International Humanitarian Law in India: A Critical Case Study

Present Article attempts to sketch the application of International Humanitarian Law in the context of internal armed conflict in India, s well as various approaches at national and international level to solve this prob lem. Since Human Rights violation is no longer contained within the state–private relati on spectrum and has spilled outside it. Therefore, right now there is need for effectiv e mplementation machinery to check such spillage and meet new challenges posed by priv ate actors for the enjoyment of Human Rights.


INTRODUCTION
The term International Humanitarian Law (IHL) also known as 'The law of armed conflict' or 'the law of war 1 '. It is a branch of International Human Rights Law. Generally International Humanitarian Law deals with situation of the armed conflict which is either at international or non-international level. The object of the IHL (International Humanitarian Law) is to provide protection to all non-combatant and combatant who have been disabled (accident, retire etc.) during the period of the armed conflict. Right now International Humanitarian Law comprises following parts:

WHAT IS THE NEED OF INTERNATIONAL HUMANITARIAN LAW (IHL)?
Before 1949, neither the Charter of United Nations, nor any other rule of International Law, prohibited the use of force by armed group within the state. Even though there is International Human Rights Law which deals with war as well as peaceful situation. But there is not as such special provision which regulate the conduct of the state during the war. After World War II, it is realised that more conflicts is purely internal character have occurred, which led to violation of human rights and create the necessity to regulate the conduct of war. Moreover, today we are living in nuclear arena. Nobody can forget the damage caused by the atomic bombs, in Japanese cities of Hiroshima and Nagasaki. Day to day advancement of technology increases the threat to human life. In 21 st century various kinds of advance weapons have been developed this includes Cluster ammunitions, Chemical and Biological Weapons. All these technological development extend our abilities to change the world. Hence, these things compel us to reconsider the role to be played by international law in accordance with the fast changing world. Therefore, there is an urgent need to modify the law, so that it keeps pace with the need of the society and gives respect for human beings.

IHL IN INTERNAL ARMED CONFLICT
Law regulating armed conflict has existed for centuries, but prior to 1949 there was no exclusive law which dealt with internal armed conflict. Generally, violence within states remained outside the scope of International Law and thus it could not prohibit the use of force. This deficiency and lacunae were finally resolved in 1949 with the adoption of Geneva Conventions 1949.The Common Article 3 of Geneva Conventions of all the four conventions provides for the respect of basic standards of human rights in non-international armed conflicts. After some time, it gained momentum in the 1960's and led to the adoption of two Protocols in 1977, in which Protocol II relates to non-international armed conflict. 2 Now it is very essential to analyse the legal provision relating to international armed conflict to access the real magnitude of the problem, which, we will deal in further part of the article.

Scope of Common Article 3: Additional Protocol II, 1977 of the Geneva Convention
The concept of non-international armed conflict in humanitarian law can be analyzed on the basis of two main treaty texts: namely, Article 3common to all the four Geneva Conventions 1949 and Article 1 of Additional Protocol II of 1977. After analyzing the provision of Common Article 3 and Article 1 of Protocol II, it can be clearly documented that, definition given in Article 1of Protocol II is very restrictive in comparison to Common Article 3, in following aspects: a) It introduces the requirement of territorial control. b) It will be applicable only to the armed conflicts between State armed forces and dissident armed Forces or other organized armed groups. c) It will not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflict 3 . case of low-intensity conflict,which does not fulfill the conditions for the application of Protocol II,would be covered under common Article 3. In fact,Article 3 retains an autonomousexistence; its applicability is neither restricted nor subject to the scope of the Protocol II 4 .

WHY HAS INDIA NOT RECOGNIZED PROTOCOL II OF GENEVA CONVENTION, 1949?
The rules of IHL have been evolved for the purpose of balancing military necessity and concern for humanity. These rules seek to protect person who are not or no longer, taking direct part in the hostilities such as civilian, prisoners of war and other detainees, and the injured and sick 5 . But ambiguity and non clarity in the provisions creates initial hurdles in the application of International Humanitarian Law. Apart from that, the Additional Protocol II of Geneva Convention, 1949has not been universally accepted and ratified by the following countries like USA, India, Iran, Myanmar, Pakistan, Afghanistan, Israel, and Srilanka. Now striking question is that, why India has not recognized Protocol II? We could be found the answer in some of the following arguments, which have been taken by India during the discussion for not recognizing the Protocol II of the Geneva Convention. These are as follow: a)It argued that in the face of equal suffering, victims have the right to the same protection in all armed conflicts, whether internal or international. Therefore, there is no need of protocol II. b) Favoring the high threshold of application 6 .
The analysis of the above given arguments itself shows the unwillingness of India to escape from responsibility of domestic matter.

EFFECT OF NON-RECOGNITION OF THE PROTOCOL II
The above arguments justifying non-recognition of protocol II, it connotes how India tried to drag its feet from its liability to protect the human rights of the people. Now, the next looming question is that, what would be the legal effect of non-recognition of the protocol II? So after analysis of legal provision of Common Article 3 and Protocol II of Geneva Convention (already mentioned in the Article), it can be clearly documented that, the scope of Common Article 3 is wider than Protocol II. Even though India has not recognized protocol II, it cannot avoid application of legal provision on internal armed conflict, within the ambit of Common Article 3 of Geneva Convention.

THE THRESHOLD OF NON-INTERNATIONAL ARMED CONFLICT:
Right now, the major problem is to examine the threshold between International and Non-International armed conflict, which is very much essential for proper application of the International Humanitarian Law. It is thus it is crucial to be clear about the internal armed conflict, for proper application of the law. This is the crux of whole Article.
No universal definition -only a whiff of vague understanding: There are many definitions for internal armed conflict and civil war but noneof them is universally acceptable. A widely accepted definition comes from the Peace Research Institute, Oslo (Prio). The Institute defined the term internal conflict as,"a 'contested incompatibility' between a state and internal opposition, regarding the government of the territory, where the use of the armed force between the parties result in at least 25 battle related deaths per year civilian military". 7 This definition shows the quantitative approach of internal armed conflict which fixed 25 battle deaths of human beings as the threshold.
According to ICRC (International Committee of the Red Cross), commission of experts for the study of the question of aid to the victims of internal conflicts-the existence of an armed conflict cannot be denied if the hostile action,directed against the legal government isof a collective character and consists of minimum amount of organization.
In the year 1997, in Prosecutor v.Dusko Tadic, the International Criminal Tribunal for the Former Yugoslavia ICTY (International Criminal Tribunal for Yugoslavia)defined the concept of armed conflict. According to the tribunal, "an armed conflict exists whenever there is a resort to armed forces between states or protracted armed violence between governmental authorities and organized armed groups within a state. In given case, it was stipulated that International humanitarian law applies from the initiation of such conflict 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." 8 The two aspects of non-international armed conflict stated in Tadic case are: (1)Armed violence and (2) Organization of parties to the conflict. Similarly, the commentary, Elements of War Crimes under the Rome Statute of the International Criminal Court, indicates that the parties should be 'organized to a greater or lesser extent' in order to qualify as an armed conflict 9 . Hence, this Article attempts to define the term international armed conflict. Therefore, international armed conflict can be defined as, "the use of armed force within the boundary of one state between one or more armed groups and the acting government, or between such groups" 10 .

CASES ON INTERNAL ARMED CONFLICT: Lebanon
Since 1975, Lebanon has been battered by armed clashes between the government forces and armed groups and also between rival opposition groups. This conflict has all the features of a non-international armed conflict; and is applicable here. The relation between the various groups fighting against each other is also covered by the common article 3 11 .

Tablada Case
In recent Tablada case before the Inter-American Commission on Human Rights,the question before the commission was to determine, whether the 30 hour long armed confrontation between attackers and Argentine armed forces was 'merely an example of internal disturbances or tensions or whether it constituted a non-international armed conflict within the meaning of the common Article 3? Commission held that, common Article 3 stipulate that, armed conflicts do not 'require the existence of large scale and generalized hostilities or a situation comparable to a civil war in which dissident armed groups exercise control over parts of national territory'. It held that direct involvement of governmental armed forces and the nature and level of the violation attending the events amounted to the armed conflict 12 .

CERTAIN ABSOLUTE AND NON-DEROGABLE RIGHTS:
The term 'absolute and non-derogable rights' connotes those rights which cannot be suspended at any time, not even during emergency. Under international law, some rights are absolute and non-derogable. These rights are given in International Covenant on Civil and Political Rights 1996 (ICCPR) which is ratified by India.
Article 4(2) of the ICCPR provides that no derogation is permitted for 14 : • freedom from torture or cruel, inhuman and degrading treatment or punishment; and freedom from medical or scientific experimentation without consent (art 7); • freedom from slavery and servitude (arts 8(1) and (2) Page 407 • freedom from imprisonment for inability to fulfill a contractual obligation (art 11); • prohibition against the retrospective operation of criminal laws (art 15); • right to recognition before the law (art 16); and • Freedom of thought, conscience and religion (art 18).

INDIA'S INTERNATIONAL HUMANITARIAN LAW OBLIGATIONS IN DOMESTIC LAW
The Indian Government passed THE GENEVA CONVENTIONS ACT, 1960 under Article 253 of the Indian Constitution, read with entries 13 and 14 of the Union List in the Seventh Schedule based on Geneva Convention. This Act provides the punishment for grave breaches of the Geneva Conventions 1949. It regulates legal proceedings with respect to protected persons (prisoners of war and internees).Apart from that, the Act also prohibits misuse of the Red Cross and other protected emblems under the Geneva Conventions. In spite of domestic law India has failed to punish the violator of the human rights in J&K.

NON-DEROGABLE RIGHTS UNDER THE INDIAN CONSTITUTION
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 (i.e., Art 20 and 21) which cannot be suspended even drring emergency 15 .

"Perpetual peace is no empty idea, but a practical thing which, through its gradual solution, is coming always nearer its final realization" -Immanuel Kant
At present India is combating two major problem i.e 'militants' refers to groups operating in Jammu and Kashmir to a large extent, in the Northeast while the other is 'extremists which refers to groups in the Naxal-affected areas. According to the estimate of the Asian Centre for Human Rights (ACHR) 16 the highest number of killings has been reported from Chhattisgarh (208) which constitutes 54% of the total killings, followed by Andhra Pradesh (59), Jharkhand (44) and Bihar(28). There have been credible reports of serious human rights violations by the security forces while combating the Naxalites. Though security forces identify all those killed by them as "Naxalites", there have been allegations of fake encounter killings 17 . Therefore, it is really matter of the serious concern that, in spite of signatory of various human rights treaties (mentioned in earlier part of the article) India has failed to protect the human rights of J& K people.

THE WAR OF KASHMIR: HUMANITARIAN LAW
The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. 20 Whenever the question of Human Rights and Humanitarian Law arises in context of India the first thing that strikes us is Kashmir. Now the question before us is whether the situation in Kashmir invokes the concept of internal armed conflict or not? After considering the above-mentioned threshold of internal armed conflict, the conclusion that can be possibly arrived at is that, the war in Kashmir between the Indian armed forces and Kashmiri resistance fighters automatically invokes Humanitarian Law. A long lasting demand of revocation of Armed Forces (Special Powers) Act of 1958 (AFSPA) is still not fulfilled. For the above cause, Iron lady Irom Sharmila has been on a hunger strike since November 2000 which has been the longest hunger strike ever. The present Chief Minister Mr. Omar Abdulla has also raised his voice for withdrawal of the Armed Forces (Special Powers) Act, 1958. 21 The reason for the strong voice for withdrawal of this act is, because of the violation of Humanitarian law in the guise of the instant Act; there are various provisions of the act which arein clear violation of human rights.
Under this Act, all security forces are given unrestricted and unaccounted power to carry out their operations, once an area is declared disturbed. Even a noncommissioned officer is granted the right to shoot, to kill on mere suspicion. The AFSPA gives wide powers to armed forces to shoot, arrest and search, all in the name of "aiding civil power." It was first applied to the North Eastern states of Assam and Manipur and was amended in 1972 to extend it to all the seven states in the northeastern region of India. The enforcement of the AFSPA has resulted in innumerable incidents of arbitrary detention, torture, rape, and looting by security personnel. This legislation is sought to be justified by the Government of India. There is a strong movement for self-determination which precedes the formation of the Indian Union. 22

Apparel Export Promotion Council v. A K Chopra 23
Delivering judgment on behalf of justice V N Khare, the chief justice of India, Justice Dr A S Anand said: In instant case Court held in all the cases of human rights violation, Courts are under an obligation to see that the message of the international instruments is not drowned. Court and counsel must never forget the core principles embodied in the International Conventions and Instruments and as far as possible give effect to the principles contained in those international instruments. Further, the Courts are under an obligation to give due regard to International Conventions and Norms for construing domestic laws. It is disheartening to note that, Indian government failed to observe the guidelines of apex court.
International judicial bodies such as European court of Human Rights in Plattfrom Arzte fur das Leben case 24 and the Inter-American court of Human Rights in Velasquez Rodriguez case 25 have observed that the state is duty bound to safeguard human rights from the infringement not only by the government, but also by the private individuals. States thus have a positive obligation to protect individuals from other individuals including collective individuals, such as armed group.

Prosecutorv.AntoFurundzija 26
In this case it was stipulated that the prohibition of torture laid down in human rights treaties enshrines an absolute right, which can never be derogated , not even at the time of emergency (on this ground the prohibition also applies to situations of armed conflict).Therefore, the prohibition on torture is a peremptory norm or jus cogens, which is irrevocable. The same has been also upheld in the case of Delalic Trial case. Therefore rape of Kashmiri women, constant and continuing armed attacks against the civilian population. These all are the elements of internal armed conflict, as well as it amount to the grave breach of the Geneva Convention, 1949.
Hence, the people of Kashmir are in dire need of help. The country is in ruins, there is need to take action by the United Nations for the protection of innocent people. Besides that, India signed the ICCPR in 1978; taking on the responsibility of securing the rights guaranteed by the Covenant to all its citizens, but the greatest outrage of the provisions of AFSPA under both Indian and International law is the violation of the right to life. This comes under Article 6 of the ICCPR, and it is a non-derogable right. Indian Government is liable for putting the life of Kashmiris in peril moreover, liable for large scale deaths and torture. Although India has not signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "Torture Convention") which was adopted by the General Assembly of the United Nations on 10 December 1984 (resolution 39/46),India still is liable for torture because now it is customary law as a Jus Cogens, which is also upheld in Sierra Leone case that even though the country did not ratify the Torture Convention until 2001, prohibition against torture is enshrined in international customary law as a Jus Cogens norm. 27 Therefore, it is obligatory even on Indian government also.
US v.Matta-Ballesteros case it was noted in that case, jus cogens norms which are non derogable and peremptory, enjoy the highest status within customary international law, are binding on all nations and cannot be pre-empted by the treaty 28

HOW DOES THE SITUATION IN KASHMIR ATTRACT THE PROVISION RELATING TO INTERNAL ARMED CONFLICT?
As it has already been mentioned that, India is signatory of Geneva Convention, 1949. Therefore, it is bound by the provision of the Common Article 3 of the Geneva Convention.
There are some of the following current situations in Kashmir, which are sufficient to meet the threshold of the internal armed conflict. These are as follows: Existence of internal armed conflict After considering various definition and cases on internal armed conflict, It can be clearly documented that, direct involvement of governmental armed forces and level of the violation in Kashmir i.e. killing, rape, torture etc. itself invokes the situation of internal armed conflict. Effective control No doubt India has effective control over Kashmir. Which is one of the essential elements to constitute the internal armed conflict.
High contracting party The provision of Common Article 3 applies to armed conflicts 'occurring in the territory of one of the High Contracting Parties'. The meaning of this element is very controversial. It can be argued that, this specific point was included in order to make it clear that the Common Article 3 may be applied only in relation to the territory of states that have ratified the Geneva Conventions, 1949. 29 Protracted violence The problem of Kashmir is not a current problem. However, Since December 1989, the strength of the insurgency in Jammu and Kashmir has fluctuated. The more prominent of the insurgent groups include the nominally secular, pro-independence Jammu and Kashmir Liberation Front (JKLF) and the radical Islamic and pro-Pakistani groups Hizb-ul-Mujahideen (HUM), Hizbollah, Harkat-ul-Hizb-ul-Ansar, and IkhwanulMuslimeen. 30 After analyzing all the above factors, it can be clearly documented, that conflict of J& K is internal armed conflict.