Border Killings: In the light of Domestic and International Law

(written in 2011)

India and Bangladesh share an international border of 4,095 kilometers (2,545 miles). Several Indian states, including West Bengal, Assam, Meghalaya, Mizoram, and Tripura, adjoin a total of 28 Bangladesh districts at the border. Drawn by the British in 1947, there is little geographical or ethnic logic to the border. The populations on both sides share cultural, linguistic, religious, economic, and, crucially, kinship ties.

The border area is densely populated, occupied primarily by farmers and landless peasants. But a growing population, poor irrigation, flooding, and continuous river erosion, are undermining the ability of farmers on both sides of the border to make a living. Smuggling, cattle-rustling, and human trafficking are all on the increase in the border region.

Border Security Force (BSF) is responsible to guard the Indian border with about 220,000 personnel, it is currently among the world’s largest border forces. On the other hand, Border Guard Bangladesh (BGB) is for Bangladesh border which is formally known as Bangladesh Rifles (BDR).

In West Bengal, just one of the five Indian states that share a border with Bangladesh, the Banglar Manabadhikar Suraksha Mancha (MASUM), a non-governmental organization based in India, has investigated at least 61 killings by India’s Border Security Force (BSF) since 2007; many other Indian nationals were killed in the remaining four states. West Bengal has a border length of 2216 km; Tripura, 856 km; Meghalaya, 443 km; Mizoram, 318 km and Asssm, 263 km. That trend is reflected by Odhikar, a Bangladesh human rights monitoring group, which has documented that at least 315 Bangladeshi nationals were killed by BSF, all across the border with India since 2007. According to the BSF, a total of 164 Indian nationals and 347 Bangladeshi nationals have been killed in BSF firing since 2006 (Indian Govt. Source). The Indian government insists that in recent years, it has ordered the BSF to exercise restraint.

Human Rights Violations by BSF:

BSF personnel are not accountable to the local administration, the police, or to human rights institutions. The police, in fact, often refuse to register complaints against the BSF. Under India’s Border Security Force Act, BSF personnel cannot be prosecuted in civilian courts without approval from the federal home ministry—permission that is seldom granted. Sometimes BSF personnel are prosecuted by internal courts, where the hearings and verdicts are not public. Not surprisingly, this deeply flawed system of accountability has failed to serve as effective deterrence against human rights violations.

The BSF has been accused of human rights violations in other parts of India where it operates. But there is very little information available on whether those responsible are properly prosecuted and punished. While the Indian government often claims that the National Human Rights Commission (NHRC) acts as a watchdog, the Commission cannot independently investigate allegations against federal forces including the BSF. Soon after the NHRC was formed, it did try. After 37 people were killed by the BSF in October 1993 in Jammu and Kashmir, the NHRC sent notices to the Home Ministry. Based on the government’s report, the NHRC then recommended immediate interim compensation to the victims’ families and said that, apart from disciplinary proceedings under the Border Security Force Act, there should be parallel criminal prosecution proceedings. The government provided compensation, but said criminal proceedings were not necessary because the BSF was conducting its own internal trial in the Staff Court of Inquiry. However, the government refused to provide the NHRC with transcripts of the trial. The NHRC was, therefore, unable to vouch for the fairness of the proceedings. According to press reports, all those charged with murder were acquitted.

The BSF says that most of the civilians killed by its personnel are smugglers, cattle-rustlers,

or others gaining unauthorized entry. The BSF also points out that it has a duty to prevent illegal activities. During an official visit to Bangladesh and talks between the BSF and the BDR in September 2010, Raman Srivastava, Director General of the BSF, reportedly said in response to allegations that BSF troopers were killing innocent and unarmed Bangladeshi civilians: “We have made it clear that we have objection to the word ‘killing,’ as it suggests that we are intentionally killing people. We fire at criminals who violate the border norms.” Claiming that smuggling and illegal infiltration was rampant, he said: “The deaths have occurred in Indian territory and mostly during night, so how can they be innocent?”

In an effort to contain the problem of illegal immigration, trafficking, smuggling, and the infiltration of militants, India has embarked upon constructing a fence inside its border. Over 2,500 kilometers of fencing has been completed. Border posts are set up at intervals of 4.5 kilometers which will be shortened to 2.9 kilometers once the fencing is completed.

Excessive Use of Force and Killings by the BSF :

The Indian Border Security Force (BSF) justifies the killing of suspects by claiming that they were evading arrest, or that they had to fire in self-defense. However, in the cases investigated by Human Rights Watch, the alleged criminals were armed with nothing but sickles, sticks, and knives, commonly carried by villagers in the area. The police reports filed by the BSF seldom mention injuries received by the BSF’s own personnel which suggest that the border guards may have used lethal force instead of attempting arrest. In a number of cases, the victims were shot in the back, indicating that they may have been shot while running away. In others, injuries indicating victims were shot at close range, support allegations that they may have been killed while in custody.

Section 46 of India’s Code of Criminal Procedure, 1973 states, (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be it submission to the custody by word or action. (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to affect the arrest. (3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

That means it is permissible to use “all means necessary” when a person attempts forcibly to resist arrest, but it also clearly forbids causing the death of a person who is not accused of an offence punishable by death or a life term. Cattle-rustling is not such an offense. In other words, under domestic law, while authorities may use force to detain such a suspect, they cannot use lethal force to do so. However, no international law or standard permits the use of lethal force on the grounds that a person is suspected of a crime that carries life imprisonment or the death penalty. BSF members violate domestic and international laws when killing Indian and Bangladeshi nationals.

The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990) calls upon officials to apply, as far as possible, non-violent means before resorting to the use of force and firearms. Even in self-defense, intentional lethal use of firearms is permitted only when strictly unavoidable in order to protect life. Officials are required to exercise restraint and “act in proportion to the seriousness of the offence.”

But the real scenario is, According to Odhikar, between 2000 and September 2010, over 930 Bangladeshi nationals were killed in the border area by the Indian BSF. And According to MASUM, hundreds of Indian nationals have been killed by the BSF inside Indian territory, including in West Bengal state.

Torture of Border Residents by BSF:

Both MASUM and Odhikar have also documented repeated allegations of abuse and torture by the Border Security Force (BSF). These abuses range from intimidation and verbal abuse to beatings and electric shocks, sometimes resulting in deaths.

The BSF ignores procedural safeguards designed to prevent torture and other mistreatment of persons in custody. Although Indian law requires that everyone taken into custody must be

produced before a magistrate within 24 hours, this rule is usually ignored. The Supreme Court has stated that Article 21 of the Indian Constitution protects individuals from any form of torture or cruel, inhuman, or degrading treatment it states, No person shall be deprived of his life or personal liberty except according to procedure established by law. The Indian Penal Code forbids causing “hurt” or “grievous hurt” and prescribes prison terms and fines for officers found guilty of torture by sections 330 and 331. Section 176 of The Criminal Procedure Code requires a magisterial inquiry into any death in custody. The Prevention of Torture Bill, 2010, was passed by the Lower House in parliament on May 6, 2010 and has now been submitted to a parliamentary committee for review.

Torture is also banned by international law. The 1948 Universal Declaration on Human Rights, 1948; Article 5 states: No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), the most detailed expression of the international community’s censure, makes it compulsory for state parties to make torture,

attempts to torture, and complicity and participation in torture, criminal offenses under their national laws. CAT defines torture as: Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Murder of Felani : Reference with an International Case

Fact of Felani’s Murder

Fact and Decision in García and M. A. Garza vs USA Case

South Ramkhana is a village at the Bangladesh border under Naggeshwari Upazila of the Bangladesh-India border district of Kurigram. Most of the occupants of this impoverished village are either farmers or make a living by agriculture. Due to poverty and a very poor and difficult communication system, most children of this locality cannot go to school. Killing and aggression by the Indian Border Security Force (BSF) also cause the villagers to live under a constant state of fear. When he was very young, Nurul Islam left this village in Bangladesh, for Assam in India with his mother, after the death of his father and due to extreme poverty.

On 7th January 2011, at approximately 6:00 in the morning, Nurul Islam’s daughter, 15 year old Felani Khatun, was shot and killed by the Indian BSF. According to Nurul Islam, an eye-witness to this killing, he and Felani were crossing into Bangladesh, by climbing over a barbed-wire fence using bamboo ladders, through the vacant space between number 3 and 4 S pillars, which are adjacent to the 947 main pillar of the Kitaber Kuthi Anantapur border.

In order to do this they had made a deal with two Indian smugglers, namely Mosharaf Hussein and Buzrat in exchange of 3,000 Indian Rupees. While they were crossing the fence, Felani’s clothes got tangled in the barbed-wire, which frightened her and caused her to scream in panic. In quick response to her scream, the BSF on patrol opened fire at them. Felani was shot and killed, but her father managed to escape.

The body of the deceased teenager hung on the fence till 11 am that morning; subsequently, 5 hours later the BSF brought down Felani’s body and took it away. About 30 hours after the incident, on 8^th January, 2011, following a flag meeting between the Border Guard Bangladesh (BGB) and the Indian BSF, Felani’s body was returned to the concerned authorities in Bangladesh. On 9th January, 2011 at about 7:00 in the morning the body was then sent to Kurigram District Hospital by Sub Inspector Nuruzzaman of Phulbari Police Station, for post-mortem. After completion of the postmortem at the Kurigram District Hospital, the body of the deceased was handed over to her maternal uncle Hanif Ali, by the police on the same day. At approximately 10 pm that night, Felani’s body was buried in the back yard of her home.

The claim was presented by the United Mexican States against the United States in behalf of Teodoro Garcia and Maria Apolinar Garza, Mexican nationals, father and mother of Concepciôn Garcia, a girl of Mexican nationality, who on April 8, 1919, between 9 and 10 a.m., was killed by a shot from the American side, while crossing from the American to the Mexican side on a raft propelled by two men in the water, in the company of her mother and her aunt, not far from Havana, Texas, the father, a laborer, looking on from the Mexican bank.

An American officer, Second Lieutenant Robert L. Gulley, 4th United States Cavalry, was that morning on duty on the border with an armed patrol of four men, had discovered the raft in contravention of the laws, had fired in order to make them halt, and unfortunately had mortally wounded the young girl, who died immediately thereafter.

Having been tried before a court-martial, he had been sentenced on April 28, 1919, to be dismissed from the military service, but the commanding officer at San right to reserve the case for the decision of the President of the United States, and the President, acting on the advice of the Board of Review, the Judge Advocate General, and the Secretary of War, had reversed the findings of the court-martial, released the lieutenant from arrest, and restored him to duty (September, 1919).

It was alleged that the United States is liable both for a wrongful killing by one of its officials and for denial of justice; that the claimants sustained damages in the sum of 50,000 Mexican pesos; and that the United States ought to pay them the said amount, with interest thereon.

The raft left the Mexican side in the morning of the said day to take from the opposite side Garcia’s daughter who had been for about three years in the United States, but had fallen ill and was to be taken home, and Garcia’s wife with her sister, both of whom had been on the other side for a couple of days. All members of the party were unarmed. They crossed the river en a place where such crossing was strictly forbidden by the laws of both countries. It is not doubtful from the record that at least Teodoro Garcia, the girl’s father, knew perfectly well that this crossing was a delinquency and a risky act. Nor is it doubtful that the American officer had been especially instructed to enforce on the river border different sets of acts and/or regulations which forbade crossing, smuggling, and similar offenses. Less than two months before, however, on February 11, 1919, a military regulation had been promulgated, reading in its paragraph 7: “but firing on unarmed persons supposed to be engaged in smuggling or crossing the river at unauthorized places, is not authorized.”

The Commission held USA liable for killing those two girls and award compensation of $2000 to the parents of murdered girls.

In December 2010, International Human Rights Organization Human Rights Watch published a report named, “Trigger Happy” Excessive Use of Force by Indian Troops at the Bangladesh Border. In that report, Human Rights Watch made some recommendations to Indian Government, Bangladesh Government and to United Nations.

Recommendations

To the Indian Government

Vigorously investigate and prosecute all allegations of grave human rights violations by the BSF, and issue clear instructions to the police to proceed immediately with investigations. Send a strong message to the Border Security Force (BSF) that the perpetrators of grave human rights violations will be held to account and that all members of the security forces must fully cooperate with investigations. Those who fail to do so should face appropriate sanctions such as suspension or dismissal.
Enact the Prevention of Torture Bill after removing all provisions that grant immunity to government officials from prosecution for criminal acts. Amend the Border Security Force Act to ensure that security forces personnel accused of human rights violations such as torture of civilians can be tried in civilian courts.
Publicly order the BSF and other security forces to abide by the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. This requires officials to apply, as far as possible, non-violent means before resorting to the use of force and firearms. Even in self-defense, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. International law also requires security forces to give a clear warning of their intent to use firearms, and sufficient time to surrender.
Amend Section 46 of the Criminal Procedure Code to make it consistent with the UN Basic Principles so that lethal force may only be used in order to protect life.
Initiate investigation and prosecution by civilian authorities of BSF personnel of all ranks implicated in serious rights abuses. (The internal justice system has failed to secure accountability or act as deterrence because it continuously fails to prosecute members of the BSF for human rights abuses).
Instruct the police to register complaints against the BSF in cases of abuses against Indian and Bangladeshi nationals. The police should not refuse on the grounds that it is the responsibility of the BSF internal courts to deal wth abuses by the BSF.
Instruct the BSF to apply guidelines as laid down by the National Human Rights Commission to investigate all cases of deaths during security operations.
Establish an independent and impartial commission of inquiry into serious violations of international human rights law by the BSF. This inquiry should invite both Indian and Bangladeshi nationals to submit evidence and bring complaints. The inquiry should be time bound and transparent, and should have the ability to provide protection to witnesses.
Repeal all legal provisions that require approval of the executive branch of government for prosecutions against members of the security forces to proceed, including in article 197 of the Criminal Procedure Code. Similar provisions in the Indian Prevention of Torture Bill currently in front of the Indian parliament should be deleted. Such provisions provide effective immunity to the security forces and violate the principles of equality under the law enshrined in both the Indian Constitution and international law.
Strengthen the NHRC by amending the Human Rights Protection Act to allow national and state human rights commissions to independently investigate allegations of abuse by members of BSF.
Publish detailed information on all arrests, prosecutions, and convictions of BSF personnel for human rights violations and release the same information on an annual basis in the future.
Ensure an effective system of vetting is in place for any members of the BSF who are proposed for promotion and/or for overseas UN peacekeeping duties, or specialized training abroad, to ensure that anyone under investigation for grave human rights violations is banned from travelling abroad.
Place human rights protection mechanisms for Indian and Bangladeshi border residents at the center of any bilateral dialogue on border issues with Bangladesh.

To the Bangladeshi Government

Vigorously advocate for an end to abuses by the BSF. The Bangladeshi authorities should not accept the claim that individuals involved in crime are legitimate targets of the use of lethal force or that only people who are “innocent” deserve the protection of the law.
Publicly order the BDR and other security forces to abide by the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. This requires officials to apply, as far as possible, non-violent means before resorting to the use of force and firearms.
Ensure that individuals or groups based in Bangladesh that are responsible for violent attacks upon Indian nationals are properly identified and prosecuted.
Place human rights protection mechanisms for Bangladeshi and Indian border residents at the center of any bilateral dialogue on border issues with India.

To the United Nations

The UN Department of Peacekeeping Operations should ensure an effective system of vetting is in place for any members of the BSF or BDR proposed for overseas UN “Trigger Happy” 60 peacekeeping duties, or specialized training abroad, to ensure that anyone under investigation for grave human rights violations is banned from travelling abroad.
The UN Department of Peacekeeping Operations should inform the Indian government that those BSF personnel responsible for human rights violations should be excluded from peacekeeping duties.
The Governments of India and Bangladesh should agree upon the request of the special rapporteur on extrajudicial, summary, and arbitrary executions to visit the country, pending since 2000 for India and since 2006 for Bangladesh. The special rapporteur should also include in his program visits the border areas between India and Bangladesh.