Counter Insurgency Operations. By. Brig DEEPAK SINHA (Retd). The Armed Forces Special Powers Act (AFSPA) has been in force in some of the North. Eastern ...
The Impact of The Armed Forces Special Powers Act on Conduct of Counter Insurgency Operations By Brig DEEPAK SINHA (Retd)
The Armed Forces Special Powers Act (AFSPA) has been in force in some of the North Eastern states from 1958 and in Jammu and Kashmir from 1990. Human Rights activists have been agitating for its repeal, over the years, on grounds that it is a draconian act that has little applicability in a democratic polity, so much so that it has been called “an abomination”i by Sanjoy Hazarika. Off course, the fact that no human rights activist has ever gone on record to condemn the killings of security force personnel by militants does nothing for their democratic credentials. There have also been objections to the powers that the Act provides soldiers, especially the provision that requires permission of Central Government as a prerequisite before any legal action can be initiated. It has been suggested that this provision has been used with impunity by the Army in perpetrating atrocities and mayhem and committing criminal acts such as intimidation, rape and murder on the hapless population in areas where it has been invoked. Added to this are calls by political leaders and judicial luminaries for its amendment or partial revocation. This has been opposed by the Army which has categorically stated that any such action would greatly degrade its ability to function in such areas without suitable legal cover for its activities, as is presently provided by this Act. It has also tried to justify its stand on the grounds that while there have been some cases of misbehaviour and human rights violations, these were aberrations and the hierarchy has been prompt in initiating strict disciplinary actions against those involved, an argument which is brushed aside with the statistics, for example, that show that the government has not sanctioned any legal action against personnel allegedly accused of murder in Kashmir since 1989. While the debate continues on these issues, little or no attention has been focussed on the impact of AFSPA on counter insurgency/ anti militancy operations. This is because most activists, bureaucrats, politicians or judicial and legal luminaries have little, if any, idea as to how exactly the army operates in such areas. It stands to reason, therefore, that to be able to take an enlightened position on the debate it would be worthwhile for all stakeholders to understand the prevalent environment where it is invoked and as to how its provisions assist the army in the conduct of its operations. It is only after this that the controversies surrounding the Act can be fully understood in their correct perspective. To start with, the Act is applicable to an area that has been notified by the central or state government as disturbed. These conditions have been very broadly defined as ‘the situation prevailing in the area is such that use of armed forces in aid of civil power is necessary’. As is to be expected there is much academic quibbling that the definition is far too subjective, broad based and prone to political manoeuvring. Be that as it may, what is of relevance is that by the time the government of the day finally decides to declare the area or state “disturbed” and to requisition the
Army in aid of civil authorities, the writ of the elected representatives and the state no longer runs in that area and the existing law and order machinery is wholly ineffective. The political leadership lives in fear of being eliminated if it does not follow the dictates of the militants, and all opposed to the insurgency are restricted to staying in protected zones. The administrative and police machinery, especially in rural areas, is largely absent or compromised and supportive of the insurgents. The majority of government servants deployed at the district and lower levels pay regular “tax” to the militant establishment. The rule of law is wholly absent and summary justice is provided by the militants through the barrel of the gun. The regional media too faces serious threats and by and large acts as a propaganda tool for the insurgents and is strongly biased in its reporting. Finally, the influence of the militants is all pervasive and they are the chief benefactors of any funds that the government or any other organization may expend in the region as no contract can be either given or accepted without their approval or partnership. In practical term this means that the local population is completely terrorized and has no faith in the ability of the government or the local police to provide it with governance or security of any kind. While the militants may enjoy a degree of popular support there are local elements opposed to them but in these circumstances they have little option but to support the militant organization. It is worthwhile recalling that in Punjab, Kashmir, Manipur, Nagaland and even in Srilanka the initial killings by militants targeted opposition within their community, tribe or ethnic groupings. Even today, the ISIS has killed more Muslims than non-believers. For the Army it implies that actionable intelligence on insurgent activities, personnel or organization will be either not available or hard to come by. To add to this, information about security forces deployment, their plans and movement will be leaked to the militant leadership by over ground sympathisers making them vulnerable to ambushes and other militant actions. In addition, and an aspect that tends to be largely ignored, is that the forces will be kept constantly under pressure by a well orchestrated campaign of disinformation to malign their reputation with allegations of large scale rape, torture, murder and a host of other human rights abuses. In a country where the police are commonly associated with third degree methods such allegations against the military are invariably taken for granted as there is a general perception that the ethos of the military and the policeman are same because both are uniformed government servants. When the Army first deploys into any disturbed area its primary task is to ensure that the militant’s capacity to terrorise is sufficiently neutralized as to enable the government to re-establish itself and carry out its legitimate function of governing. To do this the Army, at the outset, establishes a counter insurgency grid. This involves establishment of secure posts throughout the area, in towns, in the hinterland and along the lines of communication. Each of these posts has an area of operational responsibility which is clearly delineated and within which the deployed troops send out patrols to familiarize themselves with the terrain and the local population. It establishes an intelligence network with the help of sympathisers and through interactions with locals that will provide it with real time information of the militant’s organization, leadership and activities in the area. Once established, units and sub units work on two major thrust areas: the first to neutralize the militants in the area by breaking their cohesion and ability to plan and carry out attacks and secondly to understand and mitigate the sufferings of the local populace. The former is achieved by
carrying out raids on likely or known hideouts. In addition cordon and search operations are conducted in population centres to gain information about militant activity and identify militants and over ground activists. Area domination patrols and interdiction of roads and tracks are also executed thereby restricting militant movement to small groups, forcing them to avoid population centres and restricting their ability to operate freely. Finally action is also taken to identify and neutralise over ground support so that militants are denied intelligence about security forces and logistics. Loyalty of the locals towards the state is re-established by providing them a safe and secure environment, working in partnership to provide civic amenities that are urgently required, providing medical assistance and enabling the district administration to restart its governance and development efforts in the area. It goes without saying that for this process to fructify and deliver time is of essence and the process cannot be speeded up without impacting the fine balance the army needs to establish with the local populace. Thus, from all this it is amply clear that for the army to be able to stabilize the situation and ensure adequate security to enable the elected government to exercise its constitutional and administrative authority effectively, requires that it be pro-active, aggressive impactful and be given adequate time. That is the only option available to regain the initiative which, in the long run, will result in the security of the local population and ultimate success. It, therefore, stands to reason that without a suitable mechanism in place that permits the army to operate effectively it makes little sense to deploy the army and expect it to succeed. This is especially so, as in our system of governance, the military has no “police powers” of search, arrest, detention or use of force. As numerous examples across the world have clearly shown the guiding principle of military use is that it is the option of last resort and once deployed must be given adequate resources and a suitable environment for it to succeed. Any compromise on this issue not only adversely impacts the military but bodes ill for the state and the government and consequently for the well being of its citizens. When we focus on the manner in which this Act has been implemented the most common criticism that is made is as The Telegraph in its editorial on 24 July2013 on the issue of firing by Border Security Force personnel on a rally at Gool in Jammu & Kashmir, goes on to say “Mr Abdullah knows, just as his voters do, that the killing of unarmed protestors is a function of the culture of impunity that guides the actions of the security forces in the state.......The chief minister can fool no one into believing that official enquiries into killings by the police or the military will bring justice to the aggrieved........” ii To generalize and state that any official investigation will lack credibility is neither fair nor just. There are numerous examples of very fair investigations that have uncovered the facts. The Abdul Rahman Paddar case of 2007, for one, is an example.iii As to whether the government of the day has gone on to take action as it was required to is a moot point as the Pathribal case of March 2000 shows us.iv But then, that is not something that is specifically applicable to areas where the AFSPA has been applied but to the country in general as poor and incompetent policing, political patronage and a justice delivery system on its death bed show. The second aspect of this editorial that needs to be pointed out in no uncertain terms is the linkage that it draws between the BSF and the military. The terminology “Security Forces” universally used to cover all uniformed forces does not do justice to the military as it fails to note the varying standards of motivation, discipline, training and operational employment that exist between the forces. The Central Reserve Police Force (CRPF) and the Border Security Force (BSF) are Central Armed Police Forces (CAPF) as defined by the Government of India v and have completely different
operational profiles, manning patterns, training focus and traditions from the Army. Two examples to illustrate this aspect should suffice. While the foundation of army discipline, training and motivation is based on the regimental system wherein troops from a particular region along with officers (from all over the country) serve together in the same unit for decades and establish familial bonds, the police forces have units manned on a rotational basis which implies that while unit locations are permanent, personnel are posted for fixed tenures and rotated out. Obviously, these units can never have the close knit bonding and friendship that exists in the army’s combat units, an important aspect that is pertinent to morale, discipline and motivation. The second example pertains to the leadership issue. Because police officers, especially battalion commanders and above, are required to be easily accessible to the general public operational employment of armed police is under the leadership of Head Constables, Sub Inspectors and Inspectors. The army works on completely different lines and units and sub units are always led by commissioned officers with the attended advantages. Finally, the Army and the CAPF have completely different chains of command that they follow with differing perceptions, requirements and focus. Finally, the ethical standards and the question of accountability are radically different in what exists within the Armed Forces and Police Forces. The most serious criticism that is raised time and again in various forums’ pertains to an overwhelming belief that the military chain of command protects all who commit human rights abuses. This lack of accountability supposedly percolates down to the rank and file who then believe that they have complete immunity from prosecution and thus indulge in torture, loot, rape and even murder. The army, unfortunately, has added to this perception gaining ground because of its apparent in action in a number of well documented cases where evidence of human rights abuses appears to be credible. The Pathribal case, for example, in which five officers are allegedly accused of organizing a fake encounter in which seven innocent villagers’s were killed and declared to be foreign militants is a case in point. This incident occurred in 2000 and it is only in March 2013 that the General Court Martial against those allegedly involved has commenced. That it required intervention by the Supreme Court does the army hierarchy no credit. This is ironic, since there are a number of individuals who have faced disciplinary action for various offences committed in areas under AFSPA, mostly based on robust internal review mechanisms rather than on reports from locals or the police. The Army hierarchy instead of publicising these figures prefers to keep it classified, on what it probably perceives as adverse performance, instead of showcasing it to show the high level of accountability that exists within the military. It goes without saying that matters of this nature are extremely complex and very little can be seen in clear black or white. For example let us examine one case of alleged fake encounter that has been investigated by the Justice Hegde Commission. This Commission was established on the directions of Supreme Court in January 2013 to inquire into six cases of encounter killings in Manipur. The Commission consisted of Justice Hegde as Chairman with two other eminent members, Mr Lyngdoh, former Chief Election Commissioner, and Dr Ajai Kumar Singh, former DGP Karnataka. In the first case that they examined, that of Mohammad Azad Khan, who was killed in an alleged encounter in March 2009. The family claimed that Azad was a student aged 12 years and was at home with a friend when the Security Forces (SF) came to their house in broad daylight allegedly caught hold of the deceased and beat him up and then killed him and placed a pistol next to his body. The SF version is
markedly different in that they alleged that Azad Khan was a member of the Peoples United Liberation Front (PULF) with a number of cases registered against him including under the Arms Act. In their version they stated that they received hard intelligence as to his whereabouts, based on which, they launched an operation to apprehend him. However the deceased fired at them with a pistol while trying to evade being apprehended. On his opening fire the SF returned the fire and Azad Khan was killed while another alleged militant escaped. The Commission in its deliberations came to the conclusion that this encounter was false. The primary reasons given justifying these conclusions were that: 1. While the individual may have been member of the PULF and did have various cases registered against him prior to this incident, the fact was that PULF was not a banned organization. 2. Since he was sitting at home with another associate when the SF came to apprehend him he was, therefore, at that time not involved in extorting any money. 3. That twenty SF personnel armed with sophisticated weapons could not have disabled or apprehended the victim was not believable and that they were afraid as the youths fired at them is also doubtful since they were equipped with bullet proof jackets. 4. The bullets that entered the victim’s body establish that he was not shot while facing the SF. 5. The fact that Azad Khan was hit by six or seven bullets while no personnel of the Security Forces was even injured shows that disproportionate force was employed and the case could not be pleaded under the right of private defence on that ground.vi The Commission appears to have forgotten that this was not a tournament of skills at the Olympics and even if a twenty member group was participating it was more than likely that only one or two personnel may have been involved in the actual exchange of fire. Moreover, to expect SF personnel to avoid firing back and attempt to capture the individual who is firing at them just because they are wearing bullet proof jackets, verges on the ludicrous. The Commission appears to be unaware that bullet proof jackets are not a cloak of invincibility and soldiers have been known to perish despite wearing them. It is unfortunate that despite the experience and eminence of all members of the Commission their knowledge of military and militant tactics, and the prevailing insurgency environment was woefully inadequate. That they were further hamstrung by their lack of detailed knowledge of the area of operations and the state of administration in Manipur is also clearly reflected in their conclusions. There are many questions that still remain which the Commission appears not to have considered relevant to the case. For example if PULF is involved in militant activities why was it not banned? Was it due to bureaucratic bungling? Why did a 12 year old boy have serious charges against him, or was he actually 12 years old? Why had the parents not mentioned this fact in their statement? Does it not destroy the credibility of what they have stated? What was the motive for the SF in launching an operation to apprehend a twelve year old boy? The bigger question that arises is that if Commissions of Inquiry reaches conclusions which appear to be flawed how is it possible for the Government to sanction prosecution against the SF personnel involved without completely destroying morale? Especially since the cases are likely to be prolonged and the career of the SF
personnel would be destroyed even if at the conclusion of the case he is found to be innocent, as the Batla House case has shown.vii It would thus be fair to conclude that in the environment in which the state has little option but to deploy the army to reclaim its legitimate right to govern, it requires to provide the army with a suitable legal framework within which it can function without fear or favour. The AFSPA meets this very requirement. It is also worth emphasizing the fact that the leadership and the rank and file of the army is clearly aware of the symbiotic relationship that they share with the local populace. A warm, close and friendly relationship leads to greater availability of intelligence which in turn enables the army to perform more effectively in neutralizing and degrading militant organizations and their supporters. Thus, the army rank and file, deployed in disturbed areas, clearly understands the benefits of having good relationships with the locals as its own success and security is directly linked to the manner in which they operate. Finally, as per the existing processes in place, the imposition and revocation of AFSPA is wholly a political decision advised by the bureaucracy with only very limited consultation with the army, mainly on the issue of operational deployment. There now appears to be a need for the army hierarchy to also be more intimately involved in this process because there appears to be a growing suspicion that the political leadership and the bureaucracy are using AFSPA to achieve to serve their own personal agenda. Manipur is a perfect example of this. As most observers of the situation there are aware that the situation there is mainly due to the humungous levels of corruption that exist within the establishment and the nexus between smugglers, militant groups, drug traffickers, politicians, administration and the police. A law and order problem has been categorized as an insurgency and by insisting on keeping the AFSPA in place, the administration is able to utilize the army to put pressure on the local population The democratic process there has been very robust over the years and what is presently categorized as an insurgency appears to be no more than a law and order situation. However by not revoking AFSPA the army is being used to tackle a law and order situation, which is not its job, thereby ensuring the status quo remains. of militancy is a very credible and if the political leadership decides to revoke it in an area it must ensure that the military is sent back to barracks and ceases operations. The leadership must then accept responsibility and be accountable for the security situation that prevails. It cannot be a political tool and its revocation or imposition cannot be done without due diligence as once the Army has gone back to its barracks to expect it to return to active operations at short notice would then be unacceptable and only damage morale and the effectiveness of our last line of defence. i
Hazarika, Sanjoy, An Abomination Called AFSPA, The Hindu,12 Feb 2013. The Telegraph 24 July 2013 Vol XXXII No.18 pg10. iii Human Rights Watch Report http://www.hrw.org/news/2007/01/29/india-prosecute-police-killings-jammuand-kashmir ii
iv
Sengupta, Somini, Indian army and police implicated in Kashmir killings,
http://www.worldsecuritynetwork.com/India/Sengupta-Somini/Indian-army-and-police-implicated-inKashmir-killings v
http://en.wikipedia.org/wiki/Central_Armed_Police_Forces
vi
The Justice Hegde Commission Report http://humanrightsmanipur.files.wordpress.com/2013/07/ejevfam.pdf vii
NDTV, 30 Jul 2013 http://www.ndtv.com/article/india/batla-house-encounter-case-convict-shahzadahmed-gets-life-sentence-398931?curl=1375764691
