THE lower house of the Indian parliament, unanimously adopted a resolution on April 8, deploring the US-led war on Iraq and seeking immediate cessation of hostilities and withdrawal of coalition forces. The opposition had sought to use the word “condemn” instead of “deplore”, but a compromise was struck to make the resolution unanimous. This action was taken more than two weeks after an official statement by Islamabad, also deploring the attack. Presumably, Indian legislators felt that they could not afford to miss out on a moral stance, given the world-wide outrage over this war which even the UN secretary-general called illegal.

The real face of the BJP-led government has been seen in the pronouncements of Foreign Minister Yashwant Sinha, who first sought to justify similar pre-emptive action by India against Pakistan. In a newspaper interview on April 2, he declared that India “will do whatever it takes” to fight Pakistan-sponsored terrorism in Kashmir, including possible “pre-emptive operations”. When the spokesman of the US State Department officially stated that there was no parallel between the situations in Iraq and Kashmir, Mr Sinha came up with the suggestion that the US must consider intervening militarily in Pakistan since it fulfilled all the conditions in Iraq, including involvement in terrorism, and possession of weapons of mass destruction. This time the notion was countered at the level of Secretary of State Colin Powell.

Mr Sinha had the image of a moderate when he was finance minister, but as foreign minister, he has clearly sought to ingratiate himself with the dominant BJP faction, headed by Deputy Prime Minister L K Advani. His attempts to justify pre-emption against Pakistan by India or the US speak of moves to capitalize on the situation created by the US-led attack on Iraq. The BJP has found it electorally rewarding to stir up hate against the Muslims within India and against Pakistan among the neighbours.

With elections in 11 states in the offing, the BJP is trying a strategy of demonizing both Muslims and Pakistan as a vote catcher. This strategy had succeeded in winning the party a two-thirds majority in Gujrat assembly but it did not work subsequently in Himachal Pradesh where the BJP lost power to the Congress party. Clearly, the Advani crowd is staking its future on fostering hate towards Muslims in a manner that has aroused a critical reaction among responsible Indian leaders. Former Prime Ministers V P Singh and I K Gujral have expressed concern that the ruling party is creating further obstacles to a lessening of tensions in South Asia, whereas the need of the hour is to resume dialogue to resolve differences peacefully.

Despite its well-known ambitions about a hegemonic role in the Indian Ocean region, this hate strategy reflects an approach that is unmindful of the fact that half the Indian Ocean littoral states happen to be Muslim. Nor do the champions of Hindutva realize that maintaining a credible secular image is regarded as being central to holding together this multi-ethnic, multi-religious country of over a billion inhabitants.

The unilateralist strategy of the Bush administration suits the BJP government, which also believes in the exercise of power rather than principles in the conduct of diplomacy. India, it may be recalled, was the first country to welcome the ballistic missile defence initiative, launched in May 2001 by President Bush. The events of 9/11 were seen by the BJP government as providing an opportunity to crush the Kashmiri liberation struggle by dubbing it a terrorist movement. Washington has sought to establish a strategic partnership with India, both in its anti-terrorist campaign and its long-term goal of containing China.

With Israel exercising a decisive influence on Washington, New Delhi has also developed a nexus with Ariel Sharon’s regime that is engaged in genocidal repression of the Palestinians. India has felt emboldened to step up its repression and brutality in Kashmir after achieving a certain amount of success in presenting the Kashmir freedom movement as being backed by terrorists from across the border.

So long as the Kashmiri struggle continues and small bands of supporters keep crossing the LoC, which even 700,000 Indian troops deployed in Kashmir cannot prevent, New Delhi will keep accusing Pakistan of promoting “cross-border terrorism”. However, the BJP government has not succeeded in getting Pakistan declared as a terrorist state. It is plain to any unbiased observer that Pakistan’s front-line role in countering terrorism is not tailored to any external agenda, and that the country itself has a terrorism problem of its own.

While India is set on rejecting Pakistan’s repeated offers of dialogue that could reduce tensions, the rest of the world in general, and the major powers in particular are not comfortable with the confrontation prevailing in South Asia. US Secretary of State Colin Powell stated, soon after the attack on Iraq, that the US would continue to give high priority to the solution of the problems between India and Pakistan. The tension is responsible diversion of resources needed for fighting poverty to armaments. The nuclear weapons possessed by the two has turned the region into a nuclear flashpoint. With the conflict in Iraq creating new tensions in the Middle East, the US is keen to present itself as a peacemaker and as a force for peace and stability.

While New Delhi keeps breathing fire, Pakistan has remained steadfast in seeking the resumption of the dialogue started at Agra in 2001. President Musharraf has never wavered in his stand that normal relations between India and Pakistan, that could make a vital difference to their future, would be possible only after they have worked out a settlement of the Kashmir issue. To pave the way for it, he believes the two sides must accept that a solution cannot be found through confrontation and conflict but has to be sought through dialogue.

Secondly, a plebiscite for ascertaining the wishes of the Kashmiris to which India objects might be set aside, provides India abjures the idea of Kashmir being its “integral” part which is unacceptable to Pakistan. Thirdly, negotiations can start on other issues concerning which the two countries can show flexibility.

Pakistan also believes that once the dialogue resumes, and the eight-point agenda already agreed in 1997 between the two countries is taken up, the two countries can make progress on many significant issues. These include the proposed oil and gas pipelines from Iran to India through Pakistan, bilateral trade and resumption of communication links that were shut off by India in December 2001.

The deadlock in relations between the two countries is often ascribed to Pakistan’s failure to stop “cross-border terrorism”. Pakistan insists that it is keeping the pledge made by President Musharraf on January 12 last year and that what India calls “cross-border terrorism” is in fact the continuation of the militant struggle launched by the Kashmiri people in 1989, in the course of which they have made great sacrifices. A suggestion has been made repeatedly that India should agree to a considerable increase in the number of UN observers along the LoC to monitor movement across the line. India refuses to consider the idea, since it wants to keep any mediatory or facilitating role for the UN or any other third party out of Kashmir.

The threats of pre-emption made by Foreign Minister Yashwant Sinha not only attracted rejoinders by the US; leaders of China, France and Britain have also reacted with a sense of concern and urged that the differences between India and Pakistan be resolved by peaceful means. As the situation in the Gulf improves, Mr. Colin Powell has reaffirmed the commitment of the US to remain engaged with both India and Pakistan, with a view to facilitating peaceful negotiations. One hopes that the BJP ideologues would pay heed to the urgings by world leaders as well as responsible circles within India in favour of a positive approach to the solution of bilateral problems.

The writer is a former ambassador.

LAST week Baghdad fell. It signalled the end of the aerial attacks which devastated Iraqi cities in the three weeks of ‘Operation Iraqi Freedom’. The day of the fall of the Iraqi capital was a sad day for the Arab world, the Third World and the activists of the global peace movement. Another form of war has now begun — the one that follows on the heels of a military victory. That is the battle the conquerors have to wage to win the hearts and minds of the vanquished.

The end was not unexpected. Given the tilted balance of military power between the two, the rout of Saddam Hussein’s Iraq had been a foregone conclusion even before the so-called coalition forces launched their massive assault on March 20.

Neither was the world exactly taken aback by the devastation wrought by the heavy and indiscriminate coalition bombing (supposedly precision-guided) — graphically televised by the electronic media networks. The civilian casualties did not come as a surprise either. The world had already braced itself for all this devastation, the United States being known to be a ruthless adversary — remember Hiroshima and Nagasaki which gave America the dubious distinction of being the only country in the world to have used nuclear weapons in a war.

What has sent shock waves around the world is the pillage, arson and anarchy which broke out in Baghdad on Wednesday when the city fell. Robert Fisk of the Independent called it “the day of the looter”. Its graphic presentation on television left viewers aghast.

Some Iraqi elements appeared to have gone berserk and on a rampage once they realized that the oppressive controls of a tyrannical regime had broken down. They seem to have lost all restraint and control themselves, and found the sudden surge of a sense of freedom and power which they felt in the absence of an administrative authority too overpowering to cope with.

With the government machinery having collapsed, a power vacuum developed rapidly, leading to hordes of looters and plunderers pouncing on state property, foreign missions and the homes of the rich and the famous. Pillaging has taken place in all societies at a time of administrative paralysis or collapse. Dr Haroon Ahmed, a leading psychiatrist, explains it as a psychological condition which gives a ‘kick’ (a temporary feeling of excitement) to a person who suddenly finds himself released from the constraints of law or self-discipline. It is not so much the acquisition of material goods that the looter seeks, as the symbolism of being above the law or norms that satisfies his psychological urge.

With the gap between the empowered and the disadvantaged — not so much in terms of wealth as political privileges — having widened outrageously, the resentment many felt against the upper echelons was understandable. The looters in Baghdad therefore targeted the political elites who were closely identified with the Baathist rulers and were held responsible for the tyranny and deprivations on the masses in the last two decades. The pillage was in that sense an act of political vendetta — the common man’s version of settling scores. It was a case of hitting out at the symbols of power rather than trying to accumulate wealth while the going was good, though many must have benefited materially too.

But how does one explain the destruction of museums and the vandalizing of their national assets by a people suddenly freed of all controls — external as well an internal. Although said to be worth billions of dollars, the distinctive clay tablets at Baghdad’s National Museum of Antiquities, which recorded the world’s first written words, may not really fetch the petty thieves much of a price. Many of the artefacts were breakable and might not have even survived the rough and tumble that accompanied the plunder.

And what about the looters who entered hospitals where the wounded were being treated by an overworked medical staff which has to make do with appalling and limited facilities and an acute paucity of medical supplies?

Even if years of repression by a tyrannical regime, the ‘murderous’ sanctions system imposed by the UN since 1990 and the ravages of wars — the latest being the most horrendous — have reduced ordinary men, women and children to a nihilist state, it does not really answer the question why the looters were given a free rein.

After all, the forces of occupation — or liberation as they prefer to describe themselves — did not move a finger when some action on their part could have prevented a lot of it and helped maintain a modicum of order. And it was their duty to do so. Fisk points out that pillage merits a specific prevention clause in the Geneva Conventions, just as it did in the 1907 Hague Convention on which the Geneva delegates based their “rules of war”.

Why was the looting and lawlessness not anticipated? In fact, one wonders if it was a simple case of apathy on the part of the Americans as is being made out or a deliberate hands-off policy designed to encourage this collective act of loot and plunder. Or was this the invading army’s idea of punishing the Iraqis? Let them destroy their own cultural heritage. Thus the Americans will not be blamed. But they forgot that the torrent of avarice and greed sweeps all without distinction when the floodgates are opened. Suzanne Goldenberg of The Guardian was witness to US soldiers stealing ashtrays from Saddam Hussein’s palce on the west bank of the Tigris.

Al Hayat al Jadidah, which is published from Palestine, pointed out: “The liberation of Iraq US-style is a scene of death, killings, destruction and looting... No place was spared except the ministry of energy and petroleum, and this has been the US strategy.”

It is evident that the Americans were, as a matter of deliberate policy, slow in assuming control. They allowed a power vacuum to develop. Their calculation could have been that sooner than later the people would get weary of anarchy and disorder. They would then welcome the Americans and turn to them for relief. It is human nature to seek peace and stability in one’s environment. A perpetual state of turmoil is damaging for the human psyche. Not surprisingly, after three weeks of bombing and three days of breakdown of law and order, the Iraqis were ready for an American imposed peace and public order.

Since the oil resources are precious to the Americans, they have been particularly careful about protecting the ministry of energy in Baghdad and the oil wells in the north. In fact, it has been announced that within a matter of weeks the pumping of Iraqi oil will be resumed.

The Iraqis will now have to pay the price of their ‘liberation’. Their ‘liberators’ can hardly be expected to relinquish control over the administration of the country they have ‘liberated’ and let the initiative pass on to the United Nations. But it is also plain that the Americans will not succeed easily in achieving their war aims. The political, economic and social disintegration of the country, along with the damage done to its physical infrastructure, has made the task of the reconstruction of Iraq a daunting task. Recovery is not likely to come easily in the foreseeable future, the billions of dollars promised for reconstruction notwithstanding.

The crisis will be compounded by the fact that the delicate political balance which held this heterogeneous country together has been destroyed. In the absence of this balancing mechanism the multifarious ethnic, sectarian and economic make-up of Iraq will become a source of instability and turmoil. Will it be possible to exploit the Iraqi oil resources in a politically volatile ambience marked by tensions and antagonism between regional, ethnic and other conflicting interests.

War crimes are always perpetrated by the loser in war. Though both sides may commit crimes, the victors have always been able to turn might into right, ignoring their own violations and penalising their enemy. At Nuremberg in 1945, the western states knew that their bombing of German cities could pose awkward questions and they quietly dropped their charges against the Luftwaffe; the democracies sat side-by-side with the Soviet Union, which many people argued at the time could itself be regarded as guilty on several of the same counts for which German leaders were indicted.

Should Saddam Hussein be caught alive, he will be made to account for years of crimes against humanity, if he is not murdered first by trigger-happy US forces. Western consciences will have no problems about arraigning Saddam and his henchmen. They will be expected to pay the way Hitler and his gang were expected to pay in 1945, though it is worth remembering that until a trial was finally agreed on in May 1945, Churchill preferred the idea that Nazi leaders should be shot on the spot once they were captured. Saddam might join Milosevic at the Hague, as a warning to tyrants worldwide that a grim justice awaits them.

But this time the situation is different. The legal position is anything but clear-cut. A good deal of informed opinion worldwide regards the Anglo-American invasion and conquest of Iraq as an illegal act of aggression, in the course of which it is coalition forces that have perpetrated numerous war crimes while pulverising Iraqi resistance. The Nuremberg precedent might be invoked to argue that committing crimes in order to overcome tyranny is legally permissible, but there is an awkward contrast with the treatment of German war crime in 1945: now it is the US and Britain that many believe have waged a war of aggression.

It is not difficult to imagine how the case for the prosecution against the coalition might be constructed. An indictment would have three main elements. In the first place, Britain and the US have waged an illegal war, without the sanction of a UN resolution (in itself of dubious legality when it comes to a war launched in violation of the UN charter and fought on this scale). Any argument that Saddam’s failure to disarm fast enough justified the invasion of his state, the destruction of Iraq’s major cities and the killing of thousands of Iraqis fails on the legal concept of proportionality. In British law, a householder may not cut an intruder to shreds with an axe on suspicion of burglary; if he does so, he becomes the object of prosecution. The suspected — but as yet unproven — violations of disarmament resolutions should not justify in international law the massive destruction and dislocation of the entire Iraqi state.

Ironically, the one instrument the Allies could find in 1945 to explain that Hitler’s wars were illegal was the Kellogg-Briand pact, signed in Paris in 1928 at the behest of the then American secretary of state. The pact had outlawed war as an instrument of policy for all the signatory powers, including Britain and the US, but its precise status in international law was open to dispute. At Nuremberg, the American chief prosecutor, Justice Jackson, insisted on using it as the foundation for the whole case against Hitler. It could still be the foundation of the case against British and American belligerence.

The second and third elements of any prosecution derive not only from the initial presumption that the coalition has waged an illegal war. As at Nuremberg, the subsequent killing of civilians and mistreatment of prisoners in a war of aggression also constitute war crimes in their own right. No legal niceties are needed to see that the American and British killing of thousands of Iraqi civilians could be approached in this way. The mistreatment of Iraqi prisoners of war dwarfs the brief appearance of US servicemen on Iraqi television. Pictures of stripped and bound prisoners have already been released. The camps constructed early in the campaign were closed to the Red Cross in defiance of the Geneva convention. If prisoners are subsequently taken to the US and subjected to the same treatment as the Afghan soldiers held at Guantanamo Bay, this too would be a violation of international law.

The sad truth is that prosecution has always been a function of power. No one seriously believes that Bush and Blair will be indicted. International law works only against weaker states. Big powers have an unmerited, but unassailable, immunity. Even if anyone were brave or rash enough to try to indict coalition leaders, the US has refused to ratify the statute establishing the international criminal court, which came into force on July 2 2002.

The court has been set up to deal with gross violations of international law and human rights. Technically it can prosecute state nationals from states that have not subscribed to the statute. But the view has been widely held that the US refused to join because it wanted to be able to dish out its own justice. The American declaration that it intends to take prisoners back to the US for trial opens up the prospect that there will be one law for the criminal court, if Britain were ever to be indicted, and one for America. The absence of a commonly agreed jurisdiction could invalidate the whole enterprise and confirm the fact already evident that political power, not justice, will determine the future.

The operation of double standards has been evident throughout the campaign. What the coalition does with impunity is hailed as a war crime when it is committed by Iraqis. The image of crude American gun law, evident in the efforts to kill Saddam, has been justified by American international lawyers. In the unlikely eventuality that either Bush or Blair are blown up or shot, there would be outrage. Yet, on any reckoning, it should be entirely legal, if it is legal to murder Saddam. The coalition cannot have it both ways.

There is no prospect that Bush and Blair will be sharing a cell with Saddam at the Hague. The death and destruction meted out in their name will have to lodge instead in their consciences. For the rest of the world, the prospect is an unattractive one. The appearance of lawlessness, promoted by those very states which should be among the first to demonstrate their commitment to international standards, will provoke further lawlessness, first in Iraq, then perhaps throughout the Middle East.

In international affairs, lawless behaviour is unaccountable, which is why at Nuremberg efforts were made to find some measure by which such things could be brought to account. There is now no means through which the international community can restrain American power, nor its pale British shadow. The last three weeks of coalition violence have destroyed 60 years of patient international collaboration to build a sound framework for the conduct of affairs between states. Justice Jackson must be turning in his grave. —Dawn/Guardian Service