Dealing with terrorism through Int’l cooperation based on trust and values

General (Retd) V. P. Malik Former Indian Army Commander and Chairman, Chiefs of Staff Committee

HUMAN RIGHTS: In India, the traditional application of humanitarian law to the armed forces is almost as old as the armed conflicts themselves. There are several examples of prescribed humane behaviour for the forces during conflict in Ramayana and in Mahabarat.

These are a part of our cultural legacy. If Lord Krishna in Bhagwat Gita taught Arjun and his soldiers about righteousness or Dharma, Guru Gobind Singh’s message to his soldiers was in his prayer “De Shiva war mohe, shubh karman se kabhi na taru.”

Even during British colonial rule of India, the armed forces followed the concept of “Naam, Namak, Nishan: Be Honourable, True to your salt, and Uphold the Flag.”

Very early in my military career, I watched my Commanding Officer rebuke a soldier for his bad behaviour in the lines. His only words were, “Insan Bano (Be human)”. Rest of it was in his looks!

In Kargil war, Indian battalions recovered over 270 dead bodies of Pakistani soldiers after re-capturing posts occupied by them. Some of the dead soldiers were found to have been half buried in shallow pits. Others had been covered with stones or left in the open by the withdrawing Pakistanis. It was the Indian troops who gave all of them a burial befitting a solider as per Muslim rites.

Upholding human dignity, personal values and mitigation of collateral hardship to the public; these are corner stones of the professional ethos in the Indian armed forces. Such an ethos is systematically imbibed in all ranks through training, motivation, and enforcement of stringent discipline, and monitoring of operations.

The respect for human rights thus comes naturally to all ranks. Also, secularism, discipline, integrity, loyalty, espirit-de-corps, apolitical outlook: these are essential values that are inculcated in the forces. These values contribute to their civilised behaviour.

It is, therefore, not surprising that India has been a ready signatory to International Humanitarian Law and all 12 conventions on terrorism.

India firmly shares the perception of Madrid Declaration, which advocated “harmonisation of domestic law regarding compensation for the victims of terrorism and the drafting of an international statute for the victims of terrorism.” India is one of the active participants in the deliberations of the Counter Terrorism Committee set up by the Chairman of the Security Council pursuant to Resolution 1373.

The Indian Army took immediate cognizance of the Protection of Human Rights Act, 1993. It established its Human Rights Cell in March 1993, six months prior to the establishment of the National Human Rights Commission in India.

It s COAS-Ten Commandments laying down the Code of Conduct for all ranks operating against armed insurgents and terrorists i.e. do’s and don’ts, are recognised by the Indian judicial system and by the United Nations.

The doubts about human rights conduct of the soldiers in India and abroad arise currently on account of lack of understanding about terrorism and insurgencies, the difficulties faced in dealing with them, and human rights aberrations that take place in such operations.

Terrorism and Indian experience

Terrorism is not a new phenomenon that started only after September 11, 2001, as some foreigners would have the world to believe.

There has rarely been a period in modern history, when the world has not been confronted with terrorism; somewhere or the other, in some form or another, for some reason or the other. Terrorism ebbs and flows, and keeps undergoing many mutations.

India has faced this menace ever since its independence.

In October 1947, Razakar raiders from Pakistan - the same people who joined Taliban and Al-Qaeda 50 years later - frustrated because the Maharajah of Jammu and Kashmir was not willing to merge his state with Pakistan, walked into his territory looting, pillaging, violating human rights and attempting to coerce his government into submission.

That situation led to the first Indo-Pak war, our first military experience after Independence. Since then, we have faced insurgencies and terrorism in many parts of our country; most of the time exploited, influenced and aided from outside.

Although internal security and terrorism is primarily a responsibility of the civil police, central police organisation and the para military forces; but due to foreign influence and thus meshing of internal and external security, the armed forces, particularly the Army, have been involved in combating terrorism in increasing numbers.

Currently, nearly one-third of Indian Army is operationally committed for this purpose. The experience, successful in many parts of the country, has been extremely valuable.

In April 2003, while addressing an annual meet of the American Jewish Committee in Washington DC on ‘Global Terrorism’, I said, “.... terrorism is not just a military problem. It is primarily a major socio-political problem. In the worldwide counter terrorism strategy, beside checking violence, we have to isolate and combat an ideology that is irrational and not acceptable to modern society.

We have to stop countries, ethnic groups and societies, who have perfected the art of recruiting even children to fight a Jehad. We have to use all available means; not just military but political, economic and other kind of persuasion and pressures.

For this, we need both hard power as well as soft power: hard power to deal with armed terrorists, and soft power to deal humanely with societies, their culture, traditions and ethos.”

I also stated that the ‘more likely targets of global terrorism are the democratic societies. That is so because pluralism, peaceful co-existence, dialogue as the basis of resolution of differences, adult franchise as the optimal means of organising internal affairs of the nation - these are an anathema to the terrorist groups. Such democratic societies challenge the very cause and rationale of the terrorists; existence.’

The Indian strategy

India has a population of over 1 billion spread over 3.1 billion sq kilometres. We have people speaking 16 major languages and 200 dialects. There are a dozen ethnic groups, seven major religious communities with several sects and sub-sects, and 68 socio-cultural sub-regions: all part of a developing, semi-literate society.

There are rapidly rising social, political and economic aspirations of groups in our multi-ethnic, lingual, cultural and communal social structure. All these aspects are considered in our politico-military strategy in dealing with terrorism and insurgencies.

Although we have been one of the longest victims of terrorism, insurgencies, and a proxy war, we are also one of the few nations who have handled terrorism successfully in Mizoram, Punjab and several other parts of our country. Most importantly, we have not allowed terrorism to politically or economically destabilize our nation.

We approach terrorism comprehensively; as a phenomenon with political, economic, social, perceptual, psychological, operational and diplomatic aspects, all of which need equal and simultaneous attention.

There is a holistic approach to all these dimensions. Therefore, we have the system of unified command in terrorist affected areas under a Governor or the Chief Minister, with committees made up of all the earlier mentioned functionaries.

We also believe in a healthy, well-functioning democracy, good governance, and a secular and liberal mind-set, which makes no distinction between the majority and the minority, and treats everyone equal in the eyes of the law. Firmness and determination in action, tampered by a civilized, democratic and patient behaviour by the State, have been the hallmark of India’s counter-terrorism policy.

The aim of the security operations is to isolate and arrest or eliminate the hardcore secessionist elements and to deter their supporters. The security forces use a stick and correct approach. They employ the principle of ‘use of minimum force’ during such operations - not the overkill required in a war. The rules of engagement are based on two forms of self-restraint: ‘discrimination and proportionality.’

Civilians and civilian places are to be kept distinct from military targets and protected from deliberate attack. Any action against military targets must be carried out in a manner so as to avoid unreasonable harm to civilians. It must however be realized that the stress and dangers involved, the fog of war, and the adversary’s deliberate provocations makes their application difficult even amongst the most conscientious military forces.

The security forces not only fight militants and anti-social elements, but also reassure innocent people feeling insecure or neglected due to the inadequate civil administration. Tough measures lead to increasing alienation. Conversely, attempts to appeasement carry the risk of being read as a sign of weakening resolve. You have to find the right balance.

With experience, we have realised that we need specially organised, equipped and trained, areas-oriented security forces to deal with insurgencies and terrorism. Special Forces, Rashtriya Rifles, Assam Rifles, Rapid Reaction Force etc. These are some examples.

These forces, and those who work alongside, need training for local terrain, people, their language, customs, and traditions. Special training schools have to be established for this purpose. The Army insists that every solider deployed for such operations, carries a do’s and dont’s card on his person.

During sustained operations, the security forces often involve senior and respected citizens, and professionals, as a link between them and the locals.

They also form citizens’ committees to learn about their difficulties, and hold meetings with them as frequently as possible. Along with sustained operations, small and large-scale civic action programs are undertaken.

In some areas, the Indian Army formed the Army Development Group and launched Operation Sadbhavana (Goodwill) for this purpose. The over all aim is to win the hearts and minds of the populace. It is counter productive to alienate hundreds and thousands in order to kill a suspect.

Human Rights

In view of the strategy and approach described above, the Indian armed forces are committed to protecting human rights of its citizens even while conducting counter terrorism or counter insurgency operations.

These are not viewed as an impediment but an essential requirement of operations. For this reason, considering their long and large commitment in such operations, their human rights track record as compared to armed forces engaged in such operations in other parts of the world, is not just good but commendable.

However, considering the type of operations wherein it is usually not possible to identify the difference between a friend and fore, and the long and large commitment, stress and strain of operations, one cannot rule out aberrations.

These aberrations, and allegations of aberrations, are dealt with as per Defence Services Regulations and Army Act, in as transparent manner as possible. Detailed procedures are laid down for this purpose.

Any deliberate instance of ill-treatment or misbehaviour by any individual is considered as an act of indiscipline, punishable under Army Act. Beside Army law, a large number of policy letters and guidelines are in place to deal with erring soldiers who commit human right violations.

It is the responsibility of the Human Rights Cell in the Adjutant General’s Branch, with its subordinate offices at lower levels, to act as the nodal agency for receiving allegations from various agencies. These offices are also responsible for investigating the veracity of such allegations and ensuring that corrective action is taken to minimize and prevent human rights abuses.

As per statistics maintained since 1994, there have been 1212 allegations of human rights violation by members of armed forces. 1154 such instances have been investigated so far. Out of these, only 52 allegations (4.5 percent of the total allegations) have been found to be true. In these, 110 army personnel have been punished.

The punishments varied from life imprisonment to dismissal and censures, and are open to challenge and appeal. The details are given in the attached Annexure.

The implementation of humanitarian law requires self-discipline, extensive training down to the grass roots level and an adequate monitoring system. There is a concerted effort to sensitize all ranks regarding human rights through systematic and coordinated training imparted right from the time they are inducted into the Army.

This continues in the form of training capsules at unit level and by various training institutions throughout their career.

The subject is part of the curriculum in training institutions such as Army War College, Infantry School, Defence Services Staff College and the Institute of Military Law.

A number of case studies, based on encountered situations in the past, have been prepared for wider dissemination amongst formations. These illustrations are meant to assist the troops in undertaking anti-terrorist missions in a legally sustainable manner.

Having given the human rights status of the Indian armed forces, I must address the on-going debate on the Armed Forces Special Powers Act 1958 and some other lacunae in the International Humanitarian Law and systems.

Armed Forces Special Powers Act - 1958

As is well known that the Supreme Court of India has already dealt with the legality of the armed Forces Special Powers Act - 1958 in the Naga People’s Movement of Human Rights v. Union of India case.

In that case, it explained the extent of authority available to the Army officers operating in an area where the provisions of the said Act were invoked. The court was called upon to decide whether the administrative orders issued by the commanders to their subordinates were legally enforceable. A number of vital questions arose.

Do the military personnel have the authority to interrogate the security suspects? Can the units retain the arms, ammunition and explosives seized by the Army soldiers? Whether conferment of enhanced powers on the NCOs would be an arbitrary act? Is it open for the troops to strike at the hideouts harbouring the militants? The court squarely addressed all these questions.

My views on this Act are based on experience and submission before Justice Jeevan Reddy Committee, appointed by the Government of India to review the Act after recent agitations in Manipur.

In early 1990, I was commanding a Division that had troops deployed for counter insurgency operations in Manipur, Nagaland and a part of Arunachal Pradesh. During the run up to Manipur Assembly elections, a political party leader, in order to garner students’ support and votes, made removal of the Armed Forces Special Powers Act a major electoral issue. When he won the elections and became the Chief Minister, I went to call on him.

After congratulating him on his appointment as Chief Minister, I asked him what did he plan to do about the Special Powers Act. He said that in view of the popular demand, he would write to the Ministry of Home Affairs at the Centre and have it removed.

I told the Chief Minister that it was OK by me. I will pull out our troops from the 60 odd posts in Manipur, concentrate them outside Manipur, and train them for their primary responsibility of fighting a conventional war.

“But you cannot do that! What will happen to the law and order situation?” he said. I appreciated his concern and told him politely but firmly that I couldn’t help him to maintain that without a proper legal cover. I said “I cannot have my subordinates hold me responsible for giving them an unlawful command.”

Then I respectfully stated, “Sir the best way out is to create conditions in the State wherein the Special Powers Act is not necessary, If you and the Centre do not consider and declare Manipur State to be a ‘disturbed area’, the Act cannot be applied.

Please do not blame the Act for the problems of Manipur. The fact is that despite several elections in the State, we have not been able to create conditions when this act need not be applied in Manipur. The Armed Forces or the Assam Rifles cannot create those conditions. These are primarily of socio-political and socio-economic nature, under your charge now.”

Having made the basic point about the Act, let me briefly discuss its contents.

Para 3 of the Act defines power to declare areas to be disturbed areas. It states that for using armed forces in aid of civil power, the Governor of that State/Union Territory or the Central Government has to, by Official Gazette Notification, declare the whole or affected part of the State/Union Territory to be a ‘disturbed area’.

Para 4 states that ‘a commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces in a disturbed area, may:

* Fire upon/use force, even to causing death, against any person contravening law and order or carrying weapons, ammunition or explosives, if in his opinion it is necessary for maintenance of law and order and after giving due warning. (The ‘opinion’ usually has to be justified subsequently).

* Destroy armed dump or fortified position or shelter from which armed attacks can be made or can be used for training by hostiles, if necessary to do so.

* Arrest without warrant any person who has committed a cognizable offence and may use suitable force, if necessary to do so.

* Enter any premises without a warrant to arrest a terrorist/suspect, or to recover a wrongfully confined person, stolen property, or arms/explosives wrongfully kept.

Para 5 of the Act lays down that the arrested persons will be handed over to the nearest police station with least possible delay along with the circumstances of the report. This is notwithstanding the fact - as is widely known-that most terrorists continue to languish in civil jails for years. Many either get away due to lack of evidence or simply manage to escape.

The need for an act like the Armed Forces Special Powers Act for counter insurgency and anti-terrorist operations is unquestionable. However, it can be reviewed or amended slightly due to changed circumstances, as is being done now.

We can also improve its application e.g. make more judicial magistrates accompany military patrols, increase joint military-civil police operations in the urban areas so that Police does the arrests, and streamline early handover of arrested people when civil police is not available with Army patrols.

I cannot perceive removal of the Act altogether. In disturbed conditions, when there is a danger of ambush at every nook and corner in a jungle or built up area, and the civil police is not available, the Armed Forces will not be able to perform counter insurgency or counter terrorist operations without a legal authorization of this nature.

By defending the need for the Armed Forces Special Powers Act does not mean that I condone any crime or violations committed by soldiers in the area where it is applicable. Or for that matter any human rights violation anywhere. If any such acts are committed, it is in the interest of the Armed Forces to take disciplinary action against the offenders, as prescribed by civil and military laws.

Lacunae In Int’l Humanitarian Law

Notwithstanding the above mentioned strategic approach in dealing with terrorism, the enforcement of human rights concept and laid down laws, there is a need to recognize the dilemma that is faced by all liberal states in dealing with terrorists and armed insurgents.

While the liberal states follow the International Humanitarian law in letter and spirit, the terrorists and armed insurgents are under no such constraints. In fact they exploit such a situation to achieve their objectives. While operating in J and K, I have personally come across instances of the terrorists taking shelter in and firing from mosques, hospitals, schools and colleges.

There have also been cases where they have used women and children as shields to escape when cornered by the Security Forces. False allegations to implicate Security Forces personnel in cases of molestations and rape are not uncommon.

When the State persists in using lawful methods, lawfully applied, it runs the risks of not being effective enough against those who have no scruples about using every kind of violent method. If it allows the Security Forces to take lesser chances in dealing with terrorists and armed rebels, even through legislative sanction, the human rightists object to it.

We need to review the viability of the Law and its different interpretations holistically, lest people start applying double standards. This is already taking place in many parts of the world.

Also, there is inadequate recognition of the human rights of the soldiers engaged in combating terrorists and armed insurgents. When the latter commit heinous crimes against innocent soldiers or their families, there is hardly any condemnation or compensation.

We have had several instances of soldiers’ children and families being targeted by the terrorists. In one instance in Kaluchak in May 2002, 19 members of soldiers’ families were killed and an equal number wounded.

Role of the United Nations

On account of foreign support to armed insurgents and terrorists, it has become necessary to deal with international aspects of security forces operations.

In the last 40 years, starting September 1963, the United Nations has adopted 12 conventions concerning counter-terrorism. The number of signatories kept increasing with each successive convention indicating that when the international community feels a real threat to most of its members, it tends to unite and find the best ways to protect the security and well-being of the world population.

The United Nations Security Council Resolution 1373, unanimously and un-equivocally, condemned the attacks on 9/11 and expressed its determination to prevent all such acts. It urged the Member States to work together urgently to prevent and suppress terrorists acts.

It also decided that member states should ‘deny safe have to those who finance, plan, support, or commit terrorist acts.’ It called to find ways of intensifying and accelerating the exchange of operational information regarding actions of terrorist persons or networks, traffic in arms, explosives or sensitive materials, use of communication technologies and the threat posed by the possession of weapons of mass destruction by terrorist groups.

However, the global cooperative effort is still at the beginning of the learning curve.

In Resolution 1373, we have a comprehensive and powerful statement of intent. This has been further reinforced in Resolution 1456. The United Nations decided to monitor its implementation and establish a committee with the assistance of appropriate expertise. Regrettably, this Committee and the Monitoring Group have not been able to work purposefully or get anyone guilty punished or even censored.

The track record of Indian armed forces in following human rights is second to none. In fact, there is no parallel instance where a country, facing proxy war and intense insurgency situations, aided and abetted by a foreign power, and where its Security Forces have suffered such heavy losses, has maintained such a disciplinary code.

Fighting armed insurgents, terrorists, and proxy wars with soldiers’ hands tied behind the back is not easy, particularly when the insurgents and terrorists are using more and more state of the art weapons and equipment, and follow no scruples.

Terrorism today is a hydra headed monster. Its primary targets are liberal and democratic societies. It is a threat, which requires a multiple track response: political, diplomatic, military, policing and law and order to name a few. In the absence of a global framework, domestic legislations remain the only legal remedy against terrorism.

Along with our endeavours to follow human-rights scrupulously, we should also recognise the lacunae in the existing system for dealing with armed insurgents and terrorist operationally and legally.

The Security Forces and other law enforcers deserve more effective legal tools and better legal cover.

Democratic nations have a much greater stake and more significant role in dealing with global terrorism. They would more naturally develop multi-lateral institutions and multi-national coordination required to counter terrorists. They would not get bogged down in definitional or causal arguments.

Blocking financial supplies, disrupting networks, sharing intelligence, simplifying extradition procedures - these are preventive measures which can only be effective through international cooperation based on trust and shared values.

Our own system requires periodic consultations to improve modes of dealing with armed insurgents and terrorists, and evidence collection for prosecution of hard-core terrorists. Integration of military operational elements and its law officials for such consultations in the National and State level Human Rights Commission would be very useful.