By Asif Ahmed
Human Rights are those minimal rights which every individual must have by virtue of his being a “Member of the human family”, irrespective of any other consideration. They are based on mankind’s demand for a life in which the inherent dignity of the human being will receive respect and consideration. The most basic rights are the ones that relate to life, liberty and security. To these may be added the right to live with dignity. These rights are equal and inalienable, and universally available to the human family.
On December, 1948 the United Nation General Assembly adopted the Universal Declaration of Human Rights (United Nations, 1948). Article 1 of the declaration states that “All human beings are born free and equal in dignity and rights”. Article 3 emphasizes that “Everyone has the right to life, liberty and security of person”. Article 12 states that “No one shall be subject to arbitrary interference with his privacy”. Article 18 provides for freedom of thought, conscience and religion and Article19 for freedom of opinion and expression. Article 26 gives everybody to right to education. Significantly, the Universal Declaration on Human Rights, in its preamble, calls upon every individual and every organ of the society to promote respect for these rights through teaching and education.
India is a party to the Universal Declaration of Human Rights proclaimed by the UN General Assembly. In India, the essential Human Rights have been embodied in those parts of the constitution which deal with Fundamental Rights and the Directive Principles of the State Policy. Such enjoyment of fundamental freedom can only be achieved as provided when Government, the State and the People are conscious of the need to ensure that every one enjoys human rights. Merely because such human rights are enshrined either in the constitution or in other statutory laws of the country will not help people in realizing human rights. Therefore some positive steps have to be taken to make the rhetoric of human rights into attainable realities.
Violation of Human Rights in War and Low Intensity Conflicts
One might be forgiven for thinking that the very nature of human rights is not a primary consideration for the armed forces of a state which has established them for at least one purpose, to fight a war on its behalf. The fighting of war necessarily involves loss of life, injury to individuals and the destruction of property. There is, it might be argued, little room to consider the human rights of those within the armed forces or those who come into contact with them during a war, whether of an international or of a non-international kind. To provide some amelioration of the condition of the victims of the war, to control the method of war and to limit its consequences, particularly as they affect civilian objects, states have, over a period of time, agreed by treaty to a wide body of international humanitarian law.
Violation of human rights is unfortunately common. Human rights are violated on a large scale during wars, and armed conflicts. This happens in spite of the fact that the basic rules of international humanitarian law- protocols, (International Committee of the Red Cross, 1983). In times of peace human rights violations are common in countries under dictatorship but are also known to take place in the most open democracies. The seminal problem of all laws, including humanitarian law, is the yawning gap between percepts and practices. Possibly, the best way to control the violation of human rights is to educate people about their rights and raise an outcry against violation.
On the account of the alarming rise in armed conflicts and other forms of violence in different parts of the world, most of which are internal in character, countless innocent people have to face hardships and suffering. Political or social actions aimed at alleviating the hardships can be successful only if there is a foundation of humanitarian laws that protect the rights and dignity of individuals and groups. International humanitarian law is a very important branch of international law, which regulates situations of international and internal armed conflicts basically by making it obligatory for parties in a conflict to spare persons not participating in hostilities, and by restricting excessively dangerous or indiscriminate means and methods of warfare.
The Indian Experience
The Indian Army’s engagement in counter insurgency operations for more than 50 years in the North East and for nearly two decades in J & K has some times made it deviate from its civilized ways and its conduct has not been completely free of blemish.
The Indian armed forces are being increasingly used in Low intensity conflicts (LIC) and Counter insurgency operations (CI) in Jammu & Kashmir and the North East region, as also some other States are facing the menace of militancy, naxalism and terrorism from past to present time. The Armed forces of the Union including Para Military force have been deployed in some disturbed areas to aid and assist the State Government authorities to handle internal security situation. In carrying out these tasks, the Army has time and again, come under criticism for human rights violations.
The Indian Armed Forces have often been accused of extra judicial execution of innocent civilians, illegal imposition of curfew, rape, molestation and sexual harassment of women, torture, forced labour and large scale looting of homes and granaries. Various civil liberties organizations have considered the Armed Forces Special Powers Act 1958 (AFSPA), a colonial instrument, modeled on the Armed Forces Special Powers Act 1942, which was enacted to neutralize the Quit India Movement by Britishers. They have accused the Indian government of violating the International standards of human rights, defined by the constitution and the International Bill of Human Rights. The United Nation’s Human Rights Committee, in 1991, found Section 4 of the AFSPA to be incompatible with Articles 6, 9 and 14 of the International Covenant on Civil and Political Rights 1966, which was ratified by India on April 10, 1979. Section 4 of the AFSPA grants special powers to army officers, JCO’s and Non commissioned officers to use force against a person who is acting in contravention of the law in a disturbed area. It also grants them unlimited power to destroy a place being used by an armed group as a training camp or hideout and the power to arrest a person without warrant on suspicion of committing a cognizable offence.
The Armed Forces Special Powers Act (1958), the Unlawful Activities Prevention Act (1967) and the Chattisgarh Special Public Security Act (2006) are some examples of legalization which grant de facto impunity to the security forces. These Acts compound the provisions of Sections of the Criminal Procedure Code (1973) which require prior government permissions before starting legal proceedings against members of the armed forces and the police. Media and some reports documents cases where Indian Security Forces have shot civilians under the authority of law such as the Jammu and Kashmir Disturbed Areas Act and the Armed Forces (Jammu and Kashmir) Special Powers Act. These laws, enacted during the beginning of the conflict, allow lethal force to be used “against any person who is acting in contravention of any law or order for the time being in force in the disturbed area”. Many other laws offer state agents effective immunity from criminal prosecution. These need to be reviewed and repealed as they grant unfettered power’s, which are often prone to human rights violations and result in complete lack of accountability and India should ratify the U.N. Convention against Torture, legislate against inhuman and degrading treatment and enforce it. Indeed, one of the essential principles of international humanitarian law is that a distinction must be made at all times and in all circumstances between combatants and non-combatants, along with its corollary, a distinction between military targets and civilian targets, the later to be protected. There are few conflicts in which this principal is fully respected.
National Human Rights Commission of India on Human Rights violation by Armed Forces
The painful issue of how to protect human rights in times of terrorism and insurgency confronted the National Human Rights Commissions within days of its establishment (1993) with the tragic death of civilians in Bijbehara, in the state of J & K, in the course of a firing by the Para-military force. The Commission took suo -muto cognizance of the incident and after examining the reports, for which it had asked, concluded that excessive force had been used. There has been a strict vigilance by the commission on such kinds of violations. At times, there are allegations of human rights violations by the force who conduct operations against terrorists and on receipt of such complaints, the Commission calls for reports from concerned authorities.
Army has issued strict guidelines to all ranks on the observance Human Rights while operating in such areas. It has also been reported that since 1994, there have been 1318 allegations of Human Rights violations of which, 1269 have been investigated and 54 have been found to be true. 115 persons have been punished. The National Human Rights Commission of India had long back recommended the repeal of the AFSPA, and the enlightened world public opinion stands for the repeal.
In the last 14 years, the Commission has endeavored to curb violation of Human Rights as well as to promote a culture of Human Rights in the country through various measures. The Commission has been organizing training programmes and workshops on Human Rights issues since its inception. The target groups include Police personnel, Armed forces personnel, Judicial officers, Students, Public representatives, NGOs etc. The programmes cover general Human Rights awareness as also some specific issues like rights of the disadvantaged sections e.g. women, tribals, food security, right to education and health and custodial justice etc. The ‘Know your rights’ series brought out by the Commission has proved highly useful in spreading Human Rights awareness. Other publications include Handbook on Human Rights for Judicial Officers, Disability Manual, and Human Rights Education (HRE) for beginners etc.
The National Human Rights Commission requires a broader mandate, greater independence and empowerment to be able to conduct its own investigations and to enforce its decisions. The Protection of Human Rights Act (2006), which was further, diluted its independence, will need to be changed. As declared by the United Nations General Assembly adopted a resolution on December 17, 1979 that “all police officers shall respect and protect human dignity and uphold the human rights of all persons as well it applies to the armed forces, they have to abide by the international conventions against torture and other cruel punishments, principles of international cooperation in the detention, arrest, extraditions and punishment against humanity”, which is paramount in the functioning of the police is not abide by. Since time immemorial police have not been able leash it’s atrocities in spite of the commendable job done by them. Time and again National Human Rights Commission has been show causing the officials of the police as to why an action should not be taken against them. It is of utmost importance to understand various human rights of the individuals, the situations in which violations are likely if sufficient care is not exercised and the likely allegations or charges against personnel of Armed Forces as well the Police.
Role of a Security Personnel in protection of Human Rights
The right relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the international covenants and enforceable by the courts in India. Since there has been an increase in number of cases of terrorist activities, communal riots, activities of Naxalism the role of security forces have become paramount and necessary. These forces although play an important role in protecting the borders, and now their requirement is even more necessary in controlling civil unrest, enhancing the security at the important places and also control and maintain law and order whenever required. The United Nations General Assembly adopted a resolution on December 17, 1979 that all security personnel shall respect and protect human dignity and uphold the human rights of all persons as well it applies to the armed forces, they have to abide by the International conventions against torture and other cruel punishments, principles of international cooperation in the detention, arrest, extraditions and punishment against humanity.
Indian Armed Forces stand on Alleged Human Rights Violations
The understanding of the “citizens in uniform” concept varies from country to country depending on history, military culture, transition from authoritarian rule to democracy, and experience with war and conflict. There is therefore no single model for protecting the human rights of armed forces personnel. A clear constitutional basis is recommended for the armed forces. However they do set the context for the functioning of the armed forces at home and abroad. Constitutional framework is especially important in countries where there has been a transition from civil war. Human rights education should be a core component of training, especially where armed forces have been involved in inter-communal conflict.
Indian Defence Minister A K Antony said at a seminar on ‘Internal Security’ though cases of human rights violations by security forces have been rare, even a single instance of human rights violation is totally unacceptable. Human rights are the lifeblood of a democracy and Terrorists have no regard for human life, or rights and attack the vary basis of a democratic set-up, but they underestimate, or overlook the resilience of a democratic country like ours. One of the major challenges in countering terror is that security forces, on the one hand, have to preserve the territorial integrity, sovereignty of the nation and give a sense of security to the people. On the other hand, in the process of combating terrorism, they also run the risk of being dubbed as authoritarian and repressive. Through repeated terror attacks, the terrorists want the security forces to make mistakes which can be projected as a violation of human rights. Though cases of human rights violation by security forces have been rare, even a single instance of human rights violation is totally unacceptable. The Indian Armed Forces personnel are made aware of the respect for human rights and laws at every stage of their military training. This awareness must be translated into action on the ground. Our Armed Forces must consciously follow the twin ethics of ‘minimum use of force’ and ‘good faith’ during operations against an ‘invisible and ruthless’ enemy. Though the constraints of the security forces are understandable, the security forces too must bear in mind that the process of ‘winning the hearts and minds’ of people is never an easy one task.
In India, the traditional application of humanitarian law to the armed forces is almost as old as the armed conflict themselves. The Indian Army took immediate cognizance of the protection of Human Rights Act, 1993. It established its Human Rights Cell in March 1993, six months prior to the establishment of the National Human Rights Commission in India. Its (COAS) Ten Commandments laying down the code of conduct for all ranks operating against armed insurgents and terrorists i.e. Do’s or Don’ts, are recognized by the Indian Judicial System, and by the United Nations. The doubts about human rights conduct of the soldiers in India and abroad arise currently on account of lack of understanding about terrorism and insurgencies, the difficulties faced in dealing with them, and human rights aberration that take place in such operations.
The Armed Forces may be called upon to provide aid to civil authorities for maintenance of law and order, counter insurgencies, combat terrorism and help the public during natural calamities. While dealing in these types of situations, the Armed Forces come in contact with the public and unavoidably, uses some force, minimal though it may be. The Indian Armed Forces are faced with the dilemma of containing insurgency on one hand and to prevent violations of human rights on the other hand. The Indian Armed Forces especially Army frequently has been painted as ‘monstrous institution of the state’ perpetrating widespread human rights violations by those very countries that in the first place are responsible for funding separatism, insurgency and terrorism in India. While the actions of the armed forces are closely monitored by human rights organizations, the same is not applicable to the acts by the militants. The media too, apparently is oblivious to the blatant human rights violations by the militants.
Sometimes the security forces tend to over react when some casualty occurs to their own comrade. The militants fire at the security forces and then merge with the local population. This Provo Cates the security forces to fire indiscriminately which in turn causes injuries to the local population resulting in violation of human right’s. The Armed Forces are thus required to handle difficult situations during these situations with firmness and courtesy so that its reputation for being impartial, friendly and professionally component is maintained.
Need of Human Rights for Para Military and Armed Forces
Human Rights Education (HRE) is central to this ongoing process. The World Conference on Human Rights in 1993 stated that “Human rights education, training and public information are essential for the promotion and achievement of stable and harmonious relations among communities and for fostering mutual understanding, tolerance and peace”. It called on all States and institutions to include human rights, humanitarian law, democracy and rule of law as subjects in the curricula of all learning institutions in formal and non formal settings.
In India there is not such an institution that can teach the basics of interrogation to the Army officers and other junior leaders. In this enthusiasm to extract the actionable information the individual inadvertently violates human rights. Due to the acute shortage of officers, there are a number of occasions when the counter insurgency operations are being handled by junior and non commissioned officers who might not be adequately equipped with knowledge pertaining to laws regarding human rights. In such circumstances despite the best intentions, violations of human rights may occur. The culture of instant result in forces often leads to irrational acts resulting in violations of human rights.
Many governments, international agencies and NGOs today faced with daunting task of re-establishing peace and order in post-war societies. In so doing rights are an essential component of just societies, but in that HRE is a necessary element in the process of re-establishing stable and just post-war societies. Hence, human rights have become an important concept in both popular and diplomatic language. Human Rights Education (HRE) is based on the premise that human rights will reduce violence within society, if understood as generally accepted principles and rules of society expressed and adapted to a particular society and culture. In practice, however, HRE is rarely a prescribed remedy. For example, in the 1998 report for the UN Research Institute for Social Development, entitled Rebuilding after war, HR or HRE was entirely absent as an element in the process of the rebuilding societies.
The Government of India has the primary responsibility to comply with its earlier national commitments and human rights obligations. The human rights policy should be holistic and multilateral, urge upon accountability, transparency and follow-up actions of the national institutions and officials. The argument that human rights must be sacrificed for national security or national interests must be countered. In fact preservation of human rights standards is the only way to ensure our nation remains secure, as violation leads to greater alienation of the victims.
In Armed and Para military forces the traditional emphasis has been on training rather than education. In many western societies training has tended to focus on the formal equipping of officers and soldier’s with the necessary knowledge of the law and development of practical skills to do their job. Though the armed forces have always been conscious of human rights values, they have been leveled with various allegations of violating the human rights. Thus it is important that the various characteristics of human rights are known and understood by all personnel so that they value them and do not violate them. It is therefore very essential that the government and the armed forces must ensure the preservation and promotion of human rights in the country. Time has come to re-educate the bureaucracy, the Ministry, the media and the defence personnel with the universal human rights standard and ramifications of human rights violations. The State human rights commissions have to be recharged and reactivate.
Human rights education should draw the law enforcing personnel more and more into this effort where they become life long learners. Human rights education should been introduced in the whole curriculum of the Armed Forces, Police Training Institutions and the other agencies. Human rights education and awareness-raising for law enforcement officers should be regarded as the priority of human rights policy in India. All security practices ranging from arrest, interrogation to treatment of suspected persons have been improved in line with human rights principles. Any officers who violate human rights will be brought to justice or face disciplinary action as soon as possible.
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6. Singh.Harwant Lt-Gen (retd.), Fighting Insurgency: Human Rights violations by troops avoidable, The Tribune, Sep.15,2008.