Background :- There has been a considerable amount of debate on the Armed Forces Special Powers Act (AFSPA) as long as we can remember.It has been extensively covered by both news media and print media.Views from various corners and writings by many learned man conclude that it should be repealed , yet irrespective of who is in Government , it has not been repealed, even though few representatives of Government are in favor to repeal AFSPA.Hence , it lets one think why it has not been repealed and will it ever be repealed ? In this context , we at UPSCTREE tried to explore this irony , given it’s importance in public administration , it has to be inquired with due care.
Intorduction :-
- The Armed Forces (Assam and Manipur) Special Powers Ordinance came into force on May 22, 1958. It was adopted by the Indian parliament on September 11, 1958
- The AFSPA was based on a 1942 British colonial ordinance that was intended to contain the Indian independence movement in the midst of the Second World War
- In the decade that followed, the northeast was divided into separate states to accommodate the ethnic claims of various tribal and other ethnic groups. In 1972, the AFSPA was amended to extend to all the new states
- In 1983, an almost identical law was enacted to counter militancy in Punjab state.While the law was allowed to lapse in Punjab once violence ended, a similar law has remained in force in Jammu and Kashmir state since 1990.
- Though the law was initially intended to be a short-term measure, for five decades many areas of the northeastern states have routinely (now every six months) continued to be declared “disturbed” so that the law can remain in force.
- Irom Chanu Sharmila who is also known as the “Iron Lady of Manipur” is a civil rights activist, who has been in a hunger strike for nearly 15 years. Her primary demand to the Indian government has been the repeal of the AFSPA.
Provisions in AFSPA:-
- Section 3 of the AFSPA provides that the government can decide ,whole or part of a state “is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil powers in necessary.”
- The maintenance of law and order is the responsibility of the state government under the Indian Constitution.As originally enacted, the power to declare an area to be “disturbed” was conferred only upon the state government. In 1972 the AFSPA was amended to provide that same power concurrently to the central government. An elected state government thus cannot refuse the deployment of federal armed forces.
- On the other hand, the state government has no authority to reprimand or prosecute those members of the armed forces that commit human rights violations against citizens of that state as this power is reserved for the central government
- The AFSPA provides broad powers to military officers to use force, including lethal force. Section 4(a) empowers any commissioned or non-commissioned officer in the armed forces, to:-
“If he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances“
Human rights activists say that this section of the law effectively provides security forces operating under the AFSPA with a “license to kill.”
- Section 6 of the AFSPA provides government security forces with immunity from prosecution.
Supreme Court’s observation:-
- The AFSPA has been challenged in the courts. In 1980, a Manipuri group named the Human Rights Forum filed a public interest litigation in the Supreme Court, challenging the constitutional validity of the AFSPA. The Naga People’s Movement for Human Rights and the People’s Union for Democratic Rights also moved separate writ petitions on the same issue in 1982. However, the Supreme Court did not proceed in the matter for 15 years.
- In 1997, a five-member bench headed by Chief Justice J.S. Verma finally ruled on the petitions challenging the act. The various petitions were combined into the case of Naga People’s Movement of Human Rights, etc. vs. Union of India
- The Supreme Court upheld the Armed Forces (Special Powers) Act in its final verdict on November 27, 1997. However, while concluding that parliament had the right to enact such a law, the judges ordered measures for the protection of human rights, ruling that the armed forces should “use minimal force required for effective action” and “strictly follow the instructions contained in the list of “Do’s and Don’ts” issued by the army authorities which are binding”
Justice Jeevan Reddy Committee on AFSPA:-
- The Jeevan Reddy committee recommended that while the AFSPA should be repealed, some provisions should be incorporated into the Unlawful Activities (Prevention) Act, 1967.
- The proposed amendments include a provision for an independent “Grievances Cell” to inquire into complaints of human rights violations, and a requirement that the commander or local headquarters of the unit or appropriate police authorities furnish relevant information to the Grievances Cell within 24 hours of receiving a request.
- The recommendations are rejected by the government.
Various facet of AFSPA : –
- To sum up , AFSPA gives enough power to the army to act in disturbed areas .The core debate surrounding this act is the alleged human rights violations by Army from time to time.
- Idealism vs Realism
- Most of the arguments against AFSPA are idealistic in nature i.e. the arguments does not include the concerns of army , it only displays the concerns of one side, thus while journalists label it as a ” Draconian law” or “Right to kill” , the adjectives are far too sensational in nature , which selectively excludes the sensitivity of the issue.
- First principle of security is to accept the reality as it is and not what one wants it to be . Thus , Army has taken a pragmatic stand and advocated that AFSPA as sine qua non for counter insurgency operation in disturbed areas.
- The disturbed areas for eg- Jammu & Kashmir or North-East region , have not been peaceful as yet due to various secessionist movements.These areas have convergence of both India’s internal and external security .Thus given the strategic importance of these regions and the huge international porous border , AFSPA becomes the necessary tool in the hands of Army.It is an evil but a necessary one.
- The disturbed areas are far from peace and cross border terrorism and secessionist movements are active , thus making it hard for the Government to repeal AFSPA.
- Retired General Bikram Singh’s Observation on AFSPA :-
- He holds that the time is not right to repeal AFSPA.He comments that the decision has to be taken in the backdrop of violence profile, in the backdrop of what can happen in future, in the backdrop of futuristic contours.
- Army is there as the state govt. does not have adequate apparatus to deal with issues that have cross-border implications .Many army men have made the supreme sacrifice to uphold the national interest and national security in these regions.
- On the contrary, it is undoubtedly clear that human rights violations have taken place and in a Free Society like India , it is necessary that this concerns are addressed too.
Conclusion:- From the above observations it is clear that , to repeal AFSPA , there are few per-requisites , such as – end of secessionist movements, effective management of border and end of cross-border terrorism.Hence , indifferent to our wish, AFSPA is going to stay in the near future. In the same vein, it will be a blunder to completely ignore the human rights issues arising out of this provision. To contain the human rights violation and to uphold national interest is a walk on a two-edged sword,which needs perfect balancing act. Measures by Army to sensitize its soldiers and make them sensitive to the people’s cause is of paramount importance.A learned soldier with a higher degree of empathy is the necessity of the hour and it can be achieved by the Army itself. Soldier’s emotional intelligence profiling for sensitive posting , should be inculcated by the Army. It is often said that a good man can run a bad institution better and this is what is needed of Army now , to post good men , who can exercise self-restraint in sensitive operation and see to it that human rights are not violated. From futuristic perspective, AFSPA should be repealed or replaced with a law that has greater protocols and addresses the human right needs.
P.S :- Please note that we try to be as objective as possible in our analysis , the conclusions written in Essays and Reflections are exclusive to UPSCTREE .If you have any suggestions , kindly write to us – upsctree@upsctree.com . Thank you.
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The United Nations has shaped so much of global co-operation and regulation that we wouldn’t recognise our world today without the UN’s pervasive role in it. So many small details of our lives – such as postage and copyright laws – are subject to international co-operation nurtured by the UN.
In its 75th year, however, the UN is in a difficult moment as the world faces climate crisis, a global pandemic, great power competition, trade wars, economic depression and a wider breakdown in international co-operation.
Still, the UN has faced tough times before – over many decades during the Cold War, the Security Council was crippled by deep tensions between the US and the Soviet Union. The UN is not as sidelined or divided today as it was then. However, as the relationship between China and the US sours, the achievements of global co-operation are being eroded.
The way in which people speak about the UN often implies a level of coherence and bureaucratic independence that the UN rarely possesses. A failure of the UN is normally better understood as a failure of international co-operation.
We see this recently in the UN’s inability to deal with crises from the ethnic cleansing of the Rohingya Muslims in Myanmar, to civil conflict in Syria, and the failure of the Security Council to adopt a COVID-19 resolution calling for ceasefires in conflict zones and a co-operative international response to the pandemic.
The UN administration is not primarily to blame for these failures; rather, the problem is the great powers – in the case of COVID-19, China and the US – refusing to co-operate.
Where states fail to agree, the UN is powerless to act.
Marking the 75th anniversary of the official formation of the UN, when 50 founding nations signed the UN Charter on June 26, 1945, we look at some of its key triumphs and resounding failures.
Five successes
1. Peacekeeping
The United Nations was created with the goal of being a collective security organisation. The UN Charter establishes that the use of force is only lawful either in self-defence or if authorised by the UN Security Council. The Security Council’s five permanent members, being China, US, UK, Russia and France, can veto any such resolution.
The UN’s consistent role in seeking to manage conflict is one of its greatest successes.
A key component of this role is peacekeeping. The UN under its second secretary-general, the Swedish statesman Dag Hammarskjöld – who was posthumously awarded the Nobel Peace prize after he died in a suspicious plane crash – created the concept of peacekeeping. Hammarskjöld was responding to the 1956 Suez Crisis, in which the US opposed the invasion of Egypt by its allies Israel, France and the UK.
UN peacekeeping missions involve the use of impartial and armed UN forces, drawn from member states, to stabilise fragile situations. “The essence of peacekeeping is the use of soldiers as a catalyst for peace rather than as the instruments of war,” said then UN Secretary-General Javier Pérez de Cuéllar, when the forces won the 1988 Nobel Peace Prize following missions in conflict zones in the Middle East, Africa, Asia, Central America and Europe.
However, peacekeeping also counts among the UN’s major failures.
2. Law of the Sea
Negotiated between 1973 and 1982, the UN Convention on the Law of the Sea (UNCLOS) set up the current international law of the seas. It defines states’ rights and creates concepts such as exclusive economic zones, as well as procedures for the settling of disputes, new arrangements for governing deep sea bed mining, and importantly, new provisions for the protection of marine resources and ocean conservation.
Mostly, countries have abided by the convention. There are various disputes that China has over the East and South China Seas which present a conflict between power and law, in that although UNCLOS creates mechanisms for resolving disputes, a powerful state isn’t necessarily going to submit to those mechanisms.
Secondly, on the conservation front, although UNCLOS is a huge step forward, it has failed to adequately protect oceans that are outside any state’s control. Ocean ecosystems have been dramatically transformed through overfishing. This is an ecological catastrophe that UNCLOS has slowed, but failed to address comprehensively.
3. Decolonisation
The idea of racial equality and of a people’s right to self-determination was discussed in the wake of World War I and rejected. After World War II, however, those principles were endorsed within the UN system, and the Trusteeship Council, which monitored the process of decolonisation, was one of the initial bodies of the UN.
Although many national independence movements only won liberation through bloody conflicts, the UN has overseen a process of decolonisation that has transformed international politics. In 1945, around one third of the world’s population lived under colonial rule. Today, there are less than 2 million people living in colonies.
When it comes to the world’s First Nations, however, the UN generally has done little to address their concerns, aside from the non-binding UN Declaration on the Rights of Indigenous Peoples of 2007.
4. Human rights
The Human Rights Declaration of 1948 for the first time set out fundamental human rights to be universally protected, recognising that the “inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
Since 1948, 10 human rights treaties have been adopted – including conventions on the rights of children and migrant workers, and against torture and discrimination based on gender and race – each monitored by its own committee of independent experts.
The language of human rights has created a new framework for thinking about the relationship between the individual, the state and the international system. Although some people would prefer that political movements focus on ‘liberation’ rather than ‘rights’, the idea of human rights has made the individual person a focus of national and international attention.
5. Free trade
Depending on your politics, you might view the World Trade Organisation as a huge success, or a huge failure.
The WTO creates a near-binding system of international trade law with a clear and efficient dispute resolution process.
The majority Australian consensus is that the WTO is a success because it has been good for Australian famers especially, through its winding back of subsidies and tariffs.
However, the WTO enabled an era of globalisation which is now politically controversial.
Recently, the US has sought to disrupt the system. In addition to the trade war with China, the Trump Administration has also refused to appoint tribunal members to the WTO’s Appellate Body, so it has crippled the dispute resolution process. Of course, the Trump Administration is not the first to take issue with China’s trade strategies, which include subsidises for ‘State Owned Enterprises’ and demands that foreign firms transfer intellectual property in exchange for market access.
The existence of the UN has created a forum where nations can discuss new problems, and climate change is one of them. The Intergovernmental Panel on Climate Change (IPCC) was set up in 1988 to assess climate science and provide policymakers with assessments and options. In 1992, the UN Framework Convention on Climate Change created a permanent forum for negotiations.
However, despite an international scientific body in the IPCC, and 165 signatory nations to the climate treaty, global greenhouse gas emissions have continued to increase.
Under the Paris Agreement, even if every country meets its greenhouse gas emission targets we are still on track for ‘dangerous warming’. Yet, no major country is even on track to meet its targets; while emissions will probably decline this year as a result of COVID-19, atmospheric concentrations of greenhouse gases will still increase.
This illustrates a core conundrum of the UN in that it opens the possibility of global cooperation, but is unable to constrain states from pursuing their narrowly conceived self-interests. Deep co-operation remains challenging.
Five failures of the UN
1. Peacekeeping
During the Bosnian War, Dutch peacekeeping forces stationed in the town of Srebrenica, declared a ‘safe area’ by the UN in 1993, failed in 1995 to stop the massacre of more than 8000 Muslim men and boys by Bosnian Serb forces. This is one of the most widely discussed examples of the failures of international peacekeeping operations.
On the massacre’s 10th anniversary, then UN Secretary General Kofi Annan wrote that the UN had “made serious errors of judgement, rooted in a philosophy of impartiality”, contributing to a mass murder that would “haunt our history forever”.
If you look at some of the other infamous failures of peacekeeping missions – in places such as Rwanda, Somalia and Angola – it is the limited powers given to peacekeeping operations that have resulted in those failures.
2. The invasion of Iraq
The invasion of Iraq by the US in 2003, which was unlawful and without Security Council authorisation, reflects the fact that the UN is has very limited capacity to constrain the actions of great powers.
The Security Council designers created the veto power so that any of the five permanent members could reject a Council resolution, so in that way it is programmed to fail when a great power really wants to do something that the international community generally condemns.
In the case of the Iraq invasion, the US didn’t veto a resolution, but rather sought authorisation that it did not get. The UN, if you go by the idea of collective security, should have responded by defending Iraq against this unlawful use of force.
The invasion proved a humanitarian disaster with the loss of more than 400,000 lives, and many believe that it led to the emergence of the terrorist Islamic State.
3. Refugee crises
The UN brokered the 1951 Refugee Convention to address the plight of people displaced in Europe due to World War II; years later, the 1967 Protocol removed time and geographical restrictions so that the Convention can now apply universally (although many countries in Asia have refused to sign it, owing in part to its Eurocentric origins).
Despite these treaties, and the work of the UN High Commission for Refugees, there is somewhere between 30 and 40 million refugees, many of them, such as many Palestinians, living for decades outside their homelands. This is in addition to more than 40 million people displaced within their own countries.
While for a long time refugee numbers were reducing, in recent years, particularly driven by the Syrian conflict, there have been increases in the number of people being displaced.
During the COVID-19 crisis, boatloads of Rohingya refugees were turned away by port after port. This tragedy has echoes of pre-World War II when ships of Jewish refugees fleeing Nazi Germany were refused entry by multiple countries.
And as a catastrophe of a different kind looms, there is no international framework in place for responding to people who will be displaced by rising seas and other effects of climate change.
4. Conflicts without end
Across the world, there is a shopping list of unresolved civil conflicts and disputed territories.
Palestine and Kashmir are two of the longest-running failures of the UN to resolve disputed lands. More recent, ongoing conflicts include the civil wars in Syria and Yemen.
The common denominator of unresolved conflicts is either division among the great powers, or a lack of international interest due to the geopolitical stakes not being sufficiently high. For instance, the inaction during the Rwandan civil war in the 1990s was not due to a division among great powers, but rather a lack of political will to engage.
In Syria, by contrast, Russia and the US have opposing interests and back opposing sides: Russia backs the government of the Syrian dictator Bashar al-Assad, whereas the US does not.
5. Acting like it’s 1945
The UN is increasingly out of step with the reality of geopolitics today.
The permanent members of the Security Council reflect the division of power internationally at the end of World War II. The continuing exclusion of Germany, Japan, and rising powers such as India and Indonesia, reflects the failure to reflect the changing balance of power.
Also, bodies such as the IMF and the World Bank, which are part of the UN system, continue to be dominated by the West. In response, China has created potential rival institutions such as the Asian Infrastructure Investment Bank.
Western domination of UN institutions undermines their credibility. However, a more fundamental problem is that institutions designed in 1945 are a poor fit with the systemic global challenges – of which climate change is foremost – that we face today.