Sunday, June 17, 2018


UN Report on Human Rights in India: Reality

The 14 June 2018 report of the Office of the UN High Commissioner for Human Rights (OHCHR) has given rise to fears about the situation of human rights in India, particularly in the state of J&K. The report undermines the United Nations-led consensus on zero tolerance against terrorism and fails to see the actions taken by India in this context. Some of the issues highlighted in the report and the factual position are as follows.

Para 44: Section 7 of the AFSPA gives security forces virtual immunity against prosecution for any human rights violation; further in the nearly 28 years that the law has been in force, not a single prosecution of armed forces personnel has been granted by the Central Government. Sanctions have been accorded in a few cases.

The law under which military personnel may be prosecuted in India is more stringent than those in a large number of democracies.

Para 45: Section 4 of the AFSPA  allows army personnel to use lethal force not only in self-defence but also against any person contravening laws or orders “prohibiting the assembly of five or more persons”, and this contravenes several international standards on the use of force and related principles of proportionality and necessity.

Such powers have been granted to the armed forces in Australia, Belgium, the UK, the USA and elsewhere. In India, the instructions issued to military commanders are explicit and comprehensive. They provide that in case commanders decide to open fire, they must: (a) give warning in the local language that the fire will be effective; (b) attract attention before firing by bugle or other means; (c) control fire by issuing personal orders on both the ‘number of rounds’ to be fired and the ‘object to be aimed’ at; (d) cease firing immediately once the object has been attained; (e) take immediate steps to secure the wounded; and (f) ensure a high standard of discipline. These rules of engagement have approval of the Supreme Court. 
Para 47: In 2005, the government had appointed a committee to review the AFSPA. The committee reported that the AFSPA had become “a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness”.

The findings of the committee have been selectively quoted in the UN report, which failed to mention other parts of the report:“...though an overwhelming majority of the citizen groups and individuals pleaded for the repeal of the Act, they were firmly of the view at the same time that the Army should remain to fight the insurgents.”

Para 47: A committee established by the Central Government in 2012 to review laws against sexual violence, recommended that the AFSPA be amended so that cases of sexual violence by members of the armed forces could be brought under the purview of ordinary criminal law.

Though the recommendation of the committee was outside its mandate, the 2013 amendment to the India Penal Code provides that if a member of the armed forces commits rape in a deployed area, he shall be awarded a minimum punishment of RI for 10 years, which may be extended to imprisonment for life, and shall also be liable to fine.

Para 52: There are slight variations in the justice systems governing each of the central police forces (CPF) and that “to some degree the processes are less defined, providing for greater ambiguity in the administration of justice within these security forces”.

The legal system of the CPF is well defined and contained in Acts and Rules. There is no ambiguity in the system.

Para 54: The Indian authorities have insisted that allegations of human rights violations by the security forces are appropriately handled by the military justice system. However, according to the Special Rapporteur on Independence of Judges and Lawyers, military courts do not meet international fair trial standards and thus are not suitable to try offences committed against civilians.
This is a general comment applicable to military legal systems the world over and not exclusively to the Indian military justice system.

Para 55: In July 2017, the Armed Forces Tribunal suspended the life sentences and granted bail to five Indian Army personnel who had been convicted by a court-martial for extrajudicial killings. According to report, the Tribunal’s decision has not been made public.

The Armed Forces Tribunal is a judicial body, functioning independently under the supervision of the Supreme Court. The action of the Tribunal is within the power granted to it under Section 15 of the Act.

Para 72: The report mentions the Army Chief’s warning to protesters that “tough action” would be taken against anyone intervening in security operations.

However, it does not mention the social and developmental activities undertaken by the armed forces in J&K in the last few decades.

There is no doubt that the non-state armed groups (NSAGs) in J&K have committed a range of crimes, including kidnappings, killing of civilians and sexual violence. There is ample evidence to show that these NSAGs have been trained and armed by Pakistan. However, the UN report fails to take cognizance of this. Para 29 of the report states that since it was not possible to directly verify allegations, the findings were arrived at using a “reasonable grounds” standard of proof. One does not expect a report by a UN body to rely on allegations that are not supported by evidence. 

Wg Cdr U C Jha (Retd)


Saturday, June 16, 2018

Sexual exploitation and abuse by UN peacekeeping personnel

Annie Rubin of the International Peace Institute writes here on the state of play regarding sexual exploitation and abuse by members of UN peacekeeping contingents. She notes:
But because the UN has no criminal jurisdiction over perpetrators, the national governments of individual member states still have the responsibility to uphold the zero-tolerance policy within their own contingents. Among TCCs, there is significant discrepancy in how different national legislatures handle cases of misconduct. To improve both accountability and transparency of the TCCs’ legal policy, the UN Department of Peacekeeping Operations made public a list of legal frameworks for deployed contingents, as well as a list of countries that have not submitted frameworks.
Here is what the UN's 2015 conduct and discipline accountability policy says:
11.6 The conduct and discipline of members of military contingents and Military Staff Officers is governed by the Memorandum of Understanding (MOU) concluded between the Troop Contributing Country and the United Nations for the deployment of military contingents and Military Staff Officers. Through this MOU, Member States agree that, while their military personnel remain subject to the exclusive jurisdiction of respective Troop Contributing Countries, they will comply with United Nations standards of conduct and such other documents adopted by the United Nations that regulate the conduct of this category of personnel, including the exemplification provided in Annex H of this MOU.
*   *   * 
12.6 Acts of misconduct may also constitute crimes under the laws of the host or contributing States. In such instances, in addition to taking any disciplinary action against personnel it employs, the United Nations may further request that relevant Member States prosecute United Nations staff members and experts on mission for the commission of such crimes. The responsibility for criminal accountability rests with Member States in ensuring that any misconduct which constitutes a crime shall be investigated and possibly prosecuted with the necessary penalties. Members of military contingents and Military Staff Officers remain under the exclusive jurisdiction of their
contributing States, for the purpose of criminal prosecutions.
The Editor's own view is that more radical measures than those that have been proposed thus far are required. The starting point that "the UN has no criminal jurisdiction over perpetrators" is the problem, and experience has taught that although progress can be made by peripheral reforms such as training and reporting, these have not gotten to the heart of the matter.

Friday, June 15, 2018

Armed forces and Kashmir

The following is excerpted, less footnotes, from the Office of the UN High Commissioner on Human Rights's June 14, 2018 Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan.
54. The Indian authorities have insisted that any allegations of human rights violations by security forces are appropriately handled by the military justice system. However, according to the Special Rapporteur on Independence of Judges and Lawyers, military courts do not meet international fair trial standards and thus are not suitable to try offences committed against civilians.
55. In July 2017, the Armed Forces Tribunal suspended the life sentences and granted bail to five Indian Army personnel who had been convicted by an army court-martial on 12 November 2014 for the extrajudicial killing of three civilians in Macchil in Baramulla district in 2010. The killings, which were perpetrated on the night of 29 April 2010, had triggered violent protests in Kashmir in the summer of 2010 and resulted in the deaths of over 100 protesters. The Armed Forces Tribunal’s decision to suspend the life sentences has not been made public. Neither the state nor central authorities have challenged the Armed Forces Tribunal’s order. 
56. In April 2013, the Supreme Court granted security forces the option to try their own personnel, and the Border Security Force exercised this option in a few instances to the benefit of its personnel. Thus, in June 2017, media reports indicated that the General Security Forces Court had acquitted two members of the Border Security Force accused of the extrajudicial execution of 16-year old Zahid Farooq Sheikh on 5 February 2010. Human rights groups which have been in touch with his families stated they were unaware of the decisions of the military courts or the status of their cases. This had been one of the few instances where the state police conducted a swift investigation and filed a case against the Border Security Force personnel. Additional work may be needed to verify this case.

Bemba Gombo reaction

Alex Whiting has an excellent Just Security post about the ICC Appeals Chamber's unfortunate decision in Bemba Gombo. Excerpt:
Put together, the two parts of the majority’s decision – its approach to the confirmation hearing and to the appellate process – upend the procedures at the ICC and turn the Court on its head. Properly conceived, the procedures at the ICC guarantee that the trial is the main event, as it should be. Only at trial is the evidence fully presented and challenged. The confirmation hearing and the appeal are bookends before and after the trial that ensure that there is sufficient evidence to require the defendant to submit to trial, that the trial was fairly conducted, and that the findings of the Trial Chamber were reasonable. The majority’s decision, however, elevates the before and after while diminishing the trial itself. The confirmation process now assumes greater importance than before: The Pre-Trial judges must now rule on all of the underlying acts in a mass atrocity case and the Trial Chamber cannot deviate from these findings even if adding evidence would not prejudice the accused and would help establish the truth. On the other end, the Appeals Chamber is freer to re-assess the facts from trial, reducing the standing of the trial judgment. This double shift away from the trial is inefficient and less likely to result in correct and just outcomes. It moves tasks that the trial judges are in the best position to perform to judges in the Pre-Trial and Appeals Chambers who are institutionally ill-suited to carry them out. It is not a good outcome for the Court.

A case for enacting the Gillibrand bill

Sen. Kirsten Gillibrand
California Superior Court Judge (and retired colonel) E. (Mark) Johnson argues in Task & Purpose that Congress should enact Sen. Kirsten Gillibrand's Military Justice Improvement Act:
DoD can win the war on sexual violence, too. But first, prosecutions must be brought, and that will happen with fairness and consistency only if we rely on unbiased experts outside the command. That’s why Congress should pass Senator Gilli[br]and’s legislation.