From the archive, 31 Aug 1998

A CONTROVERSIAL LOOK
 

COUNTER-INSURGENCY AND HUMAN RIGHTS
 

Clearly,  an  examination of the  relationship  between  counter-

insurgency and human rights requires to be preceded by a  defini­

tional exercise, for there is considerable terminological  confu­

sion with regard to the former, and, not inconsiderable  philoso­

phical disputation as regards the latter.  Thereafter, the impact

of counter-insurgency on human rights needs to be explored in the

philosophical  and legal planes, and as obtains in practise.   An

illustrative  case study would help ground the conclusions  drawn

in  reality, thereby making this analytical essay a  constructive

exercise with policy implications.
 

Terminology
 

Counter-Insurgency  (CI) comprises  concurrent  politico-military

restorative  and foundationary measures to address an  insurgency

situation.  Such a situation  presupposes the resort to organised

violence,  by  a  dissident group, directed  against  the  state. 

Since  there  is an element of support and sympathy  amongst  the

public  for the group, counter-insurgency aims at winning  hearts

and minds in the long term, through political, economic and  psy­

chological means; while containing and eliminating the insurgent,

by military means, in the short term. 
 

Since  the level of violence is of low intensity in  relation  to

conventional  war,  counter-insurgency  operations  are  subsumed

under the Kitsonion term Low-Intensity Operations (LIO). Of late,

they  are being referred to as Low Intensity Conflict  Operations

(LICO), an adaption of American terminology.  The British term is

preferable  to the latter, since 'conflict', though  implicit  in

the  definition  of insurgency, is not as  overtly  acknowledged. 

Whereas  LICO  is a broader term, which in American  usage  could

cover the Siachen conflict, in its Indian adaptation, it is  akin

to counter-insurgency. 
 

Increasingly,  definitional accuracy is being dispensed with  and

it now is  generally  taken to refer to  'proxy-war'; an internal

conflict situation in which external intervention is a character­

istic.   There is an expanded scope of operation,  that  includes

border management, diplomacy, external and internal  intelligence

coordination,  increased  number  of actors and  a  more  complex

interaction.  However, tactical operations remain essentially the

same,  if  with  slightly greater  flexibility in  the  terms  of

engagement in LICO, than in CI operations.
 

Nevertheless, it is the incidence of military measures in a  peo­

ple-centered  environment  that brings human rights  into  focus. 

Human  Rights  (HR) are inherent rights in humans, by  virtue  of

their  being  human.   Whereas a vast array of  rights  has  been

defined  by  legal instruments as the  Universal  Declaration  of

Human Rights and Fundamental Rights in Part III of our  Constitu­

tion, it is the non-derogable hard-core rights, such as right  to

life and right against torture, that are oft impinged upon in the

CI  milieu.   It is this relationship that is the  focus  of  our

investigation  here. 
 

However,  definitional evolution, as occasioned by the thrust  to

expose  the insurgent to the same HR yardstick as the state,  may

require  a  reconceptualisation of the same. Whereas  there  many

forms of criminality that impinge on HR, a narrower comceptinali­

sation,  to include politically motivated infringement,  may  aid

clarity. In effect, murder is excluded, whereas political  murder

is not. This is closer to the Amnesty international's  parameters

of including non-governmental organisations having some  `control

over  people, territory and use of force',in their HR beat.  Thus

militant  organisationas  are also within the  ambit,  since,  by

their  self-definition, they are proto-governments  of  potential

states. While being accountable  under the national penal system,

conceptual  evolution in this direction makes them come  interna­

tional scrutiny. The conundrum here is increase in visibility for

the  organisation  - the strategic aim it seeks,  and  which  the

state wishs to deny. 
 

On the Philosophical Plane
 

Non-derogable  human rights are rights of individual  as  humans,

and  not as citizens.  Since they are not granted by  the  state,

they  cannot  be  abridged by it.  The wider  spectrum  of  human

rights are in the domain of state promotion, protection and
 

moderation.  Therefore, a counter-insurgent state in keeping with

the  utilitarian  principle,  of greater  good  for  the  greater

number,  may  curtail, proportionately and  temporarily,  certain

rights of individuals for the sake of the collectivity.  This may

be  to facilitate the military part of its campaign.   Prudently,

it requires to uphold these rights in principle, while  promoting

others  in practise, if it is to  progress towards enlarging  its

constituency  amongst the disaffected populace. 
 

The controversy arises in the bias towards the three  generations

of HR law, namely, civil and political rights being of the first;

social  and economic rights being next ; and, the right to  deve­

lopment etc being of the 'third generation'. Thus to a developing

state the latter are primary, and, therefore, the emphasis on law

and order as a precursor to prosperity, whereas developed western

nations  apparently stand by the first, believing that a  legiti­

mate, moral, order is the foundation to development. 
 

In so far the revised, expanded, definition goes, militant groups

are  in the embryonic stage of `Social-Contract'  formation  with

the  populace  in  their area of influence.  Therefore,  just  as

governments  are  beholden to provide protection for  their  sub­

ject's human rights as part of their `social contract' in  return

for  the  allegiance of a citizen, so must  these  organisation's

fitness,  for the status they seek, be judged. This  would  under

cut  the rationale of their strategic tool - terrorism, which  is

primarily  accountable  for HR violitious on their  part.   Their

counter-point to this is that they cannot be judged by the value-

systems of a moral order they are attempting to over throw, since
 

they  are  essentially revolutionary.  To them, the  larger  good

compensates  for these infractions.  To them, the community  pre­

cedes individuals, thereby relegating the HR issue that is itself

anchored in the individual.  These are the philosophical contours

of the  divergence on the morality of `means' and `ends'.            
 

The Legal Perspective
 

In the Charter era, the relationship of the state with its  citi­

zens has  been codified, and sought to be regulated by the a vast

and  growing body of law, namely, human rights law. In the  main,

this  comprises  the Universal Declaration of Human  Rights,  the

International  Covenants  of Civil and Political Rights,  and  of

Economic,  Social  and  Cultural Rights. The  state  parties  are

required to implement these through legislation and education.
 

The  other  body of law - International Humanitarian  Law  (IHL),

though developed in the context of inter-state conflict, also has

a  bearing  in  situations of  internal  conflict:  specifically,

Common Article 3 of the Geneva Conventions, and its supplementary

Additional  Protocol II. These help define combatant  status  and

proscribe actions that are violative of human rights. The philos­

ophical basis of IHL is proportionality, humanity, necessity  and

discrimination, which translates into practise as `minimum force'

applied in `good faith'. In short, HR law protects the individual

from  the power of the state and other contenders  for  authority

over  him/her;  IHL is for the protection of the victims  of  the

effects of armed conflicts.
 

India is constitutionally bound, vide Article 51 of its Constitu­

tion,  to  uphold  its international  treaty  obligations.   More

importantly,  the  constitutional  imperative on  the  state  for

protection  of the right to life and liberty (Art.  21);  against

detention  and arrest (Art. 22). Constitutional  remedies  (Arts.

32, 226), exists. In so far as IHL is concerned India has enacted

`The  Geneva Conventions Act, 1960', though has  restrained  from

signing the 1977  Additional Protocols.  Plagued by insurgency in
 

its  periphery,  and by internal and external pressure  over  its

handling of the same, it set up the National Human Rights Commis­

sion  in 1993. It has endeavoured  to sensitize its  military  to

the  issue,  as evident from the Human Rights Cells and  list  of

`Dos  and Donts', operative in the such environments.  These  ac­

quire salience owing to the critic-labelled `draconian'  legisla­

tions  that are permissive of application of a  harsher  military

template in insurgency prone `disturbed' areas.
 

Having discussed the legal relationship between the citizen,  the

state  and  the world order, it is pertinent to  reflect  on  the

legal  obligation of militant groups in  international  customary

and  positive  law.  Common Articles 3 forms the  basis,  for  it

covers  protection of hard-core right  by all `parties'  to  con­

flicts, including non-international armed conflict.  Protocol  II

probihits  the  use of terror (Art 2(d), 13)  and  the  means  of

terror  (Art. 3)  against civilians by any side in  the  internal

conflict. In so far as  protection to members of armed forces  is

concerned,  to say that the militant in killing soldiers is  vio­

lating  human  rights is invalid.  However,  the  requirement  to

carry  arms  openly when in an engagement (Arts.  43  and  44  of

Protocol I) has a bearing on this issue. 
 

Since, in international law only states are legal entities, there

is a direct obligation on those acting on behalf of the state  to

abide  by the law.  This is somewhat diluted where militants  are

concerned,  but  national law, Protocol II and Common  Article  3

compensate.   However,  we among others, are not  signatories  to

Protocol II, concerned as we are by the questions of sovereignity

and  recognition of militants.  Therefore, the innovative  provi­

sions  on terrorism are only in the realm of  customary  interna­

tional law, thereby practically leaving terrorism to  essentially

unilateral  action, such as the recent US cruise missile  attacks

in  Sudan  and  Afghanistan; and to  pious  anti-terrorism  joint

declarations in fora as the SAARC.
 

A Proposition
 

India exemplifies the Third World Problematic (M Ayub).  It has a

developmental  agenda  complicated by the  nation-state  building

process in an era of accelerated history.  Among other consequent
 

problems  has  been the marginalisation of  its  geographic  per­

iphery, resulting in differing levels of insurgency in  different

areas there. 
 

These  have  been exacerbated by two factors. The  first  is  the

inadequacy in, both, `software'-legitimacy, commitment and reach-

of  the  state,  particularly at provincial  level;  and  of  the

`hardware'-  the  socio-political  sensitivity  of  its  security

apparatus.   The former leads to furnishing of a `cause'  to  the

insurgent, and the latter to accretion in public support for them

owing to the indelicate application of the military template.
 

The  second  is the influence of the  geo-strategic  environment. 

This  results in the insurgent - external power symbiotic  nexus. 

An  increase in the level of such covert intervention  transforms

the  `insurgency'  to `proxy war', and its  military  predominant

counter to LICO.
 

Axiomatically,  the  situation  metamorphoses  from  an  unstable

internal security situation to one with inter-state ramifications
 

Thus, there occurs a progressive erosion in the human rights  ac­

countability  of  the state, legitimised by the need  to  protect

itself from the designs of the intervening power.  Only on inter­

national  pressure, and on alleviation in the  extant  situation, 

does the relegated HR issue make a return to centre-stage.   This

occurs  not  only for psychological ministration  to  the  public

mind, but also for the state to regain international credibility,

and control over its security mechanism.
 

Case Study : J&K, 1990-98
 

Indigenous factors coupled with a unique constellation of  global

events led to an insurgency situation in J&K, with the upswell in

popular  participation at  the  turn of the  decade.  It is  well
 

documented that the reactive suppression by a the state led to  a

spiral in the insurgency.  Pakistan has since taken the advantage

to fuel our self-lit fires.  This radically changed the situation

to  one of 'proxy-war', for by mid-decade the Kashmiri  component

of the insurgency had receded, to be substituted by an ISI  spon­

sored  mujahedeen incursion.  Only lately has stability  returned

to  the valley, for an economic programme to be instituted  under

an elected government.
 

Though  massacres  punctuate the return of near-normalcy,  it  is

time  to  take  stock by reviewing the recent past,  lest  it  be

victim  of  mythology. A critique is the best manner  to  inform,

both, history and policy.
 

Firstly, the Kashimiri uprising was a people's  movement initial­

ly, amenable to dissipation by a responsive state.  The political

configuration  being  such, at the turn of the decade,  that  the

opportunity  was  lost.  Instead the nature of  the  problem  was

misappreciated,  perhaps  deliberately so (Op  Topac),  as  being

externally  engineered.  As a result, the law and order  approach

was  adopted.   
 

Secondly,  with the exhaustion of the militant Kashmiri  bid  for

self-determination,  the  issue was appropriated by  Pakistan  to

further  its  strategic  aims.  Legitimised  thus,  the  military

response  within the valley grew harsher.  Institutional  factors

as an intemperate and ill-trained paramilitary; apex-level organ­

isational discontinuity; the army's  experiment with  quasi-mili­

tary  forces as the Rashtriya Rifles and pseudo-gangs  etc,  con­

tributed  to a worsening HR situation. That 40000 civilians  died

in  the  valley, as against 900 army dead, in  seven  years,  may

indicate  a high level of violence.  The contention that more  of

it  was  directed at civilians is borne out  by  comparison  with

statistics  of  the IPKF experience in Sri Lanka, in that,  in  a

period of just three years there, 1200 soldiers died.  Given that

there were only  13000  Sri Lankan Tamil deaths in the period, it
 

would  appear that, though on their own soil in Kashmir and   the

intensity  of  violence being less than that in  Sri  Lanka,  the

military  was  harsher.  Also,  given that there have  been  arms

recoveries enough to equip more than a divisional sized force, it

is evident that the violence was at a sub-optional level.  There­

fore,  the  contention that the  reaction  was  disproportionate,

appears tenable.
 

Thirdly, the HR issue became, as a consequence, another weapon in

the `proxy-war', and an additional pressure point in a  nascently

unipolar  world.  The international nature  of  the  pre-existing

dispute  gave  it  a  greater  visibility.  The  rash  of   self-

determination  movements in the CNN age added to the  requirement

of delicacy in management. One such measure was media  management

internally.
 

Fourthly, was the demonstration effect of success with the Punjab

template,  that is widely believed to have been unmindful of  the

HR  issue.  Other institutional factors complicated  the  matter,

such  as the intelligence imperative in CI, the convenient  means

to which are third degree methods; systemic factors as the  steep

pyramidical  hierarchical structure in the army, leading to  body

counts  and recoveries as a quanitifiable measure of fitness  for

promotion;  the requirement to change organisational  philosophy,

from  maximum  force in its primary task  of  combating  external

aggression,  to minimum force in internal security  duties;  late

development in psy-war techniques etc. 
 

Fifthly, the genesis of the military option was in the politcally

weak  position of successive governments, themselves under  seige

from the politically assertive, and ascendant, right-wing politi­

cal  formations.  It is moot whether a study needs to be done  of

the  spread  of  the ideology of these parties  in  the  security

forces (SF), that are themselves conservatively inclined institu­

tions,  and  the consequent impact on  operational  conduct.  The

linkage  of  this with the  HR  issue is fundemental  in  that  a
 

rightist  approach  is state-centric, power,  security,  law  and

order,  and `mainland-mainstream' oriented.  Here state  security

and  `national interest' take precedence, thereby relegating  the

HR issue.
 

Lastly,  if the foregoing understanding holds water, it  explains

the  defensive nature of the reaction to international  interest,

in  the  in the HR situation.  It was only towards  the  mid-90s, 

that political and glasnost measures were incrementally institut­

ed.  Simultaneous was the information offensive on the nature  of

the  changed  militancy,  that was by then  reliant  on  Pakistan

sponsored  mercenaries.  This has energised our position  on  the

strategic instrumeutality of the HR issue in international  rela­

tions.  
 

The proposition advanced in the previous section is, thus,  borne

out, in that, the inadequacy of the state, with regard to preven­

tion, occasions occurance of insurgency.  This is exacerbated  by

military  short-comings in perception and application  of  force. 

The first casualty is human rights. A propaganda offensive justi­

fies, or conceals, these, while the security forces  gain time to

consolidate.  Once stability returns, human rights features in  a

more genuine form on the agenda. A similar cycle may be  observed

in  the Punjab problem in the decade post - Op Blue Star  and  Op

Woodrose.
 

In short, the cycle comprises :-
 

- Perceived lack of legitimacy, and limited penetrative power  of

the  state  causes insurgency.  Lack of the latter leads  to  the

feeling of relative deprivation which in turn causes the former.
 

-  State  response is  military predominant  owing  to  politico-
 

administrative incapacity.  This leads to a suppression - aliena­

tion cycle.
 

-  Insurgency becomes a self-sustaining cycle, with vested inter­

ests  acquiring,  in  it, a stake.  Degeneration  in  values  and

dehumanisation progressively increase.
 

-  Human rights of the affected populace are imposed upon,  lead- 

ing, in some measure, for support to the insurgent.
 

-   External  factors  vitiate this situation,  for  altruist  or

strategic interest.  In this transnational forces play as crucial

a role as states.
 

-   The state awaits the military outcome to  bolster the  legiti  

macy conferred by power so demonstrated.  Within society  psychic

numbing occurs, making it prey to informational warfare.
 

The  conclusions of the case study therefore are that  the  state

must :-
 

-   Bolster  the software and hardware capability of  the  state,

especially at prorvincial level.
 

-  Ensure a political approach and political control of the state 

apparatus, to include the SF.  Cooptation of oppositional  forces

into the democratic order is recommended.
 

-  Ensure pre-eminence of HR issues, for diluting public  support

for  the insurgent, and as a duty to its citizens in the  'social

contract' tradition.
 

-  This can be done by discouraging politicisation and propagand­

istic  use of the HR issue.  Whereas this will obviously  not  be

done by the intervening power and by the insurgent, it is a  duty

the state must fulfil towards its citizens.  Internal retardation

of this in the form of institutional interests, to include  those

of the SF, the intelligence and strategic community, must be  re­

moved.  This would also indicate the commitment of the state  and

primacy of the  political head in conduct of counter-insurgency.
 

-     Ensure  the distinction between the  indigenous  roots  and

external  interests  is  maintained, and the  former  tackled  on

merits through a constitutional process, regardless of the  para­

sitic involvement of the latter.
 

-   Induct trained, socio-politically sensitive,  cohesive,  non-  

denominational SF units into incipient insurgency environments.
 

-  Impart non-legalistic, primarily conceptual and philosophical,

training to such units on HR.
 

-  Emphasise the strategic relevance of HR in  insurgency  situa­

tions, particularly to the SF leadership. The aspect of political

control is crucial, lest the `tail wag the dog'. The defence that

morale  suffers if the SF are made accountable for their  conduct

in the HR field is an abdication of operational level leadership.
 

 

However,  by no means is the task of breaking this cycle an  easy

one,  given that the the militant group is also a quasi  -  auto­

nomous  actor,  as  are  its  supporting  governments  and   non-

governmental  organisations - and must, therefore, bear a  burden

of  responsibility for the HR situation. The contribution of  the

militants  themselves to this, gives them a  protagonist  status.

The  governmental response in the military dimension may  be  im­

perative  to save the people from the scrouge of  their  ideology

and methods. The point with respect to the `cycle' forwarded here

is  to  recognise that, whereas, this be so, it is not  the  sole

impetus  to  a  deteriorating HR situation.  Grasping  this  must

necessarily precede measures to short-circuit the cycle.  
 

Conclusions
 

In summation, it is interesting to note the similarities  between

states  and the militant groups that contributes to both  viewing

the HR issue as a strategic tool. Both owe its protection to  the

people  in return for allegiance proferred; both have  a  collec­

tivist, power-orieuted, and, military approach that relegates the

HR issue; both use the HR issue as a strategic weapon by applying

psy-war  techniques; both are generally defensive about their  HR

record,  with good reason; both have organisational factors  that

complicate  their HR record; both accord primacy to means and  to

short  term  military  advantage;  both exhibit  a  tendency  for

degeneration  of  operational content in moral volues;  both  are

reluctantly bound by national and international law.
 

The  state  is generally at a disadvantage in   such  a  situaton

being  more visible, more accountable, more sensitive  to  public

opinion and status quoist.  It compensates by greater  command of  

resourses, legitimacy and force. Institutional inadequacies  lead

to indelicacy in operational management, thus impacting adversely

on  HR, at its own strategic cost.   Since  self-perpetuation  is

the  goal, such temporary curtailment of HR of a section  of  the

population,  is considered small price to pay in the short  term. 

Politically,  an accomodationist state could bring about  an  in­

verse-U  curve in the militancy.  But military power is  used  as

substitute,  leading in the medium term, to  the  suppression-al­

ienation-militancy-suppression  cycle,  which  vitiates  the   HR

situation. It is this cycle that is germane to the CI - HR  rela­

tionship. The solution lies in breaking it.