AFSPA, the dark shadow of immunity

Manipur’s Meitei-Kuki tribe skirmishes have widened the ethnic divide and sparked concerns over the military’s growing presence in the region. In an insurgent-prone area where additional forces are deployed, mistaken identity killings could worsen the situation. While the military plays a crucial role in ensuring national security, it is imperative to uphold the rights of the victims’ grieving families.

Killing innocent civilians devalues life, undermines justice, and violates Article 21 of the Constitution, which guarantees the right to life. Despite the military’s hardships, the rights of families who lose loved ones must be prioritised, ensuring their right to seek justice. This requires a fine balance between security and fundamental rights.

The military’s ability to evade prosecution for unprovoked civilian killings is daunting. Section 6 of the AFSPA grants absolute immunity to individuals “acting under the Act” without central government sanction, jeopardising victims’ rights. The Central government’s refusal to prosecute the armed forces for the “mistaken identity” killings in Nagaland is disheartening and raises questions about the government’s commitment to transparency, accountability, and the rule of law.

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The inclusion of “air forces” within the definition of armed forces in Section (2a) of the AFSPA has raised the risk associated with mistaken air strikes on civilians, who may be wrongly identified as militants, and is far more disastrous than on-land killings. Under international law, civilian aircraft and habitations have been targeted under the mistaken assumption of militancy. The Iranian shooting down of a Ukrainian civilian aircraft is an instance of the same.

Further, mistaken identity killings by the military in areas where AFSPA is implemented shatter public trust in the military and State machinery, deepening the divide between the insurgent-prone regions and the nation.

Several judicial precedents demonstrate the necessity for accountability and justice in mistaken identity killings. States are obligated to investigate suspicious killings under various international laws. Specifically, under Rome Statute Art. 32(1), criminal liability can be negated if a mistake of fact is proven to be honest and not unreasonable.

In McCann v. United Kingdom, UK SAS special forces killed several IRA terrorists in Gibraltar based on false information from superiors. Herein, the Court sided with the State, recognising that not negating an honest mistake of fact would burden the State and potentially violate the right to life by hindering its ability to protect citizens from external threats. Nonetheless, the Court stressed that planning deficiencies render the mistake unreasonable and prevent criminal responsibility.

Currently, the Act prohibits army officers from shooting militants unless they are actively resisting. However, if a civilian is mistaken for a militant and purposely shot, the culpable troops must be charged for the attempted attack on a militant and the actual attack on innocent victims. It is vital to balance the rights of innocent victims and their families with military realities. This issue requires a multifaceted approach like implementing the principle of joint liability. Army and intelligence officers must be held accountable. Furthermore, the victim’s family should not receive ex-gratia compensation for appeasement. Instead, it should be the State’s admission of culpability for its agents’ failure to fulfil their duty and uphold the right to life. The State must apologise unreservedly and compensate for its mistakes as a way of avoiding legal liability. This approach emphasises the importance of accountability, justice, and human rights to prevent such tragedies from being overlooked.

Though AFSPA empowers security forces in rebel regions, it shouldn’t act as a tool to shield offenders. To display the government’s commitment towards responsibility and justice and instill public faith in insurgent-prone areas, a balance between security and liberty must be achieved by granting sanctions for mistaken identity killings.

(The writer is at the National Law University, Jodhpur.)