A Dane in distressPosted: October 3, 2011
By Stig Toft Madsen
Research Associate, NIAS-Nordic Institute of Asian Studies
The Purulia Arms drop in 1995 was a rare example of a private team of white criminals delivering weapons to an oppositional group in India. The main organizer of the arms drop was a Dane inter alia named Niels Holck. This blog discusses various issues of the extradition case heard in the Lower Court and the Eastern High Court in 2010-11. The courts agreed that Holck could not be extradited mainly due to India’s poor human rights record. In return, India “froze” relations to Denmark
Niels Holck is a Dane presently living in one of the better cities north of Copenhagen. In 1981, when accused of bank robbery, he escaped from the police earning him the nickname “Barfodsrøveren”, the Barefoot Robber (Hansen 2008). Later Holck went abroad where his activities apparently ranged from development work among the poor in Guatemala to gold smuggling in Africa. In that process he acquired several passports one of which identified by as Kim Peter Davy, the name by which he is known in India. Holck’s entry to India was via the Ananda Marga, a religious group which has been at loggerheads with the Indian state. In December 1995, Niels Holck dropped four tonnes of weapons over Purulia in West Bengal for the Ananda Margis from a small airplane. According to a recent interview with Peter Bleach, who was on board the plane, the consignment included “77 cases of Kalashnikov rifles, Makarov pistols, sniper rifles, anti-tank grenades, RPG rocket-launchers, anti-personnel mines, night-vision binoculars and 25,000 rounds of rifle ammunition” (Scarborough Evening News 2011). However, the arms drop was not well executed by the crew which also counted five Latvians who later became Russian citizens. After a confusing return trip from Thailand, all were arrested in Bombay airport save Niels Holck who once more managed to slip off and make his way back to Denmark.[i] When India initially requested the extradition of Holck, Denmark was unable to extradite him because the crime he stood accused of was not a crime in Denmark (sic). After the attack on USA on September 11, 2001, Denmark passed a new and tough law in 2002 enabling the extradition of Danish citizens accused of serious crimes not just to the Scandinavian countries but to the EU and to other countries as well (Lov 378). India renewed its request to get Holck in December 2002. Denmark finally agreed to India’s request on April 9, 2010, but the extradition order was challenged by Niels Holck in court. With the help of a well-articulated lawyer, Tyge Trier, and his team, Holck won the case in the lower court. The state prosecutor appealed the case to the Eastern High Court, which confirmed the decision of the lower court when an unusually large bench of five judges unanimously held his extradition illegal because India has a bad human rights record as regards treatment of prisoners. Tellingly, India has not ratified the UN Convention against Torture and not signed the Optional Protocol to the convention. The diplomatic agreement reached by India and Denmark had sought to bracket such general issues by focusing on the individual case at hand, but it was found by the court to be devoid of sufficient muscle to secure Holck’s safety if handed over to the Indian custody.[ii]
According to Holck, important Indians, including a Bihari MP and the Central Bureau of Investigation (CBI) were all parties to the arms drop and actually helped him to get back to Denmark when they realized that things had not gone as planned. According to Holck, key Indians had teamed up with him because, like him, they were frustrated with the violent communist regime in West Bengal. When the arms drop misfired they wanted to cover their trails. Were Holck to turn up in India again, the same actors or institutions would kill him to hide the truth, Holck alleges. Not only has Holck maintained that the arms drop took place with the knowledge and concurrence of the CBI and unnamed Indian MPs, but also with the knowledge and concurrence of Danish and the British Intelligence. In his version of the story, Bleach maintains that the British intelligence services were aware of what he did as an arms dealer after he contacted the Defense Export Services Organization to seek clarifications regarding the proposed arms sale. The MI5/MI6 sensed that a crime was in the making and they contacted the Indian authorities.[iii] British intelligence, Bleach holds, let him proceed with the plan to enable the Indian authorities to catch the kingpin, i.e. Holck, red-handed. Bleach acceded to the advice of the British authorities, thereby deceiving Holck. This was the storyline presented by Bleach when he made an appearance in the Danish High Court in 2011 and it may contain more grains of truth than Holck’s version. In a debate on this issue, the British Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs said in a response to an MP:
“The hon. Gentleman also asked whether Mr. Bleach advised officials of issues relating to the arms drop. I can confirm that he provided details to North Yorkshire police about the arms drop during interviews on three separate occasions—on 14 September, 22 September and 8 December 1995. On 22 September and 8 December the police strongly advised Mr. Bleach to withdraw from the deal and not to go to India. The information given by Mr. Bleach was passed on to the Indian authorities on three separate occasions—10 November, 17 November and 15 December 1995.” (www.parliament.uk, 2002)
The British, it appears from this, were aware of the plan, but they did not concur. To me it is inconceivable that British Intelligence would accede to clandestinely arm a small and geopolitically insignificant sect against the democratically elected government in West Bengal in India.[iv]
The main armed opponent of the government led by the Communist Party of India (Marxist) was never Ananda Marga. Its main opponent was the Maoist revolutionaries, or Naxalites, who intensified the class war in the late 1960s. During this period when the Congres was still in power, and later after the Left Front CPI(M)-led government came to power in 1977, the police spared few means to subjugate the revolutionaries. One of the people tortured was Archana Guha whom the police picked up in 1974 while in search of her brother. She was tortured under the supervision of Runu Guha Neogi against whom Archana Guha filed a case in 1977 after she was released. With the help of Amnesty International and others, she came to Denmark where she received treatment. The trial took nineteen years. In 1996, Runu Guha Neogi was sentence to one year’s simple imprisonment with a possibility to appeal (Roy 1996). During this period, the Left Front government did not suspend Neogi who retired as Deputy Commissioner of Police (Roy 1996).
Apart for its role in suppressing the Maoist revolutionaries, there is another side to the CPI(M). As one of its critics, Ramachandra Guha, has conceded:
It may be that of all the major parties in India, it is only the leaders of the CPI(M) who do not have Swiss bank accounts. (Some do not even have Indian bank accounts.) Their views may be out-of-date, even bizarre, but in their conduct and demeanour most major leaders of the CPI(M) are—the word is inescapable—gentlemen. As a bourgeois friend of mine puts it, they are the kind of people in whose homes she can safely permit her teenaged daughter to spend the night (Guha 2011).
Had British intelligence attempted to remove the CPI(M)-led government from office it could have created uproar far greater than the benefits such a removal might have entailed.
Arms supplies and resistance
It is not easy, in fact, to find any example of European governments aiding and abetting armed uprisings in independent India. Perhaps, the person to close in on is George Fernandes, the labor leader and socialist MP who rose to become the Defense Minister of India. Fernandes was accused (but never convicted) in the “Baroda Dynamite Case” of plotting to set off small bombs during the Emergency. Before and after he was apprehended in Calcutta in June 1976, he and his family did receive moral support and physical shelter from several Western governments or their representatives, but even during Emergency I doubt that UK or other Western European countries provided weapons for Fernandes or for anyone else in miniscule armed resistance to the Emergency regime.
Could Holck have a point about Indians in key positions condoning illegal trade in arms for non-state actors? Here it may again be worth noting that Fernandes has been sympathetic to several armed groups, including the LTTE. As Defense Minister… “In July 1998, he reportedly stopped the Indian Navy from intercepting ships suspected of carrying illegal arms to Tamil guerrilla groups…” The Sri Lankan government reportedly stated that, “the LTTE’s biggest supporter in India is Defence Minister George Fernandes” (Wikipedia). Fernandes has also morally supported Burmese rebel groups and students fighting the military government both before he became Defense Minister and while in office. Arms dealers supplying weapons (similar to those dropped over Purulia) to Naga and Assamese rebel groups in North-East India and in Burma are alleged to have been given free passage in the Andaman Sea on the order of the Defense Secretary while Fernandes was the minister. These allegations were fielded by amongst other the former Navy Chief Vishnu Bhagwat. I am mentioning this not only to lend some credence to Holck’s version of events, but also because after the extradition case against Holck in the Danish High Court was decided in 2011, the Government of India (GOI) asserted that the Danish decision not to appeal to the Supreme Court would increase the risk of international crime and terror. A former Defense Minister of India could be accused of having done much the same. In all cases, the counter-argument would be that external support to just armed resistance is legitimate – even if directed against democratic states.[v]
The “Purulia Arms Drop” made front-page news in India, but it is not as if the Ananda Marga is the only group in India or South Asia which has imported weapons for its struggles. The Maoist groups in the “Red Corridor” in central India have apparently been supplied weapons through a supply chain stretching from Tamil Nadu to Nepal, The Khalistani Sikhs imported relatively advanced weapons for their secessionist struggle launched around 1980, and umpteen Islamic jihadist groups have received weapons from Pakistan off and on from October 1947 onwards.[vi]
At home India has a considerable sector of illegal small-arms manufacturing. A United Nations study has reported that Indian civilians have around 40 million firearms of which only around 15 percent are licensed (Asian Age 2011). By tapping into these arms distribution networks Holck would probably have gotten a bigger bang for his buck than by contacting a Rhodesian Brit and five Latvians with scant local knowledge. But, then, he evidently wanted to supply the Ananda Marga with advanced weapons of a higher caliber than were necessary for an ordinary watch guard.
The Purulia Arms Drop remains unique insofar as it involved an airdrop of arms by White Westerners to a religious group. The reaction in policy circles in India to the case may be compared to the Pakistani reaction to the US raid on Osama bin Laden’s residence in Abbottabad. In both cases the elite felt hurt when Western incursions into national airspace starkly exposed their state’s inability to enforce its sovereignty. In the Pakistani case, the reaction was widespread. In the Indian case, the reaction has been largely limited to the elite. The “Bengali Street” has been largely silent perhaps because the enmity between the Ananda Margis and others in West Bengal has declined considerable over the years. Moreover, the Ananda Margis themselves have kept a low profile as regards Niels Holck.
Self-defense and legal activism: Holck and Salwa Judum
What was the motive for the arms drop? As far as I can see, Holck purchased and dropped the weapons because he sympathized with the Ananda Margis whom he felt were persecuted by the West Bengal government and perhaps also by Maoist armed groups operating in the Purulia area. Others may have known about the plans, but Holck remained the driving force. It was his project. Who among the Ananda Margis wanted the weapons is unclear, but Holck wanted the Ananda Margis to have the weapons for “self-defense.” At the very end of the High Court case, Holck said that he wanted the truth to come out and that he would win a fair court trial case because the right to self-defense is a valid legal argument. The issue, therefore, arises when a situation exists that allows an actor to disregard the state’s monopoly of the legitimate use of force.
The Indian Penal Code (IPC) recognizes the right to self-defense in section 81, which states that … “Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.” I am not sure whether an Indian court would find this section of the IPC applicable if Holck were to stand trial in India, but it is worth noting that the Indian state recently has walked the same thin line as Holck. In the struggle against the armed uprising of the Naxalites/Maoists in the state of Chhattisgarh in Central India, the GOI in 2005 raised an armed force of about 6,500 barely literate village youth aged seventeenth upwards ordering them to operate as Special Police Officers within the law at a honorarium of Rs. 3000 per month, i.e. much less than the 10 dollars a day that Taliban foot soldiers are said to receive. This force, named Salwa Judum, proceeded to engage in “mass violations of fundamental constitutional rights” (Venkatesan 2011:44) often in connection with the forced removal of people from “naxalite-infested villages” to safe village under Salwa Judum control. In 2007 anthropologist Nandini Sundar, who is professor of sociology at Delhi University, together with the historian-anthropologist Ramachandra Guha, and EAS Sarma, former Secretary to GOI and former Commissioner for Tribal Welfare, Government of Andhra Pradesh filed a writ petition in the Supreme Court. The court accepted the petition as a Public Interest Litigation (PIL) case. Eleven judges heard the case for 26 days over several years before delivering the verdict in 2011. The case was repeatedly stalled by the Government of Chhattisgarh, confirming that it is not only private litigants who are adept at prolonging litigation in India, but that official India is equally adept in the art of adjournments.
The verdict of the Supreme Court in Nandini Sundar and others vs State of Chhattishgarh went in favor of the petitioners finding the formation of Salwa Judum an abrogation of the state’s obligation to protect its citizens by a professionally trained police force only. The court “directed the State government to prevent the operation of Salwa Judum or any other such group that seeks to take the law into its own hands or violates human rights of any person” (Venkatesan 2011:44). In other words, the court affirmed the state’s monopoly of violence specifying that the state can only delegate its right to use force to duly constituted groups. By extension, if the state did not have a right to defend its citizens against the Maoist threat – which is a real threat – by raising a motley army in the name of self-defense, it is also not likely that an equally motley crew of non-nationals would enjoy the right to arm a socio-religious group like the Ananda Marga. Niels Holck, the Government of Chhattisgarh, and the GOI seem alike in their in misconstruing the right to self-defense.[vii]
Were Danes and others to be acquainted only with acts of armed rebellion and armed “self-defense” in India, the decision in the Salwa Judum case would seem surprising. It is worth, therefore, to look closer at how the Supreme Court of India arrived at its decision. The short answer is: By legal activism and the scholarly deployment of social science. For a start, in section 2, the court says:
2. As we heard the instant matters before us, we could not but help be reminded of the novella, “Heart of Darkness” by Joseph Conrad, who perceived darkness at three levels: (1) the darkness of the forest, representing a struggle for life and the sublime; (ii) the darkness of colonial expansion for resources; and finally (iii) the darkness, represented by inhumanity and evil, to which individual human beings are capable of descending, when supreme and unaccounted force is vested, rationalized by a warped world view that parades itself as pragmatic and inevitable, in each individual level of command.
The verdict goes on to deride the “development paradigm unleashed by the State”, arguing that:
“The root cause of the problem, and hence its solution, lies elsewhere. The culture of unrestrained selfishness and greed spawned by modern neo-liberal economic ideology, and the false promises of ever increasing spirals of consumption leading to economic growth that will lift everyone, under-gird this socially, politically and economically unsustainable set of circumstances in vast tracts of India in general, and Chhattisgarh in particular.“
Touching on the “resource curse” and “developmental terrorism’, the Supreme Court verdict posits that:
“Policies of rapid exploitation of resources by the private sector, without credible commitments to equitable distribution of benefits and costs, and environmental sustainability, are necessarily violative of principles that are “fundamental to governance”, and when such a violation occurs on a large scale, they necessarily also eviscerate the promise of equality before law, and equal protection of the laws, promised by Article 14, and the dignity of life assured by Article 21.”
The verdict muses that:
“Tax breaks for the rich, and guns for the youngsters amongst poor, so that they keep fighting amongst themselves, seems to be the new mantra from the mandarins of security and high economic policy of the State. This, apparently, is to be the grand vision for the development of a nation that has constituted itself as a sovereign, secular, socialist and democratic republic”
Before finally ordering that:
“(i) The State of Chattisgarh immediately cease and desist from using SPOs in any manner or form in any activities, directly or indirectly, aimed at controlling, countering, mitigating or otherwise eliminating Maoist/Naxalite activities in the State of Chattisgarh;”
… and that:
(v) The State of Chattisgarh shall take all appropriate measures to prevent the operation of any group, including but not limited to Salwa Judum and Koya Commandos, that in any manner or form seek to take law into private hands, act unconstitutionally or otherwise violate the human rights of any person…..”
The Supreme Court’s verdict has been received very positively by some commentators. Liang (2011) writes that
“This judgment attains such greatness by virtue of its deft combination of insightful legal analysis, the articulation of a moral vision of constitutionalism and development and its sharp invocation of rhetoric (in the best sense of the term) and fiction to buttress its arguments” (Liang 2011).
In his write-up about the case, Venkatesan (2011: 46) makes reference to the 22 initial paragraphs of the judgment, which, as is evident from the above, are critiques of the “the neoliberal development paradigm and the resultant privatisation and globalisation” rather than typical legal arguments. The reason behind all of this is that the Indian Supreme Court since the 1970s has often been an activist court, which basically means a court “at war” with the way the legal system and the state normally works. Legal activism has been an emergency answer, or safety-valve, to the inordinate delays and the miscarriage of justice that are endemic to the courts. By taking up cases at the behest of concerned individuals without locus standi, the Supreme Court (and to some extent the state High Courts) have been able to re-interpret the fundamental civil and political rights and the directive principles in the Constitution. This means that Indian law is internally compromised and that it may externally compromise the state as it did in the Salwa Judum case. Since the invention of PIL in the 1970´s, Indians have been able at once to decry the Indian Penal Code and other laws as “colonial” while lionizing and exploiting Article 21 (guaranteeing the broadly interpreted “Right to Life”) and Article 14 (guaranteeing ”equality”) of the Constitution to secure a series of landmark judgement.[viii] Often this has been affected by applying justiciable political rights to social and economic issues where the non-justiciable Directive Principles exercise less clout. As Shankar notes (2009: xiv-xix), these legal innovations (bordering on judicial populism) took place in the aftermath of the Emergency which had undermined the Constitution. The courts tried to make up for its mistakes.
The number of PIL-cases has declined since the 1970. In 2008, PIL-cases only constituted around 2% of the cases seeking a Supreme Court hearing and very few of them were eventually admitted. Moreover, many PIL-cases are now entertained by the rich and powerful. Nevertheless, as the Salwa Judum case shows, the Supreme Court may still act as a forceful corrective to the executive akin to the courageous verdicts passed by the President of the Israel Supreme Court Aharon Barak.[ix] On this background it is understandable that the GOI, and Indians at large, may expect the Danish courts to take on a similar trailblazing role, but the Danish courts do not take that bait because they aim to maintain coherence in the face of contestation. A Danish court may be flexible, but the activism that has taken roots in India using PIL as an unorthodox quasi-political tool to intervene as a “last resort for the oppressed and bewildered” (Robinson 2010) has no counterpart in Denmark. In Denmark there is a strong Ombudsmand’s institution, but, so far, there is no PIL and no Anna Hazare short-circuiting the law and the legal process. The Ombudsmand’s institution takes up around 50 cases in its annual reports which the executive often consider as guidelines. It is rare, however, that ministers are impeached or civil servants tried (Elbæk-Jørgensen 2001: 223). The Danish political system may on occasion bend over backwards as it did in order to promise Holck’s extradition, but Danish courts remain careful. They see themselves neither as protagonists of the civil society, nor as tools of the state.
In the Niels Holck case, the prosecutors limited the scope of their arguments to the central issues: Could Niels Holck be extradited or not? Noting that Danish law now opens for extradition to any country in the world and showing that both governments had proceeded correctly in entering into a diplomatic agreement, the prosecution largely left it at that. When the prosecution lost twice because the courts held that it could not be ruled out that Holck would be submitted to torture or mistreatment in Indian jails, the state chose not to appeal. In India, appeals all the way to the Supreme Court are common. In 2008, there was a 2.5 per cent likelihood that a case would be appealed from High Court to Supreme Court. In cases originating in Delhi the likelihood rose to 10 per cent (Robinson 2010). The official India might have felt disappointed by the non-activist manner in which the Danish prosecution argued the case, but it certainly felt disappointed about the decision not to appeal. Indians in Denmark expressed such opinions (Copenhagen Post Online 2011). Some held that the Danish decision not to extradite Hock was a result of a colonial superiority complex. Basing her interpretation on readers’ comments on the Blogosphere rather than on the court case at hand, which she considers less interesting, Kaur argued that while the official Danish policy of opening up for extradition correctly reflected the new reality of India’s increased economic and political power, the Danish public stayed mired in old prejudices viewing India as a pre-modern and uncivilized country to which Danish citizens should not be extradited (Kaur 2011). In contrast, a number of Danes to whom I have spoken consider it right that Hock is made to face justice in India not in order to atone for colonial misdeeds, nor in order to kowtow to the rising superpower, but because of the crime he had apparently committed. The irony is that it is the law (and not money or political influence) which stands in the way of extradition.
After a period of silence, the GOI in August 2011 announced it would freeze relations to Denmark as a (collective) punishment for its failure to extradite Holck. The Danish government did not announce any counter-measure but expressed its regret while it contemplated seeking the assistance of the EU (Bostrup 2011). The situation was reminiscent of the Muhammad cartoon crisis where Third World powers also felt slighted and put pressure on the Danish government to “do more”. In both cases the Danish government responded that court decisions – whether about cartoons or extradition – should be respected. The basic difference seems to be that among “argumentative Indians” contestation is God: Legal decisions are not necessarily reached by reference to the law in a narrow technical sense but by allowing a plurality of elite and subaltern interests to be presented and a compromise worked out within an expanded constitutional framework. Legal pluralism allows for such contestation while legal monism seeks closure by applying Occam’s razor.[x]
In India over 50,000 people were detained under TADA (Terrorist and Disruptive Activities Act) over a period of ten years. Less than one percent of them were convicted (Shankar 2009: xxi). Doing more may not always be very efficient from a legal point of view.
RE-FRAMING THE ISSUE, SHARPENING ARGUMENTS AND COUNTER-ARGUMENTS
How could the prosecution conceivably have turned the case to his or her advantage? For a start the prosecutor could have painted a more detailed picture of the Ananda Marga which would have challenged the image Holck and the defense counsel painted of a development organization building schools and hospitals. What is the Ananda Marga? Based on an article by Helen Crovetto (Crovetto 2008), I have offered a short answer to this question in an earlier NIAS blog (Madsen 2010).
Had the prosecution paused to paint a detailed picture of the Ananda Marga it might have re-framed the issue from one relating to the legality of extradition versus the protection of individual human rights to an issue of the duty of one democratic state not to assist, actively or passively, any of its citizens to foster violence in another democratic state versus the protection of individual human rights. This would have addressed the question that many Danes have raised: “What if Indians dropped weapons over Copenhagen? Would Denmark not demand that such arms-droppers be extradited?” (Information 2007; see also Kyrø 2011, Hansen 2008), and it might have enabled the court to reach another verdict.
To illuminate the context, the prosecution could have reiterated that India has repeatedly sought the extradition of various people without success. India wanted LTTE-supremo Prabhakaran for the murder of Rajiv Gandhi, but did not get him. India wants Warren Anderson, the ex-CEO of Union Carbide headquartered in the USA, to face trial in the Bhopal Gas Leaks Case (Expressindia 2010, Misra 2011, and Zeenews 2011). Well-known writer and journalist MJ Akbar feels that Anderson showed contempt for the Indian legal system when he left India (or absconded) in 1984 (Akbar 2010). India also demands the extradition of about a dozen people hiding in Pakistan ranging from Dawood Ibrahim Kaskar for his alleged involvement in the Bombay Blasts in March 1992 to the Lashkar-e-Toiba and ISI operatives behind the attack on Mumbai in November 2008.[xi] The fact that India wants for the extradition of several others apart from Holck increases the likelihood that India would treat Hock according the agreement reached with Denmark in order to facilitate the extradition of other, and more wanted, persons, the prosecution could have argued. From the Indian point of view, the failure to hand over Niels Holck is one more example of other countries obstructing the process of bringing criminals to justice. The decision hurt Indian pride at a time when India has made a number of sweet deals in (including the US-India Civil Nuclear Agreement) in the diplomatic field. With Indian pride growing, the setback in the legal sphere caused official rancor.
In return, the defense counsel could have mustered a list of Indians living in India and hiding from prosecution elsewhere. For example, he could have cited the case of confidence trickster and serial killer Charles Sobhraj who took shelter for decades in Indian jails (sic!) to avoid prosecution in Thailand (Wikipedia). Or he could have pointed to the case of Haji Mohammed Yaqoob, Minister for Haj and Minority Welfare in the state of Uttar Pradesh who in 2006 promised Rs 51 crore and the equivalent in gold of the weight of anyone who would chop off the head of Danish cartoonist Kurt Westergaard (Dougal 2006). Indian authorities apparently have not taken the initiative to prosecute this honorable MLA.
Apart from the above possibilities to reframe the issue the prosecutor could have pursued obvious mistakes on the defense side. For example, Niels Holck claimed that he did not know the true size of the consignment until the crates containing the weapons were reloaded in Varanasi airport. But then he felt helpless to do anything about it because, as he explained in High Court, the temperature was 55 degrees centigrade. Here the prosecution could have informed the court that in Varanasi the average maximum temperature for the month of December when the airdrop took place is less than 25 degree Celsius and the average minimum temperature about 10 degrees Celsius. The temperature, in other words, is likely to have been quite pleasant. Similarly, the prosecution could have faulted the defense lawyer for arguing that it would take 19 hours to drive the approximately 1,400 km from Delhi to Calcutta according to Google map by informing the court that the Danish embassy staff would most likely take a plane to Calcutta. More seriously, the prosecution could have nullified a string of key arguments the defense counsel made in the Lower Court and to a lesser extent in the High Court to the effect that prison conditions and police and army brutality was a particular problem in West Bengal. Several of the sources (International Red Cross, Amnesty International, and Human Rights Watch) which the defense counsel cited to build this argument referred to North-East India and not to West Bengal. In effect, the court was led up the garden path when the defense counsel wrongly placed West Bengal in North-East India. Further, the prosecution could have argued that it is never possible to guarantee that Holck, or anyone else, would not suffer death in an Indian prison. The prison population of India was about 332,112 (BBC News no date). The total number of prisoners who died in 2006 was reported to be 1,424 (Udskrift af Østre Landsrets Dombog, p. 10) amounting to 0.43%. In Denmark in 2009 the total prison population was 9,732 of who six died and six committed suicide (Kriminalforsorgen 2009, table 9.2). This amounts to 0.12%. There is a clear difference between India and Denmark but it is not as vast as the defense counsel (and Peter Bleach) indicated.
In return the defense counsel could have argued that the case against Hock could drag on for much longer than visualized in the diplomatic agreement between the two countries. The public prosecutor in the lower court held up the promise that Holck could be back in Denmark in three weeks provided he pleaded guilty, but the diplomatic agreement specified that Holck would not be tried in a Special Court. This means that the case would be initiated in a court of first instance, in casu the Calcutta Chief Metropolitan Court, from where appeals and interventions may be made (by either party or by third parties) to High Court, the Supreme Court and finally as a mercy petition to the President. Mercy petitions with the Indian President regularly take many years to decide.[xii] In effect, the case could plausibly drag on for years.
Even so the prosecution could insist that the issue is properly one of how democracies should relate to each other in the long run in a globalizing world. Political science claims that democracies do not wage war against each other. How could a Dane be allowed to do so with impunity? Denmark, as the prosecution did say in the Lower Court, should not become a safe haven (“et helle”) for terrorists. As the Security Council resolution 1373 states:
By other terms, the Council decided that all States should prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other countries and their citizens. States should also ensure that anyone who has participated in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice. They should also ensure that terrorist acts are established as serious criminal offences in domestic laws and regulations and that the seriousness of such acts is duly reflected in sentences served (Security Council 2001).
As noted by Sasikumar who traces the India route from “sponsor state” to “victim state”:
“This resolution has become the rallying point for ‘victim states’ like India. Indian leaders draw attention to the fact that it proscribes all forms of support to terrorists” (Sasikumar 2010: 620).
International cooperation is based both on law and on trust. India bent over backwards, exhibiting its soft underbelly in the process, to accord Denmark exceptionally broad guarantees in order to capitalize on the new situation arising after September 11, 2001. However, Holck still evaded them because the Danish courts did not want to extradite a citizen to an uncertain fate outside its civilisational orbit. As the defense counsel noted at the end of the High Court case: “This is a difficult case. It is the first time that a Dane risks being extradited outside the West European cultural area” (“Dette er en vanskelig sag. Det er første gang en dansker i givet fald skal sendes uden for vor vesteuropæiske kulturkreds”). Prominent defense lawyers, such as Trier, tend to plead for the rights of refugees to stay in Denmark. Drawing on international human rights law, they seem correspondingly eager to protect clients from extradition. On the prosecution side, feeble attempts to reframe the issue with reference to international law, the common fight against terror and the importance of supporting an ordered process of globalization turned out fruitless as the bench kept its focus on the protection of individual human rights.
Holck’s argument about the right to self-defense against communist misrule – setting aside the state monopoly of violence – was left hanging in the air. Perhaps the prosecution should have shot it down as it was shot down in the Salwa Judum case. The argument that a person, or a people, have a right to self-defense may have merit, but often is does not. In July 2011 Anders Behring Breivik committed a gruesome act of terror in Norway. Like Holck, he claimed to be fighting communism. Like Holck, the ideology of this “Angry Norwegian” was framed as a form of self-defense directed, in his case, against Islamic incursion into Norway abetted by the treason of crypto-communist multiculturalists paying no heed to the right to national self-determination. Breivik is likely to receive a hard punishment. It was India’s bad record which has prevented Holck from being sentenced. In that sense India has itself to thank for its defeat.
Interestingly, the Calcutta High Court has subsequently upbraided the Indian government for not ratifying the Convention against Torture: Acting on a petition the High Court directed the GOI to ensure that India would ratify the Convention against Torture because, “If the U.N. Convention against Torture had been ratified in Parliament, it might have been possible to ensure the extradition of Kim Davy” (The Hindu 2011).
This may be a vain hope, however. As has been argued by Asian Human Rights Commission, what counts is not only the signing of conventions, but reforming the police force which are charged with doing an impossible job:
“In most cases the officers are expected to discharge a job that no one in the world could ever do. For instance, what could a police officer responsible for traffic control do if the roads are filled with persons driving vehicles who obtained their licences by merely paying bribes?; what could a traffic police officer do if the junction at which the officer is posted has no traffic lights and the road conditions are terrible due to corruption in road construction?; how can a police officer investigate a crime other than by torturing a suspect and obtaining a confession when the officer is not trained in scientific crime investigation?; what else could a police officer do other than demanding and accepting bribes when the officer is not provided a house in the city where the officer is posted and forced to rent a house that would almost cost half of the officer’s salary?; how can police stations function when the telephones and vehicles at the station do not work?; what morality will such a force have when they are expected to protect political masters who enjoy fruits of corruption?
Of equal importance is the role of the Indian civil society, including the country’s media, to keep a focus upon the conditions of the police and to hear their concerns. In that there is no sense for the civil society to push the government to ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which the government for understandable reasons is delaying to undertake. The ratification of CAT without having a comprehensive national policing policy to improve the state of policing makes no sense. In fact in the neighbouring countries like Pakistan, Sri Lanka, Nepal and Bangladesh, which have all ratified the CAT without a sensible policy to improve the state of policing in these jurisdictions are examples from which both the government, and the civil society in India can draw learning (Asian Human Rights Commission 2011).”
It seems that even if the prosecution had been more innovative, (s)he would have a hard time convincing the judge to allow Holck’s extradition.
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[i] To be added: India Today article from 1995.
[ii] I attended some of the court meetings in the lower court in Hillerød and some of the meetings in the High Court in Copenhagen and I also monitored press coverage of the case to some extent.
[iii] The MI5 and the MI6 may have worked at cross-purpose in dealing with Holck. I hope to be able to add details later. See also Kyrø (2010).
[iv] Holck and Bleach both had previous experience from Africa and the Purulia Arms drop bears resemblance to African cases, in particular to the failed attempt in 2004 of British mercenary Simon Francis Mann to overthrow the President of Equatorial Guinea with the help of a group of mercenaries in order to install another President to gain access to the country’s oil wealth (http://en.wikipedia.org/wiki/Simon_Mann).
[v] On Fernandes, see Asian Age 1999, Gokhale 1999, Rediff.com 2000, and Wikipedia. The Sri Lankan Tamil groups, including the Tamil Tigers, also received weapons and training from the Indian army in the early 1980s (Madsen 1996: 176). Later the Indian air-force airdropped food as humanitarian relief for the beleaguered Tamils in Jaffna. Sri Lanka vociferously protested this blatant violation of Sri Lankan airspace but in this case India chose to help the Tamils rather than abiding to the principle of national sovereignty.
[vi] See India Today (1996) for an overview of weapon routes in India.
[vii] Other relevant legal case from Denmark would include the Danish resistance groups to whom the British air force dropped weapons during WWII. In the legal aftermath to the war, these resistance fighters were found non-culpable. The Danish police, who were charged with stopping them, were also found non-culpable (oral communication, Mads S Jakobsen). Contemporary cases of ostensibly legal self-defense include the authorization given to the CIA to kill US-born Anwar al-Awlaqi. He was killed in a drone strike in Yemen in September 2011. For an extended analysis of the right to intervene in other countries, see Walzer 1977, chapter 6.
[viii] A similar schism between Indian laws and British values were used by lawyers and politicians during the independence movement to dislodge the British.
[ix] Another comparison has been made between Justice Krishna Iyer and Tom Bingham, Lord Chief Justice of England and Wales (Raghavan 2010).
[x] See Singh (2010) for a glib attempt to deploy social science, in casu subaltern studies, to modern international law. For a recent study on mining politics, see Oskarsson (2010) who is puzzled by the fact that “Some fundamental rights have become established to the point where it is very difficult to change them, and land for tribal people seems to be one such right” (Oskarssson 2010: 239). The reason, again, is legal and political activism.
[xi] See the Interpol notice for Dawood Ibrahim at www.interpol.int/public/Data/NoticesUN/Notices/Data/1993/93/1993_14193.asp.
[xii] The appeal procedure was moot point in the court proceedings. I am referring here to a brief conversation I had with Ijaz Khan, the Indian CBI official present. The position also emerges from the High Court verdict, page 4.