Indian Army normalised war crime by awarding officer who used a Kashmiri as human shield

By honouring Major Nitin Leetul Gogoi, the state has rewarded brazen violation of law.

 |  Angiography  |  13-minute read |   23-05-2017
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Farooq Ahmad Dar, the 26-year-old shawl weaver from Kashmir’s Budgam who was tied to an Army jeep by an officer of the 53 Rashtriya Rifles battalion, Major Nitin Leetul Gogoi, says he’s “shattered” that the Chief of Army Staff, General Bipin Rawat, has decided to honour the officer with a “commendation card” even before the inquiry is over. A front-page story in The Telegraph has the headline: "Human shield asks a question".

The image of Dar tied to the Army jeep, used as a human shield to deter stone-pelters and paraded across 10-12 villages, has epitomised the Kashmir quagmire since it surfaced, tweeted out by a visibly upset National Conference president and former Jammu and Kashmir chief minister, Omar Abdullah. Now, with the errant officer under inquiry lauded by none other than the topmost serving Army man in the country, it’s time to ask a few hard questions.

A. Is Indian Army normalising a war crime?

The use of human shields and putting civilians in harm’s way to safeguard military vehicles or installations are prohibited under the Geneva Conventions of 1949, to which India is a signatory. According to the Article 19 of the First Geneva Convention, “The responsible authorities shall ensure that [fixed establishments and mobile medical units] are, as far as possible, situated in such a manner that attacks against military objectives cannot imperil their safety.”

According to the Article 23, first paragraph, of the Third Geneva Convention, "No prisoner of war may at any time be sent to, or detained in areas where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations." 

According to the Article 28 of the Fourth Geneva Convention, “The presence of a protected person may not be used to render certain points or areas immune from military operations.” Of course, the Fourth Geneva Convention applies to situations of foreign occupation, that is the nationality of the occupying forces and that of the occupied people are not the same. This isn't the case in Jammu and Kashmir, (though for Kashmiris calling for "azaadi", there lies the conundrum), but there's a broad agreement among international legal experts dealing with conflict, law and human rights that there should be proscription on using noncombatants to shield military personnel or installations in this manner. And this is today a customary norm of international law that applies to all armed conflict situations, including the domestic and international ones.

According to Article 51(7) of the 1977 Additional Protocol I, "The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations." 

According to the Rome International Criminal Court statute adopted in 1998, as per Article 8(2)(b)(xxiii), “utilising the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” constitutes a war crime in international armed conflicts. Though India is neither a party, nor a signatory to the 1998 ICC statute, its moral imperative nevertheless is something that we should not ignore, and certainly not condone an act that amounts to flagrant violation of the same by the armed personnel of the Indian military. 

kashmir_pti_052317054516.jpgFarooq Ahmad Dar comprised the meager 7 per cent of the population who rested their faith in Indian democracy that day of by-polls. Photo: PTI

According to the New Delhi draft rules of 1956, as per Article 13, “Parties to the conflict are prohibited from placing or keeping members of the civilian population subject to their authority in or near military objectives, with the idea of inducing the enemy to refrain from attacking those objectives.”

Even according to the Indian Constitution, the use of human shields is a violation of the central fundamental right, the Right to Life and Personal Liberty, under Article 21, which has been described as “the procedural magna carta of life and liberty”.

However, despite clear international laws against the use of human shields in armed conflicts, the Chief of Army Staff, General Bipin Rawat, has sent a “commendation card” for Major Nitin Leetul Gogoi, the officer who tied Farooq Ahmad Dar to the Army jeep.

That COAS didn’t even wait for the internal military inquiry to be over and went ahead to laud Major Gogoi for "his sustained distinguished services till now in counter-insurgency operations in Jammu and Kashmir", raises important questions.

Is India normalising the use of human shields in conflict zones? Will there be no consequences for violating the law, even the evidence of which, for once, is out in the open, for everyone to see? Forget consequences, will the brazen violation of law, internationally accepted rules and military protocol be now awarded with proverbial pat on the back from the highest serving Army officer in the country, the COAS himself?

As Aakar Patel, executive director of Amnesty International India puts it, if the Army isn’t seen to be acting against rule breaking, and instead comes across as encouraging of officers who take law in their hands, it would bode ill for the country.

Even some of the retired Army officers such as Lt Gen HS Panag have expressed disbelief, and indeed deep regret, at COAS lauding the errant officer.

B. Is this part of India’s new Kashmir policy under General Bipin Rawat and PM Narendra Modi?

His contentious appointment as COAS, superseding two immediate superiors including Lieutenant General Praveen Bakshi, notwithstanding, General Bipin Rawat’s tenure as the new head of India’s armed forces, has been marked with rising bellicosity among the “nationalist” camp.

At the very outset General Rawat had announced that stone-pelters would be considered as "jihadi aides" and would be subject to harshest military action.

General Rawat had reportedly said: “Those who obstruct our operations during encounters are aren’t supportive will be treated as over-ground workers of terrorists.”

bipin-r_052317055042.jpgForget consequences, will the brazen violation of law be now awarded with proverbial pat on the back from the highest serving Army officer in the country, the COAS himself? Photo: PTI

This conflation of the ordinary stone-pelter, mostly frustrated and disgruntled Kashmiri youth, men, women, and even children, living in the world’s most militarised zone, with the hardened and weaponsied terrorist is telling, because it automatically bundles together every Kashmiri, particularly the Kashmiri Muslim, as a potential terrorist, and therefore a worthy recipient of Indian Army’s nationalist bullets, or Indian paramilitary’s pellet guns.

The only thing that distinguishes a government-backed military from a rogue terrorist organisation is adhering to international laws, treaties, strict military protocols and deeply respecting civilian lives. The moment that distinction blurs, it’s hard to tell the right from the wrong.

While India’s Kashmir policy has long been mired in too many complexities and tainted by military overreach and ruthless abuse of power, what has changed under the leadership of General Bipin Rawat, Prime Minister Narendra Modi, RSS’ Kashmir policy architect Ram Madhav and the National Security Adviser Ajit Doval, is the brazenness with which laws are being violated, and the rewards those violations, those acts of war crimes, are fetching from the topmost elected/appointed members in charge of India’s national security.

Does this mean more such violations of international humanitarian laws and constitutional rights will go unchecked, unabashedly paraded before a majoritarian audience for cheap political point-scoring? If the last three years of the Narendra Modi government are any indication, we can only expect more flagrant crimes by the very protectors of the Indian citizen going unpunished by those in charge of our crumbling institutions.

It's also laughable and extremely worrying that the current Indian dispensation, while crying hoarse over binding international laws at the International Court of Justice at The Hague, wanting to take Pakistan to task over Kulbhushan Jadhav, exposing its "sham" military court trial in which the retired Indian naval officer was charged with espionage and sentenced to death, would not, however, bat an eyelid while flouting similar global human rights treaties when it comes to its own Army and its own government.

That the two Indian citizens - Jadhav in Pakistani captivity, and Dar in the world's densest militarised zone, living under permanent occupation - would be treated so differently, both at the altar of the currently fashionable ideological distortion in the name of nationalism, is telling. Also, the hypocrisy and the ridiculousness of India's moral high ground shatters into a million pieces when the picture of Farooq Ahmad Dar is juxtaposed against Kulbhushan Jadhav's. Why is the latter now the symbol of India's international crusade for human rights, while the former is a victim of its blatant violation of the same?  

C. War crime as Twitter vengeance from BJP parliamentarians, open season for TV journalists

Not only is the use of human shield by a serving Army officer being officially lauded despite two ongoing inquiries – one by the military itself, another by J&K Police, referring to the purported war crime has become a manner of Twitter vengeance and vitriol from rightwing trolls and also some of the BJP parliamentarians. BJP MP from Lok Sabha and Bollywood actor Paresh Rawal suggesting on Twitter that author Arundhati Roy should be tied to a jeep, is not just a crass expression of extreme misogyny, it’s also about repeating, and indeed reiterating a new distinction between the bodies of those who toe the nationalist line, and those who question it.

Arundhati Roy, who has questioned India’s militarised “occupation” of Kashmir and taken on successive governments in the centre for their failing the ordinary Kashmiri men, women and children, thwarting their political aspirations and right to self-determination, is not alone is being subject to such rank misogyny fused with incitement to violence. Strong female voices, including that of Barkha Dutt, Sagarika Ghose and Rana Ayyub too have faced troll venom, in which they were offered up as human shields to atone for their “treachery”; aka, questioning the official narrative, refusing to believe that a heavy-handed militaristic approach would make life any better for Kashmiris themselves.

But Paresh Rawal’s careless tweet, which he later defended as an “expose” of Arundhati Roy’s stance on Kashmir, carries much more weight. If an elected legislator to India’s highest lawmaking body is so reckless with his public utterances, what are we to expect from millions of anonymous trolls?

And when TV editors, such as Bhupendra Chaubey and Arnab Goswami, make an open season of the tweet, debating whether Rawal was “right” to say that, or deflecting the issue of the prohibited act of using human shields itself by harping on Roy’s “pseudo” stance and her hobnobbing with Kashmiri separatists, we see journalism touching the lowest of depths to earn some petty TRPs.

D. The body of the Kashmiri Muslim and the questioner

In the barrage of congratulatory tweets that followed once the news of Major Gogoi being lauded by COAS Rawat broke sometime last evening, a tweet lurked in the corners of Twitter’s ravenous pits. It was this:

Not retweeted too often, it nevertheless pointed towards a clear division between the bodies of Indian citizens – the Hindu aggressor, whether belonging to the military or not, and the Muslim/Dalit/questioning female recipient of just, almost holy aggression, all in the name of the nation.

The body of the Kashmiri Muslim like Farooq Ahmad Dar, who defied the call from separatists to boycott the Budgam by-poll and actually voted, comprising the meager 7 per cent of the population who rested their faith in Indian democracy that day, that body, though mercifully still living and breathing, is nevertheless crying out for justice. But the cruel irony is: that body, that traumatised, scarred body and soul, it has by now stopped expecting any justice from both the Indian government and the Indian Army.

As Kashmiri writer Mirza Waheed says, "What kind of a moral order are we looking at when the world's largest democracy celebrates a war crime by a member of its armed forces? When the state rewards a possible war criminal and sections of media decide to normalise the unconscionable conduct, it's a point of no return." 

Similarly, the bodies of intrepid writers such as Arundhati Roy, who had briefly even braved jail time, and against whom sedition charge looms large for her wondrous, searing essays, they too have been tagged, marked, singled out for violence - whether discursive, as in on Twitter, during TV “debates”, or as in the cases of MM Kalburgi, Narendra Dhabolkar, the violence of the murderous mobs, organised mercenaries of targeted communal crimes.

The linking of Farooq Ahmad Dar with Arundhati Roy – one, the symbol of Kashmiris' persecution by a militraised entity that has now consolidated its position as an occupying force by openly flaunting a war crime, and the other, the relentless questioner, challenger to this muscular status quo, the “literary terrorist” as it were, the woman robbing the malignant male militarism of its faux legitimacy by ritually and regularly exposing its fault lines, showing it for the sham it is, has been – is not in the least a coincidence.

It was meant to be. Dar and Roy are together in these crossroads, the outsiders to the increasingly toxic, unconscionable and unconstitutional collective Indian imagination.

[Editor's note: This piece was updated on June 6, 2017.]

Also read: Military veteran says Army was wrong to use human shield. Is he also anti-national?


Angshukanta Chakraborty Angshukanta Chakraborty @angshukanta

Former assistant editor, DailyO

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