Prem Shankar Jha

Missiles were rained on Syria by the US, UK and France without any credible reason and with no international sanction.

After the Bombings in Syria, the West Is Drifting Towards a Big War

A boy sits on a chair along a damaged street at the city of Douma in Damascus, Syria April 16, 2018. Credit: Reuters/Ali Hashisho

In an article published in The Wire on April 9, I had expressed deep foreboding that, with the American century in its twilight years, the danger of war being used by weak, confused Western leaders as a distraction from the terminal decline of their global hegemony had grown exponentially.

Hours after it was published, the US and UK accused the Bashar al-Assad government of launching a gas attack on the last rebel stronghold in Ghouta, the once verdant but now heavily populated oasis that adjoins Damascus. Four days later, the US, UK and France fired 105 Tomahawk missiles into Syria from ships scores of miles offshore. This attack reflects, in microcosm, every facet of the breakdown of order and reversion to a barbaric, ‘State of Nature’, that is dragging the world ever closer to War.

Their justification for the attack reeked of moral self-righteousness: Theresa May claimed it was necessary “to protect innocent people in Syria from the horrific deaths and casualties caused by chemical weapons… We cannot allow the erosion of the international norm that prevents the use of these weapons.”

Emmanuel Macron of France said: “The facts and the responsibility of the Syrian regime are beyond doubt. The red line set by France in May 2017 has been crossed. We cannot tolerate the trivialisation of the use of chemical weapons, which is an immediate danger for the Syrian people and for our collective security.”

Trump knew within minutes of the attack that ‘Animal Assad’ was responsible, so he warned that “missiles are coming”.

Their self-satisfaction after the attack was equally odious: It was a ‘precision’ attack. It was 100% successful. Three known Syrian chemical weapons production sites were destroyed. There had been no civilian casualties. Syria had been taught a lesson. The West had upheld international law.

These is something obscene about this haste to condemn; to affirm the right to bomb and kill without provocation, without conclusive proof of wrongdoing, and without any prior sanction from a quasi-juridical body like the UN Security Council or General Assembly. It shows a contemptuous disregard not only for the international law enshrined in charter of the United Nations which the US itself largely drew up, but a disdain for the moral principles upon which civilisation itself is founded.

While the Syrian army was an obvious first choice in any search for culprits because it was in the process of cleaning out the last remaining rebel stronghold in Ghouta, Russia, which has a Reconciliation Team on the ground that has been supervising the evacuation of civilians from Ghouta through three humanitarian corridors, has not only dismissed the accusations as ludicrous, but claims it has evidence that it was a false flag operation actually instigated by the British.

It was, therefore, all the more essential to wait for a detailed examination of the site of the alleged attack by experts. A team of experts from the Organisation for the Prohibition of Chemical Weapons (OPCW) had already arrived in Damascus and was scheduled to hold its first meeting with the vice-foreign minister Feisal Mekdad, on Sunday, April 15. So what was the urgency that made the three countries decide to fire 105 Tomahawk missiles into Syria the previous night?

There is one possible answer: the strong likelihood that the OPCW might not endorse the conclusion that there had been a gas attack, or that the Syrian army had made it. This, according to Pulitzer Prize-winning journalist Seymour Hersh, had happened once before already: Two days before Barack Obama was to launch a devastating missile attack backed by B-52 bombers on Syria in August 2013, the British Chemical and Biological Weapons Research Centre at Porton Down had informed Prime Minister David Cameron that the Sarin gas used in the August 21 attack could not possibly have come from the Syrian army. In Hersh’s words “analysis demonstrated that the gas used didn’t match the batches known to exist in the Syrian army’s chemical weapons arsenal”. This was the reason why Cameron decided at the last minute to refer his decision to the parliament, and Obama called off the strike a few hours later.

France, UK and the US fired 105 Tomahawk missiles into Syria last week. Credit: Reuters

Macron is still a relative newcomer to the twisted power game going on in the Middle East, but the need to avoid another Iraq-sized blunder should have made at least the British and American governments pause and make doubly sure that they were doing the right thing. The fact that neither government chose to remember Iraq shows that the attack wasn’t about punishing Syria at all.

This assessment, which is widely shared in the US and been expressed with withering elegance by Jeremy Corbin, the leader of the Labour party in the UK, explains two other anomalous features of the assault: First, if Syria had chemical weapons complexes and supply depots operational in 2018, how did the OPCW certify in 2016 that Syria had destroyed all of its chemical weapons and its manufacturing facilities?

If its experts were not fooled, (or bribed) how had Syria, which has fought, and been bankrupted by, the most vicious and brutal war in recent history, managed to rebuild even a rudimentary chemical weapons capability in just two years? Could it be that Russia has given them the plants/laboratories? Or China? or Iran?

Sensing this absurdity, a source in the US government has pointed the finger of suspicion at that other member of the Axis Of Evil, North Korea, by leaking a so far confidential UN report on it’s violation of UN sanctions to the New York Times. This report detailed a brisk trade that North Korea was doing in chemical plant equipment with Syria. It reported that there had been 40 shipments to Syria of acid resistant tiles, valves, thermometers, and other equipment that could be used to manufacture chemical weapons.

But as one American commentator pointed out in an article in the paper’s online edition (now deleted), these are used in many other chemical industries. In fact, a similar finding of dual use capability had briefly blocked even the import of lead pencils by Iraq in the nineties on the grounds that the graphite in them could be extracted and used to manufacture the heat shields of missile cones!

There could, in fact, be a more innocent explanation for these purchases: By 2012 (when I visited Syria) rebel attacks targeting Syria’s chemicals industry had almost wiped it out. The principal target had been its pharmaceutical sector, possibly because the same equipment could also be used to produce chemical weapons. As a result, the shortage of life-saving medicines had become so acute that WHO had launched a world-wide appeal for funds to supply Syria with these medicines. But so complete was the demonisation of the Assad regime by then that it was able to raise only $60 million.

Syria’s President Bashar al-Assad. Credit: Reuters

The Syrians could not have forgotten this. So it would have been surprising indeed if rebuilding the pharmaceuticals industry had not been one of the first tasks the government undertook after regaining control of central Syria.

The second anomaly is even harder to explain. In the reams of reporting and opinion-making not one commentator has raised the question of motive? In murder trials, the absence of motive is the single greatest obstacle to proving guilt beyond reasonable doubt. Why then has no one asked what Assad could possibly have hoped to gain from launching a single chemical bomb or rocket at an already beleaguered remnant of a rebel force in the last stronghold it still held in Ghouta?

By the end of March, Assad had regained control of all but one last rebel stronghold in Ghouta. A tally kept by the Syrian Red cross (Red Crescent) and the Russian Reconciliation Centre showed that 1,166,644 civilians, well over half of its population, had left Ghouta through the three humanitarian corridors created by Syria before the gas attack. These included thousands of rebels, their families and sympathisers. What need was there for him to risk all by using one lone chemical warhead now?

Precisely this accusation had brought him within a hairsbreadth of annihilation in August 2013. What is more, a single chemical bomb allegedly dropped by a Syrian air force fighter plane upon Khan Shaykhun, in April 2017, had brought 59 Tomahawk missiles down on his airbase in Lattakia. So Assad would have had to be a half-witted idiot not to know what would happen if he did it again. Needless to say, he is not a half-wit. But nor are the rebels, for whom this was the fourth attempt to drag the West into overt war against the Assad regime

Writing in the Washington Post a few days before the attack Carrie A. Welch gave one succinct explanation for the US-EU attack:

“The real reason for the attack threats is probably this: Midterms (elections to the Congress and the Senate in the US) are approaching, the Russia investigation ( of tampering in the US elections to put Trump in power) is escalating and former FBI director James B. Comey’s book is being released.

Research shows that diversionary wars — wars started to distract the public from domestic unrest — are hard to start in democracies and rarely have the intended effect. Military operations in an already existing conflict are much easier to manipulate — and are not as risky as starting a war.

My research finds that, during periods of political fragility, U.S. presidents systematically manipulate the timing and tempo of military operations. That’s true most often in the lead-up to elections, when public opinion quite literally determines the fate of a president. However, presidents also manipulate military operations when they need support from their domestic political base — for example, during negotiations over major pieces of legislation, bids for legacy, midterms or while threatened with impeachment.”

Since the attack was limited, no civilians were apparently killed, and no Russian and Iranian personnel killed or assets destroyed, there have been no repercussions. But Russia has warned the US and its NATO allies that if any of its assets in Syria are attacked, it will not only destroy the missiles in the air but also their launch platforms. That means the US naval task force in the Mediterranean. For the next eight months therefore, and possibly for the two years after that as well, the world will continue to teeter on the edge of a world war.

https://thewire.in/world/syria-airstrike-us-uk-france-war

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Bolton’s appointment has come when the US is trying to come to terms with the unsustainability of its three-quarter century hegemony over the modern world.

 

John Bolton's Appointment Signals the End of the American Century

In his 14 months at the White House, Donald Trump has administered several shocks to the American public. But none has been as severe as his appointment of John R. Bolton as the national security advisor. Bolton is known as one of the most radically hawkish voices in American foreign policy. He was a member of the American Enterprise Institute group that coached George W. Bush on foreign policy before he was elected, and then pushed him into invading and destroying Iraq.

In recent years, he has urged that the US declare war on both North Korea and Iran. It is no surprise then that Wendy Sherman has described him as a man who “has never met a war he didn’t want”. 

President Trump has hired and fired 60 people from top jobs in his administration in the past 14 months, so placing bets on Bolton’s longevity could be risky. But the appointment of such a man to a post that, more than any other in the US government, determines whether the country gets embroiled in another war or not, could not have come at a worse time for it has come when the US is trying to come to terms with the unsustainability of its three-quarter century hegemony over the modern world, and does not know which way to turn. It is at such moments that the possibility of a military conflict, i.e. a war, reaches a peak.

Hegemony must not be confused with dominance. The latter can be achieved through the exercise of military power alone. Hegemony, by contrast, is control, exercised without, or at best with a minimal, use of force. Subordinate countries then follow the hegemon’s lead because its restraint convinces them that it will use force wisely, and only as a last resort.

The US enjoyed this hegemony when it was being openly confronted by the Soviet Union but, paradoxically, began to lose it within months of the USSR’s collapse at a time when, in President Clinton’s words, Americans did not have “a single over-riding threat to their sovereignty”. The decline began, almost unnoticed, in 1994 when Clinton declared that the US no longer felt itself bound by the UN Security Council’s resolutions on Iraq and would not permit the lifting of UN sanctions on Iraq so long as  Saddam Hussein remained in power. This was the beginning of its destruction of the United Nations and its attempt to replace the Westphalian international order enshrined in its Charter, with one that was fashioned by it in its own image.

Since then, the covert or overt use of force to secure regime change has become the central tenet of American foreign policy. This was demonstrated by its unprovoked carpet-bombing of Iraq in 1998, its aerial invasion of Serbia to ‘liberate’ Kosovo 1999 and  the invasion of Iraq in 2003.

Post US invasion, Iraq became a breeding ground for Al-Qaeda and ISIS. Credit: Reuters

For none of these actions did the US seek, let alone obtain, even a token nod from the UN Security Council. Its hegemony could  have survived if anything good had resulted from them. But Iraq has emerged as a frail, poor and unstable country riven with sectarian strife, and a breeding ground for al-Qaeda and ISIS. Kosovo is a trans-shipment centre for drugs destined from Afghanistan to Europe; and having had no compelling reason for declaring war on Iraq and Afghanistan, the US found itself unable to end them for years on end.

It, therefore, lost close to 7,000 soldiers, crippled another 60,000, traumatised a quarter of a million, spent trillions of dollars and ran up a national debt of nearly $20 trillion, while its infrastructure mouldered away and its cities began to resemble those of the Third World.

But none of this dented the huge sense of entitlement the US had inherited from its victory in the Cold War. Liberal interventionism therefore revived with a bang with the advent of the so-called Arab Spring. In 2011, Obama joined France and Britain in a disastrous destruction of Libya. In the same year he allowed Qatar, Turkey and Saudi Arabia to drag the US into an equally misguided attack on Syria.

As in the first round of military intervention, the UN Security Council was first misled and then excluded again from decision-making on war and peace. But the resemblance between these and the first round of American interventions ends there.

First, the US is no longer willing, or indeed able, to shoulder the burden of intervention alone. Instead, it created a more broad-based ‘transatlantic’ coalition to undertake its ‘humanitarian’ interventions. Its favoured instrument is NATO, which provides a sufficiently wide umbrella of consensus to sustain the illusion of multilateralism, but is flexible enough to allow every member to decide the level of its involvement. 

Second, responding to the profound aversion of the American public to the loss of American lives in places they cannot identify on a map, the Obama administration became determined not to send American troops into combat again. To avoid any further unnecessary entanglements, Obama placed an ever increasing reliance upon diplomacy to contain potential threats. Iran, Cuba and the containment of China were his major successes. But the benevolent impact of this upon public perception in smaller nations has been offset by the US’s increasing reliance on drones to wage its never-ending “war on terror”.

Machines have no feelings, so the target groups cannot negotiate with them, cannot surrender to them, cannot even fight them.  So drone warfare leaves no room for a hegemonistic relationship. Engaging in it is a tacit abandonment of the quest for  hegemony and a conscious decision to rule the world through terror alone. 

It is the final difference that has given the coup-de grace to the American Century. The US is now too broke to finance its interventions by itself, so it has begun to pass the hat around. Supposedly it does so only among its allies. But the main financiers with whom the CIA teamed up to arm the insurgents in Libya and Syria have been precisely the countries that had the most to gain from toppling the existing regimes in them – Qatar, Saudi Arabia, and the Emirates of the Persian Gulf. This has turned the US into a new kind of mercenary  – a state that is available for hire.

No man, and therefore no state, can be both ruler and vassal at the same time. Therefore, when the US began to fight wars with other peoples’ money, the American Century became history. No one has taken a greater delight in rubbing this in than the US’s staunchest ally, Benjamin Netanyahu of Israel. Netanyahu attacked Obama on American television in June 2014 for deciding to cooperate with Iran in halting the ISIS’s advance into Iraq, and went uninvited to the US and denounced the American president before the US Congress on American soil for crafting a nuclear agreement with Iran.  

Former US President Barack Obama (R) meets with Israel’s Prime Minister Benjamin Netanyahu at the White House
in Washington October 1, 20

The US’s loss of hegemony is only one part of the story. The other part is the West’s loss of moral hegemony in the post-Cold War years. The US and its allies have justified the assaults on Iraq, Libya and Syria by depicting their rulers as tyrants. Removing them would open the way for a transition to democracy. But what they chose to overlook was that the freedom to vote is not an end in itself, but only the means for securing other ends. These are the freedom to think, speak and write, freedom to worship and freedom from gender discrimination.

The states the West destroyed were modern states with high rates of  literacy and women’s participation in the workforce, striving to be secular and gender neutral. Their authoritarianism was designed not to prolong but to root out obscurantism, tribalism and religious extremism in their own countries.

By the yardstick of the ends democracy is intended to serve, the assaults on Iraq, Libya and Syria are morally indefensible for they have eliminated the very freedoms that they were supposed to bestow. It is not surprising therefore that the power vacuum their destruction has created has been filled not by democracy but by al-Qaeda and ISIS.

The sudden spate of terrorism and the rebirth of crude nationalism in the heart of Europe is a direct consequence. Brexit is its most flagrant example. But similar racist-nationalist impulses have sprung up in France, Germany, Italy, Poland, Austria. A new wave of home-grown terrorism is sweeping across Europe. An unwanted  flood of immigrants, in large part caused by the wars unleashed by the West, has triggered a  resurgence of racist nationalism in Europe.

An unwanted  flood of immigrants, in large part caused by the wars unleashed by the
West, has triggered a  resurgence of racist nationalism in Europe. Credit: Reuters

As country after country has been convulsed by these challenges, people have begun to turn to strong leaders like Putin, Erdogan,  Xi Jinping, Duterte and Narendra Modi, to preserve the essential security without which their world will turn into a living hell. But the more authoritarian that a regime becomes, the greater is the insecurity its leaders feel. The stronger, therefore, becomes the temptation to focus the public’s attention on real or imagined external threats.

It is in such conditions that declining, but still dominant, regimes have sought a solution to their domestic problems, in small, manageable, wars. The Habsburg empire found itself in such a situation at the close of the nineteenth century, and the first decade of the 20th century. In 1914, it tried to tame its fractious minorities by invading Serbia, where an extreme nationalist group had succeeded in assassinating Archduke Franz Ferdinand, the heir apparent to the Hapsburg throne. It ended by triggering its own complete destruction and the First World War.

Sixty-five years later, the  Soviet Union, which was similarly caught in a cycle of irresistible economic decline, sought to reinforce its hegemony over the Warsaw Pact countries through a limited military intervention in Afghanistan. It ended by getting enmeshed in a decade-long war it could not win, and brought about its own demise.

The US and Europe are facing a similar crisis today, and succumbing to a similar temptation to contain it by highlighting external threats. Russia, China, North Korea and Iran have been elected as the villains. Russia has to be punished for illegally wresting Crimea from Ukraine, for propping up the Assad regime in Syria, for intervening in the US elections to ensure the victory of Trump, and most recently for the attempted assassination of a former Russian agent, Sergei Skripal on British soil.

North Korea has to be punished for continually violating its obligations as a signatory of the Nuclear non-proliferation treaty, and daring to develop missiles that can carry nuclear warheads to the American mainland. China has to be punished for trying to extend its control over the South China Sea in violation of the 12-mile limit enshrined in the UN Convention on the Law of the Sea.Iran has to be punished for just being Iran.

Economic sanctions have been imposed on Russia, and further strengthened on North Korea. Trump is threatening to resile from the nuclear treaty with Iran and not lift the UN sanctions that the US and EU are committed to removing. And he has imposed tariffs on imports, mainly aimed at China, that are on the brink of triggering a trade war.

A joint American, Japanese and, regrettably, Indian naval task force has steamed through the length and breadth of the South China Sea for months to enforce the freedom of militarynavigation outside the 12-mile limit.

Trump has threatened to obliterate North Korea and sent a submarine, followed by an American task force armed with thousands of Tomahawk missiles to underline his threat.

Britain’s shaky Prime Minister Theresa May has not only expelled scores of Russians from the UKin retaliation for the killing of Skripal (which she has a sovereign right to do) but invoked the treaty obligations imposed by NATO upon its members to persuade them to do the same.

It was a similar invocation of treaty obligations that made Russia back Serbia, Germany back Austria, and Britain and France back Russia and Serbia in 1914, and start a war that none of them wanted, but killed nearly 20 million people and ended monarchical rule in Europe. Russia’s warning to Britain, and by implication NATO, not to ‘play with fire’ is therefore a reminder not to repeat the mistakes of history.

It is into this maelstrom that Trump has dropped Bolton, a self-avowed apostle of war.

https://thewire.in/world/bolton-national-security-advisor-donald-trump

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NEW DELHI: Tarun Tejpal, the founder-editor of Tehelka, has been charged with “sexual harassment, physical contact, advances involving unwelcome and explicit sexual overtures, rape, rape by a person of a woman in his custody taking advantage of his official position,wrongful restraint and wrongful confinement”. These charges have yet to be proved, but Tejpal has already spent 80 days in jail. He has done so because despite his surrender of his passport and willing cooperation with the police, he has been denied first anticipatory bail, and then bail.

Instead, the Goa magistrate’s court sent him to police and then judicial custody, routinely extended the latter every ten to 12 days and finally rejected his bail petition on January 21 on the sole, unsubstantiated accusation of the investigation officer that he had tried to intimidate her.

Tejpal is by no means the first victim of this gross abuse. In 2000 AD following operation West End, the sting operation conducted by Tehelka, that caught BJP leaders taking bribes from soi-disant arms dealers, the NDA government launched an all-out attack on the magazine—then an e-journal. Among those whom it arrested on trumped up charges of insider trading and share price manipulation was Shankar Sharma, the founder and head of First Global, one of the most dynamic of the new generation of financial companies that was coming up in Mumbai. His crime was that he owned 13 percent of the original share capital of Tehelka.

Sharma too spent three months ‘in judicial custody’ in Tihar jail before being released without any charges being filed against him. During the years of harassment that followed the police raided First Global’s offices 25 times. SEBI forced it to close, destroyed its client and revenue base, and cost its 216 employees their jobs at the height of the 1997 – 2003 recession.

The NDA government’s attack on Tehelka was even more relentless. In 2000, having been caught with its pants down, it did not arrest Tejpal. Instead it embarked upon a slow strangulation of Tehelka that had, by the time the government fell, reduced its staff from 105 to 15, and left Tejpal personally in debt to the tune of a crore of rupee. Even that did not slake the then government’s thirst for vengeance. When, under immense media and public pressure, it set up the Venkataswami commission to investigate the bribery tapes, it included a clause in the terms of reference – ‘term D’ – that required the commission to look into “all aspects relating to the making and publication of these allegations.”

Only the veteran lawyer and columnist A.G Noorani noticed the enormity of its implications for press freedom: “Never in the half-century of the Commission of Inquiry Act 1952” he wrote, “has anybody been asked to probe the credentials of those who made the charge”.“If this move is allowed to pass muster the press will effectively be muzzled. Anytime it publishes an exposé, the government will retaliate by setting up inquiries not only into the truth of the charges, but also into the motives, finances and sources of the journal which publishes them.”

It is against this background of vendetta that the Goa government’s treatment of Tejpal needs to be examined. It is important to remember that the alleged victim did not register an FIR with the Goa police. What she asked for, in not one but two emails to the managing editor Shoma Chaudhuri, was an apology and ‘closure’ of the incident. It was the BJP government of Goa that decided to register an FIR suo moto.

The charge it levelled against him was not of sexual harassment; not of sexual molestation; not even of sexual assault, but of the terribly violent act of Rape. It was able to do so because parliament had changed the heading of “sexual assault”, given to the amendment bill to cover its widened definition of sexual crimes, with the word ‘rape’. This highly emotive word provided the Goa government, and the BJP’s leaders in Delhi, with a convenient mantle of concern for women’s rights and security, under which to re-launch its vendetta against Tejpal.

The timeline of the BJP’s statements and actions, both in Delhi and Goa, exposes the virulence of its campaign. On November 21 when Tarun Tejpal’s apology, and his resignation from Tehelka for six months, first hit the press the Goa Chief Minister, Manohar Parriker, said “ Progress of the inquiry will depend on whether the complainant registers a complaint. Because it is a body offence, the complainant has to have a role. Unless I have a complaint, I cannot prove guilt.”

But it took him only 24 hours to turn turtle: at 2.20 PM on November 22 he told Times Now that ‘a crime was a crime’ and that he had instructed the police to go after the culprit. Three hours later he told the same channel that Tejpal was the culprit. Three days later, on November 25, he made a remark to NDTV that was not only biased but vulgar: “Someone told me that this man (Tarun Tejpal) is saying that it is consensual. I wonder what he must have done within four minutes and that too in a lift.” Two days later he accused Tejpal publicly of being a “ Congress Stooge”. So much for the BJP’s impartiality and objectivity!

What made him turn turtle? The answer is a Facebook posting by Arun Jaitley on November 21. Jaitley not only pointed out that Tejpal could be accused of rape under the amended law, but that managing editor Shoma Chaudhuri could be charged with abetment, pressurising Tehelka journalists and tampering with evidence. He thus laid out all the grounds for the Goa government’s change of heart and the denial of bail that followed. In the next seven days a host of BJP leaders made 19 statements demanding punishment for Tejpal and/or Chaudhuri. In Delhi a BJP MLA led a mob that defaced Chaudhuri’s house and car.

But these public attacks tell only half the story. For behind the smokescreen they have created, the Goa police has also refused to present at the bail hearings evidence in their possession that could have mitigated the accusation of rape and inclined the magistrate towards granting bail. Among the many grounds presented by his lawyers but ignored by the judge, two stand out. The most important is that the CCTV tapes of the Hotel show that Tejpal and ‘the victim’ were in the elevator on the evening of the alleged molestation not for four minutes but two minutes and nine seconds. The second is that the “victim’s’’ accusation that Tejpal’s family visited, and threatened, her and her mother is an outright falsehood. For an email she sent the same evening shows that the visitor was her erstwhile closest friend, Tejpal’s daughter Tiya. The email thanked Tiya for her visit, but it took her only another 12 hours to change her story and claim intimidation. One can only wonder why.

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A year ago, a judge of the supreme court issued a quiet warning, in the author’s hearing, that making the new rape law too stringent could defeat its purpose by making conviction even more difficult to obtain than it already is. Data published in the Times of India in February, recording a decline in the rate of conviction in rape cases in 2013 have begun to vindicate his foreboding. The case of rape lodged by the Goa police against Tarun Tejpal. The founder-editor of Tehelka, will be the first to be prosecuted under the new law on rape. Since it will set judicial precedents that will bind judges in similar cases in the future,it is imperative that lawyers, judges and policy makers subject its application to the strictest possible scrutiny.

Two sets of issues are raised by the way it has been framed and handled so far. The first is the conformity of the law with the principles of natural justice. More specifically it raises three questions: is it justified to club everything from an indecent sexual proposal to the forcible violation of a woman’s most private self under the single, frighteningly emotive rubric of ‘rape’? Can a defendant be allowed to unknowingly incriminate himself? And can a defendant be tried twice for the same crime?

The second is the conformity of the investigative procedure to the principles of fairness and equity. More specifically, do the police and the courts treat the defendant as innocent until proven guilty, even when the burden of proof rests upon him? Do they therefore respect his right of habeas corpus and seek to deny these to him only in exceptional circumstances? Do they adhere to the principle of full disclosure when they gather evidence, or do concealment and surprise become weapons for obtaining a conviction? How the courts ensure that these principles – of justice, equity and fairness – are safeguarded will determine the shape of Indian justice for years to come.

Treating unwelcome verbal and physical sexual advance on an equal footing with the brutal act of rape can only happen when the law makers do not have a feel for the language in which they work. The difference this can make was highlighted 22 years ago during the confirmation hearings of current US Supreme Court Judge, Clarence Thomas, who was accused by a junior lawyer in his chambers, Anita Hill, of making frequent offensive, and sexually loaded remarks to her. Thomas was publicly humiliated, and came within a hair of being rejected, but even his most determined opponents did not suggest that what he had done to Anita Hill could be described as rape.

As for the issue of self-incrimination, it is obvious from the tit-bits the Goa police has released to the media that the prosecution’s case relies almost entirely on Tarun Tejpal’s letter of apology to the ‘victim’. That letter was neither a deposition nor a confession, but was a private correspondence between him and her. It was not written or signed before the police, let alone recorded by a magistrate. Is it even admissible in court? Can any self respecting system of justice allow a defendant to incriminate himself for herself? These questions need to be asked because, while the details of the law differ from country to country, the repugnance to self-incrimination is universal wherever the Rule of Law prevails. Self-incrimination, except in the form of a properly recorded confession, is expressly forbidden in the US under the Miranda Act which requires courts to throw out any statement from a defendant that has not been prefaced by an explicit warning that anything the defendant says can, and will, be used in a court of law.

The third question, whether a man (or woman) can be tried twice for the same offence, arises because the ‘victim’ did not seek redress in court. Instead she chose to do so through an in-house process in which she appealed to the managing editor, Shoma Chaudhuri, to be the judge. Chaudhuri heard both sides, took a decision in favour of the plaintiff and awarded a punishment to Tejpal that she felt was appropriate to the crime. Tejpal’s public apology and the humiliation he suffered, was part of the punishment. The victim was within her rights to consider the punishment too light, and to say so in as many words. But, as her emails clearly show, she also stated that she wanted a ‘closure’ of the issue through the in-house process that she had set in motion.

In rebuttal it can be pointed out that all countries allow a defendant to be tried for the same offence twice, once under civil and a second time under criminal law. In Tejpal’s case it can be argued that the in-house procedure was a civil one, while the case launched by the Goa police is a criminal one. But it can as easily be argued that the offence he is charged with is criminal and not civil. Describing sexual molestation as a civil offence because it was not adjudicated in a court and not prosecuted by the police is stretching the definition of ‘civil’ way too far.

The new law has yet another disturbing feature: It allows the publication of the name and alleged misdeeds of the defendant but forbids disclosure of the name and antecedents of the plaintiff. While the guarantee of anonymity is intended to give women the courage to speak out, as the decline in rape convictions last year shows it may also have bred a degree of irresponsibility.

This asymmetry also creates a presumption of guilt that not only allows the prosecution to create bias through the media but also take liberties with investigative procedure that would not have been in a case where the defendant is presumed to be innocent until proven guilty and can advance his or her version of events through the media too. The Goa police and magistrates’ handling of Tejpal is a case in point. The Goa police denied Tejpal bail repeatedly on the plea that it needed time to collect evidence. But the charge-sheet shows that the two key pieces of evidence upon which its case is built – Tejpal’s letter of apology and the CCTV film from the hotel, have been with it from the first day of the investigation.

The police also claimed that Tejpal had to be kept away from witnesses because a member of his family had already tried to intimidate the victim and her mother. But Tejpal’s lawyers claim that even if the Goa police accepted this allegation when it was first made by the ‘victim’, it soon found out that it was false because on the evening of the alleged intimidatory visit the ‘victim’ had sent an email to Tejpal’s daughter, her close friend at that point in time, thanking her for visiting her and her mother earlier on the same day.

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