Lalgarh: The futility of the law-and-order approach

It is disappointing to see that the preferred State approach to the recent events in Lalgarh in West Bengal continues to be framed in terms of ‘law and order’. Whatever happened to the Central government’s 'blueprint', drawn up less than two years ago, that had envisaged various development initiatives in addition to security-strengthening measures in order to counter the Naxalite insurgency?

In the following article, published in August 2007 in the Rights and Development Bulletin of the Centre for Development and Human Rights (New Delhi), I had argued for a human rights approach perspective on the Naxalite insurgency. The problem is knotty but not irreparable. But the State must first break out of its security-first mindset…

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The Naxalite Insurgency – Time for a New Strategy

In early October 2007, the Central government drew up a “blueprint” to counter Naxalism, the armed Maoist movement that is spread across nearly half of India’s states. The plan reportedly includes various development initiatives in addition to measures to strengthen the security set-up in those areas.[1] It can only be hoped that the development approach will be give adequate attention and emphasis.

The Naxalite insurgency, for the most part, has been conceptualised as a security issue. Using that approach, the Indian government has taken a number of measures to stamp out the insurgency, but the movement shows no signs of abating. It must be recognised that it is a social, economic, cultural, and political problem just as much as it is a security issue. It is an outgrowth of wider societal ills, and therein lies the crucial human rights dimension of the conflict.

Taking the state of Chhattisgarh as an example, this article will recommend a number of reforms which, taken together, would significantly undermine the appeal of armed revolution.

Education

Over the past decade, education in Chhattisgarh has improved substantially. Since the launch of the Education Guarantee Scheme (EGS), according to which a new school is opened whenever the parents of 30 or more children petition the state government to set one up, literacy has improved for both males and females, enrolment has gone up, and dropout rates have been reduced.[2] Around 255,303 children are currently enrolled in EGS schools.[3] This is clear evidence that Chhattisgarh is moving in the right direction.

It is absolutely essential that the government of Chhattisgarh preserve and further these positive developments. The most obvious way to accomplish this would be to continue the highly successful EGS, and to ensure that the schools opened under the scheme maintain a high standard of academic quality. High pupil-to-teacher ratios are a major obstacle to educational advancement, so the government should take active steps to increase the number of qualified teachers in the state. This can be accomplished by offering higher salaries and better benefits to teachers, as well as by putting greater emphasis on the development and recruitment of teachers within Chhattisgarh. It is also vitally important to ensure that schools remain distanced from the ongoing Naxalite conflict, and that school buildings are not used by security forces for shelter or for any other purpose.

Health

Improving public health in Chhattisgarh is a complex undertaking, yet this goal can be achieved through sustained attention and investment. The most glaring need is to provide universal access to medical care— because Chhattisgarh’s dense forests and poor infrastructure make transportation difficult, many rural-dwellers are not within reach of basic medical facilities or trained health professionals. One promising strategy for rectifying this situation would be the continuation and expansion of the local-level community health programmes that have been so successful in reducing infant mortality. Even where it is financially or logistically impractical to build a hospital, the government should ensure that each village has immediate access to trained doctors and nurses, as well as to basic medical equipment that can be used to provide at least a rudimentary level of care. Training more healthcare professionals would therefore be advisable, as would offering better compensation packages to doctors working in rural areas and working in concert with international bodies and NGOs to supply medical resources to neglected areas.

Land reform

Although the underlying causes of the Naxalite movement are complex and multifaceted, it is clear that conflicts over land are at its core. The vast majority of India’s rural poor is landless and enjoys very little upward mobility.[4] Overall, the landless and the near-landless (owning less than half an acre of land) make up 43 percent of rural Indian households[5], thus creating a steep socio-economic inequity that supplies much of the impetus for the Naxalite movement.

Tenancy reforms, and land reforms in general, have fallen well short of their objectives, and the consequent discontent of poor rural Indians has been vital to the Naxalite resurgence. Legal ambiguities, inadequate enforcement, and landlords’ practice of rotating tenants to prevent them from acquiring ownership rights are obstacles that must be tackled for land reform to succeed.

Forest rights

The issue of forest management has also long been contentious in India, pitting the interests of developers and industrialists against the rights of indigenous tribal communities that depend on forests for sustenance. The long struggle of indigenous peoples to preserve their rights over ancestral lands has played a pivotal role in the recent spread of the Naxalite movement— most new Naxal recruits are reported to be poor tribals.[6] In the hope of alleviating the problems facing forest-dwelling tribals, the Central government adopted the Provision of Panchayat Extension to Scheduled Areas Act (PESA) in 1996. Although PESA presented a bold reform package on paper, implementation has left much to be desired, with many state governments yet to operationalise the reforms that the Act was to have brought about.

Similarly, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 sought to improve upon the draft Scheduled Tribes (Recognition of Forest Rights) Bill. It rightly made the envisaged reform measures more inclusive. However, this, coupled with the later cut-off date and higher land ceiling, gives state governments and local elites more room to exploit the situation.[7] Moreover, it is likely to create or worsen local conflicts between tribal communities and non-tribal indigenous peoples, and between indigenous forest-dwellers and those who have only recently settled on forest land, often at the expense of the traditional inhabitants.[8] These problems will be worsened by the Act’s failure to create a voluntary resettlement programme for forest-dwellers who wish to relocate, a provision that might defuse nascent conflicts over forest lands.[9]

The 1988 National Forest Policy, PESA, and the 2006 Forest Rights Bill were all steps in the right direction, but until they are fully implemented and given more legal muscle to safeguard the rights of vulnerable forest-dwellers, the deep-rooted conflict over forest lands will continue to feed into the Naxalite insurgency.

Economic opportunities

A lack of economic opportunities in the countryside is one of the main spurs to the expansion of the Naxalite movement. Alienation arising from heavy-handed government and corporation-run development projects, coupled with endemic rural poverty, has given the Naxalite insurgency much of its forward thrust in recent years.[10]

The National Rural Employment Guarantee Act (NREGA) 2005, which was intended to improve the economic conditions of the rural poor, suffers from a number of practical difficulties. These are exacerbated by corruption, confusion and mismanagement, which brought the programme to a standstill in some states.[11] Careful revision and substantial improvements in the implementation of the NREGA, coupled with making credit available and affordable, would go a long way in reducing rural poverty and taking the edge off the armed Maoist campaign.

Rule of law

The foremost responsibility of a government is to provide security to its citizens, but democratic institutions lose their integrity when a government seeks to impose this security by extra-legal means. The government must come to the forefront and cut off its support for the unaccountable Salwa Judum militia. More than that, it must put a definitive end to the culture of impunity by which the Salwa Judum has thus far been allowed to operate. Special courts should be set up to examine and prosecute human rights abuses by Salwa Judum members, including but not limited to extrajudicial killings, illegal detentions, and torture.

Citizens must also be assured the full range of civil and political rights without which democracy would not be worthy of the name. One recent piece of legislation— the Chhattisgarh Special Public Security Act 2005— is sharply inimical to this end, and will only serve to clamp down on essential freedoms and exacerbate the climate of fear and arbitrariness that allows the Naxalite insurgency to thrive.

Conclusion

Because it is the product of a complex confluence of factors, the law-and-order approach, by itself, will not help erode the Naxalite armed movement. This does not, however, mean that the problem is irresolvable. Through a comprehensive, holistic, carefully crafted and implemented series of positive steps aimed at improving the conditions of its poorest citizens, the Indian government can chip away at the foundations of rural discontent upon which the movement is built.

Success in combating the Naxalites cannot be attained through strictly law enforcement means, and the government must therefore break out of its security-first mindset if it hopes to quash the insurgency. The Naxalite movement is shadowy, decentralized, and elusive: it cannot be overwhelmed with a crushing display of force. It will not die with a bang, but it might fade if the problems that fuel it are meaningfully addressed. That is why the human rights perspective on the Naxalite insurgency is so instructive: it illuminates the underlying causes of Naxalism rather than the effects. The Indian government would do well to analyse the problem through the lens of human rights, and use a broad-based, non-security strategy to resolve it.

Notes

1. Aloke Tikku, “Centre declares war on Naxals”, Hindustan Times, 3 October 2007.
2. United Nations Development Programme (UNDP) and Government of Chhattisgarh, “Human Development Report: Chhattisgarh 2005,” 2005, p. 104. Available at http://www.undp.org.in/index.php?option=com_content&task=view&id=239&Itemid=322.
3. Ibid.
4. Andrew Foster and Mark Rosenzweig, “Democratization and the distribution of local public goods in a poor rural economy,” Bureau for Research and Economic Analysis of Development (BREAD) Working Paper No. 10, January 2003, at p.3. Available at http://www.cid.harvard.edu/bread/papers/working/010.pdf (last accessed 15 October 2007).
5. Patralekha Chatterjee, “Land reform in India: Necessary but not sufficient to fight poverty,” D+C Development Cooperation, March 2002, at http://www.inwent.org/E+Z/1997-2002/de202-8.htm (last accessed 15 October 2007).
6. “A Spectre Haunting India,” Economist, 17 August 2006. Available at http://www.economist.com/world/asia/displaystory.cfm?story_id=7799247 (last accessed 15 October 2007).
7. Ashish Kothari, “Rights and promises,” Frontline 23(14), 15-28 July 2006. Available at http://www.flonnet.com/fl2314/stories/20060728000706400.htm.
8. Ibid.
9. Ibid.
10. Rajat Kumar Kujur, “Underdevelopment and Naxal movement,” Economic and Political Weekly, 18 February 2006.
11. “Staff shortage, delayed wages under NREGA in Ranchi,” The Financial Express, 25 June 2007. See also Manoj Prasad, “Corruption clouds UPA job scheme,” The Indian Express, 23 May 2007.

Investigating War Crimes in Sri Lanka

Illusion and Reality

The European Union (EU) did not need a crystal ball to predict that its resolution at the special session of the United Nations Human Rights Council (UNHRC) convened on 28 May 2009 to discuss the human rights situation in Sri Lanka had as much chance of success as the cow had of jumping over the moon.

A few hopeful Tamils across the world, clueless about the Byzantine ways of the UN, thought the world’s premier human rights body would soon send in the blue helmets to save Tamils in distress. In fact, the UN cannot, on its own, send even its independent experts, the Special Procedures, to Sri Lanka since Colombo has not issued a standing invitation to any of them.

If the EU and its allies failed, the non-governmental community did no better. In view of the fact that all the dirty dozen countries in the regional blocs of Asia, Africa and Latin America were expected to gang up and shout down calls for accountability, NGOs should have sent a clear, forthright signal and proposed a sound strategy for the road ahead. But all they had to show for was non-representative discussions. Certain Asian NGOs, even those that call themselves ‘regional’ organisations, on the other hand opted for profound silence.

The road to hell…

The EU resolution failed, as the EU might have expected. It was not even a moral victory, as the EU might have been hoping. The Czech opening statement in the debate on behalf of the EU was indifferently drafted and delivered, and was not about to stir a leaf, let alone the consciences of the majority of the diplomats, most of whom have long smothered any altruistic stirrings in their individual hearts at the altar of their nations’ geopolitical priorities.

The debate started with a forceful statement by the UN High Commissioner for Human Rights, Navi Pillay. It was rebutted with a stout but disingenuous statement by Mr. Mahinda Samarasinghe who heads Sri Lanka’s aptly named Ministry of Disaster Management and Human Rights. The Cubans speaking on behalf of that cold war relic that they have appropriated, the Non Aligned Movement (NAM), launched their usual diatribe. The Indian statement did little credit to a country that is democratic. This once again underscores the need for the Indian Parliament and citizens to exercise scrutiny over what Indian diplomats get away with at forums like the UN, purporting to interpret the sovereign will of the Indian people.

The statement by Canada was uplifting. It made specific demands of the Sri Lankan government. It sought to emphasise international scrutiny and the need to strengthen key national protection mechanisms in Sri Lanka. Also, the US would have taken its place as a member of the Human Rights Council in another fortnight. Why did the EU not wait until the US brought its force multiplier effect to the Council? Old Europe has much to learn from the world across the Atlantic.

It would also have been a quantum leap if the EU resolution had sought an adequately staffed and resourced field presence of the office of the UN High Commissioner for Human Rights in Jaffna and Colombo. The current presence in Colombo consists of a solitary UN Human Right advisor to the UN system in that country assisted by two junior colleagues.

Let’s do it, but how

But the EU’s biggest failure has been its ambiguity on investigations of possible war crimes and other violations of international humanitarian law. During a meeting on 18 May 2009, the EU council called for alleged war crimes in Sri Lanka to be investigated through an independent inquiry. “Those accountable must be brought to justice,” it stated. It did not specify who or what would carry out these investigations. But briefing the media subsequently, Czech foreign minister Jan Kohout stated that “in principle, the inquiry should be carried out by Sri Lankan authorities but it could also involve non-government and UN bodies.” Smoke and mirrors, if you know what it means.

And schooled in the best British tradition, British Foreign Secretary David Miliband did not forget the importance of being earnest. There have been “very grave allegations” of war crimes on both sides of the conflict and “they should be properly investigated,” he stated.

Balderdash and fiddlesticks. What is more important is what these worthy European gentlemen did not say. Over the past few weeks, Europe has seen anger on the streets, and its calls for accountability are intended merely to assuage those sentiments. The disingenuousness of European countries, however, lies in the fact that they have not explicitly proposed making use of a robust mechanism that is to be found within their own jurisdictions, one that might actually lead to accountability and eventual justice for the horrendous crimes committed in Sri Lanka.

The national prosecution option

It might be useful for the EU to recall its report on the 10th and 11th meetings of the African Union (AU)-EU Ministerial Troika, which observed as follows:

“….. Certain EU Member States provide for the exercise of universal jurisdiction in criminal matters only where such exercise is envisaged or rendered mandatory by international treaties to which the relevant state is party. An example of such a state is Ireland. Many of these states have adapted their national laws to provide for universal jurisdiction over grave breaches of the 1949 Geneva Conventions and of 1977 Additional Protocol I, over the crime of torture recognised in the Convention against Torture 1984 and over the crimes recognized in some or all of the various conventions dealing with terrorist acts.”

Further,

“Other EU Member States grant universal jurisdiction over international crimes on the basis of customary international law as well. Such countries include Belgium (universal jurisdiction over genocide, crimes against humanity and war crimes), the Czech Republic (universal jurisdiction over genocide, certain war crimes and crimes against peace), Denmark (universal jurisdiction over genocide, crimes against humanity and war crimes), Finland (universal jurisdiction over genocide, crimes against humanity and war crimes), France (universal jurisdiction over the crimes within the respective jurisdictions of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)), Germany (universal jurisdiction over genocide. These states also provide for universal jurisdiction where such exercise is envisaged or rendered mandatory by international treaties to which the relevant state is party.”

The good Mr. Miliband might also wish to recall his own observation that “United Kingdom law explicitly provides for universal jurisdiction over the crimes of torture, hostage taking, participating in the slave trade, offences against United Nations personnel, piracy and certain war crimes, including grave breaches of the 1949 Geneva Conventions and its first additional Protocol.”

EU policy does state that “[i]n prosecuting serious crimes of international concern, states should, as a matter of policy, accord priority to territoriality as a basis of jurisdiction, since such crimes, while offending against the international community as a whole by infringing universal values, primarily injure the community where they have been perpetrated and violate not only the rights of the victims but also the general demand for order and security in that community. In addition, it is within the territory of the state of alleged commission that the bulk of the evidence will usually be found.”

However, surely the EU cannot be unaware of the fact that the Sri Lankan judiciary is not only grossly ill equipped to handle such an onerous the task, but that it also judicially abdicated its responsibilities on accountability and fighting impunity a long time ago.

In fact, as early as 2007, the EU had asked the Sri Lankan Government to investigate violations of international humanitarian and human rights law, adding its weight to calls by Louise Arbour, the then UN High Commissioner for Human Rights, and Manfred Novak, the UN Special Rapporteur on Torture, who had requested international monitoring in that country.

In March 2007, the International Commission of Jurists (ICJ) addressing the UN Human Rights Council said that domestic human rights mechanisms were, “insufficient to protect civilians in the escalating conflict and human rights crisis in Sri Lanka.” The ICJ added:

“An international human rights field operation is especially needed when, as in Sri Lanka, justice and human rights mechanisms of the state are struggling to function effectively and independently, and when an armed opposition group such as the LTTE has prevented any independent and effective human rights mechanism developing in territory it controls.”

As far back as 2003, when it was still relatively independent, the Sri Lankan Human Rights Commission (HRC), a statutory body, had concluded as follows:

“It is the Commission's belief that no national or regional human rights entity will be able to effectively monitor and implement human rights standards in the north and the east. No organisation or individual enjoys that kind of universal authority and legitimacy.”

The Sri Lankan Human Rights Commission has since become little more than a joke, and even the super cautious International Coordinating Committee of National Human Rights Institutions has downgraded the Commission from ‘member’ to ‘observer’ status for not being fully compliant with the Paris Principles, a UN standard that is the lowest common denominator for national human rights institutions.

The ICJ also asserts that confidence in the judiciary has declined in recent years, and that members of the judiciary and legal community who seek to uphold the law and protect rights are often threatened.

Is it this wholly inadequate judicial system in Sri Lanka that is being trusted by the EU to deliver justice? The principle of territoriality apparently did not apply to Sudan. Why must it apply to Sri Lanka?

Get real

The international human rights community and particularly the Tamil diaspora in Europe and North America need a reality check. A Paris-based international human rights organisation, clearly not having drawn any lessons from the abject rout in Geneva, has now urged that “alternative mechanisms…must be activated for an international commission of inquiry”. Shades of Don Quixote, one might say. Any new tribunal of an international nature would need UN Security Council approval. And since Beijing and Moscow are standard bearers of human rights, can we expect that remarkable agenda to find a place on the table? If on the other hand a non-governmental body of experts is being sought here, it might be useful to bear in mind that no such body will get past immigration at Katunayake airport.

Instead of pursuing pies in the sky, it would be more fruitful to look at national mechanisms that can try violations of international human rights and humanitarian law, as outlined above. For a start, the large Tamil diaspora in the United States should enter into negotiations with credible human rights NGOs and law firms to assess the possibility of seeking civil damages and bringing prosecutions. The Alien Tort Statute (ATS) and the Torture Victim Protection Act are two options in the United States. Similar assessments must be carried out in all countries of Europe and elsewhere in the world.

Caution, meticulous legal work, and collaborations with credible human rights organisations and law firms, is what will win the day, and eventually win the peace.