https://aliahd66.substack.com/p/the-learning-from-amshipora-military

The learning from Amshipora: Military leadership matters

Note: The story has moved on, though not covered in below post https://theprint.in/judiciary/amshipora-encounter-in-appeal-against-life-term-captain-says-he-obediently-followed-orders/1432276/

It is worth congratulating the army on its Court-martial consigning the perpetrator of the Amshipora killings to life imprisonment.

It is strange that the army needs to be complimented on following through on a be done-and-dusted case of an as egregious a human rights violation as it can ever get.

One would’ve thought that this oughtn’t to have happened to begin with in an ethically-imbued army. That it would do the right thing reflexively and a verdict as this would be routine.

Unfortunately, it is not quite this simple.

Firstly, the verdict took rather long to get to – short of three years - which is not in keeping with military mores on disciplinary action.

Secondly, it is uncertain that the vagaries of the justice will allow the verdict to playout to its logical conclusion. Recall how the army court-martial sabotaged the Pathribal case and how the armed forces tribunal - that had a former army vice chief on its rolls - let off the Machil killers.

In the Pathribal case, the army brazenly dismissed the case for lack of evidence, though consigned to their custody by no less than the Supreme Court on the army’s own choosing.

In the Machil case, the tribunal had it that those killed were dressed Pakistani-like and found near the Line of Control (LC), and – ergo - were terrorists. The former vice chief on its rolls evidently forgot that his presence was to ensure against such stupid inferences. Perhaps he interpreted his job to be to sweep the case under the carpet.

What is the honourable thing to do is now no longer cut-and-dried, even if it ever was.

In the Amshipora incident, the Rashtriya Rifles (RR) Sector Commander alighted on the incident with unseemly alacrity, claiming it to be a genuine encounter. It reveals that he was not quite in touch with his instruments. He may have been motivated by the confidential report syndrome that annually mid-year afflicts officers.

The chain of command was unamused when the police scratched the surface of the encounter story. Yet, the Victor Force Commander and the Chinar Corps Commander took a month to launch a formal inquiry.

Despite Amshipora on his watch, the Brigadier went on to earn a Yudh Seva Medal (YSM), implying his showing in overseeing other encounters had washed off the stain. His only loss was in missing out on the National Defence College course, that would have enabled him to get to three-star rank eventually. He may yet make it to two-star rank, his medal bailing him out.  

No evidence can ever be found of whether this largesse owed to his immediate superior also being from the same regiment.

Interestingly, since ‘Yudh’ translates as ‘War’, it is apparent that the insurgency in Kashmir was being viewed as late as Republic Day 2021 as a proxy war, presumably because in the encounters some Pakistani terrorists were also dispatched to Valhalla.

Once the LC ceasefire with Pakistan kicked in yet again, even awards for operations along the LC were in line with peace time awards, e.g. the Seva Medal series. Curiously, the Victor Force commander toting up the same statistics for his performance, received a peace time award; perhaps a bar to his YSM from his last command assignment fell short and an Uttam Yudh Seva Medal (UYSM) might have overshot. The same year, the UYSM received by the Corps Commander is easier to explain, given an active LC at the time.

That the lieutenant governor jumped into action, publicly condoling the victims’ families, shows the conspiracy was unbeknownst to the hierarchy. (It is another matter that the promises of jobs the politico made have not been kept three years on, though Hindu victims of killings by terrorists at a village nearby received such benefits the very next day. Even so, White Knight Corps, in whose area the village falls, should exert – if only as a public relations measure - with the administration to deliver on its promise.)

This means any suspicion that the false encounter had any hierarchical imprimatur can be laid to rest in this case, though vigilance on human rights protection is neither invalid nor illegitimate.  

To the Brigadier’s credit, when commanding an RR battalion earlier, he had earned a gallantry medal, with an accompanying purple heart testifying that this was not based on a well-written citation. It is not impossible that he was duped by the RR battalion under command.

It is a positive trait in a military leader that she invests trust in her command. On rare occasions, a junior might let down the faith reposed - as possibly was the case here - but that is no reason for not respecting  subordinates to do the right thing the right way. It allows juniors to rise to the occasion.

General JJ Singh in his autobiography recounts an incident in which as brigade commander in the Valley he faithfully transmitted operational information received from one of his battalions, only to find out later that he was misled, leading to an operational snafu. He then insisted that either he be removed, or the battalion commander replaced. 

It is easy to imagine that with the wrath of the hierarchy on him for the Amshipora murders, the RR unit commander’s career was likely sealed, though he too may have averred to be conned by Bhoopendra. Even if true, it is too proximate a level to have been taken for a ride by a subordinate.

Grapevine later had it that the offending battalion in the Amshipora case was later relocated into rigorous mountain terrain for reorienting itself on the ethical conduct of operations. That they merited collective action suggests that Bhoopendra might not have been acting in isolation.

Since the command hierarchy in Chinar Corps in position at the time had a reasonable professional reputation, the Amshipora false encounter was eminently preventable. Since it nevertheless did occur begs the question of what structural prevention should be in place hereon.

There is speculation aplenty on why the false encounter was engineered by Bhoopendra Singh, aka Major Basheer Khan, and his affiliates, a prominent one being that they were after the ‘goodies’: pelf in case of his Kashmiri informers and perhaps awards in case of Bhoopendra himself.

Be that as it may, the structural explanation here is that command tenures are so short that commanders are faced with a challenge in impressing their personalities and yardsticks on their commands.

In my last post, I highlighted the rather short command assignments owed to an elongated waiting list. Apparently, while a passable tenure at higher levels is taken as one and a half year, the duration these days of one-star to three-star command is just above a year long. By all accounts, this is too short.

Whereas the military tries pruning the list, dropping some names onto the ‘staff’ track and is contemplating collapsing the one and two-star command opportunities, with the onset of integrated battle groups, it is evidently a losing battle.

I proposed Specialism inform career paths. Spotting and collaring the Leadership and Operations Speciality must be done by the 16^th year of service.

The idea is with their battalion-equivalent command tenures done with by the 15^th year, those with demonstrated leadership abilities can be sifted for induction into the leadership track from across the army’s combat and combat support arms. Their staff assignments would be with operational content, billets proliferating lately from information operations to cyber.

Others not so selected could populate specialised streams to which they have self-selected – administrative or logistic - in the hierarchy of headquarters, while those from the services could continue down career paths geared to their expertise.

Assured progression on the leadership track must follow, so that the underside of military leaders simply not having time enough to grow into their ranks and measure up to the weight of epaulettes, is done away with.

Take for instance the Force Commander in question. He made one-star at about 2013 and in less than ten years demitted command of India’s show-window corps in Ladakh. In effect, he has transited three command tenures, interspersed with another three staff tenures, and -not to forget- the National Defence College course, implying he has not sat on any chair for more than a year and half. This would amount to ticket-punching in a circumstance the structure was not responsible for such musical chairs.

The Corps Commander in question went on to head the military operations branch, be Vice Chief and now made it to Army Commander level, all in a laughable time-span of less than two years.

On his part, the Brigadier was wounded as a battalion commander in 2010, and completed his one-star command in 2020, making for some 10 years in the rank of colonel. Whereas colonelcy is good preparation for higher ranks, a decade of it is long enough to turn even radical leaders into demure followers.

Though the military likes to deride bureaucrats, taking a leaf out of their book on cadre management is in order. They make joint secretary rank by the 15^th year and get to the top two rungs as a matter of course. This gives them policy making experience on-the-job, honing their core expertise.

Military leaders in contrast spend a quarter of their careers at the higher levels. Neither of the two courses they do in the duration can compensate for the interminable stay at the lower rungs.

If the idea is some form of perverse coup-proofing by the civilian side, then it is brilliant.

However, the responsibility for this is not at a civilian door, but the military’s own. It’s a self-inflicted career graph, in order the military is not led by Tigers but pedestrians in tiger stripes.

Its operational consequence was evident in the Amshipora.

The command hierarchy in Northern Command was unable to push back against the General Bipin Rawat-mediated Operation All Out. A brainchild of the Hindutva regime, it was a preliminary operation to remove into perpetuity any Kashmiri youth with the gumption to challenge what was impending: the evacuation of Article 370 of all meaning.

The pressures for ‘results’ in terms of ‘kills’ - comprehensively delegitimised by the body of evidence in the preceding Kashmir experience - upended ‘winning hearts and minds’, the cornerstone of the counter insurgency doctrine.

Kinetic means are to get a situation under control and are no substitute for political measures to end an insurgency. The violence indices simply didn’t justify the logic one Chinar Corps commander gave out: that all who take up the gun must be eliminated.

Not only did no general in the Northern Command have the gall and good sense to remind Bipin Rawat of the Army’s own doctrinal product, but bought into his 2018 Army Doctrine on hybrid war. The concept was borrowed from a United States’ training institution where Rawat underwent a course in the late 2000s, at a time when United States was in the midst of its twin Iraq and Afghanistan quagmires of its own making.

Instead, command tenures being short, commanders have to set off at the trot. Though at an operational cum strategic level, they have been conditioned through multiple tenures in the Valley to seeing only the operational level as their beat. The strategic level has been usurped by the Police, who may have at best heard bullets fired in panic.

There is no known input of the Army into Amit Shah’s Article 370 demolition act. It is possible it was not even asked; former military men appointed as advisers in national security corridors claiming to speak for it in support of the regime’s caper.

Another example is the stupefaction of the army in Ladakh. Covid cannot account for this. Take the case of the then commanding general in Leh. His colonelcy ended in April 2011 and he handed over the Ladakh command in September 2020, a timespan less than ten years.

Sure, Eisenhower had a lightning progress from colonel to four-star general. But that was war-time, warranting deep-selection, in his case by General George Marshall.

In the case closer home, the limited duration at the upper levels leads to an inability to be at home at the strategic level. No wonder the Chief of Defence Staff post was kept vacant for a year and there is no military adviser to Ajit Doval for now. This owes to a leadership development career profile that isn’t.

Merits of the proposal here for extended leadership opportunities over the last two score years is the only way. Career assurance will steel the backbone, while longer experience will ensure professional credibility at higher levels.

It would be easier to socialise a cohesive leadership. Yes, logically a cohesive apex cadre makes for a Prussian General Staff look-alike, with attendant subordination issues in a democratic polity.

But then a defanged officer corps – as now - makes for an easier civilian Constitutional coup, as can be seen unfolding in slo-mo and in plain sight.

 https://aliahd66.substack.com/p/armed-forces-special-powers-act

Armed Forces Special Powers’ Act

AFSPA is part of the problem

The Home Ministry makes a virtue of a necessity in the withdrawal of the Armed Forces Special Powers’ Act (AFSPA) from some areas of its extant across North East. That this is a response to the Oting killings in Mon District of Nagaland last December is self-evident. Had that botched operation not taken place, periodic routine extensions to AFSPA would have continued, just as was the case in Assam only last month. Since AFSPA is part of the legal landscape in the North East and Jammu and Kashmir (J&K), the Act is center stage when there is some or the other egregious violation of human rights. The remainder of the time it whirrs away in the background, covering up violations that do not clutter headlines.

It is not as if AFSPA has not been consigned to the dustbin when warranted. The legislation for Punjab was jettisoned when it outlived its utility sometime late nineties with the passing of the Khalistani insurgency. The one in Tripura was wrapped up in mid 2010s by the Left administration there when its enlightened policies brought peace to tribal areas. However, it has continued unabated in the North East and J&K, even where the indices of insurgency have been negligible. This has been the case not only in areas in J&K, such as south of Pir Panjals, more or less all through, and also in Assam since the insurgency there abated in the early 2000s. That AFSPA continues in place by mere genuflection to an unsettled situation, rather than any rigourous due process by way of which it is extended, shows it up as a tool of centralized control over the periphery; a colonial instrument, if you will.  

The Courts have twice-over taken a deeper look at it. In the late 90s, the challenge to AFSPA on constitutional grounds was laid to rest in the Courts decreeing it as constitutionally compliant. The judgment was sugar-coated with homilies to be applied by the armed forces during operations, which in the event proved to be lip-service to a set of commandments, themselves revised soon thereafter. Then in the mid 2000s, there were the upheavals in Manipur, stemming from wanton disregard by some armed forces elements of the provisions that Supreme Court had required be kept in mind during operations. The government of the day - bearing a liberal orientation - sought to quieten the backlash by appointing a commission. As with most such reports, the Commission’s otherwise enlightened report was confined to dusty file cupboards. The then home minister later ruefully recalled – referring to another report by three interlocutors dealing with the effects of the AFSPA in Kashmir - that an opportunity was passed up to rectify matters.

The highest Court continues to be ‘seized of the matter’ – in ways typical to courts – following up with an investigation of some 1500 cases of disappearance in Manipur. Of the six sample cases investigated at its behest by a central agency, all deaths were found to be in fake encounters. Premises vacated by a departing military unit threw up human remains, testifying to an effort a clandestine disposal. In J&K, unmarked graves number up to some 3000, while the number of disappeared are pegged just short of 5-digit figures.

While wheels of justice clank on, their din has forced at least two counter insurgents to commit suicide. One Avtar Singh, on the run for killing a human rights activist in Kashmir, killed his family before shooting himself, way out in California where he was hiding out. A Pakistani author provides a fictional account of the murder-suicide. In the other case, the major allegedly involved in the alleged rape and murder of Manorama Devi allegedly died in a firearm ‘accident’ on the field firing range. This is not how it was envisaged in the AFSPA to deal with violations of its provisions. Poetic justice after a fashion, but this should have, first, been deterred by the State; and, second, it should have deployed its disciplinary powers instead.

Indeed, AFSPA does confer disciplinary powers. These have been remarkable only for absence of will to use them. The Act would have perhaps had less ignominy had the Article that confers these powers on the Central government been exercised as envisaged, when and where warranted. That power under this Article has been deliberately ignored, while powers under other Articles have been abused tells its own story. Not a single prosecution has been initiated since the Union government has declined to sign off on its approval for such action, even when warranted. Where the army’s judicial system has stepped up, justice delivery has been casualty. Machhil and Pathribal are cases to point. This puts the onus on the government, but with two ministries involved – Defence and Home – there is little chance of decisions emerging.  

This owes to a division of labour in which the bureaucrat-assisted political level of military control has abdicated its responsibility of oversight altogether. The lessons of 1962 were over-learnt. Both doctrinal and operational aspects of military affairs are taken to be the realm of the military brass, while it is kept out of the higher order decision making. This is a symbiotic relationship, with the brass not unhappy to have a field-day operationally. Lately, cosmetic strides have been made to get the military on the high table, though mostly this is high on propaganda than substance.

As a result, counter insurgency has been largely unsupervised, with the military being only self-regulating only up to a point. The doctrinal cover it has is that a kinetic resort is only to bring down levels of insurgency to manageable levels. This is compounded by a definition of insurgency that has it that insurgency is only if unassisted from outside. This puts the troubles in Kashmir into a proxy war basket, whereupon militant action is taken as terrorism, inviting a liberally-dispensed wrath of the State.

Whereas the military has projected that it is loath to be involved in aid to civil authority in tackling internal security, the circumstance has been rather beneficial for the military. It has expanded its footprint across J&K in particular, raising a whole Force, the Rashtriya Rifles (RR), to enable it do so. Thus, when calls, impelled by ‘healing touch’ sentiment, come up for rewinding AFSPA, these are promptly shot down by the military, the custodians of expertise on insurgency and national security. No national level politician can second guess that, while provincial politicians can be derided as having an axe to grind. Thus, AFSPA acquired institutional stakeholders interested in its longevity.

There are institutional checks in place, such as a human rights cell at the headquarters level. Recently, a police officer stands posted to the headquarters with a remit to oversee processes dealing with violations. However, the interpretation of the mandate is such by the military appointees that they think their job is to preserve the military from external scrutiny. This is of a piece in a system where the apex human rights body organizes debates with topics such as: "Are human rights a stumbling block in fighting evils like terrorism and Naxalism"?

In such milieu, not only will AFSPA be willfully misinterpreted, but its tenets stretched. For example, it allows for destruction of hideouts. However, that was apt for when it was promulgated: when in jungles hideouts could be destroyed so that these were not reused. These days it is interpreted to mean any place militants are found, including houses they take shelter in. Thus, there is a virtual policy for destruction of houses in which militants are found. This replicates what Israel does, hardly apt for a country dealing with its own citizens. AFSPA provides benign cover for turning India into a softer copy of that Apartheid state.  

Though the government, known for milking military-related measures for its political purposes, will go to town over the retraction of AFSPA from certain areas in the North East, it is unlikely to be replicated in J&K any time soon. This could be done easily if violence indices are the only barometer. That it needs being done is not so much as to stay compliant with the Court’s requirements, but to be strategic. The AFSPA feeds resentment and high-handed actions under it, alienation. If partially withdrawn, it would serve as a useful confidence builder and gimmick to initiate a peace process. Retracting AFSPA can do more for J&K peace, than divisions-worth of RR. But the government, having shot its bolt with Article 370 voiding, is hardly likely to be looking at politically-driven conflict resolution. It is instead election oriented. It could well give indicators of turning back the AFSPA clock if the ruling party gets elected in the forthcoming elections. Reaping the harvest in installing a Bhartiya Janata Party-led government under a Hindu chief minister, it can rescind its promise at will or remove it selectively. AFSPA, thus, is plenty-faceted, to be juiced at will.

One thing it certainly does is to hand over – figuratively – the situation to the army. For the vast majority of counter insurgents doing a professional job of a distasteful responsibility - not an infanteer's primary job but only an infanteer can do it - they would soldier on regardless of the Act; so don’t quite need it. What the Act does is makes it business-as-usual for politicians and bureaucrats. There is thus no urgency to resolve matters politically. The Naga peace process is to observe its silver jubilee soon, with not comprehensive peace agreement in sight as yet. As a result India has been criticized – for instance by David Smith - for being a soft state, unable to wrap up insurgencies for decades on end. The critique, though taken amiss by the military and its veterans, bites.

What escapes the military is the cost it pays for maintaining the cover of AFSPA. It remains a ‘mass’ military – a grid-based counter insurgency being manpower heavy. This has impacted its financing; the revenue budget eating up the capital budget. It is also not conventional war oriented enough, having been caught flat-footed at Kargil and, most recently, in Ladakh. That courage has bailed it out is at best a back-handed compliment. Thus, AFSPA has a price the military is unwilling and/or unable to see.

Even so, AFSPA does serve the purpose of providing cover for deploying the army in circumstance of straitened internal security. That the enabling provisions are also available in other legal instruments has not made a dent on the army’s adamantine stand. Its powers could also be inserted into a revised Unlawful Activities Prevention Act (UAPA). Since the much reviled UAPA is applicable across India, it does not suffer arraignment as AFSPA does of being discriminatory.

Nevertheless, AFSPA is not going to go away. The only purpose it can perhaps serve someday is that it can provide cover for army deployment elsewhere. No, not in Maoist areas - though it’s discipline might protect the tribal communities there better than that afforded by the central police forces - but across India if and when right wing extremists - whose political violence is the primary threat to the Republic’s Constitution - are to be rolled up and wrapped away.

 

Paper For HR Seminar At Baramula, J&K

23-24 March 2011

 

THE DSCO AND THE HR FACTOR  

Abstract

 

The Doctrine for Sub Conventional Operations (DSCO) is due for review this year. The paper hopes to contribute to this by suggesting directions it could better address the Human Rights (HR) factor. It first reviews the doctrinal tenets regarding HR and then brings out areas of dissonance in the DSCO. It then dwells on ways to address the HR issue including supervision by the government and auto-regulation by the military. It brings out that certain doctrinal formulations lend themselves to a permissive understanding of use of force. This impinges on the HR factor, rightly taken in the doctrine as central in countering insurgency. It recommends measures to reconcile use of force and the HR factor. This is imperative in light of the idea of India the nation is working towards.    

 

Introduction

 

The International Committee of the Red Cross (ICRC), that is authorized by the international community with overseeing International Humanitarian Law (IHL) has arrived at a useful formulation of its aim. It is to bring about a ‘reasonable and pragmatic balance between the demands of military necessity and humanity.’[1] This has lessons for protection of Human Rights (HR) in subconventional operations for India. The paper will attempt balance the inescapable application of force with its HR implications for people in the affected area. This is not to imply that such a balance is missing, but that improvement is possible in every human endevour. Since this quest can best be done in the realm of doctrine, the paper studies the Indian Army’s Doctrine for Subconventional Operations (DSCO) (2006).[2] The doctrine’s second edition is under consideration this year, its fifth year of publication,[3] and on that count, the attempt here is to inform the review.

 

The aim of the paper is to suggest that the sub conventional operations doctrine be unambiguous in its protection of HR as a strategic factor. The paper is laid out in three sections. The first recapitulates the HR related tenets of doctrine in brief. The second section brings out concepts and gaps that could have an adverse bearing for the HR factor. The intent is to discern scope for improvement. Lastly, it puts forward recommendations in order that the doctrinal intent of HR primacy is furthered even in operations with higher violence content.  

 

HR in doctrinal tenets

 

Doctrine is a written document that encapsulates thinking on an issue to serve as guidance for all members of the organisation. The Indian Army Doctrine (2004) is the foundational document.[4] It lays down the broad approach to counter insurgency (CI) and Low Intensity Conflict (LIC) operations in Section 14 of Chapter V.[5] It restricts the military aim to ‘conflict management’ rather than ‘conflict resolution’,[6] the latter being the larger political objective requiring a concerted national effort integrating all prongs of strategy. It makes clear that the foremost principle is winning the hearts and minds (WHAM) of the population through low profile and people-friendly operations.[7] Echoing the COAS Commandments, it states: ‘Remember that the people you are dealing with are your own countrymen; your behaviour must be dictated by this single most important consideration. Violation of Human Rights, therefore, must be avoided under all circumstances, even at the cost of operational success.’[8] This respect for HR must persist despite the Army’s prolonged deployment in CI operations and ‘notwithstanding the tense, stressful and turbulent situations at the grass roots level.’[9] This is tacit acknowledgement that HR could be compromised unless positive measures are not firmly in place.  

 

Flowing from the Army doctrine, is the DSCO of 2006. It encapsulates collective wisdom and philosophy gained over half century of such operations.[10] It demands ‘scrupulous respect for human rights’ and ‘upholding the laws of the land’ since the ‘center of gravity’ is identified as the populace.[11] To enable this, it recommends that imaginative rules of engagement be formulated in the backdrop of political, legal and moral parameters.[12] Its emphasis on the humane and people-centric approach has led to the doctrine being dubbed ‘Iron fist in velvet glove’.[13] It must therefore be acknowledged that the doctrine establishes HR protection as the foremost doctrinal principle.          

 

The doctrine has it that the end state sought by the national counter insurgency campaign is ‘conflict resolution’, which, to it, generally succeeds ‘conflict termination’. The military aim is creation of a secure environment for government to discharge its functions. This involves neutralization of hostile elements in the combat zone including terrorists and their support base. Towards this end it reiterates the principle of minimum force to neutralize rather than eliminate. It is cognizant of the constitutional obligation to respect HR. It outlines a pragmatic response to HR issues within the service to include sensitization of all members, reacting to violations and negating unwarranted allegations. A ‘zero tolerance’ regime is to be in place regarding violations.[14]

 

Doctrinal dissonance

 

The very deployment of the Army in Aid to Civil Authority and under the Armed Forces Special Powers Act suggests that potential and extant violence levels entail application of military force to bring under control. Such application of force has the added advantage of establishing psychological ascendancy over the terrorists. In a proxy war situation it conveys the message of the resolve to external benefactors. Internally, it reassures the public in the area and elsewhere in the country that the government is acting with due firmness. Advantages apart, these reasonable aims are susceptible to being thwarted by political, ideological and institutional considerations. Therefore the HR factor, despite its strategic salience and effort at protection, is liable to be overlooked. That it returns to the fore once the situation gets better is acknowledged. However, the contention here is that it must remain in focus even when the going gets tough.

 

The DSCO expresses a preference for the maneuver warfare template so as to place the terrorist into a reactive mode and to influence his ‘mind’ and that of other antagonists. It however believes that ‘Such application (maneuver) cannot by itself produce results so recourse to attritional warfare (elimination of terrorists) in the initial stages of the campaign cannot be avoided.’[15] It is at a later stage that both concepts - attrition and maneuver - are to be applied. In the timeline of operations, it requires application of kinetic means in the initial stages for attrition. Thereafter, a switch to non-kinetic means, suggestive of maneuver warfare, is to be made at the stage at which conflict resolution is in sight. How does this doctrinal conceptualization fare from an HR point of view and in terms of CI strategy?

 

Even while there are strictures in the manner force is required to be applied such as minimum force, no collateral damage, after due warning etc, reliance on force for attrition in the early stage can result in alienation setting in. Such alienation can only translate as heightened support for the terrorist, including additional recruitment into their ranks. This would worsen the situation before, over the long haul, it gets any better. The initial period is also one in which the populace forms its attitude towards military deployment. In case the military is concentrating on neutralizing, if not eliminating, terrorists through ‘kinetic’ means, then impositions on the population can only be higher, though briefly, during the period. While here again there are measures for amelioration such as ensuring professional conduct, delivering basic needs etc, a hardening of attitudes can take place. Such an attitude has been described in one publication as ‘insolence’.[16] The effect on the soldiery on ground can be expected to be negative in terms of increasing stress levels, provoking unseemly reaction and making for perception of a hostile environment. It would take extensive WHAM efforts to retrieve lost ground over an extended period later. Lastly, judging when to make the transition is a challenging leadership responsibility. Inability to make the transition timely can result in continuing disaffection and unending deployments. Responsibility for the latter cannot solely be attributed to lack governance and political strategy.

 

The doctrine allows for ‘overwhelming’ force against ‘hard core’ terrorists and foreign mercenaries.[17] This gives rise to the understanding that ‘Where there is terrorism, there cannot be human rights.’[18] ‘Hard core’ terrorists do not lose their humanity and citizenship. Even foreign terrorists - though admittedly they forsake their humanity through brutality - are covered by international obligations that India is signatory to, such as at a minimum Common Article 3 of the Geneva Conventions. While the levels of force are for the military to judge, ‘appropriate’ force levels is a better term, since if warranted overwhelming force can still be used. The word ‘overwhelming’ brings about dissonance in the minds of counter insurgents and unnecessarily makes for avoidable permissiveness in use of force. The distinction between hard core, soft core and foreign terrorists is difficult to make for want of intelligence. This leads to a bracketing between the two and by extension, leads to supporters being mistaken as foreign agents. This aggravates the divide between the counter insurgent and the people, playing into the hands of external sponsors of proxy war. The DSCO would do well to heed the Indian Army Doctrine that states: ‘Additionally, any tendency to resort to quick and seemingly efficient military-like actions which may appear to resolve an immediate local issue but, in all probability, may seriously hurt long-term objectives and future stability should be curbed without exception.’[19]

 

The DSCO equates HR with fundamental rights.[20] This is correct but insufficient. The Protection of Human Rights Act of 1993 defines the term thus: ‘“human rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.’[21] In other words, international obligations count. The problem with fundamental rights being taken as yardstick is that they are amenable to abridgement in times of emergency. In India’s case, extensive use of the Armed Forces Special Powers Act (AFSPA) has been critiqued as resort to emergency provisions by the backdoor.[22] International Human Rights Law (IHRL) countenances abridgement of HR only in case of emergency. Certain provisions as right to life, right against torture etc cannot be infringed even then. The AFSPA gives the security forces (SF) extensive powers (Section 4), including of protection against prosecution in its Section 6.[23] While the Army rightly exerts to prevent misuse of powers, keeping doctrine apace with international norms and the legal order is useful, particularly in retaining the moral high ground in any face-off with state sponsors of terrorism.

 

A problematic idea that finds mention is that, ‘the orchestration of operations must be such that the ‘induce the desired degree of agitational fatigue amongst supporters of the cause.’[24] This is simplistic in its assumption that politically motivated agitators would give up by being continually inconvenienced. State action would to them constitute suppression and thereby legitimize their fight. Since in the early period, terrorists have population support, a distinction, difficult to arrive at, would require being made between over ground workers and the population. The doctrine does maintain alongside that action against over ground workers must be in keeping with the law of the land. However, measures taken to distance supporters from terrorists by inducing a realization that they cannot ‘win’ against the government implies an intention to exhaust them. This may end the problem, but does not resolve it. It helps with ‘conflict management’ and not ‘conflict resolution’. In other words, the narrower military aim can be met, but this does not help with achieving national aims. It also goes against the democratic ideal of tolerance of dissent. There is danger of the Army ending up a political actor. That these measures are not elaborated on indicates there is scope for impinging on HR. Again tactical level problems arise, such as identification of the targets, methods to be used and when to cease applying such pressure. To its credit, the doctrine concedes that ‘this lever works both ways’ and could prove ‘counter productive’. This begs the question as to why must the idea figure in the doctrine in first place.

 

The way ahead

 

That application of force is to be tempered with human rights concerns, best practices and ‘lessons learnt’ is a well acknowledged by the military. Both doctrine and theatre-specific strategy acclaim centrality for the HR factor. Violating HR proves counter protective in the long run. Sensitivity to HR norms, rules and practices has consequently been developed in the leadership and soldiery. While in the context of current day CI preoccupations it is clear that the HR factor is to the forefront, it bears reminding that the security situation is much better. The real test for HR sensitivity is therefore not so much when the going is good, but when the situation is challenging. In order to ensure that the HR factor remains fore-grounded even when under severe test, there may be more work to be done in terms of internalizing it. This is especially so in light of CI practices elsewhere more permissive of use of force and firepower, acting as influence on doctrine revision. [25]  

 

Firstly, given the considerable autonomy for the military under the AFSPA, there is a premium on self-regulation. However, this has its limits. It needs to be reinforced by the force of sanctions. This presumes a superior authority. Towards this end the state government and, at the Center, Ministries of Defence (MoD) and Home Affairs (MHA) are candidates. However, lines of authority are indistinct. While MHA is responsible for internal security, the military when deployed on such duty continues to answer to the MoD. The state government does not have power over the military and is dependent on its ‘cooperation’. This arrangement between the military and the state government has sanction of the Supreme Court.[26] While the National Human Rights Commission (NHRC) and the state human rights commissions exist, the military is outside their purview except as mediated by the central government.[27] At best theirs is a reporting function, rather than a watch-dog one. There is therefore additional need for oversight, over and above internal oversight mechanisms of the military such as Human Rights cells, functioning of the chain of command etc.

 

Five suggestions can be mentioned. The first is that of multi-level ‘grievance cells’ mooted by the Jeevan Reddy committee.[28] Second is internal to the military. It is in having ‘staff courts of enquiry’ investigate any incidence of loss of life or excesses.[29] The third is in reframing of Section 6 of the AFSPA. A suggestion reads: ‘No prosecution … shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act where the Central government provides reasons in writing and the competent court upholds the legal validity of these reasons.’[30] Fourth, is that the Center could be more liberal in granting permissions to proceed with prosecution, where warranted. And lastly parliamentary standing committees on defence and home could have theater commanders depose before them to field questions on strategy and HR. A parliamentary standing committee can be set up for each ‘disturbed area’ under the AFSPA. These measures would obviate any sense of impunity, act as deterrent, ensure accountability and serve the ends of justice. Eventually, how this is brought about is the call of the political leadership at MoD.

 

Secondly, it is interesting that the DSCO does not carry any discussion of the AFSPA. At the time of writing of the doctrine the Act was under scrutiny by the Jeevan Reddy committee.[31] The Act has been under review since and the Army Chief has opined on its necessity.[32] Given that it will likely stay, amending it as suggested by the Supreme Court by making violations of the Chief’s Do’s and Don’ts punishable, is a way to ensure domestication of the AFSPA.[33] Also, the parameters in the discussion on end state and exit policy[34] can include guidance on when the Act can be withdrawn from areas returning to normalcy. In the absence of this, the military carries the onus of appearing yet another vested interest in the insurgency economy.

 

Thirdly, the Army by taking ownership of HR can become the foremost human rights defender. This can be done in redefining ‘AOR’ – area of operations – away from its territorial connotation to focusing on the population in its boundaries. This would shift the focus to ‘population’ from ‘area’.[35] The resulting sense of ownership would help fend of institutional pressures that are sometimes known to develop in light of the ‘command culture’ prevalent at the spear end.

 

Lastly, the understanding is that conflict termination precedes conflict resolution.[36] But as in the peacekeeping heuristic, peace making can proceed apace with peace enforcement and peacekeeping.[37] In other words, conflict resolution efforts can be co-extensive with conflict management, in which case conflict termination would be co-terminus with to conflict resolution. As the doctrine says the military can at best create the conditions conducive to peace agreement. However, usually the unending search for the position of strength from which to engage with the insurgent group holds up conflict resolution. This has HR implications in terms of soft core rights being curtailed of the innocent population for inordinately long.

 

Conclusion

 

Skepticism on the HR record of security forces (SF) increases with proximity to the affected site, usually in India’s geographic and societal periphery. The mainstream HR debate is between the conservative-realist and the liberal-rationalist perspectives and also between ‘marginalized’ and ‘mainstream’ India. The two perspectives place differing emphasis on the roles of political and military instruments of strategy. These divergences indicate that the HR issue serves as prospective ideological and political battle ground. The democratic contest can be expected to continue and possibly accounts for absence of an overarching internal security doctrine from the nodal ministry, the MHA.

 

However, in light of reticence in the written word being a well known facet of Indian strategic culture, the Army would have to plough a lonely furrow. As the Indian Army Doctrine ruefully acknowledges, ‘As distinct from conventional war, clear-cut directions in a LIC scenario may not always be available.’[38] The recently released Joint Doctrine for Sub Conventional Operations is a fair start point for the revision of DSCO underway.[39]

 

In the ongoing revision, of primary doctrinal consequence is the instrumental and normative value of HR factor. The former is that respecting HR can potentially yield up political dividend. Its normative value lies in helping create the liberal-democratic idea of India. The DSCO in its next edition must reckon with both. However, doctrine is only the initial, perhaps easier, step. The more consequential one is in internalizing the tenets and reflecting these in facing challenges that undoubtedly lie ahead.

 

(Words – 3060)

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* Ali Ahmed is a Research Fellow at the Institute for Defence Studies and Analyses, New Delhi.

[1] ‘Statement by the ICRC on the Status of the Protocols to the 1949 Geneva Conventions Relating to the Protection of Victims of Armed Conflicts, 2008’, October 24, 2008,

 http://www.cfr.org/wars-and-warfare/statement-icrc-status-protocols-1949-geneva-conventions-relating-protection-victims-armed-conflicts-2008/p22309

[2] Army Training Command (ARTRAC), Doctrine for Sub Conventional Operations, Shimla: ARTRAC, 2006. Available at HQ Integrated Defence Staff website -  http://ids.nic.in/Indian%20Army%20Doctrine/doctrine%20sub%20conv%20w.pdf

[3] See KS Jamwal, ‘Promulgation’, DSCO .

[4] ARTRAC, Indian Army Doctrine, Shimla: ARTRAC, 2004. It is available in two parts on HQ IDS website - http://ids.nic.in/doctrine.htm.

[5] Ibid., pp. 23-31.

[6] Indian Army Doctrine, p. 23.

[7] Ibid., p. 25.

[8] Ibid., p. 26.

[9] Ibid., p. 29.

[10] Foreword by General JJ Singh, DSCO, p. i.

[11] Ibid., p. 16.

[12] Ibid., p. 33.

[13] Ibid., p. 3.

[14] Chapter 7 (DSCO, pp. 53-55) is devoted to HR.

[15] Ibid., pp. 22-23.

[16] KS Sheoran, Human Rights and Armed Forces in Low Intensity Conflict, Centre for Land Warfare Studies, New Delhi: Knowledge World, 2010, p. 4.

[17] DSCO, p. 3.

[18] KS Sheoran, Human Rights and Armed Forces in Low Intensity Conflict, p. 4.

[19] Indian Army Doctrine, p. 24.

[20] DSCO, p. 53.

[21] The Protection of HR Act, 1993 (As amended in 2006), p. 1. Available at National Human Rights Commission website - http://www.nhrc.nic.in/

[22] Office of the UN Commissioner for Human Rights, ‘Concluding observations of the Human Rights Committee : India. 08/04/1997’, Paras 18, 19.  http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.79.Add.81.En?OpenDocument

[23] Available at http://www.mha.nic.in/pdfs/Armed%20forces%20_J&K_%20Spl.%20powers%20act,%201990.pdf

[24] DSCO, p. 21.

[25] Such examples include that of the Sri Lanka against the Tamil Tigers, the US in AfPak and in Iraq, Israel in Gaza, Libyan and Saudi Arabian troops against protestors etc.

[26] See judgement of Supreme Court in the Nagaland case of 1997. Text available at - See text of judgment at http://judis.nic.in/supremecourt/helddis.aspx

[27] The Protection of HR Act, 1993, Para 19, pp. 14-15.

[28] Text of recommendations is at http://www.hinduonnet.com/nic/afa/afa-part-iv.pdf./ See for ‘Grievance cell’, p. 79.

[29] Nilendra Kumar, ‘Finding a way out of the AFSPA conundrum’, Business Standard, 19 September 2010.

[30] S. Varadarajan, ‘A modest proposal on AFSPA’, The Hindu, 5 September 2010.

[31] The Jeevan Reddy committee was set up to review the AFSPA pursuant to the agitations in Manipur over the alleged rape and killing of Th. Manorama Devi by Assam Rifles in 2004-05.

[32] ‘AFSPA an enabling provision, not arbitrary: Army Chief’, Times of India, 18 September 2010.

[33] See Supreme Court judgment, Note 26.

[34] DSCO, p. 38-39.

[35] Ali Ahmed, ‘AOR: The CT Ops Version’, War College Journal, 2005.

[36] DSCO, pp. 17, 20.

[37] See UN ‘Capstone Doctrine’, p. 19, available at http://pbpu.unlb.org/pbps/Library/Capstone_Doctrine_ENG.pdf

[38] Indian Army Doctrine, p. 24.

[39] HQ Integrated Defence Staff website - http://ids.nic.in/whatnew.htm