In a recent security operation in Chinkipora, Sopore nearly Fifty residential houses were razed to ground by Indian Security forces. We are told that few Militants had taken shelter in one of the houses in the area. When operations were launched to arrest them, heavy firing took place which caused a devastating fire resulting in destruction of residential houses. The loss was routinely attributed to “Collateral damage.”
Kashmiris are no new to such type of vandalism carried out under the garb of security exercises. In 1965,the whole colony of Batmaloo was razed to ground on the pretext of infilitrators having taken shelter there. Right from 1990, the devastating operations have been carried as a standard operating procedure at regular intervals by the security forces. Wazapora-Kadikadal belt, Chari-sharief Residential Colony, Sopore, Kupwara are few instances to quote. All the incidents were immediately debited to the account of “Collateral damages”. There are instances where security forces did not allow deliberately fire tenders & ambulances to reach the effected spots for extinguishing fire & evacuation of injured civalians for medical aid.
The question naturally arises as to what is “collateral damage”. The dictionary meaning of the word "collateral", which is derived from latin word collateralis, is "parallel" or "additional".In military expression,when coined with the word damage, it means an unintended damage to Civalian objects & property during security operations.
As is evident, intent is the key element in understanding the military definition as it relates to target selection and prosecution. Collateral damage is damage aside from that which was intended. It does not include a damage or destruction inflicted intentionally on civalians with a purpose of teaching them a lesson.
No law, national or international, permits security forces to indulge in wanton destruction of civalian properties. Under international law, civilians and their properties are protected under the laws of armed conflict by the principle of distinction. Under this principle, parties to an armed conflict (including militants) must always distinguish between civilians and their properties on the one hand, and combatants and military targets on the other. Article 57 of the 1977 Additional Protocol I to the 1949 Geneva Conventions states that, in an international conflict, "constant care shall be taken to spare the civilian population, civilians, and civilian objects." In addition, under Article 51, certain type of operations are prohibited, as are attacks that employ methods and means of combat whose effects cannot be controlled. Finally, attacks are prohibited if the collateral damage expected from any attack is not proportional to the military advantage anticipated. Military commanders in deciding about attacks have to be aware of these rules and either refrain from launching an attack or suspend an attack if the principle of proportionality is likely to be violated, or re-plan an attack so that it complies with the laws of armed conflict. It must be noted that the obligation of a State to uphold the principle of distinction is also valid as customary law even if the State has not ratified the relevant protocol.
Additional Protocol II requires that, so long as they do not take part in hostilities, the civilian population "shall enjoy general protection against the dangers arising from military operations" and "shall not be the object of attack." It also prohibits acts or threats of violence whose primary purpose is to spread terror among the civilian population.
Coming to the the draconion Armed forces Special Power Act, which offers an impunity & immunity to security forces, it is submitted that the said Act also does not permit a hara-kiri on a scale witnessed in chinkipora. First, in an armed conflict in a disputed area like J&K, all national laws on the subject become subservient to the international law. Further even if, security forces are vested with powers which are excersible merely on the basis of suspicion, such powers have to be used resonably in good faith & not capriciously or whimsically.
Looking to the destruction & devastation inflicted on Chinkipora residents in light of the above arguments, it is clear that security forces have voilated with impunity all rules & norms while conducting the operation. Destruction of fifty house is quite disproportionate to the number of alleged militants present in the area. The said loss is not a collateral damage but a wanton destruction of civalian property with clear imprints of “teach- you-a-lesson” policy on it.