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Indian Express, 28.11.2014
Opening in the Valley
H S Panag
In the Budgam case, which was an error of judgement, the soldiers should
be protected from murder or homicide charges, but should be punished for violating rules of engagement and
acts of omission or commission under military law.
THE high voter turnout in the first phase of elections in Jammu and Kashmir is hopefully indicative of the
trend and provides a great opportunity for the Centre and the incoming state government to revamp political
and military strategy. But military strategy must flow out of political strategy and not vice versa.
Two recent cases have put AFSPA back in the firing line. Earlier this month, two civilians were killed when
soldiers fired at their car — a clear overreaction — when it failed to stop at a roadblock in Budgam. The
GOC-in-C, Northern Command, has since apologised for the incident and a court of inquiry has indicted
nine soldiers, recommending court martial proceedings.
Also, the court martial in the Machil case of April 2010 was concluded this September, though it only made
headlines in November. Five army personnel, including the commanding officer of the unit, were cashiered
or dismissed from service and awarded life imprisonment. The media coverage has implied that these cases
are special, that most past instances of human rights violations have been brushed under the carpet by
invoking AFSPA. But in fact, over the years, more than a hundred court martials have been held by the army
in cases of human rights violations, with sentences ranging from dismissal to life imprisonment. The army’s
track record in investigating and punishing human rights violations has been exemplary.
The Machil encounter was an open-and-shut case of rogue behaviour. By the end of May 2010, investigations
had prima facie established that it was fake. This led to violent protests, to which security forces had to
respond, which led to yet more violent protests — 112 civilians died between June and September. After
initial denials, the army ordered a court of inquiry. By the end of December 2010, it was concluded that the
case warranted disciplinary action against the accused. This delay was a serious lapse on the part of the
brigade and division commanders. Most senior commanders can tell if an encounter is genuine. Its
circumstances, the number of rounds fired, casualties, the type/ condition of weapons recovered, police and
intelligence reports and press coverage leave little room for doubt. In Machil, the unit stood by its story, but
the higher commanders were also complicit in trying to safeguard the reputation of the unit, the formation
and the army.
After being mired in jurisdiction-related issues, the cases against the personnel were finally handed over to the
army in March 2013. It took another year for investigations and six months for the court martial. But the case
should not have taken more than six months to conclude. The commanders who failed to discern that the
encounter was fake or were complicit in the initial cover-up must also be taken to task. Denials, cover-ups
and delays do not augur well for the army. In contrast, the Budgam case has been handled with sensitivity and
speed.
Human rights violations threaten the moral authority of the state and the reputation of its armed forces and
further the cause of insurgents. They enable insurgents to create circumstances for more human rights
breaches by instigating violent protests which lead to security forces reacting in self-defence or panic. A
democratic state or its armed forces must never perpetrate or cover up human rights violations; this would
lead to the insurgents’ victory.
Yet violations take place due to the very nature of counter-insurgency operations, where force has to be used
against terrorists who are intermingled with the people and enjoy their tacit or coerced support. First,
violations may be the result of legitimate actions. Such cases should have the protection of AFSPA. In the
Budgam case, which was an error of judgement, the soldiers should be protected from murder/ homicide
charges but punished for violating the rules of engagement and for acts of omission/ commission under
military law.
Second, violations stem from the overwhelming response of security forces in the initial stages of an
insurgency. This is when there are the most cover-ups, with the government’s tacit cooperation. In J&K, this
phase lasted from 1989 to 1992. Human rights violations in this phase fall in a grey zone. Most are collateral
damage from overzealous responses and do get the protection of AFSPA, but they are dealt with under
military law. But some rogue action also gets covered up. Third, as in Machil, violations are caused by rogue
behaviour. Such cases do not have or deserve the protection of AFSPA.
In the consolidation phase, when stability has been achieved, the principle threat to a counter-insurgency
campaign is from perceived or actual human rights violations. Commanders must sensitise troops, including
on the strategic implications that human rights violations have in promoting the cause of insurgents. That the
army has controlled insurgencies in the Northeast and J&K shows that, while it may not be perfect, it has
functioned according to the law of the land — otherwise it would have lost these battles. Yet, there are
blemishes. To satisfy the public, we must allow old cases to be reinvestigated, if needs be by a “truth
commission”, since the lack of evidence in vintage cases like Pathribal or KunanPoshpora means convictions
are rare.
It is also time to review the army’s role in countering the insurgency in J&K. It is deployed by the
government, and it must be removed by the government, too. The army certainly does not have a vested
interest in continuing in its counter-insurgency role. It does, however, have a legitimate fear: Given past
failures to find a permanent political solution, insurgency could return once it is removed. That’s why the
army recommends the maintenance of status quo. This is an extreme view and the final call is the
government’s to take. However, a change in both political and military strategy is long overdue.
The army must gradually be disengaged from the hinterland, leaving behind a reserve of, say, one-third of the
present deployment of approximately 85,000 troops to take care of the unforeseen. The state police and
CRPF must take over law and order and tackle the residual active insurgents/ terrorists. This is their
mandated task anyway. The army must focus on counter-infiltration along the LoC. By reinforcing the
counter-infiltration posture with 30,000 troops from the hinterland, the induction of insurgents from across
the border can be stopped or reduced to a trickle. Tactical operations in the hinterland must be in the form of
surgical strikes based on precise intelligence.
AFSPA is an enabling necessity when the army is deployed for counter-insurgency operations, during which,
unlike while giving “aid to civil authority”, it is not possible to take instructions from a magistrate before
using force. AFSPA enables the army to exercise police powers and provides protection against prosecution
in criminal courts for legitimate military action. But, even in the present stable conditions, AFSPA is a major
grievance among the people. The army’s deployment and application of AFSPA was selective and progressive
as the insurgency developed. The reverse should be the case now. AFSPA must be applicable in a 10-15 km
belt along the LoC. But in the hinterland, its application must be modified to only safeguard military
installations and for the security of convoy routes.
As and when the army reserve is committed to assisting the police or CRPF, AFSPA must automatically apply
for the duration of the operation.
Finally, political leaders must not fire from the shoulders of the army by blaming it for the application of
AFSPA, an act of Parliament applied by government. It is an enabling act, without which the army cannot
conduct counter-insurgency operations.
The writer, a retired
express@expressindia.com
lieutenant
general,
was
GOC-in-C
of
the
Northern
Command