India: Lack of Army Justice Could Provoke New Crimes

The Indian army's rewarding of an officer for actions that included serious human rights violations undermines accountability and the stature of the military, Human Rights Watch said today. On May 22, 2017, Maj. Nitin Leetul Gogoi was commended for evacuating security personnel and election staff who were threatened by a mob in Jammu and Kashmir, in which he used a bystander unlawfully as a "human shield."

Several senior government officials including the attorney general, the army chief, and the defense minister have publicly expressed support for Major Gogoi's actions.

"Soldiers have a difficult task in Kashmir and should be rewarded for saving lives, but not by deliberately placing others at risk and violating their rights," said Meenakshi Ganguly, South Asia director at Human Rights Watch. "Support by senior army and government officials for a lawless action merely fans the flames of future lawlessness by security forces and protesters."

Since July 2016, clashes between state security forces and violent protesters demanding secession and an end to security force abuses have killed over 100 people and injured thousands, including protesters, bystanders, and members of security forces.

Gogoi told the media that on April 9, during an assembly by-election, an anti-government mob in Budgam district surrounded a polling place, threw stones, and threatened to set the building ablaze. Gogoi and his team took 26-year-old Farooq Ahmad Dar into custody, tied him to the hood of their military vehicle, and drove to the polling place to evacuate surrounded security personnel and election staff.

Then for five hours, Gogoi drove around with Dar tied to the jeep, with a sheet of paper stuck to his chest with a warning to "stone-pelters," passing through 17 villages over 28 kilometers, according to news reports. Dar, who had defied a boycott call by militants to cast his vote that morning, said he was still traumatized by the experience. Gogoi defended his actions, claiming that he saved lives by not using live ammunition to disperse the mob.

The Indian army's mistreatment of Dar violates his right to liberty and security and the prohibition against "torture or cruel, inhuman or degrading treatment or punishment," as set out in the International Covenant on Civil and Political Rights. Troops deployed to restore order in Jammu and Kashmir should abide by the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

Public outrage over the army's treatment of Dar prompted the army to announce an inquiry into the incident. However, rewarding Gogoi for his actions while the inquiry is ongoing indicates that genuine accountability is unlikely, Human Rights Watch said. Gogoi was commended for his "presence of mind and initiative to prevent bloodshed."

Various senior officials, in praising Gogoi, discounted or disregarded the unlawful aspects of his actions, Human Rights Watch said. India's army chief, Gen. Bipin Rawat, praised Gogoi for being "innovative."

"People are throwing stones at us, people are throwing petrol bombs at us," General Rawat was quoted in the media as saying. "If my men ask me what do we do, should I say, just wait and die? I will come with a nice coffin with a national flag and I will send your bodies home with honor. Is it what I am supposed to tell them as chief? I have to maintain the morale of my troops who are operating there."

The defense minister, Arun Jaitley said, "How a situation is to be dealt with when you are in a war-like zone...we should allow our Army officers to take a decision. They don't have to consult members of parliament on what they should do under these circumstances."

Information and Broadcasting Minister M. Venkaiah Naidu said Gogoi acted under "exceptional circumstances," and that "he wanted to save the lives."

Support for Gogoi's actions from India's attorney general, Mukul Rohatgi, is especially damaging to the rule of law and to the prospect of ensuring the prosecution of security force personnel for human rights violations, Human Rights Watch said. Rohatgi has a crucial role in ensuring justice because soldiers deployed in Jammu and Kashmir operate under effective immunity provided by the Armed Forces Special Powers Act (AFSPA), a draconian law that has been widely criticized.

At the United Nations Human Rights Council during India's third Universal Periodic Review in May, Rohatgi denied that India's security forces were committing abuses. To dispel concerns over AFSPA, Rohatgi referred to a July 2016 Supreme Court interim order, which said that the law did not provide blanket immunity to security personnel for killings or offenses. However, a month earlier he had filed a petition for the Supreme Court to review its earlier order, contending that "action taken during [military] operations cannot be put to judicial scrutiny." The Supreme Court dismissed the petition.

Jammu and Kashmir have experienced violence since the late 1980s, when armed groups, many based in and supported by Pakistan, started targeting Hindus, politicians and other civilians, and security personnel. Over the next two decades, both the armed groups and security officials have been responsible for numerous serious human rights abuses. Violence ebbed after the September 2001 attacks on the United States, which led to US pressure on Pakistan to end support to the militant groups operating in Jammu and Kashmir.

"Successive Indian governments have resisted international scrutiny of the Kashmir situation by reassuring concerned governments that steps have been taken to curb human rights violations," Ganguly said. "Public praise by senior officials for an act of outrageous cruelty should put to rest any belief that the government is serious about holding security force personnel to account for serious abuses."