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Modi, the U.S., and visa power
By Siddharth Varadarajan
THE DENIAL of a U.S. visa to Gujarat Chief Minister Narendra Modi has evoked a predictably strong reaction from the Bharatiya Janata Party, less strident objections from the Congress party and a formal, diplomatically correct protest from the government of India, whose note verbale requesting a visa went unheeded.
For Mr. Modi, who identified closely with many of the policies of the Bush administration, the visa denial is a particularly cruel blow. After all, the United States was perhaps the only major (or minor) country in the `West’ not to express its concerns about the Gujarat violence while it was going on. Even tiny Finland saw fit to raise its voice, inviting a stinging rebuke from the External Affairs Ministry, but not Washington.
The BJP says the visa rejection has hurt India’s national pride but this does not appear to be a perception that is shared widely by Indians, who see the saffron party’s appeals to swabhimaan (self-respect) and constitutionalism as largely self-serving. There is no Constitution in the world that requires a country to grant foreign nationals a visa to enter its territory; on the other hand, every Constitution, India’s included, obliges governments to investigate and punish individuals involved in large-scale violence against its citizens.
Investigations by the National Human Rights Commission, the CBI (in the Bilkis Bano case), and scores of non-governmental bodies have documented numerous acts of omission and commission, suggesting official connivance with the perpetrators of the violence. Even if one accepts the argument that Mr. Modi knew nothing at all about the manner in which more than 2,000 Muslims were targeted and killed across his State in the weeks following the Godhra incident of 2002, his failure to investigate these crimes and punish the guilty is manifest. No less a judicial authority than the Supreme Court of India has pointed this out.
All countries exercise their right to issue visas (and even passports) keeping in mind their own definition or perception of national interest. Thus, the National Democratic Alliance Government tightened the procedure for granting foreign scholars visas to attend conferences on “political” subjects or conduct research on “sensitive” topics or areas. More recently, a Dutch professor and expert on Assam and the Northeast had his application for an Indian visa rejected.
Foreign governments can protest, concerned Indians can criticise their Government’s pig-headedness and agitate for a more liberal approach, and the courts may intervene but that is unfortunately the way the law works.
In the United States, perhaps more than any other country, visas have always been used as a foreign policy tool. During the Cold War, membership in a Communist party or allied organisation was grounds for a visa rejection, as was former membership of the Nazi party. Over the years, hundreds of dissident or progressive intellectuals and artistes were denied U.S. visas because of their Leftist views (and this continues to happen on a slightly diminished scale even now). In practice, being a Nazi was much less of a disqualification — since the U.S. was interested in recruiting German rocket and nuclear scientists and intelligence assets — but that issue need not detain us here.
Ever since the end of the Cold War, the U.S. has started rejecting visas on the grounds of involvement in corruption, torture and human rights abuses, and violations of religious freedom. These restrictions have developed in tandem with the growing tendency to consider gross violations of human rights as transgressions of international law and international humanitarian law. However, unlike the attempt to prosecute offenders in jurisdictions other than that of their own countries — for example the well-known case against former Chilean dictator Augusto Pinochet in a Spanish court — the denial of visas per se does not represent the extra-territoriality of law enforcement.
Prominent U.S. visa rejects in recent years include Lt. Gen. Prabowo Subianto, the son-in-law of former Indonesian President Suharto, who was denied a visa in 2000 on the grounds of being suspected of involvement in torture, former Philippine President Joseph Estrada, who was denied a U.S. visa for medical treatment ostensibly because Washington said it could not “guarantee his security,” and two senior Yugoslav parliamentary officials — Srdja Bozovic, who was president of the Chamber of Republics, and Ljubisa Ristic, president of parliament’s foreign policy committee — because their names figured on a list of “regime associates” of Slobodan Milosevic.
For many years, the U.S. has informally used the existence of corruption charges against public officials as a reason to deny a visa. Last year, for example, Gregory Surkis, a Ukrainian MP and close ally of then Ukrainian Prime Minister Viktor Yanukovych, was denied a U.S. visa for allegedly interfering with his country’s electoral process. The then Ukrainian Interior Minister Mykola Bilokon was put on a visa watch list with the presumption of denial in case he ever applied. In 1996, Ernesto Samper’s U.S. visa was revoked when he was Colombia’s President.
On January 12, 2005, President George W. Bush formally issued a proclamation amending section 212 of the U.S. Immigration and Nationality Act to “suspend” entry into the U.S. of public officials “whose solicitation or acceptance of any article of monetary value, or other benefit, in exchange for any act or omission in the performance of their public functions has or had serious adverse effects on the national interests of the United States.” The new rule has already been invoked against Panamanian and Kenyan officials and elected representatives.
There is no denying the subjective, arbitrary and ultimately political nature of these provisions. For every alleged money-launderer, corrupt official, violator of religious freedom or torturer kept out, hundreds of others have had no problem getting a U.S. visa. Indeed, double standards have been explicitly written into the law: Section 2 of Mr. Bush’s January 12 proclamation says the visa ban “shall not apply with respect to any person otherwise covered by (the ban) where entry of the person into the United States would not be contrary to the interests of the U.S.” And this determination is at the sole discretion of the Secretary of State.
But if Mr. Modi today cries that he is a victim of double standards, BJP leaders have also benefited from these double standards in the past. When the human rights of Muslim Gujaratis were being violated on a large-scale in 2002, for example, the U.S. preferred to keep its counsel. Had 2,000 Bahais been killed in Iran or Christians in Indonesia or Malaysia, there would have been howls of protest from Washington.
But those were the days of great bonhomie between the BJP leadership and the Bush administration and Washington perhaps did not want to bring up an issue that might come in the way of the strategic realignment it was trying to engineer in Indian foreign policy. L.K. Advani, who travelled to the U.S. as Deputy Prime Minister in June 2003 and promised Indian soldiers as cannon fodder for the U.S. occupation of Iraq, had no trouble getting a visa despite being formally charge-sheeted in a major case involving religious discrimination — the demolition of the Babri Masjid.
Even as he leads the rally for Mr. Modi’s right to accumulate frequent-flyer miles, Mr. Advani should ask why it was in U.S. national interest to give him a visa in 2003 and why it is not in U.S. national interest to let the Gujarat Chief Minister in today. My own guess is that given the defeat of the BJP-led NDA at the Centre, Washington can now afford to pay heed to its own domestic lobbies — including the patriotic Indian-American community — that believe that Indian officials suspected of involvement in mass violence should not be allowed to travel to the U.S. Simply put, denying a visa to Mr. Modi is a relatively low-cost political decision.
For all those concerned about U.S. double standards, the Modi visa affair throws up a number of challenges. Denying a visa to one alleged violator of religious freedom but granting it to another is a matter of domestic U.S. policy that public opinion in the United States will have to take up. But if the BJP is serious, it cannot cherry-pick which instances of double standards it will oppose. When the party was in power, it endorsed the underlying discourse of hegemonic arbitrariness (whereby, for example, some countries get designated as `terrorist sponsors’), applauded the growing extra-territorial reach of the U.S. and sought closely to align India with the projection of Washington’s military might.
Today, BJP leaders are referring to the Iraq invasion and Abu Ghraib. If they are serious, let them declare that senior U.S. officials whose memos created the legal cover under which Iraqi prisoners were tortured (including the Attorney-General and Defence Secretary) should not be given visas to visit India. I don’t think any right-thinking Indian would oppose such a demand.
It is a well-established principle in international law that sovereignty does not provide an inviolable shield behind which gross violations of human rights can be committed. Countries that are powerful (such as Israel or indeed the U.S. itself) can get away with murder, but others cannot. Smaller states can buy impunity by aligning themselves with the U.S. but as and when contradictions emerge, that impunity can rapidly melt away. For India, a fitting answer to the insult Mr. Modi has brought upon the country in having his U.S. visa revoked is to put in place legal systems that deliver quick and impartial justice in all instances of mass violence like Delhi 1984 and Gujarat 2002. That is the only way to guarantee we never again find ourselves in the embarrassing position of having high officials and functionaries accused of abetting mass murder.
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