lawyers in India

Terrorism And Human Rights: Role Of The Security Personnel And The Police

Written by: Saurabh Dhawan - Currently pursuing LLM IInd year (Human Rights) from NLSIU, Bangalore. Areas of interest: International Criminal Law, International human rights law and Humanitarian law.
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  • Today, both the world at large and India in particular, face daunting challenges in the task of protecting human rights of common people regardless of the country they belong to. No country in world can be said to be free from the deadly scourge of terrorism. With the grim spectre of terrorism continuing to target innocent and defenceless people, the task has been ever challenging for the institutions around the world. A peaceful society rest on the pillars of justice and individual accountability.

    The concern for justice has been the paramount objective of this topic while dealing with vexed issue of terrorism. These are turbulent times in many parts of world. It has become apparent that in many ways, the world has become complicated, to say the least. The destinies and the interests of the nations and their citizens have become interlinked to such an extent that, invariably, the action of the one has adversely affected the other, leading to strife and suffering. In all such tragic situations, it has been mostly the common people, men, women and children whose rights have been violated. This is the greatest challenge, which all of us are faced with.

    In their constant endeavour for better future, nations and their citizens should always respect the human rights of the people who could be affected in the process. But experience has shown that more often it is not so. The result is that innocent people all over the world, irrespective of their colour, religion and creed, have suffered the most. It is important to understand the nature of terrorism and the way or the manner in which terrorism is treated by the world and the countries deploying the counter-terrorist measures belong to which school of thought.

    The technology of inflicting large-scale violence is becoming easier to obtain, and - per quotient of lethality - less and less expensive.

    This in turn yields three lemmas:
    a. The target country has to be equipped to counter the entire spectrum of violence: to take the current examples from the United States - from aircraft being used as missiles to anthrax;

    b. It is almost impossible in an open society to block a determined lot from acquiring the technology they want by blocking the technology itself - the only practical way is to be a leap ahead of the technology the terrorist acquires;

    c. All this is certain to cost the target country a great deal - but that is the price one has to pay to survive in the world of today; to cavil at it is no better than an elderly couple that grudges the locks they have to put on doors in a city marred by crimes against the elderly.

    The Two Schools of Thought
    There are two schools of thoughts according to the strategies adopted by the countries in countering terrorism or on which counter terrorist strategies are based. The British school considers terrorism as a crime. How this school considers it as a crime is the strategy it employs such as there is more of police work along with intelligence services. These school patrons the protection of the individual rights i.e terrorist are handled through standard criminal justice system. This school has developed a nexus with the international organizations such as the Interpol and various other institutions to handle the situations of terrorism with co-ordination.On the other hand we have the second school of thought which considers terrorism as a War which is also known as a American school. Why is it called as an American school is evident from the notorious activity of America in handling terrorism i.e. by waging war. This school Treats terrorism as an existential threat and believes in using military assets and operations, Individual liberties are frequently threatened. Terrorist are either shot or imprisoned without judicial recourse, Based upon looking entire terrorist group(s) as a enemy rather than looking at each terrorist as criminal and bringing to the books. Example of this school can be Israel, Russia where as for British school it is Spain, India etc.

    Therefore, in my opinion a British School is preferred. The reason is that given a strong legal system, it is always better to de-legitimize the political agenda of the terrorists. At end of the day, the Madrid Bombers and the 7/7 bombers were pure and simple mass murderers. Why allow them to retain the cover of either religious or political reasons? Secondly, as evidence has confirmed, following the American school means international opprobrium. While the short term benefits of the American School are clear – you have a direct way of handling terrorists, you shoot them and they be damned, no silly rules of evidence collection, etc. – the long term impact on society, the international standing and respect, the diminution of the respect for law and order and finally the strong element of hypocrisy charges all combine to make this a less suitable option.

    Terrorism as threat to human rights and development

    India has had its share of terrorist attacks and is learning to live with it. Today, not only Mumbai and Delhi are high on list of terrorist but hi-tech hubs like Bangalore and Hyderabad have already begun to beep on the terrorist radar. If Mumbai was shaken by the serial blasts in the local trains which left hundreds dead and injured and Delhi was in shock at the bombing that took place in crowded shopping area, the attacks in India's emerging high tech hubs like Bangalore and Hyderabad in previous years came as an eye opener.

    Today what is new is the act that the terrorist has become more sophisticated and knows how to attack in places where it would hurt the most. Take for instance, the Mumbai blast orchestrating the seven blasts in a public transportation system is not the job of the amateur. The terrorist knows that India is globally emerging as an economic superpower in IT, BPO and even conventional businesses. Over the last couple of year, intelligence agencies have continually sent warning signals of militant groups planning attacks in Bangalore and the city going on high alert. Bangalore, where all the global giants like Intel, IBM, Motorola, HP have development offices, has more than 1,500 It and BPO firms. Several Indian defense, space and scientific research institutions are also based in Bangalore.

    There are three reasons for terror activities in high –tech centers:
    (1) Terrorist feel they are sending signals to international investors that India may not be the safest place to be.
    (2) A significant number of US firms have operations here and when the militant tendency is to get back at the US, this is the one way of getting back.
    (3) Security is not as tight as it could be.

    The terrorist is looking at the other means of attack i.e. through technology. There are many companies here that are working on mission critical applications for US firms. To hit back at the US government, all you need is to cripple the operations through technology and data theft.

    We have in the last 15 odd years, seen 5 different kinds of terrorisms emerging in India. Of course the most significant one is the one we see on account of cross border insurgency in Jammu and Kashmir. The second is the Punjab which we saw in the 1980's and was fortunate to have been able to overcome. The third we saw a severe problem in the south from the LTTE. Problems in the north east is continuing and the latest to join these categories is the kind of terrorism spread along the various parts of central India the Maoist insurgency from Andhra Pradesh.

    In the four conventional wars that we have fought including the latest being Kargil war the total number of people who lost their lives i.e. security personnel is 9857, In last 15 years the number of civilians who have lost their lives to terrorism is 62,221, a figure almost 6 to 7 times more than those who have lost their lives in conventional wars. The security personnel killed in various terrorist actions is again over 9000. The total amount of money spent and this doesn't include the amount that we spent on our security forces, army and so on, on merely relief and rehabilitation, on special Para military forces that we deploy for anti-insurgency the figure now crosses Rs45,000 cores.

    More than 45,000 corers is what is deprived to our villages in terms of electricity and power, in terms of health care, in terms of education and in term of roads. The increase in budget on agencies involved in fighting terrorism since early 80's is 2600 percent. Strong anti terrorist measures and methods which are employed as part of counter terrorism, the end result is what is normally a phrase used in areas affected by terrorism, a sense of alienation. When security forces act, the kind of propaganda which builds up results in alienation of people. despite that a sense of alienation can built in, because when terrorist strike them, people don't like investing , where jehadis are moving with guns, even tradition income avenues suffer, sense of security suffers.

    Role of security personnel in protection of human right

    Section 2(d) defines as the right relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the international covenants and enforceable by the courts in India. Since there has been an increase in number of cases of terrorist activities, communal riots, activities of naxalism the role of security forces have become paramount and necessary. These forces although play an important role in protecting the borders their requirement is even more necessary in controlling civil unrest, enhancing the security at the important places and also control and maintain law and order whenever required.

    The United Nations General Assembly adopted a resolution on December 17, 1979 that all security personnel shall respect and protect human dignity and uphold the human rights of all persons as well it applies to the armed forces, they have to abide by the international conventions against torture and other cruel punishments, principles of international cooperation in the detention, arrest, extraditions and punishment against humanity.

    Implementation of security legislations led to a gross violation of human rights in several states. Widespread abuses of Armed Forces Special Power Act in the North East states drew a lot of criticism for ignoring impunity issues and recommending use of the Unlawful Activity Prevention Act. At least 400 people remained in jails under the repealed POTA and several continued to face special trials of proceedings of which failed to meet fair trial standards . The project deems to cover various issues relating to the violation of the Human rights by the security forces whether armed or unarmed. In the Guise of security cover violations are taking place.

    The painful issue of how to protect human rights in times of terrorism and insurgency confronted the National Human Rights Commission within days of its establishment with the tragic death of civilians in Bijbehara, in the state of Jammu and Kashmir, in the course of a firing by the Para - military force. The commission took suo - muto cognizance of the incident and after examining the reports, for which it had asked, concluded that excessive force had been used. There has been a strict vigilance by the commission on such kinds of violations. To cover more on the violations by the security forces and the kinds of complaints the NHRC has been receiving and also the measures taken by the commissions on such complaints we will make a brief study of the NHRC reports.

    Role of police

    On 13 December 2001, a white ambassador with at least five armed men entered the Parliament complex. In the ensuing gun-battle, all the five attackers and nine others, including eight security personnel, were killed. The police investigation was concluded in a fortnight and four persons – one Mohammad Afzal Guru, his cousin Shaukat Guru, Shaukat's wife Afsan Guru (alias Navjot Sandhu) and SAR Geelani, a Delhi University Arabic lecturer were arrested; while three others (including usual suspects Ghazi Baba and Masood Azhar) were declared the masterminds of the attack. The designated POTA court convicted all four, sentencing all but Afsan Guru to death . Geelani and Afsan were later acquitted by the High Court and their acquittal was confirmed by the Supreme Court. Shaukat's sentence was commuted by the Supreme Court while Afzal's death sentence was upheld.

    Arundhati Roy's introduction to this collection lists 13 disturbing questions that remain unanswered over five years and three court judgements after the incident . These include why the close circuit television (CCTV) recordings of the incident were never released; what was the role of the Special Task Force (STF, part of the J&K Police) in this incident given that Afzal was a surrendered militant and admitted to working for the STF; what was the 'incontrovertible evidence' that led the Government to amass soldiers on the border with Pakistan and why all we know about the five dead attackers is the (then) Home Minister L K Advani's statement that they looked like Pakistanis? Cumulatively, she argues and alleges that the unanswered questions suggest complicity, collusion and involvement of either the Government or some intelligence agency in the attack rather than mere incompetence in the subsequent investigation.

    Roy calls for an impartial and independent inquiry into the Parliament Attack to reveal the truth about the incident. A similar call is voiced in a number of the other essays too. Given the otherwise ubiquity of committees and commissions set up (at last count three had investigated the Godhra incident, and at least five investigated various aspects of the 1984 Massacre of Sikhs in Delhi), it is surprising, to say the least, that none has yet been appointed to investigate the Parliament Attack. In fact uncharacteristically, not even the lapse of security, which allowed the white ambassador right inside the Parliament complex, has been investigated by an independent body.

    The Special Cell of the Delhi Police was curiously preferred by the Home Ministry to investigate this case over the CBI which would be the otherwise first choice agency . That and the absence of a virtually mandatory 'Commission of Inquiry', if nothing else, make it tougher to reject the 'collusion and complicity' argument as a mere leftist 'conspiracy theory'. In this collective national disinterest (and arguably selective amnesia), is played by the fact that a scapegoat is available. Not only has the judgement of the Supreme Court upholding Mohammad Afzal Guru's guilt and death sentence become the Holy Grail for all nationalists and self-declared protectors of the nation from terrorism; but the microscopic 'truth' that the Court has offered is deemed to be sufficient for most citizens. With the Supreme Court itself rejecting Afzal's 'confessional' statement as unreliable and also acquitting Geelani, there is no support to the police's sequence of events leading up to the incident.

    The 'mastermind' theory too is put to rest as the Supreme Court has not found Afzal to be a member of any terrorist organisation. . Afzal's arrest was suspicious. Though the police claim that Geelani led them to Afzal, according to court records the police flashed an alert for Afzal and Shaukat on 15 December at 5:45 a.m. – a full four hours before Geelani was arrested in Delhi. Afzal was eventually arrested at 11 a.m. the same morning in Srinagar, but his arrest and seizure memos are signed by Geelani's younger brother – in Delhi. The laptop allegedly recovered from him was not sealed for a month and accessed even after sealing by the police – enough time to add whatever they wanted. The evidence about Afzal purchasing the SIM card is unconvincing and the policeman who claimed to have recorded the phone instrument (IMEI) number stated in Court could not say how he knew the number.

    The call records produced in Court were dubious at best – they even showed that two calls were made at one particular time from two different instruments using the same SIM card. Cloned SIM or doctored records? Your guess is as good as mine. The identification of Afzal by various shopkeepers was not done by the usual test-identification parade but he was in fact taken to the shops by the police.

    Non-recognition of poor legal representation of Afzal was not the only failing of the Courts. Upon his own acquittal, SAR Geelani remarked, as quoted by Haskar, "The acquittal of an innocent man is not an occasion for celebration, but a cause for reflection". Such reflection, as Haksar's essay shows, reveals this: though the Delhi High Court found no evidence whatsoever against Geelani and Afsan Guru and further observed that the police had not followed the procedures of arrest and even forged recovery documents and lied on oath, it still did not pass any strictures against the police officers, nor did it initiate or suggest any reprimands or other action against them. The failure to hold the police accountable was further compounded by the Supreme Court's unfortunate reference to 'needle of suspicion' while upholding Geelani's acquittal.

    Since 2005, Chhattisgarh, especially the Bastar-Dantewada forest area, has witnessed escalation of violence between the Maoists and the Salwa Judum . Civilians were routinely targeted on both sides, resulting in at least 300 deaths. Also, 45,000 adivasis displaced from their homes have been forced to live in special camps putting them at increased risk of violence. The Chhattisgarh state government claimed that it enacted the CSPSA (Chhattisgarh Special Public Security Act) to take action against the Maoists. Human rights organizations in India have demanded the repeal of CSPSA as it contains several provisions similar to those in POTA.

    These include:
    • Violation of the principle of certainty in criminal law (including vague definition of membership and support to terrorist or unlawful organizations);
    • Absence of pre-trial safeguards (including insufficient safeguards on arrest, the risk of torture, obstacles to confidential communications with counsel);
    • Virtual impossibility of obtaining bail as there is no provision for remedy of appeal or review of detention;
    • Threats to freedom of expression and
    • Threats to freedom of association.

    Mentioned above are few instances where the police has been either negligent in conducting investigation or are colluding with the criminals. As declared by The United Nations General Assembly adopted a resolution on December 17, 1979 that all police officers shall respect and protect human dignity and uphold the human rights of all persons as well it applies to the armed forces, they have to abide by the international conventions against torture and other cruel punishments, principles of international cooperation in the detention, arrest, extraditions and punishment against humanity, which is paramount in the functioning of the police is not abide by.

    Since time immemorial police have not been able leash it's atrocities in spite of the commendable job done by them. Time and again National Human Rights Commission has been show causing the officials of the police as to why an action should not be taken against them.

    It is of utmost importance to understand various human rights of the individuals, the situations in which violations are likely if sufficient care is not exercised and the likely allegations or charges against personnel of Armed Forces as well the police. Laid down below catalogically are certain rights enshrined under Article 19 of the Constitution and how these rights are violated which further violate Article 14 of the Constitution.

    Human Rights Situations of Violation Likely Allegations on Personnel

    Human Rights Situations of Violation Likely Allegations on Personnel
    1. All human beings are born equal and free in dignity and rights. No one shall be subject to arbitrary arrest, detention. Forces cannot arrest unless ordered by the magistrate acting under Armed Forces Special Power act. During aid to civil authorities while combating insurgents, culprit may have to be apprehended:
    (a) During cordon and search operations for suspected terrorist.
    (b) While dealing with mob indulging in looting arson etc.
    (c) Persons threatening peace in an area or inciting the public against Armed Forces.
    (g) Illegal Arrest
    (h) Arrest of innocent persons.
    2. No one shall be subject to prolonged and unlawful detention. The apprehended person should be handed over to the police and shall not be confined for the purpose of interrogation. The Police and Armed forces may be tempted to keep a person in confinement in following situations:
    (a) For interrogation
    (b) To prevent a dangerous insurgent from escaping.
    (c) Detention of person for identification.
    (a) Wrongful confinement
    (b) Illegal treatment
    (c) High handedness
    (d) Rape, Molestation, etc.
    3. Everyone has the right to life, liberty and security of persons. Armed Forces may inadvertently cause death/injury to other persons in following situations:
    (a) During crossfire between Armed Forces and insurgents in a crowded area.
    (b) In self defence
    (c) Due to any accidental firing
    (d) On being ordered to fire at mob for maintaining law and order.
    (e) On check post
    (f) During cordon and search operations.
    (a) Murder
    (b) Causing death/injury due to negligence.
    (c) Death in custody
    (d) Torture
    (e) Inhuman and degrading behaviour
    4. Everyone has right to well being to himself and his family. On humanitarian grounds medical help and care has to be provided to sick and wounded of even an enemy as laid down in the Geneva Convention. Medical assistance is likely to be denied by the Armed forces under:
    (a) Due to shortage of medicines and doctors.
    (b) Priority of looking after one’s owns sick and wounded rather than others.
    (a) Inhuman behaviour
    (b) Cruelty to fellow human beings
    (c) Death due to carelessness and negligence of Armed forces.
    5. Everyone has the right to freedom of movement and residence within the borders of each state. 5. Everyone has the right to freedom of movement and residence within the borders of each state.
    Movement restrictions curfew may be imposed without proper authority due to:
    (a) To check movement of terrorist/insurgents during aid to civil authorities.
    (a) interference with right to work and earn living
    (b) Harassment


    Police transformations: lessons from Ireland

    Northern Ireland provides a striking illustration of the intimate link between the dynamic of institutional change in a post- conflict society and the organic connection of policing transformation to that process. Training is the key vehicle to deliver institutional transformation to policing and as well as training to inculcate a culture of human rights into police organizational praxis.

    In police organizations the traditional emphasis has been on training rather than education. In many western societies training has tended to focus on the formal equipping of police officers with the necessary knowledge of the law and development of practical skills to do their job.

    Police have had training for the human rights yet it didn't begin to train them in human rights. The organization has assumed the training in this area was done. It reinforced that the human rights are a criminal's charter . A discursive exploration of the policing problems and training question is obviously warranted.

    However, the response of many societies has been to equate police effectiveness with modernization and professionalization and to pose the question solely in these terms. Although this standard police response partly engages with the human rights challenges, it cannot fully meet it. The danger inherent in a narrow managerialist discourse that frames both policing problems and solutions within a compartmentalized and highly skewed technical framework need to be monitored particularly carefully in a transitional context. Northern Ireland has been able to identify the areas in which more focus has to layed on the important lessons that have not been fully taken on board and that might impede not only progress towards acceptable policing arrangements but also progress in the broader peace building process.

    (a) location of training
    The physical location in which training takes place is important. A police force that values community partnership will be better able to build these partnerships if its members are themselves embedded in communities.

    (b) Training and organizational culture
    Revaluation of the traditional policing role is necessary

    (c) Training, Education and Development strategy

    (d) Human right training

    Humanitarian aspects during the phase of defence

    The aspect of defence which deploys lethal armaments like in the offensive phase is quite different in character. Here one is deployed more often then not on one's own home territory, defending it. However, the armament used is still lethal and may harm the civil population around forces own deployment.

    Therefore to counter these problems various measures should be adopted such as:
    1. Choice of defence positions
    Location at the time of defence should be as far away from the civil population and objects as possible.

    2. Weapons
    While in the conduct of defence, the choice of weapons to be used should be such that which creates minimum collateral damage to the general environment of the defence location.

    3. Removal of civilians
    The removal of civilians from the vicinity of defended objects shall take place preferably to locations they know and which present no danger to them.
    This is one of the aspect which should be taken into consideration while tackling the problem of violation of human rights as protection of life of the innocent civilians is of a great importance apart from the code of conduct that the personnel has to keep in mind while handling such situations.
    The above mentioned recommendations should be employed by the police during the phase of encounter with the terrorist or any other criminal, they have to pay heed to the protection if the civilian population.

    Other forces also have such code of conduct but only solution that can be reached to counter the problem of violation of human rights is by proper implementation of the proper conduct. The above mentioned violations are not only crimes listed in the Indian penal Code but are also violate the Constitution of India. As our Constitution adheres to the principles of Universal Declaration of Human Rights, Violation of our own Constitution is in a way non adherence with the international conventions and declarations.

    The enactments such as POTA and TADA or Armed forces Special Powers Act are draconian laws and would not solve the purpose of a secured society, there has to be the proper implementation of the Constitutional guarantees to it's citizens, special status to the security forces has always led to the misuse of their powers as we have witnessed from the reports of National Human Rights Commission and various other sources. In the name of security so many innocent people are rounded up, taking the example of Punjab Mass burial case as to what happened when TADA law was implemented, mass killing of innocent people, security forces having special powers to rape, molest, torture, murder, and what happened at the end when the TADA was repealed, the conviction rate was just 1.8%. With these examples we can understand that security issues cannot be improved by giving special powers to security personals.

    Human rights violation as a catalyst for terrorist activities

    A history of colonial subjugation, slow economic development, and years of dictatorial rule has left many states in domestic turmoil, both politically and economically. The rapid rate of globalization over the past several decades has exacerbated, if not highlighted many of these domestic inadequacies and inequalities.

    (a) Political rights and terrorism

    Citizens who are able to protest within their regime are less likely to resort to terrorism. The more open the political system, the less likely individuals are to go outside system to participate in political process. Conversely a citizen in a state with limited political rights is less likely to have an opportunity to work within the system to effect change.

    (b) Security rights of the individuals

    The second category of human rights is security rights when security rights are violated an incentive is created for the people to seek extra- systemic means of political expression. When state uses violence against its citizens, opposition groups often feel justified in responding in kind. Red Brigade in Italy for example argued that their use of violence was justified because the state had resorted to violence.

    (c) Subsistence rights of the individual

    Many a times the states violate the basic human needs most often refers to inability of the government to provide for citizenry and suggest not proactive abuse, but rather neglect. This neglect can be intentional in many cases (Zimbabwe, for example) or simply a result of the state's inability to provide basic human needs, regardless citizens suffer. Combining the violation of political rights, security rights and suboptimal levels of basic human needs, the conditions are ripe for terrorism. We need a powerful security regime as far as terrorist is concerned and finally we need a very strong and powerful legal regime.

    (d) Invoking section 166 Indian penal Code

    We has very easily overlooked at the pertinence of this section which has got more value than making legislations which are draconian in nature. First invoke this penal section against the public servants (security personnel) who perform there duty arbitrarily only then there can be a stop to this vicious circle of terrorism and again draconian laws then again terrorism. There is an urgent need to put a break somewhere. As the great legend Mahatma Gandhi rightly said An eye for an eye will make the whole world blind . The judiciary has to play an active role in first bringing down the atrocities of the security personal with the quintessence character of this section of the Indian Penal Code.

    Beyond such practical steps, there must be a will to ensure their effectiveness. We have to convince not just the formal institutions of government and the police, but also the public that true security comes from human rights protection. Civilian police and the communities they are policing need to understand human rights not just as ideals but as practical tools that are designed to provide security. In concluding, one remaining issue is the relationship between accountability and effectiveness. We need to forge the link between human rights compliance because of obligation (to international law) and their utility in ensuring safer, secure societies.

    But perhaps we also need to question whether the relationship between accountability and effectiveness is one of interaction, or rather one of parallel. Accountability is not just about keeping police powers in check. It also ensures that the police obtain and maintain legitimacy for those powers in the eyes of the community.

    In the context of countering terrorism, it is not just that some police practices are clearly violating human rights and undermining the rule of law. It is also that these practices are patently counter-productive. At a time when successful policing relied upon good, reliable intelligence, police should be building strong relationships with the communities in which they operate. They cannot do this if they simultaneously alienate and isolate those communities through police practice.

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