Human shields & pellet guns

It is a particular outlook that shuns conciliation in and on Kashmir, resolves to “settle” the matter by brute force condoning pellet guns and hostage-taking, and launches a fight to the finish, leaving the Army free to act “helter-skelter”.

Video grab of Farooq Ahmad Dar being used as a human shield by the Army on April 9.

“They created desolation and call it peace.”

– Tacitus

This famous censure should serve as a warning to the adventurers Prime Minister Narendra Modi, his National Security Adviser Ajit Doval and associates who have embarked on a dangerous mission in Kashmir. They are out to crush, by reckless resort to brute force, the people’s revolt in the State so that they can claim in the general election to the Lok Sabha in 2019 that the Bharatiya Janata Party (BJP) had ended the militancy; the problem was solved and the Kashmir dispute ended.

It matters not that even if the militancy is ended thus, which is very doubtful, the people’s alienation will not cease. It will increase. In this sordid game, the Chief Minister of Jammu and Kashmir, Mehbooba Mufti, is very much a partner. The use and, even more so, the justification of a human shield and the murderous recourse to pellet guns are part of the game. It is nothing short of a war on the people of Kashmir. There will be no talks with “the enemy”, the people. The record provides ample warning.

On May 9, it was disclosed that a decision had been “taken at the highest level in New Delhi” not to have any talks with the separatists with a view to “isolating” the Hurriyat. The disclosure was made in Srinagar by the BJP’s State president Sat Sharma ( Greater Kashmir , May 10). This was confirmed by The Times of India on May 28: “The comments of senior BJP leaders seem to clearly indicate that the Government is not likely to engage in any political process soon.” This decision is based on the assessment that, contrary to general belief, “the situation in troubled parts of the Kashmir Valley was likely to improve”. Hence Home Minister Rajnath Singh’s confident claim that “we have come up with a permanent solution to solve (sic) Kashmir”. Mehbooba Mufti was told as much “unequivocally” when she met him and the Prime Minister on April 24; a snub to her pleas for talks ( Indian Express, April 25). She was asked, instead, to take a more “pro-active role” in maintaining law and order.

On April 28, the Attorney General Mukul Rohatgi flatly told the Supreme Court that the government cannot hold talks with the separatists or, for that matter, with Pakistan. Far from welcoming moves for talks, New Delhi resents them as “interference” in a game in which it has the upper hand. How long can stone-pelters fight a regular army? Its attitude towards the stone-pelters in Darjeeling reveals its mindset on Kashmir. In this, most in the media support it.

The Army Chief, General Bipin Rawat, called people who support the militants “overground workers of terrorists”, adding “I’d once again request the parents of these young boys” to make them “return to the fold”. This betrays his ignorance of and indifference to the realities. The boys who risk their lives to face the Army are not ones to listen to their parents. Few care to ask what it is that drives them or the girls in school uniform to pelt stones; the women who crowd at their window openly to wail in mourning when funeral processions of slain militants pass by; or the thousands who throng at their graves as they are being buried.

Attribution of militancy to Pakistan is a red herring drawn across the trail to deny the reality of a people in open revolt and to silence a guilty conscience. General Bipin Rawat’s threat that “we will target them with harsher measures” will not deter them nor will his threat that he would flout the law to get at them. I will come to his famous masterpiece presently. Well before that he threatened to “to go helter-skelter for them” ( The Asian Age , February 16). The Concise Oxford Dictionary describes it as “in disorderly haste or confusion”. In popular parlance it signifies worse. It was a curtain-raiser for his famous masterpiece to PTI on the human shield (emphasis added, throughout).

Human shield That sordid episode is highly relevant not only for the sheer barbarity of the act but, even more so, for the barbarity that was so vividly reflected in the mindset of its supporters in high places.

On April 9, a byelection was held to the Srinagar parliamentary seat. A mere 7 per cent voted. One of them, Farooq Ahmad Dar, was a shawl weaver from a village in Budgam. He was on a bike with a friend on his way to attend a funeral thereafter. Major Leetul Gogoi grabbed him, beat him up, and had him forcibly tied at gunpoint to a jeep as a human shield to face a crowd of 1,200. The ink mark on the finger of this voter was no protection. He was paraded from 10 a.m. to 5:30 p.m. through nine villages with a placard around his neck. The armymen belonged to the dreaded 53 Rashtriya Rifles.

Since Internet services were banned in the Valley until April 13, a video which recorded the deed surfaced thereafter and went viral. Heard in the clip was the threat “patharbazon ka yehi haal hoga” (this shall be the fate of stone-pelters). (Quoted in The Hindu ’s fine editorial, April 17.)

Reaction in India revealed a lot. Attorneys General speak for the state in court. They are not required to defend it in public. Mukul Rohatgi bared his zeal when he did that on April 17 on a TV channel. “Nothing wrong… if it has to be done again it should be done. We are 100 per cent backing the Army and the major.” He improved on this brilliant performance by one even more brilliant on May 25: “Major Gogoi risked his life for the nation. His critics are speaking rubbish” ( Hindustan Times, May 26). This from an Attorney General.

On April 19, a senior BJP Minister in Jammu and Kashmir, Chandra Prakash Ganga, said “laaton ke bhoot baaton se nahin mante” (people deserving kicks won’t listen). He said: “There is only one remedy for them and that is bullets.” Mehbooba Mufti dared not sack him.

On May 22, Major Gogoi was given an award by the Army Chief himself . Awards are given either for a specific act of bravery or for a record of distinguished service. Gen. Bipin Rawat preferred discretion to valour and did not cite his vile act of April 9. He awarded him “for his sustained distinguished service till now in counter-insurgency operations in Jammu & Kashmir”. It is a pity that not a single part of the “sustained distinguished service” was revealed to the public hitherto.

The Army went on a public relations exercise. On May 24, Major Gogoi was asked to go public. His defence echoed the one instantly and ignorantly trotted out in his defence—he had saved lives “without firing a bullet or beating any one”—a brazen falsehood. Farooq Dar was mercilessly beaten. The stone-pelters “included ladies and children”. Farooq Dar was instigating them. Another falsehood. A man who had voted and was on his way to a relative’s funeral would not indulge in that. “Suddenly the idea occurred to me.” The idea was to teach a lesson to the crowd which included women and children by a humiliating punishment of Dar. Why else was he paraded through nine villages for seven and a half hours?

Nailing the lies Three correspondents of two reputed dailies nailed the lies to the counter in detailed reports based on visits to the villages. Muzaffar Raina of The Telegraph (May 26) reported that a sarpanch of the village said that “the entire village, including newborns, women and the elderly is 1,200”—Gogoi’s figure for the crowd. Dar lived 20 km away. “The presiding officers of the polling booth directed the security force personnel, present at the school, not to open fire at the crowd.”

An eyewitness, Abdul Qayoom Shah, testified that Dar “was riding a bike and I saw some security force personnel chasing him”. “He got panicky and perhaps his bike overturned. They caught hold of him and beat him up. His bike was tossed down a slope and later they strapped him to the vehicle,” said Abdul Qayoom Shah, a shopkeeper. “Several villagers alleged that Dar was paraded through a number of villages like Gonipoh, Chakpora and Najan, adding that the army dared people over a loudspeaker to throw stones.” Villagers said that men of the 53 Rashtriya Rifles went, to use Gen. Rawat’s words, “helter-skelter” and stormed the village, breaking windows and roughing up the villagers.

Toufiq Rashid and Abhishek Saha’s report in Hindustan Times of May 26 is detailed and damning. They retraced the journey of his jeep that day, stopping at several villages on the way. Eyewitness accounts ran contrary to the official version: “Local residents say Dar was beaten up before being tied to the bonnet of the jeep. ‘After tying him up, they told us to pelt stones at him,’ Meema, another woman said. A placard saying he was a stone pelter was hung around his neck and the jeep drove away around 11 am. …

“4 pm, Hardpanzoo: The jeep finally drove into a Central Reserve Police Force camp. According to Dar, it was here he was untied from the jeep. He, however, was still bound by ropes. Dar’s brother, accompanied by the sarpanch and deputy sarpanch of his Chil village, reached the camp. Dar, they say, was kept tied to a tree inside the camp. Finally, at about 7 pm, he was let off.” Theirs is a meticulous half-hourly record.

For the Army this was par for the course. Engineer Abdul Rashid, an Independent MLA, described the Army’s behaviour in the rural area in an interview to Tasavur Mushtaq of Kashmir Life on November 20, 2011: “I was myself subjected to about 350 to 400 days of forced labour. Army treated us as slaves. We were supposed to wash clothes of Army, patrol their roads, construct bunkers, any damn thing. In this, fifty villagers suffered and I was not an exception. It was also because of AFSPA [Armed Forces Special Powers Act] and other draconian laws there was no accountability.… I was used as human shield at least on two occasions and I had a narrow escape . I was picked up and taken to the worst interrogation centre Cargo, then to central jail, CIK Humhama and Rajbagh. I had to pay bribe not less than Rs.1 lakh by selling land and few cattle to get myself released. It was these atrocities which forced me to come forward against them. I found no way better than participating in elections. I want to weep but who is listening.”

Analysis of Gen. Rawat’s interview Gen. Bipin Rawat decided to get into the arena, both guns blazing, in an interview to PTI published on May 28. He had to talk. The award had boomeranged on him. This unusual interview deserves a far more detailed analysis than it has received. Here is a point-by-point analysis.

1. “This is a proxy war and proxy war is a dirty war. It is played in a dirty way. The rules of engagement are there when the adversary comes face-to-face and fights with you. It is a dirty war…. That is where innovation comes in. You fight a dirty war with innovations.” The subtext is clear—we are not bound by the law and the rules it lays down.

By common consent, infiltration across the Line of Control (LOC) is at an all-time low. It is the locals who are in the forefront. “The proxy war” doctrine is used to target them. A “dirty” war is launched against them and they enjoy the people’s support. The Army will innovate, breaking rules and running—“helter-skelter”.

2. The Army chief said he had a broad idea about what was going on in the Court of Inquiry into the “human shield” incident and that is why he went ahead with awarding the Major. “I know what is happening in the COI. It is being finalised. What do we punish him for?” A Court of Inquiry holds judicial proceedings. How did he know of its findings? Is that not interference?

But “an Army source” said on May 22 that it was a long process and it would take some time. “There are a lot of civilian witnesses to whom summons have been issued.” They awaited their turn to depose ( The Hindu , May 23).

3. Major Gogoi had a right to self-defence and he could have “opted to fire at the crowd”. Eyewitnesses refute this.

4. “In fact, I wish these people, instead of throwing stones at us, were firing weapons at us. I would have been happy. Then I could do what I (want to do)”. The itch to break loose is palpable. So is ignorance of the law. It imposes recognised constraints on the use of weapons even in wars between states.

5. “Has political initiative not been taken in the past? What was the result, you had Kargil.” This encroaches on the domain of the government. He has absolutely no right to say this. Political initiatives depend on political judgment. His ignorance is as crass as his impropriety. Kargil happened in 1999. Vajpayee parleyed with its architect Gen. Pervez Musharraf in 2001 and declared a ceasefire in 2003. Manmohan Singh came close to settling Kashmir in 2006. Almost every Commander of the 15 Corps in Srinagar or of the Northern Command urged a political settlement. Lt. Gen. D.S. Hooda, who heads the Northern Command, did so recently ( Indian Express , February 19). Gen. V. K. Singh said the same thing on June 25, 2010. He made a valid point, also made by his predecessors and Corps Commanders: “I feel there is a great requirement for political initiatives which take all the people forward together. Militarily we have brought the overall internal security situation in J&K firmly under control. Now, the need is to handle things politically” ( The Times of India , June 30, 2010).

6. The most disturbing bit of the interview was the Rawat Doctrine, which echoes the Dyer Doctrine 1919 (see box).

Gen. Rawat’s political chief, Defence Minister Arun Jaitley, agreed with him. The Army should be allowed to deal with a situation in a “war-like zone” ( Indian Express , May 25). So, we are at war.

Only one man had the courage to sharply criticise the use of human shields. He was Lt. General (Retd.) H.S. Panag, who headed the Northern Command. He lamented: “A tradition, ethos, rules and regulations swept away by ‘the mood of the nation’.” On April 15, he tweeted: “Image of a ‘stone pelter’ tied in front of a jeep as a ‘human shield’ will for ever haunt the Indian Army and the nation.” He told a TV channel: “This image will end up being the defining moment of the Indian Army, just like the napalm gun was for the Vietnam War.”

The New York Times (April 22) was scathing: “Members of India’s armed forces reached a new low in the long history of alleged human rights abuses in the Indian State of Jammu & Kashmir.” That history is studded with Kunan Poshpora rapes, Pathribal and very similar outrages.

Use of hostages in any conflict is a barbaric practice. It is an offence under the Penal Code—wrongful confinement (Section 340), use of criminal force, and assault (Sections 349 and 351), besides being a violation of the fundamental rights, especially the right to personal liberty (Article 21). Gogoi’s action had no legal sanction. Significantly none cited it. The Jammu and Kashmir Police registered a case of abduction with an intention to cause grievous hurt, wrongful confinement and criminal intimidation. “Information was received by the Beerwah Police Station through reliable sources on 9 April 2017, that on the polling day of Parliament elections, a news item was being telecast that a person identified as Farooq Ahmed Dar had been illegally confined by army personnel,” the first information report (FIR) said. Gogoi will escape punishment as did the killers of Advocate Jalil Andrabi and the rapists of Kunan Poshpora and the guilty of Pathribal. The Army protects its own.

Against international law In 1982, Britain enacted the Taking of Hostages Act “in implementation of the International Convention against the Taking of Hostages (1979). Section 1 of the Act defines hostage-taking “(1) A person, whatever his nationality, who, in the United Kingdom or elsewhere, (a) detains any other person (“the hostage”), and (b) in order to compel a State, international government organisation or person to do or abstain from doing any act, threatens to kill, injure or continue to detain the hostage, commits an offence. (2) A person guilty of an offence under this Act shall be liable, on conviction on indictment, to imprisonment for life.” Such is the gravity of the crime. It also constitutes “torture” as defined in Article 1(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. India signed it 20 years ago but refuses to ratify it.

Article 1 of the International Convention defines hostage taking as “any person who seizes or detains another person … (hereinafter referred to as the “hostage”) in order to compel a third party… or a group of persons to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages.”

The International Court of Justice at The Hague’s ruling in the Iranian hostages case is relevant ( U.S. vs Iran , ICJ reports 1980, 3). It referred to expression of approval of the students’ takeover of the United States Embassy and its approval by the state. “The approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State, and the decision to perpetuate them, translated continuing occupation of the Embassy and detention of the hostages into acts of that State. The militants, authors of the invasion and jailers of the hostages, had now become agents of the Iranian State for whose acts the State itself was internationally responsible.”

This applies to official approval of Gogoi’s offences. In Tehran they were aggravated by the storming of diplomatic premises. The court said: “The Iranian authorities’ decision to continue the subjection of the premises of the United States Embassy to occupation by militants and of the Embassy staff to detention as hostages, clearly gave rise to repeated and multiple breaches of the applicable provisions of the Vienna Convention.”

Hostage taking is an offence by itself in domestic as well as international law. It also constitutes an act of torture. India ratified the four Geneva Conventions of 1949. Common to all is Article 3 which pertains to domestic conflict as distinct from international war. It reads: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, (1) Persons taking no active part in the hostilities,… shall in circumstances be treated humanely. …To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages ; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; …

“An impartial humanitarian body, such as the International Committee of Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

In the last nearly 70 years, international humanitarian law has developed as part of the law. Reckoning with states’ propensity to quibble about Article 3, the International Committee at Geneva of the Red Cross at Geneva has propounded comprehensive norms. “The XXIIIrd International Conference of the Red Cross, concerned by the increase in hostage-taking in the world, alarmed by the suffering inflicted on the hostages involved in these acts and on their families, 1. condemns the taking of hostages, 2. urges all Governments to take the necessary measures to prevent the recurrence of such acts (Bucharest 1977, Resolution No.VIII).”

Article 8(2) (viii) of the Rome Statute for an International Criminal Court (1998) lists “taking of hostages” among “war crimes” triable by the court as also violations of Article 3 of the Geneva Convention.

The Hague Tribunal established by the United Nations Security Council ruled in the landmark Tadic case “an armed conflict exists whenever there is resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the duration of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved….

“A State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach. … It follows that in the area of armed conflict the distinction between interstate wars and civil wars is losing its value so far as human beings are concerned. Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property, as well as prescribed weapons causing unnecessary suffering when two sovereign states are engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted ‘only’ within the territory of a sovereign State.”

Bosnian Serbs captured U.N. peace-keepers and used them as hostages (“human shields” in our lingo) against North Atlantic Treaty Organisation bombings. The U.S. brought Lt. Calley of the My Lai massacre in Vietnam to justice. Nixon reduced his sentence of life imprisonment to three years.

Pellet guns Allied to approval of hostage taking is endorsement of use of pellet guns. They have a common object—intimidate the populace. Pellet guns fire hundreds of tiny shots with each cartridge.

The Hindu reported (March 2) that “over 10,000 civilians were injured by pellets” since July 8, 2016. “Over 1,000 were hit in eyes and many lost their vision.” Among them were students who returned to their classes “pellet injured and once jailed”. Shashi Bhushan reported in The Asian Age (May 13) that the police and the Army interfere even in hospitals. Victims, fearing arrests, avoid hospitals. Dr Showkat Ali Mufti of the premier hospital pleaded for an end to such practices.

The word barbaric would aptly describe such conduct. It reflects a fundamental mistake on the part of the armed forces, their political bosses and their lawyers. There are precise curbs on the use of firearms laid down over centuries in Britain. They were followed in India until lately. In his report on the firing by the Bombay City Police at the Chota Qabrastan on August 1, 1939, Justice R.S. Broomfield cited them. The report, given on October 12, 1939, was priced at “6 annas or 8 d. (pence)” (= 40 paisa). The great legal scholar R.F.V. Heuston discussed the use of firearms in an essay on Civil Disorders. He cited an important ruling which said: “Arms, now at such a stage of perfection that they cannot be employed without grave danger to life and limb even of distant and innocent persons, must be used with the greatest of care, and the greatest pains must be exercised to avoid the infliction of fatal injuries. A gun should never be used or used with any specified degree of force if there is any doubt as to the necessity.” That was 80 years ago. The judge awarded £300 damages against the Civic Guards who had killed the plaintiff’s son.

India is not the first or only country to face an internal revolt. Britain faced it for over 40 years in Northern Ireland; not from stone-pelting students but a regular, organised army, the dreaded Irish Republican Army. The distinguished Irish journalist Tim Pat Coogan wrote a 510-page tome on it ( The IRA: A History , 1993). It reproduces “The IRA Court Martial Procedure”. London lived with terror at the hands of the IRA for decades. It suffered the July 7 attacks in 2005 in which 52 were killed. In 1983, an IRA bomb exploded outside Harrods. It had fired mortar bombs at 10 Downing Street and at the Heathrow airport. It received “considerable training and arms from Libya” and “funds and arms from sympathisers in the United States”. There was no dearth of support from Ireland. Britain did not scream “proxy war” but made repeated attempts at a settlement and for ensuring respect for human rights. Elections in Northern Ireland were not rigged though the Sinn Fein sought secession from the United Kingdom and Union with the Irish Republic. Preventive detention lasted for four years from August 9, 1971, to December 5, 1975. There were 73 detainees then. There was a periodic review of the draconian Prevention of Terrorism Act by judges of the highest eminence. There were at least six of them including the “Report of a Committee to consider, in the context of civil liberties and human rights, measures to deal with terrorism in Northern Ireland” in 1975. It was headed by Lord Gardiner who became Lord Chancellor. The Belfast Accords of 1998 settled the problem.

It is a particular outlook, a certain mindset, that shuns conciliation in and on Kashmir, resolves to “settle” the matter by brute force condoning pellet guns and hostage-taking, and launches a fight to the finish, leaving the Army free to act “helter-skelter”.