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International Law

Is federalism a moat against autocracy?

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The rogues’ gallery of autocratic rulers has been growing for some years now. It is no more an age of much-reviled ‘tinpot’ dictators. Today, we have wolves in sheep’s clothing. The elected autocrats follow a familiar playbook for capturing power and holding on to it. Since the owl of Athena no more spreads her wings as evenings fall, autocratic leaders have grabbed more powers during the Covid-19 pandemic.

We gloated over the global expansion of democracy but didn’t pay sufficient attention to the parallel rise of autocracy. We are currently witnessing what Anna Luhrmann and Staffan I. Lindberg call a “third wave of autocratisation.” It is marked by the tyranny of the executive and a growing phenomenon what Steven Levitsky and Daniel Ziblatt describe as “capturing the referees”.

The elected autocrats use institutional violence and repression but they also seduce, appeal, exert charisma and draw on myths and digital storytelling. It is very much like what Nigerian novelist Chimamanda Adichie writes about “the danger of a single story.” She says, “power not only spreads a story but also makes its ideas persist. Power can be used for malintent, through controlling “how [stories] are told, who tells them, when they’re told, [and] how many stories are told.”

A democrat invents a very different new role when new situations arise. But an autocrat acts both like a prophet and a guru. After all, he/she lives by the myth of a flawless hero. As a poem by Iranian-American poet Kaveh Akbar reads, “my empire made me happy because it was an empire and mine…(it was) cruel and the suffering wasn’t my own.”

Federalism was, for long, considered a moat against autocracy, particularly in large and ethnically, linguistically and culturally diverse countries. It was seen as a valuable tool for mitigating ethnic conflict and for enabling people with divergent ideologies and aspirations to co-exist in the same polity.

Today, federalism is confronting twin attacks from autocratic rule and the Covid-19 pandemic. United Nations Secretary General António Guterres has written how some leaders have used the pandemic to deploy “heavy-handed security responses and emergency measures to crush dissent, criminalise basic freedoms, silence independent reporting and restrict the activities of nongovernmental organisations.”

Federalism, considered the most meaningful constitutional design to prevent authoritarianism, is facing a crisis of faith. It has suffered serious erosion even in well-established federal states like the United States, India and Brazil. Federalism no longer thrills and it has now accumulated a chorus of new sceptics.

Devolution of power is the quintessence of federalism which is intended to empower the state and local governments as also to impede the tyranny of the national government. However, recent experience suggests that the institutional design that most federal states created are not adequate to prevent autocracy at the Centre.

How have federal states fared in dealing with the corona pandemic? Australia’s Lowy Institute has ranked countries handling the Covid-19. The top 10 best performers include only Australia as a federal state. Germany, Canada, India and Brazil hold 55th, 61st, 86th and 98th positions respectively. It appears federal states are outcompeting each other only by degrees of underperformance. The East Asian, South-east Asian and Australasian countries have fared significantly better. Interestingly, some surveys reveal that Canadians distrust both their federal and provincial governments. Brazil and India stand out to be the worst performing federal states.

President Jair Bolsonaro of Brazil has openly attacked federalism as he considers his ministers and bureaucrats to be his vassal. He has frequently flogged state governors for lockdown. He went to the extent of saying, “my army won’t go to the streets to ensure obedience to governors’ decrees.” Its healthcare system has collapsed and as Miguel Nicolelis, professor at Duke University, says, Brazil is facing a “biological Fukushima.”

As far as India is concerned, both democracy and federalism are moving in reverse gear. Federalism is certainly grating and grinding and democracy is fast becoming a festival of hypocrisy.

Even though India is not a textbook federation and under the classic theory of federalism not a federation at all, India was considered a success story. India made a success of its federal polity largely because of its impressive democratic record, the role of its civil society, its institutional strengths and its vibrant political culture.

During the Congress Party rule, federalism remained rather weak. In the words of former Supreme Court judge V.R. Krishna Iyer, India remained “unitary at the whim of the Union and federal at the pleasure of the Centre.” However, today much of the etiquettes of federalism is in tatters. India had never experienced such systematic destruction of its federal structure. The institutionally weak state and local governments have failed to become the sites of resistance.

Majoritarian politics is predatory in nature. The much touted “cooperative federalism” has turned out to be a predatory federalism. Prime Minister Narendra Modi sought to market “cooperative federalism” as the distinguishing feature of his style of governance. The BJP government accepted the 14th Finance Commission Report which favoured greater devolution of funds to States. The states’ share in tax collection was raised from 32% to 42%. But the States soon realized that there was a poisonous sting in the tail.

By a sleight of hand, the federal government expropriated a larger share of revenues than prescribed by the 14th Finance Commission and reduced the states’ share. The government said later it had no money to pay the States their share of Goods and Services Tax (GST) revenues. Cooperative federalism was offered to the states in handy package. Smart packaging has a way of causing eyes to glaze over. India’s cooperative federalism is like the “Ikea Kit” where recipients are expected to assemble the furniture without help and if the furniture is faulty or lopsided, it is the fault of the customer.

What India is left with today is federalism in a frilly apron. Indian federalism always had a bias in favour of the Centre. The chain of command—bureaucracy, law enforcement agencies, supervisory bodies and commissions has, for all practical purposes, collapsed. The Modi government has weakened federalism by “capturing the referees.” It has used institutions to its advantage and disabled impartial adjudicators from performing their roles.

The anti-commandeering doctrine authored by the US supreme court saved American federalism despite Trump’s all-round attack on federal institutions. This doctrine prohibits the federal government from commandeering state governments from imposing coercive duties upon state governments. The US federal government can’t force state governments to implement its policies. It can’t appoint or remove state officials or judges.

When Prime Minister Modi imposed a harsh lockdown at a few hours’ notice in March last year, it sought to convey a message that he stood by the principle ‘Dare to be a Daniel! Dare to stand alone!’ However, India’s patchwork response to the pandemic caused immense hardship for the poor migrants and other marginalised sections of society. While cases began to surge last March, India’s health minister Harsh Vardhan claimed that India had entered the endgame” of the pandemic.

Albert Camus says, “plagues and wars always find people equally unprepared.” India was not only not prepared, it allowed huge election rallies and religious gatherings flouting all norms. That was an open invitation to the virus to strike ferociously. As CBS News put it, “surging Covid cases and lack of oxygen make India living hell”.

With India struggling to cope with the second wave of Coronavirus and the hospitals reeling under shortage of beds and medical oxygen, the reputation of the vaccine superpower is in tatters. India is reaping the bitter harvest of the government’s premature triumphalism and lowering the guard.

Today, India looks like what Guillermo O’ Donnell calls a “delegative democracy” marked by low levels of horizontal accountability. Federalism is not to blame. Federalism as an organising principle is neither the problem nor the answer. It should be judged by the parabola of its uses rather than by the curve of its misuses.

And yet, ‘federalism for me, not for thee” is no federalism. Suddenly, Indian federalism looks like a ‘patchwork quilt.’ The federal government under Modi has worked like an invasive, noxious weed that has rendered the states powerless and vulnerable. The pitfalls of pop federalism or comical federalism could be injurious to democracy.

Ash Narain Roy did his Ph.D. in Latin American Studies , Jawaharlal Nehru University, Delhi. He was a Visiting Scholar at El Colegio de Mexico, Mexico City for over four years in the 1980s. He later worked as Assistant Editor, Hindustan Times, Delhi. He is author of several books including The Third World in the Age of Globalisation which analyses Latin America's peculiar traits which distinguishes it from Asia and Africa. He is currently Director, Institute of Social Sciences, Delhi

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International Law

Upholding Dharma by Mob lynching?

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Label any Muslim a cow smuggler, accuse him of carrying beef and then lynch in the name of protecting religion. These premeditated barbaric acts seem to have become the order of the day. According to “Hate Crime Watch”, around 90% of religious hate crimes have occurred after the change of Central government in India in 2014. Although Muslims are victims in 60% of incidents, people from all religious faiths have suffered hate crimes.

India’s constitution promises its citizens justice, liberty and equality, but the shattering of social life through mob violence triggers an inescapable sense of powerlessness among its citizens. After the 2015 gruesome Dadri lynching, Mohammad Azam was lynched in July 2018 by a mob in Karnataka after a series of WhatsApp messages had warned locals that child kidnappers were on the loose. The mob assumed that Azam, who worked for Google, and his friends were co-conspirators and lynched him. In 2019, Tabrej Ansari became the first victim of the gruesome hate crime in the second term of the current regime led by proponents of Hindutva. He was lynched by a mob that forced him to chant Hindu religious slogans. In June this year, three people were lynched on suspicion of cattle smuggling in Tripura.

It needs to be recalled that lynching was used to terrorize black community for generations in the United States; blacks were lynched on dubious and false criminal accusations but this was put to an end through NAACP (National Association for the Advancement of Coloured People). In a similar fashion today, there is a growing perception that mob lynching happens with disturbing regularity in India to terrorize not only minorities but also dissenters in the name of religion and culture.

Violence against those who dissent is sought to be rationalized as nationalistic. The killings of Mohammad Akhlaq, Govind Pansare, M M Kalburgi, Narendra Dabolkar and Gauri Lankesh were masterminded by religious bigots masquerading as nationalists. In fact, the recent murder of George Floyd at the hand of a racially bigoted policeman in the United States, and custodial torture and death of a father-son duo in Tamil Nadu are hate crimes which are blots on the conscience of democratic societies.

Contemporary India has witnessed a surge in right-wing Hindu extremism, and crimes committed in the name of Love Jihad, beef eating, child kidnapping, cow slaughter and anti-Muslim fake news are aimed at normalizing this disturbing phenomenon. This right-wing propaganda usually spreads like a wildfire on the internet, particularly on the so-called Whatsapp University where it has become quite common to see pictures and videos of dead cows lying in a puddle of blood. It has been noticed that such videos and images on social media platforms are always of questionable veracity whose primary purpose is to incite fear, anger and violence. Very often, the text accompanying the videos appeals that everyone should spread it as much as possible in order for it to reach at the highest political executives. When this damaging and dangerous content is continuously circulated, the resulting fear in the minds of majority community gets converted into hatred toward the minority community.

These are nothing but politically motivated polarizing tactics and diatribes which only feed off pre-existing demeaning stereotypes of minorities. Technology has become an enabler of violence for various political and cultural reasons. There are many parties and stakeholders involved in these hate crimes but victims are only innocent people and invariably from vulnerable socio-economic groups. But the most shameful is the attitude of India’s politicians and police officials who justify these crimes, garland the lynchers, deny it ever happened or shrug off their responsibility by preferring to watch as mute spectators. Even delayed or muted condemnation of communal violence, by those in positions of power, only signal tolerance of such activity. Unfortunately, both the mob violence and the official response to it are symbolic of the Indian state’s rising incompetence in countering religious intolerance.

In recent years, the alarming idea that the ‘nation’ belongs only to the majoritarian community has made global strides as many countries like Poland, Hungary, Brazil and Turkey have come under its sway. Even many long-established democracies, including the United States, are feeling the pressure of this authoritarian tendency. The emergence of Hindu nationalist ideology in India, which is seen as replacing Indian civic nationalism, promotes the notion of a unique national culture grounded in Hindu cultural supremacy. The proponents of Hindu right-wing extremism are trying to radicalize their children and youth with ultra-conservative and fictional thoughts which often re-assert historical prejudices and ungrounded hatred toward Muslims.  

One may be wrong, but cynical indifference shown by the middle class citizens tends to breed servitude and perpetuate complacency. When the victim of mob violence dies a death, shockingly there is no remorse from the crowd. Only the victim’s family remembers the event even as the societal silence is spine chilling. Actually, one should not ignore the performance aspect to mob lynching. Those indulging in mob lynching or public beatings ensure that their acts are recorded and then the potential circulation of such videos is targeted to send a strong message of the majoritarian men terrorizing minority men into humiliation and subjugation.

The dominant mainstream assumptions that cattle slaughter and beef trade directly concerns only Muslims, Dalits, Adivasis and Christians is also far from reality. Unfortunately, framing of the debates around bovine trade along communal lines has been sustained by provincial media which acts as an echo chamber to propagate Islamophobia. It has also been observed that the messages of hate get intensified after any terror attack, and instigate people to act against specific communities, primarily Muslims.

In July 2018, a landmark judgment given by the Supreme Court had condemned the incidents of mob lynching and cow vigilantism as ‘horrendous act of mobocracy’, asking the government to enact strict law to counter them. Nevertheless, in spite of comprehensive guidelines and anti-lynching laws in some states such as Rajasthan, Manipur and West Bengal, the mob violence continues unabated. In many states where the right-wings groups feel emboldened such as Assam, Uttar Pradesh and Karnataka, there is widespread feeling that the enactment of stringent cattle preservation legislation has further exacerbated such crimes. Those who think that the lynch squad is a thing of the past are wrong.

Indian Penal Code (IPC) and Criminal Procedure Code (CrPC) do not have specific provision dealing with the mob lynching because this was never seen as a crime in India. It is similar to terrorism for which we have the most stringent laws. But mob lynching causes more than just a death; it kills the spirit and substance of democracy. We are told that Hindus and Muslims share the same DNA in India. How can the cold-blooded lynching of one’s brethren make one a hero rather than a murderer? How can a policeman’s lynching and alleged cattle lifter’s lynching possess different form of bestiality? In fact, the time has come to brand mob lynching as ‘domestic terrorism’ and a serious threat to India’s internal security.

Does glory to Lord Rama be restored through unruly mob justice? Does the path to righteousness come through killing innocent people in the name of Cow? Does circulation of derogatory and hateful projection of Muslims bring glory to Hindus? Are those calling publicly for violence against Muslims and Christians are real friends of the Indian State and government? Is not hate crime the prelude to genocide? These uncomfortable questions shake the core of India’s multi-religious and pluralist democracy. India’s timeless civilization has unflinchingly celebrated the foundational principles of humanity such as non-violence, tolerance, peaceful-coexistence and ‘Vasudhaiva Kutumbakam’ which is one of the most important moral values engraved in the heart of every Indian. These eternal principles come under violent assault whenever a mob kills an innocent Indian.

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International Law

International Criminal Court and thousands of ignored complaints

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©ICC-CPI

The civil war in Donbass has been going on for more than seven years now. It broke out in 2014, following Kiev’s decision to launch a military operation against the local militia in Donbass, who did not accept the Maidan coup that had happened in February of that same year. More than 10,000 civilians were killed in the conflict.

Correspondents of the French newspaper L’Humanité Vadim Kamenka and Jean-Baptiste Malet, French historian Vincent Boulet, as well as a MEP and a member of the Spanish Communist Party Willie Meyer took part in the international conference “Topical Issues of Human Rights Violations in Donbass.”

Moderating the conference, organized by the Society of Friends of L’Humanité in Russia (the French leftist newspaper’s Russian office), was the head of the interregional public organization “For Democracy and Human Rights” Maxim Vilkov.

The conference was also attended by the deputy foreign minister of the Lugansk People’s Republic Anna Soroka, human rights activist Yelena Shishkina, director of the Society of Friends of L’Humanité Olesya Orlenko, and head of Donetsk National University’s department of political science Artyom Bobrovsky.

The participants discussed numerous cases of human rights violations by the Ukrainian security forces and paramilitary units in the course of the civil war in Donbass. The left-minded European participants paid special attention to the fact that none of the 6,000 complaints about the actions of Ukrainian security officials and nationalists had actually been taken up by the European Court of Human Rights (ECHR).

Small wonder too, since the atrocities committed in Donbass immediately bring to mind the Spanish Civil War of the 1930s when leftwing antifascists from across the world fought supporters of fascists and Nazis. Let’s not forget that even DW (foreign agent) admits that the share of neo-fascists in Kiev’s Azov regiment is very significant.

The participants called upon the ECHR to pay attention to the non-investigation of crimes committed in Donbass.

Human rights activists and public figures from Russia, France and the unrecognized republics of Donbass called on European international human rights organizations to pay attention to the failure to investigate crimes committed during the armed conflict in Ukraine. This is stated in the statement, which was sent to European international organizations after the conference.

The statement also calls attention to obstacles created to prevent citizens from filing applications to investigate crimes, as well as to attempts to ignore pertinent complaints from international bodies.

The latter, according to the authors of the statement, is especially important since “10,650 applications have so far been submitted to the ECHR concerning violations of citizens’ rights during the civil armed conflict in Ukraine. Of these, 8,000 come from Crimea and Donbass, including 7,000 from Donbass alone. Moreover, 6,000 are complaints made against Ukraine proper. However, during the past seven years, not a single complaint pertaining to the conflict in Donbass has been considered.”

Human rights activists called on the ECHR and the International Criminal Court (ICC) “to ensure that the crimes committed in Donbass are investigated in full compliance with the ECHR and ICC charter, as well as to bring pressure to bear on the political leadership of Ukraine to fulfill its obligations to protect the rights of its citizens.”

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International Law

Crime of Ecocide: Greening the International Criminal Law

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In June 2021, an Independent Expert Panel under the aegis of Stop Ecocide Foundation presented a newly-drafted definition for the crime of ‘ecocide.’ The Panel consisting of 12 international lawyers proposed that the Rome Statute of the International Criminal Court (ICC) should be amended to include ecocide as the fifth international crime along with the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The inclusion of the crime of ecocide in the Statute will entitle ICC to investigate, prosecute, and try individuals accused of causing grave harm to the environment.

The term ecocide comprises the Greek word ‘oikos,’ meaning house or environment, and ‘cide,’ meaning an act of killing. Premised upon the term ‘genocide,’ ecocide means the significant destruction of the natural environment by human actions. In 1970, it was first used by Arthur Galston, an American biologist, at the Conference on War and National Responsibility in Washington DC. The term was further quoted by the Swedish Prime Minister Olof Palme in his opening speech at the 1972 United Nations Conference on the Human Environment (UNCHE) in Stockholm. Since then, multiple efforts were made to include ecocide within international law. Interestingly, it was adopted as an additional crime in the early drafts of the Rome Statute; however, later, it was dropped due to the lack of an adequate definition. If succeeded this time, it will be a significant victory for the environment since none of the existing international criminal laws secures it as an end-in-itself.

Definition of the crime of ecocide

The Panel has defined the crime of ecocide as, “For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.

The definition comprises two thresholds that should be fulfilled to constitute a crime of ecocide. Firstly, there should exist a substantial likelihood that the ‘acts’ (including omissions) will cause severe and either widespread or long-term damage to the environment. In other words, along with the damages causing severe harm to the elements of the environment, such damages must have an impact on a wider geographical location or for an unreasonably longer duration.

It is appreciable that the Panel has widened the scope of the definition by incorporating spatial and temporal dimensions to its meaning. However, they have changed their position adopted in the previous legal instruments to employ a mix of conjunctive and disjunctive formulations in the definition. In addition to its severe nature, such harm could be either widespread or long-term to constitute a crime of ecocide. Thus, any severe and widespread activity, such as chopping down huge rainforests, could be attributed to ecocide. Similarly, any severe activity whose consequences prevail for a longer duration, for example, causing the extinction of a plant or animal species, could also amount to the crime of ecocide.

Instant reading of the first threshold indicates that the ecocide definition might include day-to-day human activities that contribute to greenhouse gas emissions and other environmental damages. It raises a question – Whether humans are environmental criminals? Though, it might be true that most human actions, directly or indirectly, are continuously degrading the ecosystem around us. However, the definition of ecocide is primarily concerned with the large polluters whose irresponsible activities at a massive level are a threat to the environment. Thus, to narrow down the ambit of the definition and identify criminal activities precisely, the Panel added a second threshold, that is, the ‘acts’ causing damage to the environment must be unlawful or wanton.

It means, only when the actions are either prohibited under national or international laws or indicate a reckless disregard for excessive destruction of the environment in achieving social and economic benefits will they amount to the crime of ecocide. The second threshold hints towards an anthropocentric approach of the definition and protects a range of human activities deemed necessary, desirable, and legitimate for human welfare. To determine the lawfulness of the acts, the actions should be seen with their potential social and economic values. The ecocide definition relies upon the principle of sustainable development to balance environmental destruction with human development and prohibits all destructive activities that outweigh their social and economic benefits. It also means that the definition places a ‘limited’ environmental harm outside the scope of the definition, which cannot be avoided for achieving social welfare that includes housing developments or establishing transport links.

The proposed definition is more concerned with the massive instances of environmental damages. It does not consider small ‘necessary’ ecological harms caused by day-to-day human activities. However, it is equally essential these negligible-looking destructive contributions of humans, made in their individual capacity, should not go unnoticed. These small contributions combined with each other also significantly impact the environment in the form of climate change, biodiversity loss, and other hazards. Thus, the reckless human lifestyle is a significant issue and needs to be regulated through some international code of conduct, if not as ecocide.

Undoubtedly, the proposed ecocide definition is a remarkable effort that should be appreciated for multiple reasons. First of all, the release of this definition indicates that the time has come to start penalizing environmental offenders and create deterrence so that such destructive activities can be minimized. It establishes the responsibility and accountability of big corporate houses and political leaders whose regular investments are causing substantial harm to the environment. Moreover, this definition founds its bases upon many core principles and concepts of public international law, international environmental law, international humanitarian law, and international criminal law. For instance, the principle of no transboundary harm, sustainable development, proportionality, and necessity are aptly referred to in the ecocide definition. Moreover, it also provides a sufficiently broad definition of the term ‘environment’ to primarily include any damage committed towards the earth, its biosphere, cryosphere, lithosphere, hydrosphere, atmosphere, and outer space.

Way Forward

Though the ecocide definition is a significant development, it still has to go a long way to be included in the list of international crimes. For this purpose, any of the 123 member states to the Rome Statute can officially submit the definition to the UN Secretary-General. The proposal has to be accepted for further consideration by the majority of the members through voting. Further, the text will be subjected to debates and deliberations and must be passed by a two-thirds majority of the members. Moreover, the member states need to ratify or accept the proposed text. Only after one year of such ratification or acceptance ICC may exercise its jurisdiction over the crimes of ecocide committed afterward. This entire process can take many years or even decades to get completed. It is also possible that the structure of the current definition might change in due course of its acceptance.

Today, it is unclear that whether this definition will succeed in amending the Rome Statute or not, but what can be said with certainty is that this definition will play a crucial role in building awareness and discourse around ecocide among the governments, corporate houses, professionals, and masses across the globe. With the pressing needs of humans and prevailing threats to the environment, it is the right time that the actions of the offenders should be regulated through the prism of international criminal law.

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