Rather than focusing solely on whether AFSPA is needed or not, we need to recognise the restraints that international law and the constitution impose on how wars must be fought
Whenever there is ‘unrest’ in Kashmir, a public chorus of voices emerges that argues Kashmiris should be treated as ‘Indian citizens not mutinous subjects’ , that the only way to bring about lasting ‘normalcy’ to Kashmir, is to ‘normalise’ our relations with it and give Kashmiris the same rights as those afforded to Indians in other states.
Such views often include a demand for the repeal, or at least the amendment, of special legislations under which the security forces operate in Kashmir, particularly the Armed Forces (Special Powers) Act, 1990 which prescribes the extent of certain special powers granted to them in aid of civilian authority, the rules under which they may exercise them, and the circumstances under which army personnel may be prosecuted in a civilian court, for committing crimes in the course of exercising these powers. AFSPA legislates into effect an erasure of normal military distinctions between civilian areas and theatres of combat; combatants and non-combatants; and civilian (trial in a court of law) and military (court-martial) legal consequences from crimes.
The AFSPA debate
The armed forces have consistently opposed the repeal of AFSPA – on the grounds that they cannot defend India’s borders unless they have the special powers bestowed by extraordinary laws behind them, and the freedom such laws provide to operate with legal immunity for military actions in all of Jammu and Kashmir.
Underlying this argument are two premises: First, that the armed forces would not be able to effectively operate in civilian areas as a counter-insurgency force, but for special laws giving them extraordinary powers – such as the use of lethal force in apprehension of a breakdown of public order (rather than only in armed combat), arrest on suspicion, and conduct of searches and seizures without warrants or demonstrable cause. Second, that the territorial integrity of India and the protection of its citizens (including Kashmiris) would be compromised if they were not granted such military immunity in civilian areas (rather than only at the borders) of Jammu and Kashmir. According to the best Indian military minds on the ground, the demand for repeal of AFSPA is thus quite simply, militarily unfeasible if India wants to hold on to Kashmir. This has been the case since AFSPA was imposed in the state in 1990 in order to end an armed insurgency against the Indian state.
The fact is that the armed forces have acted far in excess of the powers bestowed on them through AFSPA, both in the present situation and routinely in the past.
- For instance, nothing in AFSPA allows armed forces to detonate sites at which an armed encounter takes place, as a mode of punishing civilians for ‘helping’ militants – something that is quite routine in military encounters in Kashmir.
- Nothing in AFSPA permits the army to illegally occupy thousands of acres of civilian lands or lay hundreds of miles of minefields across fields, meadows and forests in border areas
- Nothing in it permits the army to routinely check identity cards, blockade roads and traffic, enforce curfews, or to shoot at civilian protestors in the absence of an unlawful assembly (official curfew restrictions which prohibit the assembly of five or more persons).
In short, human rights violations take place in Kashmir despite AFSPA, not because of it.
Impunity runs much deeper
As we have seen in the garrisoned interiors of Chhattisgarh, for instance, the state doesn’t need the legitimacy of a legislation such as AFSPA to justify either its militarised presence, or regulate its belligerent operations.
In fact, the legal validity of AFSPA in Jammu and Kashmir is itself a matter of some dispute – as mandatory notifications under the Act do not appear to have been issued by the Indian government since 2005. The removal of special military powers through a repeal of AFSPA in Kashmir, will not automatically lead to the withdrawal of state forces on the ground – merely a withdrawal of certain special powers legally conferred on the Army, which they do not in any case comply with. The armed forces could legally still continue to remain where they are now, governed by the Army Act (or analogous legislation) and ordinary criminal law. It will not end impunity for military actions, as provisions for prior sanction from the government for civilian prosecution of soldiers and policemen is enshrined not just in AFSPA, but into the Criminal Procedure Code, and has been judicially upheld.
AFSPA provides for the requirement of prior government permission to prosecute a soldier in a civilian court of law, for ‘bona fide acts’ committed whilst deployed in the few specific operations (arrests/ searches/lethal force) they are empowered to carry out under it. In most cases in Kashmir, far from getting to the stage where such sanction must be sought, crimes are routinely not registered when police/armed forces are involved. A recent example is the case of the illegal recording and admitted circulation by the Army of the video of a minor sexual assault complainant in police custody; the police have failed to register a complaint despite her written request three months ago. Such crimes are rarely investigated, and even more rarely do investigations result in prosecutable evidence, such as the identification of a specific accused against whom a trial may proceed. There is overwhelming documented evidence, based on court records and RTI queries to the effect that AFSPA plays only a small role in the ubiquity of legal impunity in Kashmir.
The repeal of AFSPA will neither end the violence perpetrated by the Indian state in Kashmir, nor is it likely to satisfy Kashmiri political aspirations. India’s human rights problem in Kashmir is not one of draconian or bad laws, but of foundational lawlessness – rule without popular legitimacy – leading to an intense, prolonged and often-violent contestation over sovereignty in the region. The focus on AFSPA and law reform, however well intentioned, reduces the Kashmir issue to the manner in which the Indian state conducts itself rather than to basis of Indian sovereignty.
The plausibility of a rapprochement, however desirable in the eyes of Indian constitutionalists, grows ever more remote, with every episode of Indian state violence and repression against Kashmiris. After this current round of funeral gatherings and protests – sparked as they were by the death of an armed fighter that the people of the Valley clearly loved – India can no longer sustain this fantasy of what we’d possibly really like the Kashmir dispute to be about, but which it quite clearly is not. What we are witnessing is not ‘alienation’ from the Indian republic, or merely anger at its military presence in Kashmiri lives, but the long-standing Kashmiri aspiration to be rid of India. It’s time we acknowledged that what India is up against in Kashmir is not ‘unrest’, ‘disturbances’ or roving armed gangs of criminals, randomly indulging in acts of brigandage and banditry, but an armed conflict, a militarised rebellion, supported by a popular civilian resistance, which has the effect of contesting the territorial and sovereign integrity of the Indian state.
The great Indian contradiction
The Indian political state – by which I mean its government officials and politicians, at both international platforms and the Indian parliament – frequently describes the Kashmir dispute as a ‘purely internal matter’, a domestic law and order situation. The Indian military state, on the other hand, often sees it as a ‘proxy war’ by Pakistan, a battle of both military strategies and narratives, and a war against state-sponsored global Islamic terrorism. It is, in its perception, quite clearly a war and a very real, expensive and complex one at that, with India’s territorial integrity at stake. It sees it as such with good cause.
There are 700,000 Indian state (paramilitary, military) forces in Kashmir, including at least one third of the Indian Army, the 4th largest army in the world. The armed forces use military tactics far beyond those permitted by AFSPA, military and surveillance weaponry (including for instance unmanned aerial vehicles, or drones), military command and control structures, and military vocabulary (‘command area’, ’kills’, ‘sanitisation’ and ‘neutralisation operations,’ ‘actionable intelligence’ operational names etc.). It also deploys the martial law framework (and not just special laws, such as AFSPA) to escape prosecution of crimes, committed during the course of military service against civilians.
In the Supreme Court case of Lakhwinder Singh, the Border Security Forces (BSF) argued that personnel governed by the Border Security Forces Act, (analogous to the Army Act), are, vide government notification, always on ‘active service’ in Jammu and Kashmir. And further, following from this, the requirement of a trial by a civilian court of homicide and rape enshrined in their governing statute does not apply. Active service, according to the BSF Act, means the time during which a BSF personnel-
“(a) is attached to, or forms part of, a force which is engaged in operations against an enemy, or
(b) is engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or
(c) is attached to or forms part of a force which is in military occupation of a foreign country” [emphasis added]
The Supreme Court of India upheld the validity of the notification, and held that the off-duty BSF personnel returning from a medical check up, accused of murdering Zahid Farooq, a 16 year old Srinagar boy, could not be tried in an ordinary court of law, as they were always in ‘active service’ in Jammu and Kashmir. The court did not specify which of three legislatively specified categories of military operations Kashmir fell into in its opinion.
The ability to opportunistically swing between these positions – rhetorically presenting Kashmir as a law and order issue, a problem of mass civilian criminality, while ensuring simultaneously that any expression of dissent (both armed and unarmed) in Kashmir is dealt with by military force that is legally unencumbered, as in a military operation, and that the Kashmiri civilian population is treated as enemy subjects – is what drives the machinery of complete impunity for Indian state violence in Kashmir. The liberal demand for the repeal of AFSPA, then, provides a convenient distraction for this doublespeak, allowing India to disregard both the rules of its criminal justice system and its constitutional norms (because it is in fact a war) and the internationally binding laws of war.
The desire for a solution within the Indian legal and constitutional paradigm is often described as being constitutionalist, patriotic and in the ‘national interest’. In adopting this position, India is seen as resisting the imperium of external powers and international bodies and upholding the supreme moral right of a nation to decide what is good for its citizens. Any argument that sees Kashmir as a dispute, or an armed conflict is viewed as a move to ‘internationalise’ the issue contrary to India’s sovereign interest. The fear is that accepting Kashmir is a war zone – as Indian soldiers and the Supreme Court say it is – would apparently undermine the paramountcy of India’s claims over the region as an integral part of its realm and legal jurisdiction.
Constitutional case for seeing Kashmir as a war
The Indian security and political establishment recently dismissed the charge made by Pakistan and by human rights activists that the killing of Hizbul Mujahideen commander Burhan Wani was an ‘extra-judicial execution’ – a killing by state functionaries, without the backing of legal or judicial process. In this view, a ‘terrorist’ or member of an armed group – any person who has ‘taken up arms’ to wage war against the Indian state – is not entitled to the normal protections of life and liberty afforded by the rule of law to Indian citizens.
It is true that Burhan Wani was a member of an armed group and took up arms, with the specific intention waging war on the state. The ongoing armed insurgency in Kashmir is rather well organised. It has ranks, codes of conduct, spokespeople, and a command structure, coordinated by the United Jihad Council, and according to official estimates has about 100 active armed fighters. It would, according to this view, be impractical in military and policing terms to see them only as a criminal gang, and to expect to apprehend or bring them to justice using ordinary techniques of criminal investigations, evidentiary standards, arrest and trial, even with special powers under the AFSPA.
But the view misrepresents the legal position that the protections of Indian law against extra judicial executions did not apply to Wani once he became an armed militant. Besides the provisions of Indian law, India is also party to the Geneva Conventions, 1949 which it signed and ratified in 1950. The Geneva Conventions apply essentially to international armed conflicts, involving state as well as non-state parties engaged in war or war-like combat. However, common Article 3 of the Geneva Conventions applies specifically to the case of ‘armed conflict not of an international character’, and is applicable even in regions that are within a country’s boundaries. It lays down a set of ‘minimum’ binding standards on all parties, including protection of medical neutrality, and prohibitions against violent attacks on civilians, prisoners and the wounded; torture, mutilation, humiliating and degrading treatment, and extra-judicial killings.
The Indian constitution casts a responsibility on us to comply with the conditions of international agreements, treaties and conventions we have ratified, and to treat them as law of the land. The Supreme Court, most famously in the Vishaka judgment has considerably enlarged the ambit of this principle, by allowing the judiciary to supplement domestic legislation with international convention. A constitutional lawyer would be hard pressed to argue that the Geneva Conventions are not Indian law, given their status as a customary norm of international law, an internationally recognised mandatory obligation on states, and the fact that India has acceded to them.
Applying the Geneva Conventions to the armed conflict in Kashmir means that all parties to the conflict, both the Indian armed forces, and militant groups, are protected and regulated by the same internationally accepted common standards.. With reference to non-international armed conflicts, the Convention is limited in scope and has been amplified upon via an Additional Protocol that India has yet to sign. Given that the Additional Protocol embodies rules that have the status of customary international law, Indian armed forces are prohibited from launching attacks on civilian facilities (schools, hospitals, homes etc.) and civilians, including their collective punishment through sexual violence or torture, and the use of weapons and methods of superfluous and unnecessary suffering, such as pump action shot guns (euphemistically referred to as ‘pellet guns’) currently being used as a crowd control measure. Common article 3 of the Geneva Conventions is quite explicit about the fate of armed combatants captured alive, prohibiting:
“The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples.”
Violations of these customary norms make available not just domestic criminal and constitutional remedies, but can, if the international community so resolves, invite international condemnations, sanctions, and prosecutions. Similarly, the Kashmir insurgents who are capable of carrying out horrific attacks against those they perceive as ‘enemy’ civilians as well as any soldiers they capture or render hors de combat, must be held to account for their crimes too. The application of internationally acceptable rules of ‘armed conflict’ makes more readily available to human rights activists on the ground the morally and internationally powerful vocabulary of crimes against humanity and war crimes to judge the acts of all sides.
Not asking for the Geneva Conventions to be upheld out of the misplaced fear of ‘internationalising’ the issue endangers the moral certainties of Indian soldiers. They are fighting in difficult situations of diffused rather than a clearly defined legal line between civilian and combatant, countryman and enemy. Their reputation as an honourable and disciplined fighting force is routinely called into question, and they are reviled by the local population they are apparently there to serve. To expect to wage a war, in our name, without giving them any clear rules of engagement, or a universally acceptable rule book against which they can expect their military actions to be judged – except the special laws of exception, which only state that they are not to be judged by the ordinary rule of law – is doing them an immense disservice, and harm.
Sticking obstinately and disingenuously to a ‘domestic’ focus on AFSPA repeal, also endangers the lives of ordinary, non-combatant Kashmiris, and allows for the silencing of what are in fact war crimes. Crimes such as civilian killings, reprisal rapes, tortures, enforced disappearances, are seen as aberrations or accidents – the regrettable but inevitable consequences of the nature of the war the armed forces are expected to wage, rather than as a criminal military policy of attacks against a civilian population. Serious charges of this nature are routinely dismissed as ‘motivated’ by ‘the intention to malign the security forces’ and are not officially investigated or compensated.
Asking for compliance with universally accepted norms of medical neutrality of hospital staff, patients and buildings, of the non-use of weapons of mass and unnecessary suffering, and the treatment of armed combatants with respect and dignity, are not infringements of India’s constitutional sovereignty, but arguments in favour of its rights as a nation in the modern world order, deserving of a seat at the Security Council.
Good citizens of India need to start demanding that India, as an honest and righteous republic, declare that there is a war being fought against armed militant groups in Kashmir, that we will uphold all international and domestic norms for the waging of war, and that enemy combatants, must do likewise. This will enable a far more realistic national debate on the Kashmir question, and an honest engagement with Kashmiris of all persuasions.
Sometimes, it takes greater moral courage and constitutional conviction to call a thing by its rightful name – to call a war and war – than to pretend it does not exist.
Shrimoyee Nandini Ghosh is a human rights lawyer and researcher based in Srinagar. She tweets @shrimoyee_n