Opening in the Valley

This moment must be used to re-evaluate army’s role, shrink area under AFSPA

Written by H S Panag | Updated: November 28, 2014 12:20 am
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

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First Published on: November 28, 2014 12:19 am
  1. B
    Nov 28, 2014 at 6:35 pm
    The writer of this article Lt Genl. H.S. Panag have quite elaborately explained about the use of AFSPA quite elaborately. Without AFSPA Army cannot effectively function where there is insurgency or infiltration across the borders.. But keeping in view politically motivated insurgency or deliberate Stone throwing by "Paid" or " Hired" mob when it becomes difficult or rather impossible to control by State Police or Central Police Forces and Army is called then there should not be any hue and cry for AFSPA. Area of ten Km beyond LOC or international border should have the provision of AFSPA if there is insurgency or infiltration. In hinterland Govt should suitably empower the security police with modified "soft" version of AFSPA. Most of suggestions elaborated by the writer are worth consideration and implementation. We need total reform of our Police Forcesto make them effective multiplier Force. There should be a strong law to prosecute the perpetrators who incite the locals for their political gain or notoriety. Element such as Hurriyat Conference and those who support and encourage Moists insurgency should be booked under law like POTA.
    1. R
      Nov 28, 2014 at 6:42 am
      "since the lack of evidence in vintage cases like Pathribal or Kunan Poshpora means convictions are rare" Are you in your senses, the w village is still there, the ladies who were abused (raped including an octogenarian) are still there as EVIDENCE if you can see.There is one more point which people do not understand. AFSPA is by law only for army, but all the security agencies work under this law. There are STILL arbitrary detentions, torture and what not carried by security agencies (all of them) and then swept under the carpet.There is a belief in Kashmir that these cases have been a token just in the backdrop of state embly elections.
      1. H
        Nov 28, 2014 at 9:37 am
        Not denying the sad fact of the life/death in the valley but stan have more than equal share of the blame in what happened to Kashmiris in the past by forcing India to use iron hand tactics due to cross border terrorism and funding of insurgents who are in turn misdirected by the terrorists crossing the border. Even then average Kashmiri enjoys far better living conditions than average stanis.Just wait for a couple of years and Modi will transform Kasmir and Kashmiris by the best way he is known for- by increasing growth and multiplying job opportunities for the youth and through modern education.
        1. K
          K M
          Nov 28, 2014 at 7:41 am
          What about the m migration of Hindus from Valley?
          1. M
            Nov 28, 2014 at 3:16 am
            What about 6000 m graves and 50000 deaths in valley! blame everything on stan and wash ur hands with sham elections!
            1. N
              Nov 28, 2014 at 5:48 pm
              @Indian: If you like stan so much, go and live there. Loyalty to an insution doesn't mean keeping quiet and subverting the law when some members of the insution take illegal actions. General Panag was one of the most upright senior officers of his time and an internet patriot like you can't even pretend to match the services he has rendered to the country.
              1. I
                Nov 28, 2014 at 3:31 pm
                Doesn't the indian military test their potential generals for an enduring loyalty?Well this surely amiss.Can't believe we groomed a spineless appeaser to the rank of a general.This is not free speech,This mindless abuse of Indian freedom stan some one like him would have long been disgraced by his peers to a wretched life of a traitor.
                1. I
                  Nov 28, 2014 at 3:37 pm
                  absolutely right sir,it is all stan's fault.Allah will teach you savages a cruel lesson.You are a terrorist country,you are a nation of terrorist goondas in the name of Islam.For insulting your own religion your own God will punish you really badly.Wait,he'll sort out you all out.
                  1. S
                    Nov 28, 2014 at 3:34 pm
                    M Migration of Sikhs ?? You must be kidding. No wonder there was a genocide against the Sikh community in Delhi and a few Sikhs left this country. But to call it a m migration beats hyperbole surely. What happened in the Kashmir valley was on an altogether different scale and to establish an equivalence between them is a travesty. Remember, though Punjab underwent a bloody militancy by Khalistani militants aided and abetted by who else ? stan, even today the Sikhs are the bulwark of the Indian Army as they always had been in the defense of the country and it's people. Terrorists use civilians as a human shield so that any response by the Army would trigger a civilian 'collateral' casualty and the Army can be blamed for the human rights violations which feeds the local resentment against the Army and fuels the insurgency. There are black sheeps and they must be identified and brought to justice but to blame it on the insution of Army is a little unfair, I guess. This is what the Writer who commanded J&K is talking about. And in case you still want to point fingers at the Indian Army, show me a country where terrorism was defeated without civilian casualty.
                    1. M
                      M Shukla
                      Nov 28, 2014 at 9:32 am
                      Expulsion of Pandits from the valley is condemnable and the current government should take concrete steps to repatriate them back. Having said that, I would like to emphasize that using the argument of the Pandits to justify a criminal/illegal act of the security forces is unwarranted and self-defeating. Government of India and Indians (outside Kashmir) should make a sincere effort to stop the alienation of the Kashmiri people. A vast majority of Indians are unaware about the facts and mouth of comments opinions based on propaa put out by hate-mongers. We need to introspect why large sections of Indians (Kashmir, Northeast) feel alienated. Therein may lie the solution to the problems the nation faces.
                      1. T
                        Nov 28, 2014 at 9:11 am
                        What about the m migration of Sikhs from Panjab to UK/USA/CANADA. SOme of them could not even return just for the fear of getting arrested for the false cases they were fabricated in. What about the SIKHS who have completed their jail terms and are still languishing in INDIAN PRISONS? What about Hindu terrorism? Maelgaon Blasts etc. Do the security forces go and kill innocent HIndus ever? This country belongs equally to MINORITIES and people from North -East. If you cannot be HONEST in your conduct and accept your mistakes then do not expect others to do the same. Accept that you have committed injustices against all these MINORITIES, Punish the GUILTY and yes we can move one and live in peace.
                        1. T
                          Nov 28, 2014 at 2:05 pm
                          if your folks are killed/murdered by the state would your life gets transformed if the govt. gets you a job? Or would you like to see the justice and guilty punished?
                          1. S
                            Satish K
                            Nov 30, 2014 at 4:10 pm
                            Yes it is right that army special powers provision to counter terrorists have for long been detasted by the valley people but it is only because of army that terrorism in valley is on the verge of being nearly wiped out.Kashmir requires a human touch by way of good governance, fair elections, development and emotional integration with rest of India.
                            1. V
                              vicky kumar
                              Nov 28, 2014 at 8:16 pm
                              Oye Lodu ! stani , Bhaunkna band kar
                              1. W
                                Nov 28, 2014 at 6:12 pm
                                Probably he just got offered governirship somewhere....generals become generals because they r good at selling their own....ulujah.
                                1. K
                                  Kanu Singh
                                  Nov 28, 2014 at 7:56 am
                                  Writer has had experience of being in chain of command of the Army operating in J&K, albeit at a level where he had no role in combat. Consequently his analysis of AFSPA is nuanced but his sweeping statement about quality of anti-terrorist operations during 1989-1992 shows his lack of experience at ground level.
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