The latest controversy coming out of the otherwise peaceable Kashmir is a civil-military spat. This has the army’s position, given out by the Srinagar corps commander, of situation in Kashmir as ‘alarming’ ranged on one side. On the other is the position of the head of the unified command in Srinagar, the chief minister, to whom the army general ostensibly reports as part of the unified command and who does not find the situation ‘alarming’. Perhaps both are right to a degree with capricious truth, as usual, being somewhat in-between.
The chief minister is right to the extent that describing the situation as alarming can raise an unwarranted alarm. The corps commander for his part perhaps meant that it is ‘potentially’ alarming, given his reference in his remarks to the continuing of the terror infrastructure across the Line of Control and its readying of 500 odd terrorists for launch.
That the army remains in place despite better security indicators that give the chief minister confidence, suggests a potential for backslide. It is perhaps for this reason that Pakistan too has not dismantled its leverages. This suggests that both states are in a ‘wait and watch’ mode, no doubt waiting to see which way the ‘cookie crumbles’ in ‘AfPak’, given the onrush of Obama’s deadline for departure, one that has been hastened lately to late 2013 from its earlier location in time in 2014.
All indicators are that the negative peace—absence of violence—currently obtaining in Kashmir cannot be mistaken for positive peace—absence of reason for violence. With the three interlocutors failing to enthuse a political initiative towards conflict resolution, alienation persists. A leading separatist has suggested that the youth, having witnessed only turmoil, may be less restrained than their predecessors who took to the gun. The next time round, violence could well have a different face. It could resemble images from Syria and Libya, with an admixture of those from Egypt.
The state response can be predicted along lines of 2010. Then, curfew was clamped in the gaps in the public curfew so as to exhaust public support for the stone pelters. Identified since, many have been taken out of circulation, falling to the PSA. Assuming that next time round, bullets substitute for stones, the army that was in 2010 only ‘on call’, will be back on the streets it last patrolled in the mid nineties. This explains why it favors the ‘draconian’ to some and ‘demonized’ to others, AFSPA (Armed Force Special Powers Act). The Act’s continuance enables the army to be helpfully readily on hand. This completes the circle in that it serves as a disincentive to the government to meaningfully bring about conflict resolution. In light of the threat of the next round being more violent and, catching the state surprised and under-prepared, possibly more bloody, this may not be such a bad thing.
However, it could be worse if some initial thinking on how to mitigate the situation in such a contingency is not done early. While prevention is better than cure, it is by now obvious from the interlocutors’ report being confined to the cyber-world that neither prevention nor cure is on the government’s mind. Here an idea is aired for how to mitigate the consequences of the ‘wait and watch’ folly passing for policy.
Currently, India has viewed the conflicts it has been beset with as domestic affairs, if above the ‘law and order’ level but certainly below that of a non-international armed conflict. This has occasioned its application of AFSPA without resorting to the emergency provisions that would then invite its accountability externally as per the international ‘bill of rights’ covenants.
If under the contingency posited here, of higher order civil turmoil, there is a case for India declaring the ensuing armed conflict as a non-international armed conflict. This will have some advantages for India. It will help in controlling its armed forces engaged in beating back the challenge. A tough military counter is not unlikely since the outbreak could amount to an internal rebellion. This will exact a strategic price in terms of a downward spiral. Civilian control of such operations can be reinforced in case there is an external accountability. This can be brought about by treating the conflict as a non-international armed conflict.
It will enable operation of Common Article 3 of the Geneva Convention to which India has signed up. This finds incidence in Indian domestic law in the Geneva Conventions Act of 1960. Vide this article egregious acts of violence are prohibited, serving as an additional check on the military against disregarding humanitarian concerns for military necessity. This would be important when and if the challenge posed by internal conflict is of an order as to make the use of force in response strategically counter productive. There is no loss in doing so since the article explicitly states that sovereignty is not brought into question.
It has the added advantage of putting Pakistan and its proxies on check. The Article is applicable to both parties to the conflict. Therefore the proxy warriors would also be required to abide by the provisions. Their operatives in Kashmir and handlers across the LC will be held accountable to international humanitarian law, failing which they would be liable under international criminal law. The latter has made some advances since the mid nineties that can be productively used to offset the impunity terror handlers otherwise have from domestic jurisdiction.
Additional Protocol II that is applicable for non-international armed conflict would not be operational since, firstly, India is not a signatory, and, secondly, the higher threshold of violence it envisages is unlikely to be reached. Abiding by the Common Article 3 humanitarian provisions would have a salutary effect of reinforcing domestic human rights law that has otherwise proven tenuous in its sway over security forces in most episodes of armed challenge India has faced.
In bracing for the future, India would do well to ponder such contingencies. If the international scrutiny that results if found to be unthinkable, then this must serve as incentive to India to go meaningfully down the conflict resolution route it has avoided so far.