Wednesday, July 13, 2011

Salwa Judum is bad in law, and worse as policy

The Supreme Court order banning outfits like the Salwa Judum ought to enable us to rethink how we deal with threats to the  authority of the state and the security of the citizens of the country.
The prevailing Westphalian state system has come with its corollary—that the state has a monopoly on violence. Under its domain, sedition, murder, and even lesser crimes, can lead to a legal execution of the perpetrator, while the state’s killing of hundreds and thousands through war, or to suppress insurgents, or even collaterally through acts of commission and omission, are provided legal sanction.
States do allow some kinds of private violence, such as that to protect one’s self and property. But this is strictly, and even pig-headedly, regulated. In UK people have been charged and even convicted of killing career criminals, such as burglars, who broke into their homes.

We also have the private violence of insurgent groups. It seeks to challenge, if not overthrow, the authority of the state. You could count the various separatist movements in the country as well as the Maoist militias in this category.
And then, there are semi-official militias like the Salwa Judum which has been given a fig-leaf of legality by its personnel being designated “special police officers” (SPOs), something which has been challenged by the Supreme Court.
Through history, semi-official or officially sanctioned militias have perpetrated horrific violence whenever they have been deployed—one can think of the Black and Tans in Ireland, or the Ustashe in Croatia. Across Europe, in every country under Nazi occupation, informal militias were created to fight the resistance and kill Jews.
Contemporary international law as well as domestic law and custom have been a check on the actions of the armed forces of a state. But militias have been allowed to operate outside the bounds of even the law that the state that employs them swears by.
Insurgencies are a particular target for this kind of activity. In the main this is because insurgents and partisans reside among the common people and gain their  sustenance from them. Militias, comprising people who are natives of the region and familiar with its terrain, are seen as a major  asset in the counter-insurgency strategies of various regular armed forces.
Many militia men are former insurgents, others are from the criminal fringe of society, willing to ignore the bonds of community and humanity that normally bind people living in a common space. Others are motivated by ethnic or communal hatred towards others living in that space. Organisationally, too, they function outside the strict command and control system which makes it easy to pinpoint authority in the case of the official armed forces.
In the last three decades, Indian security forces have used such actors with increasing frequency. It started with SPOs in Punjab, and was followed by a number of counter-militant outfits in Kashmir and Assam and then in Chhattisgarh.
Paradoxically, the existence of private militias like the Maoists, or the Kashmiris and Nagas, actually raise questions about the quality of the Indian state. It clearly reveals that the state is not fully functional. For that state, then, to set up informal militias is an act of supreme folly, one that would only serve to reinforce the conditions in which the private militias—who by their very existence question the efficacy of the state— continue to function.
Many of those who supported the Nazis in World War II did it from ideological impulses in that they were often members of right-wing and proto-fascist organisations that dotted Europe at the time. Many of the present-day Indian government militias are an outcome of the failure of the state to create the kind of forces that are needed to combat insurgents.
Chhattisgarh, which has been asked to dismantle the Salwa Judum, is a prime example of this. The state police itself is in a laughable shape, like most state police forces in the country. The lumbering CRPF, an anti-riot central police organisation, has never been trained or equipped for counter-insurgency which requires highly trained and mobile forces. In the June 2010 ambush, the force lost more men in one action, than any other force had in a counter-insurgency operation in independent India.
The other paramilitary forces like the BSF are in the same boat. In fact one of the more pernicious aspects of the tactic of using informal militias is that they are not used as supporting forces as one would expect, but as the very cutting edge—in fact as cannon fodder, by the police forces. For that purpose they are provided a thin cover by being designated SPOs.
It is not easy for such an ill-assortment of forces to fight the ideologically motivated and ruthless insurgents who have, in the case of Maoists, developed local roots. The result is that the ill-trained and stressed forces are, more often than not, involved in instances of gross violation of human rights, illegal detention, hostage taking, rape, torture and extra-judicial killing.
The state that permits such behaviour— and the Indian state does by ignoring their actions— is walking on thin ice because the iron law of insurgency is that repression will breed reaction, and undermine the social and ethical cement that binds a society and a nation. The primary blame for this must rest with the Indian political class which has failed to provide the necessary leadership and moral direction to the forces who do their bidding, in the name of the state.
In this, history is not with us. Sovereignty may have been the foundation of the nation state system, but today we effectively live in a post-Westphalian order. On paper at least, we have ceded the right to make war, pre-emptive, or even defensive, without the sanction of the United Nations.
The Common Article 3 of the Geneva Conventions, which India has ratified, declares that even in case of insurgencies, states are bound to apply certain minimum provisions such as the humane treatment of people not involved in active hostilities, including armed forces personnel who have surrendered. Such persons cannot be killed or tortured or subjected to humiliating and degrading treatment. They cannot be sentenced or executed without due process of a regularly constituted court.
India is also party to the International Convention on Civil and Political Rights (ICCPR) which commits the parties to respect the civil and political rights of the individual, specifically the right to life, freedom of religion, speech and assembly and the right to due process and a fair trial. India is not one of the 114 member countries of the International Criminal Court that prosecutes genocide, crimes against humanity and war crimes for the obvious reasons—it cannot legally defend the illegal conduct of the forces under its command.
But there is a larger court that the country must confront—the Indian nation itself. At some point, it will have us weigh our record with our civilisational self-image as a liberal, humane and democratic society. Today, even the most ardent patriot will agree that the scales are tilted against that image.
The Supreme Court has done its bit to right the balance a bit, but, sadly, the leaders of our police and armed forces, and, above all, our babus and politicians, are unable to even see that we have a problem.
Mail Today July 8, 2011

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