When dead bodies of six soldiers were handed over to Indian authorities during recent Kargil conflict a lot of hue and cry was raised. Indian Government alleged that the soldiers had been killed after being taken into custody. It was alleged that the deaths occurred due to torture. While protesting against these killings, Indians completely overlooked the fact that they themselves have been doing the same against Kashmiri youth for years. Thousands of people have become victims of counter insurgency operations of Indian security agencies. Custodial killings have been reported on a large scale. Even relatives of the alleged militants have not been spared. Their houses have been blasted and women subjected to rape. Almost everyday more than a dozen people get killed. Allegations of custodial killings are summarily rejected. In fact India itself never adhered to the norms of International Humanitarian Law while suppressing insurgencies.
The attitude of Indians is similar to the previous attitude of Western colonizers. The imperialist powers while drafting the Hague Conventions relating to law of warfare in the beginning of this century excluded non-international conflicts from the purview of these Conventions. They were ready to observe certain norms of behavior while fighting each other. However in context of their dealings with the people of their colonies, they were not ready to submit to these norms. Like Indian army they also wanted a free hand in dealing with the insurgencies. At that juncture of time, few among the third world nations were active members of the International Community. Others were under the rule of Western Colonizers. They had no say in the international affairs. Once third world countries gained independence they also started to assert themselves. The corpus of International Law relating to warfare was updated. The norms of international humanitarian law were changed to the advantage of the colonized people.
Additional Protocols were added to 1949 Geneva Conventions for application of International Humanitarian Law to insurgencies and other forms of non-international conflicts. States were apprehensive about application of these Protocols. They were scared that acceptance of these on their part may amount to tacit recognition of the insurgencies. In order to remove such apprehensions, Common Article (3) of the Conventions provided that application of the Conventions will have no effect upon the legal position of the parties. Most of the civilized countries nowadays follow the 1949 Conventions and Protocols. Russia also adheres to it in its conflict with Chechnya. Within a day after hostilities ended in Groznyy, Russians and Chechen’s exchanged prisoners with each other. Although Russia does not recognize Chechens, claim for secession yet those who fought for it were treated in accordance with the relevant norms of IHL.
Charity begins at home. Those who expect that their soldiers be treated humanely must observe it while dealing with others. Indians should not forget that those whom they are fighting in Kashmir, Assam, or Punjab are not criminals. Insurgents within these states are fighting for realization of certain ideals. We may dispute genuine-ness of their struggle but no one can dispute their sincerity. One should not forget the fact that those with whom Indian army is fighting are not outlaws or bandits but ordinary human beings. They deserve to be treated humanely. The minimum humane treatment has been prescribed in the Geneva Conventions, and Protocols of 1949. Besides these, International Covenant on Civil and Political Rights also provides that states cannot derogate certain rights even during the times of war and national emergencies. These include right to live, the right not to be tortured or to be held in slavery and the right not to be subjected to expost facto laws or punishments. Observance of these norms in no way is going to effect the Indian position regarding the legal status of those territories. On the other hand this can go a long way in creating goodwill among the alienated people of these states. The conditions of an organized command structure and use of uniforms for entitlement of POW status should be overlooked. These are simply the remnants of colonial attitude. Applicability of these international instruments will not be a one sided affair. Indian army and insurgents both will be its beneficiaries. Brutalities of the conflict will get minimized and civilian population on top of it will have respite from the sufferings to which it is subjected. It will not be a wrong idea for either of the parties to declare observance of the Humanitarian Law unilaterally. Such a declaration will go a long way in persuading the other party to submit to it. It is also likely to generate a lot of sympathy for the declaring party internationally.
When the Janta Party was sharing power with Jan Sangh in 1977-78 there were a lot of allegations that the members of Rashtriya Soim Sevak Sang have penetrated the Indian Administration. With the phenomenal rise of parochialism, it is unlikely that Indian security agencies will have remained immune to this phenomenon. Bharatiya Janta Party itself seems to be familiar with this fact. That is why it often argues in favour of granting facilities of postal voting to the members of the armed forces. How can those who did not spare Gandhi be expected to be just towards those whom they fight and who are regarded as traitors by the Indian state. To them every Muslim is an ISI agent unless otherwise proved. The proof of the loyalty to nation has also to be furnished by the poor Muslim whether he is Ali-Mian or Dilip Kumar. It may be that these elements are the ones who perpetrate inhuman acts against Kashmiris and tarnish the image of Indian army. Those who are concerned about Human Rights should not overlook this fact.
The Human Right commissions both at the state and the central level are of the little benefit to the victims because Indian security forces have been excluded from the preview of their jurisdiction. Administrative inquires are often biased in favour of the members of the security agencies. The civilian officials involved in the investigation being vulnerable to attacks of security forces or their agents feel insecure. In order to evade risks they exonerate the culprits and thus buy their safety from the security agencies. Continuous disregard of the Geneva Conventions and other Human Rights Treaties may compel United Nations to appoint a special Rapporteur. Indian State continues to limit the mandate of ICRC in Kashmir. Kargil Conflict has made Kashmir the focus of International attention. Now there are only two options for India. It has either to check the human rights abuses in Kashmir or remain indifferent and facilitate appointment of an international war crimes tribunal for the valley. After all the human rights violation during the decade long insurgency in Kashmir, according to Samantra Bose the author of “Challenges in Kashmir”, are in no way different in their heinousness than the crimes committed in Kosovo and Bosnia.
The attitude of Indians is similar to the previous attitude of Western colonizers. The imperialist powers while drafting the Hague Conventions relating to law of warfare in the beginning of this century excluded non-international conflicts from the purview of these Conventions. They were ready to observe certain norms of behavior while fighting each other. However in context of their dealings with the people of their colonies, they were not ready to submit to these norms. Like Indian army they also wanted a free hand in dealing with the insurgencies. At that juncture of time, few among the third world nations were active members of the International Community. Others were under the rule of Western Colonizers. They had no say in the international affairs. Once third world countries gained independence they also started to assert themselves. The corpus of International Law relating to warfare was updated. The norms of international humanitarian law were changed to the advantage of the colonized people.
Additional Protocols were added to 1949 Geneva Conventions for application of International Humanitarian Law to insurgencies and other forms of non-international conflicts. States were apprehensive about application of these Protocols. They were scared that acceptance of these on their part may amount to tacit recognition of the insurgencies. In order to remove such apprehensions, Common Article (3) of the Conventions provided that application of the Conventions will have no effect upon the legal position of the parties. Most of the civilized countries nowadays follow the 1949 Conventions and Protocols. Russia also adheres to it in its conflict with Chechnya. Within a day after hostilities ended in Groznyy, Russians and Chechen’s exchanged prisoners with each other. Although Russia does not recognize Chechens, claim for secession yet those who fought for it were treated in accordance with the relevant norms of IHL.
Charity begins at home. Those who expect that their soldiers be treated humanely must observe it while dealing with others. Indians should not forget that those whom they are fighting in Kashmir, Assam, or Punjab are not criminals. Insurgents within these states are fighting for realization of certain ideals. We may dispute genuine-ness of their struggle but no one can dispute their sincerity. One should not forget the fact that those with whom Indian army is fighting are not outlaws or bandits but ordinary human beings. They deserve to be treated humanely. The minimum humane treatment has been prescribed in the Geneva Conventions, and Protocols of 1949. Besides these, International Covenant on Civil and Political Rights also provides that states cannot derogate certain rights even during the times of war and national emergencies. These include right to live, the right not to be tortured or to be held in slavery and the right not to be subjected to expost facto laws or punishments. Observance of these norms in no way is going to effect the Indian position regarding the legal status of those territories. On the other hand this can go a long way in creating goodwill among the alienated people of these states. The conditions of an organized command structure and use of uniforms for entitlement of POW status should be overlooked. These are simply the remnants of colonial attitude. Applicability of these international instruments will not be a one sided affair. Indian army and insurgents both will be its beneficiaries. Brutalities of the conflict will get minimized and civilian population on top of it will have respite from the sufferings to which it is subjected. It will not be a wrong idea for either of the parties to declare observance of the Humanitarian Law unilaterally. Such a declaration will go a long way in persuading the other party to submit to it. It is also likely to generate a lot of sympathy for the declaring party internationally.
When the Janta Party was sharing power with Jan Sangh in 1977-78 there were a lot of allegations that the members of Rashtriya Soim Sevak Sang have penetrated the Indian Administration. With the phenomenal rise of parochialism, it is unlikely that Indian security agencies will have remained immune to this phenomenon. Bharatiya Janta Party itself seems to be familiar with this fact. That is why it often argues in favour of granting facilities of postal voting to the members of the armed forces. How can those who did not spare Gandhi be expected to be just towards those whom they fight and who are regarded as traitors by the Indian state. To them every Muslim is an ISI agent unless otherwise proved. The proof of the loyalty to nation has also to be furnished by the poor Muslim whether he is Ali-Mian or Dilip Kumar. It may be that these elements are the ones who perpetrate inhuman acts against Kashmiris and tarnish the image of Indian army. Those who are concerned about Human Rights should not overlook this fact.
The Human Right commissions both at the state and the central level are of the little benefit to the victims because Indian security forces have been excluded from the preview of their jurisdiction. Administrative inquires are often biased in favour of the members of the security agencies. The civilian officials involved in the investigation being vulnerable to attacks of security forces or their agents feel insecure. In order to evade risks they exonerate the culprits and thus buy their safety from the security agencies. Continuous disregard of the Geneva Conventions and other Human Rights Treaties may compel United Nations to appoint a special Rapporteur. Indian State continues to limit the mandate of ICRC in Kashmir. Kargil Conflict has made Kashmir the focus of International attention. Now there are only two options for India. It has either to check the human rights abuses in Kashmir or remain indifferent and facilitate appointment of an international war crimes tribunal for the valley. After all the human rights violation during the decade long insurgency in Kashmir, according to Samantra Bose the author of “Challenges in Kashmir”, are in no way different in their heinousness than the crimes committed in Kosovo and Bosnia.
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