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Tuesday, June 22, 2021

Global treaties, Major Gogoi and the ‘human shield’: How facts stack up

Maj Gogoi says Dar was instigating a mob that was throwing stones to discourage people from voting, and was attacking election officials.

Written by Nirupama Subramanian
May 26, 2017 2:24:29 am
Major Gogoi, Human shield, kashmir, jammu and kashmir, J-K, geneva, Geneva conventions, Farooq Ahmad Dar, srinagar, srinagar lok sabha seat, srinagar bypoll, stone pelting, Kashmir stone pelting, kashmir news, indian express news On April 9, Major Nitin Leetul Gogoi ordered his troops to tie a Kashmiri man to a jeep bonnet as a human shield against stone-throwers. (TV grab)

Did tying Farooq Ahmad Dar to a military vehicle to deter stone-throwers violate the Geneva Conventions? Do the Conventions apply to Jammu & Kashmir? NIRUPAMA SUBRAMANIAN explains a nuanced debate.

On April 9, the day a mere 7% of voters turned out for the bypoll to the Srinagar Lok Sabha seat, Army Major Nitin Leetul Gogoi had a Kashmiri civilian, Farooq Ahmad Dar, tied to the front of a vehicle, which was then driven around several villages, ostensibly to deter and send a message to anti-India protesters throwing stones at security forces. Questions have been raised over whether Major Gogoi’s extraordinary action — which was especially commended by Army Chief Gen Bipin Rawat — violated the Geneva Conventions, which lay down the red lines for wartime actions.

What are the Geneva Conventions?

They are a set of international treaties finalised in 1949, which set down the limits of acceptable conduct in war to ensure that warring parties remain humane to non-combatants such as civilians and medical personnel, as well as to combatants who are no longer participating in hostilities, such as prisoners of war, and wounded or sick soldiers. The Geneva Conventions have a long history that began with the signing of the first treaty in 1867, and alterations and additions were made on several occasions until, 4 years after the end of World War II, they took the shape in which we know them today, and were acceded to by all countries.

How many ‘Conventions’ are there in the Geneva Conventions?

Four. The first deals with the protection of wounded and sick soldiers on land during war; the second deals with the protection of wounded, sick and shipwrecked military personnel at sea during war; the third applies to prisoners of war; the fourth protects civilians, including those in occupied territory. Additionally, there are 3 Protocols: Protocol I of 1977 relates to the Protection of Victims of International Armed Conflicts; Protocol II, also of 1977, deals with the Protection of Victims of Non-International Armed Conflicts; Protocol III of 2005 is about the Adoption of an Additional Distinctive Emblem, of the Red Crystal, in addition to the Red Cross and Red Crescent.

Where does India stand on the Geneva Conventions?

India is a signatory to the 4 Conventions and Protocol III, but has not acceded to Protocols I and II, because it sees them as impinging on its sovereignty. Protocol I applies to situations “in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination”; Protocol II applies to situations “in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations”.

Okay, but if the Geneva Conventions are about international armed conflict, and if India has not signed on to Protocol II that deals with non-international armed conflict, how are they relevant to the Gogoi-Dar incident?

The answer lies in the detail. Preceding each of the 4 Geneva Conventions is a set of Common Articles — and as an accessory, India is bound by them. Common Article 3 is the one that matters here:

“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties [States], each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

“1) Persons taking no active part in the hostilities… shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

“To this end, the following acts… shall remain prohibited…: a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; b) taking of hostages; c) outrages upon personal dignity, in particular humiliating and degrading treatment; d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court…”

But Dar was a “stone-pelter”. How is he eligible for Common Article 3?

Maj Gogoi says Dar was instigating a mob that was throwing stones to discourage people from voting, and was attacking election officials. Dar denies this allegation, so it’s the officer’s word against his. What is undeniable, however, is that Dar actually voted in the election — one of the just 7% of voters who defied the separatists’ diktat.

Anyway, is “armed conflict” the right description for what’s going on in Kashmir?

This is what may be called a “vexed” question. The Conventions do not define the term “armed conflict”, and it is left to the state to determine whether an armed conflict exists or not. The International Committee of the Red Cross lists 7 types of non-international armed conflicts, based on who the conflicting sides are. It also says the 2 main criteria for determining whether a situation is one of armed conflict should be the level of organisation of the parties, and the intensity of the violence.

Sovereign nations baulk at using the term for internal situations precisely because of the consequences attached. India is particular about referring to Kashmir as an “issue”, because using the word “dispute” would amount to a tacit acceptance that Kashmir is disputed territory. It has also never used the expression “armed conflict”, even though on the ground, tens of thousands of police and security forces are engaged in counter-insurgency operations. On Wednesday, Defence Minister Arun Jaitley described the situation in Kashmir as “war-like”.

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