Do Soldiers Have Human Right? Far-Reaching Implications



This piece is inspired by the query of a respected activist who asked this writer, “While protest statements against heinous crimes are necessary, should there not also be statements when armed forces or security forces personnel get killed by mobs or militants?” Hence, this article attempts to present a view which will do justice to both sides of the conflict. It also attempts to connect this with a political view of the repercussions of continuing violence especially in the Kashmir context.

Our army’s view of human rights

Human rights (HR) is a much-focussed-on concept ever since the National Human Rights Commission (NHRC) was constituted on 12 October 1993. It is interesting that a HR Cell was created in Army HQ in March 1993 at the instance of the then army chief General P.C.Joshi. This showed that HR violations committed by soldiers during the course of operations in internal security (IS) duties was a matter of concern to the army.

As one who, as ADG DV, oversaw the working of the army’s HR Cell for two years starting 1994, this writer can vouch for several army personnel being punished for HR violations under military law with sentences ranging from dismissal to civil jail terms, during his watch. Further, their commanding officers were punished with administrative action for failure or inadequacy of command and control. (Holding a superior commander responsible for the crimes, misdeeds or failings of his subordinates does not happen except in the armed forces).

Following the establishment of the HR Cell in 1993, the army has received over 1,500 allegations of HR violations against its soldiers. Examination of each of these allegations is regular, routine and meticulous at various levels of command, and those found false or baseless, are intimated to NHRC by the Army’s HR Cell.

Recent data shows that 129 army personnel, including 36 officers, were found guilty of HR violations in Jammu and Kashmir and Northeast in the last two decades. In J&K alone, in nine cases of HR violations, 59 army personnel including some officers were punished, and in our Northeast, 70 army personnel were punished. Further, the victims of HR violations or their next-of-kin were awarded compensation in 34 cases and 15 cases in the Northeast and J&K, respectively.

The foregoing is to demonstrate how our army views HR, is sensitive to HR issues, acts on reports of HR violations, and does not deny HR violations by soldiers. This cannot happen at the highest level (Army HQ) unless there are at least similar levels of HR awareness at subordinate headquarters down the chain of command.

Notwithstanding, it must be understood that no system is perfect, or operates perfectly, and hence there will always be cases which do not result in conviction because of various circumstances on-the-ground or at the field headquarters. At the same time, it must also be understood that soldiers operating in the internal security (IS) role are open to accusations of HR violations, serious as well as frivolous, genuine as well as motivated.

The soldier deployed on internal security (IS) duties

A soldier (here meaning all ranks in the defence forces but more specifically the army), when deployed in the IS role, is obliged to carry out assigned tasks which entail risk to his life and limb from sudden and unexpected attack by militants, who cannot be identified. On the other hand, in the IS environment, the soldier wearing uniform, is readily identified by militants or anybody else, and becomes an easy target, while the militants he seeks, hide and strike at a place, time and circumstance of their choosing.

At times, the soldier may have to confront an aggressive mob which may pelt stones or harbour armed militants hiding among them. Usually a soldier is not alone since he operates in small or large groups, but his group can be outnumbered by the mob, and he may be ordered to open fire in self-defence. Whether the mob consists of only Indian citizens or includes Pakistani nationals who have infiltrated themselves into India, when threatened, the soldier is constrained to open fire in self-defence or to disperse the mob. As always in critical life-or-death situations, it is very difficult to make after-the-event judgment as to whether opening fire was unjustified or premature.

When the soldier operates in a group (say as part of a patrol, or a cordon-and-search party) he makes effort to avoid harming unarmed civilians. He calls out warning to militants known to be hiding in a particular place, to come out and surrender. If the militants do not comply (they usually do not), then he is constrained to move into the hideout to flush out the militants, shooting to kill, and in so doing, usually soldiers suffer casualties in the operation for obvious reasons. No soldier shoots for the pleasure of killing.

Of course, during the course of operations, there have been cases of soldiers molesting or raping women, or killing “for effect”, or in anger/revenge for comrades killed by militants, etc., none of which can be trivialized. But these offenders are dealt with by military law, which is both fast and severe. Of course, there would be cases in which soldiers get away with such crimes for a variety of reasons, but these are few. Of course there have been some cover-up attempts at one level or another, but again, when detected these are dealt with under military law, and some under criminal law. It is not generally understood that punishing soldiers who commit crimes is a necessity for maintaining the morale and fighting efficiency of his unit, and it is in the interest of the coherence of the fighting team that a commander initiates or takes disciplinary action against defaulters.

The soldier as an individual

The soldier is denied the fundamental rights of speech and association when he enrols into the military, and military law obliges him to obey orders, whether in combat against an enemy of the State or in IS duties to restore law and order at the request of the State government, even if it means certain death. He is required to travel by land, sea or air to any place and carry out all tasks and assignments, as ordered. He cannot refuse or disobey lawful commands for any reason. In the IS role however, he needs legal backing to arrest or shoot at a civilian and this is provided by the AFSPA, although he does not need this when he engages, say, Pakistani soldiers in combat.

Every soldier is duty bound to carry out his assigned tasks, and he cannot refuse on the grounds that he may be forced to shoot, and some civilian may be injured or killed, and he may be charged with the killing. In the IS role, his duties necessarily involve violating some human right (HR) or another. Even if he searches a civilian’s home for a hiding militant or for stored weapons, and in doing so, shouts at a woman, or roughly pushes aside the householder who resists, he violates HR.

It is well to remember that the soldier who is deployed in such roles, needs to handle the severe tension of expecting the unexpected militant attack which can disable or kill him, almost every day for weeks, even months on end. He cannot refuse to carry out orders, for he will be dealt with severely for insubordination. He cannot get entitled leave easily. If he is found malingering to avoid such duties, he is disciplined under military law. The extremely severe psychological burden which he carries, and the difficulty and delicateness of the role and the situation of the soldier, is not understood by the politician-bureaucrat or the public in general, and nor by those who imagine that a soldier in IS operations is a killer let loose on the civilian population, and provided impunity by the AFSPA. The soldier is but an instrument of government, called out when the police and the administration have failed. He is essentially government’s instrument of last resort.

Soldiers, like every other citizen, have families to think of in addition to their own personal safety. Military command and control includes commanders at every level having to keep the safety and welfare of soldiers in mind even while ordering the junior commander and his troops to carry out assignments which puts them at serious risk of life or limb. Thus, noting that commanders are proceeded against for HR violations committed by their soldiers, command and control in high-risk situations is an uncommonly difficult daily task, which is rarely understood or appreciated outside of the military.

It is not only about soldiers

It also needs to be stated that in the “disturbed areas” declared by the State government, state police personnel also operate in extremely difficult circumstances, because their families are open to harrassment, threat or attack by militants or hostile members of the public, and often live in fear for themselves and for their bread-winner. The policeman is further stressed because he remains in the area where he operates, and needs to watch his back and always bears the nagging fear of what he may see when he gets home in the evening. Here again, there is little understanding of the harsh realities of such a life among the State administrative hierarchy.

Soldiers’ HR

In the conflict situations obtaining in IS duties and as described above, soldiers and police personnel may willy-nilly violate HR, but equally it cannot be denied that their own HR are violated by militants, hostile civilians or stone-throwing boys. The real-time situation is one of violation of HR both ways, with only the type and seriousness of violation being different in different circumstances.

Soldiers and policemen on-the-ground are in a socio-political situation which is not of their making. This socio-political situation has continued uninterruptedly for periods like years, even decades, in our nation’s post-Independence history. The general public is also in the same socio-political situation created by successive governments, and over decades their dissent and resistance has turned violent and militant. Hence, it is necessary to understand how such socio-political situations “happened” or were created.

Governance and HR

Governance in a democracy is undoubtedly an extremely difficult task. Politicians (the elected Executive) working together with bureaucrats, are responsible to provide the essentials of life to all members of society. In societies in which resources are grossly insufficient to meet the needs of all, there is inevitable conflict of interests among and between individuals and groups. Good governance involves resolving these amicably in a general atmosphere of justice and fair play. This is sometimes called “honest politics”, a phrase which a cynic might say is a contradiction in terms.

Vested interests inevitably enter public life, and when politicians or bureaucrats take partisan or unfair decisions, problems arise from dissatisfaction and disappointment, leading to dissent, anger and protest. If protest is handled by insensitive or excessive use of police force, the sense of injustice among the public grows and the next time around, calls for increased force. Violence escalates as protests mount, public life is disrupted by protestors, and the force levels required to restore order need to be increased.

It all begins with governments (certainly not deliberately or motivatedly) violating the HR of members of the public in some form or other, beginning with economic violence. Without honest politics, this metamorphoses into physical violence between the enforcers of government policy (the police) and protesting members of the public. Briefly, the primary responsibility for violation of HR rests with those in power who indulge in mis-governance, mal-governance or non-governance under the influence of vested interests, even though protestors are sometimes deliberately misguided or instigated by opposing vested interests. It is an uncomfortable fact that such situations can and do become “chronic”.

In the Kashmir case, the hidden and not-so-hidden hand of Pakistan in initiating and/or supporting protests is established to the satisfaction of every Indian, even though Pakistan routinely denies it. But it is equally true that Pakistan largely takes advantage of situations of public anger and protest which have their source as described above. The seeds of Pakistan’s interference in Kashmir could not have sprouted unless the soil of socio-political dissatisfaction and disorder was fertile. Over the years, Pakistan has been watering the saplings of discontent, which have grown into a forest of protestors, vocal militants, stone-throwing militants armed militants and Pakistani insurgents, who now use weapons against government forces and/or civilians in an atmosphere of escalating violence.

There is little doubt that successive combinations of State and Central governments are to blame for creating the fertile soil of socio-political disorder due to a combination of political chicanery with mis-governance, mal-governance and non-governance, resulting in the present situation of violation of HR of civilians on the one hand, and of soldiers and police on the other.

Today’s situation is not merely one of breach of law and order, but of socio-political disturbance verging on chaos, and failure of governance. Politicians and bureaucrats mostly live and work safely in protected areas or under heavy protective shields when they move, protected and shielded by the very same forces which they deploy to keep away protesting public and militants alike. The fight is in the streets and in the fields and forests, always between soldiers on one side and armed militants on the other, with a population which is caught between the two, not trusted by either, and with HR of all involved being violated by all involved.

The big question remaining is whether the present violent socio-political situation bordering on chaos will be or can be remedied by government raising the levels of violence, or whether peace can be restored by government initiating socio-political dialogue. Government has to take the initiative because the spiral of socio-political degradation began with deficiency of governance, never mind which government or which set of political-bureaucratic machinery.

International rumblings

Recently, USA used the term “Indian-Administered Jammu and Kashmir” in the context of designating Hizbul Mujahideen commander Syed Salahuddin as a terrorist. [“MEA accepts U.S use of ‘administered Kashmir’”; The Hindu, Bengaluru; 30 June 2017; page 12]. India has always held that Jammu & Kashmir was an inalienable part of India and always termed the western part of J&K which is under Pakistan control as Pakistan-occupied Kashmir (POK). Hence, when the MEA accepted the use of this term by USA (regardless of the context), it is a sharp shift in India’s position on J&K, especially after Mr.Rajiv Chandar, India’s Ambassador and Permanent Representative to the United Nations in Geneva, told the United Nations High Commissionner for Human Rights earlier in June, that the term was unacceptable.

This shift or weakening of India’s stand on J&K could well lead to third-party (USA) involvement in what India has always maintained was a bilateral issue between India and Pakistan, while Pakistan has always been striving to internationalize the issue. India accepting use of the term “Indian-Administered Jammu and Kashmir”, whatever the context, could enable Pakistan to internationalize the Kashmir dispute. It could also be the penultimate step for USA gaining a political-military foothold on the Indian subcontinent, especially after the signing of LEMOA and perhaps also CISMOA with India, even while continuing to supply arms to Pakistan.

Bottom line

As argued above, the current situation of violence in Kashmir is unlikely to be solved by government forces raising the levels of violence. Rather, if violence is escalated, the two-way violation of HR between security forces and militants will also escalate, and more soldiers and civilians will die, while politicians and bureaucrats dither in safety or make brave statements.

This is a time for statesmanship, not for politics, and for all parties to the problem to think in terms of peace, rather than escalating violence. Only this can prevent Pakistan gaining a political leg-up, and USA gaining a political-military foothold on Indian earth, and forever soiling the sovereignty of our Republic, besides being an insult to our Army.

Major General S.G. Vombatkere, VSM, retired as Additional DG Discipline & Vigilance in Army HQ AG’s Branch. With over 550 published papers in national and international journals and seminars, his area of interest is strategic and development-related issues. E-mail: [email protected]


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