From the archive, 1998

LIC AND INTERNATIONAL LAW

 

Public International Law is a rudimentary body of law  governing,

to  a limited extent, relations between the constituent  elements

of the international system, that include, primarily, states  and 

supra-national  bodies. With respect to armed conflict,  the  two

streams of international law  are jus-ad-bellum and jus-in-bello.  
 

 

The threat or use of force in international relations is  covered

by jus-ad bellum - law with regard to  initiation of inter  state

armed  conflict, and is subsumed in international  constitutional

law.   It is jus-in bello  that covers the actual application  of

violence  in armed conflict - that is central to the  subject  of

discussion  here. It comprises the Law of Armed  Conflict,  which 

is  international  customary and treaty law  with regard  to  the

application of force in armed conflict.
 

 

Jus-in-bello has had two streams of input- the Geneva Law and the

Hague  law.  Geneva law deals with protection  of  non-combatants

and  combatants placed hors-de-combat.  Hague Law deals with  the

regulations  of  means and methods  application  of  force.   To­

gether these are alternatively called international  humanitarian

law or Law of Armed Conflict.
 

 

Another  body of law, International Human Rights Law, deals  with

the  standards  and regulation of human rights that  states  have

pledged  to foster and maintain with respect to their  citizenry,

as  part  of  their international obligation as  members  of  the

state-centric world order.  Law of Armed Conflict enters into the

picture  with regard to this body of law when these are  effected

by  prevalence  of  internal armed conflict, for  it  deals  with

protection of victims of armed conflict. 
That being a theoretical prelude, a closer look at the confluence
 

of human rights law and humanitarian law is in order. The aim  is

to  study the relationship of Law of Armed Conflict and  Low  In­

tensity  Conflict (LIC).  Having been briefly introduced  to  the

scope of the law of armed conflict, a definitional exercise  with

regard  to  LIC  is required to complete the frame  work  of  the

discussion.   This is followed by a sequential reflection on  the

relationship   of  LIC with international  constitutional,  human

rights, and humanitarian law.
 

LIC
 

 

LIC  is  an American term denoting a low level of  intensity  and

scope  of operations, eg.  US intervention in Grenada ;  the  em­

ployment of  UNITAF as part of UNOSOM; and the post-Dayton  I-FOR

in the Balkans.  In its adaptation to our situation, LIC  implies

politico-military   action to stabilise and reverse a  discordant

internal  security situation.  Whereas, the original  term  could

have been applicable to the situation in Siachen, our  adaptation

of  makes it subsume within it both counter-insurgency and  proxy

war,  while excluding military action along the Line  of  Control

(LC)  and  Line  of Actual Control (LAC).
 

 

In passing it may be mentioned that ours is possibly a corruption

of  Kitson's term Low Intensity Operations, for the inclusion  of

`Conflict' in our terminology implies one between the state and a

portion  of its society- the acceptence of which for a  fact,  as

our usage of the term LIC does, is not politically prudent. 
 

 

LIC  is essentially  an internal security issue,  albeit  (though

not  necessarily so) one in which there is an external source  of

sustenance.   Since human rights are in the domain of a  states's

relationship  with its citizenry as defined by  its  constitution
 

and  promulgated  laws, it is a state  responsibility  to  ensure

preservation  of the same in the conditions obtaining in the  LIC

extant in the area.
 

 

LIC and Human Rights Law
 

 

Firstly,  in so far as the state has bound itself through  treaty

obligation  to  respect human rights, external  interest  in  the

state fulfilling its erga-omnes obligation is explicable.   Thus,

the periodic submission by the states at Geneva based UN  Commis­

sion on Human Rights  on their human rights record is unexceptio­

nable.
 

 

The International Covenants on Human Rights  (on Civil and Polit­

ical   Rights; and Economic, Social and Cultural Rights  (1966));

the UN Charter Article 55 (c) on human rights;  and, the  Univer­

sal  Declaration  on Human Rights (1948) are  binding  as  either

customary  and treaty law.  India has translated these  into  na­

tional law in the form of Fundamental Rights, that are  suspenda­

ble in Emergency ; Directive Principles, that are non-judiciable;

and,  the  protection of Human Rights Act of 1993 ,  that  estab­

lished the National Commission on Human Rights.
 

 

Of interest here, is the ascendance of trans-nationalism as  evi­

denced  by  the self-appropriated supervisory role of  state  be­

havior in relation to human rights by NGOs.  Next, is the politi­

cal use of international  fora by inimical neighbors.  While  the

latter requires a  political answer, the former has to be  appre­

ciated in  the context of the `global village'.  To admit to this

is not to imply that politicization of trans-national  forces  is

being ignored; nor that the debate over priorisation between  the

Third  World's defense of `third generation' rights, such as  the

right  to development, versus the West's concern with the  `first

generation'  civil  and political rights, is  to  be  diluted.
 

 

The trend is also indicative of the CNN connection between  areas

of  domestic strife and donor drawing rooms, as also  of  respon­

siveness of the western governments to the power of their  elect­

orates,  especially  in election years.  This  trend  is  however

subject to donor fatigue through psychic numbing, and the strate­

gic  concerns of the West that, for instance, prioritise  `white'

Balkans over `black' Africa.
 

 

In  this decade there has been increasing resort to  humanitarian

intervention under the binding Chapter VII, given UN responsibil­

ity  as  per  Articles 1:3 and 56 (eg.  Somalia,  Haiti,  Kurdish

Iraq).  At regional level too this has been done under the  guise

of peacekeeping (eg. ECOMOG), in keeping with UN Charter Articles

53, 54 and 56 and existing regional arrangements.  Thus there  is

an expansion of the legal basis and precedent for external inter­

est  in  human  rights issues, under the pretext  of  spill  over

across borders to threaten international peace and security.
 

 

LIC and Jus-ad-bellum
 

 

In  this  connection is the question of ` Proxy  War'.    In  the

Nicaragua  Case  (1986), the International Court of  Justice  has

pronounced  that  a  state may be deemed an  aggressor  when  its

intervention is of the order of an `armed attack'. However polit­

ical,  moral  and material support for a non-state party  to  the

conflict  is intervention in internal affairs and is contrary  to

the  non-intervention  principle,  that  has  jus-cogens  status. 

Where  intervention is deemed of the level of an `armed  attack',

the self-defense doctrine (the sole option for use of violence in

inter-state affairs open to states in the Charter era (Article 51)) becomes operative.   Even

in  this  case  the principal of  proportionality  and  necessity

applies. 
 

 

The  conundrum is that,  short of this, and in the event of  hos­

tilities,  the  Security Council is entitled to  intervene  under

Chapter  VI  (non-military) and VII (military means)  of  the  UN

Charter.  The last remaining option of reprisal  as response  has

been ruled out by the UN Charter.  The problem therefore is  that

`proxy war' below a certain threshold is not subject to  military

response  externally. Another problem is that this  armed  attack

requires to be against the political independence and territorial

integrity  of a state (Article 2:4) to trigger  the  self-defense

measures.
 

 

Taking the case of Kashmir, its locus-standi furnishes Pakistan a

loophole,  in  that, its action is  against  neither  territorial

integrity (as seen from its perspective), nor political  indepen­

dence of India. Though the level of intervention is of the  order

of  an `armed attack' (as evident from the published  figures  of

casualties  and recovery of war-like material enough  to  provoke  

the  resort to force in self-defense), it is not deemed a  viable

option.  Given the partially indigeneous roots of the problem; of

the  economic imperative against `war'; and, fear  of  consequent

internationalisation,  India is constrained to pursue  LIC  there

to its logical conclusion.
 

 

LIC and Humanitarian Law (Jus-in- bello)
 

 

In LIC, the environment is such that human rights of the inhabit­

ants  are  imposed upon, under the  utilitarian  principle.   The

state  grants extra-ordinary power to the security forces,  given

the extra-ordinary threats to stability obtaining in such sce‑
 

narios.   In  India,  these have at various  times  included  the

region-specific Armed Forces  Special Powers Acts, the  Emergency

powers, TADA,the MISA,  the Disturbed Areas Acts etc . The premi­

um on good faith in abiding by the in-house `Do's and Dont's' and

the  principles of impartiality, minimum force, good  faith,  and

no-reprisals  gets strained, given organisational, personal,  and

philosophical  inadequacies  in approach and action.   While  the

strategic  and  political  need for protection  of  human  rights

exists,  it  is tempered by the more fundamental  requirement  of

restoring  state  authority, legitimacy  and  penetration.   (The

requirement  spelt out by the CM to the  Police  Commissioner  of

Mumbai  in the film `Satya' is interesting example).  Given  this

scenario  protection  of the hard-core  non-derogable  rights  of

right  to life, prohibition of torture, slavery and  retro-active

punishment, becomes both necessary and difficult.
 

 

How does international humanitarian law impinge on this seemingly

domestic issue? The development of both Hague Law (limitations on

warfare) and Geneva Law (protection of the defenseless) has  been

in  an inter-state context.  However, the evolution of Hague  Law

that deals with protection of cultural property (1954),  biologi­

cal weapons (1972), chemical weapons (1993), excessively  injuri­

ous  conventional  weapons  (1981),  environmental   modification

techniques  (1977),  mines  (1997), the establishment  of  a  War

Crimes court (1998) etc, also bears on internal armed conflict.
 

 

The   Geneva  Conventions (1949) Common  Article   3,  stipulates

protection  in  terms  of violence to life  and  person,  hostage

taking,  outrages on personal dignity, extra-judicial  sentences,

and medical care for those not taking active part in  hostilities

and protection of members armed
 

forces placed hors-de-combat.  Its applicability is in non-inter­

national armed conflict, and covers all parties to the  conflict. 

The International Committee of the Red Cross is empowered  (Arti­

cle  3, Para 2) to offer its services to the parties to the  con­

flict  to ensure protection of civilian and military  victims  of

the conflict, without prejudice to the status or position of  any

party.  Therein is its applicability to LIC.
 

 

Common  Article 3 has been supplemented by Additional Protocol II

(1977) in order to adapt the laws of war to conditions of contem­

porary hostilities.  The Protocol has applicability only in  non-

international  armed  conflict between a state  party  and  armed

groups  that  are under responsible command and  exercise  enough

control  over territory to enable them to carry out sustained and

concerted military operations, while being able to implement  the

provisions  of the Protocol.  Clearly, this is a highly  restric­

tive  scope,  yet,  despite the  guarantee  of  non-intervention,

states, including India, are not party to it, thereby denying  it

customary  law  status.  The innovative provision  of  illegality

terrorist acts (Article 123)  thus gets neglected.
 

 

India in not signing the Additional Protocols wishes to  preserve

its  internal sovereignity; stands by its domestic criminal  jus­

tice system as adequate to cope with incidental transgression  of

human rights that occur; considers its constitution, legislation,

and organisational (eg. NHRC) measures as appropriate to  protect

human  rights  and humanitarian issues even in such adverse  cir­

cumstances.  In short, similar to its stand on the non-prolifera­

tion  treaty (NPT), it does not have to sign the treaty to  abide

by  its  tenets.  It is also wary of the  instrumental  political

leverage  of  the human rights issue in its  relations  with  the

West,  and  does not wish to give these states another  point  of  

accountability   to  pressurise  it  over  its   vuluerabilities. 

Another  facet  of this is the  felt need to  forward  the  Third

World position in a global agenda apparently appropriated by  the

West, that includes issues of human rights.  Lastly,   unacknowl­

edged,   is  its sensitivity to its own indequacies in  terms  of

soft-ware  and  hard-ware  as a developing state  encompassing  a

turbulent society.
 

[1]Conclusion[1]
 

This  introductory  essay to international law has  used  LIC  to

situate international human rights and humanitarian law for three

reasons.   The first is that LIC is a familiar phenomenon to  us,

and, secondly, it is at the confluence of human rights and human­

itarian law.  The  latter owes to human rights being imposed upon

by the exigencies of armed conflict, and the necessity to protect

the  victims  of the same through implementing  humanitarian  law

therein.  Lastly, is that in the army there is a  legalistic  ap­

proach to understanding human rights issues, which detracts  from

taking  a holistic view of the issue. This article was an  effort

at stimulating self-study towards the latter.
 

 

There has been, over the past decade, a concerted trend of expan­

sion  in international awareness of humanitarian law,  which  has

impacted on India in terms of pressure - given the coincidence of

its economic liberalisation with the onset of a critical internal

security  situation in its geographical periphery.  Consequently,

and  as  a  measure of the maturity of  its  internal  regulatory

mechanisms, there has been societal interest in the human  rights

issues  in such areas. While these have been responded to  appro­

priately  by  both the government and the military,  there  is  a

scope  of improvement in terms of living up to the  standards  of
 

 

 

moral authority of our civilisation, of the expectations of us as

a nation, and the respect that our military commands.
 

Select Reading
 

 

1 Walzer,  M, `Just and Unjust Wars'; New  Yark,  1977.
 

2 Best, G, `Humanity in Warfare ; London, 1980.
 

3 Introduction  to International Humanitarian Law,  ICRC,  New

Delhi, 1997.
 

4 Kalshoven, F, `Constraints on Waging of War'; ICRC, 1992.
 

 

 From the archive, 9 Jan 1999

LIC : INTERVENTION AS PARADIGM
 

 

Intervention, in both its avatars - intra and extra-regional -  is

characteristic of inter-state relations in Southern Asia. Whereas,

in  colonial times it was along the periphery of  the  'br-indian'

empire;  in  the post-colonial era the constituent states  of  the

region also exhibit the propensity - making the phenomenon endemic

in South Asia.
 

 

This   owes  to two factors.  The first is  the  preponderance  of

India on the sub-continent in terms of giantism and power.   Thus,

India  is, at best, `big brother', and, at worst,  an  existential

threat.   Therefore, the two reactions, in terms of  intervention,

of  certain  states,  by,  either,  invitation  to  extra-regional

powers  to fulfil the `need' to `balance India'    (extra-regional

intervention); or, by  sustaining irridentism and secessionism  in

India, in order  to whittle it down to size (intra-regional).   In

turn,  India,  to live up to its self-image of a  regional  power,

plays  a like game - that  of exploiting its  neighbour's  vulner­

abilities.
 

 

The  second factor, also a characteristic of the subcontinent,  is

the  very  existence  of these  vulnerabilities,  that  constitute

threats  to  juridical and territorial sovereignity.   This  stems

from the multi-faceted, and overlapping, nature of  socio-economic

terrain in terms of diverse ethnicity, religions, castes,  classes

and linguistic communities in societies - themselves  artificially

circumscribed by national boundaries. 
 

 

The  consequent  nation-state building process, often  results  in

political  alienation, or  a perception of  relative  deprivation,

which in turn occasions militancy in the  expression of  disaffec­

tion,  or  insurgency - the latter condition  subsumed  eventually

under the category of LIC. 
 

 

These  `vulnerabilities'  are  exploited by  an  interested,  mal-

intentioned,  neighbour,  operating in the Realist  paradigm    in

which  relations are viewed as a zero-sum game.  Though  strategic

advantage  is taken of a neighbour's predicament,  the  spill-over

effect  of  conflict  may also  occasion  intervention.  Owing  to

the  overlapping  nature  of spread  of  ethno-cultural  entities,

states   acquire  an  interest  in  the  `internal   affairs'   of

neighbours. 
 

 

Thus,  can  be  witnessed the phenomenon  of  intervention,  which

predictably  expands  in the Clausewitzian  logic  of  escalation. 

Where  the strategic interest of the intervening  state  supplants

the  original stake in the neighbour's  back-yard, the  condition,

in regional parlance, is termed `proxy war'.
 

 

Given   that  in  the  Charter  era,  intervention  in  terms   of

interferance in internal affairs is illegal (Article  2:7  of  the

UN  Charter), it is, either, covert or quasi-covert, for  ease  of 

`plausible  deniability'.   Thus,  fueling  an  insurgency  on   a

neighbour's   territory  may be a covert act, but  engaging  in  a

`proxy  war'  may involve overt moral and political  support,  and

quasi-covert  physical  and material support  for  the  surrogate. 

(The  third  manner of intervention may be overt,  as  the  Indian

inter‑vention in Bangladesh in Nov-Dec 1971 and in Srilanka in June

1987. Discussion of this  manner is, however, beyond the scope  of

this essay.)
 

 

To   complete   this  theoretical  background,   a   typology   of

intervention,  leading up to LIC,  may be said to include :  overt

military; state-sponsored; and state-supported; and,  trans-border

transnational  forces-insurgent  nexus.   Where the state  is  not

directly  implicated,   such linkage may  be  with  state-condoned

governmental  agencies pursuing their own agenda;  state-tolerated

non-governmental  organisations  pursuing autonomous ends  ;  and,

with   fronts   of   trans-national   forces   as   fundamentalist

organisations,  drug cartels, and crime syndicates.

An  illustrative example, at this stage, would help  validate  the

preceding theory.  A look at Kashmir is, therefore,  in order, for

to  do  so  would also help dispel the mythology  that  has  built

around  this  emotive  symbol of national  resolve,  identity  and

effort - on both sides of the Radcliffe   line.       
 

 

Proxy War in Kashmir : An Illustration
 

 

Pakistan's case is that the territory is of disputed status,  and,

therefore,  it  has  a locus standi, given, in  its  version,  the

military  suppression  of  a  self-determination  movement  there. 

There,  having been no movement in terms of bilateral  negotiation 

towards  a  'final settlement',  as posited by the  Simla  Accord,

and,  given  that  it deems its action as not  being  against  the

sovereignity or territorial integrity of India  (in its version of

the status of Kashmir), it feels it can provide  moral,  political

and diplomatic aid to the militants in Kashmir.  It does not admit

to  material or organisational support, since it has  'privatised' 

such  aid,  and provides it under the auspices  of  an  ostensibly 

renegade  intelligence  agency, the  ISI -   thereby,  seeking  to

decrease its culpability  as a state. 
 

 

Owing  to   Pakistan  being a 'soft state',  with  all  manner  of

nonstate  autonomous  actors disturbing its polity,  it  has  only

tangenially  been made accountable for intervention  in  violition 

of  international  law in international public  opinion.   Another

reason  for  such  an attitude is that  the  Pakistani  state,  as

represented  by  the civil government, is a `known  devil,'  being

relatively  moderate in comparison to the forces that threaten  to

take  over. To destabilise such a government, which may itself  be

a  convenient front for  forces that  may indeed include the  Army

(which  is  said  to control  the ISI), would  be  to  enable  the

triumph of these ex‑tremist forces - thereby further  destablishing

the region.
 

 

The  relationship  of the Pakistan army  with  the  fundamentalist

conduit of control of the Kashmir intervention is instrumental, in

that,  the  situation  in  Kashmir  helps  keep  India  tied  down

strategically, both, politically and militarily-hereby  redressing

the  power  assymetry. In so far as the situation  in  Kashmir  is

within Indian capability of containment, escalation is ruled  out. 

Thus,  can be discerned the  strategic aim as being an outcome  of

the Realist philosophy which informs Pakistani Kashmir policy.  By

this  yardstick,  Pakistan is, indeed, engaged in a  'proxy  war',

having  hijacked  an  insurgency of indigenous origin to  its  own

politico-military ends.
 

 

The 'indigenous' roots of the insurgency spanning the period 1989-

92 are well documented.  In so far as Pakistani complicity in this

was concerned, it was, at best, more than the normal  intelligence

game  on between the two countries, given the circumstances of the

Punjab and Afghan situations then.  The so-called OP TOPAC, or the

K2 plan, in thier expansive versions, are  not quite history.  Our

error  of misrepresenting, or misperceiving,  the  people-centered

movement   of   the  early  1990's  occasioned    the   rise    of 

`insurgency' per-se. 
 

 

In this regard four landmarks can be discerned : the Rubaiah case,

the January 1990 crackdown, the prolonged curfews and the massacre

at the Mirwaiz's burial procession. Given Pakistan's calculus, its

abatement of the resulting insurgency was predictable. It was only

by  1992-93 that the Kashmir angst declined, and Pakistani  vested

interests were ascendent.  (This  is the crucial point made by  Lt

Gen  (Retd) Nayar in a recent article in the USI Journal).  It  is

then that intervention amounting to 'proxy war ' emerged.
 

 

The  lesson of this in terms of internal security  management  for

India  is  to sensitise the SF and  politico-military  policy  and

decision  making apparatus to socio-political issues.  This  would

help us distinguish between a popular militancy and an insurgency,

and  between  an  insurgency  and proxy-war,  in  order  that  the  

obtaining  situation be addressed appropriately in a  pre-emptive,

re‑storative   and  foundationary  mode.   It   is   for   military

professionals  to  realise the doctrinal implications of  such  an

analysis of the status of an internal security situation, in order

that    the   military   template   is   situation-specific    and

casesensitive.
 

 

[1]Conclusions[1]
 

 

Having  disscussed  the   'why?' and  'how?',  and  witnessed  its

operation through a case-study, it is necessary, if this paper  is

to  go beyond theory  to being policy relevant, to consider  'what

then?'.   Recapitulating  the  identified  'causes'  -   perennial

vulnerabilities,  and  exploitation of the same  from  without  in

accordance  with  the tenets of the realist philosophy;  and,  the

'effects' corresponding to the level of exploitation, in terms  of

LIC and proxy war - it is clear that while military containment is

apposite for the latter, the former requires a political approach. 
 

 

A  holistic  - external and internal - approach would  require  to

comprise  of two strands : internally, in the provision of  socio-

political space for autonomy of ethno-cultural collectivities, in,

both,  precept  and  practise;  and, on  the  external  plane,  to

reconfigure  the perception-action model from a realist  framework

to a liberal-rationalist one.  With this as the direction a polity

informed  by  robust theory ought to take, it may be  of  interest

here to do a brief reality-check. 
 

 

On  the  external  plane, the SAARC  exists  for  a  functionalist

impetus  to  re-ordering  relations.   Internally,  the  direction

democracy  is  taking  in  all these states  is  indicative  of  a

healthier  centre-periphery relationship.  The former  will  shift

the  accent  from a realist discourse based  inter-course   to  an

integrative, inter-dependence oriented structural realist model  -

a philosophy anchored in the broader definition of security and to

its  implications for the long term.  The latter is  in  political

engineering already underway, given the economic imperative.
 

 

Whereas  the  expriment to this end is not without  impediment  in

terms  of  revivalism,  majoritarianism,  and  fundamentalism,   a

realistic (as against Realist) regional agenda fromulation demands

a pro-active, economy and ecology sensitive, collective  approach. 

Inherant to such an approach  is the obsolesence  of intervention- 

the  paradigm  of  LIC - as an instrument  in  the  repertoire  of

interstate  relations  on  this  sub-continental   'civilisational

area'.
 

 

 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.
 

  

 From the archive, 29 Apr 2005

BOOK REVIEW

          C Raja Mohan, ‘Crossing the Rubicon; The Shaping of India’s New Foreign Policy’ ; New Delhi, Penguin, 2003, pp 321, Rs 450/-.

 

          C Raja Mohan in dedicating his book to the doyen of Indian strategists, Mr K Subrahmanyam, thanks him for the teaching on ‘standing up against conventional wisdom’. This homage on the passing of the baton epitomises the changed strategic perception shaping India’s ‘new’ foreign policy.

 

          It is widely believed that India’s ‘crossing of the Rubicon‘ is best illustrated by Pokhran II. However it could equally plausibly be dated to the onset of Manmohanomics of the early 90s. Since liberalisation was in turn anchored in  incremental changes initiated under Indira and Rajiv Gandhi, there appears to be a continuity in India’s engagement with the world that has over the years brought about the shift from ‘the power of argument’ to ‘the argument of power’. While consensus on this change has always appeared a step behind, there is no turning back from what the author describes as the ‘diplomacy of the Second Republic’.

 

There is no better guide to conduct readers through these interesting times than C Raja Mohan, a nuclear physicist armed with a doctoral degree in international relations from the prestigious School of International Studies, JNU. As the strategic affairs editor of ‘Hindu’, Raja Mohan has had a ring side view of South Block over the past decade and more to the extent of being an ‘insider’. He recounts an instance of usage made of strategists cum journalists such as him by the US in communicating sensitive opinions to India’s otherwise prickly strategic establishment. Strobe Talbott, former Clinton aide famous for his extended dialogue with Mr. Jaswant Singh post Pokharan II, in his recent memoir corroborates this. While the noted commentator AG Noorani finds such association compromising to journalistic ethics, it can be excused as Raja Mohan’s manner of ‘staying ahead of the curve’ – a legacy he attributes to K Subrahmanyam, the man noted for refusing Padma awards for his life time contribution to Indian strategic culture.

          Raja Mohan represents the new breed of strategists that came to fore over the 90s as India widened its connectivity with the world as an increasingly self-regarding and self-assured power. He recounts India’s moves and the challenges it has overcome since the early 90s from ending up on the wrong side at the end of the Cold War. To Raja Mohan, India has reemerged over the turn of the century through engaging the US, reviving ties with Russia, emulating China and containing Pakistan. India has since not only rediscovered Lord Curzon’s vision of an expanded role in its region but is also attempting a reform of the subcontinent through the Gujral doctrine and the continuing of Mr. Vajpayee’s peace initiatives with Pakistan. To each of these areas, Raja Mohan devotes a chapter with an analytical vigour no doubt influenced by his earlier stint with the IDSA and a lucidity of style becoming of a former Washington correspondent of a leading daily noted for its critical coverage of global events, ‘Hindu’. He alights on India’s strength being its commitment to the Enlightenment project, while forewarning that incipient communal devisiveness has the potential to derail India’s claiming of the twenty first as it’s own century.

 

          Raja Mohan’s assessment of India’s inter related relationships with the USA, China and Pakistan is based on a ‘national interest first’ model. He forwards the view that engaging the USA should be on Indian terms instead of becoming part of the super power’s game of containing the emerging challenger China. With respect to China he advocates a pragmatic policy entailing  mutually beneficial economic ties and a settlement of the boundary question. On Pakistan, he pushes for a containment policy to engineer an internal transformation in Pakistan. However his major thrust is for ‘zones of economic cooperation’ among ‘regions that were once part of same cultural and political space’.  

 

          The book is lucidly written primer for both the uninitiated and the enthusiast. It is well produced and includes photos of milestones along India’s journey to  its aim of being a Great Power in a multipolar world. Raja Mohan deals with issues in their context, content and possible outcomes, thereby making it an excellent text for the uniformed readership seeking an understanding of their profession as foreign policy tool.

 

          Before ending, it bears mentioning that the book is a product of its era – that of India Shining. The underside of India – its poverty, its social revolution, its grassroots governance – barely find mention as foreign policy drivers. That this India cannot be ignored by its polity has been proven. Shaping a foreign policy autonomously of this Indian reality is likely to similarly lack substance in the tradition of India’s larger than life image in the early period of Nehru’s era. The danger is in the potential for an Icarus like outcome.  It is best therefore for India to nurse its determinants of power particularly cohesion and an equitable economy. A ‘feel good’ foreign policy may prove as delusional as the phrase itself.  India’s arrival is inevitable, making haste would only delay it. In all fairness, Raja Mohan acknowledges in conclusion that India’s place in the world would be dependent on the out come of the ongoing ‘struggle for the soul of India’.