Don’t ‘criminals’ have the right to access justice?

Over the last couple of months, new rail and river transport services between Bangladesh and India have secured a major fillip, bolstering the bilateral relations. While such linkages are purported to benefit both parties, the recent bilateral talks between the director generals (DGs) of the Border Guard Bangladesh (BGB) and the Border Security Force (BSF) convey the ominous message that border killings are likely to continue. This is despite the previous pledges made by the Indian authorities to bring it down to zero. 

After the DG-level conference between BGB and BSF, at a press conference held on July 21, the visiting BSF DG asserted that "those killed at the border were criminals." He claimed that they (victims of border killing) were involved in crimes such as smuggling, drug-dealing and trafficking. When asked how that verification was done, he said the BSF verified their identities with Dhaka Metropolitan Police (DMP), Kolkata Police and border intelligence agencies. Denying any targeted killing, the BSF chief further stated that only those involved in trafficking tried to cross the border illegally, and that every shooting incident happened at night when the BSF personnel came under attack. The BSF DG further said India had already started using non-lethal weapons to bring down border killings. He did not lose the opportunity to assert that "BSF as well as BGB are absolutely professional border-guarding forces. We uphold the best of (the) traditions of human rights whenever we are guarding the border" (Dhaka Tribune, July 21, 2022).

In April 2018, both parties agreed not to resort to lethal weapons in dealing with cases of border-crossing. The BSF authorities justify the use of lethal weapons on the ground of "self-defence." In other words, it claims that the security force resorts to lethal weapons when "they come under attack by the miscreants." The BSF prefers to term such fatalities as "undesirable deaths" instead of killings. 

The killing of civilians along the Bangladesh-India border has been a sensitive issue for the people of Bangladesh. In July 2019, the home minister informed the parliament that a total of 294 Bangladeshis had been killed by India's BSF along the border in the preceding 10 years. The minister further stated that 66 Bangladeshi nationals had been killed in 2009, 55 in 2010, 24 each in 2011 and 2012, 18 in 2013, 24 in 2014, 38 in 2015, 25 in 2016, 17 in 2017 and only three in 2018. The expectations generated by the drop in the figures in 2017 and 2018 were severely dampened by the twelvefold spike to 34 in 2019 (from three in 2018). Annoyed by the persistent killings, the foreign minister stated that "India promised [that] not even a single person would die in the border area. Unfortunately, border killing is a reality. We are concerned." He further stated that Bangladesh would demand that the Indians deliver on their promise. Between January 2020 and June 2022, as many as 72 Bangladeshis were killed by BSF firing, and 51 more were injured. 

The points made by the BSF chief at the July 21, 2022 press conference raise a few interesting questions. It is mind-boggling that, by claiming that all those killed at the border "are criminals," the head of BSF has acknowledged that his force has concurrently arrogated the roles of petitioner, judge, jury, and executioner. The DG's branding of all those killed as drug dealers, smugglers, and traffickers is no less disconcerting. One wonders if the Indian law allows summary execution of those three categories of perceived criminals – or even of the verified criminals, as the DG asserts. If his claim about the law enforcement agencies' validation of the criminal identity of the individuals concerned is genuine, then one may ask under which law his force is authorised to use lethal weapons against them. It would be worthwhile if the BSF DG would clarify – even after having advance knowledge of the criminal intent of the victims – what precluded his force from nabbing the "suspects" before they embarked on such acts, and how the BSF members were sure of the identity of the criminals in the dark of the night, presumably from a distance. The onus also rests on the DMP authorities to confirm if the BSF authorities do secure their support in identifying such "criminal elements," and if the names of those Bangladeshis killed at the border were on the list that they might have vetted. Perhaps a legitimate question is also whether it falls within the remit of the DMP to engage in such extraterritorial collaboration in law enforcement, as claimed by the DG.

Rights activists and border scholars have noted that the BSF's excessive use of force is the precipitating factor in the persistence of killing Bangladeshi nationals at the border. The justification provided by the BSF chief that his force has to resort to violence in self-defence is not supported by facts. The 2010 Odhikar-Human Rights Watch (HRW) report titled "Trigger Happy" documented a number of cases in which "survivors and eyewitnesses have alleged that BSF engaged in indiscriminate shooting without warning… [and] instead of attempting to arrest them, BSF officers immediately opened fire." BSF claims that its personnel have to open fire when miscreants evade arrests. But suspicion of a crime and dodging of arrest cannot alone justify the use of lethal force. The report reminds us that "[i]n fact, even India's domestic laws, which allow 'all means necessary' in case a person attempts to use force to resist arrest, specifically forbid causing the death of a person who is not accused of an offence punishable by death or life term."

The Odhikar-HRW report further notes that the victims of border killing, the alleged criminals, were either unarmed or armed with only sickles, sticks and knives. In dealing with them, the Indian border guards were likely to have used excessive force. In many instances, the victims were shot in the back, suggesting they were running away. The report states that in none of the cases that it investigated could the BSF "show that it had recovered lethal weapons or explosives from the victims that could pose an immediate threat of death or serious injury that might justify killings in self-defence." Thus, the report concludes that the BSF approach is a "shoot to kill" policy that violates national and international standards on the right to life and presumption of innocence which are applicable in India and Bangladesh.

The gruesome killing of Felani, a 15-year-old returnee domestic worker from Delhi, by the BSF in Kurigram on January 7, 2011 triggered outrage in Bangladesh and also in India. The Indian rights organisation Manobadhikar Surokkha Mancha (MASUM) filed a writ petition in July 2015 with the Supreme Court of India. There has been little progress since the initial hearing in October 2017. Her family is yet to get justice and compensation. 

Based on the information available, one can surmise that, so far, India has not provided details of any BSF personnel prosecuted for killing a Bangladeshi national to the Bangladesh government. Along with other security forces, the BSF members are exempt from criminal prosecution, unless specific approval is granted by the Indian government. This near-total absence of accountability of the BSF personnel only perpetuates the incidence of border killing. As the Felani case revealed, BSF's internal justice system fails to prosecute its own members.

India's "no crime, no death" border management mantra was first articulated by the visiting Indian foreign minister in March 2021. In no uncertain terms, S Jaishankar linked this "regrettable problem" (border killing) to "crime" and said both the countries should aspire to achieve "no-crime-no-death border." 

This bizarre and untenable Indian theorisation of killings along its border with Bangladesh may be a "deft display of diplomacy to help India to absolve itself of the responsibilities" of this practice, but it surely defies all protocols of international border management and even the national laws of India. This further alienates Bangladeshis who wish for friendly bilateral ties based on the principles of respect, dignity, and sovereign equality. 

Dr CR Abrar is an academic and human rights expert.