In the Budgam case, which was an error of judgement, the soldiers should be protected from murder or homicide charges, but should be punished for violating rules of engagement and acts of omission or commission under military law. In the Budgam case, which was an error of judgement, the soldiers should be protected from murder or homicide charges, but should be punished for violating rules of engagement and acts of omission or commission under military law.

THE high voter turnout in the first phase of elections in Jammu and Kashmir is hopefully indicative of the trend and provides a great opportunity for the Centre and the incoming state government to revamp political and military strategy. But military strategy must flow out of political strategy and not vice versa.

Two recent cases have put AFSPA back in the firing line. Earlier this month, two civilians were killed when soldiers fired at their car — a clear overreaction — when it failed to stop at a roadblock in Budgam. The GOC-in-C, Northern Command, has since apologised for the incident and a court of inquiry has indicted nine soldiers, recommending court martial proceedings.

Also, the court martial in the Machil case of April 2010 was concluded this September, though it only made headlines in November. Five army personnel, including the commanding officer of the unit, were cashiered or dismissed from service and awarded life imprisonment. The media coverage has implied that these cases are special, that most past instances of human rights violations have been brushed under the carpet by invoking AFSPA. But in fact, over the years, more than a hundred court martials have been held by the army in cases of human rights violations, with sentences ranging from dismissal to life imprisonment. The army’s track record in investigating and punishing human rights violations has been exemplary.

The Machil encounter was an open-and-shut case of rogue behaviour. By the end of May 2010, investigations had prima facie established that it was fake. This led to violent protests, to which security forces had to respond, which led to yet more violent protests — 112 civilians died between June and September. After initial denials, the army ordered a court of inquiry. By the end of December 2010, it was concluded that the case warranted disciplinary action against the accused. This delay was a serious lapse on the part of the brigade and division commanders. Most senior commanders can tell if an encounter is genuine. Its circumstances, the number of rounds fired, casualties, the type/ condition of weapons recovered, police and intelligence reports and press coverage leave little room for doubt. In Machil, the unit stood by its story, but the higher commanders were also complicit in trying to safeguard the reputation of the unit, the formation and the army.

After being mired in jurisdiction-related issues, the cases against the personnel were finally handed over to the army in March 2013. It took another year for investigations and six months for the court martial. But the case should not have taken more than six months to conclude. The commanders who failed to discern that the encounter was fake or were complicit in the initial cover-up must also be taken to task. Denials, cover-ups and delays do not augur well for the army. In contrast, the Budgam case has been handled with sensitivity and speed.

Human rights violations threaten the moral authority of the state and the reputation of its armed forces and further the cause of insurgents. They enable insurgents to create circumstances for more human rights breaches by instigating violent protests which lead to security forces reacting in self-defence or panic. A democratic state or its armed forces must never perpetrate or cover up human rights violations; this would lead to the insurgents’ victory.

Yet violations take place due to the very nature of counter-insurgency operations, where force has to be used against terrorists who are intermingled with the people and enjoy their tacit or coerced support. First, violations may be the result of legitimate actions. Such cases should have the protection of AFSPA. In the Budgam case, which was an error of judgement, the soldiers should be protected from murder/ homicide charges but punished for violating the rules of engagement and for acts of omission/ commission under military law.

Second, violations stem from the overwhelming response of security forces in the initial stages of an insurgency. This is when there are the most cover-ups, with the government’s tacit cooperation. In J&K, this phase lasted from 1989 to 1992. Human rights violations in this phase fall in a grey zone. Most are collateral damage from overzealous responses and do get the protection of AFSPA, but they are dealt with under military law. But some rogue action also gets covered up. Third, as in Machil, violations are caused by rogue behaviour. Such cases do not have or deserve the protection of AFSPA.

In the consolidation phase, when stability has been achieved, the principle threat to a counter-insurgency campaign is from perceived or actual human rights violations. Commanders must sensitise troops, including on the strategic implications that human rights violations have in promoting the cause of insurgents. That the army has controlled insurgencies in the Northeast and J&K shows that, while it may not be perfect, it has functioned according to the law of the land — otherwise it would have lost these battles. Yet, there are blemishes. To satisfy the public, we must allow old cases to be reinvestigated, if needs be by a “truth commission”, since the lack of evidence in vintage cases like Pathribal or Kunan Poshpora means convictions are rare.

It is also time to review the army’s role in countering the insurgency in J&K. It is deployed by the government, and it must be removed by the government, too. The army certainly does not have a vested interest in continuing in its counter-insurgency role. It does, however, have a legitimate fear: Given past failures to find a permanent political solution, insurgency could return once it is removed. That’s why the army recommends the maintenance of status quo. This is an extreme view and the final call is the government’s to take. However, a change in both political and military strategy is long overdue.

The army must gradually be disengaged from the hinterland, leaving behind a reserve of, say, one-third of the present deployment of approximately 85,000 troops to take care of the unforeseen. The state police and CRPF must take over law and order and tackle the residual active insurgents/ terrorists. This is their mandated task anyway. The army must focus on counter-infiltration along the LoC. By reinforcing the counter-infiltration posture with 30,000 troops from the hinterland, the induction of insurgents from across the border can be stopped or reduced to a trickle. Tactical operations in the hinterland must be in the form of surgical strikes based on precise intelligence.

AFSPA is an enabling necessity when the army is deployed for counter-insurgency operations, during which, unlike while giving “aid to civil authority”, it is not possible to take instructions from a magistrate before using force. AFSPA enables the army to exercise police powers and provides protection against prosecution in criminal courts for legitimate military action. But, even in the present stable conditions, AFSPA is a major grievance among the people. The army’s deployment and application of AFSPA was selective and progressive as the insurgency developed. The reverse should be the case now. AFSPA must be applicable in a 10-15 km belt along the LoC. But in the hinterland, its application must be modified to only safeguard military installations and for the security of convoy routes.

As and when the army reserve is committed to assisting the police or CRPF, AFSPA must automatically apply for the duration of the operation.

Finally, political leaders must not fire from the shoulders of the army by blaming it for the application of AFSPA, an act of Parliament applied by government. It is an enabling act, without which the army cannot conduct counter-insurgency operations.

The writer, a retired lieutenant general, was GOC-in-C of the Northern Command

express@expressindia.com

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