The Armed Forces (Special Powers) Act, 1958: more than mere human rights issue
- Part 2 -

Yumnam Premananda *

Campaign to support Irom Sharmila 11 year long Hunger-strike at New Delhi :: Nov 5 2011

The AFSPA – imposition of de facto emergency and consequently martial law vis-à-vis a modern form of concentration camps:

The AFSPA, is more than an emergency provision. It violates the right to life and further suspends the Constitutional right to file suit. Further, emergency rule can only be declared for a specified period of time, and the President's proclamation of emergency must be review by Parliament. The AFSPA is in place for an indefinite period of time and there is no legislative review. In fact, the declaration that an area is disturbed under the AFSPA is essentially amounts to declaring a state of Emergency but bypasses the Constitutional safeguards.

The Act is nothing but imposition of the Nazi or Nuremberg type legislation to exterminate ethically minority race of NE peoples and a modern form concentration camp theory in post independent India.

It is a fact that we evidence from parliamentary debate during the passing of this draconian Act. L. Achou Singh, MP from Manipur argued against the Act as "This is a black law ....... How can we imagine that these military officers should be allowed to shoot to kill and without warrant arrest and search? This is a lawless law." In the same manner, Mr. Warrior (Trichur), MP submitted that "The whole of Assam and Manipur is going to come under Martial Law though the Martial Law and an emergency are not declared."

The concentration camp theory was highlighted by Mr. Mahany, MP in a strong worded manner in the parliament as: "What I am trying to submit is that this is a martial law. ….. But, we do not want a free India with barbed wires and Concentration Camps, where the Havildars can shoot at sight any man." He continued that "It has to be conceded that there are enough materials to show that there is an emergency. But the Emergency provisions of the Constitution have been invoked without the President declaring an Emergency. .. S. 6 of the Act immediately takes away, abrogates, pinches, and frustrates the right to constitutional remedy which has been given in Article 32(1) of the Constitution."

Dr. Krishnaswami, MP also strongly criticized the Act. "This is a state of affairs that can be brought about only by a Proclamation of Emergency promulgated under Article 352 of the Constitution. The Bill seeks to circumvent these provisions and attempts to usurp the powers of the state not warranted by the Constitution. .....…. I suggest, here, the unconstitutionality is so patent that we are justified in requesting the Chair to rule that the measure is ultra vires."

UN Human Rights Committee strongly endorsed the imposition of an Undeclared Emergency Regime because of AFSPA.

"The Committee regrets that some parts of India have remained subject to declaration as disturbed areas over many years- for example, AFSPA has been applied throughout Manipur since 1980 and in some areas of that state for much longer- and that in those areas, the State party is in effect using emergency powers without resorting to Article 4, paragraph 3, of the Covenant. The Committee recommends that the application of those emergency powers be closely monitored so as to ensure its strict compliance with the provisions of the Covenant."

The AFSPA in effect allows the state to override rights in the 'disturbed areas' in a much more intrusive way than would be the case under a state of emergency, since the right to life is in effect suspended, and this is done without the safeguards applicable to states of emergency. A law such as AFSPA has no role to play in a democracy. (Heyns, 2012, para. 31).

Presently, Manipur is one of the highly militarized zones in the world. There are about 350 military installations having around 50 to 60 thousands armed forces of India and roughly one troop for every 15 citizens, a proportion possibly higher than that used in many recognized active war zones. (UPR, Manipur: 2007) This armed forces of India belonging to a distinctly different ethnic group with distinctive culture, religion and language from the local indigenous population and they considered that the entire population of Manipur is hostile to them. This is the fundamentally racist position characterizing the distinctive context of the on-going armed conflict in Manipur. (Manipur: CSCHR & UN, 2012, para. 31 & Frank, 2011)

Rape – a tactic of war instrumented through AFSPA in NE:

Rape and other forms of sexual violence have been used as a tactic of terror in many wars throughout history. Rape in armed conflict situations in NE particularly in Manipur (Premananda, 2014) is not merely a matter of chance, of women victims being in the wrong place at the wrong time. Nor is it a question of sex. It is rather a question of power and control 'to rape a woman is to humiliate her community'. Chinkin (1999, 328) has opinion that complex, combined emotions of hatred, superiority, vengeance for real or imagined past wrongs and national pride are engendered and deliberated manipulated in armed conflict. They are given expression through rape of the other side's women.

License to rape has been granted by AFSPA with impunity. Rape has also been directed as an instrument or weapon of war in NE particularly in Manipur 'intended to humiliate, shame, degrade and terrify the entire ethnic group'.

In this context, it is pertinent to mentioned that the trial of Jean-Paul Akayesu established precedent that rape is a crime of genocide. In the context of Rwanda the Tribunal finds that in most cases, the rapes of Tutsi women in Taba, were accompanied with the intent to kill those women and in this respect, it appears clearly to the Tribunal that the acts of rape and sexual violence, as other acts of serious bodily and mentally harm committed against the Tutsi, reflected the determination to make Tutsi women suffer and to mutilate them even before killing them, the intent being to destroy the Tutsi group while inflicting acute suffering on its members in the process. Analogically, mercilessly gang rape, brutally torture and murder of Thangjam Manorama by Assam Rifles in Manipur on 11 July 2004 and raping of Elangbam Ahanjaobi by two havildars of the 2nd Mahar Regiment identified as Apparao Mariba Waghmare and Vithal Domaji Kalane in the front of her physically handicapped son at her home during an operation in the Takyel area in 1996 and Miss Rose of Urkhrul in 1974 and many more in Manipur are an act of genocide and used rape as an instrument of war in NE.

The intent to employ rape as a larger campaign as a method of warfare in NE has also been evidenced from the fact that the Justice Verma Committee recommendation in the aftermath of Delhi gang rape case for amendment of AFSPA was out rightly rejected by GOI. The Committee very strongly observed that "….. we notice that impunity for systematic … sexual violence …. legitimized by AFSPA …" and accordingly recommended to amend Sec. 6 the AFSPA (which granted blanket immunity and impunity to commit rape and other sexual violence) by inserting a proviso to done away the 'previous sanction of the Central Government' provision (so as also recommended by UN CEDAW, in 2000 & 2007) in case of rape and gang rape. But the whole exercise conducted by Committee was in futile and GOI still stick to its hidden agenda, which is one of the prohibited method of warfare under International Humanitarian Law.

Conclusion:

The Genocide Convention clearly says Genocide, whether committed in time of peace or in time of war, is a crime under international law. Using rape as a tactic of war has long been prohibited by laws of war and it is prohibited method of warfare and consequently constitute a war crime, but it has been employing in NE instrumented by AFSPA.

It is an obligation on the part India to respect and observe International Law particularly International Humanitarian Law (IHL) in this junture of armed conflict situations of NE. The GOI must ensure that any future legislation complies fully with international human rights and humanitarian law treaties to which India is a state party, especially the ICCPR and the four Geneva Conventions.

It is rightly described by the Justice Reedy Committee that the AFSPA is too sketchy, too bald and quite inadequate in several particulars and accordingly recommended its repeal. It is true that Supreme Court has upheld its constitutional validity but that circumstance is not an endorsement of the desirability or advisability of the Act. ..... the Act for whatever reason has become a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness."

If the problem in NE is simply a 'law and order' or 'public order' problem as the GOI would like to define, then AFSPA have no place whatsoever; but if the situation as so grave as the military authorities would like to define as 'war-like' and retain the Act, GOI is obliged to formally declare a state of emergency following the procedure of the ICCPR. On the other hand, the insurgency situation in the northeast has worsened since the AFSPA has been applied in the 1950s. The insurgency groups have greatly increased. Their cadres, weapons, tactical capabilities have expanded and improved immediately. Apparently, the black law acted as surrogate mother of increasingly proliferating belligerency.

Last but not the least, GOI should sign and ratify the Rome Statute of International Criminal Court, 1998 so that those individuals who are responsible for war crimes, genocide and crimes against humanity in NE whether top-level, middle-level or low-level perpetrators may be prosecuted and punished and let justice be delivered by the International Criminal Court.

References:-

1. Ambos, Kai; What does 'intent to destroy' in genocide mean?, Volume 91 No. 876 Dec 2009, IRRC
2. Annual Report 2010-11; Ministry of Home Affairs, GOI
3. Chinkin, Christine; Rape and Sexual Abuse of Women in International Law, 5 EJIL (1994) 326-341
4. Concluding Observations UN CEDAW made in February 2000, A/55/38, 17 August 2000
5. Concluding Observations UN CERD made in May 2007, CERD/C/IND/19, 5 May 2007
6. Convention on the Prevention and Punishment of the Crime of Genocide, 12 January 1951 (available at http://www2.ohchr.org/english/law/genocide.htm, Retrieved on 2/14/2014)
7. Frank van Llerde (2011); "We, Widows of the Gun", The Hague
8. Heyns, Christof; UN Special Rapporteur on extrajudicial, summary or arbitrary executions, New Delhi, 30 March, Press Statement – Country Mission to India.
9. Human Rights Special Report Manipur – 2009, HRI Publication, Imphal
10. Human Rights Watch,(2008), "These fellows must be eliminated", New York
11. Justice Jeevan Reddy Committee Report: Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958, Government of India, Ministry of Home Affairs, 2005
12. Justice Verma Committee Report: Report of the Committee on Amendments to Criminal Law (submitted on January 23, 2013)
13. Lok Sabha Debates Second Series, Vol. XVIII, 1958 [11th August to 22nd August, 1958] Lok Sabha Secretariat, New Delhi
14. Memorandum on Extrajudicial, Arbitrary or Summary Executions; Submitted by Civil Society Coalition on Human Rights in Manipur and the UN, to Christof Heyns, Special Rapporteur on extrajudicial, summary or arbitrary executions, Mission to India, 19-30 March 2012
15. Naga People's Movement of Human Rights v. Union of India, AIR 1998 SC 431
16. Pillay, Navaethem; UNCHR "When will AFSPA be repealed?"; The People's Chronicle, November 8, 2012
17. Premananda, Y Singh; Armed Conflict situations and applicable International Humanitarian Law vis-à-vis fight against racist regimes in the exercise of the right of self-determination – a case Study of Manipur (available at http://e-pao.net/esSubPageExtractor.asp?src=education.Scientific_Papers.Armed_Conflict_and _applicable_International_Humanitarian_Law_Case_study_of_Manipur, retrieved on 2/14/2014)
18. Premananda, Y Singh; The Armed Forces (Special Powers) Act, 1958 – Legal and Human Rights Issues, CLJ, Vol.3 No.3, 2010-11, 88-101
19. Prosecutor v. Jean-Paul Akayesu, Trial Judgment, Case No. ICTR-96-4-T, 2 September 1998
20. Report of the Supreme Court Appointed Commission (appointed on 4th January, 2013 and submitted report on March 30, 2013) for inquiry six cases of extra-judicial killings in Manipur and other related matters)
21. Sanajaoba, N; (2007) Current Legal Essays, Akansha, New Delhi
22. Sanajaoba, N;(2004) Human Rights Current Issues, Omsons Publications, New Delhi
23. Sangai Express [English Daily], 16 June 2003 "The AFSPA: Lawless Law Enforcement According to Law?"
24. Scars of Operation Blue Bird at Oinam village: 25 years down the line, justice still awaited, the Sangai Express, July 11, 2012)
25. UN General Assembly Resolution 43/173, 9 Dec.1988
26. UPR, HRC India: Manipur Persistence of Impunity in North-East Region (20 November 2007), Submitted by: Centre for Organization Research and Education (CORE), Manipur.

Concluded...