees. The Prime Minister therefore, must not have permanent and exclusive control over such agencies. Far from making the process of intelligence collection tedious, collective control leads to better absorption of intelligence and enables the system to efficiently analyse the same. Interdisciplinary inputs would allow holistic analysis insulating the Prime Minister from tainted or bad intelligence. Inconsistencies may be better detected resulting in moderation and course-correction. Optimally, such a collective must include parliamentary opposition to ensure national consensus and continuity. A recent example of abuse is the 2003 invasion of Iraq. It was because powerful individuals hijacked the intelligence apparatuses of the United States and the United Kingdom that intelligence was allowed to be concocted to build a bogus case for war.

Protecting the protectors

There is a case for a National Intelligence Tribunal that protects the public at large but also those serving within such institutions. Extra-constitutional institutions are usually rife with turf wars: a person trapped within such a phantom has no way to protect himself against individual caprices with no system of grievance redressal. Becoming a breeding ground for cronyism and negating merit has an enormous negative impact on professionalism and morale. After all in such a dangerous line of work, personal enmity can translate into a death sentence. A special tribunal will protect both the interests of intelligence employees as well as shield the general public from their excesses.

Deploying the “National security” argument against reform is a fig leaf for defending cronyism, incompetence, inefficiency, and corruption. A proper regulatory mechanism can only strengthen national security, not weaken it. It is time to bring in facts and lessons from global best practices to this debate as it unfolds in the highest court of the land.

(Samir Saran is vice-president and Abhijit Iyer-Mitra is programme coordinator at the Observer Research Foundation.)

 

Column in The Hindu: “Who governs the high seas?”

by Samir Saran and Samya Chatterjee
New Delhi, 26th of June 2012
Please find here the link to the original article.
Please find here the same article published in The Gulf Today.

The civilian trial of the Italian marines is affecting India’s reputation as an upholder of international law.

The International Maritime Bureau (IMB) — the anti-maritime crimes arm of the International Chambers of Commerce in its 2011 piracy report documented that there were 439 reported incidents of piracy worldwide, slightly better than 2010 during which 445 such incidents were reported. The number of such incidents is an indicator of the seriousness of this issue. Nations are responding collectively and individually. While there are macro discussions on collective action, armed escorts, insurance surcharge, armed private security personnel are already deployed by the shipping sector.

India’s growing energy and commodity needs depend on transport through sea routes with high levels of piracy, especially in the Horn of Africa. India will need to devise its own response to this challenge. Are government security personnel, say from the CISF, on board commercial vessels the answer? Or will private security deployment find greater resonance?

Larger issue

Keeping the above in mind, the recent incident of Italian marines shooting two Indian fishermen on February 15 — in what was clearly a case of response based on bad judgment against a perceived act of piracy — ought not to be viewed in an isolated manner. It should instead provoke a more considered discussion on the larger issue of increasing piracy threats, the response by states and shipping sector to piracy and other concomitant legal issues including freedom of navigation. This is important as such incidents are only likely to increase in frequency as armed response to piracy by state and private actors becomes more universal.

At the very outset two questions are important if one is to have any view on this incident. First, did the Italian marines in question act with authority, if so, whose? Second, even if they did, in whose territory does the enforcement of the allegation that they used excessive force lie: Is it the Indian Penal Code (IPC), or is it an international regime that India ratified and accepts?

The position on authority and status of the individuals, i.e. the two Italian marines, flows from an Act of Parliament of Italy, Law Decree no.107 dated July 12, 2007 converted into Law No.130 on August 2, 2011. This was enacted pursuant to the commitment of Italy to fight piracy under the United Nations Convention on the Law of the Sea (“UNCLOS”), pursuant to the U.N. Security Council Resolution 1816. Under this Act, there is the sanctioned presence of military navy detachment on board commercial vessels flying the Italian Flag. The accused were therefore not ex-servicemen, or hired guns, but serving marines deployed on the Italian ship MT Enrica Lexie.

The second critical issue is whether the Kerala police and courts are right in asserting the jurisdiction of the Union of India and hauling serving defence personnel of a foreign military through a civilian process to a local jail. Before we get into settled and accepted principles of international law, another side note must be discussed. There exists a defence cooperation agreement between India and Italy, operational since February 3, 2003. Both the nations have entered into this agreement with a desire to enhance cooperation as they were convinced that such engagement will contribute to better understanding of each other’s security concerns and consolidate their respective defence capabilities. Considering this stated intention to understand, appreciate and cooperate with each other, should the Italian marines not be recognised as military officers at the very least and thereafter given equal treatment to what would have been expected to be served to their Indian counterparts in a similar situation?

Kerala is trying in a civilian court two serving military men for actions they took in defence of their territories (floating), howsoever disproportionate the act appears post facto. Imagine trying a serving Indian soldier in an Indian civil court for an incident resulting from discharge of duty in naxal-infested areas, the northeast or Kashmir which is not deliberately criminal in construct. Section 104 of our Army Act enshrines that any such person accused of an offence must be given over to military custody.

Question of territory

Finally, what of Kerala’s assertion of territory? In the FIR and Remand Report filed by the circle inspector of police, including the report of the Coast Guard, it has been recorded that the incident took place outside the territory of India. After various iterations the Coast Guard finally confirmed that the alleged incident took place at 20.5 nautical miles from the coast line, a location outside the territory of India. The territorial jurisdiction extends to territorial water up to 12 nautical miles from the nearest point of the baseline; beyond territorial waters is the Contiguous Zone extending up to 24 nautical miles; and beyond that up to 200 nautical miles is the Exclusive Economic Zone of India. This is attested to by a reading of Article 3 of UNCLOS to which both India and Italy are signatories as well as the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (“Territorial Waters Act”).

The jurisdiction of criminal courts in India is governed by the provisions of the Criminal Procedure Code as well as the IPC which, inter alia, define the territory of India. The IPC has to be read with the international obligations of India in UNCLOS. Article 97 read with Article 58 (2) states that the courts in Italy have the sole and exclusive jurisdiction in the matter. Article 97 of the UNCLOS clearly states that penal jurisdiction in matters of collision or any other incident of navigation involving penal or disciplinary responsibility lies either with the flag state or the state of which such person is a national. Furthermore, the Act specifically states that no arrest or detention of the ship even in the course of an investigation can be ordered by any authority other than that of the flag state. The Republic of Italy will have jurisdiction under both the above-mentioned provisions.

However, in this instance, it needs to be mentioned that there is a case being built that the Italian marines failed to observe certain standard procedures laid out for countering attempted piracy attacks. The procedure includes promptly informing the IMB reporting centre about the incident, undertaking the best management practices to dissuade suspected pirates and adhering to the principle of “graduated use of force” instead of indiscriminate firing. The lack of adherence to such processes has muddled the waters in a manner of speaking. Nevertheless, this incident, even when seen as a misplaced case of piracy, will certainly be construed as a case of navigation incident leading to an offence unless other mala fide is demonstrated or alleged.

The Supreme Court of India, now apprised of this case, needs to clarify whether civilian courts in India have jurisdiction in such cases. There is an urgent need for a reasoned decision in this case based on international and other precedents keeping in mind India’s maritime interests in the South China Sea and the Horn of Africa. Additional Solicitor-General Harin Raval confirmed in open court that Kerala as well as the Union of India, indeed, did not have jurisdiction. Not surprisingly, ASG Raval was promptly removed from the case as provincial impulse took over. Most coastal states are ruled by a political dispensation different to the one at the Centre and hence domestic politics would plague such incidents in the future as well. An unambiguous interpretation from the Supreme Court is paramount, else India’s reputation as an upholder of international law will be undermined.

Samir Saran is Vice-President and Samya Chatterjee is Research Assistant at the Observer Research Foundation. Views are personal.

ORF Report “Re-imagining the Indus”

Please find here the link http://orfonline.org/cms/export/orfonline/documents/other/indus.PDF to our comprehensive report on the “Indus”, the associated treaty, the emergent rhetoric and the reality of people whose lives are inseparable from the river and their traditional and contemporary water management practices.

It is perhaps the most comprehensive effort that captures essential narratives and historical evidence from both sides of the border, that is unable to divide the organic and indivisible river basin.

Co-produced with the LUMS, Lahore with the support of the DFID, this research led by ORF scholar Lydia Powell is certain to offer a pragmatic insight on the debate and the way ahead for the two countries and more importantly for the one people of the river Indus.

I had the pleasure of writing one section of this report.


Column in The Economic Times: When the US dismembered Pakistan, 2009

by Samir Saran
February 27,2009
in: The Economic Times

The formal capitulation of the Pakistani government to the Taliban and the ‘liberation’ of the Swat valley evoked divided responses from within the region and outside. While voices emanating from India are concerned with this dangerous development, the US foreign policy team has predictably hedged its position and has begun testing the ‘Good Taliban-Bad Taliban’ dictum. The division of Pakistan has unfortunately legitimised the rule and role of two institutions in the politics of Pakistan; its religious extremists and its army and can be seen as a consequence of the US engagement with Pakistan post 9/11. To understand this situation and the initial US response, we must deconstruct the ‘war on terror’ policy of the US and analyse one of its key components: the engagement of the US with its ally Gen Pervez Musharraf. This engagement was political as it had the effect of demoralising the democratic presence in Pakistan.

It was also sociological as it redefined the western understanding of Pakistan and altered the space and voice available to the moderates and liberals. This engagement was articulated by the ‘Us vs Them’ foreign policy of the US, a description of the age-old identity discourse between the ‘self’ and the ‘other’. The description of the Muslim as the ‘other’ by the west (‘self’) is an area of historical interest. Much of the discussion establishes the act of describing the Muslims, as a means by which the west (and its media) seeks to define, assimilate and control them and is a result of the urge to create the identity of the ‘other’ through its own interpretative prisms.

This process not only fails to comprehend the ‘other’ in their entirety but diminishes their significance in any engagement. This practice is a political tool that has been consistently deployed in the past. The ‘secular wars’ or colonising endeavours of the western world were represented as a ‘solemn duty’, and as a British parliamentarian of yore put it, as a burden of the white man to civilise the east. The boundaries of this orientalist discussion, post 9/11 have been redefined and comprise of two dominant narratives, that of ‘Islamophobia’ on the one hand and the ‘war on terror’ on the other. Islamophobia arises from a lack of understanding and tolerance of the ‘other’. The ‘war on terror’ rhetoric of the US extends the understanding of the ‘other’ to that of ‘evil’ and justifies violence and war as the preferred means of engagement.

In its effort to punish the ‘evildoers’ (al Qaida), the US needed to depend on a Muslim ‘other’. The Pakistan army and Musharraf became its key ally. Their complicity in supporting global terror networks and the fundamentalist regime in Afghanistan were well known. However, strategic compulsions made it necessary to have them on board. The co-option of a Muslim and a dictator – an ‘other’ twice over – was an interesting challenge for the Bush administration. While it required the administration to discount the evil that Musharraf represented, something it has consistently done in its engagement with Muslim despots and royalty, it had to more importantly sell this unholy alliance to its own people, who were reeling under the ferocity of the 9/11 attacks.

Ironically, it was the military credentials of Musharraf that helped the US to achieve this. It was perhaps the only institution in the Islamic state that could be understood by the west from within the “irrational religiosity” the country was imagined to be. The development of the ‘western’ identity for Musharraf involved constructing him as a ‘moderate Muslim’ who shared the aspirations and virtues of the west (‘self’) and thereafter, justifying support for his dictatorial credentials. Co-option was achieved by projecting desirable qualities readily understood as virtues by the US citizens as attributes of Musharraf. Articles in newspapers across the political spectrum constructed the identity of Musharraf as a moderate, secular and progressive leader with zero tolerance for terrorism. Images of Musharraf lovingly playing with his pet dog struck a chord with western audiences.

Alongside this aggrandisement of the dictator, Pakistan, its civil society, their social and religious practices were subject to reductive portrayal by the western media. The description of the political and religious elements of Pakistan society was constructed around terms like corrupt, weak, fanatics, violent and backward. Their protests were irrational and did not deserve considered response. Many times anti-US demonstrations in Pakistan were presented as expressions of religious extremism and barbarism that pervaded the Pakistani society and what the good General was fighting against. The army rule was thus projected as an important component of Pakistan’s stability and Musharraf as the saviour leading his people towards modernity and peace.

By doing so, a dictator with strong extreme Islamist credentials – the stereotypical ‘other’ – was now imagined as the western ‘self’ while his countrymen, including the moderate and liberal citizens, were reduced to an irrationality whose voices and rights could be ignored. This denial of space and voice to the democratic forces allowed the spectacular rise of the Taliban, who now claim to speak for the ‘other’ who do not wear the uniform.

Radical Islam: Perspectives from India and Russia.

Observer Research Foundation and the Experimental Creativity Centre (ECC), Moscow, have completed their collaborative research project on Radical Islam. The first conference under this project took place in Moscow in October, 2009 while the final leg was held in New Delhi in March 2010. The papers and proceedings of these workshops have now been published in the form of a book titled “Radical Islam: Perspectives from India and Russia”.

The Russian language edition of the book was launched at the ECC premises in Moscow on September 27 2010. It was attended by senior faculty members of both ORF and ECC, including Mr. Sunjoy Joshi, Amb. M. Rasgotra, Mr. Samir Saran, Mr. Nandan Unnikrishnan, Dr Sergey Kurginyan and Dr. Yury Byaly. The launch was preceded by a press conference organised by the leading Russian news agency RIA Novosti.

This 480-page book is the result of cohesive and complementary research by 15 scholars from both India and Russia. The research for this project was based on both geography and themes. While geographies or nations provided the specifics on the interaction of the phenomena of Radical Islam with specific political units and local societies, the thematic research allowed the researchers to test the interaction of Radical Islam with other contemporary and older tendencies. This effort covers the experiences with Radical Islam in Maldives, Bangladesh, India, Pakistan, Central Asia, Europe, Russia and spans the entire land mass between the Indian Ocean and the Arctic.

On the other hand, this project also tests the interactions between Islam and other contemporary challenges, including Global and Regional power struggles, Oil and Energy politics, Inequity and Poverty, evolving Identities, ancient Culture and tradition, Globalisation and indeed with Capitalism itself. This research proves the adage “the more we learn the lesser we know”. In spite of various assertions in the individual essays by the respective authors, Radical Islam is still indescribable and the very term “Radical Islam” is an attempt to describe the indescribable by reflecting a simplistic categorisation of a complex and dangerous impulse.

Speaking at the book launch, Amb. M Rasgotra said that it was essential for India and Russia to share their experiences in dealing with radical Islam since the nature of the problem is the same, even as its manifestations may be different. Mr. Sunjoy Joshi observed that elucidating the Indian and Russian perspectives on radical Islam is important because the West often “tends to look at Islam in black-and-white, while Indian and Russian researchers look at it in multiplicity of identities, discourses and ideas”.

Mr. Samir Saran asserted that Radical Islam in certain geographies is an expression for economic and political voice, while in other contexts, it is a hegemonic tool deployed by the West and the rest. In some other cases, it is an instrument of state policy deployed against the neighbour or rival…but universally, it is the story of two victims …the perpetrators who commit the crime and the civil population on whom suffering is inflicted…both collateral damage in the bigger game, he said.

“From an Indian experience, the attempt to describe, analyse and respond to Radicalism or Radical Islam becomes even more problematic…. after all we are turning the spotlight to ourselves…. to respond to radical Islam, we need to discover our own shortcomings…. it is as much about internal political and economic faultlines as it is about the exploitation of these faultlines by external actors,” Samir Saran said.

India’s interaction with Radical Islam is different to that of Europe or the West. It is mostly about internal reconfiguration and resolution. While some may look at this as an external tendency that needs excision or removal from their nation or society, in India we need a nuanced approach; one that balances security and equity, and if the scale should tilt …it should be in favour of equity.

The challenge of radicalism in India is real and imminent. With its fast paced growth, embrace of capitalism and western values and the rapid move away from the traditional and family oriented societies due to both poverty and aspirations are creating social conditions that prove to be incubators of violence and terror. This equation is exacerbated by insensitive policy making and poor governance leading to a rise in the constituency of those willing to live outside the civil society framework that seemingly serves the rich and the political elite. While violence and terror will deploy religion as an instrument of mobilisation, responses from policymakers and governments must remain secular.

October 2010, Moscow, Russia.

Mumbai Attacks 2008: A Call to Look Within.

Over the past two decades India has demonstrated remarkable consistency in the irrational and incoherent response of its policy makers, people and sections of its mass media to dramatic and outrageous terrorist violence inflicted on the country. The most recent episode, witnessed in Mumbai on November 26 has also been followed by a typical though distinctly more pronounced response from all quarters. Much of the public debate following these terrorist attack has focussed on internal security systems (or the lack thereof) and the effort to punish the perpetrators. The public sphere including the media and academic dialogue seem to be preoccupied with ways to bring in line the truant Pakistan.

This approach has failed consistently and the outcome is unlikely to be any different this time around too. The major flaw with placing the blame entirely on Pakistan is the premise that Pakistan or its proxy warriors could have executed any of these outrageous acts in the absence of serious internal vulnerabilities. Though some of these vulnerabilities are acknowledged by many after the Mumbai attacks, they remain limited to the domain dealing with foreign policy, internal security and intelligence gathering.

Even now there is complete silence on a most crucial aspect that we must recognise; Indian Nationals collaborated with the Pakistani perpetrators in planning and executing this barbaric incident. The law enforcement agencies and the politicians are yet to provide us any clue on the identity of the perpetrators who were killed and on the countless others who helped in the various stages of this act. India, its media and its polity have not even attempted to articulate this dimension in their prescription for preventing these events from occurring again. The increasing presence of radicals in India, in this case those who justify violence in the name of Islam, is a clear and present danger and must be halted if any degree of success is to be achieved in India’s endeavour to tackle the menace of terrorism. It is imperative that Islamic radicalism be recognised as such and then efforts be made to prevent its spread. It is equally important to enact policies that resolve conditions that aid the spread of this violent radicalism.

This reluctance to look within, it may be argued, is due to the inherent predisposition of nations and societies to externalise such incidents. The US and much of the western world has frequently treated terrorist violence as a distant third world phenomenon attributing its cause and origin to the ‘impoverished and backward regions’ of Afghanistan, Pakistan and the Middle-East. This propensity of the western world is a legacy of the colonial/orientalist discourse. It also prevents societies from looking within and engaging with shortcomings in their own socio-political landscape. This is evident from the alacrity with which the West categorises its Muslim citizenry as ‘Moderate and Progressive’ while denouncing the Muslim perpetrators (even when they are from their own populace) as ‘Islamic Terrorists’ motivated and created in alien societies devoid of freedom and liberty. To admit to the existence of discontent and outrage amongst its own Muslim population would be to admit to shortcomings within their own brand of liberal pluralism.

India, its government and people, have responded to the Mumbai attacks and other terrorist action in the past in much the same manner. The origin of these violent incidents have been distanced from within and located entirely in the ‘fundamentalist and undemocratic’ Pakistan. This is simplistic and dangerous. The sophistication, planning and increasing frequency of terror violence in India demonstrates strong local support for this radical Islamist ideology that propagates violence. Irrespective of the existence, contours and construct of a global Jihadi network, it is irrefutable that social conditions do exist within India that create disaffection and hopelessness and allow this population within the Indian Muslim community to be lured to the ideology that many today term ‘Radical Islam’. The existence of SIMI and their violent brand of political agitation confirm to this growth of radicalism in the local Muslim community. The participation of home grown terrorists from educated and middle class backgrounds points to the presence of this radicalism in all strata of society and within the urban mainstream of India.

Radical Islam is not a primeval phenomenon, nor is it unsophisticated. It is now a post-modern ideology able to attract a diverse demography. It also makes use of modern media and communication platforms and positions itself effectively as an alternative and preferred form of habitation for persons seeking an outlet and release from their existing social reality. This presence of Radical Islam demands two specific investigations that India must undertake if it is to effectively respond to its dangerous proliferation. The first must involve an honest study of political, economic and sociological factors that shape anxieties of the Indian Muslim today. This would help in identifying vulnerable sections and vulnerabilities in our systems that may be exploited. The second investigation must construct how Radical Islam offers its ideology to the Indian Muslims as a relief from their current anxieties. It should understand the substantive messages that are communicated by the supporters of this ideology that address the current day issues of the Indian Muslims across the social spectrum.

An understanding of these vulnerabilities and the messages may offer a point of departure for the policy makers and civil society and help to develop a response comprising of both, security and socio-economic dimensions. This would aid policies and processes that would not only make India safer but also enhance its democratic depth.

January 2009.
Link to ORF website.