The use of 26-year-old Budgam resident Farooq Dar as a human shield by an army unit in Kashmir, the supposed objective of which was to stop Kashmiri youth from resorting to stone pelting – the “new weapon” against the security forces – has shocked public opinion. Such practices, which have been followed in conventional wars, violent ethnic conflicts and military-civil confrontations across the globe, especially in the 20th century, must be curbed.
Violation of Rights
The argument employed by Lieutenant General (retd) Gautam Moorthy, who is a member on the Armed Forces’ Tribunal, that by using Dar as a human shield, Major Leetul Gogoi “acted in the best interests” of his troops as well as the stone-pelters is not just flawed, it bespeaks a not-very-out-of-the-box thought.
Likewise, Moorthy’s contention that the “young man… can live with” the loss of dignity is insensitive and treats Dar as an “unperson” whose rights do not matter or are of no concern to the army.
As media reports suggest, Dar was certainly not a “voluntary shield”. His rights as an Indian citizen were violated.
What Moorthy overlooks too is that in a volatile and charged atmosphere that the Kashmir Valley has been for the past year or so, Dar may suddenly become a symbol representing the situation many Kashmiris find themselves in today.
So, his “loss of dignity” may really reflect a loss of dignity of many Kashmiris who might view the use of the human shield as a collective affront. By subjecting Dar to such action, the army in general and Major Gogoi in particular has caused immeasurable harm to any potential move towards conflict transformation, if not resolution.
Weaker Parties Embrace Shielding
What the army has effectively done is to prove that it acted in a besieged manner. The army, being an arm of the State, is theoretically empowered to employ the Weberian principle of “monopoly over coercion” and the “legitimacy” that the state draws from it.
But in Dar’s case, the army exhibited what usually militarily weaker insurgents in conflict conditions do: Weaker parties in a violent conflict often embrace shielding as a method designed to counter or prevent attacks against which they cannot effectively defend using weaponry normally at the disposal of the more organised State security forces.
Major Gogoi, who may or may not have been given permission by his superiors to use Dar as a shield, presumed that the prospect of harming him might dissuade the stone-pelters from striking his unit. It is no secret that the conflict in Kashmir is a case of dramatic asymmetry, and yet the army exhibited a strange tendency.
Examples abound in international armed conflicts where the weaker side has often resorted to shielding. Iraq used human shields in its war with Iran and it did in the course of Operation Desert Storm and Operation Iraqi Freedom. One of the most disastrous results of using human shields was in the 2002 Israeli operations in the West Bank city of Jenin.
Hardly Any Long-Term Military Advantage
Even as Moorthy has sought to claim that using Dar as a shield was in the “best interest of all” the parties involved, what has been overlooked – willingly or otherwise – is that the rules of war (even a civil war) boil down to one central principle: To distinguish between combatants and non-combatants. This is a requirement rooted in and articulated by international law which “soldiers are obligated to act in accordance with”.
Moorthy may have used the expression “best interest of all” without perhaps knowing that it flows from the doctrine of utilitarianism according to which “an action is permissible if and only if the consequences of that action are at least as good as those of any other action available to the agent”.
Moorthy would have us believe that Major Gogoi’s “moral heroism” action would have positive future consequences. But Mill’s theory, when used as a means to judge his action, is not practical because it is difficult to predict whether using Dar as a shield would have long-term consequences in terms of reducing stone-pelting.
The deterrence value does not hold because the army cannot be using human shields all the time in all its operations across the Valley. Therefore, it would be misleading to argue that Major Gogoi’s action would have had any long-term military advantage.
State Can’t Turn Against the Nation
Moorthy has used a maze of Latin legal expressions – “lawfare” – whose use seek to absolve Major Gogoi and the army of a measure which the security forces would otherwise have condemned had the stone-pelters captured and tied up a soldier to prevent being the targets of pellets or deadly bullets.
The mere use of “lawfare” does not absolve Major Gogoi from violation of humanitarian laws and other instruments, international or otherwise. Such practices go against the principle of rule of law. Above all, there is the simple notion that while the nation can turn against the State, the State cannot turn against the nation.
One last thought for Moorthy – in Latin: Cuiusvis hominis est errare, nullius nisi insipientis in errore perseverare. Anyone can err, but only the fool persists in his fault.
(With the recent instance of army personnel using a Budgam resident as a human shield in J&K, The Quint debates whether the action was justified given the volatile situation prevalent in the Valley. This is the counterview, you can read the view by Lt Gen (Retd) Gautam Moorthy here.)