TORTURE: ASIAN AND GLOBAL PERSPECTIVES | JUNE 2014
VOLUME 03 NUMBER 03


PAPER: INDIA AND DENMARK

The relationship with its neighbours has not always been based on equality, non-interference, peace, and understanding all the time. I will not dwell with the fact the Indian intervention in Pakistan, which led to the formation of Bangladesh. But India has been asserting its power regionally and involved itself in other of its neighbouring states like Sri Lanka, and Nepal, at times with disastrous negative consequences for India itself.


by JAN OLE HAAGENSEN[1]

1. INTRODUCTION

DURING the summer of 2013, the Danish Foreign Policy Yearbook 2013 was launched. According to the flyer, the publication is about Danish foreign policy and the role of Denmark internationally[2]. Besides the reproduction of speeches of relevant ministers, the highest public official in the Foreign Ministry, the Permanent Secretary, has provided an outline of the Danish foreign policy in 2012. It is one of the most important formal publications on Danish foreign policy.

For about three decades the struggle against torture has been a central issue in Danish foreign policy[3]. As former Director of the International Department of DIGNITY: Danish Institute Against Torture, I had a professional interest in the publication. Upon reading the flyer, my interest rose when noticing that Professor Ravinder Kaur from University of Copenhagen had a contribution stated to be “the first academic study of the causes to the Danish-Indo diplomatic deadlock after the Niels Holck case” (my translation), because DIGNITY, for obvious reasons, had a keen interest in the case. It involved Danish authorities wanted to extradite a person, Niels Holck, accused of terror to India. He had allegedly undertaken the action in India where he could face a criminal trial and where he could be at risk of torture. Niels Holck challenged the extradition in court[4].

Two Danish courts, the Low Court in Hillerød and the Eastern High Court respectively, decided that Holck could not be extradited, as he would risk being tortured and suffer from inhuman prison conditions. After two similar verdicts, the Danish prosecutor, according to Danish legal practice, opted not to appeal to the Supreme Court. The verdicts and the decision not to appeal angered the Indian Government, as a person accused of terrorism in India could not be prosecuted. Thereby, Denmark could be seen as undermining the so-called war against terror. As a consequence, India froze diplomatic relations with Denmark. India halted direct co-operation with Denmark, by avoiding official functions involving Danish representatives[5], by making it much more difficult for Danish business people and tourists go to India, and by de facto banning Danish journalists from going to India. At the same time, export from Denmark to India dropped considerably[6]. This seemed as rather harsh measures against a friendly country[7].

For Kaur, “the nature of the deadlock is as much a product of judicial intricacies as political and cultural misgivings about India” (Cit. Kaur cit. p. 70)[8]. According to her, Denmark is entirely to blame for the severing of the relationship between the two countries. In brief, she claims that Denmark does not understand India; the media is being one-sided, depicting India as a poor, aid-dependant, chaotic, uncivilised country; the Danish government and the courts are applying double standards; and the courts are, furthermore, creating a racial difference between a “brown justice” and a “white justice”. She finds the judgement of India unfair because, according to her, India is a country that bases its foreign policies on high ideals, such as, among other things, non-alignment and peaceful coexistence, and it has shown this since independence, by acting peacefully with its neighbours. Finally, she finds that India is really restraining itself in this case, one in which Denmark has upset the Indian Government. This article will look into these gross accusations.

2. JUDICIAL INTRICACIES

The Holck case is a special one or “historic”, not as Kaur states (p. 63), because the High Court came to a unilateral decision, but because the High Court bench was expanded from three to five judges to presumably strengthen its judgement in relation to human rights and international law. After the High Court had ruled similar to the Lower Court that Holck could not be extradited, the legal case ended there, as per the Danish legal tradition, where cases given the same verdict twice are not generally brought to the Supreme Court. This is contrary to the Indian tradition, where cases can more easily go all the way from lower courts to the Supreme Court. Seemingly, Indian representatives expected, similarly, that the prosecutor would take it to the Danish Supreme Court.

According to Kaur, the Danish Court did not take the Indian guaranties seriously, “as judicial experts have pointed out, the Danish court’s conclusion on the ‘risk assessment’, that Niels Holck might be subjected to torture is largely based on generalities and theoretical possibilities rather than any concrete threat in this particular case” (Kaur Cit. p. 65). Although she refers to experts in the plural, she is only referring to one, namely Jacques Hartmann[9] who is an E.MA Fellow at the European Inter-University Centre for Human Rights and Democratisation in Venice, as well a recent employee of the Danish Foreign Ministry[10]. As Kaur is basing the argument on Hartmann’s article, I will dwell a little on this article.

2.1 The “Judicial Experts”

Hartmann informs that: “Any real risk for a violation of the absolute rights will in itself be sufficient to prevent an extradition….” (Hartmann Cit. p. 259. My translation) and according to the European Court for Human Rights, the risk shall be real and not merely on theoretical possibility[11]. Freedom from torture is one of these absolute rights. The Danish High Court found the risk to be more than theoretical. Hartmann questions the court, thereby implying that torture was only a theoretically possibility. He does this based on two arguments.

Firstly, Hartmann puts emphasis that Peter Bleach, an accomplice in the arms drop case did not complain about torture, only about food given to the British representatives in 2002 while in Indian Prison (Hartmann p. 261). It must be fair to assume that Bleach was careful of what he was saying, still being in the Indian prison. He was pardoned in 2004 and came out looking like a “concentration prisoner”, had contracted tuberculosis in prison, and was considerable more talkative after his release, coming with the claim that Holck would die if sent to an Indian prison[12].

Secondly, Hartmann refers to court rulings in Germany and Portugal that came to a different conclusion. In the German fraud case from 2003, the court ruled that the person could be extradited to India (Hartmann p. 261). The Portuguese case, however, seems far more relevant to the Holck case, as it also involves accusations of terrorism. It deals with Abu Salem, a Portuguese citizen accused of being part of the 1993 bombings in Mumbai. In 2005, the Portuguese High Court ruled that Abu Salem could be extradited and, as a consequence, he was. In a footnote, Hartmann admits that the Portuguese High Court revoked the extradition in 2011[13]. There had been continuous accusations that Abu Salem had been tortured in Indian custody[14], and on September 10, 2010 the Indian Supreme Court ruled that Salem could be tried for offences entailing death penalty (Times of India 10-9-2010[15]). In 2012, the Portuguese Supreme Court questioned the legality of Indian authorities challenging the above-mentioned cancellation of extradition order (Times of India 11-07.2012[16]). This was clearly a violation of the agreement with Portugal[17], but the Indian Supreme Court had accepted the argument of the prosecution “that the Portugal government cannot impose any precondition on Indian courts”(Cit. Times of India 10-9-2010).

Thus, the Indian Supreme Court does not find itself bound by diplomatic assurances! It will therefore be difficult for India to honour the agreement. The independence of courts seems here to be in the way of such agreements. India has a very independent court, clearly honouring the separation between the state and the courts. It is also acting more proactively than the courts in the Danish tradition, coming with rulings on broader issues like the right to food, etc. (see among many Madsen 2011[18] and Kaur 2013).

The strong independence of the Indian Supreme Court also means that the assurance that Holck could get a speedy trial is questionable. Controversial or high profile cases in India can easily go on for a decade or more and with the Abu Salem case in mind the Danish Government cannot rest assured that the charge sheet would not be expanded to include capital punishment the day that Holck puts his foot on Indian Soil.

The ongoing Abu Salem case is a crucial piece of information and it is objectionable that Hartmann is providing this in a footnote and only gives it cursory attention, as it provides important information on the status of guarantees in India. In addition, Hartmann could have referred to the European Court for Human Rights ruling in the Chahal v. UK case from 1996, which states that extradition could not be justified by a diplomatic assurance, as it was commonly known that Indian security forces constantly violated human rights. Extradition would constitute a violation of article 3 in the European Human Rights Convention. The ban against torture is absolute whatsoever actions the person in question had undertaken[19]. The UN Committee against Torture, the UN Human Rights Committee, and the European Court of Human Rights all argue strongly against the use of diplomatic assurances, as they do not provide the necessary protection against torture. This is particularly true when the guaranties come from states with a track record of using torture and cruel, inhuman, or degrading treatment, or punishment[20]. The European Court of Human Rights later accepted diplomatic assurances in the Othman case where it accepted the very detailed assurances provided by the Jordanian state and signed by the King of Jordan[21].

India is, regrettably, one of the states with a negative track record in relation to the prevalence of torture. One just has to see the regular reports of National Human Rights Commission of India, the US State Department, Amnesty International, Human Rights Watch, and the web sites of People’s Vigilance Committee on Human Rights, the Asian Human Rights Commission, and Asian Centre for Human rights[22]. The data is often anecdotic with individual cases, as it is difficult to get systematic data. The most comprehensive study on the topic until today is an Indian EU funded study undertaken by Peoples Watch India[23]. It covered 47 districts in 9 Indian states. Based on the collected data, it assumed that the number of cases of torture easily amounted to 1.8 million a year just in police custody (p. 3)! Following this, the claim from AHRC that torture is institutionalised and widely accepted in India seems to have some merit[24].

Torture is widespread in India and the Indian Government may find it difficult to adhere to the agreement. Therefore, when Kaur is certain that it “seems highly imaginative” that someone will torture and murder Holck if he is sent to India (Kaur Cit. p. 50), the risk of torture is much less imaginative or “‘theoretical’” than if he was to be sent to a country with a better record than India. This gives some validity to the Danish expert that stated that Holck may “risk” being tortured if he was to be sent to India[25].

Based on all this, the ruling of the Danish Courts cannot come as a surprise. Furthermore, when taking into account the Abu Salem case, where capital punishment was included in the charge sheet after extradition, the value of the India guarantees, may not be worth much. It gives validity to the UN Special Rapporteur on Torture Manfred Nowak, who stated on guarantees in general that “these guarantees are not worth the paper they are written on” (Here from Kaur p. 62)[26].

3. THE BIASED DANISH MEDIA OR THE BIASED KAUR

Kaur criticises the Danish media for portraying India as “a chaotic aid-dependent nation in need of developmental interventions…” like it was on “a public trial in the Danish media….” And she continues, that “in retrospect, it seems that it was as much the court judgment that led to the diplomatic deadlock as the aggressive public debate outside the courtroom that dismissed India as a pre-modern nation pretending to be civilised” (Cit. p. 62). These are hard words and in my recollection I do not recognise it as the main picture presented on India. That some Danes aired such views in blogs or comments to newspaper articles and that Holck had an interest in presenting it in this way are true, but to imply that it should be the general view and that it should have an impact on the verdict of the courts are highly questionable. By doing so would be to ignore the heterogeneity of Denmark, and not to qualify the difference between the courts, the state, the media and “among the people”. Seen in the larger media picture, the case did get some coverage, and it did have the attention of those professionally engaged with torture and India[27].

For some days, a few things appeared on the television news and some articles in the newspapers, but the case did not swamp the media, and Kaur seems to put more into the idiosyncratic speeches of Niels Holck when defending himself and his actions than the Danish government and all the powers it put behind the extradition of Holck. To illustrate, one can, as an example, listen to a radio programme before the court rulings, where Holck discussed his possible extradition with Karsten Laursen, the speaker in foreign affairs for the main government party, Venstre[28]. For Laursen and the Government, the matter was clear and simple. Holck was a terrorist and not a liberation fighter or the like. As a criminal character he should face the consequences. It was the Danish government that decided to extradite Holck upon the request of India after it had been given certain guaranties from the Indian side. From communications between the Minister of Justice Lars Barfoed, the head of the Foreign Affairs Committee, and Peter Skaarup from Dansk Folkeparti (DF) that supported the right-wing government, it is also clear that they believed in the Indian guarantees [29]. Niels Holck challenged the decision by bringing the case to court. Thus, Kaur fails to see the whole picture and she fails, furthermore, to see the political differences on fundamental principles in this case.

3.1 The Holck Case – Part of Political Discussion on which Laws & Rights Prevail

The Government’s position was not only challenged in court, but also by the opposition in Parliament, who questioned the safety of the accused if extradited. To the question how Denmark could be certain that India would stick to the agreement, Peter Skaarup (DF) claimed that India would not dare to disregard the agreement, indicating that it would cause a diplomatic crisis between the two countries. DIGNITY countered it by stating that “(t)he risk for a diplomatic crisis would not keep the Indian Government awake during night” (Politiken 19 April 2010[30]). Paradoxically, this is what happened after the Indian side stepped up the conflict (see later).

Kaur seems to ignore human rights as a political issue in Denmark being debated in the public and the Government’s position. In fact, the right-wing Government tended to be more nationalistic/anti-foreigner, pro-radical-anti-terror remedies, and pro-US than the opposition. The Government’s parliamentary support in the form of the DF had a strenuous relationship not only to immigration and foreigners, but also to human rights. In this light, the Government and DF had less concerns in trying to extradite a Danish citizen accused of terrorism to India. The Government pictured itself as playing a very active part in the so-called global war against terrorism fight. Furthermore, it had no interest in irritating a country which had become an economic growth house and which had great potentials for further economic co-operation.

So, from a Danish angle, the issue is the centre of a political struggle on the role of human rights, which the Danish government and in particular DF from time to time challenge, and did challenge since the coalition started to rule in 2001. In that case it highlights the dilemma between the (individual) rights versus the need. Do suspected criminals have rights? And which laws prevail in this case, the human rights conventions or the Convention Against Terrorism? This point is completely lost in Kaur’s article. Instead, Denmark and its court system are racist.

3.2 Acquitted due to Denmark being Racist?

Kaur is, in this argument, referring to an article by the Indian journalist Praveen Swami in the Indian newspaper the Hindu, 24 July 2012[31]. Kaur argues that the reason for the verdict and the development in the Indo-Danish relations is that Denmark and the courts should be acting due to racism and applying double standards. When reading the following it is easy to see why she conveys this perspective.

“The decision was said to be historic in nature as this was the first time in fifty years that the entire bench of five judges had agreed. The reason for this unusual unity, the newspaper report suggested was the seriousness of the case as ‘it was the first time a Dane was being extradited to a non-Western nation’. The last point is significant, as the problem is deemed to be one of dealing with a nation outside the Western sphere of shared values.” (Cit. Kaur p. 63).

This may be far from the truth. It is based on misunderstandings and bad translations. First, the High Court has normally 3 judges, but it had 5 for the first time in 50 years. The reason for having 5 was that it was a serious case[32], due to its involvement of human rights and international law, and it involved the dilemma between upholding human rights and punishing terrorists in the fight against terrorism. According to the main high court judge it was “legal unexplored terrain that has a very significant interest, also for future cases”[33]. Secondly, judges in the high court often agree in cases, like in other countries. Thirdly, the suggestion that it was because it was related to a non-western country is something the journalist seems to add. It comes in a separate part of the article and it is not a quote by the President judge[34]. Thereby, the point that race, or that it deals with a country like India, is the reason for the decision can be said to be shot down and the issue becomes more a matter of principle.

Swami is playing the easy card of bad conscience of racism and colonialism, where India is the victim and Denmark is the perpetrator. To show that Denmark is applying double standards, he links the American misuse of Danish airspace in cases of renditions, where the Danish government denied any knowledge or acceptance of the American violations[35]. The morality of the perceived (non-) actions of the Danish Government can be and is being discussed, but it has little to do with the Holck case. Furthermore, Kaur’s claim that the Danish Government took an “active” part in the rendition and kidnapping of people by the American may be stretching it too much (p. 64). Even if it had been true that it has taken an active position it would just support the argument that the Government once more prioritized the fight against terrorism over the human rights of individuals by not letting alleged terrorists hide behind human rights or any other forms of individual protection! But that would also imply that the Danish Minister of Foreign Affairs at the time was lying in public on the issue[36]. The case was an embarrassment to the Danish Government, however, there was nobody to bring the case to the Danish courts, as, for instance, in the Niels Holck case[37].

If the Danish Government at the time was misleading the Parliament and the public in this case, it would show that the so-called war against terror was very important to it, which can also be seen in its actions in Iraq/Afghanistan, it’s claim of little interest in bringing proper light on the rendition flights, and with its firm stand on extraditing Niels Holck.

To further highlight the racist issue and the double standard, Kaur refers to the Camilla Broe case. Broe was the first Danish citizen to be extradited to a country outside the European Union. She was handed over to the US authorities for drug traffic offences. “In this case the court chose to overlook the practice of capital punishment prevalent in the USA, the long prison sentences and solitary confinement as well as conditions in ‘supermax’ prisons which earned severe criticism from international human rights organisations”. (Kaur Cit. P. 64).

Contrary to what Kaur is writing, guarantees were given! One of these was related to capital punishment, another that, she should, at maximum, serve 6 months in the US[38]. So in that aspect it has nothing to do with a matter of double standards. On the contrary, India risks being accused of applying double standards as it provides guarantees to give a Danish Citizen conditions that it is not capable of providing its own citizens.

There has been a constant criticism of some prisons in some states of the USA, but the Danish authorities seemingly were not objecting to the specific prison in Miami, Florida, that Broe was sent to. And, to make it a point of “brown justice” and “white justice” seems to be diverting from the topic.

Praveen Swami (and Kaur) acknowledge that India does have a great problem in its criminal justice system and related to prison conditions. Although, according to Swami, “Its record isn’t, however, the real question here.” (Cit. Praveen Swami, The Hindu 2012). It is difficult to conceive why the real question is not that torture is rampant and systemic, and that India has not ratified the central convention on torture. If India had ratified the convention and undertaken some real changes, then the situation could have looked different. A guarantee that the person would not be tortured would have been unnecessary. But it is easier for Swami and Kaur to talk about racism and double standards involving other issues hardly related to the issue. But the Danish courts have in recent years been very stern about not sending people to countries where they risk being tortured, irrespective of citizenship, colour, or religion[39], thereby following the principle of “non-refoulement” (See United Nation’s Convention Against Torture Article 3).

4. KAUR ON INDIA

While putting Danish actions into a consequently negative light, Kaur does not do so in relation to India. This is very visible in the way she deals with three issues: the so-called Italian Marine Case, India and the UN Convention Against Torture, and the India foreign politics in general.

4.1 The Italian Marine Case[40]

To show that the Danish Court is wrong in its verdict and to show how magnanimous India behaves in foreign policies towards European countries and in treating foreign prisoners, Kaur is referring to an ongoing controversial case between India and Italy.

The Italian case deals with the shooting of two Indian fishermen by two Italian marines (military personnel hired by the company that runs the ship) on an Italian ship in what is claimed to be international waters. The marines mistook the fishermen for being pirates. The Indian navy brought them up [sic] and the ship was – depending on the source – forced or lured into the harbour of Kochi, Kerala, India. Italy argues that India does not have jurisdiction as the marines were officials on an Italian ship in non-territorial waters and therefore under Italian jurisdiction. This is contested by India[41]. The Indian Supreme Court has now taken over the case from the court in Kerala, which had tried to finish the case after the relatives of the deceased fishermen had withdrawn their complaint after being paid compensation by the Italian side[42]. It has stirred up nationalist sentiments in both Italy and India, where politicians on both sides play in murky waters, and caused the resignation of one Italian foreign minister. Italy wants the case moved to an international court.

India permitted the two marines to go home to Italy for Christmas and later to vote in the national election in Italy. When they did not to return the last time, the Indian Supreme Court, on March 14, restrained the Italian Ambassador from leaving India, thereby attempting to violate the Vienna Convention on Diplomatic Relations, which made the EU interfere[43], as this undermines the rules behind diplomacy in general[44]. The two marines have returned to Delhi, where they reside in the Italian embassy compound[45]. Italy does not see this as a case where India has been able to act with moderation and tried to solve this matter quickly, and the Indian Supreme Court has even challenged the most sacred convention in international co-operation, the Vienna Convention on Diplomatic Relation, which is a cornerstone in international relations. It protects diplomats, but it is also protects heads of state. The Indian Supreme Court’s actions show that it does not hold international laws in high regard. The Italian case is far from similar and it further emphasizes the independence of the Indian Supreme Court.

4.2 India and CAT

Among the guarantees, it was stated that India should adhere to International Covenant[46] on Civil and Political Rights (ICCPR), which India ratified in 1979 and which makes freedom from torture an absolute right, i.e. it cannot be derogated from (see ICCPR article 7). However, the UN Convention Against Torture (CAT) from 1984 is considered a much stronger instrument for the prevention of torture. Although India signed the Convention Against Torture in 1997, it has still not ratified it[47]. Although many Indian organisations have urged the Indian Government to ratify the convention[48], Kaur takes the official Indian perspective at face value: “The question of ratification of the convention has been the subject of a long-delayed law-making process that requires the domestic laws of India to be in tune with the Convention before ratification can take place” (Cit. 63-4). However, there are no demands that domestic laws have to be in place before ratifying CAT. Denmark has, for instance, still not written torture into its national laws. Furthermore, ratification would empower the Indian courts, the human rights institutions, and NGOs in their struggle against torture. The draft law presented in 2010 far from lived up to the minimum requirements of CAT. The reasons for not ratifying could be that the problem is so huge and it will demand so many resources to deal with the problem, and that torture seems to be so entrenched and accepted in the Indian society[49], and thus the necessary political will is lacking, and/or that India may not like external supervision, because as a signatory to CAT, India can possibly be visited by the UN Committee Against Torture, which requires access to all places where people are deprived of their liberty.

4.3 India’s Foreign Policy – Contested Perspectives

According to Kaur, India has, in the Holck case, acted in a very restrained manner, as “(t)he Indian Government has not publicly raised the stakes by issuing ultimatums on the issue…”(Cit. p.69) and it took place outside the “public gaze” and held a “non-committal stand” and finally the “(d)iplomatic maneuvering at a more subterranean level suggest a will to seek solutions while maintaining a public face….” (Cit. p. 69). And for the Denmark, it does not understand these “‘subtle cues”. What these should mean, she does not indicate. That, the Danish Government should disregard its court system or that it should take up the case again?

Kaur tries to give us a rosy picture of Indian foreign politics by referring to the ideal of panchsheel[50] – the five principles of (among others) peaceful co-existence, non-alignment as well as non-interference in each other’s internal affairs. She claims that India has been “non-aggressive” the last 70 years (p. 68). In Bangladesh, India only intervened for humanitarian reasons and in Sri Lanka it helped to “counter the Tamil liberation” (p. 68). This does not tally with the picture that India’s neighbours have ofIndia.

The relationship with its neighbours has not always been based on equality, non-interference, peace, and understanding all the time. I will not dwell with the fact the Indian intervention in Pakistan, which led to the formation of Bangladesh. But India has been asserting its power regionally and involved itself in other of its neighbouring states like Sri Lanka, and Nepal, at times with disastrous negative consequences for India itself.

Before the LTTE, also known as the Tamil Tigers, became a force to be reckoned with in Sri Lanka, they were trained and supported by India. Sri Lanka became collateral damage in the internal struggle for power, which included appeasing Tamil nationalist sentiments, which were strong at the time in Tamil Nadu[51]. To what extent was the deployment of peacekeeping forces to curb the Tamil separatist forces in Sri Lanka and to what extent was it to appease Indian Tamil sentiment, by intervening in a humanitarian crisis, as the Sri Lanka Tamil forces were being overrun by the Sri Lankan Army, can be discussed elsewhere. Afterwards, the assassination of Rajiv Gandhi by LTTE cooled the relationship with the LTTE and the separatist forces in Tamil Nadu continued to lose momentum.

In 1989 India made a virtual economic blockade of Nepal for one year, due to, among other things, Nepal having bought weapons from China[52]. It seems that it is particularly in geo-political issues related to China where India tends to bully its neighbours or support dictators to keep out Chinese influence[53]. So, India’s commonly shared picture of a harmonious relationship that Kaur provides does not fit with the picture that its neighbours have of India.

4.4 From Regional to a Global Power

India has changed tremendously since independence in 1947. The population has grown from 450 million in 1961 to 1.2 billion today. The economy has grown, making India the world’s 9th largest economy. Many have been taken out of poverty, but it is still the country with most people in absolute poverty. More inequality has been created, and more of its territory is being contested either by nationalist or separatist groups in Kashmir and the North Eastern states, or Maoist and Naxalite ones in Central India. During this time, Indian foreign policy has also changed from what may appear as a more idealistic policy under Nehru, where India was a central representative of the group of non-aligned states. With the lost war against China in 1962, over the disputed area Aksai Chin, this has changed, with India having to match not only Pakistan but also China.

The Indian atom bomb test in 1998 – after a test undertaken by Pakistan – aroused Indian nationalist feelings in the country and marked the difference between being a regional power asserting itself to becoming a global one. At the same time, India phased out development assistance from most donor countries. It has to be understood that foreign development assistance to India has never played a big role in the larger economy of India, contrary to most other developing countries. Afterwards, India only accepted assistance from major countries such as UK, US, Japan, and Germany, and the EU. There were rational arguments for the move, as India earlier had many smaller donors, all requiring attention from the Indian bureaucracy. It took up a lot of their time and some countries had embarked on what can be seen as the value sphere, emphasising India’s challenges in the human rights areas. So from a cost-benefit analysis, India found that it, from then on, got too little out of the co-operation. Denmark was just one of the many “casualties”. At the same time India was starting to provide development assistance to other countries itself. It was a new situation where countries like Denmark and other Scandinavian countries previously may have been given special attention, because they had been around for many years and because the Scandinavian model was admired in a country that tried to combine socialism with capitalism. This preferential position vanished with the new self-assertiveness coming to the fore in India, which now saw herself as a global power and aligned itself with other global powers in the BRIC(S) group of countries.

In this light it can be argued that what India has done for years regionally it is now trying to assert globally and the Niels Holck/Kim Davy case shows this. For Denmark, it is of little interest who pushed the Holck case in India[54] as it has little effect on the relational consequences for Denmark. For Denmark it is a lose-lose situation. If it extradites, it will lose out on an important principle of its rule of law and it will undermine the work for having common standards that all countries shall abide. If it does not extradite, it is punished by the big power, India. Kaur cites a DIGNITY employee for saying that “the risk of a diplomatic crisis with Denmark would not keep the Indian Government awake at night.” (Here from Kaur P. 59). The repercussions of the Holck case in India serve proof to that, as does the Abu Salem case. It is not keeping the India decision makers awake at night. It is of little to no political importance in India, as Kaur writes herself, as nobody is pushing politically in India in relation to the Holck case. It is, seemingly, the Indian state machinery itself, which is at work.

5. CONCLUSION

In short, according to Kaur, Denmark does not understand India portrayed as the poor victim, and Denmark as a country applying double standards, only because India was once receiving development assistance, was previously a colony, and is inhabited by “brown” people. It is not about content – by, for instance, relating it to the Danish High Court ruling and the information available for the court. It is not about the magnitude of torture in India or the track record in the field of providing diplomatic assurances. And, it is not about Indian double standards in this field.

She sees Denmark in a monolithic sense, and not in the way that power is contested in Denmark. She fails to differentiate between the government, the opposition, the state, the judiciary, the media, and the public at large (whoever they are). The Danish government cannot dictate the rulings of the courts for good and for bad. It is called rule of law. She is indeed misreading, misunderstanding, and misinterpreting central parts of the Danish society. The Danish institutions are not acting racially in this case. Instead, one can see it as an indication that human rights are alive, being actively debated, and playing an important role in Denmark. In this perspective, the Danish Courts are independent, standing up against the Danish Government, giving due recognition to human rights for everyone.

Instead, Kaur provides a picture of Denmark acting derogatorily towards India, and of India as a victim, being unjustly treated. The article is biased, only seeing the case from a narrow official Indian perspective, to the extent that Kaur runs the danger of being accused of being part of what she herself describes as “subterranean” tactic, as part of the pressure strategy that India is putting on Denmark and on its court system[55]. It is missing any nuances, is selective in the use of sources, providing a one-sided picture of the debate in Denmark, and it has crucial mistakes. Some of these take away from her arguments[56]. It is difficult to see how such an article can improve the relationship between Denmark and India. On the contrary, the latter will feel vindicated by this article showing their position is a just one, although the arguments are built on quicksand. India can afford having a tough uncompromising attitude towards Denmark. For the latter, there is more at stake. Denmark is a small, open trade related economy, which needs to have good relations, and the Danish Government is trying to find a solution[57].

Although the flyer of the yearbook mentioned above includes the caveat that the author is “solemnly” representing her “own professional expertise” (my translations from flyer), it is still surprising to find an article of this sort in this official publication. Shall the article be seen as a means to get Denmark to sell out its fundamental principles on the rule of law and international law, and to succumb to the actions of India for the improvement of the (financial) relations between the two countries? If this is the case then it is indeed worrying. Because that would imply that Denmark obeys the demands of India, the new global power[58], contrary to international law related to human rights, and bends the rule of law in Denmark. Are we then witnessing the beginning of a new appeasement in Danish foreign policy[59]? If this is the case then Denmark will – in the multi-polar world with still more global powers – have more work for our diplomatic corps and there will come more examples where Denmark will be pressurised to bend basic principles. Instead, one could wish that countries adhered to common standards or conventions that all have to follow, and not, as it is now, where global powers seem to be permitted to pick and choose among which conventions to ratify and which to implement.

It could have softened the India stand if the Danish prosecutor had appealed the case to the Supreme Court, but that would have required the permission from a specific legal committee (procesbevillingsnævnet), which, as per the Danish legal tradition, would be very unlikely after two courts had come to similar rulings. Even if the committee had given its permission, it is difficult to imagine a different outcome and it may not even have appeased the Indian side. With the development of the Abu Salem case, the courts will even have stronger arguments for not extraditing Holck as the Supreme Court of India has stated that it is not bound by these diplomatic assurances. The fact that the Supreme Court of India is even challenging the Vienna Convention may be bad news for the present world system.

In the era of the so-called war on terror we have witness the increased will to extradite criminals who have undertaken crimes in other countries. Here, it will be important to ensure that in future the cases can be tried in the home countries of the accused or at an international court, when there are – like in the Holck case – severe risks implied with extradition. People accused of severe crimes shall be investigated, taken to court, and receive a fair trial. Criminals shall not be allowed to hide. Here the Holck case is a little bit muddy, as the Danish prosecutor does not see how it can do it and the Indian part does not seem in favour that the case will take place in Denmark.

To ensure that India avoids the same situation again, the solution is clear. It has to ratify the Convention Against Torture, get it written into Indian law, and (not the least) get the law implemented. As the problem is huge in India, it is a tremendous task. So, it is not because India is “chaotic” and used to receive development assistance that Holck is not extradited to India for trial. It is because there is so much torture in India!

[1]Jan Ole Haagensen, Chairman of NUNCA MAS – International Network on Human Rights and Psycho-Social Response, Denmark. He has worked in India for more than two years in the 1990s, respectively employed by the International Labour Organization and visiting fellow at the Institute of Rural Management, Anand, Gujarat, collecting data for his doctoral thesis on indigenous peoples and the Indian State. From 1999-2014 he was employed as department head at DIGNITY: Danish Institute against Torture.

[2]Danish Foreign Policy Yearbook, 2013 edited by Nanna Hvidt & Hans Mouritzen. Copenhagen, Denmark

[3]See Claus Grube: The International Situation and Danish Foreign Policy 2012 p. 47 in Hvidt & Mouritzen.

[4]Niels Holck is a Danish Citizen who, under the alias Kim Davy, along with other accomplices, dropped approximately four tons of weapons in Purulia District of the Indian state of West Bengal in 1995. He was caught, along with his accomplices. But, mysteriously, he managed to escape. Being a Danish citizen, he returned to Denmark and lived a peaceful life. After Indian authorities found him in Denmark and Denmark changed it laws in 2002 making it easier to extradite people who has been involved in terror, India officially requested to get Niels Holck for trial in India. The Danish government acceded to the demand, but first the lower court and afterwards the high court rejected the extradition due to the risk of torture. The Indian government has put a lot of pressure on Denmark in this case and it was utterly dismayed by the verdict and the fact that the prosecutor did not bring the matter to the Supreme Court.

[5]Making the work of Danish representatives in India extremely difficult.

[6] “Niels Holck-sag rammer dansk eksport hårdt”, in Politiken 2 May, 2013, http://politiken.dk/erhverv/ECE1959312/niels-holck-sag-rammer-dansk-eksport-til-indien-haardt/

[7] India’s relationship with a country, like for instance North Korea, seems to be more cordial. See, for instance, http://www.ibtimes.com/why-does-india-have-relations-north-korea-213592

[8] Kaur, Ravinder: 2013. “In the Shadow of the Kim Davy: India-Denmark Relations in the Early 21st Century” pp. 53-77 in Hvidt & Mouritzen.

[9] Jacques Hartmann is in the article wrongly given the middle name Venedig, which is Venice in Danish. P. 75. Hartmann, Jacques: Udlevering – Hvordan og Hvorfor? In Juristen 09.2011 Pp. 253- 262. The article was not in the Danish publication DJØF bladet as Kaur writes in reference number 64 p. 75, but in the Danish periodical Juristen, as she correctly writes in the references (p. 77)

[10]Despite the caveat that the article Hartmann expresses his own opinion, it is not in contradiction with the view of the Danish Government and can be seen as an argument for his extradition.

[11]Here Hartmann p. 260 Source: European Court of Human Rights., Shamayev and others v. Russia, Appl. No. 36378/02, 12 April 2005 (27 May 2008).

[12] See the Independent, UK 19 May, 2011 http://www.independent.co.uk/news/world/europe/danish-terrorist-fights-indian-extradition-2286147.html,

[13]Footnote 52 in Hartmann p. 261.

[14] See for instance BBC 25 November, 2005, http://news.bbc.co.uk/2/hi/south_asia/4471172.stm and although investigations were undertaken by Indian authorities on the request of the Maharashtra Human Rigths Commission See for instance Outlook India & Decemeber, 2005, the stories continued to come up see for instance The Hindu 13 january 2006, http://www.hindu.com/2006/01/13/stories/2006011305221600.htm. Portugal followed up on in see for instance Indian Express 10 May, 2006, http://www.indianexpress.com/news/salem-s-torture-treaty-violation-portugal/4138/.

[15] http://articles.timesofindia.indiatimes.com/2010-09-10/india/28260082_1_portugal-government-death-penalty-portugal-authorities

[16] http://articles.timesofindia.indiatimes.com/2012-07-11/india/32631470_1_salem-extradition-abu-salem-constitutional-court

[17]Portugal is in their right to do that as India is violating the agreement. Then Abu Salem shall be sent back to Portugal where after India can submit a new request for extradition. If capital punishment is a risk then Portugal will not extradite him. The latest part in the long story of Abu Salem is, that he was hit by a bullet inside the prison in June, 2013. See for instance the Indian Express. http://www.indianexpress.com/news/gangster-abu-salem-shot-at-inside-mumbai-jail/1134849/ Accessed 31.08.13.

[18]http://infocus.asiaportal.info/2011/10/03/a-dane-in-distress/– Accessed 20.07.13

[19] See the ruling of the European Court of Human Rights in the Chahal v UK case, accessed 31.08.13. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58004#{“itemid”:[“001-58004”]}

[20] An overview of the different sources and the arguments can be found at DIGNITY: Danish Institute Against

http://www.dignityinstitute.dk/viden/aktuelle-temaer/diplomatiske-garantier.aspx, and

http://www.dignityinstitute.org/topics/torture/diplomatic-assurances.aspx. See also Human Rights Watch http://www.hrw.org/news/2006/11/10/diplomatic-assurances-against-torture.

[21] The Othman case, see http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-108629#{“itemid”:[“001-108629“]}. Accessed 31.08.13. The Court had, nevertheless, denied the extradition to Jordan as it would be a violation of the right to a fair trial in Jordan. The Jordanian government then assured he would be tried under the civilian court system, whereupon Othman was extradited to Jordan in July 2013.

[22]Seehttp://nhrc.nic.in/srcArchive.asp, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/#wrapper, http://www.amnesty.org/en/region/india/report-2013, http://www.hrw.org/asia/india, http://pvchr.asia/?id=180,http://www.humanrights.asia/countries/india Accessed 28 July 2013 and http://www.achrweb.org/reports.htm

[23] Peoples Watch (2008) Torture and Impunity in India, Tamil Nadu.

[24]See the following from AHRC: “Torture is practiced as a routine and accepted as a means for investigation. Most police officers and other law enforcement officers consider torture as an essential investigative tool, rather than an unscientific and crude method of investigation. Policy makers and bureaucrats believe that there is nothing wrong in punishing a criminal in custody, not realising the fact that a person under investigation is only an accused, not a convict and further, that even a convict cannot be tortured. This is due to the lack of awareness about the crime, its nature and about its seriousness. Torture is practiced by the all sections of the law enforcement agencies, the paramilitary and military units. Torture, as a form of violence is used for social control. India has not ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, but has signed the Convention on 14 October 1997. A draft Bill against torture is in consideration by the government”. Cit. http://www.humanrights.asia/countries/india Accessed 28 July 2013. See also Human Rights Watch 2009, India: Broken System- Dysfunction, Abuse, and Impunity in the Indian Police, US.

[25]She writes that if extradited to India the expert “believed that Niels Holck would be subjected to torture …”. (Cit, Kaur p. 63). Reading the article one can see that Kaur is missing the word “risk” (See the original Danish article in Politiken http://politiken.dk/indland/ECE950744/fn-advarer-torturgaranti-duer-ikke/.

[26] See also The United Nations Convention against Torture, A commentary, Manfred Nowak and Elizabeth McArthur, Oxford Commentaries on International Law, university Press, 2008, p. 212-217

[27] It caught the attention of Kaur as she is working with Danish-Indo relations. And had the attention of the organization that I work with as it deals with torture and it deals with torture in a country where it is widespread and the country has still not ratified the Convention against Torture.

[28] 14th April 2010. http://www.dr.dk/P1/P1Debat/Udsendelser/2010/04/14150724.htm

[29] See Jyllands-Posten 16.10.2010 where the Minister of Justice Lars Barfoed is confident that the Holck will be treated humanely despite the warnings. In Infomedia 13.04.2010, Chairman of the Danish Parliament’s legal committee, Peter Skaarup from Dansk Folkeparti (DF) is quoted that he “cannot imagine that anything will happen to Niels Holck”(my translation). Ritzaus bureau refers 22.9.2010 to a debate in Parliament where it is shown that the extradition is dividing the Parliament. Peter Skaarup (DF), as well as the leading government party Venstre, have no concerns regarding extraditing Holck while the radical left party, Enhedslisten, demands that extradition can only go to countries that respect human rights and the Socialdemocrates emphasize that India has still not ratified the UN Convention Against Torture. See also Politiken 13.04.2010. Politikere til Niels Holck: Du kan stole på Indien. Here government politicians claim that Holck can trust the guarantees of India. Already in 2008 former Minister of Justice, Frank Jensen from the Socialdemocratic party aired that he did not believe that one would not succeed in extraditing Holck as: “We are talking about a country situated very far from Denmark and which has completely different legal traditions”. (Terrorpakke: Frank Jensen: Indien kan ikke leve op til udleveringskrav in Berlingske Tidende 20.05.2008). All accessed 28 July, 2013.

[30] FN Advarer: Torturgaranti virker ikke in http://politiken.dk/indland/ECE950744/fn-advarer-torturgaranti-duer-ikke/ accessed 23 July.

[31] See Praveen Swami “A lesson in the White Man’s Justice” in the Hindu 24 July 2012 http://www.thehindu.com/opinion/lead/a-lesson-on-the-white-mans-justice/article3675465.ece. The article was later reproduced in extenso in the Danish newspaper Information (27 July 2012) http://www.information.dk/306970accessed 23 July 2013.

[32] http://jyllands-posten.dk/indland/ECE4548317/niels-holck-skal-ikke-udleveres/.

[33] Cit. Jyllandsposten 30.6.2011. http://jyllands-posten.dk/indland/krimi/ECE4548167/speciel-retssag-kraever-fem-dommere.

[34] http://jyllands-posten.dk/indland/ECE4548317/niels-holck-skal-ikke-udleveres/?page=2.

[35]The Government did afterwards undertake an internal investigation on the matter, but US did not produce the requested information. The Foreign Minister at the time went out publicly criticizing this. He distanced himself forcefully from the report revealed by Wikileaks that Danish top government officials assured the Americans that it was okay if they did not want to release the requested information. See, for instance, the Danish National broadcasting DR http://www.dr.dk/Nyheder/Indland/2011/11/09/174912.htm

[36] See for instance DR 9 January, 2001 “Per Stig Møller: Selvfølgelig spillede jeg ikke dobbeltspil”: http://www.dr.dk/Nyheder/Politik/2011/01/09/152654.htm

[37]The courts in Denmark are not as proactive as in India. Cases of general interests are dismissed, if the claimants do not have a direct interest. This was the case when the Supreme Court dismissed a court case where 25 citizens filed a case against the Danish government for violating the constitution by entering war without a mandate from The United Nations. See “Irak-krigen sluttede I Højesteret” in Information, 18 March 2010http://www.information.dk/227555

[38] http://en.wikipedia.org/wiki/Camilla_Broe. Accessed 23 July.

[39] The previous case DIGNITY was involved in was the extradition of a Tunisian citizen suspected of being a terrorist, but risked being tortured if sent to Tunisia. Also, here the Government was in favour of the extradition and the Supreme Court ruled against extradition due to the risk of torture. See Dokumentation: Tuneserloven begyndte med tre terrormistænke in Information 19 December, 2009. http://www.information.dk/177556 and http://www.dignityinstitute.dk/viden/aktuelle-temaer/diplomatiske-garantier/tunesersagen.aspx

[40]For an overview of the case see http://en.wikipedia.org/wiki/2012_Italian_shooting_in_the_Laccadive_Sea Accessed 23 July, 2013.

[41]The case until February 2013, see http://www.thehindu.com/news/resources/timeline-the-italian-marines-case/article4538162.ece. Accessed 23 July, 2013.

[42] http://www.thehindu.com/news/national/kerala/enrica-lexie-case-materials-transferred-to-supreme-court/article4756565.ece Accessed 23 July, 2013.

[43]“Marines row: European Union warns India over bar on Italian ambassador” in http://www.ndtv.com/article/india/marines-row-european-union-warns-india-over-bar-on-italian-ambassador-344494. Accessed 25 September 2013. See also http://en.wikipedia.org/wiki/2012_Italian_shooting_in_the_Laccadive_Sea Accessed 29 July 2013.

[44] In Denmark there was in 2001 the so called Gillon case. It was an Israeli ambassador to Denmark who on Danish television confessed that he, as head of the Israeli intelligence Shin Beth, had ordered Palestinians tortured. DIGNITY, along with other human rights organisations, tried to get a case filed against him. The move did not succeed as such an act is a violation of The Vienna Convention on Diplomatic Relations. See more about the case at Kessing, Peter Vedel (2001) Diplomatic immunity is protecting Human Rights in No 4 of Nordic Journal of Human Rights, Norway.

[45] This is the first case in an area of wanting international regulations: anti-piracy in international waters, so many observe it closely, See Reuters, Insights: Murder trial of Italian marines in India navigates in murky water, http://www.reuters.com/article/2013/06/09/us-india-italy-marines-insight-idUSBRE9580GB20130609. It is also of utmost importance for a country like Denmark having one of the world’s biggest commercial fleets and actively engaged in the combat against pirates.

[46] It is titled a covenant and not a convention as Kaur writes (p.61)

[47] Only the African countries Sudan and Gambia have signed before India and not ratified.

[48] See for instance articles from the Hindu in 2013 http://www.thehindu.com/news/cities/Madurai/india-should-ratify-un-convention-against-torture/article4424781.ece and http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/india-should-ratify-un-prevention-of-torture-bill/article4855594.ece. Already in 2000, the National Human Rights Commission of India urged the Indian Government to ratify the convention see the Hindu 26 June 2000 http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/india-should-ratify-un-prevention-of-torture-bill/article4855594.ece

[49] This is supported by a survey covering 19 countries showed India to be the country with by far the highest support for the use of torture. Only 28% was against torture at all times. See World Public Rejects Torture, 24 June 2008. http://www.worldpublicopinion.org/pipa/articles/btjusticehuman_rightsra/496.php

[50] See wikipedia for a description of Panchsheel. http://en.wikipedia.org/wiki/Five_Principles_of_Peaceful_Coexistence. Accessed September 15, 2013.

[51]See BBC interview with former LTTE Commander Karuna, Training the tigers – http://www.bbc.co.uk/news/world-south-asia-11985478. See for instance also The Sunday Times (India) 19 January 1997 http://sundaytimes.lk/970119/plus4.html Accessed 29 July, 2013, http://www.hardnewsmedia.com/2006/05/464, and Indian Express December 12, 1997. http://expressindia.indianexpress.com/ie/daily/19971212/34650923.html. Finally, see also Madsen, Stig Toft 2011. A Dane in distress. in Asia Portal, InFocus, Posted 3.10.13. Accessed 31.8.13.

[52] See about the blockade in Wikepedia http://en.wikipedia.org/wiki/India–Nepal_relations. In 1994, I was in Kathmandu when Indian police arrived without notifying the local authorities of the city to apprehend some suspects. The incident caused political tension in Nepal. See among others the Human Rights Watch report on Nepal in 1995 http://www.hrw.org/reports/1995/WR95/ASIA-07.htm.

[53] See the contested descriptions of the relationship with Myamar in Wikepedia http://en.wikipedia.org/wiki/Burma–India_relations.

[54]Kaur informs that it was not the Indian state that was actively pursuing the case in the beginning, but a legal activist who filed a case prompting the court to order the state to get to the bottom of this (p. 59). The reason for doing it was not to bring Holck to court, but to get to the bottom of something bigger: that political forces in India, with the support of foreign powers, tried to topple a democratically elected state government. In this case, Holck and Bleach are only pawns in a bigger plot. Needless to say, this does not take away their guilt. Then the case goes from just dealing with some foreign fantasts to something more crucial. There are so many mysterious things whichhappened which should not have been possible. There are quite a lot of loose ends in this case, which, of course, competent independent Indian journalists are pursuing. To get an impression, see the following Indian television debate (http://www.timesnow.tv/Debate-The-truth-about-Purulia-3/videoshow/4371745.cms), which Kaur criticises for its focus on the state official side and security and violation of territorial sovereignty rather than seeking retribution” i.e. going after Holck (Kaur p. 61).

[55]That the Indian perspective dominates is expressed already in the title where she uses Niels Holck’s Indian alias, Kim Davy in the Danish publication

[56]Her way of dealing with the sources was rather sloppy, which made it rather difficult to deal with the article. The central article dealing with her legal argument is put into a wrong publication p. 75 note 64. The article in the Hindu is moved one year to 2011 from 2012 (p. 75 note 62). She is not presenting the view of the Danish government, which strongly wanted the extradition. She is translating important articles wrongly. She is excluding important words, so that meaning becomes distorted.

[57] An official team went without luck to India to appease the authorities airing that the case perhaps could start all over. See Politiken 14.03.13. Accessed 15 September 2013. It is difficult to comprehend how this could be possible without twisting the Danish Court System.

[58] Kaur, Ravinder presented previously the main arguments in a chronicle in the Danish daily, Politiken with the title; “Danish Caricatures of India: Does Danish not understand that India today is a global and democratic power and not a relic from a distant colonial time?” ”Danske vrangbilleder af Indien. Fatter danske medier ikke, at Indien i dag er en global og demokratisk magt og ikke et levn fra en fjern kolonitid?” Politiken, Kronik. 16.09.2011. http://politiken.dk/debat/kroniken/ECE1394112/danske-vrangbilleder-af-indien/. Accessed 22.07.2013

[59] This would not be the first time where Denmark is appeasing global powers.