The army has often been plagued by rights’ abuses as it battles counter-insurgency in various states. To ameliorate the situation, an Additional Director General (Human Rights) has been appointed.
Col R Hariharan |Cover story |IL Feature| India Legal |January 29, 2021
The New Year eve
announcement of the Indian Army appointing Major General Gautam Chauhan as
Additional Director General (Human Rights) formally recognises the importance
of human rights in military operations. This is in keeping with the global
trend of increased human rights awareness, particularly in unconventional and
low intensity conflicts.
General Chauhan
will head the Additional Directorate General for Human Rights under the
Vice-Chief of Army Staff (VCOAS) responsible for planning and execution of
operations. He will be assisted by an officer of SSP/SP rank from the Indian
Police Service on deputation. Details of the Directorate’s structure,
responsibilities and functions are not yet available.
The creation of an
exclusive body under the VCOAS for dealing with human rights issues has not
come a day too soon. For nearly 75 years, the army has been shouldering the
humongous responsibility of fighting insurgency groups, wholly or partly, in tandem
with civil armed police forces. According to India’s Conflict Map 2019,
published in the South Asia Terrorism Portal (SATP), as many as 170 districts
in 13 states of the country were affected by Left Wing Extremist (LWE) a
collective term for the ultra-left, Maoists and Naxalites insurgency. In six
north-eastern states, 69 districts faced some form of insurgency or extremism.
In J&K, 19 districts are affected by militancy of a different kind because
the Pakistan Army has been using militants and jihadi terror groups to bleed
India. It had been providing arms, training and operational support to
militants to continue a proxy war, launched from sanctuaries across the Line of
Control in Pakistan-occupied areas. This makes the counter insurgency (CI) operations
in the state a hybrid war, where the terrorists further Pakistan’s strategic
objective. This further complicates the murky operational scene in J&K.
According to the
SATP insurgency datasheet, in the last two decades, over 45,442 lives have been
lost in the country in 23,166 incidents involving insurgents. The database
shows 76 terrorist and insurgent groups are active, while 106 groups remain
inactive. Each of the 13 affected states has its own political situation that
has contributed to the rise of insurgent groups. They fight for their own
ideological, ethnic, separatist or religious causes. Some of the states such as
Nagaland, Manipur and Mizoram are prone to trafficking of humans, arms and
drugs. These provide opportunities for insurgent groups to survive. The
possibility of troops involved in every operation, committing human rights
violations, intentionally or otherwise, is therefore real. In spite of these
issues, the army has an enviable record as a disciplined force that respects
human rights in carrying out CI operations even in an extremely provocative
environment.
The Army Doctrine
2004 conceptualised CI operations in conformity with the emerging dynamics of
social consciousness on human rights. It defined the military aim of CI
operations as “conflict management” rather than “conflict resolution”, which is
a larger political objective that requires a national strategy. Not harming an
innocent person “even if a terrorist escapes” became the norm of the Doctrine.
The army ceased to use the number of “kills” in CI operations to assess
performance and replaced it with the ability to make a militant surrender. We
can see its impact in current operations against terrorists in J&K. The
army has also set up a feedback and grievance helpline—984101010—in the Kashmir
Valley to allow people to report cases of human rights violations.
Much of the
discussions on human rights excesses in CI operations focus on the Armed Forces
Special Powers Act, which provides police powers to army personnel. They seem
to miss the elephant in the room: weakness of the armed forces judicial system,
based on the Army and Air Force Acts of 1950 and the Navy Act of 1957. These
Acts of colonial vintage enable the armed forces to internalise the process of
investigation, prosecution and defence and trial. It selects the panel of
judges from its own ranks under the advice of their own judge advocate general.
The defence minister’s committee of experts in
its 2015 report lays bare the weaknesses of the armed forces judicial system. Part
V of the report “Matters concerning military justice and reforms thereon”
says the Indian Military Acts, enacted soon after independence, reflecting “the
mindset of a force of occupation and
were modelled on the provisions of the Crown.” Though British laws had kept
pace with changing times, the basic structure of Indian Military laws remained
the same, except a few cosmetic changes or amendments forced by decisions of
Constitutional Courts. Even these changes it averred “did not come as a way of
introspection or desire to be abreast with global practices, but were forced
and reluctantly adopted.” It said “the independence of judiciary and separation
of powers in the civilian set-up in letter and spirit, which, even as on date,
remains a far call in the military.”
Its comment on the
claim of swiftness of military justice is worth pondering: “…swiftness or
quickness of trial or a high rate of conviction may reflect procedural
efficiency but not judicial soundness of the system.” It also says that “most
of the democracies have moved on, but we are clinging on to a system long
aborted by others”. Unless the military justice system is overhauled, the slur
of human rights violations on troops will continue to linger, in spite of the
sacrifices made by brave soldiers.
Ironically, three
days before the announcement of Gen Chauhan’s appointment, a police report
alleged an army officer and two of his associates had planted weapons on the
bodies of three labourers killed in South Kashmir to make it look as though
they were militants in a staged gun battle. Further investigation identified
the army officer and other personnel involved and the army is processing the
case.
It underlines the
enormity of the task that awaits Gen Chauhan in the uncharted waters of dealing
with human rights issues in the army. Presumably, when he gets going, a lot of
clarity will emerge in the process for handling accusations of human rights
violations, which often remains murky. This is mainly due to aberrations
outside the control of the army.
Many of the
soldiers recruited in the army, invariably grow up in an environment deprived
of some human rights such as equality, right to free speech and movement.
Often, they carry their own baggage of social aberrations in terms of tribal,
caste and communal prejudices and patriarchy, which condition their attitudes
to human rights. On joining the army, under the Army Act, the soldier loses
some of the fundamental freedoms that are available to the citizen. This is a
functional requirement of the army to enforce discipline with an iron hand and
is essential for successful conduct of operations. However, such an environment
hardly encourages the growth of human rights consciousness.
In his basic
training, the soldier is trained to carry out conventional warfare, where shoot
to kill is the key to his survival. In spite of this, the army is able to train
and mould him to meet the basic requirement of carrying out CI operations, as
part of a disciplined force. On moving to a CI scene, the soldier is invariably
put through training that imparts skill in fighting a decentralised operation,
using minimum force, to hunt out the extremists operating among civilians. But
it is not easy. So, a great deal of interactive training will be required to
improve the soldier’s basic understanding of the requirements of human rights.
These are issues relevant not only to troops, but all the three limbs of
democracy.
—The writer is a military intelligence specialist
on South Asia, associated with the Chennai Centre for China Studies and the
International Law and Strategic Studies Institute
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