Human rights in armed conflict areas

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Human rights in armed conflict areas
Standard setting and binding obligations

By: Prof Noarem Sanajaoba *

Human rights policy of India depends on the perception of the Government and the civil society as to what the Constitutional laws have so far provided for on the one hand, on the level of compliance with the binding human rights conventions, on the other hand, and the national commitment. The state obligations and individual criminal responsibility co-exist in the human rights and humanitarians laws regime.

The NE region faces a situation of armed conflict for half a century, undergoes mitralization of civil society and political repercussions of significance, which calls for resolution. The repressive laws have been found to be counter-productive to the peculiar political issue that sustains like a festering wound.

Besides, the Government of India has binding obligations to human rights conventions and political responsibility in fulfilling national commitments. Human rights policy has to be made holistic and be compatible with the objective realities.

Peripheral secessionism and governance:

The objective reality in the North-Eastern region of India is quite obvious for the last half a century. Firstly, the large chunk of the North-Eastern region has been acquired in post-British or, had been otherwise excluded areas, not governed by the metropolitan administration. Secondly, subsequently thereafter, militant peripheral secessionism had the kick-off in no time.

Thirdly, brutal state repression or state terrorism had been let loose in the regional civil society for neutralizing the insurgents, thereby militarizing the entire civil society. By the repressive measures the administration and the security forces had adop-ted, the civil society has been advanced conseque-nt upon the state repression.

The civil society has to carry a heavy baggage of black laws, undreamt of for half a century. The human rights policy that cou-ld be set by the Union Govt has to take into account boldly and unfailingly, the hard objective realities and the historical specifies of the region.

How the Union Govt could perceive of the deep-rooted political question or national questions of the NE region, and address successfully to the core issues that sparked off the insurgency or belligerency whatsoever could not be delinked absolutely from the objective realities on the one hand and the firmly established, universally accepted human rights benchmarks, endorsed by the constitutional norms.

In one word, the Government may not be doing its best in violating the universally accepted or even binding human rights laws - national or, international, in the pretext of integrating the acquired territories to the mainstream.

A fair, just and durable political solution could lead to resolving the festering peripheral secessionism and while doing so, accepted human rights standards have to honoured to the fullest extent. Draconian laws like the infamous AFSPA - Armed Forces Special Powers Act, 1958, among others, have to be repealed forthwith in the same way as the not so infamous POTA has been scrapped.

The National Human Right Commission of India had long back recommended the repeal of the AFSPA, and the enlightened world public opinion stands for the repeal. The Prime Minister's review panel for the repeal of the draconian piece of law and the Union Cabinet remain silent even today on the repeal that was long overdue.

Justice delayed is justice denied to 40 million people of the NE region. Human rights po-licy should have to reflect the urgency of the need for the repeal of the infamous law. (In 1997 NHRC organised AFSPA ND Se-minar, we asked for repeal of the black law, NHRC stood for the repeal).

In the long history of State repression, extrajudicial executions, arbitrary detention, torture, third degree methods and the collective mental traumatization, the civil society reacted vehemently against the black laws and the forces - the armed wing of the Govt. Sharmila is fasting for nearly five years and Chittaranjan has self-immolated last year in protest against the AFSPA; the new generation is waiting in the queue to protest against the terror let loose by the Govt.

In Assam, reportedly 265 Assamese citizens had been executed under a secret killing agenda, which newspaper attribute to the secret decree of the Home Ministry of India, and the matter is before the Supreme Court. May more events of similar kind happened in Nagaland and elsewhere in the NE region. The question of accountability of the Government and institutional immunity of the security forces or other invisible forces whatsoever have not been addressed to appropriately and in time.

Is the NE region the iron curtain or, Auschwitz of India is a million dollar question for sensible people. What has happened to national and international obligations to the standard-setting and protection of human rights is another query that awaits for full reply from the seats of power.

Binding State obligations and embedded political immorality:

Human rights policy as a desired goal of people-friendly, participatory good governance is circumscribed by the binding national and international obligations of the Govt of India. It has to put to task, the embedded political immorality, which any over-patriotic Govt would succumb to on the misconceived grounds of expediency.

You cannot simply submit commit genocide or, conceal human torture chambers in the name of patriotism as President Milosevic or, Idi Amin or, the great Fuhrer did to undesirable population groups. The human rights policy of India ought to be honourable, fair, just and durable, while making it fully compatible with the universal standard and defined benchmarks. The state responsibility, obligations, among others, are concretized as follows:

Firstly, the binding Constitutional obligations:

Sanctity of life and property of citizens and persons has been guaranteed by the Constitution of India; even the permissible derogation in public emergency situations is governed by reasonable, fair and just procedure established by law.

The apex court in 1997 verdict in upholding the AFSPA has overlooked the qualifying parameters of reasonableness in constructing the procedure established by law. It has approved the killing by soldier, of any citizen in the NE region on mere suspicion as justified, and implicitly approved suspicion as the best legal basis for deprivation of human life.

A line of thought has evolved out of this bad judgment. A capitalist judge shall always reject a Communist law and vice versa. A widely circulated policy input is : had the five-member apex court in 1997 comprised only the ethnic cousins of Manorama or Sharmila or Chittaranjan, the bench should have rejected ‘suspicion’ as the valid legal basis of shooting down to death a North-easterner, while interpreting the procedure established under the law in article 21 of the Constitution, and should have rejected the AFSPA outright as the relic of Zurrasic-part justice.

The deep-rooted issue is about the man, who runs the justicing apparatus. In Dred Scott case, the USA Supreme Court has accepted the Afrikan-American as a commodity in the 19th century.

The judicial policy has apparently justified state terrorism in the pretext of his brand of nationalism. Future generation would have to be amazed at the apex court's wonderful endorsement of suspicion as a valid legal basis for state's deprivation of life. It has to be rejected outright before it is too late.

Secondly, the binding human rights treaties

Human rights treaties including the ICCPR, 1966 and, the ICESCR, 1966, among others, which the Govt of India had signed and ratified are binding to India in the capacity of a respectable member of the international community. Several of the vital provisions of the binding conventions have been overlooked consistently.

Article 4 of the ICCPR forbids the Govt of India, including its Constitutional creature - the apex court and the judiciary, to deprive of life of persons and citizens even in the most formidable situation of public emergency.

Public emergency has not been officially proclaimed as required by the binding conventions in the NE region for half a century; accountability of all the state agencies to the Parliament for all the acts and omissions in the region conducted during the officially proclaimed public emergency has been abdicated unlawfully, and the United Nations has not been notified for the Govt actions.

The Apex court in 1997 has fully abdicated in giving necessary attention of this public emergency requirement under the law. The reasons for the apex court's overlooking this vital aspect of law are not known. Is the court racially biased?

Thirdly, the mandate of humanitarian regime

The four Geneva conventions, 1949 are binding to a signatory like the Govt of India and the Geneva Convention Act, 1960 has been enacted accordingly. The Indian statute calls for amendment in order to make it functional.

The common Article 3 of the four conventions forbids the state agencies and the state like India to deprive of life of non-participants in the non-international armed conflicts and citizens without judicial guarantees, to torture and to kidnap, among others.

The apex court has missed in 1997, its rare opportunity to vindicate the judicial guarantee, it has to afford to citizens of the NE region against the state repression and brutality. The state should not abdicate its state responsibility under all circumstances.

The non-state actors (NSA) or, entities whosoever barring the mindless terrorist, operating in the armed conflict zone in the region have also certain ethical humanitarian responsibility to comply with the common Article 3. Should they not conform to the benchmarks of engagements, and penalize the non-combatants or members of the civil society, they would earn the label of terrorism.

The NSAs - 'None-state actors' should not evade humanitarian responsibility under one false pretext or other. Once India becomes a party to the ICC treaty, the immunity the NSAs enjoy today has to go. Human rights policy has to articulate the aspect.

Fourthly, individual criminal responsibility

The international community has ushered in an era of terminating immunity and impunity of individuals - be he a soldier or army chief or a Prime Minister or a guerrilla leader of the NSA - committing heinous international crimes. The Rome ICC treaty, 1998 is functioning to do the job leaving aside powerful countries like the USA and India outside its fold as pariah, because of their ambiguous and ambivalent stance towards retaining immunity and impunity of their own home-grown heinous national and international criminals.

The benchmark of this century's international rule of law and international criminal justice lies in the ICC, which the Government of India considers as untouchable or a liability. In one word, the Government's stand encourages commission of heinous international crimes as the world's only supercop power does around the world with millions of human skeletons in uncle Sam's cupboard for democracy. India, particularly Gandhian India ought to be different in this immunity-termination job.

Fifthly, re-activation of the national institutions

The national responses to the universal human rights standard is desperately poor and as a result, the national human rights institutions including the national and state commissions have not delivered the goods as desired by the evil society.. The statutes, the functions, the manpower and the objectives enunciated for the machineries call for radical reforms.

Even the defence forces can not be brought to the jurisdiction of the NHRC of India thereby legitimizing their immunity and impunity at the institutional level. Too little done, vast undone.

Policy on collective rights of man

By taking a thread from the principle of fair and good governance based on fair and proportional re-presentation in multiracial and, multi-national India, the objective social reality as found is that a mere 1 or 2 percent of the Indian defence forces is drawn from amongst the Muslims which constitute 20 percent of the population and also that the Northern- Southern racial axis in the last half a century denied a Naga to be the President and a Manipuri to be Prime Minister of India, by just taking a leaf from the racialist brand of power-sharing in the republic.

There is no suitable explanation except the justification of racism in disguise. It would be better to stop this discrimination. The subject people rise against the new Moghuls. The false justification for denial and deprivation is as good as lawyer's paradise. The regime is simply pro-Nazi, which is perceived as a perpetual terror to the national minorities. The rest is political gimmick.

The universally established right to development and the right to the legitimate people to self-determination, among others, have not been justifiably and properly addressed to, thereby facilitating a mere prairie fire in Naga hill, sparked off by the AFSPA 1958 to spread the insurgency wildfire across the NE region.

The message is as simple as the panic of AFSPA dragon running berserk in the NE civil society. The damage done to the texture and fabric has nearly become irreversible inspite of periodic economic packages announced for the region and distribution of a bundle of tamapatra to willing subjects.

Policy dimensions
Dissemination

The national institutions, human rights ma-chineries and the multi-media, and the NGOs can play important roles in dissemination of anti-racism, anti-casteism, anti-minori-tysm to the power elites, policy makers, opinion-makers and grassroots social workers. The Nazi brand of institutional hatred of minorities and tribes has to be wiped out from the majoritarian mind-set and politics.

The mind-set of the power elite has been infected deeply by the psychic HIV and AIDS mind-set for the last several centuries. The issues about the right to development and right to the people of the NE region to self-determination have not been properly and in time, addressed to by the powers that be.

The institutional aberrations from the human rights standard, followed and adopted universally call for corrections. The apex court, the legislature, the executive and the defence forces have to correct the intentional or unintentional deviations from the universal human rights standard. Accountability has to be fixed and penal actions or otherwise may be found necessary for booking the wilful human rights violators by taking a leaf out of the ICC paradigm.

National commitments: The governments and the national institutions have to fully and ade-quately comply with the binding human rights treaties to which India has been a party. The governmental neglect is obvious in several compulsory-reporting obligations. A glaring example is cited herein.

The Government of India has failed deliberately to furnish the Fourth India Report due by 2000 even today, to the UN Human Rights Committee. Nobody in the country whosoever, including the activist NGOs could find time to raise the blatant failure and take up actions.

Black law: On the recommendation of the National Human Rights Commission of India, the Govt of India had the opportunity to repeal the AFSPA, 1958 long before the benign POTA has been repealed. The necessity of the Prime Minister to constitute a panel to review the black law in 2005 following the June 18 volcanic eruption in Manipur has been nearly redundant after considering the primacy of the National Human Rights Commission over an adhoc panel.

Everyone knows that the 1958 black law is Lord Lingthgow's dirty colonial law to smash the Indians down to the roots. The promulgation of repressive colonial law lead to no other conclusion than that colonialism exists in the NE region. If colonialism exists, liberation movements logically follow. any other alternative conclusion is difficult to rediscover like the chicken and hen story.

Task ahead:

Unlike other rogue states of the world, which rise unfairly above universal laws and principles, India has been and continues to be a role model and an inspiration of the one time Non-aligned movement, and leader of the newly emerging developing countries. There is a difference between the USA signing or not signing the ICC Rome Treaty, 1998, and Gandhian India provoking the international community as American clone is being apathetic to the Rome Treaty, 1998 by inventing unacceptable false arguments of one kind or another.

The Union Govt should be urged upon to sign and ratify the ICC Rome Treaty, 1998. It has to repeal forthwith the AFSPA 1958, which is basically a colonial, repressive law aimed at perpetuating British colonialism in the country. The Govt of India also bears profound moral responsibility to sign and ratify basic humanitarian laws like the additional protocol to the Geneva Conventions 1977.

Time has come to re-educate the bureaucracy, the Ministry, the media and the defence personnel with the universal human rights standard and ramifications of human rights violations. The State human rights commission have to be recharged and reactivated.

Ansatz

The Government of India has the primary responsibility to comply with its earlier national commitments and human rights obligations. It has to fully endorse the universally accepted human rights treaties by signing and ratifying the other significant conventions.

The human rights policy should be holistic and mul-tilaterial, urge upon accountability, transparency and follow-up actions of the national institutions and officials.

Prof Noarem Sanajaoba wrote this article for The Sangai Express
This article was webcasted on 03rd May 2006.

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