A lot has been debated and written about the ‘human shield’ incident that happened on April 9, 2017, in Kashmir’s Budgam district. Farooq Ahmed Dar, a 26-year-old shawl weaver of Chil village in Beerwah sub-district was tied in front of an Army Jeep and allegedly paraded through several villages for nearly five hours. The media, lawyers, politicians and even army officers have stark differences of opinion on the legality of the said incident.
|Image of Dar used as a Human Shield.|
It is alleged that the actions of Major Gogoi are in violation of Human Rights and the Geneva Conventions on International Humanitarian Law and would thereby constitute a ‘war-crime’. Considering the graveness of the allegation, it is necessary to analyze the applicability of the Geneva Conventions and India’s position qua the use of human shields.
Applicability of Geneva Conventions
The four Geneva Conventions and their three Additional Protocols are at the core of international humanitarian law (IHL). IHL is the body of international law that regulates the conduct of armed conflict and seeks to limit its effects. It specifically protects people who are not taking part in the hostilities (civilians, health workers, and aid workers) and those who are no longer participating in the hostilities, such as wounded, sick and shipwrecked soldiers and prisoners of war.
The Geneva Conventions are applicable only in cases of ‘armed conflict’. Armed conflicts can be ‘international’, as prescribed under Common Article 2, or ‘non-international’, as provided under Common Article 3 of the Geneva Conventions.
As far as Kashmir is concerned, Human rights groups have demanded applicability of Geneva Conventions in Kashmir for years. Despite it being the world’s most militarized zone, in the international arena, India has maintained a diplomatic position on Kashmir as an ‘issue’ and not a ‘dispute’; a ‘law and order situation’ and not a ‘conflict’. It is well aware of the fact that as soon as the term ‘dispute’ or ‘conflict’ is used for a particular situation, the Geneva Conventions become applicable.
Apropos India’s said position on Kashmir, coupled with the sustained assertion of Kashmir being ‘an integral part of India’, the applicability of Geneva Conventions becomes difficult. However, two very recent statements by the Defence Minister and the Army Chief in response to the human shield incident make a strong case for applicability of Geneva Conventions. The Defence Minister, Mr. Arun Jaitely, referred to Kashmir as a ‘war-like zone’ where the Army officers should be allowed to take decisions. Secondly, the Army Chief, General Bipin Rawat, said that the Indian Army is fighting a ‘dirty war’ in Jammu and Kashmir which has to be fought in innovative ways. These two statements are significant to understanding India’s position on Kashmir as they come from two of the highest Government functionaries in defense who are adequately apprised of the ground realities.
Therefore, considering these two statements, the debate around the applicability of Geneva Conventions to the Kashmir conflict is now merely academic and irrelevant for practical purposes.
Use of Human Shield under International Humanitarian Law
The basic principle which forms the bedrock of the law of armed conflict (IHL) is the ‘principle of distinction’. Distinction between (i) civilians and combatants; and (ii) between civilian objects and military objectives. IHL prohibits the use of protected residents as a part of the war effort of the occupying army. From this general principle is derived the specific prohibition of the use of local residents as a ‘human shield’.
The use of human shields was first recorded in the Second World War where civilians were compelled to remain in places of strategic importance, or to accompany military convoys, or again, to serve as a protective screen for the fighting troops.
Consequently, the use of human shields was specifically prohibited by Article 28 of Geneva Convention (IV). The same prohibition was further reiterated under Article 51(7) of the Additional Protocol (I) to the Geneva Conventions in 1979.
The rule against the use of human shields is also applicable to non-international armed conflicts as it is a part of the customary international humanitarian law. The prohibition against the use of human shields is also equated with the prohibition against taking of civilians as hostages which are prohibited under Common Article 3 of the Geneva Conventions which is applicable to non-international armed conflicts.
It has been vehemently argued by those in support of the act that the use of human shield by Major Gogoi was a smart war tactic and a reflection of the remarkable presence of mind aimed at saving innocent lives. At this stage, it is necessary to differentiate ‘ruses of war’ from ‘acts of barbarity’. Ruses of war are acts that are intended to confuse the enemy. They are permissible as long as they do not amount to treachery or violate any rule of IHL. Acts of perfidy (treachery) or using of human shields are acts which must be distinguished from rules of war and classified as acts of barbarity which are not permissible. Therefore, the argument that the use of the human shield in the present case was for the ‘greater good’ is wholly untenable under the principles of IHL.
Moreover, the military manuals of 8 countries specifically prohibit the use of human shields and legislations of 11 countries criminalize the act of using human shields. The Supreme Court of Israel recently declared the practice of using human shields and even the practice of ‘voluntary’ human shields as directly contradicting IHL.
The use of the human shield is also illegal under domestic Indian law and international obligations. The Geneva Conventions Act, 1960 under Section 3(1) provides as follows:
“If any person within or without India commits or attempts to commit, or abets or procures the commission by any other person of, a grave breach of any of the [1949 Geneva] Conventions he shall be punished.”
Furthermore, India’s Army Training Note (1995) states that its aim is “to educate all ranks in maintaining and upholding Human Dignity and protecting Human Rights in accordance with the law of the land and National and International conventions, during peace and war”.
Although there is no specific prohibition to use of human shields under Indian law, interestingly, India itself has condemned the act of using civilians as human shields. In 2009, while addressing the situation in Srilanka, the then Minister of External Affairs, Dr. Pranab Mukherjee stated:
“A serious source of concern to us has been the condition of the civilians and internally displaced persons (IDPs), mostly Tamil, caught up in the zone of conflict. Estimates on the number of civilians trapped vary, but 70,000 or so are estimated to be there now. The LTTE [Liberation Tigers of Tamil Eelam] were reportedly using them as human shields…. the LTTE must stop its barbaric attempts to hold civilians hostage.”
The human rights record of India was met with heavy criticism recently at the Universal Periodic Review of the United Nations’ Human Rights Commission(UNHRC). In view of the presented non-exhaustive list of sources prohibiting the use of human shields, the actions of Major Gogoi are in flagrant violation of human rights under both international law and the Constitution of India. If gone unpunished, they would be a major blot on India’s already weak human rights record.
Isa Hakim is a 4th-year law-student at Gujarat National Law University, Gandhinagar.
 He Voted, Never Hurled Stones, ‘What Was My Crime,’ Asks Army’s ‘Human Shield’ in Kashmir, available at https://thewire.in/124465/kashmir-farooq-ahmad-dar-army/ last seen on 31/05/2017.
 See In support - Capt. Amarinder Singh, Major Gogoi deserves a distinguished services medal for using human shield against stone-pelters in Kashmir, available at http://indianexpress.com/article/opinion/columns/i-applaud-major-nitin-gogoi-jammu-kashmir-man-tied-to-jeep-human-shield-4664413/ last seen on 31/05/2017.
In opposition - Omar Abdullah, Why Major Gogoi is wrong, available at http://indianexpress.com/article/opinion/columns/why-major-gogoi-is-wrong-jammu-and-kashmir-budgam-farooq-ahmed-dar-4670648/ last seen on 31/05/2017.
 Army Major Behind Kashmir Human Shield Given Award, available at https://thewire.in/138913/leetul-gogoi-award-army-human-shield/ last seen on 31/05/2017.
 Plan to honour Major: NHRC to hear plea, available at http://www.thehindu.com/todays-paper/tp-national/plan-to-honour-major-nhrc-to-hear-plea/article18579679.ece last seen on 31/05/2017.
 The Geneva Conventions of 1949 and their Additional Protocols, available at https://www.icrc.org/en/document/geneva-conventions-1949-additional-protocols last seen on 31/05/2017.
 Treaties, States Parties and Commentaries, Commentary of 2016, Article 2: Application Of The Convention, available at, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=BE2D518CF5DE54EAC1257F7D0036B518 last seen on 31/05/2017.
 Kashmir: The World's Most Militarized Zone, Violence After Years of Comparative Calm, available at
 In war-like zone, let our Army officers decide, says Arun Jaitley, available at http://indianexpress.com/article/india/in-war-like-zone-let-our-army-officers-decide-says-arun-jaitley-4672602/ last seen on 31/05/2017.
 ‘Dirty war’ has to be fought with ‘innovative ways’, says Gen Bipin Rawat, available at http://www.thehindu.com/news/national/other-states/dirty-war-has-to-be-fought-with-innovative-ways-says-gen-bipin-rawat/article18594429.ece last seen on 31/05/2017.
 Customary IHL database, Rule 1, ICRC available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter1_rule1 last seen on 31/05/2017.
 Customary IHL database, Rule 7, ICRC, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule7 last seen on 31/05/2017.
 Adalah – The Legal Center for Arab Minority Rights in Israel et al v. GOC Central Command, IDF Chief of the General Staff, IDF, The Minister of Defense, The Prime Minister of Israel, 45 ILM 491 (2006), available at https://www.adalah.org/uploads/oldfiles/features/humshields/decision061005.pdf last seen on 31/05/2017.
 Supra 6.
Article 28. - “The presence of a protected person may not be used to render certain points or areas immune from military operations.”
 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War.
 Article 51(7). Protection of the civilian population. “7. The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.”
 Customary IHL database, Rule 97, ICRC, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule97/ last seen on 31/05/2017.
 See Capt. Amarinder Singh, Major Gogoi deserves a distinguished services medal for using human shield against stone-pelters in Kashmir, available at http://indianexpress.com/article/opinion/columns/i-applaud-major-nitin-gogoi-jammu-kashmir-man-tied-to-jeep-human-shield-4664413/ last seen on 31/05/2017.
 Supra 14.
 Customary IHL database, Rule 57, ICRC, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule57 last seen on 31/05/2017.
 Supra 13.
 Customary IHL database, ICRC, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_cou_in_rule142 last seen on 31/05/2017.
 Customary IHL database, ICRC, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_cou_in_rule24 last seen on 31/05/2017.
 India Comes in the Line of Fire at UNHRC Over Rights Record, Racism, available at https://thewire.in/132165/india-unhrc-universal-periodic-review/ last seen on 31/05/2017.