Armed conflict situations and applicable International Humanitarian Law
vis-a-vis fight against racist regimes in the exercise of the right of self-determination
– a case study of Manipur
- Part 2 -

Yumnam Premananda Singh *

A protest against AFSPA at New Delhi on Nov 5 2011

II
Case Study – Manipur

Historically, Manipur's existence as an independent kingdom can be traced back around two millennia according to the royal chronicle Cheitharol Kumpaba.

It is fact that Manipur was an independent kingdom until it was defeated by the British forces in the Anglo-Manipur War (1891) and became a British protectorate till 1947. Manipur regained her independent on 14 August 1947 after the British left.

The Maharaja-in-Council of independent Manipur drafted and then adopted Manipur State Constitution Act, 1947 and established democratic and secular popular government having the Maharaja as a Constitutional Head based on the British principle of Parliamentary Sovereignty and Collective Responsibility.[13] [14] The State Assembly was inaugurated by the then King Bodha Chandra in October 1948 thereby marking the historic transition from the 2000 year old absolute monarchy to a constitutional monarchy. Probably, Manipur was the first to introduce parliamentary democracy in Southeast Asia. [15] An independent judiciary also existed to safeguard the citizen's fundamental rights and, also, ensure the citizen's duties as well.

Manipur became a part of India through controversial 1949 Merger Agreement [16] and accorded Part C State status (even not a full fledged State). Manipur was a Union Territory of India from 1956 and then later a State of India from 1972 (that also after prolong and sustain struggle by the people of Manipur).

Armed Conflict in Manipur:

The indigenous peoples of Manipur (Manipuris) consisting about 36 communities or groups, and they are racially and ethnically akin to the peoples of South East Asia; ethically and culturally are distinct from the rest of mainland India. Popular discontent around the illegal and unconstitutional merger and subsequent state policy of racial discrimination and genocide that fumed resistance movements ever since, and escalated into open armed conflict since late 1970's. The Government of India (GOI) responded by promulgating the colonial, racial and genocidal legislation Armed Forces Special Powers Ordinance on 16 April 1950, and afterward enacted the Armed Forces (Special Powers) Act, 1958 (AFSPA).

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. [17] [18] 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 are hostile to them. This is the fundamentally racist position characterizing the distinctive context of the on-going armed conflict in Manipur. [19]

The deployment of the armed forces and the invocation of a dozen of draconian laws notably AFSPA for a longer period, the annual reports placed in the parliament by the Home Minister, GOI about the death of Indian soldiers and guerrillas with facts and figures, unambiguously prove the existence of armed conflicts between the state forces and the liberation guerrillas in Manipur. The Justice Reddy Commission's Report on AFSPA (RCR)[20] and the Supreme Court (SC) of India in NPMHR[21] and EEVFAM[[22] cases also indirectly indicates the existence of armed conflicts in Manipur.

Many credible global NGOs like Human Rights Watch, Amnesty International, Asian Centre of Human Rights, and Asian Commission of Human Rights also concludes existence of armed conflict in Manipur.

In Manipur two types of armed conflict is going on viz. IAC between Government armed forces and non-governmental armed forces (National Liberation Movement) and NIACs between non-governmental groups themselves. Even though there is some grey area from the part of GOI to classify the conflict as IAC, from this aspect the conflict may be characterized as NIACs for proper implementation IHL. But the proscribed UNLF (United National Liberation Front) and RPF (Revolutionary People's Front), consistently maintained that they are striving to defend the "right to self-determination" of the peoples of Manipur which had been forcibly annexed by the Indian government and Manipur is Non-self Governing Territory and plebiscite is the ultimate solution.[23] The fact is that indigenous Manipuris people do not have full measure of self-government as the polity is not federal and the nominal local government runs at the mercy of the union government.

The Indo-Manipur armed conflict involves more than a dozen non-governmental armed groups [24] out of which only six groups [25] are declared as proscribed terrorist organizations under the Unlawful Activities (Prevention) Act, 1967. This act of declaration by the GOI is nothing but giving official recognition to be parties to armed conflict means guerrillas in Manipur. As a result of armed conflict in Manipur during 1992 – January 6, 2013 it is estimated that 5842 deaths (which includes 2193 civilians who are not taking direct part in hostilities, 966 security forces personnel and 2683 guerrillas).[26] Civil society sources and independent local media claim the conflict resulted in 3 to 5 deaths daily in recent years and 10 to 20 thousands deaths over the last two decades.[27] The Chief Minister, O. Ibobi Singh, reportedly said that "since 1980 when Manipur became a disturbed area over 8,000 innocent people and 12,000 members of armed opposition groups and security forces have lost their lives". [28]

There is no proper documentation of the fact and what data shows is only a fraction of the real casualties. The civilian populations who are not taking direct part in hostilities are main victims of the conflict in Manipur. Given the longevity of the conflict it is likely that overall at least 40,000 people have been killed since 1979. [29]

Major non-governmental armed groups are to be considered as parties to conflict and they are well organized [30] with command structure and also have the capacity to sustain military operations. Thus the conflict in Manipur is qualified as armed conflict based on dual test of intensity and organization as stipulated by International Tribunals and ICRC. [31]

The existence of armed conflict in so called 'disturbed areas' are also acknowledged by chief of Indian Army,[32] Speaker of Manipur Legislative Assembly[33], the Chief Minister of Manipur[34] and many others including UN Special Rapporteur.[35]

It is also fact that some armed groups operating in Manipur are not qualified as parties to the conflict as they failed to fulfil dual test for characterization of the existence of armed conflict viz. the intensity and organization. They may be better characterized as terrorist or armed gangs mostly involved in extracting money from the local population rather than in fighting governmental forces.

The root causes of Indo-Manipur armed conflict may be briefly mentioned as:
1. The controversial 'Manipur Merger', legally annexation of Manipur and thereby illegally abolition of popular government and State Assembly that culminated into national liberation movement for securing right to self determination by all means available with them towards their own decolonization;
2. The subsequent downgrading of the princely State to a Part C State (even not a full fledged State) with colonial mindset;
3. The imposition of AFSPA - a colonial, racial and genocidal legislation that makes regime racist and state policy of discrimination.

AFSPA – a colonial, racial, discriminatory and genocidal legislation:

The AFSPA is racist and it is a symbol of racist regime. Although the situation of law and order in other part of India is much more dangerous and disturbed like Maoist affected areas such legislation has not been in force, it only meant for racially or ethically distinct areas of northeast India (NE) and Jammu and Kashmir. The UN Committee o Elimination of Racial Discrimination (CERD) has also endorsed racial discriminatory nature of the Act.

AFSPA is also a colonial legislation. Its predecessor – the Armed Forces Special Powers Ordinance, 1942 had been enacted in order to neutralize Quit India Movement. It was hundred percent a colonial instrument. In short, the Indian Parliament has been acting virtually as Linlithgow- II in the NE region for more than half a century. [36]

The Act was originally enacted as a temporary measure to suppress demands for self-determination in the post independence period in the Naga Hills but in fact large part of the NE is still declared 'disturbed' under the Act and civilian population is still under grip of the military rule. The Act is described as "dated and colonial-era law that breach contemporary international human rights standards."[37]

Above all the Act is discriminatory and genocidal legislation. Extra-judicial execution, torture, enforced disappearances, rape, illegal detention, committed against the indigenous Manipuris people with intention to destroy, a national or ethnic or racial or religious group is nothing but genocide. This genocidal Act empowers the armed forces of India to kill with impunity and immunity, indigenous Manipuris having distinctive ethnic and racial heritage, and simply transforming the region as a torture-chamber and concentration camp of political dissidents of Delhi regime. And Act itself prima facie discriminatory. RCR also endorsed this aspect very briefly as "the Act … has become a symbol of oppression, an object of hate and instrument of discrimination and high-handedness." [38]

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. [39] Under the Act even non-commission officers are empowered to shoot at sight and more interestingly de jure impunity is granted to armed forces of India for their criminal act. [40] It means 'extrajudicial executions under the cloak of AFSPA have become virtually a part of state policy'.

The SC of India[41] very surprisingly upheld the Constitutional validity of the Act.[42] Christof Heyns rightly observed that "it is therefore difficult to understand how the SC, which has been so progressive in other areas, also concerning the right to life, could have ruled in 1997 that AFSPA did not violate the Constitution.."[43] So there no meaning of judicial activism and sacrosanct nature of right to life to the people of Manipur. In short, the SC in spirit had upheld a statute comparable to that of a Nazi statute in post-colonial republic of India and consequently a silent party to the genocide in Manipur. [44]

It seems that all the organs of GOI viz. Executive thorough the machinery of its armed forces, Legislature and Judiciary and national media are collectively act as policy to accomplish their avowed agenda.

The fact of racial, discriminatory and genocidal policy of GOI is also very clear from the fact that the GOI has repealed the Terrorist and Disruptive Activities (Prevention) Act, 1985 and the Prevention of Terrorism Act, 2002 and not the black law AFSPA. The promulgation of the repressive colonial law leads to no other conclusion than that colonialism exists in the NE region. If colonialism exists, liberation movements logically follow. The insurgency situation in the NE has been worsened since the AFSPA has been imposed in the 1950s. The insurgent groups have greatly increased. Their cadres, weapons, tactical capabilities have expanded and improved immensely.

No civilized jurisprudence would justify this additional empowerment given to the armed forces to kill its own citizens. 1997 judgment of apex court has run a short of juristic ammunitions and the verdict borders on the extreme edge of technical formalism of the crudest positivist kind. [45]

GOI's persistent refusal to repeal the Act even though with strong worded recommendations poured from UN human rights bodies, Treaties Monitoring bodies including HRC, CERD; observations by many international rapporteurs, credible international human rights NGOs and its own created commissions[46] clearly shows the colonial mindset of the GOI.

The governmental armed forces too are victims of AFSPA because of retaliation and communal tendency arising from genocide, torture and other inhuman acts committed by them. The simple logic is that "Violence and genocide often arise from racial and ethnic discrimination. Discrimination can easily lead to racially and ethnically motivated violence, which in turn, may escalate into genocide."

This state policy of genocide, extreme persecution coupled by oppression and cycle of legal impunity as a result of AFSPA prove that the existing GOI is racist regime and fighting the regime can be justified under the principle of 'Carence de Souverainte' and that oppressed peoples want to exercise their state right for reversion to sovereign status that existed before the annexation.

Breach of IHL in Indo-Manipur armed conflict:

From the very moment of merger of Manipur to Indian Union till now many lives including civilians have loss, people are brutally tortured, murdered, many cases of enforced disappearance, arbitrarily arrested, and women are mercilessly rape and gang rape besides committing innumerable cases of extra judicial execution in the name of counter insurgency.

On the other hand non-governmental armed groups are also violating even the minimum rules of IHL and they are also incurred individual and command responsibility just like governmental armed forces for violation of laws and custom of war. Consequently, the civilian population is between 'a rock and hard place' as they have become a target for state and non-state armed actors alike. CM of Manipur acknowledging the conflict situations in Manipur once stated that "as everyone knows that deteriorating situations is a nadir today with insurgents going beyond their Code of Conducts indulging in unwanted killings, kidnappings, extortions, lootings and fake encounters killings etc." [47]

Read the Notes and References used in this article here

To be continued...