AFSPA is so last century
On 21st June 2015 (New York time), CSCHR submitted its comprehensive general and specific comments to the Zero Draft Outcome Document of the UN’s post-2015 Development Agenda (called the Sustainable Development Goals or SDGs). The comments raised some serious concerns about the path of development being visualised by governments and sought to pursued as an agenda till 2030.
The these concerns include:
- Indigenous peoples vital role in SD absent, no reference to UN Declaration on the Rights of Indigenous Peoples (UNDRIP), perhaps the most important UN declaration for collectives and natural & cultural heritage
- “Peoples” left out from the stakeholders in the decision making process: and self determination of peoples narrowly defined against UN standards and past commitments
- Peace, militarisation and armed conflicts, including arms trade as impediments to SDGs (AFSPA and martial laws including) not addressed in the plan
- Neoliberal development aggression and model pursued relentlessly
- Business and private sector as unaccountable “stakeholder” partner with increasingly larger role. No distinctions or categories made regarding this sector.
- Government acts as proxy and negotiates on behalf of corporate sector, the sector itself is absent in the debates and negotiations
- Lack of social protection
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News Media Briefing Paper on follow-up report of the Special Rapporteur (SR) on extrajudicial, summary or arbitrary executions, Christof Heyns: INDIA
News Media Briefing Paper for Press Conference
18 June 2015
The Civil Society Coalition on Human Rights in Manipur and the UN (CSCHR) presents a summary of the salient features of the follow-up report of the Special Rapporteur (SR) on extrajudicial, summary or arbitrary executions, Christof Heyns, which he will be presenting to the Human Rights Council 29th session in Geneva later today. The report analyses the steps taken by India to implement the recommendations contained in the mission to India report made following his visit to the country from 19 to 30 March 2012. The follow-up report was prepared on the basis of all available information and was completed on 30 April 2015. The Special Rapporteur requested information from the Government and from other actors on the steps that had been taken to implement the recommendations made. While acknowledging that some steps have been taken since his visit to address human rights violations and in support of victims of terrorist-related activities, the independent expert urges the Government of India to implement the recommendations contained in the visit report in so far as this has not been done. He says that impunity remains a serious challenge, as does the implementation of existing guidelines and directives issued by the courts and national human rights institution.
After that official visit in 2012, during which he also visited the North Eastern region upon the invitation of CSCHR, the SR had reported extrajudicial killings by security officers, the State Police, Armed Forces and armed groups. He also reported killings related to communal violence and practice affecting women rights to life as a serious problem in some areas of the country. In addition, he noted a number of challenges at various stages of the accountability process leading to impunity in many instances. Significantly, the SR raised the question of the AFSPA 1958 strongly and reported to the UN that “the powers granted under AFSPA are in reality broader than that allowable under a state of emergency as the right to life may effectively be suspended under the Act and the safeguards applicable in a state of emergency are absent. Moreover, the widespread deployment of the military creates an environment in which the exception becomes the rule, and the use of lethal force is seen as the primary response to conflict. This situation is also difficult to reconcile in the long term with India’s insistence that it is not engaged in an internal armed conflict. The Special Rapporteur is therefore of the opinion that retaining a law such as AFSPA runs counter to the principles of democracy and human rights. Its repeal will bring domestic law more in line with international standards, and send a strong message that the Government is committed to respect the right to life of all people in the country.”
The SR had made a number of recommendations regarding the need to reform laws, and policies to ensure the accountability of State actors for violations of the right to life, including the repeal of AFSPA; the establishment of a commission of inquiry into extrajudicial executions in India, which should also serve a transitional justice role; the need to increase the protection of civilians, especially vulnerable groups, through legal reform as well as information and awareness-raising campaigns and increased sensitization and orientation programmes; and the need to strengthen State institutions, including the judiciary and the National Human Rights Commission (NHRC).
The SR mentions in his follow-up report that the Supreme Court of India appointed a commission on 4 January 2013 to inquire into six alleged cases of extrajudicial executions in Manipur, to report on the functioning of the State Police and the Security Forces in the state of Manipur and to make recommendations for keeping the police and security forces within the legal bounds without compromising the fight against insurgencies. The Commission also addressed the larger question on the role of the police and the security forces in Manipur. However, much remains to be done to address and prevent extrajudicial killings and to ensure accountability. Often, guidelines provided by the courts or the NHRC and recommendations by commissions of inquiry remain on paper with little or no implementation on the ground. Impunity continues to prevail with various legislative provisions and practices that hinder full and proper accountability. The result is that vulnerable persons, including women, marginalized communities, human rights defenders, victims and witnesses, continue to remain at risk of violence, often resulting in death.
The present report mentions that no independent and accountable mechanism to monitor the registration of First Information Reports (FIRs) exists. The SR also regrets that India has not followed the recommendation that it repeal or at least radically amend AFSPA to ensure that legislation regarding the use of force is brought in line with international human rights law and to remove all legal barriers for the criminal prosecution of members of the armed forces.
The SR’s report mentions that the Government has failed to implement his recommendation that autopsies be carried out in conformity with international standards and that the families of victims be given full and easy access to autopsy reports, as well as death certificates and other relevant documentation to allow them to proceed with the closure of the cases. The SR also regrets that India has not ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol, nor has and Punishment and its Optional Protocol; and the International Convention for the Protection of All Persons from Enforced Disappearance been ratified. He also reports that India has not implemented his recommendations for the government to consider the ratification of (a) the two Optional Protocols to the International Covenant on Civil and Political Rights; (b) the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women; (c) the Rome Statute of the International Criminal Court; and (d) the two Protocols additional to the Geneva Conventions.
The SR has expressed concern that non-State actors resorting to the use of deadly violence have threatened the lives and security of civilians and the security of India and strongly condemns the callous nature of these acts. The State has a duty to protect its people from such acts of violence, but should do so in accordance with international human rights standards. The SR recommended that the State ensure that command and/or superior responsibility be applied for violations by security officials of the right to life, and that the establishment and effective functioning of the Independent Police Complaints Authorities should be made a priority in all states. The SR regrets that, according to the information received, that responsibility remains absent. In his country visit report, the SR recommended that promotions and other types of awards for security officers suspected to have been involved in unlawful killings should not be granted until the facts are fully clarified that “no out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt”.
In this regard, the SR welcomes the order of the Supreme Court and calls upon the Government to ensure its full and proper implementation. He also notes that police officers who have been suspended upon their arrest in cases of suspected extrajudicial killings and charged with extrajudicial killings have been reinstated in senior positions in the police force by the State. The SR is concerned that this will encourage impunity and may impede the criminal trials against the reinstated officers. The SR also recommended that the Government put in place a mechanism to regularly review and monitor the status of implementation of the directives of the Supreme Court and the NHRC guidelines on arrest, encounter killings, and custodial violence and death. He notes that, so far, no mechanism has been put in place to undertake the review and monitoring as recommended.
The SR had recommended that the State ensure, in addition to the payment of compensation to the victims or their families, that criminal investigations, prosecutions and trials be launched and conducted in a swift, effective and impartial manner in all cases of unlawful killings, irrespective of the status of the perpetrator. The practice of paying compensation to victims or their families has often replaced prosecution. While compensation is crucial in redressing violations, it should never replace the investigation and prosecution of alleged perpetrators. The investigations and prosecutions must be launched in a swift, effective and impartial manner. But this recommendation has not been implemented.
In his country visit report, the SR expressed concern over the increased targeting of human rights defenders, by both State and non-State actors. Journalists and human rights defenders often fall victim to the violence between armed groups and the Government. The SR recommended that the State establish an effective witness and victim protection programme. No programme has yet been created by the State.
In order to strengthen the NHRC, the SR recommended that the State amend section 19 of the Protection of Human Rights Act to provide the Commission with express authorization to investigate members of the armed forces for alleged human rights violations. No steps have been taken by the State to amend section 19.
In his country visit report, the SR recommended that the independence and the functioning of State human rights commissions be reviewed to ensure compliance with the Principles relating to the status of national institutions (Paris Principles). The SR is not aware of any such review under way in the State. There is a need for fully independent bodies to be established to ensure that investigations are properly conducted and perpetrators are held to account.
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The Civil Society Coalition on Human Rights in Manipur and the UN (CSCHR), a coalition of twenty-three (23) indigenous peoples’ human rights organizations of Manipur in India’s North East region, is extremely concerned with the deepening political instability in Manipur and particularly with the situation of open armed conflict on the eastern flank of Manipur, in Chandel District bordering with Myanmar’s Sagaing Division. It has been widely reported that after the 4th June lethal apparently pre-planned ambush of a convoy of the 6th Dogra Regiment of the Indian Army near Paraolon Village by unidentified cadres of an armed opposition group or organisation that left at least 18 army personnel dead and many more injured, General Dalbir Singh Suhag, chief of the Army and top commanding generals of the Eastern Command gathered in Imphal the next day to initiate activities to “sanitise the area completely”.
CSCHR is a coalition that upholds the principles and statutes of humanitarian and human rights law that are established worldwide, to which members of the United Nations Organisation (UNO) including India are state parties. The coalition does not believe in armed conflict and militaristic solutions aimed at objective of peace and development as a final solution to intractable and sensitive political situations. In this context, and in solidarity with many civil society organisations that have voiced their disapproval in strongest terms, CSCHR does not support or condone in any way, the escalations of armed violence and confrontations between government and non-state armed forces in Manipur and the North East Region of India.
We strongly disapprove of the de facto “state of siege” that exists in Chandel district today, which is beyond the “Rule of Law” and the gaze of the public through the media. We grieve for those who have lost precious lives unnecessarily, as no line of duty in this modern world should involve the grave risk of such violence and untimely death.
Considering that the State of Manipur, for several decades, has been continuously declared a “disturbed area”, with the imposition of the Armed Forces [Special Powers] Act of 1958 (AFSPA) to manage the law and order situation, this abrupt development augurs ill for the State and central governments’ views and policies pursued to maintain peace and tranquillity in Manipur. It is far from clear who is in control of the situation in the localities around the ambush site in Chandel District, with the 3 Corps GOC Lt. Gen. Bipin Rawat stating that a “people friendly” operation is being carried out to flush out the non-state opposition groups from Manipur completely. Surprisingly, the State government and the district administration seem to have no visible or vocal role in this sanitisation exercise, except for a tacit acquiescence.
With more dead bodies, some suspected to be civilians, being still found from the area, the perceptible lack of involvement or coordination between the central armed and paramilitary forces and the Chandel District administration is underlined by the Deputy Commissioner of Chandel having reportedly to seek “permission” in writing from the army for the families of missing persons to carry out search and identification procedures.
It is perplexing how the Chief Minister of Manipur, who is the chairman of the Unified Command structure of Manipur under the jurisdiction of AFSPA, does not consider he is accountable for the activities of the central armed and paramilitary forces in Chandel District. It is unacceptable that neither he nor the Deputy Chief Minister in charge of home affairs in the State have visited the district immediately after the incident to take stock of the situation, even though top generals of India have flown in from New Delhi! If it is also true, as widely reported that the Indian army unit, which suffered tragic fatalities and losses, had been violating Standard Operating Procedure (SOP), the Unified Command under the chairmanship of the CM of Manipur seems to have abdicated its role and functions totally.
There seems to be dual commands stand in this ongoing situation with the State and central governments both announcing having launched simultaneous inquiries. This non-transparent and dual situation, with the central authorities calling the shots, does not comply at all with a “people friendly” operation. If the statement by Lt. Gen. Bipin Rawat is to have any credence whatsoever, the Chandel District administration, the Manipur police including women police officers must lead the search operations with the cooperation of central security forces. The media must be allowed into the area unhindered as there are no more fire fights or active hostilities as reported.
It is incumbent on the state to ensure that humanitarian laws, especially Common Article 3 of the Geneva Conventions as the minimum standard, and human rights are respected in all aspects of the present operation. Humanitarian law is particularly critical because of the involvement of the Indian Army undertaking war-like operations in civilian, especially tribal areas of Manipur. Utmost due diligence is expected from the high command under which the central military and paramilitary forces are presently undertaking this operation. In this context, and in cognizance of the Supreme Court of India’s rulings on such matters as counterinsurgency operations, CSCHR views with contempt that civil administration officials do not form a central part of the current operations being conducted in the indigenous tribal peoples populated Chandel, as ordered by the Ministry of Home Affairs.
We concur with the Hon’ble Supreme Court’s views that “modern Constitutionalism posits that no wielder of power should be allowed to claim the right to perpetrate state’s violence against any one, much less its own citizens, unchecked by law, and notions of innate human dignity of every individual;” and that the state in a democracy, is not justified in resorting to illegal means to deal with such movements, in violation of the Constitution, statutory laws and the ‘Rule of Law’, as this would lead to ever increasing levels of escalating violence, in particular in the face of genuine discontent as reported by official committees of the government, reminding governments, law makers, civil and military officials and citizens.
The State Government and District administration, having declared a curfew in Chandel, must clarify the exact geographical extent of the search operation. The Director General Police of Manipur must update the public and media daily on the activities and developments in the area of the operation. Civilian populations displaced and affected in any way by the search operation must have immediate access to humanitarian and legal aid, psychosocial support and adequate shelter including food, sanitation and safe drinking water though a procedure of direct assessment conducted jointly by competent officers and representatives of the District administration and non-government organisations.
The unforgettable tragedy that befell Oinam in Senapati District of Manipur in 1987, when the civilian population was put under a state of violent siege, terrorised, tortured, killed and subjected to the most inhuman abuses must never be repeated. The State Government has a crucial responsibility to ensure that the civilian population of Chandel District is accorded the fullest protection under the law; and it is unacceptable that the home minister Gaikhangam merely spouts the usual term “unfortunate” and has not described what the “maximum efforts” that the State government is making.
We welcome the news reported that the Indian army is being divested of counter-insurgency duties in the North East Region of India. With such a national policy level trend within the government of India, as reported, the AFSPA should now be seriously considered for repeal by parliament, as recommended repeatedly at the international and national levels. The governments of Manipur and India must leave no stone unturned to see that a peaceful and confidence building situation is in place for a just resolution to this tragic and prolonged armed conflict.
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