6th of June 1984 is considered as the darkest day in the history of the Sikhs all around the world. This was the day when the Indian Army stormed the Golden Temple, the holy shrine of the Sikhs to drive out Jarnail Singh Bhindranwale and his armed men who had taken refuge in the Temple complex since 1982. Bhindranwale had started a movement to attain justice for Sikhs who were being discriminated on various grounds. The Indian Government saw this as a secessionist movement, which is why Bhindranwale and his group were considered as a threat to the nation. This paper endeavours to study the Operation Blue Star from the international humanitarian law perspective by establishing it as a non-international armed conflict. It is divided into five parts. The first part deals with the history and the background to the operation and also highlights the reason why the Indian Army attacked Golden Temple; the second part then throws light upon the definition and the types of the armed conflict in the international humanitarian law and also ingredients of a non-international armed conflict; the third part tests the incident of operation against the ingredients of a non-international armed conflict; the fourth part discusses the nature of State’s response which is considered in excess in terms of human rights and humanitarian law obligations. These four parts are then followed by a conclusion.
Background
Sikhism is a religion founded by Guru Nanak Dev Ji in the year 1469 in Punjab, a state being shared by both India and Pakistan. Sikhs, the followers of Sikhism played a major role in the Indian Freedom Movement[1] but did not receive much appreciation even though they were promised jobs and a better livelihood in the post-Independence era. The newly framed Indian Constitution’s Article 25 identifies Sikhs as Hindus, which aggrieved the Sikhs even more leading to a lot of resentment against the Indian state. In the 1950s, the linguistic groups across India sought statehood that led to the formation of a State Re-organisation Commission in 1953. The government of India was apprehensive of carving out a Punjabi speaking state as that would also lead to dividing the state on religious lines between Hindus and Sikhs. The hindi newspapers from Jalandhar urged the hindus to exhort hindi as their mother tongue which is why the demand for a separate Punjabi Suba (State) was defeated. The Akali Dal, a political party formed during the Gurudwara Reform Movement in the 1920s, continued their agitation for the creation of a separate Punjabi Suba and it was finally agreed to in 1966. Thus areas in the South of Punjab that spoke the Haryanvi dialect of the hindi language formed a new state of Haryana, the Pahari speaking areas were merged with Himachal Pradesh and the remaining Punjabi speaking area retained the name Punjab with Chandigarh as a Union Territory and as Punjab and Haryana’s common capital.
This linguistic reorganization of the states created a lot of problems. Many of the Punjabi speaking areas were given to the State of Haryana, Chandigarh was made a Union Territory and the joint capital of the States of Punjab and Haryana and the Centre took control over the waters of the rivers of Ravi, Beas and Sutlej and made arbitrary allocation. The Centre even took control over various power and irrigation projects. After the reorganization of the state, Akali Dal gained the majority in the Punjab Assembly elections in 1967 but Punjab saw an unstable government for five long years owing to defection. Later on in 1972 after the Bangladesh’s Liberation War Congress emerged victorious at both the Centre as well as in Punjab. Nevertheless in 1973 the working group of the Akali Dal came with a resolution, which was adopted at Anandpur Sahib and came to be known as Anandpur Sahib Resolution. It advocated for the federal structure in which the Central Government should actualize the federal concept of India by granting autonomy to the provincial government in all the areas except defence, currency and foreign relations. It was in 1982 that Jarnail Singh Bhindranwale, leader of Damdami Taksal-a Sikh religious organization joined hands with the Akali Dal in order to implement the Anandpur Resolution. Bhindranwale as he was fondly called grew popular amongst the Sikh population of Punjab but notorious with the government. He was even arrested for the murder of Lala Jagat Narain, editor of a popular Hindi daily newspaper who had campaigned against Punjabi being adopted as a medium of instruction in Hindu schools and even urged the hindus to accept Hindi as their mother tongue and reject Punjabi in order to defeat the Anandpur Sahib resolution. However, Bhindranwale was released without being charge sheeted due to lack of evidence. Meanwhile the law and order situation deteriorated in Punjab and there were a number of confrontations between the police, Babbar Khalsa and Dal Khalsa’s army. Later on sometime in 1982, Bhindranwale was invited by Harchand Singh Longowal to take refuge in Guru Nanak Niwas, Golden Temple’s guest house. Bhindranwale then even took charge of the Akal Takht, one of the five Takhts of the Sikh religion also known as the seat of temporal justice, thus becoming the Takht’s Jathedar. He then fortified the Temple with heavy machine guns and sophisticated self-loading rifles were brought in.[2] Though Bhindranwale strongly advocated for the Anandpur Sahib Resolution which mostly focused on the Centre-State relations, greater status to Punjabi and the distribution of the waters of the rivers yet it was mostly seen as a secessionist movement by the Central Government. Indira Gandhi then ordered the expulsion of Bhindranwale and his army from the Golden Temple Complex. The Indian National Army took charge of the situation and attacked the Golden Temple with tanks and artillery on the 6th of June 1984. Thousands of pilgrims belonging to the Sikh faith had gathered in and around Golden Temple, to mark the martyrdom day of Guru Arjan Dev Ji, the fifth Guru of the Sikhs and also the founder of the Temple since the 3rd of June and though entry to the Temple was permitted but they were not allowed to exit it. The survivors of the attack are of the view that the Army deliberately chose this day to carry out the operation in order to wipe out as many Sikhs as possible. The unarmed civilians were attacked incessantly. Even the Sikh Reference Library, which is located inside the complex, was attacked and ancient scripts and artefacts were looted by the army and loaded in trucks to be taken to Delhi. The operation was considered extremely disproportionate and not at all necessary, as the number of Bhindrawale’s armed forces was extremely small as compared to the collateral damage. The civilians who survived often call it as a conspiracy to kill Sikhs and finish the faith in one go. Though the official number of casualties is reported as a few hundreds but the actual number soar really high. The operation was seen as an attack to crush the Sikh militants out of the Temple, yet the author in this paper tries to equate it with non-international armed conflict in order to trigger the mechanism of international humanitarian law principles, thus making the Indian State responsible under the international law.
Armed Conflict
International humanitarian law (IHL) is a branch of international law that governs the conduct of armed conflict. It applies only to a situation of an armed conflict.[3] Therefore, in order to determine whether IHL applies to a situation of violence it is necessary to first asses whether the situation amounts to an ‘armed conflict’. IHL does not provide for a definition of armed conflict. However, it recognizes two types of armed conflicts: international armed conflicts (IAC) opposing two or more states and non-international armed conflict (NIAC) between governmental forces and non-governmental armed groups, or between such groups only, which was established by the Geneva Conventions of 1949.[4]Prior to the Geneva Conventions of 1949, it was thought that civil conflicts were outside the scope of international law. Since the situation of Operation Bluestar under study resembles a NIAC therefore only the ingredients of a NIAC would be discussed. NIAC can be applied through Common article 3 to the Geneva Conventions, customary IHL and Additional Protocol II (AP II) where ratified.
Common Article 3 applies to “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties“. These include armed conflicts in which one or more non-governmental armed groups are involved. Depending on the situation, hostilities may occur between governmental armed forces and non-governmental armed groups or between such groups only. However, NIAC needs to be distinguished from internal disturbances including isolated and sporadic acts of violence.
AP II on the other hand, applies to armed conflicts “which take place in the territory of aHigh Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over apart of its territory as to enable them to carry out sustained and concerted military operationsand to implement this Protocol”.
This definition is narrower than the notion of NIAC under common Article 3 in two aspects.
Firstly, it introduces a requirement of territorial control, by providing that non-governmental parties must exercise such territorial control “as to enable them to carry out sustained and concerted military operations and to implement this Protocol”.
Secondly, AP II expressly applies only to armed conflicts between State armed forces and dissident armed forces or other organised armed groups. Contrary to common Article 3, the Protocol does not apply to armed conflicts occurring only between non-State armed groups.
In this context, it must be reminded that Additional Protocol II “develops and supplements” common Article 3 “without modifying its existing conditions of application“. This means that this restrictive definition is relevant for the application of Protocol II only, but does not extend to the law of NIAC in general.
The Statute of the International Criminal Court, in its article 8, para. 2 (f), confirms the existence of a definition of a non-international armed conflict not fulfilling the criteria of Protocol II.
Statute of the ICC, art. 8 para. 2 (f): “It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups“.
In order to distinguish an armed conflict, in the meaning of common Article 3, from lessserious forms of violence, such as internal disturbances and tensions, riots or acts ofbanditry, the situation must reach a certain threshold of confrontation. It has been generally accepted that the lower threshold found in Article 1(2) of APII, which excludes internal disturbances and tensions from the definition of NIAC, also applies to common Article 3.
Two criteria are usually used in this regard:
First, the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces.
Second, non-governmental groups involved in the conflict must be considered as “parties to the conflict”, meaning that they possess organized armed forces. This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations.
As per the ICTY Appeals Chamber in Tadic case, an armed conflict involving non-state groups arises only if the violence is protracted and the non-state groups are organized. From the above discussion it can be made out that the following form the ingredients of a NIAC:
Armed conflict between a State and a non-State actor or between these non-State actors
A modicum of organization of any party to the conflict: According to the ICTY Appeals Chamber in Tadic, an armed conflict involving non-State actors must involve ‘organised armed groups’, that have a clear chain of command. Each group involved in an armed conflict need not be clearly differentiated and defined, as there may be a number of loosely related armed groups involved. The ICTY Trial Chamber has further explained the following as ingredients of organization:
The existence of command structure and disciplinary rules;
Control of a determinative territory;
Access to weapons, equipment and military training;
The ability to define military strategy and use military tactics.
Protracted violence: In the Tadic case, the appeals chamber held that for a NIAC to exist there must be ‘protracted armed violence’ which has been authoritatively repeated in article 8(2) of the Rome Statute of the ICC. Yoram dinstein infers that occasional unrest does not amount to NIAC and that there needs to be a series of ‘isolated and sporadic’ internal disturbances for a NIAC to come into existence. The Inter-American Commission on Human Rights in Juan Carlos Abella v. Argentina concluded that an armed conflict has occurred in Argentina, even though the skirmish lasted for 30 hours in total. But Dinstein does not agree with this decision. However, the IACHR holds that in borderline cases there may be a presumption in favour of the existence of an armed conflict.
Intensity of fighting: This requirement should not be looked at as an alternative to protracted violence. The ICTR Trial Chamber in the Akayesu case had stated that the intensity of hostilities ought to be ascertained ‘on the basis of an objective criteria’. In the aftermath of Tadic, multiple judgments of the ICTY have come up with various indicia in order to assess the intensity of the fighting required in a NIAC. These include: the numbers of casualties, the diffusion of violence over territory; deployment of military units against the insurgents; the types of weapons used; the siege of towns; and the closure of towns.
Application of International Humanitarian Law to The Operation Blue Star
The situation of Punjab was dismissed as a mere law and order situation, which is why the State never became liable under the IHL regime. However, this study aims to analyze the situation in Punjab against the ingredients of the NIAC as many Sikh organizations have had asked for a UN probe in this matter as they regard it as a violation of IHL.
Armed Conflict:The situation in the 1984 attack on Golden Temple involved a confrontation between the Indian Army and the armed men, led by Bhindranwale who had taken refuge inside the Golden Temple Complex. There are documented evidences that show that the attack was conducted in a systematic manner with sophisticated weapons being used by both the sides including anti-rocket launchers, AK-47s etc.
Modicum of Organization: The non-state actors in this conflict i.e. Bhindranwale and his followers were under the command of Jarnail Singh Bhindranwale. There were also other forces some named and some unnamed one of them being, Babbar Khalsa that had joined hands with the Bhindranwale and were indirectly under his control. Bhindranwala’s force had actually fortified the Golden Temple area with sophisticated weapons. General Kuldip Singh Brar who led the Operation Blue Star had pointed out at the foreign assistance received because of the foreign weapons that were seized from the Bhindranwale’s army during the operation.[5]The Khalsa army, as it was mostly referred to, had received their training under the aegis of Major General Shabeg Singh, an Indian army officer noted for his service in training of Mukti Bahini volunteers during the Bangladesh Liberation War. Major General Shabeg Singh taught the army military tactics, that he had acquired during his service with the Indian Army.From this data it can be made out that the Khalsa army satisfied the ingredients of the modicum of organization given out in the Tadic case that have acquired the status of customary international law.
Protracted Violence: The operation was not a single event of violence but rather one of the major events in order to bring the situation in Punjab under control and to drill fear in the minds of the other Sikh outfits that were said to be leading the secessionist movement.
Intensity of Fighting:The operation was one of the very intense operations in the history of the Indian Army. As mentioned above, the official number of casualties is very low, lying somewhere in a few hundreds but eyewitnesses and the survivors’ account tell a different tale altogether. As per the survivors, the pilgrims were being let in the Golden Temple from the 2nd of June 1984 but they were not allowed to leave, which is why the casualties were quite high. Bhindranwale and his army is said to be a few above hundred but the civilians who lost their lives are said to be somewhere above seven thousand. The operation saw a parallel attacks on other gurudwaras in Punjab with the deployment of about 1,00,000 army personnel throughout Punjab. The weapons used on the other hand were highly sophisticated ones. The army even broke the stairs leading to the entrance of the temple to bring in tanks. While Bhindranwale was said to be in possession of foreign weapons including machine guns, anti rocket launchers etc.[6] Most parts of Punjab especially Amritsar were brought under Section 144 of the Criminal Procedure Code (CrPC).
Conclusion
From the analysis made above it can be said that the situation in Punjab was surely not just a law and order situation. It resembles heavily with the ingredients of a non-international armed conflict, thus a deeper study needs to be conducted in order to determine the status of the operation blue star. Sikhs for Justice, a private organization based out of United Kingdom had submitted a memorandum to the United Nations Assistant Secretary for Human Rights calling for the setting up of a tribunal to investigate alleged crimes against the members of the Sikh community during the 1984 Operation Blue Star. It reads that it clearly violated the basic humanitarian law provisions for the protection of the civilian population and for the protection of cultural objects and places of worship as set out in the Geneva conventions.[7] The Sikhs have been awaiting justice for the missing members of their families before and even after the operation, destruction of their holy place of worship, the Sikh Reference Library, the killing of the thousands of the civilians who had gathered inside the Golden Temple just to pay obeisance at the Temple and also for the thousands killed during the anti-Sikh pogrom in Delhi and other parts of India after the assassination of the Indian Prime Minister Indira Gandhi who had ordered the attack at the Golden Temple. Once the Operation is considered a NIAC it would be easy to drag the Indian State to the United Nations and submit her to the jurisdiction of a Tribunal, if it is ever set up.
[1] KS Duggal, “Sikhs in the Freedom Struggle”, Mainstream Weekly, 19 August, 2008 <https://www.mainstreamweekly.net/article891.html>accessed on 21st May, 2020.
[2] Ranbir Sandhu, Sant Jarnail Singh Bhindranwale- Life, Mission and Martyrdom, (Sikh Educational and Religious Foundation, 1997).
[3] Prosecutor v. Dusko Tadic (Appeal Judgment), 15 July 1999, ICTY.
[4]Tadic’s case held that:
…an armed conflict exists wherever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organized armed groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring states or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.
[5]General Brar had said this in an interview to the press during the operation.
[6] This was revealed by General Kuldip Singh Brar in an interview during the operation.
[7]“Operation Blue Star: Sikh rights group seeks UN probe”, The Indian Express, June 7, 2017 <http://indianexpress.com/article/world/operation-blue-star-sikh-rights-group-seeks-un-probe-4693609/> accessed on May 21st, 2020.
