December 18, 2009
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By Centre for Land Warfare Studies |
General The Centre for Land Warfare Studies (CLAWS) and the Additional Directorate General (Discipline and Vigilance) jointly organised a one-day seminar on ‘Internal Security: Duties and Obligations in Upholding Human Rights’ on 18 December 2009 at the IDSA Auditorium, New Delhi. The Raksha Mantri, Shri A K Antony and the Chief of the Army Staff, Gen Deepak Kapoor, PVSM, AVSM, SM, VSM, ADC delivered the Keynote Address and the Inaugural Address respectively. Lt Gen Mukesh Sabharwal, AVSM, VSM, Adjutant General, delivered the Valedictory Address. Held in two sessions, the seminar was attended by senior serving officers of Indian armed and paramilitary forces, government officials, central police organisations, members of the strategic community, representatives of human rights institutions and the media. Welcome Address: Brig Gurmeet Kanwal (Retd), Director CLAWS This is part of a series of seminars on internal security that has acquired importance at par with external security. The Indian Army has an impeccable record on human rights and the use of minimum force has always been the guiding principle while conducting such operations. While stray cases of violations do take place in the hostile environment in which the Indian army is operating, such cases are always at the individual level and never at the institutional level. The Army is alive to the problem and has been constantly striving to remove even minor aberrations of such violations. Towards that end this seminar has been organised. Internal security challenges that confront India are varied and complex. As the bastion of national unity, the Indian Army has been at the forefront in combating various forms of sub-conventional conflicts. Our approach has always been humane and people-centric, underscoring the need for upholding the law of the land, deep respect for human rights and minimum use of force to create a secure environment without causing any collateral damage. Upholding human dignity, personal values, fundamental rights and mitigation of hardship to the public are the cornerstones of our professional ethos. Such an ethos is systematically imbibed in all ranks through intensive training, motivation and enforcement of stringent disciple, and a mechanism at various levels of command to monitor operations. The armed forces operate in an environment of extreme provocation, constant media glare and the ever present threat of violation of human rights. While our actions are closely monitored by the Human Rights watchdogs and NGOs, the same can hardly be said of the militants and terrorists whose blatant acts of violence and transgressions are overlooked. Despite all the odds, the track record of Indian Army in upholding human rights is commendable. In fact, there is no other instance in the world, where a country facing a proxy war and intense insurgency, aided and abetted by a foreign power, whose armed forces have maintained such an exemplary conduct despite suffering heavy losses. In dealing with aberrations, the Army has a time tested mechanism in place to ensure that such cases are dealt with in a transparent and expeditious manner. These include establishment of Human Rights Cell at the Army Headquarters. This Cell processes allegations and reports, collects relevant data and analyses them from the legal point of view. Similar mechanisms exist at the Command and Corps level to ensure that all the policies are disseminated down to the last soldier in the combat zone as also to facilitate timely action against any alleged human rights violation. Presently, threats to India’s internal security are varied. They exist in the form of militancy manifested in various forms: drug-trafficking, money laundering, communal violence, provincialism, criminal acts, caste clashes, small arms proliferation, cyber crimes and so on. Of all these, militancy in Jammu and Kashmir, insurgency in the Northeast, and Left-wing extremism in the central parts of India stand out as most serious. The real challenge, however, is dealing with these security threats within the framework of a democratic polity. Adhering to human rights obligations when combating terrorism helps to ensure that advocates of violence do not win sympathy from the ranks of those harmed and alienated by the state. Therefore, attentiveness to human rights concerns is not simply a moral and legal necessity, but also a crucial strategic imperative. Human rights are not new to India. The ancient Indian traditions of dharma embodied human rights consciousness in our civilisation. It is this inherent nature in us that made us one of the original votaries of ‘Universal Declaration of Human Rights’ (UDHR) way back in 1948. India is a signatory to the six core human rights covenants and our government is fully committed to the rights proclaimed in the UDHR at all times. The commanders and soldiers of the Armed Forces are made aware of respect for human rights and laws of the armed conflict at every stage of their military training. As the Raksha Mantri, I am proud to state that our Armed Forces have consciously followed the twin ethics of ‘minimum use of force’ and ‘good faith’ during conduct of operations against the ruthless enemy. It is also noteworthy that the Indian Army on its own established a Human Rights Cell in March 1993 at the Army Headquarters much before the National Human Rights Commission was established. Despite various challenges, pressures and dilemmas, our commitment towards upholding of human rights has been exemplary. We must adopt the policy of ‘zero tolerance’ in letter and spirit towards any instance of human rights violations. Session I Earlier, despite our clean record on human rights, we were constantly lectured on the subject by Western Powers who had never had to deal with the complexity of such type of operations. Today, as they realise the difficulty in operating without collateral damage, a new found respect has emerged for the Indian Armed Forces and their ability to operate in a most difficult and hostile environment while maintaining an impeccable human rights record. We have learnt from our rich experience that upholding human rights is in fact a force multiplier rather than a constraint. Human Rights in Disturbed Areas, responsibility of the state, fundamental rights and their infringements: Mr Dhirendra Singh After World War II, human rights were considered the ‘raison d’être’ of the state. Indian Constituent Assembly carefully considered not only Indian documents like Nehru and Sapru reports, but also then existing UN Charter and UDHR. Battle lines were drawn between the human rights and limitations to be placed on them by the legislature. Part III of our Constitution laid down various rights and the Supreme Court was made as guarantor of those rights. However, to meet the post-independence situation four Ordinances were promulgated to cover Bengal, Assam, Punjab and UP. They were later repealed and AFSPA was enacted. Then many special laws came into being like NSA, MISA, TADA, POTA and now we have the UAPA. They contained harsh provisions like arbitrary arrest, denial of bail, prolonged detention, no presumption of innocence, etc. AFSPA was specifically criticised for being harsh, discriminatory and abusive. Statistically, these laws did not serve much. They were mostly misused. Supreme Court observed that if human rights are violated in the process of combating terrorism it will be self-defeating. As an international commission of jurists mention, these terror laws in long term may lead to institutionalisation of terrorism. The main issue is terrorists also violate human rights and it is also the duty of the state to protect its people. The situation, therefore, is complex. • To deal with such complexity, there is a need to promulgate a doctrine of state power and its ingredients. This should be preceded by a debate in Parliament after building up appropriate consensus. Threats and Challenges for conduct of security operations to establish peace and order in Disturbed Areas: Maj Gen GD Bakshi, AVSM, SM (Retd) The Indian army is one of the most combat tested armies in the post World War II Phase. It has the world’s richest fund of experience in counter-insurgency operation. Where the Americans failed in Vietnam and the Soviets in Afghanistan, the Indian Army has succeeded time and again in this genre of operations. India had developed very successful manpower intensive light infantry model for CI/CT Ops. Indian Army has always employed people friendly operations, going beyond the body count approach. It makes optimal use of Ikhwanis, surrendered undergrounds/terrorists, Territorial Army and Village Defence Committees. Use of heavy firepower is prohibited to avoid collateral damage. Civic Action is the centre of gravity of CI operations. There are extensive efforts to win hearts and minds of the people in the insurgency affected areas. Despite this restraint, there is orchestrated outcry of human rights violations against the Army. They are mostly made by over ground workers of the insurgents to slow down/hinder CI operations. However, upon investigation over 90 percent of these accusations are found to be false. Discussion • There is no visible sign of destruction caused in counter-insurgency operations in either J&K or Northeast unlike in Af-Pak region. As rightly brought out there is a need for a specific doctrine to spell things out. • AFSPA has outlived its utility. It is about time to scrap or at least amend AFSPA. • It is important to involve media to tell the country of armed forces’ record of human rights. It pays to be transparent with the media. It is positive if we handle them properly and it is a good watchdog. • Human rights violation by police and intelligence agencies should also be looked into. For instance Official Secrets Act is also causing human rights violations. • Prime function of the state is to protect its people. Army is called as a last resort when the normal functionaries are not in a position to deal with a situation. It is also the job of the government to prevent a situation that demands employment of armed forces. • Special laws are required due to increase in threats. But, the main issue is finding the right balance in implementing them. There is a suggestion of having review mechanism for special laws. However, that is not going to solve the whole problem. • More than the doctrine, translating it into clear cut legislation is important. In this regard, burden has to be cast on our democratic institutions rather than on just one arm. • While solving Insurgencies is a political act, the Armed Forces set the stage for resolutions through constitutional means. Nearly 60 lakh cases of torture and violence are reported every year that would translate into approximately 2000 cases of allegations every minute. This happens because of the culture of abuse in our society. Physical torture has become part of the normal police drill which has also been misused. India can take a lead role in the field of Human Rights. It is matter of no satisfaction that we are better than the US. In India, conviction rate is just 1.4 percent which acts as an incentive to commit crime. Corruption and crime have become low risk and high profit enterprises. However, Indian Army’s human rights record has been good and army courts are better than the civilian courts in terms of speedy trial and conviction rate. Case Studies on Conduct of CI/CT Operations (Northern Command): Lt Gen NC Marwah, AVSM, General Officer Commanding, 15 Corps The Indian Army primarily believes in conducting small unit operations with minimal use of force. Perseverance and people friendly operations without using heavy gunship are paid utmost attention. Northern Command of the Indian Army is continuously dealing with wide ranging threats like attempts of infiltrations through number of launch pads across the line of control. Presently, about 2500 terrorists are waiting to cross the border in J&K at any opportune moment. Street protests have become part of the normal life. Unfortunately media ignores cases like gruesome murder of innocents by terrorists. No political party takes up such issues. Surprisingly, nobody talks of human rights violations by the terrorists even when terrorists use women and children as human shields and resort to indiscriminate firing. From 1990 to 2009, 1510 charges of human rights violations were filed against security forces and only 35 were found true. In 17 cases Indian Army took suo moto cognisance. Due to strict measures taken by the Indian Army against the offenders, numbers of such cases have reduced drastically. Total of 104 personnel including 39 officers have been punished for violations. While in the same period, 3806 soldiers and officers achieved martyrdom and 9219 faced non-fatal injuries. The data is self-explanatory about the conduct of troops and a testimony of people friendly operations. Case Studies on Conduct of CI/CT Operations (Eastern Command): Brig ST Upasini, SM, Commander 21 Sector, Assam Rifles Assam Rifles is known as friends of hill people and is going to celebrate 175 years in 2010. The Force has an impeccable record as far as respect for HR is concerned. However, false allegations and long trials in the courts affect the morale of the troops operating under stressful environment. Professional conduct of the troops is highly admired by the people. Since armed forces do not have policing powers and authority, legal backing like Armed Forces Special Powers Act (AFSPA) is required. Several years back there was a case of human rights violation filed against Assam Rifles. Three different enquiries were constituted by Assam Rifles, SDM and SDPO. The enquiry reports revealed no HRV had taken place. However, the case lingered on for years. Of late, it was again opened by another civilian officer. Upon investigation, the charges were found baseless as was revealed in the earlier enquiry reports. However, killings by terrorists are ignored. For instance recently, three women and five men were killed by National Liberation Front of Tripura (NLFT). But, this was not covered either by local or national media. Requirement of a Legal Framework to Support Proactive Operations: Maj Gen Dhruv Katoch, SM, VSM (Retd) Terrorists indulge in indiscriminate and indirect targeting of individuals which has a chilling effect on the institutions which protect human rights. It is important to uphold the freedom of the people and provide law enforcement agencies tools to fight insurgency. The tenets of AFSPA entail power to search and arrest without warrant, use of force, if required, destroy arms dump, fortify positions from which attacks are being made and detain the arrested person for 48 hours before handing over to police. Security forces require a legal framework in insurgency affected areas, especially when terrorists have modern weapons. In the absence of such legal framework, chances of terrorists using legal lacuna against security forces will become very high, escalating the number of law suits against armed forces. However, to respect people’s concern including area of application and acceptance by the affected people, duration of legislation like AFSPA should not be more than one year at a time. Upon annual assessment, extensions may be granted on a yearly basis. A panel of eminent persons of impeccable integrity should do this assessment along with representatives from the Armed Forces and the civil establishment. India has already legislated two bills including the creation of a federal agency on the line of the FBI and an Amendments to Unlawful Activities Prevention Act (UAPA). Through these legislations, Government is aiming to set up no escape route for terrorists. However, there is a need to: Obligations of the security Forces towards Human Rights: Mr Fracois Stamm, Head of Regional Delegation ICRC, New Delhi The ICRC is not an anti-war organisation. The aim is to protect people who are not taking part in the war. The ICRC favours bilateral discreet approach in order to build trust and induce improvement. It does not publish the findings. There are half a million POWs all over the world. The ICRC also provides assistance to victims and help restoring family links. Pakistan is an important area of operation for ICRC. India provided aid in 2009 for Sri Lanka and going to figure among top 20 donors to ICRC. The four Geneva Conventions also include situations of non-international armed conflicts. Interestingly out of four conventions three are for the armed forces the fourth deals with the protection of civilians, including in the occupied territories. All the conventions are universally accepted. International Humanitarian Law (IHL) is nothing but detailed codification of principles which were practiced from time immemorial in different societies. India was one of the first countries to ratify IHL and Universal Declaration of Human Rights. IHL provides wider range of protection. The signatories adhere to these rules because they are necessary for and help in obtaining and maintaining international support, avoid chances of reprisal, achieve peace and support civilian population. These are also instrumental in fortifying winning hearts and minds efforts. Discussion: • Video recording is useful for conviction while arresting and interrogating terrorists. KPS Gill after ‘Operation Blue Star’ took surrender of the militants under official video recording and in the presence of media. Video recording is more reliable evidence than the confessions on paper as the chances of culprit admitting to the crime are the highest during the first 12 hours of the arrest. Hong Kong has 300 such recording rooms. Hong Kong’s example can be replicated in India. Confessions on paper generate more contradictions and also mar the possibility of success in conviction. • AFSPA is perhaps the mildest of the statute around the world. Security forces have right to arrest the terrorist only for 48 hours before producing him the nearest police station and then the court. Confessions recorded on video will deter the police from tampering with the evidences. Indian Law already permits telephonic interceptions. • Whenever an allegation of human rights violation is made some officers are potential accused. If you chose to fight through media or legal system, the situation will worsen. Therefore, silence is the best precaution one can take as every time one makes a statement, there is certain element of admission in it. • War crimes come under the jurisdiction of International Criminal Court (ICC). ICRC exempted itself from any testimonies in ICC to safeguard its neutrality. • Each army has its own mechanism to address compensation related cases. Indian Army has provisions like war injury pension and disability pension besides other compensations. • International tribunals are grossly inadequate. There is no international tribunal to take cognisance of war crimes for instance carpet bombing is banned but still used by different countries and non-state actors. So is the case with the land mines. • Filing counter-cases can also be seen as a deterrent against those who falsely try to implicate armed forces personnel. Valedictory Address: Lt Gen Mukesh Sabharwal, AVSM, VSM, Adjutant General Striking a balance stems from a point of fighting with your hands tied behind your back. It has its pros and cons. It is the policy of restraint and constraint. Proactive action is always not possible but sometimes reaction is important. Trust and support of his superiors provide confidence to the soldiers. The use of the force in the balanced manner is very important in insurgency operations. For COIN to succeed, we have to get the level of violence down so that political activities can smoothly take place. We have to be first otherwise adversaries will take advantage of the situation. We also face constitutional restraints. Even then, the Indian Army takes suo moto action and does not wait for FIRs to be lodged. The Army has enough inbuilt mechanisms to take action against human rights violations. It pursues ‘zero tolerance’ violations. At the same time, it is our duty to protect our own people who are innocent. Some cases prolong over six to ten years after the incident. It definitely affects the morale of the soldiers but organisation provides required support. Vote of Thanks: Maj Gen Anil Chait, AVSM, VSM, Additional Director General of Discipline & Vigilance I express my thanks to chairpersons and panellists for their candid presentations and remarks. The aim of the seminar was to enhance the human rights awareness among the security forces. Unless the security forces take pro-active steps, the suffering and pain of the people cannot be minimised. If human rights are violated in the process of ensuring peace and security, the Indian Army takes suo moto action. We make sure that everyone follows the laid down rules and respects civil liberties of the citizens. At times, the question to make a choice between security and freedom arises but one has to remember that if security is sacrificed no one will be there to enjoy freedom.
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