STRUCTURES OF VIOLENCE

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| Structures of Violence
Most of the reports of UN Special Rapporteur have
considered the issue of military courts and
considered them to be illegal on grounds of lacking
independence and impartiality. Sir Nigel Rodley, a
noted international law jurist while serving as the UN
Special Rapporteur on Torture minced no words while
concluding the illegality of military tribunals for trying
serious human rights violations such as Torture:
“A person found to be responsible for torture or
severe mal-treatment should be tried and, if found
guilty, punished…Military tribunals should not be
used to try persons accused of torture…Complaints
about torture should be dealt with immediately and
should be investigated by an independent authority
with no relation to that which is investigating or
prosecuting the case against the alleged victim”.
The UN Special Rapporteur, Sir Nigel Rodley,
subsequent to a country visit to Mexico in his report
cautioned the Mexican authorities that in cases of
serious crimes committed by military personnel
against civilians, in particular torture and other cruel,
inhuman or degrading treatment or punishment,
regardless of whether they took place in the course of
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service, [are] subject to civilian justice.
The UN Working Group on Involuntary and Enforced
Disappearances has regularly reiterated that military
courts have contributed signicantly to impunity for
enforced disappearances. This UN Working group
was established by the Commission on Human
Rights (now Human Rights Council), consisting of ve
of its experts in their individual capacities, to examine
questions relevant to enforced or involuntary
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disappearances of persons . The work of the UN
Working Group on Involuntary and Enforced
Disappearances in collaboration with local human
rights groups contributed signicantly to the adoption
of the International Convention of the Protection of All
Persons from Enforced Disappearances, which
entered into force in 2010.
The Working Group has consistently maintained that
military tribunals are one of the greatest impediments
in achieving justice for enforced disappearances. The
Working Group in one of its earliest reports in 1993
submitted to the Commission on Human Rights
stated that:
“Legal prosecution and sentencing in the case of
offences involving gross violations of human rights
such as disappearances should take place within the
framework of the civil courts, even if those concerned
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belonged or belong to the armed forces.”
The Inter-American Convention on Forced
Disappearance of Persons expressly states that
members of the military or other state actors involved
in forced disappearances cannot invoke military
jurisdiction. It clearly states that “The acts constituting
forced disappearance shall not be deemed to have
been committed in the course of military duties.”
More specically, Article IX states:
“Persons alleged to be responsible for the acts
constituting the offence of forced disappearance of
persons may be tried only in the competent
jurisdictions of ordinary law in each state, to the
exclusion of all other special jurisdictions, particularly
military jurisdictions.
No person can be a judge in their own cause is one of
the oldest principles of natural justice that has been
completely disregarded by the court-martials under
the Army Act, 1950, and the Border Security Forces
Act, 1968, particularly for serious human rights
violations. The court-martials not only violate natural
justice but also other sacrosanct guarantees
enshrined in Indian criminal justice system.
Act not done in pursuance of ofcial duty
The armed forces have mostly invoked the legal
defence that their acts of commission or omission
were done in the pursuance of “ofcial duty.” If an
armed forces personnel rapes a woman while serving
at the front, it is impossible to claim that this was an
act done in pursuance of ofcial duty. Similarly, other
heinous human rights violations such as stage
managed or fake encounters, torture, enforced
disappearance cannot be done in pursuance of an
ofcial duty. By their very denition these are illegal
acts that could not have been done in furtherance of
any ofcial duty. Consequently, the legal shield
available to the armed forces cannot exist for these
heinous crimes.
Under Indian law, the legal immunity provided to the
armed forces under Section 7 of the AFSPA is
caveated by the “good faith” requirement. The
Supreme Court, instead of giving a strict
interpretation to what would constitute good faith, has
given the armed forces even more leeway to commit
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serious crimes. It opined:
“…the protection and immunity granted to an ofcial
particularly in provisions of the Act 1990 or like Acts
has to be widely construed in order to assess the act
complained of. This would also include the
assessment of cases like mistaken identities or an act
performed on the basis of a genuine suspicion. We
are therefore of the view that such immunity clauses
have to be interpreted with wide discretionary powers
to the sanctioning authority in order to uphold the
ofcial discharge of duties in good faith…”
Although the Supreme Court has entered into a
somewhat long and confusing discussion on what
constitutes good faith, it has still failed to answer the
most fundamental question being raised by the facts
of the Pathribal massacre whether or not a fake
encounter can ever be carried out in good faith or in
pursuance of an ofcial duty. The Court has skirted
around the crucial question that fake encounters can
never be committed in “good faith” or “pursuance of
ofcial duty.”
Even the facts of the infamous Sopore massacre of 6
January 1993 [analyzed in detail in the preceding
chapter] belie the argument that these crimes were
9 United Nations document E/CN.4/1998/38/Add.2, paragraph 88.
10 Resolution 20 (XXXVI), 29 February 1980. http://www.ohchr.org/Documents/Issues/Disappearances/E-CN.4-RES-1980-20_XXXVI.pdf.
11 United Nations document E/CN.4/1993/25, paragraph 46. [Spanish original, free translation.]
12 General Ofcer Commanding v. CBI & Anr., (2012) 5 SCR 599.