Fixing responsibility CI decisions and consequences
Kashmir Times

• Published:8/29/2011 12:00:00 PM
• Updated: 8/29/2011 10:35:01 AM
• By: BY ALI AHMED
• Filed Under: column

Over 2100 bodies are reportedly in 80 odd graves scattered across four districts of North Kashmir. These are apparently unidentified, of which over 500 are reckoned to be of local residents with little to do with insurgency. It is possible that some of the 10000 cases being pursued by Parents of Disappeared Persons can be laid to rest in case the bodies are identified. By extrapolation, there could be a similar number in South Kashmir and south of the Pir Panjals, totaling, say, 5000. Assuming that one third were militants validly engaged and another third were collateral casualties in firefights, there are still over 1500 who may have been innocent victims. Where does the responsibility rest for such uncalled for deaths?
That those who pull the trigger cannot escape responsibility is quite clear. This would imply the soldiers and their immediate superiors are culpable. This is the legacy of the Nuremberg trials in which the excuse of acting on a superior’s orders does not hold water. Manifestly illegal orders are not to be complied with. The faculties of judgment of counter insurgents are expected to adequately sensitised to the legal regime while in training for deployment. This implies that they have the ‘software’ necessary to discern the legality of their acts as also verify against their internal moral and rational compass, whether orders received are legal or otherwise.
The legal regime in question is centered round Common Article 3 to the Geneva Conventions. It makes clear that violence to life of persons not taking active part in hostilities is prohibited at any time and place in the setting of a conflict not of an international character. Article 13 of Additional Protocol II which develops Common Article 3 protects civilians not taking part in hostilities. The international tribunals set up for trials of international humanitarian law offenders in the Balkans and Africa, would term such deaths as ‘grave breaches’ of international humanitarian law for which perpetrators bear an individual criminal responsibility. The Rome Statute includes murder in Article 7 on ‘crimes against humanity’.
The responsibility cannot, however, be restricted to those who pull the trigger. Those who give such orders and those who are responsible to oversee that such orders are not given are also blameworthy. While Additional Protocol I restricts itself to international armed conflict, it makes clear in its Articles 85-87 that there is a duty of commanders to repress breaches and a responsibility to act in case of such instances. That the Additional Protocol II is barely one third the length of Protocol I resulted in these provisions not finding mention. Article 6 of the Rome Statue of the International Criminal Court includes within individual criminal responsibility the superior’s act of omission or commission, stating that an act done by a subordinate ‘does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.’
There are two rungs so far addressed in this discussion – the tactical one at which the breaches occur and the supervisory – operational level. Since the security forces in Kashmir have been under control of their respective hierarchies, that such instances have occurred, implies that the operational level, from the division to the corps, is culpable. However, this is to restrict responsibility to the sword arm of the state. What about those at the directional politico-military level both in uniform at Udhampur and those out of uniform, the civilian administration at Srinagar and Delhi?
While it can be taken for granted that no orders to the effect have been given in writing, at this level is responsibility for the kind of command climate extant that makes for a permissiveness or otherwise of such a situation. An argument can be anticipated that a permissive environment was occasioned by the complexity and compulsions of the situation. The challenge to the state, particularly acute in the nineties, required regrettable measures for the self-protection of the state. The survival of the state calls for a higher order morality over riding the otherwise credible concerns with human rights. In any case, the state was functioning under the limitations of its instruments, such as the criminal justice system. Further, the situation could have been much worse as can be witnessed from counter insurgency actions taken by peer states. At one remove, the silence of public opinion, the power of which is so visible currently on the streets in the anti-corruption agitation, apparently vindicates the state. This is taken as mitigating the state’s position somewhat.
Yet, the onus of this cannot be laid at the door of India alone, but must be shared with the terror minders across the Line of Control. The proxy war they unleashed was with the very intent of resulting violations of human, political and civil rights bringing the population on to their side. In other words, those who provoked the violence in first place and stand to benefit from the consequences need to be apportioned their fair share in any blame.
It can be seen that affixing responsibility makes the exercise end up a blame game. What then must emerge from the finding of the preliminary finding of the SHRC? Two parameters are consequential. One is of justice to the victims in the instant case and, second, safeguarding against future such instances, possibly already ongoing elsewhere in the country such as in Central India and in the glacial action in the Gujarat carnage. Realistically, it is hardly likely that the state has the capacity, or indeed the intent, for the former. Given this, preserving India from future instances would be difficult.
As for the future, a lesson needs being drawn from the anti-corruption agitation culminating currently. There appears scope for exerting civil society pressures. Marginalisation of the human rights discourse, despite the valourous endeavour of activists, owes to the framing of the wider discourse in inter-state, ‘us versus them’ terms. This needs over-turning to make human rights violations anywhere an existential threat to India’s democratic credentials and aspirations. For this, the argument in defence of policy, covered earlier, requires refuting.
India creates itself or is constituted through its actions. Middle class India cannot be indifferent to human rights violations of people on the periphery of its consciousness and expect India’s hard won freedoms to be preserved. A rephrasing of Anna Hazare’s take on the ‘second’ freedom struggle is necessary. The struggle for freedom is continually ongoing. If all pervasive corruption can take a beating, so can and must the idea of impunity