Even Stanley Cooper wouldn’t have imagined the scenario when he inked the poem, ‘Our Topsy-Turvy World’ where everything loses track, where peace can never reign, so long as the aberrations are norm. It can be candidly stated that the world we live in today’s era, is indeed topsy-turvy, where defying logic, a war criminal is being awarded. Major Leetul Gogoi of the Indian Army tied a Kashmiri man, Farooq Dar, to the bonnet of a jeep as a ‘human shield’ and drove him around across 17 villages over 28 kilometers. All he could say in his justification was “I decided at a fraction of a moment.” Every human soul would shudder in horror at the carte blanche of this argument that it was done for the greater good and that the spur of the moment and the need of the situation justified this. If these kinds of precedents are justified, it can be said that peace will be the ultimate loser and chaos will be the new reign. The most brutal epic of this sad tale is that it’s not even the question that how this brutal act is to be punished, but rather how is a war criminal going to be honored. The Indian Chief Minister of Punjab, Captain Amarinder Singh, has gone to the extent of recommending Major Gogoi for the coveted Distinguished Services’ Medal. As per him, it was a necessary and an extra-ordinary step for the prevention of violence and the consequent loss of lives, indeed a hypothesis in foresight. But shedding light on the other side of the coin would lead even a layman to candidly conclude that it was an outright blackmail, and an attempt to defuse the moral and legal proportion of the counter-argument.
The use of human shield is not a new concept and traces its origin back in history but such inhumane war crimes came to be legally denigrated once the Geneva Convention came into existence. Geneva Convention 1949, a treaty that sketches the limits for wartime actions, in its spirit clearly and unambiguously classifies the use of human shields as a “war crime”— no ifs or buts. Even Israel use of Palestinian children as human shields has been condemned by the forum of United Nations time and again. In 2005, Israel’s High Court of Justice banned the practice of ‘human shields’. India, on the other side, has not condemned the act of using human shields but has applauded the ‘extra-ordinary action’ of Major Gogoi to be heroic. Now the question of fact is that though India is a signatory to the four conventions and Protocol III of the Geneva Convention 1949, but it is not a signatory to the Protocol II that deals with the Protection of Victims of a Non-International Armed Conflict. So how can Major Gogoi’s inhumane action get condemned as per the contours of international law? He can still be punished due to the violation of the set of Common Articles which are an attachment to the four Geneva Conventions signed by India. The provisions of Common Article 3 unequivocally states that any person who is not a part of the hostilities will be treated humanely irrespective of their cast, race, color, creed, religion, sex, wealth etc. No violation to life and person can be inflicted, the person cannot be taken a hostage; no disgrace upon their personal dignity to take place etc. As per the allegations of Major Gongoi’s that Dar was a stone pelter and was instigating the mob to do the same is unfounded on the grounds that Dar had actually voted in the election. He belongs to the seven percent of the population segment that disregarded the Hurriyat’ decree and participated in the general elections. It is rather miserable that a man who believed in the system was treated pitilessly by the same overseers of the system, and was denied the fundamental citizen rights that India claims to uphold.
It is also a stark violation of the commitments recently made by India at the UN Human Rights Council. The Indian government at the international forums has championed herself as the supporter of human rights for ostensibly oppressed nations around the world, but has failed by debasing the fundamental rights of Kashmiris. These double standards can be mirrored from the fact that the Geneva Convention was invoked in the case of R&AW spy Kulbhushan Jadhav but the same convention was mocked in case of Dar’s rights, which unequivocally categorizes the use of human shields as a “war crime”.
Setting aside the question of international law, the tying of Farooq Ahmed Dar to an army jeep, is the violation of a citizen’s fundamental rights. It is a moral and legal question which needs to be answered in correspondence with the fundamental rights enshrined in every constitution, laws and the principles which are vowed to be protected by every democratic nation, both internally and at international fora. Dar was not only used as a ‘human shield’ to secure the booth in Budgam district, where the army was called upon for assistance to secure a polling booth, as it was feared that it would be run over by a mob, but also the nine other villages where elections were held. When Leetul Gogoi saw the operational “success” of this “maneuver” of dehumanising Dar as a toy, exhibiting him as a “lesson” for stone pelters in one district, he ambitioned to parade him in the other nine villages as the blaring loudspeaker kept reminding locals of what would be the consequence if they pelted stones.
If such a war criminal is awarded, it would set a dangerous precedent which would be condemned by every sensible human now and in the annals of history to come. By lauding a war criminal for his ruthlessness sends a disconcerting message to the security force personnel and people in Jammu and Kashmir that the human rights of Kashmiris can be nonchalantly ignored without retribution. It will only perpetuate the climate of impunity in Kashmir. History stands witness to the barbarities inflicted by the Indian security personnel. The military investigations into human rights violations have lacked independence. As can be witnessed from the report by Amnesty International India, that Farooq Dar has asked for justice: “Neither the police nor the army has approached to record my statement. I am not aware of the developments in the case other than what has been reported in the media.” Due to the restrictions imposed by the Armed Forces (Special Powers) Act, 1990 (AFSPA), the perpetrators like Gogoi are shielded from prosecution. Section 7 of the AFSPA 1990 provides virtual immunity for human rights violations by security force personnel. If this is the standard of justice set, then the fact should be realized that an unbridling of anarchy is going to be triggered. Therefore, Major Gogoi should be punished for his brutal war crime he committed and justice should become the precedent for all the times to come.
is a graduate of Environmental and Development Economics from Quaid e Azam University. She has expertise on global contemporary issues. Ana has previously worked in NBP and WWF. Currently, she is working for Voice of Balochistan, a sub-project of CSCR, as a Research Associate.