AFSPA debate: Disarming the state: Maj Gen Dr G D Bakshi

The article is full of half truths, lies, illogical claims, and displays the Generals total lack of understanding of fundamentals of Human Rights. When activists argue, they are arguing for rights fundamental to all human beings including Kashmiri people and against Police state in the name terrorism. The tension is between citizens rights and need to fight terrorism. Sacrificing one for the other is the trap demagogues fall! If it is short duration of an emergency, it is understandable. But can an emergency continue for half a century? AFSPA in NE is for more than half a century!

1. The fact that some of the NGOs are funded by foreign sources, does not make their arguments invalid nor their rights to raise the human rights become illegitimate.
2. When some one argues against the state violating human rights, they are NOT arguing for"delegitimize its Counter Insurgency(CI) operation"
3. Which CI strategy argues for violating Human Rights of the population? If the General is aware of rudiments of modern  CI Strategy he should know or at least ought to have known that success of CI totally depends on upholding Human Rights. Please go read: COUNTERINSURGENCY (http://www.fas.org/irp/doddir/army/fm3-24.pdf)  U.S. Army & Marine Corps Counterinsurgency Manual (U.S. Army Field Manual 3-24) Released December 2006 and available on "Secrecy News" blog of Federation of American Scientists. Obviously, the General who pontificates on Human Rights and state policy is not even familiar with his own field of COUNTERINSURGENCY, which he ought to be before displaying his stark ignorance of CI  itself in public space and thus tries to sway the public opinion. What a pity! He is engaged in misleading public opinion and  justifying an unjust law.
4. The whole library of counter terrorism literature of the world is available her: http://counterterrorismblog.org/library/ Does it any where advocate State violating Human Rights in any counter terrorism operations?
5. If CrPC 45 ( http://www.vakilno1.com/bareacts/CrPc/s45.htm) and CrPC 197 ( http://www.vakilno1.com/bareacts/CrPc/s197.htm) protects Army along with the Police, then why do you need AFSPA? His argument is 45 and 197 protects Police but not ARMY is patently false! (Please go and study the sections yourself, General)
6. He says: "Its operations have to be within a legal framework, which sets the rules of engagement". This is a statement as true as mother and apple pie. The premise is correct but his conclusions that hence, AFSPA is legal and minimum needed for the Army is false. The truth is "AFSPA itself is illegal and takes away citizen's fundamental and human rights and such illegal framework is NOT needed for Army to use force! Gen Dyer to use massive lethal force  of the colonial State in Jallianwallahbag did NOT need  AFSPA. AFSPA does not legalize the force but immunizes the "lethal force with brutal regime of "shoot to kill" of innocent civilian population and brutalizes their right to life, property and freedom and that too with no remedy. With AFSPA, even Gen Dyer could have escaped all punishment because AFSPA provides total immunity.  Just because Gen Dyer "acted in good faith" does not mean he is  immune to laws! AFSPA makes him immune to all laws of the land.
7.  He says:  This is precisely what the Armed Forces (Special Powers) Act (AFSPA) does and hence is a critical enabling legislation. It was enacted in September 1958 and has stood the test of time in its operations over the last six decades. He neither understands AFSPA nor the history of brutality AFSPA  (http://ebookbrowse.com/afspa-booklet-cpdm-2010-pdf-d78202446  and   http://www.panossouthasia.org/pdf/Frontpage_on_AFSPA.pdf) had released on the citizen  and that too not for an emergency but for more than half a century. 
8. To say that it has stood the test of time is demagoguery (the methods or practices of a demagogue,  a person, especially an orator or political leader, who gains power and popularity by arousing the emotions, passions,and prejudices of the people.)
9. To say that " There is a concerted campaign that seeks to label this act as draconian" is pure demagoguery. It is draconian because it brutalizes a population by violating its fundamental rights and  human rights with no remedy and that too for half a century ( and not for an emergency).
10. To say : " In reality, it contains the bare minimal powers essential to deal with " itself displays total lack of understanding of counterinsurgency strategy and operations. The author needs to read Rules of Engagement & The Law of War in COUTERINSURGENCY  ( http://www.fas.org/irp/doddir/army/fm3-24.pdf)
11. He says: Because  so many Arms, ammunition and grenades are found (over 80,000 AK series rifles; over 1,300 machine guns; over 2,000 rocket launchers; some 63,000 hand grenades and 7 million rounds of ammunition.), hence AFSPA is justified is itself irrational and illogical. To deal with those who take up arms against state, you do not need AFSPA ( AFSPA immunizes Army from law with NO remedy for citizen ) Cr P C and IPC  is more than sufficient and you do not need AFSPA. (  http://delhicourts.nic.in/CrPC.htm and http://www.vakilno1.com/bareacts/indianpenalcode/indianpenalcode.htm

1. 121.	Waging, or attempting to wage war, or abetting waging of war, against the Government of India
   121A.	Conspiracy to commit offences punishable by section 121
   122.	Collecting arms, etc., with intention of waging war against the Government of India
   123.	Concealing with intent to facilitate design to wage war

2. 
   

I have only answered his first three paragraph. It is full of false claims, irrational logic and false and misleading conclusions. I think it is more than sufficient to prove that he has not understood nor researched issues involved before making so called "authoritative statements".  His logic is totally screwed up. He is misleading the public. One who does this is termed a demagogue.

Nath

______________________________________________

Logical errors are, I think, of greater practical importance than many people believe; they enable their perpetrators to hold the comfortable opinion on every subject in turn. Source: Bertrand Russell, A History of Western Philosophy (Book-of-the-Month Club, 1995), p. 93. 

____________________________________________________

__________________________________________________________________________________

AFSPA debate: Disarming the state

Maj Gen Dr G D Bakshi | Nov 18, 2011, 05.00AM IST

NEW DELHI: The AFSPA debate in this country has recently been ramped up by many decibels.

There appears to be a concerted campaign on the part of some foreign-funded NGOs to demonize the Army and delegitimize its Counter Insurgency(CI) and Counter Terrorist (CT) operations.

It must be remembered that the Army is the instrument of last resort of the state and it has successfully tamed insurgencies in the northeast and vicious terrorist movements in Punjab and Jammu & Kashmir. It is brought in only once the local police and Central Armed Police Forces (CAPFs) have failed to control the situation. Its operations have to be within a legal framework, which sets the rules of engagement, and also provides basic protection from prosecution (as available to the police under Section 45 and 197 of the CrPC) for personnel acting in good faith. This is precisely what the Armed Forces (Special Powers) Act (AFSPA) does and hence is a critical enabling legislation. It was enacted in September 1958 and has stood the test of time in its operations over the last six decades.

There is a concerted campaign that seeks to label this act as draconian. In reality, it contains the bare minimal powers essential to deal with highly militarized and well-armed terrorists and insurgent groups, with extensive foreign support and sanctuaries. The scale of militarization of the current internal conflicts is not generally understood. In J&K alone, the Indian Army has since 1990, recovered over 80,000 AK series rifles; over 1,300 machine guns; over 2,000 rocket launchers; some 63,000 hand grenades and 7 million rounds of ammunition.

This is no peaceful civil protest - it has turned J&K into a virtual war zone. Few people are aware that since 1990, the Indian Army has lost 5,108 officers, JCOs and jawans fighting Pakistan's proxy war. The Army conducted concerted operations and eliminated over 20,000 terrorists, a large proportion of whom were foreign terrorists. The constitutional validity of this act was challenged in the Naga Peoples Movement for Human Rights versus Union of India (UOI) case. A five-judge constitutional bench of the Supreme Court of India upheld the validity of the act.

In fact, having considered the real circumstances under which the armed forces have to act, the honourable court extended the scope of the powers vested under Section 4 and 6 of the AFSPA and added the power to interrogate a person arrested and retain the weapons seized. The Supreme Court, thus, did not find the powers excessive but short of what was really needed. The SC is the most respected institution in this country and has upheld the need and validity of this law. Far from being draconian, AFSPA is the bare minimum warranted in view of threats faced by the security forces.

The Supreme Court's appraisal was realistic and took note of the ground realities. It is a great pity that some foreign-funded NGOs have brazenly put themselves above the Supreme Court of the land; in demonizing the Army, they are also trying to discredit this magnificent institution in which the nation reposes so much faith.

There is a concerted campaign to question the validity of this act and thereby delegitimize the operations of the Army. The Indian scene cannot be seen in isolation from the rest of the world.

After 9/11, the US and its allies have waged a war against terror. There are 13 International Counter Terrorism Conventions in force, ranging from hijacking, piracy and intelligence sharing. The UN Security Council resolutions have called for legislative reforms by countries to combat terror. These are resolutions that are binding on member states.

In response, democratic countries like the USA, UK and European Union states have enacted stringent anti-terror laws to includepreventive detention, control orders and warrantless searches. After 9/11, these laws were made even more stringent and included provisions to track funds and tap phones. The US Patriot Law is far more stringent than the AFSPA. The result is for all to see, after 9/11, there has not been a second terrorist attack on the soil of continental USA. Unfortunately, in India, it has now become commonplace for 2-3000 citizens to perish each year at the hands of the terrorists and Maoist insurgents.

Very surprisingly, the liberal lobby in India has taken the very opposite approach. While there is an outcry about the human rights of the terrorists, the liberal lobby demonstrates a blase attitude towards the lives of their innocent victims. Kasab and Afzal Guru are the causes celebre of this bleeding-heart lobby.

This lobby even exerts pressure on the government to scrap the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Terrorism Act (POTA). The only act now remaining in the state's armoury is the Unlawful Activities (Prevention) Act of 1967 (which needs to be greatly strengthened).

Having got rid of TADA and POTA, the foreign-funded NGOs have set their sights on the AFSPA. There is a concerted assault upon the state's will to use legitimate force to protect its citizens from violent armed groups whose lethality is increasing by the day, in terms of the support they get from state actors like Pakistan and China.

World over, the approach of nations in tackling terrorism and insurgency is akin to the one followed by our own government. To that extent, it was incorrect on the part of Omar Abdullah (CM of J&K) to ignore the written advice of his military commanders. The entire Pakistani terror infrastructure is intact and thriving. There are some 2,000-2,500 terrorists in training camps. Some 700-850 are on the launching pads and hold camps near the Line of Control (LoC). Around 230 terrorists made 35 attempts to infiltrate this year.Nearly 50 terrorists have been killed in 2010 so far, 19 in the last two months alone.

The situation is clearly not conducive to premature declaration of victory and we need to guard against any sudden deterioration.

The Americans are withdrawing from Afghanistan in 2014. In 1989, once the Soviets left Afghanistan, a massive number of out-of-job HUA (Harkat-ul-Ansar) and HUJI (Harkat-ul-Jihad-al-Islami) terrorists had been diverted to J&K and all terrorist training camps had shifted from PoK to the AfPak border region. Will history repeat itself after 2014? It is highly premature to lower our guard.

Partial removal of AFSPA from selected districts only creates sanctuaries, which the terrorists exploit to the hilt to rest, regroup and strike again. The CM has stated that the Army has not operated in Srinagar and Budgam for over three years. This is incorrect. Each morning the Army and eight companies of the CRPF sanitize the strategic road through the city for our logistic convoys to Kargil and Ladakh for the critical winter-stocking tasks.

Not only the road, an area of nearly 3 sq km on either side has to be sanitized. The airfield in Srinagar is a critical target and a 2km cone on either end has to be sanitized to ensure that no SAMs or RPGs are fired at the aircraft.

Srinagar is the pivot of all political activity in J&K. All the terrorist command-and-control and financial (hawala) networks operate from here. Most intelligence, even about LoC crossings, is gathered in these urban centres. Premature removal of the act from these areas would be highly counterproductive. Once removed, AFSPA cannot, in practice, be reimposed in a hurry.

In a quiet summer, the state government should have consolidated its position on governance and delivery front. Unfortunately, the hunt for populist gimmicks has prompted the beleaguered state politicians to target the Army in a most irresponsible manner. They have tried to manufacture causes for the separatists to exploit. It is a tribute to the tenacity of our Army that terrorism has been so drastically curtailed in J&K. We have won all the battles on the ground. We should not lose the war by self-inflicted goals and premature declarations of complete victory.

AFSPA and Human Rights

Right to a remedy under the ICCPR

The AFSP Act's provision that provides immunity for military officers from any prosecution,
suit or any other legal proceeding in respect of anything done or purported to be done in
exercise of the powers conferred by the Act is incompatible with article 2 (3) of the ICCPR
which provides the following:
"Each State Party to the present Covenant undertakes: (a) [t]o ensure
that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official capacity;
(b) [t]o ensure that any person claiming such a remedy shall have his
right thereto determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided for
by the legal system of the State, and to develop the possibilities of
judicial remedy; (c) [t]o ensure that the competent authorities shall
enforce such remedies where granted".

(a) Requirements of article 2(3) of the ICCPR
It is a well-established principle of international human rights law that violations of human
rights, such as unjustified deprivation of life, torture, cruel, inhuman and degrading treatment
and arbitrary arrest and detention entail a duty on the part of state authorities to conduct a

                                                                                                                                                                                                                                                                          _____________________________                                                                                                                                                               
152 Human Rights Committee, Concluding Observations on the Sixth Periodic Report of the Russian Federation, UN
Doc. CCPR/C/RUS/CO/6 (24 November 2009), at para. 25.
153 Ibid., at para. 27.

prompt, impartial and effective investigation. This principle is reflected in article 2 (3) which
requires that individuals have accessible and effective remedies to vindicate their human rights.154
Where public officials or State agents have committed violations of the Covenant rights such as
those guaranteed under articles 6, 7, and 9 thereof, the state may not relieve perpetrators from
personal responsibility, for example, through amnesties or immunities.155 Other impediments to
the establishment of legal responsibility should also be removed, such as the defence of
obedience to superior orders or statutes of limitation.156
The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law157 specify that the right to an effective remedy has two components. It
comprises a procedural right to effective access to justice158 and a substantive right to receive
adequate forms of reparation,159 namely restitution, compensation, rehabilitation, satisfaction and
guarantees of non-repetition. Failure to ensure a remedy in respect of effective access to justice
or obtaining adequate forms of reparation could in and of itself give rise to a separate breach of
the ICCPR.160
The right to an effective remedy includes a corresponding duty of the state to conduct effective
investigations. Indeed, the Committee frequently states in its views that respondent States parties
found to have violated substantive rights should undertake "a comprehensive and impartial
investigation" of the issue found to be in breach of the Covenant.161 Where sufficient evidence is
available, states must bring to justice perpetrators of human rights violations through criminal
prosecution and punishment of those responsible for such violations.162 Perpetrators may not be
relieved from personal responsibility if they are public officials or State agents. No official status
justifies immunity from legal, primarily criminal, responsibility for persons who may be accused
of serious human rights violations, such as arbitrary killings, torture, cruel, inhuman and
degrading treatment, and enforced disappearances.163
(b) Compatibility of the Act with article 2 (3) of the ICCPR
The all-embracing immunity provision of the AFSP Act effectively precludes the possibility of
redress for victims of serious human rights violations resulting from its application. The law
itself is in breach of article 2 (3) in relation to cases where substantive rights guaranteed by the
ICCPR, including the right to life, to be free from torture, cruel, inhuman and degrading
treatment, and not to be arbitrarily arrested and detained, have been violated, or there is a
credible allegation that they have been violated.
                                                                                                                                                                                                                                                                          _____________________                                                                                                                                                               
Human Rights Committee, General Comment No. 31, supra note 85, at para. 15.
Ibid., at para. 18.
156 Ibid.
157 Adopted and proclaimed by the UN General Assembly Resolution 60/147 of 16 December 2005,
http://www2.ohchr.org/english/law/remedy.htm.
158 Ibid., para. 12.
159 Ibid., para. 18.
160 Human Rights Committee, General Comment No. 31, supra note 85, at para. 18.
161 Wilson v. The Philippines, Human Rights Committee, UN Doc. CCPR/C/79/D/868/1999 (30 October 2003), at para. 9.
162 Bautista v. Colombia, Human Rights Committee, UN Doc. CCPR/C/55/D/563/1993 (13 November 1995), at para. 8.6.
163 Human Rights Committee, General Comment No. 31, supra note 85, at para. 18.


In its practical effect, the immunity provision of the AFSP Act resembles amnesty laws that
make it impossible to investigate and prosecute perpetrators of serious human rights violations,
including torture. It effectively shields the military officers operating in Manipur from
prosecution and results in impunity. Indeed, no cases are known in which the Central
Government waived the immunity of military officers alleged to have been responsible for
violations.
This runs counter to the Vienna Declaration and Programme of Action adopted at the seminal
World Conference on Human Rights, which urged all states to "abrogate legislation leading to
impunity for those responsible for grave violations of human rights such as torture and
prosecute such violations, thereby providing a firm basis for the rule of law".164 The Human
Rights Committee expressed its concern about the fact that criminal prosecutions or civil
proceedings against members of the security forces acting under special powers (such as the Act)
may not be commenced without the sanction of the central Government of India. It noted that
this contributes to a climate of impunity and deprives those individuals who are on India's
territory and within India's jurisdiction of remedies to which they are entitled in accordance with
article 2 (3) of the ICCPR.165 There has been no change in the law or in practice that would
undermine the validity of the Committee's findings in this regard.

                                                                                                                                                                                                                                                                          ____________________________________                                                                                                                                                              
164  UN Doc. A/CONF.157/23 (12 July 1993), at para. 60.
165 Human Rights Committee, Concluding Observations on the Third Periodic Report of India, supra note 3, at para. 21.

AFSPA, Military and Human Rights

AFSPA, Military and Human Rights

Indian Military's action  of preventing AFSPA  being lifted from selected parts of Kashmir taken in anticipation of imminent and dangerous threat from the citizens of India in Kashmir  is much worse than the possible Kashmiri action to fight military's  resistance  to lift imposition of AFSPA!

For the Kashmiri, it is a  reality it has lived with and will continue to live with for foreseeable future  even when the political will of the citizen expressed through their political leaders wants to lift AFSPA! How sad?

Why AFSPA should not be lifted? Because the military will have to face number of court cases in which it will have to defend itself!
Isn't that too much of a burden? So, let us prevent Kashmiris to enjoy the minimum of Human Rights protection which all humans on earth are entitled!

Non-international armed conflict is characterised under international law by the twin criteria of “the protracted extent of the armed violence [intensity criterion] and the extent of organisation of the parties involved [organisation criterion]”

Most armed groups, with the exception of the more marginal ones, have now ceased hostilities in the valley.  The remaining ones are reportedly mostly involved in armed conflict with the nation which Army is at full liberty to respond to. It follows that both the intensity and organisation criteria relating to the existence of the armed conflict are not fulfilled, and the  prevailing situation is better characterised as “lawlessness” rather than an active armed conflict, which is actually the province of the Police unless the political authority determines that it is beyond the capability of the local police.

The provision of the AFSP Act containing the authorisation to use lethal force and even shoot to kill  is incompatible with article 6 of the ICCPR which provides the following: Every human being has the inherent right to life. No one shall be arbitrarily deprived of his [or her] life.

The provision of the AFSP Act containing the authorisation to arrest persons is incompatible with article 9 of the ICCPR which provides the following:
“1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his [or her] liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his [or her] arrest and shall be promptly informed of any charges against him [or her].
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release ...
4. Anyone who is deprived of his [or her] liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his [or her] detention and order his [or her] release if the detention is not lawful.

The debate on AFSPA is becoming distracted by who is more important or who has more power to impose the will on the situation, Army or the Chief Minister. It should ask simple questions and issues examined with out passion and with humility. A citizen to be reined in as a responsible member of the society requires:

1. strict criminal laws passed 2. strict enforcement of these criminal laws. 3. Fear that if laws are violated, he will be caught in all probability, prosecuted, and punished and sentenced to jail term or send to the gallows.

A soldier provided with a gun and made to operate in a troubled region can be reined in as responsible member of the society even if:

1. He is given full power, authority and power of law to enforce his will on the civilian.

2. Summary power to execute if necessary according his sole judgement on the spot.

3. No criminal law which he himself imposes on the subjects applies to him as he can not be charged with any infringement.

4. There is no fear that he will be caught, prosecuted, punished or sentenced to jail or sent to to the gallows.

5. In fact he is assured that he is immune from all laws and all fear of prosecution and sentencing.

6. He is the sole judge of his actions and there should no judicial review!

All I am saying is all humans (civilian citizen or men in uniform) behave almost similarly under similar circumstances. Do you have wild objections to such conclusions? Aristoltle's oft quoted words represent the best of truism: Man, when perfected, is the best of animals, but when separated from law and justice, he is the worst of all.

 Who should decide whether the area is disturbed? The civil head of administration or the man in uniform who should get full immunity under AFSPA? Or the Unified Command? It is total lack of understanding of human nature and how power operates and how checks and balances should provide justice and fairness to the citizen. AFSPA is giving free hand to kill with no judicial review.

AFSPA does not give power to soldier for just for self defence or minimum use of force for bringing order but give open license  to use excessive use of force and no judicial review whether excessive use of force was used or not. You can expect a soldier's own comrades to suppress transgression  or defend him with silence or false witness or the camaraderie of the Army fail to charge him with crime in the military courts martial. Should the civilian have  a right to report violation of law against the soldier and expect due process is the question?  Law enforcer can commit crime while summarily disposing on the spot one man verdict and execution but the civilian should have no legal due process, seems little strange!

It is never the case that the soldier should not have freedom to use the minimum force required to make the citizen comply with military action to tackle  immediate danger and grave law and order situation. You do not require AFSPA for that. You do not require magistrate's signature under aid to civil authority for that. Is this so difficult to get?

Issues to be decided are :

1. Can the state Chief Minister on the advise of the Police Chief and Chief of CRPF declare the law and order situation in parts of his state is safe enough for lifting of AFSPA containing the authorisation to use lethal force on the citizen living in some parts of the state?
2. Can CM, as people's representative of their political will, determine that the Indian citizens residing in selected places in his state enjoy  human rights (which every citizen of the world ought to enjoy ) which AFSPA denies to these citizens?
3. Can the Military deny the prerogative of the political leadership to decide what Human Rights these Indian citizen residing in his state should enjoy?
4. Are total suspension of all human rights and imposition of state wide AFSPA with no exemption the  minimal pre-requisite condition needed for the military to remain deployed in the state?
   
5. Is it the prerogative of the Unified Command to determine whether the Indian citizen living in parts of the state should enjoy minimal Human Rights and suspension of AFSPA?
6. Is the Unified Command entitled to rights and privileges such unified commands enjoy in case of open international conflict?
7. Does the name Unified Command conjure up the image of grand war theatre where  an international conflict exist or is it just an aggregation "law enforcement" agencies at the sate level in which local Army commander is also represented?
8. Can such a collection of "law enforcement" agencies determine that the citizen of the state should have no protection of Fundamental Rights  under the constitution of India  including fundamental and Human Rights
9. Is the burden that  military will have to face  a number of court cases in which it will have to defend itself reason enough to deny fundamental and Human Rights to  the Indian citizen residing in the state as determined by the elected political representative of the state  and its Police Chief?
10. Should the military have sole voice to determine where its services should be called for  law enforcement in the State  and whether the Indian citizen of the State should be denied fundamental and Human Rights and  the extend and  duration  for which these remain suspended?( AFSPA means denial of Human Rights Period.)
    

These are the questions that need to be answered.

The words of Churchill in the British Parliament during the debate on the Jallianwallah Bag massacre is relevant:" I have heard the hon. Member for Hull (Lieut.-Commander Kenworthy) speak on this subject. His doctrine and his policy is to support and palliate every form of terrorism as long as it is the terrorism of revolutionaries against the forces of law, loyalty and order. Governments who have seized upon power by violence and by usurpation have often resorted to terrorism in their desperate efforts to keep what they have stolen, but the august and venerable structure of the British Empire, where lawful authority descends from hand to hand and generation after generation, does not need such aid. Such ideas are absolutely foreign to the British way of doing things."

Human Rights Asia Final Report on AFSPA & Army

Right to a remedy under the ICCPR

The ASFP Act's provision that provides immunity for military officers from any prosecution,
suit or any other legal proceeding in respect of anything done or purported to be done in
exercise of the powers conferred by the Act is incompatible with article 2 (3) of the ICCPR
which provides the following:
"Each State Party to the present Covenant undertakes: (a) [t]o ensure
that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official capacity;
(b) [t]o ensure that any person claiming such a remedy shall have his
right thereto determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided for
by the legal system of the State, and to develop the possibilities of
judicial remedy; (c) [t]o ensure that the competent authorities shall
enforce such remedies where granted".

(a) Requirements of article 2(3) of the ICCPR
It is a well-established principle of international human rights law that violations of human
rights, such as unjustified deprivation of life, torture, cruel, inhuman and degrading treatment
and arbitrary arrest and detention entail a duty on the part of state authorities to conduct a

                                                                                                                                                                                                                                                                          _____________________________                                                                                                                                                               
152 Human Rights Committee, Concluding Observations on the Sixth Periodic Report of the Russian Federation, UN
Doc. CCPR/C/RUS/CO/6 (24 November 2009), at para. 25.
153 Ibid., at para. 27.

prompt, impartial and effective investigation. This principle is reflected in article 2 (3) which
requires that individuals have accessible and effective remedies to vindicate their human rights.154
Where public officials or State agents have committed violations of the Covenant rights such as
those guaranteed under articles 6, 7, and 9 thereof, the state may not relieve perpetrators from
personal responsibility, for example, through amnesties or immunities.155 Other impediments to
the establishment of legal responsibility should also be removed, such as the defence of
obedience to superior orders or statutes of limitation.156
The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law157 specify that the right to an effective remedy has two components. It
comprises a procedural right to effective access to justice158 and a substantive right to receive
adequate forms of reparation,159 namely restitution, compensation, rehabilitation, satisfaction and
guarantees of non-repetition. Failure to ensure a remedy in respect of effective access to justice
or obtaining adequate forms of reparation could in and of itself give rise to a separate breach of
the ICCPR.160
The right to an effective remedy includes a corresponding duty of the state to conduct effective
investigations. Indeed, the Committee frequently states in its views that respondent States parties
found to have violated substantive rights should undertake "a comprehensive and impartial
investigation" of the issue found to be in breach of the Covenant.161 Where sufficient evidence is
available, states must bring to justice perpetrators of human rights violations through criminal
prosecution and punishment of those responsible for such violations.162 Perpetrators may not be
relieved from personal responsibility if they are public officials or State agents. No official status
justifies immunity from legal, primarily criminal, responsibility for persons who may be accused
of serious human rights violations, such as arbitrary killings, torture, cruel, inhuman and
degrading treatment, and enforced disappearances.163
(b) Compatibility of the Act with article 2 (3) of the ICCPR
The all-embracing immunity provision of the AFSP Act effectively precludes the possibility of
redress for victims of serious human rights violations resulting from its application. The law
itself is in breach of article 2 (3) in relation to cases where substantive rights guaranteed by the
ICCPR, including the right to life, to be free from torture, cruel, inhuman and degrading
treatment, and not to be arbitrarily arrested and detained, have been violated, or there is a
credible allegation that they have been violated.
                                                                                                                                                                                                                                                                          _____________________                                                                                                                                                               
Human Rights Committee, General Comment No. 31, supra note 85, at para. 15.
Ibid., at para. 18.
156 Ibid.
157 Adopted and proclaimed by the UN General Assembly Resolution 60/147 of 16 December 2005,
http://www2.ohchr.org/english/law/remedy.htm.
158 Ibid., para. 12.
159 Ibid., para. 18.
160 Human Rights Committee, General Comment No. 31, supra note 85, at para. 18.
161 Wilson v. The Philippines, Human Rights Committee, UN Doc. CCPR/C/79/D/868/1999 (30 October 2003), at para. 9.
162 Bautista v. Colombia, Human Rights Committee, UN Doc. CCPR/C/55/D/563/1993 (13 November 1995), at para. 8.6.
163 Human Rights Committee, General Comment No. 31, supra note 85, at para. 18.


In its practical effect, the immunity provision of the AFSP Act resembles amnesty laws that
make it impossible to investigate and prosecute perpetrators of serious human rights violations,
including torture. It effectively shields the military officers operating in Manipur from
prosecution and results in impunity. Indeed, no cases are known in which the Central
Government waived the immunity of military officers alleged to have been responsible for
violations.
This runs counter to the Vienna Declaration and Programme of Action adopted at the seminal
World Conference on Human Rights, which urged all states to "abrogate legislation leading to
impunity for those responsible for grave violations of human rights such as torture and
prosecute such violations, thereby providing a firm basis for the rule of law".164 The Human
Rights Committee expressed its concern about the fact that criminal prosecutions or civil
proceedings against members of the security forces acting under special powers (such as the Act)
may not be commenced without the sanction of the central Government of India. It noted that
this contributes to a climate of impunity and deprives those individuals who are on India's
territory and within India's jurisdiction of remedies to which they are entitled in accordance with
article 2 (3) of the ICCPR.165 There has been no change in the law or in practice that would
undermine the validity of the Committee's findings in this regard.

                                                                                                                                                                                                                                                                          ____________________________________                                                                                                                                                              
164  UN Doc. A/CONF.157/23 (12 July 1993), at para. 60.
165 Human Rights Committee, Concluding Observations on the Third Periodic Report of India, supra note 3, at para. 21.

Human Rights Asia Final Report on AFSPA & Army

Here is a through analysis of AFSPA from Human Rights  perspective including 168 references and notes from authoritative sources

Can any one find any argument against this  authoritative analysis.

1. [PDF] 
   

   1. The Armed Forces (Special Powers) Act, 1958 in

   www.humanrights.asia/.../AFSPA1958Review-Aug2011.pd... - Indonesia

   You +1'd this publicly. Undo

   File Format: PDF/Adobe Acrobat
   decision makers with a comprehensive analysis of the Act's compatibility with India's .... Armed Forces (Assam and Manipur) Special Powers (Amendment) Act, 7 of ... prosecution, suit or other legal proceeding shall be instituted, except with the .... Rights Documentation Centre, Armed Forces Special Powers Act: A Study in ...

Just because our Army commander claims that "it is NOT  Draconian" does not make it humane.

How many of the members of the military have read this?
How many of the members of INEX have read this?
I guarantee, the answer is not even one!

Let me quote Maj Gen Rajendra Prakash:Thus, debates based on crass ignorance of ground realities are harmful for the community- it is like banning a book or a movie without having read/seen them. Soldiers are quite clear on where they stand on AFPSA, but is everyone else?

Really?
Why are we losing all our rational ability to judge for ourselves?
Why are we more brutal than the colonial power that ruled us?
Why should not the NE and & J & K feel brutalised at this law that abolishes  protection of  Constitution & laws and rights of the citizen?
Why should  Kashmir and NE be alienated with such draconian law that immunises protection of laws not for an emergency but for decades?
Why can't we realise that it is NOT in our own interest?

Is it "Vinash Kale Viparith budhy?"

When Churchill said the following words in the British Parliament in the debate on the Jallianwallah Bag massacre , he was not referring to independent India imposing its will on NE & J & K:

"Governments who have seized upon power by violence and by usurpation have often resorted to terrorism in their desperate efforts to keep what they have stolen, but the august and venerable structure of the British Empire, where lawful authority descends from hand to hand and generation after generation, does not need such aid. Such ideas are absolutely foreign to the British way of doing things."


By  Army insisting of AFSPA while political masters wanted to remove it, Army has done a biggest disservice to all men in uniform past and present and the nation because it is not in the Army's own interest. To day Army is being perceived as the enemy terrorising the citizen of  these disturbed areas, not the actual terrorist! Perception is everything.

It should have been the other way. Instead of Army  being looked upon the saviour, we are thwarting attempts by the political authority in removing this draconian law from even "parts of the valley".

How sad! Even if we have little loyalty to the uniform we wore, we should oppose this Draconian law that dispenses with protection of all laws.

We should have made CM come begging to the Army to establish law and order!
Instead we allowed him to be the hero and we the villain!

My  heart aches at our stupidity and naivete.
Nath

AFSPA: Soldiers clear of Implications , but is everyone else?

The debate on AFSPA is becoming distracted by who is more important or who has more power to impose the will on the situation, Army or the Chief Minister. It should ask simple questions and issues examined with out passion and with humility. A citizen to be reined in as a responsible member of the society requires:

1. strict criminal laws passed
2. strict enforcement of these criminal laws.
3. Fear that if laws are violated, he will be caught in all probability, prosecuted, and punished and sentenced to jail term or send to the gallows.

A soldier provided with a gun and made to operate in a troubled region can be reined in as responsible member of the society even if:

1. he is given full power, authority and power of law to enforce his will on the civilian.

2. Summary power to execute if necessary according his sole judgement on the spot.

3. No criminal law which he himself imposes on the subjects applies to him as he can not be charged with any infringement.

4. There is no fear that he will be caught, prosecuted, punished or sentenced to jail or sent to to the gallows.
5. In fact he is assured that he is immune from all laws and all fear of prosecution and sentencing.
6. He is the sole judge of his actions

All I am saying is all humans (civilian citizen or men in uniform) behave almost similarly under similar circumstances. Do you have wild objections to such conclusions?

Aristotle's oft quoted words represent the best of truism: Man, when perfected, is the best of animals, but when separated from law and justice, he is the worst of all.

Who should decide whether the area is disturbed? The civil head of administration or the man in uniform who should get full immunity? or the Unified Command? It is total lack of understanding of human nature and how power operates and how checks and balances should provide justice and fairness to the citizen.

AFSPA is giving free hand to kill with no judicial review. AFSPA does not give power to soldier for self defence or minimum use of force for bringing order but use excessive use of force and no judicial review whether excessive use of force was used or not. You can expect a soldier's own comrades to defend him with silence or false witness or the camaraderie of the Army fail to charge him with crime in the military courts martial. Should the civilian have right to report violation of law against the soldier and expect due process is the question.

Law enforcer can commit crime while summarily disposing on the spot one man verdict and execution but the civilian should have no legal due process, seems little strange! It is never the case that the soldier should not have freedom to use the minimum force required to make the citizen comply with immediate danger and grave law and order situation. You do not require AFSPA for that. You do not require magistrate's signature under aid to civil authority for that.

 Is this so difficult to get?

AFSPA: Soldiers clear of Implications , but is everyone else?

All those who supported shoot to kill and supported immunity from all  laws  in the form of AFSPA should feel remorse.

I have proved the limitation of power of the state against its own citizen that:

1. AFSPA is brutal and draconian.
2. An egalitarian democratic  state does not need it.
3. It is unfair to the citizen.
4. f Kashmir is India the people should be treated as Indians not left feeling oppressed by its army.
5. Equal treatment for all Indians is called for.
6. Let army personnel accused of crimes against the people of India stand trial in Indian Courts!
7.  If our colonial power did NOT need such draconian laws for enforcing law and order, we do not need it either.

 "..to support and palliate every form of terrorism as long as it is the terrorism of revolutionaries against the forces of law, loyalty and order. Governments who have seized upon power by violence and by usurpation have often resorted to terrorism in their desperate efforts to keep what they have stolen, but the august and venerable structure of the British Empire, where lawful authority descends from hand to hand and generation after generation, does not need such aid. Such ideas are absolutely foreign to the British way of doing things."

Let us not behave like colonisers in Kashmir and North East. Let us be a modern egalitarian democracy with respect for the citizen's rights to life and property. Let us respect Rule of Law and  Human Rights as  defined by the modern society and not be  barbarians intoxicated with state power.

If British colonisers (including  Churchill who was acknowledged to be highly anti Indian  hawk) did not need such raw uncontrolled State power, let us not  ask for it in this 21st century against our own brothers, sisters, uncles and aunts and senior citizens in Kashmir and North East.

The point needs no further argument, I presume.
"It is absurd to hold that a man ought to be ashamed of being unable to defend himself with his limbs but not of being unable to defend himself with speech and reason, when the use of reason is more distinctive of a human being than the use of his limbs. (I.1355b1) Aristotl

AFSPA: Soldiers clear of Implications , but is everyone else?

"Obey as per the order or suffer the consequences." has the same emotional and tonal quality as:

Brigadier-General Reginald E.H. Dyer  :
Do you want war or peace? If you wish for a war, the Government is prepared for it, and if you want peace, then obey my orders and open all your shops; else I will shoot. For me the battlefield of France or Amritsar is the same. I am a military man and I will go straight. Neither shall I move to the right nor to the left. Speak up, if you want war? In case there is to be peace, my order is to open all shops at once. You people talk against the Government and persons educated in Germany and Bengal talk sedition. I shall report all these. Obey my orders. I do not wish to have anything else. I have served in the military for over 30 years. I understand the Indian Sepoy and Sikh people very well. You will have to obey my orders and observe peace. Otherwise the shops will be opened by force and Rifles. You will have to report to me of the Badmash. I will shoot them. Obey my orders and open shops. Speak up if you want war? You have committed a bad act in killing the English. The revenge will be taken upon you and upon your children."^[31]
___________________________________________________

After reading the above words on the lines of your own statement:"Obey as per the order or suffer the consequences."
don't you feel even little remorse?

If you dont, please read on:

Mr. CHURCHILL

I agree absolutely with what my right hon. Friend has said, and the opinions he has quoted of the Adjutant-General in India, of the distasteful, painful, embarrassing, torturing situation, mental and moral, in which the British officer in command of troops is placed when he is called upon to decide whether or not he opens fire, not upon the enemies of his country, but on those who are his countrymen, or who are citizens of our common Empire. No words can be employed which would exaggerate those difficulties. But there are certain broad lines by which, I think, an officer in such cases should be guided. First of all, I think he may ask himself, Is the crowd attacking anything or anybody? Surely that is the first question. Are they trying to force their way forward to the attack of some building, or some cordon of troops or police, or are they attempting to attack some band of persons or some individual who has excited their hostility? Is the crowd attacking? That is the first question which would naturally arise. The second question is this: Is the crown armed? That is surely another great simple fundamental question. By armed I mean armed with lethal weapons. §
Men who take up arms against the State must expect at any moment to be fired upon. Men who take up arms unlawfully cannot expect that the troops will wait until they are quite ready to begin the conflict—

Armed men are in a category absolutely different from unarmed men. An unarmed crowd stands in a totally different position from an armed crowd. At Amritsar the crowd was neither armed nor attacking. [Interruption.] I carefully said that when I used the word "armed" I meant armed with lethal weapons, or with firearms. There is no dispute between us on that point. "I was confronted," says General Dyer, "by a revolutionary army." What is the chief characteristic of an army? Surely it is that it is armed. This crowd was unarmed. These are simple tests which it is not too much to expect officers in these difficult situations to apply.
But there is another test which is not quite so simple, but which nevertheless has often served as a good guide. I mean the doctrine that no more force should be used than is necessary to secure compliance with the law. There is also a fourth consideration by which an officer should be guided. He should confine himself to a limited and definite objective, that is to say to preventing a crowd doing something which they ought not to do, or to compelling them to do something which they ought to do. All these are good guides for officers placed in the difficult and painful situation in which General Dyer stood.
My right hon. Friend (Sir E Carson) will say it is easy enough to talk like this, and to lay down these principles here in safe and comfortable England, in the calm atmosphere of the House of Commons or in your armchairs in Downing Street or Whitehall, but it is quite a different business on the spot, in a great emergency, confronted with a howling mob, with a great city or a whole province quivering all around with excitement. I quite agree. Still these are good guides and sound, simple tests, and I believe it is not too much to ask of our officers to observe and to consider them. After all, they are accustomed to accomplish more difficult tasks than that. Over and over again we have seen British officers and soldiers storm entrenchments under the heaviest fire, with half their number shot down before they entered the position of the enemy, the certainty of a long, bloody day before them, a tremendous bombardment crashing all around—we have seen them in these circumstances taking out their maps and watches, and adjusting their calculations with the most minute detail, and we have seen them show, not merely mercy, but kindness, to prisoners, observing restraint in the treatment of them, punishing those who deserved to be punished by the hard laws of war, and sparing those who might claim to be admitted to the clemency of the conqueror. We have seen them exerting themselves to show pity and to help, even at their own peril, the 1728 wounded. They have done it thousands of times, and in requiring them, in moments of crisis, dealing with civil riots, when the danger is incomparably less, to consider these broad, simple guides, really I do not think we are taxing them beyond their proved strength.

We cannot admit this doctrine in any form. Frightfulness is not a remedy known to the British pharmacopœia. I yield to no one in my detestation of Bolshevism, and of the revolutionary violence which precedes it. I share with my right hon. and learned Friend (Sir E. Carson) many of his sentiments as to the world-wide character of the seditious and revolutionary movement with which we are confronted. But my hatred of Bolshevism and Bolsheviks is 1729 not founded on their silly system of economics, or their absurd doctrine of an impossible equality. It arises from the bloody and devastating terrorism which they practice in every land into which they have broken, and by which alone their criminal regime can be maintained. I have heard the hon. Member for Hull (Lieut.-Commander Kenworthy) speak on this subject. His doctrine and his policy is to support and palliate every form of terrorism as long as it is the terrorism of revolutionaries against the forces of law, loyalty and order. Governments who have seized upon power by violence and by usurpation have often resorted to terrorism in their desperate efforts to keep what they have stolen, but the august and venerable structure of the British Empire, where lawful authority descends from hand to hand and generation after generation, does not need such aid. Such ideas are absolutely foreign to the British way of doing things.

These observations are mainly of a general character, but their relevance to the case under discussion can be well understood, and they lead me to the specific circumstances of the fusillade at the Jallianwallah Bagh. Let me marshal the facts. The crowd was unarmed, except with bludgeons. It was not attacking anybody or anything. It was holding a seditious meeting. When fire had been opened upon it to disperse it, it tried to run away. Pinned up in a narrow place considerably smaller than Trafalgar Square, with hardly any exits, and packed together so that one bullet would drive through three or four bodies, the people ran madly this way and the other. When the fire was directed upon the centre, they ran to the sides. The fire was then directed upon the sides. Many threw themselves down on the ground, and the fire was then directed on the ground. This was continued for 8 or 10 minutes, and it stopped only when the ammunition had reached the point of exhaustion.

It stopped only when it was on the point of exhaustion, enough ammunition being retained to provide for the safety of the force on its return journey. If more troops had been available, says this officer, the casualties would have been greater in proportion.

1730 If the road had not been so narrow, the machine guns and the armoured cars would have joined in. Finally, when the ammunition had reached the point that only enough remained to allow for the safe return of the troops, and after 379 persons, which is about the number gathered together in this Chamber to-day, had been killed, and when most certainly 1,200 or more had been wounded, the troops, at whom not even a stone had been thrown, swung round and marched away. I deeply regret to find myself in a difference of opinion from many of those with whom, on the general drift of the world's affairs at the present time, I feel myself in the strongest sympathy; but I do not think it is in the interests of the British Empire or of the British Army, for us to take a load of that sort for all time upon our backs. We have to make it absolutely clear, some way or other, that this is not the British way of doing business.
I shall be told that it "saved India." I do not believe it for a moment. The British power in India does not stand on such foundations. It stands on much stronger foundations. I am going to refer to the material foundations of our power very bluntly. Take the Mutiny as the datum line. In those days, there were normally 40,000 British troops in the country, and the ratio of British troops to native troops was one to five. The native Indian Army had a powerful artillery, of which they made tremendous use. There were no railways, no modern appliances, and yet the Mutiny was effectively suppressed by the use of a military power far inferior to that which we now possess in India. Since then the British troops have been raised to 70,000 and upwards, and the ratio of British to native troops is one to two. There is no native artillery of any kind. The power and the importance of the artillery has increased in the meantime 10 and perhaps 20-fold. Since then a whole series of wonderful and powerful war inventions have come into being, and the whole apparatus of scientific war is at the disposal of the British Government in India—machine guns, the magazine rifle, cordite ammunition, which cannot be manufactured as gunpowder was manufactured except by a scientific power, and which is all stored in the magazines under the control of the white troops. Then there have been the great develop- 1731 ments which have followed the conquest of the air and the evolution of the aeroplane. Even if the railways and the telegraphs were cut or rendered useless by a strike, motor lorries and wireless telegraphy would give increasingly the means of concentrating troops, and taking them about the country with an extraordinary and almost undreamed-of facility. When one contemplates these solid, material facts, there is no need for foolish panic, or talk of its being necessary to produce a situation like that at Jallianwallah Bagh in order to save India. On the contrary, as we contemplate the great physical forces and the power at the disposal of the British Government in their relations with the native population of India, we ought to remember the words of Macaulay— and then was seen what we believe to be the most frightful of all spectacles, the strength of civilisation without its mercy. Our reign in India or anywhere else has never stood on the basis of physical force alone, and it would be fatal to the British Empire if we were to try to base ourselves only upon it. The British way of doing things, as my right hon. Friend the Secretary of State for India, who feels intensely upon this subject, has pointed out, has always meant and implied close and effectual co-operation with the people of the country. In every part of the British Empire that has been our aim, and in no part have we arrived at such success as in India, whose princes spent their treasure in our cause, whose brave soldiers fought side by side with our own men, whose intelligent and gifted people are co-operating at the present moment with us in every sphere of government and of industry. It is quite true that in Egypt last year there was a complete breakdown of the relations between the British and the Egyptian people. Every class and every profession seemed united against us. What are we doing? We are trying to rebuild that relationship. For months, Lord Milner has been in Egypt, and now we are endeavouring laboriously and patiently to rebuild from the bottom that relation between the British administration and the people of Egypt which we have always enjoyed in the past, and which it was so painful for us to feel had been so suddenly ruptured. It is not a question of force. We had plenty of force, if force were all that was needed.
1732 What we want is co-operation and goodwill, and I beseech hon. and right hon. Gentlemen to look at the whole of this vast question, and not merely at one part of it. If the disastrous breakdown which has occurred in a comparatively small country like Egypt, if this absolute rupture between the British administration and the people of the country had taken place throughout the mighty regions of our Indian Empire, it would have constituted one of the most melancholy events in the history of the world. That it has not taken place up to the present is, I think, largely due to the constructive policy of His Majesty's Government, to which my right hon. Friend the Secretary of State for India has made so great a personal contribution. I was astonished by my right hon. Friend's sense of detachment when, in the supreme crisis of the War, he calmly journeyed to India, and remained for many months absorbed and buried in Indian affairs. It was not until I saw what happened in Egypt, and, if you like, what is going on in Ireland to-day, that I appreciated the enormous utility of such service, from the point of view of the national interests of the British Empire, in helping to keep alive that spirit of comradeship, that sense of unity and of progress in co-operation, which must ever ally and bind together the British and Indian peoples.
____________________________________________________________________

Now, think hard. Does the situation that demands  and justify force as stated above   require  immunity from all Criminal laws of the country ( AFSPA) ?

AFSPA is blanket immunity from all criminal laws of the country. With AFSPA, Indian Government is acting worse than the colonial power. We are acting like a colonial power over Kashmir and North East.

If the criteria laid down by  Mr Churchill are met, you do not require AFSPA. You do not need Magistrate's signature for Aid to Civil authority.

Then why should Army insist on AFSPA: Complete immunity from all criminal law and power to shoot to kill with no question asked?
You be the judge.

Sir, do you feel little remorse at Brig Gen Dyer's words: "Obey as per the order or suffer the consequences."

If you don't, the problem is little deeper than originally imagined: psychopathic!
Psychopathy (/saɪˈkÉ'pəθi/^[1][2]) is a mental disorder characterized primarily by a lack of empathy and remorse, shallow emotions, egocentricity, and deceptiveness. Psychopaths are highly prone to antisocial behavior and abusive treatment of others, and are very disproportionately responsible for violent crime. Though lacking empathy and emotional depth, they often manage to pass themselves off as average individuals by feigning emotions and lying about their pasts.