Are BSF members above the law?by Md Rizwanul Islam
THE acquittal of Amiya Ghosh, a constable of the Indian Border Security Force, charged with culpable homicide of Felani Khatun, would not only have an inconsolable blow to her family but also be baffling and grossly unacceptable to innumerable Bangladeshis who had pinned their hopes on getting some sort of justice. Unarmed Felani, a young minor, posing no threat to anyone was shot dead for committing the offence of crossing the border without any proper documentation at Chaudhurihat in Cooch Behar district of West Bengal in January 2011. Bangladeshis as well as human rights activists in India have dismissed this farcical acquittal of the charged constable as unacceptable.
The Indian government’s decision to prosecute Mr Ghosh from the beginning was less than straightforward. Although the incident was widely publicised in the local and international media, it took them more than two years to decide to bring charges against the perpetrator and the trial process had been conducted in strict secrecy. It is regrettable that it took so long for the Indian authorities to initiate the legal process in this matter. Given the fact that in the Indian subcontinent there is a paucity of instances of members of the security forces being subjected to punishment for committing violence against civilians, the outcome of the in-camera trial conducted by the BSF’s special court is perhaps hardly surprising.
The killing of Felani is not an isolated incident. Over the years, the reckless, disproportionate, and heavy-handed border patrol by the Indian security forces has taken away lives of many Bangladeshi citizens. The Indian force’s deplorable lack of deference to law has made the India-Bangladesh border one of the most precarious borders in the world for civilians. Illegally crossing the border is of course a crime, but taking away civilian lives by indiscriminate, on the spot shooting is a far more grave crime and defies international legal norms. The death of an armed civilian caught in an illegal cross-border movement and engaged in violence with the border security force may be legally defensible by border security forces, but the death of an unarmed, minor civilian illegally crossing the border can never be condoned.
If the decision of the BSF’s special court is not thoroughly scrutinised by the Indian civilian judicial process, this acquittal would send a signal to the members of the Indian security forces that lives of Bangladeshis are so cheap that there is virtual impunity for taking them away. Bangladesh being surrounded by its colossus neighbour, there is considerable unease among many in Bangladesh about the domineering attitude of India towards Bangladesh. Many Bangladeshis harbour resentments to India due to the feeling that bilateral relation between the two countries is conducted with scanty regard for international law and India has little regard for the legitimate interests of its neighbour. If the Indian authorities do not take this case to the civilian judicial system for proper redress, such feelings would be cemented further and this would not be congenial for healthy bilateral relations. On the other hand, if the case is dealt through proper legal channel and satisfactorily resolved, not only justice would prevail, but also India’s image as an emerging power on the global scene would improve.
While setting in motion the domestic civilian judicial process on this issue is a matter for the Indian authorities, the government of Bangladesh must use its diplomatic machinery to strongly present to its Indian counterparts that satisfactory resolution of the issue is a sine qua non for sustaining amicable relations between the two states. Although some uninformed observers in Bangladesh have often floated the idea of presenting a case before the International Court of Justice, because of the consensus-based nature of the jurisdiction of the ICJ, this would not be feasible. The jurisdiction of the ICJ can only be invoked in this matter if (a) both parties agree or (b) there is a compromissory clause in a treaty providing for jurisdiction or (c) both parties accept the optional clause on jurisdiction in the ICJ statute.
The first option is inapplicable as India is unlikely to submit to the jurisdiction of the ICJ in this matter. The second option would not apply as there is no treaty between India and Bangladesh containing a compromissory clause on this matter. The third option would not apply as although India accepted the optional clause on jurisdiction of the ICJ in 1974, the declaration accepting the optional clause explicitly excludes ‘disputes with the government of any state which is or has been a member of the Commonwealth nations’ from its scope. As Bangladesh is a member of the Commonwealth, this optional clause would prevent Bangladesh from exploring this avenue. However, this should not in any way deter Bangladesh from incisively raising the issue of border killings in the political organs of the United Nations as well as in other international forums. The civil society of India should also exert pressure on their government to act effectively in this matter so as to ensure that members of the Indian security force can truly appreciate that their actions are not above legal scrutiny.
Dr Md. Rizwanul Islam is an assistant professor at School of Law, BRAC University. firstname.lastname@example.org.
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THE acquittal of Amiya Ghosh, a constable of the Indian Border Security Force, charged with culpable homicide of Felani Khatun, would not only have an inconsolable blow to her family but also be baffling and grossly unacceptable to innumerable Bangladeshis who had pinned their hopes on getting some sort of justice. Full story
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