Armed Forces Special Power Act: A Draconian Law?

By Dr. U C Jha

The Armed Forces Special Powers Act (AFSPA) has become one of the most controversial laws, both in India and the world. A few NGOs and human rights activists have described it as draconian, alleging that it gives the armed forces unrestricted power to ‘arrest’ without warrant, ‘destroy property’ and ‘shoot to kill’, besides providing them with complete immunity. The loud and continuous clamour against the Act has drawn the attention of various international organizations. The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, has recently called for the repeal of the law, stating: “AFSPA allows the state to override rights. Such a law has no role in a democracy and should be scrapped.”

On the other hand, the armed forces hold that the AFSPA is necessary for tackling the growing menace of militancy and protecting their men from the unnecessary harassment caused by litigation. General V K Singh, the former chief of army staff and now a cabinet minister, has emphasized that the AFSPA is a ‘functional requirement’ of the armed forces.

This is the first book in India not only to attempt a complete analysis of the various provisions of the AFSPA, but also to provide an insight into the legislative efforts of other democracies to meet the challenges of growing terrorism. It delves into cases of human rights violations in which members of the armed forces have been implicated, and at the same time, argues that it is equally important to safeguard the human rights of the members of the armed forces. In order to help find an amicable solution, the author makes a few recommendations for the consideration of the government and armed forces.

• Language: English
• Publisher: VIJ Books (India) Pty Ltd
• Release date: Mar 1, 2015
• ISBN: 9789384464615

Dr. U C Jha

Wing Commander Dr U C Jha is an independent researcher. He has an extensive academic experience in the fields of military law, international humanitarian law and human rights laws. He has been teaching these subjects for more than a decade and is a resource person for the United Service Institution of India, New Delhi. He has served in the Indian Air Force for 24 years. He obtained a Ph D degree in Law and Governance from Jawaharlal Nehru University, where his dissertation was on the Indian Military Justice System. He also holds master's degree in law, life sciences, business administration, and defence and strategic studies; with post-graduate diplomas in environmental laws, intellectual property laws, and international humanitarian law, refugee law and human rights laws.

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Preface

The impetus for my decision to write a book on the Armed Forces (Special Powers) Act, in short AFSPA, was a talk I delivered at Jawaharlal Nehru University (JNU) on AFSPA: Myths and Realities on an invitation from the North-East India Studies Programme, a research centre at the university. Most of those present were from the North-eastern states and Jammu & Kashmir. Some of the questions posed were: Why should the military be deployed for internal security duties? What is the role of the AFSPA as an instrument of governance? Is the power given to the military to ‘shoot to kill’ under the AFSPA not against Article 21 of the Indian Constitution? Why is the Indian Government fighting shy of either accepting or rejecting the Reddy Committee Report on the AFSPA? Is the Indian Army not happy with the recommendations made in the Report? What about fake encounters?

When I spoke about the false allegations of human rights violations against the Indian Army, I was confronted by another volley of questions. How honest is the Indian Army in investigating cases of human rights violations? Why should military personnel not be tried in a civil court for non-military crimes? Was I not playing down the allegations against the armed forces? Some students also shared their experiences of harassment at the hands of military personnel. They wanted a permanent remedy. This book attempts to find the answers to these and other questions raised on the AFSPA. It however, does not go into the question of whether the AFSPA should be to be revoked or invoked in any state by the government because this is decision that only the state and Union governments can take.

The book contains 7 Chapters. Chapter 1 is introductory and discusses the constitutional provisions relating to the armed forces and their deployment in the aid of civil power. It briefly covers the role of the armed and central paramilitary forces; different kinds of conflicts and the laws applicable to these conflicts; the deployment of the armed forces in disturbed areas and the use of force; and the concept of martial law. Chapter 2 contains an analysis of the AFSPA. It also discusses the opinions of judicial committees and the verdicts of the higher judiciary on the legality of the various provisions of the AFSPA. Allegations of torture, enforced disappearance, offences against women, extrajudicial killings and fake encounters made against the armed forces have been discussed in Chapter 3, which also analyses the adequacy of the military legal system in punishing a military accused for these offences. Four prominent cases of alleged human rights violations in Jammu and Kashmir and Manipur have been covered in Chapter 4. These cases highlight the roles played by nongovernmental organizations, human rights activists, the legal fraternity and the public in disturbed areas.

Article 21 of the Constitution of India guarantees the right to life with dignity to everyone living in the country. The members of the armed forces serve under harsh or extreme conditions and their certain fundamental rights have been curtailed. In Chapter 5, the issue of human rights of the members of the military and paramilitary forces has been covered; while arguing the necessity of rights and freedoms to be enjoyed by them being citizens of India.

There is an international trend, particularly after September/11, towards establishing greater executive powers to deploy the armed forces for domestic and political purposes. In Chapter 6 the practice of employment of the armed forces for internal security duties in Australia, Canada, Germany, Japan, the UK, and the USA has been discussed. Chapter 7 concludes the study and makes certain recommendations that require to be implemented by the Government of India and the armed forces.

I am grateful to my wife Ratna and would like to thank Ms Medha and Ms Chandana for editorial assistance. I also thank Vij Books India Pvt. Ltd., New Delhi for their cooperation in bringing out this edition.

February 2015

NOIDA

U C Jha

Every State in the world maintains armed forces. They are one of the most powerful institutions in any country. In some, they are inseparably linked with the existence of the State and even the State’s primary decision-making organ. In a democracy, the armed forces are established by the fundamental laws of the country, embodied its constitution or legal code. Their role is defined by laws enforceable by courts of law and enshrined in the ethos of the armed forces.¹ Most democracies have evolved a set of practices and procedures that ensure that the armed forces play a positive role, are not involved in political activity, and are directed and overseen by other organizations of the government as well as observed closely by institutions such as a free media and other non-international organizations. Citizens of a democracy expect their armed forces to be capable of deterring and defeating threats to their national interest; whether internal or external. They hold members of their armed forces in high esteem for their perceived high standard of professional and personal integrity, which much higher than that of other government officials.²

Indian Constitution and the Armed Forces

The Constitution is the basic law and founding document of both the State and its system of government. A written constitution lays down a body of coherent provisions under which its government shall be established and conducted.³ India has the longest written constitution in the world.⁴ The Indian constitutional philosophy has three strands: protecting and enhancing national unity and integrity; establishing democratic institutions and the spirit of democracy; and fostering a social revolution to better the lot of the masses. ⁵ The powers and responsibilities of the union and the states are demarcated in the Constitution of India. Article 246 of the Constitution distributes legislative powers between the parliament and the state legislative assemblies. ⁶ The Union Parliament has exclusive power to make laws with respect to any of the matters enumerated in List 1 in the Seventh Schedule (Union List). Entry 1 of List 1 provides for the defence of the country, while Entry 2 provides for the naval, military, air forces and other armed forces of the Union. Entry 2A deals with the deployment of any armed force of the Union or any other force subject to the control of the Union in any State in aid of civil power; and powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.⁷ Thus the Central Government is empowered to deploy the Army, Navy, Air Force, Assam Rifles and any other central armed police force in any state in aid of civil power. President is the supreme commander of the defence forces of the Union and his command is to be regulated by law.⁸ Article 74 (1) states that the President has to act on the advice of the Council of Ministers. It is the duty of the Union to protect every state against external aggression and internal disturbance.⁹ However, it must be remembered that in a federal State, internal security becomes the responsibility of the police, and the function of protection against external aggression is performed by the Centre through its armed forces. The armed forces may assist the civil power, but their sole function in a democracy is to fight and win wars.¹⁰ The Indian Armed Forces, which are apolitical, have always functioned in accordance with the Constitution. They have protected the sovereignty of the nation in international armed conflicts and countered violent internal threats and armed rebellion.¹¹

Role of the Armed Forces

The traditional role of the armed forces has been to provide security against external threats, however, they have often been called upon to the aid of civil power. The Regulations for the Army provides that the troops may be called upon to aid civil authorities and perform duties relating to the maintenance of law and order; maintenance of essential services; assistance during natural calamities and industrial accidents; and any other type of duties which may be needed.¹² These duties encompass counterterrorism, detecting and monitoring aerial or maritime transit of illegal drugs; integrating command, control, communications, computer and intelligence assets that are dedicated to interdicting the movement of illegal drugs; supporting drug interdiction and enforcement agencies; and humanitarian aid.¹³

Apart from a border dispute with China which led to a war in 1962, the Indian armed forces have fought wars with Pakistan in 1947, 65, 71 and 99. Exercise Brasstacks in 1987, the nuclear crisis in 1990-91 and Operation Parakram in 2001, were other instances of military mobilization which led to high tension between the Indian and Pakistani military. India is also facing an ongoing proxy war with Pakistan. The international border with Pakistan and in the Northeast is required to be manned on a permanent basis to counter infiltration, drug-trafficking, gun-running and to control the movement of trained terrorists.¹⁴ The armed forces have also supported the civil system in times of civil disorder and unrest, such as riots, communal violence, strikes and rebellions. This is true to other countries as well. For instance the Canadian Army was deployed against a Mohawk uprising known as the Oka Crisis in 1990;¹⁵ the British armed forces were actively involved in Northern Ireland, including the notorious Bloody Sunday incident of 1972; ¹⁶ and the French military was deployed for domestic security in 1996. ¹⁷

The domestic counterterrorism roles of the armed forces have expanded greatly across the world. The domestic deployment of the armed forces of some countries has been discussed in Chapter 6 of this book. The internal disturbances in the South and West Asia have had an impact on India; which shares borders with six countries. South Asia has emerged as the epicentre of global terrorism; and the vast and porous nature of Indian borders continues to be exploited by hostile elements for gun running, illegal immigration, drug-trafficking, circulation of counterfeit currency, money laundering, etc. These activities undermine India’s internal security environment.

The Central Paramilitary and Armed Police Forces

In India, the central paramilitary and armed police forces play a significant role in ensuring border security and maintaining the domestic law and order situation.¹⁸ A paramilitary is a militarized force whose function and organization are similar to those of a professional military, but which is not considered part of a State’s formal armed forces. The Crown Representative’s Police Force was raised in 1939 as a reserve force to aid the former Princely States in maintaining law and order in times of emergency. After independence, it was renamed as the Central Reserve Police Force (CRPF) under the Central Reserve Police Force Act, 1949. The Assam Rifles was initially raised as a police force mainly to guard the plains of Assam from the tribes inhabiting the surrounding hill tracts, but it became an armed force when the Assam Rifles Act, 1941, a Central Act, came into force. This Act has been replaced by the Assam Rifles Act 2006. The Assam Rifles has been assigned certain special functions in the north-eastern region, viz. the security of international borders in certain sectors, counter-insurgency operations and assistance to civil authorities in maintaining law and order in sensitive areas. Three other paramilitary forces were raised after the CRPF and the Assam Rifles. These are the Indo-Tibetan Border Police (ITBP) in 1962, the Border Security Force (BSF) in 1965, and the Central Industrial Security Force (CISF) in 1969. The Railway Protection Force was made an armed force in 1985. Like the CRPF and the Assam Rifles, these too are armed forces of the Union. Their names broadly describe their functions.

Under Section 139 of the BSF Act, 1968 members of the Force exercise powers and discharge duties under Union Acts like the Passport (Entry into India) Act, 1920 and Registration of Foreigners Act, 1939, as also the Criminal Procedure Code, 1973 (Cr PC) when they function within the local limits of specified areas adjoining the borders. The purpose of their being so empowered is to prevent cognizable offences under these Acts and to apprehend offenders. The members of the CRPF when deployed in a state, have certain powers of arrest, search, pursuit of offender, seize, and dispersal of unlawful assembly by use of civil force, etc., under the Cr PC.

When a request is received from a state government for the assistance of armed forces, the Union Government, after reviewing the availability of the state government’s own armed police, tries to meet the requirement by deploying central paramilitary/ armed police forces. The mushrooming of organized transnational crime groups and their nexus with terrorists and the exploitation of the resulting situation by Pakistani Inter-Services Intelligence (ISI) to wage a proxy war against India have also kept the central paramilitary/armed police forces busy.¹⁹

Armed Conflict

Before discussing the role of the armed forces in domestic deployment, it is important to look at how international law defines the term ‘armed conflict’.²⁰ The four Geneva Conventions of 1949²¹ provides no definitive definition of the term, though the term is specifically used in Common Article 2 and Common Article 3 of the Geneva Conventions.²² International law recognizes at least four different types of conflict situations, each of which is governed by a different set of legal norms. These are (i) international armed conflicts; (ii) wars of national liberation; (iii) internal armed conflicts; and (iv) situations of tension and disturbance.²³ The term international armed conflict refers to situations that involve two or more States engaged in armed conflict. In such situations, the central provisions of international humanitarian law (IHL)²⁴ become operative, particularly those contained in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I (AP I) to the Geneva Conventions. In addition, most human rights guarantees remain applicable in such situations, albeit subject to the same types of derogations and limitations permitted to governments in situations of internal tension and disturbance. The term wars of national liberation refers to armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination. Generally, the same provisions of IHL and international human rights laws (IHRL) that apply in the context of international armed conflict apply equally in the context of wars of national liberation.

The term internal armed conflict refers to all armed conflicts that cannot be characterized as either international armed conflicts or wars of national liberation. The 1977 Additional Protocol II (AP II) to the Geneva Conventions of 1949 provides that internal armed conflicts must take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized 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 and to implement the Protocol.²⁵ The term internal tensions and disturbances refers to situations that fall short of armed conflict, but involve the use of force and other repressive measures by a government to maintain or restore public order or public safety. Only IHRL applies in such situations, and the governments may derogate from or limit a restricted set of obligations under IHRL in the context of tensions and disturbances.

Kinds of Internal Armed Conflicts

Countries that have deployed their armed forces in the aid of civil power are generally reluctant to use the term ‘internal or non-international armed conflict’ to describe the situation prevailing in their territory. One of the main reasons for this is that terrorism or militancy is a new form of threat, from a new kind of combatants who are supported by actors across the international border. Several terms such as ‘low intensity operations’, ‘counter-revolutionary war’, ‘low intensity conflict’, ‘military operations other than war’, ‘sub-conventional operations’, ‘asymmetrical war’, ‘fourth generation war’, ‘hybrid war’, ‘small wars’, and ‘war on terror’ have been used to describe internal or non-international armed conflict.

Military analysts in India have been cautious about the use of the term ‘non-international or internal armed conflict’. Only in one book, written by a former Indian military officer, has the term ‘internal armed conflict’ been used. ²⁶ According to one military analyst, low intensity conflict (LIC) has certain essential features. These are: (i) the nature of the conflict is both political and military; (ii) the conflict could be for the achievement of political, social, economic or psychological objectives; (iii) the conflict is often protracted; (iv) the conflict is generally restricted to a specific geographical area; (v) there are constraints on the uses of ‘means and methods of warfare’; and (vi) the intensity of the conflict is below the level of conventional armed conflict. ²⁷

The Indian Army uses the blanket terms sub-conventional operations for all kinds of internal armed conflicts that are above the level of peaceful co-existence amongst states and below the threshold of war. It includes border skirmishes, proxy war, insurgency and terrorism. Sub-conventional operations are characterized by asymmetry of force between the regular and the irregular forces, with restrictive rules of engagement for the former.²⁸

The term proxy war is used when an armed conflict is conducted between nations utilizing non-state actors. At least one of the States must employ a third party to fight on its behalf for a conflict to be termed as a proxy war. The extent and type of support provided by the States to the non-State actors may vary, but financial and logistical support are normally provided. According to Grasser (1983), such conflicts could be also termed as ‘internationalized non-international armed conflicts’, as they are characterized by the intervention of the armed forces of a foreign power.²⁹

‘Insurgency’ is an organized armed struggle by a section of the local population against the State, usually with foreign support.³⁰ The possible causes of an insurgency include ideological, ethnic or linguistic differences; politico-socio-economic reasons and fundamentalism/extremism. Interference by external forces or inept handling of the situation may act as a catalyst to provide impetus to the movement. ‘Counter-insurgency’ is comprehensive civilian and military efforts designed to simultaneously defeat and contain insurgency and address its root causes. It includes all measures taken by the government to combat insurgency, such as operations by the military, economic development, political reforms and perception management aimed at winning the hearts and minds of the people.

‘Terrorism’ is the unlawful use or threatened use of force or violence against people or property to terrorize, coerce or intimidate governments or societies.³¹ It is most often resorted to with the aim of achieving political, religious, or ideological objectives. Terrorism thrives on a fear psychosis and could be employed as a part of an insurrectionist movement or independently. The term ‘counter-terrorism’ covers all offensive measures taken to respond to terrorist acts and could include actions taken by all government agencies, including the security forces of a nation. The measures could be of bringing terrorists to justice or their elimination by direct action, isolation and application of pressure on States that sponsor terrorism.

The term ‘asymmetric warfare’ is used to describe a military situation in which two belligerents of unequal power or capacity of action, take advantage of their strengths and the weaknesses of their adversaries.³² It often involves strategies and tactics outside the bounds of conventional warfare and may include the use of cyber and informational warfare, and/ or chemical, biological, radiological or nuclear technologies.³³

Internal or non-international armed conflicts are, thus, the armed confrontations occurring within the territory of a single State and in which the ‘armed forces’ of no other State are engaged. Even when a foreign State extends its military support to the government of a State within which a non-international armed conflict is taking place, the conflict remains non-international in character. Internal disturbances and tensions (such as riots, isolated and sporadic acts of violence, or other acts of a similar nature) do not amount to a non-international armed conflict.

Law Applicable in Internal Armed Conflict

The international legal instruments governing non-international armed conflict are limited. They includes (i) Common Article 3 of the 1949 Geneva Conventions; (ii) the 1977 Additional Protocol II to the Geneva Conventions; and (iii) the 1998 Rome Statute of the International Criminal Court. The term ‘non-international armed conflict’ also finds mention in the treaties like the 1980 Convention on Certain Conventional Weapons, as amended, and its Protocols; the 1997 Ottawa Convention banning anti-personnel land mines; the 1993 Chemical Weapons Convention; and the 1954 Hague Convention for the Protection of Cultural Property and its 1999 Second Protocol. In addition to treaty law, there is a growing body of customary law applicable in non-international armed conflict. The International Court of Justice has recognized Common Article 3 as customary international law.³⁴ Common Article 3, to which India is a party, and customary laws of war³⁵ govern non-international armed conflict in India.

Common Article 3 provides that parties to armed conflict(s) not of an international character (i.e., internal armed conflicts) must apply certain minimum standards to persons taking no active part in the hostilities. In particular, Common Article 3 establishes an affirmative obligation to collect and care for the wounded and sick, and expressly prohibits four specific categories of acts: (i) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) taking of hostages; (iii) outrages upon personal dignity, in particular humiliating and degrading treatment; and (iv) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

The original text of Common Article 3, before the 1949 Diplomatic Conference stated: In all cases of armed conflict not of an international character which may occur in the territory of one or more of the High Contracting Parties, each of the Parties to the conflict shall be bound to implement the provisions of the present Convention, subject to the adverse Party likewise acting in adherence thereto. The Convention shall be applicable in those circumstances, whatever the legal status of the Parties to the conflict and without prejudice thereto.

The draft article was considered by some countries as being too wide in its application and failing to protect the rights of States adequately in favour of individual rights. ³⁶ It was felt that the Article in this form would cover all forms of insurrections, rebellion and civil disorder, compelling a government to grant belligerent status to insurgents who may be no more than a small group of rebels. It was also feared that criminals might form themselves into organizations in order to claim protection under the Convention, and hamper a government’s legitimate measures of repression. There were other opinions³⁷ which saw the draft article as being less than perfect, but supported its attempt to make humanitarian protection as complete as possible during internal armed conflict. It was also felt that the proposal may prevent a legitimate government from taking measures under its own laws for the repression of acts considered illegal or dangerous to the security of the State. It was, therefore, suggested that a sub-committee be constituted to deal with the definition of armed conflict and suggest a draft that would meet the requirements of the divergent opinions.³⁸

The full text of the Common Article 3 is as follows.

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, 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, 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, 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 are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(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 judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Additional Protocol II (AP II) improves upon the minimum protections afforded by Common Article 3, although its coverage is not as broad in scope as the Geneva Conventions or AP I. The important components of AP II are Part II (provisions concerning humane treatment of persons who do not take a direct part in or who have ceased to take part in hostilities), Part III (provisions concerning the wounded, sick, and shipwrecked, and medical and religious personnel) and Part IV (provisions concerning the civilian population). Under Part II, Article 4(2) supplements the prohibitions contained in Common Article 3 by adding prohibitions against, inter alia, collective punishment, terrorism, slavery, pillage, and threats to carry out the same acts. Part II also provides for detailed special protections for children [Art. 4(3)] and persons whose liberty has been restricted (Art. 5), as well as setting out a fairly rigorous set of standards regarding the prosecution and punishment of criminal offences related to the conflict (Art. 6). In Part IV, the most relevant provisions are Articles 13(2) (prohibiting attacks or violent threats against civilians), 14 (prohibiting starvation of civilians), 15 (protecting works containing dangerous forces) and 17 (prohibiting forced displacements of civilians). However, India is not a party to AP II.³⁹

The principle of distinction is one of the fundamental tenets of the laws of war and applies in the context of non-international as well as international armed conflicts. This principle mandates that the Parties to the conflict shall at all times distinguish between the civilian population and combatants….and accordingly shall direct their operations only against military objects.⁴⁰ Indiscriminate attacks violate the principle of distinction and are prohibited in international and non-international armed conflicts.⁴¹ Indiscriminate attacks are:

(a) those which are not directed at a specific military objective;

(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or

(c) those which employ a method or means of combat the effects of which cannot be limited as required….; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

Besides the obligations under IHL, international human right law (IHRL) establishes a range of fundamental and universal civil, political, economic, social and cultural rights that individuals are entitled to invoke as claims upon the State. IHRL aims to prevent as well as punish breaches of its provisions. However, in contrast to parts of IHL (the grave breaches provisions of the Geneva Conventions), the rules of IHRL generally do not create obligations for non-State actors. On the other hand, unlike IHL, the rules of IHRL apply both in times of peace and war, subject to certain limitations.

The primary IHRL instruments are the UN Charter, and the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, the 1966 International Covenant on Civil and Political Rights (ICCPR), and the Optional Protocol to the ICCPR. In addition to these instruments, there are many other relevant instruments including, the 1926 Slavery Convention, the 1948 Genocide Convention, the 1951 Refugee Convention, the 1966 Convention on the Elimination of all Forms of Racial Discrimination, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the 1984 Convention Against Torture, the 1989 Convention on the Rights of Child, and the 2006 Convention Against Enforced Disappearances. During an internal armed conflict, governments are entitled to restrict or suspend the exercise of many of the rights established under these IHRL instruments. Some of the IHRL rights are not established as absolute entitlements, but rather as rights subject to reasonable restrictions in order to protect, inter alia, public safety. Governments may temporarily suspend certain rights altogether in cases where a treaty contains a separate derogation clause. Fortunately, most derogation clauses provide that certain rights, like the right to life, and the prohibitions against torture, slavery, and retroactive application of penal law cannot be made the subject of derogation.⁴²

The Use of Force in Internal Armed Conflict

The armed forces have to be careful against the use of force while being deployed in internal armed conflict. Proportionality is an obligation under international law as also under the Indian Constitution, domestic laws and military manual. The Regulations for the Army states that before opening fire, the troops must warn the unlawful assembly using the ‘most effective measures’ that the fire will be effective. It also lays down the principle of the use of minimum force and incapacitation rather than killing a violator.⁴³ The use of force in the dispersal of unlawful assemblies is governed by the following principles as explained in the Manual of Military Law.

(a) Necessity: (i) There must be justification for each separate act; (ii) Action should not be taken in one place with the object of creating effect in another place; (iii) There should be no reprisals; and (iv) Action should be preventive and not punitive.

(b) Minimum force: No more force is to be used than is necessary to achieve the immediate object. This refers to the actual amount of force used and not to the number of troops employed.

(c) Impartiality: Officers and other persons must be impartial in communal disturbances or labour strikes. They should not accept gifts or show favours.

(d) Good faith: Officers and other persons must act in good faith. ⁴⁴

The actual use of troops for the dispersal of an unlawful assembly is the most difficult of all military operations in aid of civil power. It is, therefore, imperative that all ranks fully understand its implications. The Manual of Military Law prohibits the use of police methods or being armed with police weapons like lathies and truncheons during such operations. It states that the troops will use their own weapons and military tactics to deal with the situation. While opening fire on an unlawful mob, the following procedure must be followed.

(a) Before firing: If possible, the crowd should be warned that unless the unlawful assembly disperses, fire is to be opened and that it will be effective. The magistrate present should give this warning in the vernacular, if he is able to do so. Attention of the crowd can be attracted by sounding a bugle or whistle. A warning notice in the appropriate vernacular, where possible, should be carried and exposed to the mob at the required moment. The police force present at the spot does not come under the command of the officer commanding the body of troops. Troops should be kept out of sight of the mob, until they are to be actively used.

(b) During firing: Firing will be