Unfortunately, the government, which has a declared attitude of zero-tolerance to violations of human rights, is dragging its feet in acting on several such instances. There seems to be a major confusion in the minds of our politicians and civil and military leaders about the rights of soldiers who may kill as part of their duty, and those who turn murderers in the perverted performance of that duty.
War
The soldiers’ is a peculiar profession. His is the only job which requires, on occasion, that he offer up his life for his country. It is also the only one which provides him the authority, on the orders of a legal state, to kill another human being. Usually, though not always, this happens in war time, and the enemy is the soldier of another state whose job, in turn, is to kill him.
This combat is called ‘war’ and in modern times, far from being a free-for-all as one may think, its conduct is governed by international law. Soldiers, even in war, are duty-bound to act within certain moral and legal boundaries. Some of these are inscribed in the Hague and Geneva Conventions which most nations of the world are party to. Others have emerged out of the practice of international law, especially in relation to the International Tribunal for the former Yugoslavia.
Society fetes rather than scorns the soldier for his profession which involves the atavistic job of killing or being killed. But it also expects him to maintain the highest levels of discipline, observance of the law of his land, as well as operate on a self-imposed code of conduct, whose key component is the concept of honour.
But sometimes soldiers do not observe these restraints. They ignore discipline, law and, most certainly, honour, to kill another human being who is neither a combatant, nor any kind of a threat to the soldier. There is no other word to term this but “murder”. When this happens on a large scale, as has been alleged recently alleged in Sri Lanka, or earlier in Serbinica, it is called a war crime.
The laws of war as defined by the Hague and Geneva Conventions essentially argue that there is nothing absolute about even total war. In recent decades non-state conflict, insurgencies and uprisings have made the original definitions of war crimes and breaches specified by the conventions somewhat obsolete. The more contemporary law is even more emphatic on the need to protect non-combatants and for the use of proportionate force i.e., you do not flatten a city or a building and kill thousands or even tens of people because you want to kill a terrorist.
Since 2000, there have been several questionable instances of crimes by security forces in J&K. The most telling incident is what is called the Pathribal incident. On March 20, 2000, a group of Lashkar-e-Tayyeba terrorists massacred 35 Sikhs in the village of Chittisinghpora in Anantnag district. There was great satisfaction when just five days after the incident, the Army announced that a team of the Rashtriya Rifles and the Special Operations Group of the J&K Police had managed to corner the group of five foreign militants and eliminate them at a place called Pathribal and the bodies of the men, allegedly burnt in the fierce encounter were buried in a common grave.
Sadly, this was untrue. The killing of the five men coincided with the report of five people having gone missing in villages around Anantnag a few days after the Chittisinghpora killings. After protests, in which another eight people were shot, the government initiated a probe, and on exhumation of the bodies, the families positively identified them as their
relatives.
Attempts were made, including switching blood samples for the DNA tests, to derail the inquiry. In 2002, the CBI was brought in and it took four years to confirm that the five men had been murdered and in July 2006 murder charges were brought against four officers.
Law
The Army and the Ministry of Defence have challenged the proceedings at every step. The J&K High Court ruled in favour of the CBI which argued that the men could not claim protection of the Armed Forces Special Powers Act which only provides indemnification for acts which were done in the line of duty, or good faith. But the Army went on appeal to the Supreme Court and that is where the matter is stuck since 2007.
There have been other such instances. In February 2006, a captain and personnel of the Rashtriya Rifles shot and killed four young boys who were doing nothing more than playing a game of cricket in Doodhipora village in Kupwara district. In other instances the villain has been the Special Operations Group of the J&K Police which has murdered people and passed them off as militants to claim the reward.
In an insurgency area, there are occasions when the Army and the police may kill non-combatants— while enforcing a curfew or prohibitory orders, in a cross-firing with militants, or, simply, in instances of mistaken identity. Parliament has therefore passed the AFPSA to guarantee that they will not be charged with homicide for these actions. But to claim that the law also protects an act of murder is a monstrous interpretation of the statute.
Honour
What can be done to deal with soldiers who become murderers? Certainly, legal proceedings to punish them are a must. But equally important is to understand the ethos of impunity in which they are operating. This relates to the actions and activities of the civil and paramilitary police where human rights violations are often the norm. The rot began with the Punjab Police in the years of the Khalistani militancy, when the offer of huge cash rewards led to a spate of murders of innocent villagers, incidents which remain unpunished to this day.
Our political leaders must not heed bogus claims of police and military leaders that “morale” will be affected if action is taken against soldiers and constables. Beating a person to death, or shooting an unarmed man actually reflects poor morale. While no one will grudge the right of soldiers and policemen to indemnify themselves against accidental killings, no law of the Indian Union should be used to justify murder or torture.
The Prime Minister must go beyond mere declaration of “zero tolerance” and insist on its practice. One step that needs to be taken is to institute a clear chain of accountability for human rights violations. Perpetrators must be punished, but action must also be taken against superior officers for failing to exercise command
and control.
The Army itself needs to understand the importance of regaining its moral compass. Ask any Indian Army officer as to which virtue he prizes above all others, the answer will probably be “honour” or “izzat”. It is for the izzat of the regiment and his fraternity that the soldier gives his everything, including his life. That izzat is a compound of two other words— courage and fidelity.
But where is the honour in gunning down an unarmed, innocent man, or in providing fraternal protection to a murderer?
This article appeared in Mail Today June 10, 2010
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