Did Major Gogoi stop violence or commit war crime in Kashmir?

When Major Leetul Gogoi tied alleged stone pelter, Farooq Ahmed Dar, on the bonnet of his jeep and raced through a hostile stone pelting mob with his Quick Reaction Team (QRT), he created a history of sorts. The facts of the case are too well known to bear repetition. I was loathed to touch the subject because like most I believed that Major Gogol’s action while innovative and successful was questionable, but in good faith, and therefore acceptable, given that no lives were lost. However, persistent criticism in the media forced me to give the issue more than a cursory look, and since enough time has elapsed, one can look at the aspect of “human shield” that has been at the epicentre of all media debate a bit more dispassionately and realistically.

As is to be expected, protagonists from opposing sides hold vehemently divergent views on the issue, depending on which side their loyalties lie or the political advantages that accrue. Nonetheless, there can be little doubt that by his unconventional action he averted a crisis. Gogoi's inaction could have resulted either in the mob torching the polling booth, and in all probability murdering or grievously injuring the polling staff, which was only doing its duty, or, in the killing of protesters by the QRT in their own self-defense. It goes without saying that no sane individual would have wished for either of these outcomes as both scenarios would have resulted in a loss of precious lives. Moreover, the repercussions of that would have further engulfed the Valley in a more rabid cycle of violence. In that sense, the nation, and especially those most impacted, owes the officer a debt of gratitude for his innovative thinking and decisive action, which the Indian government and the Army have done well to recognise.

Yet his actions, as well as the award of a Commendation by the Army Chief, have not gone down well with a cross- section of luminaries, mainly politicians, media personalities, human rights activists and even a sprinkling of senior military veterans. Some have accused the officer of infringement of the Geneva Convention and of disparagement of the rule of law. Others, especially military veterans, have accused him of damaging the Indian Army’s ethos and traditions, apart from breaking applicable rules and regulations. 

While views of such senior veterans are worthy of respect, even if they are contrarian, what is truly distressing is the airing of such views by media personalities, as was done by Mr. Karan Thapar, on the basis of having been an “army brat”. His column “Not the Indian Army I know”, published in a leading newspaper, suggests that the act was immoral and a clear violation of human rights, though readily acceptable in war. He further expresses concern over the actions of the Army Chief in commending the officer and suggests that he has let down the Army.

As I shall subsequently show, Mr. Thapar is wrong on both counts, of immorality and abuse of human rights, but that apart, his passing judgment on the impact the action will have on the Army is a little bit thick, to say the least. While comparisons are odious and best avoided, he would do well to refresh his memory by glancing through Shiv Kunal Verma’s brilliant expose “1962: The War that Wasn’t”, to get a true understanding of the depths to which our Army had plunged thanks to the actions and inactions of the then Chief. The idiom that people who live in glass houses shouldn’t throw stones is worth following.

As is obvious from much of the criticism of the action, most of us instinctively find the use of “human shields” by the military repugnant, as we should. Other than a violation of human rights, use of “human shields” clearly reflects cowardice, an unworthy and wholly unacceptable trait within the military. It is for this very reason that the International Criminal Court treats such actions as war crimes, not just in internal armed conflicts but also international conflicts as well. Thus, in the present instance, given the seriousness of the charge, it was incumbent on our supposedly “responsible“ media to have first clarified whether this case fell within the ambit of what the ICC defines as an act of using “Human Shields”, before going to town and creating a controversy. Sadly, as we shall see our press has seriously failed us on this occasion and needs to be taken to task.

Article 8 Paragraph 2 (b) under the Rome Statute of the International Criminal Court defines it in the context of international armed conflict as “utilizing 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.” In the case of an armed conflict not of an international character, paragraph 2(c) and (e) clarify the issue and state in part that “serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause.” This includes the taking of hostages which is equated to the use of human shields which is prohibited by Additional Protocol II and by customary international law. In addition, deliberately using civilians to shield military operations is contrary to the principle of distinction and violates the obligation to take feasible precautions to separate civilians and military objectives.

In essence, therefore, using civilians as “human shields” is covered in the case of international armed conflicts and armed conflicts not of an international character. However, and this is important, Article 8 Paragraph 2(d) specifically goes on to state that “Paragraph 2 (c) applies to armed conflicts, not of an international character and, thus, does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.” Further clarification of what is seen as an armed conflict not of an international character is provided in Paragraph 2(f) of the Article which states in part that “It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.” Finally, Paragraph 3 of Statute makes clear that “Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.”

From a simple reading of Article 8 of the Rome Statute one would not be wrong in concluding that stone-pelters are clearly not an “armed group” and the fact that “riots, isolated and sporadic acts of violence”, what they were indulging in, cannot by any means be termed as an “armed conflict not of an international character”. Therefore, it stands to reason that the actions of Major Gogoi do not fall under the category of being classified as the use of “Human Shields” under international law. 

Furthermore, when looked at in the context of the Indian Penal Code, the Army Act and various other rules and regulations applicable while providing “Aid to Civil Authorities” it is quite evident that the officer followed the four guiding principles laid down; that of necessity, minimum force, impartiality and good faith. Therefore, for the press to have classified his action as one of using a “human shield” is grossly incorrect and he is owed more than an apology.

One can also question the motivation of the local police to have lodged a FIR against the officer, especially given the fact that security of the polling staff, which included local policemen, was its own responsibility in which it had failed miserably. Moreover, one can also legitimately ask the question of the local police as to whether they had also lodged a FIR against those involved in the stone-pelting? Since law and order is a state subject, and with the Police completely subjugated to the wishes of the political establishment, it is highly unlikely that such a FIR would have been lodged, given the fact that the senior partner in the ruling coalition, the PDP, finds itself between a rock and a very hard place!

Finally, from this controversy, one could draw the deduction that the actions taken by Major Gogoi against stone pelters to avoid casualties are a legitimate tactic that can be refined and emulated. It can and must be used to neutralise the tactics adopted by “armed groups” who use stone pelters to create impediments for Security Forces tasked to “maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State ”. It would certainly obviate the use of “Pellet Guns” which have gained notoriety over the past few years and probably force the militant groups to change tactics as well.