the

Use of lethal force and military aid to civil power Australia and India

thank you too

good afternoon ladies and gentlemen I

feel like I am home

I moved to Australia seven years ago

before that I was working at idsa born

was five years and actually for the

first time I am speaking from an Asian

security conference forum so thank you

very much for giving me the opportunity

ambassador koukla or thumb having spent

38 years in this country before I moved

to Australia including 18 18 years of

research experience and five years of

research at idsa I think I I find myself

in a very unique position that now that

I have moved to Australia with the

understanding of Indian security issues

I find it very interesting and useful to

use my Indian understanding of security

and strategic issues and draw up on the

expertise which is there at the center

in Australia Griffith University and

SEPs and work on the issues which are

common to both India and Australia so

keeping that in mind this is first of

the initiatives which draws upon

perspectives from India and Australia on

issues of common nature that we decided

to look on the area specific laws in

India there are nationwide nation

specific laws and there are areas

Pacific laws than there are state

specific laws in this regard we were we

chose to look at the area specific laws

that is the use of force and also the

recent developments and amendments or in

the anti hijacking laws in india because

sam and i we have been sitting and

discussing and we said that it would be

interesting look at how different

countries different democracies respond

to a situation like a hijack and what

what are the security forces an armed

force is entitled to do and clearly I I

remembered the experience that the

decide experience the whole nation had

in 99

9 so that helped a zero on the on the

anti hi checking laws as well as a part

of this vapor ladies and gentlemen

Australia India relations have come a

long way since the 1990s when they

lacked warmth because of the nuclear

test but over the last decade bilateral

engagement has intensified in across

various fields but the major leap came

in 2009 when former prime minister kevin

rudd came to india and the relationship

was elevated as strategic partnership so

within that a joint working group on

counterterrorism was also established to

provide and buttress cooperation in the

Security and Defense field you will

agree that both India and Australia

though in varying degrees our victim of

terrorism and many of you may be

surprised that the first act of

terrorism in Australia actually was in

1977 when a member of the unmarked

kidnapped the Indian defense attaché a

candle iqbal singh and his wife to

avenge the rest of their leader Prakash

Ranjan circa by the Indian government

that was in 1977 and after that

Australia faced a number of terrorist

attacks including 1972 bombing of the

Yugoslav general trade agency in Sydney

then 1970 bombing of the Sydney hilton

hotel then 1980s assassination of the

Turkish council general in Sydney 1982

bombing of the Israeli consulate and of

course the bali attack in 2002 in which

of 88 Australians were killed and

Australia Austrian troops in in recent

decades have been deployed in various

contractors and at the moment they are

still in Afghanistan and which makes the

Australian citizens and the defense

forces and the government a target of

various terror outfits in Afghanistan

itself in Australia has lost over forty

soldiers and 261 have been injured with

Australia homegrown terrorism remains a

key concern for the government and in

recent years this has led to the

prosecution and conviction of over 35

people for terrorism-related offenses

India has its own sad story which we

have all seen in the last 20 25 years

having lost six to three thousand people

in tourism related violence at the hands

of various jihadi groups who have been

coming from across the border and also

now from within described as at the

homegrown artists groups and also the

left-wing extremists and we all remember

the 1999 hijacking of the ill-fated IC

814 which finally landed in Kandahar

after India agree to release those three

terrorists who were imprisoned in India

at that time now after following the

Mumbai attack in 2008 India confronts a

triad of terrorist threats from the land

sea and a internally the Indian

government to deal with internal

disturbances in Jammu and Kashmir and

into the Northeast has deployed its

armed forces and the prolonged

deployment of the armed forces you all

must have read in the reports and in the

newspapers and across across various

academic studies has fueled a bitter

acrimony and tension between New Delhi

and Jammu and Kashmir and northeast as a

result now the Indian government is

contemplating maybe the repeal or off of

or the modification of the Armed Forces

powers act which was passed in nineteen

fifty eight and also recently a couple

of years ago in fact when Indian

government also passed the amendments to

its anti drinking laws of 1982 but I

will I will submit this that it is

indeed a very difficult task this is

what we've also realizing the study with

regards to Australia that it is very

difficult preserving its the nation's

integrity and interest on the one hand

and other

hand us watching international concerns

and national concerns with regards to

human rights violation and it is very

critical and difficult to get that the

balance right and in this regard 11

Singh said we are ready to run learn

from international experiences there is

there is indeed a quite a bit of

divergence in internal security threats

both in scale and nature between India

and Australia but nonetheless I think

parallels can be drawn from the

respective legislative frameworks that

facilitate the domestic deployment of

armed forces in crisis situations to aid

civil power and what are the safeguards

within which they have to function and

what are the restrictions on the use of

force when they are in action and in the

most salient lesson that comes to the

fore of Romania nos realized that in the

aftermath of any terraces there is

incident or any crisis it leads to an

over broad emergency powers legislations

and scant attention is given to

cost-effective reasonableness and

proportionality and that leads to a

spate of human rights violations and Men

and excesses by the security forces from

time to time so in this paper what we

are trying to do is that how can modern

democracies like India and Australia

combat their internal security

challenges effectively while at the same

time remain compliant with international

treaties conventions constitutional and

also domestic laws in in respect in

respective countries the Alpha the Armed

Forces a special powers act which was

passed in nineteen fifty I don't want to

go into that too much in detail many

this August audiences aware of the

provisions and the history but just to a

flag briefly that after 1947 we had four

ordinances which were passed and which

were replaced by the Aspen 1948 then the

1958 act game and then we gradually saw

it's it's the deployment of the forces

and not in the Northeast and then from

1990 onwards we saw the deployment of

forces in Jammu and Kashmir and what was

deemed as the disturbed area so a spa

confers special powers upon the security

forces in the disturbed areas in the

north east and in Jammu and Kashmir and

and and it empowers them to use up to

use a use force and carry out arrests

searches without warrant and effectively

suspending habeas corpus it empowers any

commissioned officer warrant officers

and noncommissioned officer even another

person's of equivalent rank to fight

upon or otherwise use force prohibiting

assemblies on more than five arresting

people carrying weapons the whole lot of

powers that are conferred upon the

security forces in the so-called

disturbed areas during the deployment

but what has drawn most criticism of

these acts is both nationally

internationally is that the the Act

confers on the security forces the power

to arrest intense search without a

warrant and interesting the Act says

that the arrested person of the detained

person who is in custody should be

handed over to the nearest police

station with the least possible delay

and we have a similar kind of provision

in the Australian law and legislation as

which Simon will refer to soon in his

innocence in his presentation but what

is most criticized is the immunity that

the Act gives to the Armed Forces and

when it says that no prosecution suit or

other legal proceeding shall be

institute instituted except with the

previous sanction of the central

government against any person so

generally speaking it is the derivation

from the right to be brought before a

competent court to answer charges

without delay and to contessa legality

of detention and sweeping powers to the

security forces lies at the core of the

controversy and grits

them not only from India also abroad of

the act in India you are very well aware

ladies and gentlemen that the omission

opinion remains deeply divided on the

one hand you of the Ministry of Defense

including our minister and the chief of

army Islamic General Bikram Singh who

say that we need to look at the

developments on Afghanistan in 2014 what

shape it takes before perhaps tampering

with or diluting the disturbed area act

the general VR ogwen who was former

director-general of military operation

and who was also a member of the g1

ready committee which looked into the

which reviewed the aspect he said in an

article which said don't blame the law

he said if aspas enabling powers are to

be revoked diluted or made subjective

normal processes of law the military

will conduct operations not on the basis

of military judgment but on the need to

defend its actions in courts however

because of the criticism which has been

raging in recent years not only from the

Northeast also from Jammu and Kashmir

now we have seen that the Indian Prime

Minister from home minister mr.

Chidambaram and and the the current

chief minister mr. Abdullah they all

have recommended reviewing the the

provisions of the Act the Home Ministry

is also suggesting that we should align

up our provisions in the Criminal

Procedure Code something which they have

been talking along the lines of what the

jeevan reddy committee has been

suggesting a cross country especially in

the northeast we have seen a large

number of protests have been occurring

over the years in which students NGOs

civil society groups have been

protesting against against the four for

the repeal of the a spa in the region

and and that has only intensified after

2004 when in Manipur tanga manorama was

detained by the assam rifles and

allegedly rape and short that led to the

i think the creation of the committee

the

jeevan reddy committed look into the

feasibility of reviewing or repealing it

and and internationally also they have

been criticism being leveled over the

years we had a Christof Heyns of the

united nations special rapporteur on

extrajudicial summary of arbitrary

execution with dead india and went to

Djimon kashmir and also assignment 2012

now the report which was put forward

after his visit he had it had two major

concerns first was the use of lethal

force by the security forces under

Section 4 and second the broad

protection provided to officers under

against prosecution under Section six as

the executive section 6 of a spa the

report also pointed out that that the

acts of the a spa were not in compliance

with international standards when it

came to protecting human rights and

right to life and it noted that it

confers more powers on the security

forces then they are generally entitled

to in an emergency situation and it said

that retaining a law like after runs

counter to the principles of democracy

and human rights so you can see there

have been international concerns and it

was not only this report there are range

of other report which have been looking

at the the allegations of abuses and

excess from time to time which have been

which are being reported in the Indian

media and the Justice jeevan reddy

committee itself which was constituted

in 2004 it came out with the very sharp

criticism of which in fact a general

Rahman who said that don't be in the law

who was also a member and and then they

report up in very clear terms the

committee in clear terms said that the

deployment of armed forces out to be an

exception not the rule

and then a then we also had it also said

that the Armed Forces should be held

accountable and then I should be

repealed now these are there were

several recommendations by the committee

in which in the ministry of home looked

at the government were looking at and

and some of which are basically an

effort to try to bring them in

compliance with the international

international standards when it comes to

human rights and and speaking about the

anti hazing laws in just a few minutes

before I hand it over to Simon I think

the NT hijacking Act which India had of

1982 which which was a man dead in 2010

and and and after the amendment the new

power and new amendments now empowered

the indian air force in the indian space

to use force to shoot down and hostile

plane if there was conclusive evidence

that is likely to be used as the missile

to blow up strategic establishment so

after that I up I was of a scanning

linnean media there was a debate going

on even they were the there were

hostages from the 1999 crisis who had

come forward and were questioning the

the new policy in amendment of shooting

down an aircraft and a government of

india no negotiation policy with the

terrorists and in the hijacker saying

that it was because of the negotiations

in the 1999 crisis that the lives of so

many passengers could be saved and and

and and there are some experts we have

been saying instead of no negotiation

policy government of india should be

having a no capitulation policy towards

the hijackers so this test as a white a

wide range of opinion on these

amendments so on these I thought it will

be interesting to see how does the

Australian legislation and law look into

these circumstances any use of use of

different forces 28 civil power so with

these with these words I will invite

seven to bring his perspective from the

from the Australian context thank you

thank you I'd like to thank the director

for inviting us to to the conference and

to the chair for taking the time to a

chair this this session I think it's

very important in light of some of the

responses that are going on here to make

a statement quite clearly that I that

we're not intending to enter into this

debate about the Armed Forces Special

Powers Act that was merely by way of

context to give give what I think is

really important which is that we need

to shift debates about the use of the

military away from a discourse that is

using human rights and international law

to critique it to look at comparative

law to look at what we can learn from

other jurisdictions about how and when

and under what conditions the armed

forces are used domestically and in that

respect I came to India to share some

lessons in relation to that and I think

they're very they're very pertinent it's

quite clear that Australia like many

countries that inherited the the British

model of law approached internal

disturbances with a combination of

martial law reading the riot act and

also warlike powers wartime powers

emergency powers and as I should wash

pointed out the beginning of our journey

with developing a more modern and what I

would say as a human rights friendly

approach to the use of the military

domestically occurred in the 1970s

following the Annan Marg alleged attack

in relation to the Hilton bombing in

1978 but it became a clear clear in the

run-up to the Sydney Olympics that this

model that we were developing in

relation to the use of the call our

powers we call them calling out the

troops was not really modern enough to

cope with the nature of the moderns

terrorist threat and so we created a

legislative framework within our defense

act we inserted something called part

three Triple A which if you read it and

it's a very extensive piece of

legislation and

respect differs from the arm for special

powers act because it tried to work at

the level of detail of guiding

decision-making of all the players in

the process and I think following the

911 attacks it was further reviewed

recognizing that the earlier legislation

had been modeled around a hostage siege

scenario and of course as we know now

that sometimes the military don't have

the time to invoke a civil chain of

command consulting with the in our case

the governor-general the Prime Minister

ministers of state before they exercise

a use of force a protocol so it's very

clear that they had to adapt to what is

obviously the modern threat which is a

mobile terrorist situation that is

unfolding very quickly and so we mended

our laws in 2006 to be clear as to what

the powers responsibilities and

immunities and I think that's one of the

key points that have come out of the

Australian experience is that there is a

need to provide both powers and

immunities but have them circumscribed

so in our situation we we're going to

focus because I think it is a fairly

contentious area legally is the power to

destroy a hijacked aircraft imagine 911

occurred again today and this is

certainly a scenario that many countries

have had to deal with it's a very

fraught decision information is always

going to be patchy there's going to be

conflicting views as to as to what is

happening and what is unfolding and

planes move very quickly and it's very

clear that the decision-making processes

around this have to be made swiftly and

in that respect Australia has moved to

set up a framework of prospective

authorization of use of force

designating specific areas specific

places they're not actually identified

publicly there's a process by which

key critical infrastructures and that

comes back to the theme of this session

key critical infrastructures are

designated so we can presume these will

include major military installations

then include major political sites such

as parliament house as well as utilities

gas and I suspect also key cultural

sites of significance like say for

example sydney opera house but it's very

clear that these these critical

infrastructures are able to be

designated beforehand and that they that

the military in those situations will be

able to exercise their powers

proactively and but before I go into any

more detail on that I just want to set

out the principles that are can't

contained in the act because they're

they're very important they set out in a

sense the purpose behind setting out

part 3 trip alone and they were that the

ADF the Australian Defence Force should

be called out in aid of civil power as a

last resort wear civilian authorities

are unable to deal with the situation

where they are called out the Defence

Force where the Defence Force is called

out civil power remains paramount so

there's no essential suspension of civil

law they working within the framework of

of the law is conferred by parliament

civil power remains paramount at the

same time the ADF are not placed under

civil command the key point about

decision making is it's taken within

military command so all of this is

clarified clarified by our legislation

they can use force but they can only use

force that is reasonable and necessary

in the circumstance and ultimately the

purpose of the act is to make sure that

the ADF remains subject to the law and

accountable for their actions so these

are very important enabling tools I

think in a crisis particularly high seas

where you may not have a template of

past experiences that you have a

framework of that will guide decision

making

so in relation to this there are a

number of different domains in some

situations where there is an opportunity

when it's not a situation of its engine

see you will have decision-making

through a chain involving the Prime

Minister authorizing ministers that will

give power to the governor-general to

call out the troops of course this is in

a situation where something is like a

siege where there's a time to allow

people to make those make those

judgments in six in situations of eggs

engine see the military can act without

that obviously without that required

approval it does also say that term and

there are safeguards embedded that the

Chief of Defence Force must not stop or

restrict any protest dissent assembly or

industrial action except where there is

a reasonable likelihood of death or

serious injury to persons or serious

damaging damage to property so this is

an example where of course fundamental

rights to engage in peaceful protest a

freedom of association if you like human

rights are given explicit protection so

it's um and when people are detained

within the framework of this act as in

India they must be brought promptly with

without any at the earliest practicable

time delivered to police custody again

reinforcing the point that civil

civilian Authority providers so

obviously getting to the heart of these

powers and the controversy around them

its immunity and there is no doubt the

part three Triple A confers immunity on

the military for actions taken under the

Act and obviously they can use force up

to and including lethal force and they

are immune from both civil and criminal

liability having said that there are

constraints a an ADF member cannot use

force unless so there's a prescription

on using force

less certain conditions are satisfied so

in this context the law is seeking to

guide the decisions of the ADF the

Australian Defence Force on the ground

so you can't use force unless four

conditions are satisfied that the order

to give force to use force is not

manifestly unlawful secondly that the

member the ADF member the soldier on the

ground or the pilot in the f-111 has no

reason to believe that the circumstances

have changed in a material way since the

relevant order was given so it's in a

sense reiterating the importance that

the key frontline decision makers are

using their own judgement and not simply

slavishly following orders the member

has no reason the third condition the

member has no reason to believe that the

order was based on a mistake as to a

material fact and finally that the

taking of the measure was reasonable and

necessary to give effect to that order

so you can see that there is a a strong

legal framework that is guiding decision

making of those people who are called

upon in very difficult situations to

make decisions that will sometimes

involve the taking of innocent lives um

probably most contentious is the power

to to use lethal force to protect

critical infrastructure and it's quite

possible to envisage a situation where a

plane is shot down because it was

threatening and a security installation

that in fact is unmanned so here we're

saying we're valuing if you like the

lives of the innocent passengers on that

plane against the importance of that

vital military installation there are

lessons to learn from this in relation

to to European case law and in fact in

Germany in 2005 which had a similar law

which allowed the shooting down of

hijacked aircraft as in India and

Australia was held by their

constitutional court to be in violation

of the right to human dignity that you

couldn't in a sense trade the lives of

innocent individual

in that circumstance because of the

importance of the right to human dignity

in Germany for whole range of reasons

historical that right the right to human

dignity is regarded as a fundamental and

over paramount human right obviously in

the in our system we've decided to weigh

that differently and we don't have that

jurisprudence around human dignity so in

relation specifically to the use of

force decision-making it's clear that

you can't as a defence member do

anything that is likely to cause death

or grievous bodily harm unless the

person believes on reasonable ground

that again three factors that it's

necessary to protect the life or prevent

serious injury to another person that

extends to the life of the ADF member

the soldier or the pilot that the doing

of the thing is necessary to protect

critical designated infrastructure

against the threat of damage or

disruption that is one of the more

contentious powers that all the doing of

the thing is necessary reasonable to

give effect to an order under which the

member is acting so you can see clearly

the immunity it takes the framework of

legal liability outside state and

territory law in Australia our criminal

law is not governed by one act we have a

federal system as Saskia alluded to

overlaying by a state and territory

system so we have effectively nine

criminal laws that are competing and

this Act clarifies that the state and

territory criminal has no application as

long as the as long as the military are

acting within the framework of the law

the state authorities still have a role

in investigation of any action that

leads to death or acquire criminal

offense but the key decision in relation

to prosecution is taken by our federal

Commonwealth Director of Public

Prosecutions so we have a kind of a meld

it's system here of civilian oversight

of the military we haven't left it

entirely to the framework of our ADF

military law and military justice system

so you can see that we've we've not

favored a blanket immunity it's a

conditional immunity it has to satisfy a

range of thresholds and obviously

training in in the ADF around this focus

is on those those key statutory

thresholds so when you when you convert

the law into fact in effect rules of

engagement are Oh eyes you're taking

into account all of these factors so I

think you can say that there is more

legal clarity for frontline respondents

in Australia and they're not left to the

vagaries of a retrospective assessment

of whether we should prosecute or not

they actually have greater legal

assurance when they're called upon to

act so drawing some conclusions I think

I can say quite competently comparative

analysis of counterterrorism and

security law is not without its

challenges and potential controversies

not only do you have to have technical

knowledge of different systems of law

but you also have a have to have a

serious commitment to understanding the

history and context of these powers and

an appreciation that simply a solution

adopted in one country whether it's

Australia India is not necessarily

universe a universally applicable that

said I think as a real value in

comparative learning and the policy

public policy people would talk about

policy learning in other fields and it

strikes me is quite interesting and it's

just a general observation that in the

field of terrorism and security law

there isn't much policy learning going

on as there is in other fields and that

there is a kind of a parochial aspect to

all forms of security models I mean part

three Triple A isn't the same model

that's adopted in the UK and let man if

I could equally give a similar

presentation in a UK or Canada so I

think there needs to be a much more

serious engagement across borders and

sharing of lessons so I want to make

three final observations and that we can

draw from our analysis

is the roles of the modern military with

in domestic borders are changing and the

military are being increasingly called

upon in liberal democracies to perform a

whole range of internal roles as an

adjunct of policing and Public Order I

mean you've see that in relation to the

g20 and the Commonwealth Games in

Australia you will see those powers

being exercised quite extensively I have

no doubt you also see them most

controversially being used in in 2006 in

relation to some crises in our

Aboriginal communities with concerns

about widespread crime and violence

against women the troops were deployed

for nearly a year to bring about greater

levels of public order and stability in

those in those in those communities so

we have we have the same kind of

controversies about when it is

appropriate to use the military but it

was was felt that the territory police

forces couldn't stem the crisis and in

that context the military were called

upon so I think the second observation

is the mere presence of the military on

the streets is not necessarily a sign

that civilian Authority has been

displaced I see that reading this the

debate on this in the I have to say a

fantastic collection of essays that this

is clearly being debated here at the

ideas IDSA the Armed Forces Special

Powers Act the debate which was

published last year you can see clearly

there is a often a discussion about

emergency powers and states of exception

it strikes me that a lot of this

legislation doesn't have to be framed in

these terms these are civil

contingencies these are disasters the

framework for legislation doesn't have

to deal with just one aspect of the use

of the military it can be much more

broad broad ranging and I think it is

absolutely vital that democracies like

India and Australia have modernized

legislation I think one of the papers

said the this act is actually a legacy

of and basically a colonial inheritance

taken from the special

powers models that were were pre

independent India and clearly modern

legislation set out an advance that sets

out the balance that's needed to be done

between enabling the military to give

assistance as required whether it's to

law enforcement or two to emergency

services when there's a flood or a fire

as in Australia these this law has to be

worked out in a modern framework so it

seems to me that that will provide

benefits in terms of assurance to the

the military on the ground that when

they have to use force in extreme

situations to combat terrorism or

organized crime I mean we've actually

seen our military deployed recently to

deal with the motorcycle gangs in

Australia first time really ever that

we've seen our military deployed on a

policing operation because they know

that they're going to be facing heavily

armed gang members outlaw motorcycle

gangs who will have serious firepower

and that is beyond the capabilities

generally of a non paramilitary police

force which tends to be the nature of

our state and federal police so finally

I think the key issue here is also a

blanket blanket immunities aren't

desirable clearly they should be

conditional and I think that is clearly

an important factor in a modern

democracy that the any any defenses that

are created are ultimately circumscribed

by law but in the end ultimately the

legitimacy of the military on the

streets is going to rest on public

confidence in the ADF and it is a

striking thing just to quote a recent

poll one of the most highly respected

professions in Australia is in fact the

ADF and I think that's one of the

reasons why when they're called out in

disasters that there is a little concern

about that they're they're there to help

and generally that goes to assist in

upholding their public confidence much

higher than politicians much higher than

media and much higher than lawyers all

of whom

trail much further down in the list of

public confidence in in in the wider

community so I think it's it's vital

that the military received training when

they are deployed that they are

politically and culturally sensitive and

adequately can train in relation to

human rights so I think I think just by

way of a final comment India in many

ways is better placed to develop

legislation that is is human rights

friendly it's conscious Constitution

actually seeks to uphold human rights in

the way the Australian Constitution

doesn't an Australian Constitution

drafted at a different time was

completely silent in relation to human

rights and we are probably one of the

only Commonwealth jurisdictions that

continues not to have an entrenched Bill

of Rights or human rights legislation

nevertheless we have human rights

acculturation if you like we are highly

sensitized to issues of civil and

political rights as is apparent when

we're drafting our legislation old

colonial style emergency powers

inherited from Britain what we could

call a martial law model that simply

seeks to define powers and roll them

over on a temporary basis on an

emergency basis similar to those that

were utilized in Northern Ireland for

nearly for nearly 40 years do not pass

muster today so I hope that to our

lessons from Australia may may at least

pause pause pause for a reflection that

these these are difficult to difficult

and controversial issues but we can we

don't need to confine ourselves merely

to critique that we can actually move

beyond a human rights critique to look

at other models from other countries to

see how we can develop a new system and

use new set of laws for controlling the

military when they called out to assist

in aided civil power thank you