A military court for anti-nationals
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Using domestic law and conventions on terrorism to deal with crimes against humanity
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Umesh Chandra Jha
In the last six decades India has witnessed an increase in instances of violent conflicts which have been given various names, such as terrorism, insurgency, naxalism, militancy, proxy war and armed rebellion. These violent attempts have tried to discredit the government by highlighting its inability to protect citizens. In order to have an easy understanding, it would be better to group them together as ‘anti-national acts’ (ANA) and the persons involved in su
ch acts as ‘anti-national individuals’ (ANI).
An ANI could be defined as ‘a person who has engaged in anti-national activity or who has purposefully and materially supported anti-national activity against the government or its citizens.’ Today civilians bear the brunt of anti-national acts. Deliberate attacks against civilians, forced displacement of civilian populations, the destruction of infrastructure vital to the civilian population and of civilian property are just some examples of prohibited acts that have been perpetrated on a regular basis. Individuals have also been the victims of violations of the law such as murder, kidnapping, torture, cruel treatment, rape and other forms of sexual violence.
Human shields
Medical personnel and humanitarian workers have also been targets of violations. Armed anti-national groups are carrying out transnational and cross-border crimes, transaction crimes, and operations involving arms smuggling, drug trafficking and money laundering. There is no comprehensive definition of such crimes at the international level, but they can be dealt with as crimes under domestic law and under the conventions on terrorism and they may qualify as war crimes. Considering that TADA and POTA have not been very successful in dealing with ANAs, we must look for an alternative method of dealing with them. One such alternative could be to try individuals accused of such acts by summary general courts-martial (SGCM). An SGCM held under the Army Act can award punishments up to death.
Such a court consists of a minimum of three officers and may have a judge advocate. The procedure is summary in nature but guarantees the minimum safeguards to an accused. A military officer trained in law is provided as the defending officer. An accused may also hire a civilian counsel. An appeal from the decision of the SGCM may be allowed to the Armed Forces Tribunal and finally to the Supreme Court. This would assure the judicial guarantee enshrined in Article 14 of the International Covenant on the Civil and Political Rights.
SGCM’s advantages
Summary general courts-martial have been held against military offenders in India for the last 60 years and have not been held unconstitutional by the higher courts.
A trial by SGCM would would spare civilian judiciary and courts the risk associated with terrorist trials by allowing classified information to be used in evidence without compromising security.
It could consider relevant evidence that would be inadmissible in a civilian trial. A portion of the trial could be closed to the public to safeguard sensitive information. No doubt such an action from the government would immediately draw a strong protest from human rights activists. However, they must understand that an SGCM would be guided by principles of law and rules of procedure and evidence prescribed for courts-martial.
By virtue of Section 152 of the Army Act, 1950, trial by the court-martial is a judicial proceeding and the court-martial is deemed to be a court within the meaning of the Code of Criminal Procedure, 1973. In August 2008, India celebrated 61 years of independence and democracy.
We must honestly ask ourselves a few questions in this context. Was it really a free society that wrapped layers of security blankets around its own national celebrations for fear of terrorists attacks? Are we really free when we question every unattended piece of luggage on a train or in an airport? What kind of freedom surrounds our children when they become the innocent prey of terrorist attacks? If we want a stable democracy, anti-national activities and individuals associated with these will have to be quelled with strong hands. The political leadership, civil society and media will have to understand their duty towards the country.
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