The Human Shield And The Ethics Of Non-International Armed Conflict (NIAC) [i]

International Humanitarian Law (IHL) represents a balance between military necessity and humanitarian considerations in the context of conflict.[ii]  The value of human life which ranks high in the ethics of any religion or school of philosophy, represents the imperative during conflict to alleviate suffering and save lives, and also to treat each individualhumanely and respectfully. In practice military necessity is the justification of measures necessary to achieve a military goal.  Legally and ethically, even military necessity should comply with IHL.

IHL classifies armed conflicts as international armed conflict (IAC) or non-international armed conflict (NIAC).  That an armed conflict is an IAC or NIAC determines which set of rules apply to the conflict.  For instance, IAC can only be between states and concepts such as ‘Prisoner of War’ (POW) and ‘Combatant status’, is found only in the rules applicable to IAC.   The rules regarding IAC number close to 600; those applicable to NIAC number less than 30.[iii]   This dearth of guidance can pose a challenge because the majority of contemporary conflicts are NIAC. This is the problem in deciding the ethics and rules of conflict in Kashmir as has been amply highlighted in the Major LeetulGogoi case.

A recent comment on Facebook while discussing this case refers to Rule 97 of IHL to object to the act of MajLeetulGogoi. The comment quotes Rule 97 in that “utilizing the presence of civilian or other protected person to render certain points, areas or military forces immune from military operations [is prohibited].” It constitutes a war crime in IAC. However, while outlawing human shields in IAC, the issue is not clarified in NIAC.With respect to NIACs, Additional Protocol II does not explicitly mention the use of human shields, but such practice would be prohibited by the requirement that “the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations”.[iv]

If we examine the wordings of Rule 97 then in context of this case the following points emerge:

• Kashmir is an NIAC.
• A murderous mob with intent to use lethal force to stop a polling process which is a legitimate democratic exercise, which is throwing petrol bombs and stones (including some from rooftops which are big enough to be called boulders), is not indulging in a military operation. It is the total and anarchic breakdown of Public Order. A Public Order threat assumes overriding important when it reaches a stage that it threatens the writ of the state, in this case the conduct of elections.
• On the Army’s part, the operation was not a military operation against an enemy. It was a mission to rescue a party of four election duty persons, seven ITBP armed escorts and one J&K Police constable (total 12 people) from a baying mob of about 1200 people[v].
• The armed escort to the polling party who were from a premier Central Armed Police Force could have used their weapons if their life was endangered. However, they must have concluded that they would have been overwhelmed had they done so; or they did not want to take on the criticism of having killed/injured civilians. Since they did not know what to do, they sent frantic calls for help to the Army.
• The Army party of 17 men led by MajGogoi (not a large party by any definition) could have shot their way in or dispersed the mob after firing at it, which may have resulted in numerous civilian casualties, depending on how willingly/quickly they dispersed.
• If seven armed men did not know how to handle the situation with weapons, the plight of the 17 would have been no different if they had followed the traditional approach.
• Letting the 14 people at the polling getting lynched was not an option. Firing on the civilians was not an option. Appeals to the crowd to let the polling party go were not working. Not doing anything and passing the buck to superiors was also not an option. By the time the superior did something, it may have been the end of story for the 14 people at the polling booth.
• Using one man as a human shield to safeguard 31 men and avoid innumerable fatal/non-fatal civilian casualties was NOT a bad option.

The 1949 Geneva Conventions sought to protect civilians in war to avoid a repeat of the horrific slaughter of civilians in World War II.  This convention, however, states that prosecution of those who harm civilians was to be carried out only if the harm they inflicted on civilians was “not justified by military necessity and carried out wantonly”[vi]. Because of this clause, in practice it is easy to cover up infringements by citing military necessity as justification for failure to adhere to international law/convention. An effort was made through Protocol I of the 1977 Convention to overcome this shortcoming. India has not signed the convention and while the United States and Pakistan have signed the convention but they are yet to ratify it.[vii] Non- ratification means that the treaty is not binding on these countries. This is not surprising because otherwise these countries would have to rule out a large number of options that are essential to combat terrorism in NIAC.

This raises the ethical issue that should armies steeped in the tradition of jus in bello or ‘just war’ adapt coercive methods of warfare without being apologetic?  If they are adopted, will it not it ultimately result in the legitimization of terrorism?Another argument advanced to deal with the ethical issue of collateral damage to innocents is the moral principle of “double effect”. Saint Thomas Aquinas is credited with introducing the principle of double effect in his discussion of the permissibility of self-defense in the Summa Theologica (II-II, Qu. 64, and Art. 6). Killing one's assailant is justified, he argues, provided one does not intend to kill him[viii].  This is propounded in countering the use of civilian shields by the terrorists, which is a very common tactic. It could also be used to justify the death of hostages in a hostage rescue operation because this principle states that when it is not possible to separate civilian from military targets [in countering terrorism], it is acceptable to proceed with an attack even knowing that innocents may be killed or injured, because killing innocents was not a part of the plan or intention. Rather, it is, “an unavoidable by-product of legitimate military action.

               Major NitinLeetulGogoi, followed what he thought was the best option in the prevailing situation.Much like the ‘ticking time bomb scenario’ there are no black and white answers to this dilemma. If anyone has a better option he/she could give it in the comments to this article.

Lt Gen GS Katoch (Retd) is an Indian Army Veteran. He is a MS in Defence Analysis from the Naval Postgraduate School, Monterey, California. The views expressed are his own.