Analysing International Humanitarian Law in the Indian Context
Updated: Aug 10, 2020
Anjali Baskar & Shambhavi Shani, Nyayshastram
International Humanitarian Law/Law of Armed Conflict/Law of War is one of the many branches of International Law, which deals with armed conflict situations at the international or national level. The object of this law is to:
1. regulate the armed conflicts’ effects, and
2. provide protection to those who are or are not engaged in combat by laying down rules that are substantive and objective in nature to determine as to what conduct is considered as lawful, eg. how soldiers who have been injured or wounded in the field should be treated.
International Humanitarian Law can be divided into three parts: Geneva Convention, Hague Convention and Customary International Law.
Relationship between Article 3 common to all Geneva Conventions and the 2nd Additional Protocols
States adopted two important international treaties- Additional Protocol I and II, which were supposed to follow along with the four Geneva Conventions of 1949 on June 8, 1977, which altogether are considered the most important treaties of international humanitarian law. All the 4 Geneva Conventions were adopted in 1949 after World War II’s horrible experiences, and are relating to international armed conflicts, except for Article 3 of the conventions which is used in non-international armed disputes. Article 3 and Article 1 of AP II are the tools to analyse the non-international or internal armed conflict. Putting the provisions side to side, it appears that the definition enumerated in article 1 of AP II is rather restrictive in comparison to common Article 3 in the following aspects:
1. It introduces the requirement of territorial control,
2. It will be applied only to armed conflicts between state armed forces, dissident armed forces or other organised armed groups,
3. Internal disturbances and tensions, e.g. irregular acts of violence or protests do not fall under its purview.
Reasons why India is reluctant to recognise Additional Protocol II
These rules laid down in IHL seek to protect people who are not or no longer taking direct part in the hostilities, e.g. injured/sick civilians, prisoners of war, detainees. Some manifest ambiguities in its provisions give rise initial obstacles in Convention’s implementation process. The 2nd protocol is not ratified by USA, India, Iran, Myanmar, Pakistan, Afghanistan, Israel, Srilanka and Nepal. India raised a few contentions to justify its non-acceptance of the protocol:
1. India felt that there was no need to make a distinction between the amount of protection faced internally or externally if the weightage of suffering was equal.
2. One more problem is that the protocol’s initiation required many implementation efforts. If implemented, India would be tied up with responsibilities to adopt domestic legislation after ratifying the treaty. Even though this decision limits the powers, India has, on the other hand, human rights as a central concept would not be affected, as it is already supported by common Article 3.
Geneva Conventions Act of India and the Indian Constitution’s Non-Derogable Rights
Under Article 253 of the Indian Constitution, the Indian Government passed the Geneva Conventions Act, 1960, r/w the 13th and 14th entries of the Seventh Schedule. Punishment for breaching the 1949 Geneva Conventions under this Act and regulates legal proceedings with respect to protected persons, i.e., prisoners of war and internees. Misuse of emblems which are protected under this Act like the Red Cross, is also prohibited. Under the Indian Constitution, 1950, Fundamental Rights are incorporated under Part III of the Constitution from article 12 to 35, among them some rights are absolute and non-derogable. Article 20 and 21 of the Constitution cannot be suspended even in an emergency.
Need for Intervention into Indian Humanitarian Law
India has currently been in conflict with Naxalite-concentrated areas and the areas in and around Jammu and Kashmir. The highest number of killings has been reported from Chhattisgarh which constitutes 54% of the total killings, followed by Andhra Pradesh, Jharkhand and Bihar (208, 59, 44, 28 respectively) coupled with the incidents of fake encounter killings, which only has gotten more prevalent since then, according to the statistics given by the Asian Centre for Human Rights.
India continues to struggle to protect the life of its people in conflict-stricken stretches in spite of being a signatory to Geneva Convention and key human right treaties. The International Court of Justice has consistently observed that observation of Article 3 is essential in case of military and paramilitary activities.
Nicaragua v. US is one of the many cases where the court necessitates observation of common Article 3 during the military operation. In this socio-cultural setting, the Government of India has been unsuccessful to uphold its obligations. There has been a violation of IHL in the wars between India and Pakistan as well.
The Connection of International Humanitarian Law to the Kashmir Situation
The Supreme Court of India held that that in all the cases of human rights violations, courts are obligated to make sure that the international instruments’ message is not diluted in the case of Apparel Export Promotion Council v. A. K. Chopra. The courts should also ensure that there is accordance towards international conventions and norms in order to interpret domestic laws. However, it is unfortunate to note that the Indian Government failed to observe the guidelines of the Supreme Court. The events in Kashmir sufficiently meet the requisites of internal armed conflict, which are as follows:
· Existence of internal armed conflict: It can be ascertained that direct involvement of governmental armed forces and its violation to such a level in Kashmir, i.e. killing, rape and torture is disastrous. When we consider various definitions and cases on internal armed conflict, the norms of the conflict should be invoked in Kashmir.
· Effective control: An element essential to constitute internal armed conflict is effective to control, which India’s governmental armed forces have over Kashmir.
· High contracting party to the Geneva Conventions: The extent of applicability of the common Article 3 provision was the armed conflicts which occurred in one of the High Contracting Parties’ territory. Some claimed that this specific point was included in order to make it clear that Article 3 may only be applied in relation to the territory of states that have ratified the Geneva Conventions.
· Protracted violence: Even though the Kashmir conflict has been prevalent for a long time, the insurgency strength has increased for the first time to such an extent since December 1989.
Problems identified with existing laws
Recently, in April 2020, The International Council for Jurists told the Indian authorities that restricting the travel of migrants due to COVID-19 is a right they have under international law, but that they should make sure the freedom of restriction does not violate human rights and that caution taken is strictly necessary and proportionate. The Act does not give a cause of action to any party of the Conventions, nor are they made enforceable by the Government, and the purpose is thus defeated. Even though there is no right recognised in respect of the protected person that can be enforced in court, India is obligated to respect the Convention when it comes to the treatment of their citizens.
As observed, all these laws are useless as they are not binding on India, and therefore loopholes can be used to break these rules. Geneva Convention Act, 1960 needs to be revised. Unlike the Indian Penal Code, 1860 which does not contain any specific provision on war crimes, the German Penal Code which provides a universal jurisdiction over genocide or other offences if they are made punishable by the terms of international treaty binding on Germany. India should thus adopt Germany’s model.
Conclusion and Suggestions
In conclusion, we need to dismantle this vicious cycle of violence and counter-violence. The frequent occurrence of humanitarian law and human rights being infringed upon by the security officials and custodial officers bring dark days to our country and spoil the credibility of democracy. These are not just isolated instances or just happening in India. Some collective solutions to the problems are:
1. establishment of an implementation mechanism at the international level;
2. Demand public officials and Government to immediately cease violations of humanitarian law and human rights in Kashmir,
3. Asking an independent authority like the International Committee of the Red Cross to mandate inspections in disturbed areas periodically,
4. Amendment of Armed Forces Special Powers Act’s draconian provisions, 5. Acceptance and ratification of the Convention Against Torture, 6. Put a plan in motion for adopting universal jurisdiction over war crimes.
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