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 :- 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?
- 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?
- Can the Military deny the prerogative of the political leadership to decide what Human Rights these Indian citizen residing in his state should enjoy?
- 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?
- 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?
- Is the Unified Command entitled to rights and privileges such unified commands enjoy in case of open international conflict?
- 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?
- 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
- 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?
- 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.)
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."
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