Kashmir human shield: Major Gogoi’s actions were clearly criminal
An Indian citizen is picked up and tied in front of a jeep as a human shield.
He was not an armed threat. The pictures of the April 9 Budgam incident are bizarre. Receiving an SOS from the Border Police and J-K Police to save them from stone-pelting, Major Leetul Gogoi strapped an alleged stone-pelter, Farooq Ahmed Dar, to a jeep as a human shield. Ten days later, chief of staff General Bipin Rawat ordered a commendation for Gogoi for special and individual acts of gallantry.
For what? For the cowardice of hiding behind a helpless man! The Indian Army thinks it is an act of heroism. BJP MLA and actor Paresh Rawal screamed in support: “Instead of tying stone-pelters on the Army jeep, tie Arundhati Roy.”
Why Roy? What kind of madness is this, especially because India’s ultimate aim is to convince Kashmiris that their watan is better off with the Indian Army.
Violating global norms
The Rome statute (2000) defines using human shields as an international crime (Article 8 (2) (b) (xxiii). It is a Nazi practice widely used in WW-II during the massacres in Poland and Belgium.
Irrespective of what American war historians say, it was not just the Taliban who used human shields, but the very phrase "collateral damage" is writ into American warfare.
On our International Court of Justice mission to Israel, Israel’s ministry of defence could hardly deny that collateral damage took place - especially during the second Intifada (2000-2005). Human shields were used by Israel on hundreds of occasions. So much so, in 2002 the Israel’s Supreme Court deprecated the practice in 2002 and banned it in 2005.
Do we accept the Clausewitz theory of total war? Is that what the Indian Army is doing in Kashmir? The use of air, naval and devastating weapons demands a response from international law. The concept of a just war has become meaningless. It never stopped carpet-bombing, napalm nuclear bombs or America’s wars. The Hague Conference of 1907 identified the need to protect civilians.
Even if the Geneva Convention may not strictly apply, the Protocol of 1949 insists on protection of civilians. International humanitarian law (IHL) steps in for the four principles: distinction, military necessity, unnecessary suffering and proportionality to situations of armed conflict. IHL presents concessions and it is arguable that clever arguments could twist "necessity" and “proportionality” to justify any use or abuse. Yet IHL has been interpreted rigorously in favour of civilians.
Principles
I formulate the IHL principles: Principle I prohibits use of civilians in a situation of armed internal disturbance. Principle II says the action in question must not be contrary to the law of the land. The action was clearly illegal. Dar was abducted, placed under restraint, imprisoned and subjected to humiliation and punishment without authority of law, on the skeletal basis that he had committed (or was about to commit) a crime. He was not detained after an FIR or under detention laws.
Principle III applies proportionality and necessity, for which a weak case is made under Section 81 of the Indian Penal Code permitting harm if in good faith, to prevent harm to person or property created in 1837.
But “preventive” action under the IPC cannot excuse blatant illegality. The IPC insists that the threat sought to be prevented should be really imminent and inevitable. Then there is the issue of proportionality.
How far can you go in good faith? In my view, Major Gogoi’s actions were clearly criminal. He had imprisoned Dar, tied him to a jeep and placed him in a dangerous situation, masquerading this as an act of bravery.
Angst against Roy
Principle IV places the onus on the Army to show necessity and proportionality on the basis of objective facts which are objectively examined and determined.
Principle V is obviously the objective determination must include civilian presence. Let us have a Peoples’ Commission as an X-ray. The National Human Rights Commission is quiet.
Principle VI implies the presence of a neutral due process observer in military court martials. Instead, India's Chief to Staff commended Gogoi’s actions for bravery though in violation of law.
The angst against Arundhati Roy is inexplicably vulgar and a penal incitement to violence. Roy reminds us of India’s blunders in the Kashmir valley. Tying Roy to a jeep hardly presents a debate other than at the Mad Hatter’s dinner in which the blind weep they cannot see.
Is this how India defends its case on Kashmir? Tie people to jeeps to win the war. The Valley faces its worst cumulative crisis for decades. What are we fighting for? Look inwards to ask where we are going wrong instead of pretending that we are winning surgical strikes.
An atmosphere is developed on the discourse of Kashmir, that if you criticise the Army or jawans your criticism is antinational, seditious and treason. India’s argument against Pakistan in the Kulbhushan Jadhav case at the ICJ is precisely that Pakistan’s martial law trials lack credibility.