State and non-state

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The reaction, not just of the Government of India, but also a large section of right wing politicians and intelligentsia to the recent damning report by Amnesty International on the excesses committed under the Armed Forces (Special Powers) Act, AFSPA, in Jammu and Kashmir has been on expected lines. Why are international Human Rights watchdogs such as AI only interested in atrocities by the state forces and never of the equally heinous crimes perpetrated on ordinary citizens by the non-state fighters? This would have been a very legitimate question if it came from the lay citizenry, but certainly not so if it did from anybody who pretends to be acquainted with the definition and philosophy behind the international human rights movement. Call it a weakness or limitation of the movement, the fact is, human rights as defined by the UN`™s Universal Declaration of Human Rights 1948, is a statute listing 30 charters of rights to be guaranteed to the individual citizen by their respective states, therefore violation of these rights can only be by the state. The framers of this statute were well aware of this limitation which is why it is `universal declaration` of `human rights` and not declaration of `universal human rights`. The idea of universal human rights is too broad and nebulous, and can only exist on the vast plane of philosophy as guiding principles of actual laws.

Human rights which came out of this international movement hence are a set of international laws which evolved out of a specific context and not by any means to be equated with rectitude. The timing of the birth of this movement should already give an idea of this context and therefore the justification for its thrust area. It was a time the World War II had just concluded. Not only was the devastation caused by the war overwhelmingly depressing, but what shocked even more was the realisation that the state far from being a protector of individual citizens, can turn on them in monstrous manners and when this happens the citizens have absolutely no protection. The horror of the Holocaust, in which Hitler`™s Germany turned against a section of its own citizens belonging to the Jewish race was staring the world in the face. In lesser scales, the war also demonstrated that the state can turn rogue on its own citizens in practically every country. The felt need at the time was of an international institution to which the individuals can turn to if their own states turn against them. Human rights organisations like the Amnesty International carry this mandate. When non-state criminals commit atrocities against ordinary citizens, it is for the state and its laws to take care of them. But when a state turns against its own citizens, the human rights movement is the shield. Nobody brings up the human rights question when insurgent fighters are killed, that is if other norms of combats laws such as killing in custody or subjecting prisoners to tortures etc, are not violated. It is only when the state and its forces go on rampage amongst the civil population that human right question is invoked. Granted the nature of insurgency complicates matter, but it is a challenge before any nation which is left with the prospect of fighting itself, in the words of Assamese scholar Sanjib Baruah.

In the past two decades or so however, there have been attempts to make atrocities by the non-state combatants accountable to the universal understanding of human rights and their violations. This was especially so during the hey days of the Liberation Tigers of Tamil Eelam, LTTE, which was at one time virtually a state, with a definite territory and people under its control, running an administration, enacting laws etc, as any state would. The Geneva Conventions Protocol-II precisely sought to address this problem on the realisation that since the conclusion of WWII, 80 percent of the victims of conflicts were those of `non-international conflicts`. The catch here was, for any non-state organisation to be brought within the purview of the human rights legal system, they have to be treated somewhat as putative states violating what they too must guarantee their citizens. For the fear that the Protocol might affect state sovereignty, even after the Protocol was sliced down from its original 47 articles to 28, no state with potential internal conflicts ratified it. India ratified the Geneva Conventions of 1949, but to this day steadfastly refuses to give its assent to this Protocol. This precisely is what the present problem is about.

Leader Writer: Pradip Phanjoubam

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