16 December 2018 02:08 PM

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ALI AHMED | 30 AUGUST, 2018

Command Responsibility In Relation to Good Faith

Pin the buck where it belongs


The case of an alleged extrajudicial killings in Manipur, being investigated by the Supreme Court mandated Special Investigation Team (SIT) of the Central Bureau of Investigation (CBI), came to a head with the SIT filing a first information report last month against a serving army officer who it claims led patrol action in which a 12 year old was killed when deployed in Manipur with the Assam Rifles.

The development triggered an unprecedented petition by 356 army men to the court asking for status quo on the Armed Forces Special Powers’ Act (AFSPA) under which the army is deployed in disturbed areas. They want their cover from prosecution to continue as hitherto, in order that military operations and morale do not suffer.

From the details in the media it appears the officer over-reached the limits of plausible ‘good faith’ in his conduct of the operation. Apparently, the pre-teen youth was dragged out from his house and with his parents locked in, was thrashed and killed outside his house. The ‘good faith’ argument in this case would have it the youth attempted to escape the dragnet and resisted being subdued, leaving the military men no recourse other than use of force in self defence.

However, the self-defence argument did not fly since none of the score-strong team was injured. They could have overpowered the youth. Civilian witnesses present – parents and neighbours – testify otherwise. The officer has since gone on to become a colonel.

The case was one among the six sample cases probed in 2013 by the Supreme Court-appointed Justice Santosh Hegde committee. It found that the self-defence argument was not sustainable in any of the cases. The CBI has vindicated the finding.

The question that arises is as to why the facts were not ascertained by the army itself nine years back when the then major returned to camp with his report on the encounter.

It appears the army took the story of the major that he was acting in good faith at face value. In doing so the army has itself struck a blow to the credibility of the position that its members act in good faith and in compliance with its rules of engagement, duly informed by the ‘ten commandments’ regulating actions under AFSPA. The major’s version of events was not verified with due diligence, a lapse in command responsibility.

Alternatively, even if it was known the encounter was a fake one, the army covered it up as a genuine one for institutional reasons. These could be to protect its image of being mindful of human rights. Conspiracy theorists would have it that such reasons could also be personal, intended to show the perpetrator and his superiors in good light in the bean count game. The latter, if amounting to a pattern are less personal than institutional, with the institution taking the rap for fostering a command climate in which bean-counts count.

Command responsibility in internal security deployments entails ensuring that the rules of engagement are widely known and followed. In case of operations resulting in killings, the version of events needs to be verified in the debriefing of the returning patrol. The command channel is sensitive to the good faith provisions and is more than likely to empathetically view events from the eye of the ground soldier caught in inevitably fast moving and high tension environments. Commanders have sufficient acumen and experience to be able to sift facts and arrive at a prima facie impression on credibility.

Their reporting responsibilities entail checking on reliability and credibility. Where the circumstance is likely to generate controversy, it makes sense to dwell on the incident in more ways than just a verbal de-brief and a paragraph-worth situation report. In this case the command channel appears to have privileged the reliability of its source – the patrol commander – over the credibility of his report.

It is also possible that enlightened reporting attend such cases. Such reporting can involve an informal transmission of the facts, even while the situation report might apply the gloss over some or other pertinent fact. Any superior condoning the report takes on the onus of departures.

Shouldering of the responsibility of lack of action against violations of the good faith clause is delegated upwards in the chain, thereby seemingly absolving those down the line. Under such commanders a laissez-faire command climate tends to develop in relation to human rights, with the nation having to pay a strategic cost. Commanders need measuring up to their pay scales.

The concept of command responsibility and failure to act is a feature in international humanitarian law (IHL). The Indian position is that IHL is not relevant since there is no internal conflict on, and, in any case, India is not a signatory to the relevant additional protocol to the Geneva Conventions.

Be that as it may, under AFSPA, good faith actions are covered by the impunity clause that requires prosecution be undertaken only on clearance by the defence ministry. None of the fifty such cases from Jammu and Kashmir calling for waiver of immunity have received approval from the defence ministry so far. The ministry has passed up its responsibility. The command responsibility to ascertain operational actions are in good faith ends at the military’s door. As a corollary, in case of shortfalls, command responsibility entails initiation of disciplinary action by the military.

Army men who have approached the courts are apprehensive that the very investigation of alleged over-reach by security forces would be detrimental. Personally, they would be held to scrutiny by what is perceived as investigation agencies of the local police biased towards the local vested interests.

Institutionally, this will impact effectiveness of the military by making its personnel unnecessarily wary of the consequences of their actions, even those done in good faith. Surely, none of the signatories of the petition would like egregious and willful violence to be exonerated by the good faith clause.

Taking cue, a potentially win-win outcome is for the army to increase its oversight of operations. This does not imply doubting the word of its tactical commanders from challenging situations on the ground. One manner can be for a forward-pull command culture, where a look-see is considered better than a dozen reports.

The concept of command responsibility suggests that while members are individually culpable, the context and command climate they operate in is framed by the command hierarchy. Incidentally, this does not stop at the brass, but must encompass their political supervisor.

In the case of Manipur, the previous Congress government reputedly had a liberal approach to elimination of insurgents. As seen, the defence ministry – then in the Congress’ charge - has long abdicated its responsibility. A wider view by the Supreme Court may help pin the buck where it should belong – up the uniformed, safari-suited and dhoti/sari-clad heirarchy.
 

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