Supplying arms to Myanmar is in violation of India’s international law obligations

India's continuing transfer of materials used in surveillance, artillery, and, probably, missiles— all manufactured by State-owned entities— arguably runs afoul of its obligations under customary international law and international humanitarian law.

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THE self-styled "mother of democracies" has supplied US $51 million worth of arms to the jackboots in Naypyidaw since the coup in 2021. Of this, US $49 million of the trade is directly with the Myanmar military through Myanmar-based military suppliers or sanctioned arms dealers, along with US $2.2 million through 22 unique suppliers. This is according to a new report from the United Nations (UN) Special Rapporteur on the situation of human rights in Myanmar. This works out to 422 crore in Indian rupees.

India's continuing transfer of materials used in surveillance, artillery, and, probably, missiles— all manufactured by State-owned entities— arguably runs afoul of its obligations under customary international law and international humanitarian law.

"India should have the requisite knowledge that the Myanmar military is committing probable war crimes given the substantial international reporting on this subject. India should, therefore, be aware that the arms it provides to the Myanmar military— though relatively limited— are likely to be used in the commission of international crimes," states the report.

Chair likely violates non-binding obligations under the Wassenaar Arrangement

These sales also likely violate India's non-binding obligations under the Wassenaar Arrangement. The Wassenaar Arrangement is an export control regime with 42 participating States that promotes transparency of national export control regimes on conventional arms, and dual-use goods and technologies. Interestingly, India is presently Chair of the Wassenaar Arrangement.

"The types of munitions and equipment India has shipped are listed in the munitions list in Sections 1 to 5 of the updated 'List of dual-use goods and technologies and munitions list'. Myanmar is arguably a "cause for serious concern" to Wassenaar's participating States, though it is unclear whether there is consensus on this point," according to the report.

Also read: NHRC's international accreditation deferred: No one batting with a straight bat

Indian private firms possible violators

The transfer of fuses from the Nagpur-based company Sandeep Metal Craft to the Myanmar military via arms broker Creative Exploration has been previously documented by Justice for Myanmar (JFM), a covert group of activists campaigning for justice and accountability for the people of Myanmar. The JFM highlighted that fuses from Sandeep Metal Craft to the Myanmar military have been used in 84 mm recoilless rifle rounds, such as Saab Group's Carl Gustaf rifles.

Not surprisingly, Myanmar is not listed among the clients of Sandeep Metal Craft. In addition to shipments from Indian State-owned entities, private Indian entities also transferred equipment and arms to the Myanmar military, including spare parts and fuses likely used in artillery shells.

The Myanmar military reportedly used 84 mm shells from the Saab rifle in April 2022 in fighting in its Karen state.

Indian multinational conglomerate company Larsen and Toubro Limited's sales were between US $1–5 hundred thousand, consisting of spare parts, and an alarm monitoring and control system.

Electro Pneumatics and Hydraulics (India) Pvt Ltd's sales to Myanmar are between five hundred to a million US dollars. The Pune-based, family-owned company produces a range of heavy-duty manufacturing machinery, hydraulic presses and tube benders.

Kolkata-based Jainkoch Corporation's sales to Myanmar are US $1–5 hundred thousand, which include a variety of motors, timing belts, and laboratory items. The corporation proudly advertises the State crest of Myanmar on its website as one of its partners.

Sai Sree Infra Developers' sales to Myanmar are also between US $1–5 hundred thousand. This consists mainly of educational and laboratory equipment for the Myanmar military Tatmadaw's basic technical training school.

Public sector companies

The 122 mm gun barrels supplied by Yantra India to Creative Exploration's sister company Innovative Industrial Technologies in October 2022 are likely used in Howitzers manufactured at KaPaSa factories [The Myanmar military's Directorate of Defense Industries (DDI) is a network of factories commonly known as KaPaSa, the Burmese acronym for the DDI]. Howitzers are towed artillery field guns which the military has used to commit war crimes, including the shelling of villages with devastating impact on the local population, as per the UN report. Yantra India is another Nagpur-based company. It is owned by the Union government.

The report also highlights that since 2018, India has transferred six second-hand HJT-16 Kiran-1 jet trainer/light attack aircraft to the Myanmar Air Force. It is not known if any of these aircraft were used in the bombing of Indian territory in Mizoram earlier this year.

In July 2021, Indian State-owned Bharat Electronics Limited exported a remote-controlled weapons station (RCWS)/air defence weapon station to Myanmar, according to export data. Bharat Electronic Limited's sales are over US $30 million. These include coastal surveillance systems, including radars, towers and communication equipment totalling over US $28 million. In addition, US $5 million-worth equipment and design documentation was provided under 2020 and 2021 contract agreements.

The UN Special Rapporteur did send inquiries to the Union government of India (GOI), and has in its report stated that the GOI has been responsive to its inquiries and shared additional information regarding the context of arms transfers to Myanmar.

"As described in Enabling Atrocities, this context includes that Myanmar and India share important security interests along a 1,700 km border and in the Bay of Bengal. Furthermore, the representative from India stated that any arms transfers that may have been made to Myanmar were based on commitments made to Myanmar's civilian government before the coup and based on India's domestic security concerns. India representatives also asserted that with regard to the issues presented in the report, 'We consider what is in the interest of the people of Myanmar'."

While the Special Rapporteur notes these points and assertions, research following on from the Enabling Atrocities paper found that shipments continued from India to Myanmar, including State-owned Bharat Electronics' transfer of RCWS/air defence weapon station up to September 2022. Further research also identified US $28 million of shipments directly to the Myanmar military related to a coastal radar surveillance system and US $5.2 million of unspecified equipment sent from Bharat Electronics at the end of 2021.

Bharat Dynamics Limited's (BDL) sales to Myanmar are between US $5–10 million. BDL is one of India's ammunition and missile systems manufacturers. BDL was incorporated on July 16, 1970 in Hyderabad, Telangana as a public sector undertaking under the Union Ministry of Defence to be the manufacturing base for guided missile systems and allied equipment for the Indian Armed Forces.

The Special Rapporteur also received information indicating that state-owned Bharat Dynamics, one of India's ammunition and missile systems manufacturers, received over US $7 million in payments for unspecified equipment from the Myanmar military since the coup. Given the nature of Bharat Dynamics products, the Special Rapporteur is concerned about the potential impact of these shipments on civilian populations.

Also read: India must support restoration of Democracy in Myanmar as China has massive stake in army coup 

Defence production and exports from India sans controls

India's defence production rose more than 12 percent last fiscal year and crossed the trillion rupee (US $12 billion) threshold for the first time. India's defence exports have risen too, jumping 24 percent to about 160 billion rupee last fiscal year, according to government data.

India exports Dornier-228 aircraft, artillery guns, Brahmos missiles made under a joint venture with Russia, radars, armoured vehicles, rockets and launchers, ammunition and other equipment.

The Union government initiated a strategy for facilitating defence exports in September 2014.

A Defence Export Steering Committee headed by the Secretary, Department of Defence Production— with representatives from the armed forces, the Defence Research and Development Organisation, Planning and International Cooperation Wing, and Acquisition Wings of the Union Ministries of Defence and External Affairs and the Director General Foreign Trade— was set up. Its functions include taking decisions on export of sensitive equipment, monitoring the progress of defence exports, and suggesting specific steps/strategies to boost exports.

These procedures were further simplified "to speed up sale of military equipment to friendly countries like Bangladesh, Vietnam, Sri Lanka, Afghanistan, Myanmar and others." All such wonderful, democratic and human rights worthies!

Also read: India played out a false dichotomy by emphasising domestic law over human rights at the Universal Periodic Review

UN guiding principles on business and human rights

According to international non-governmental organisation Amnesty International, "Under the UN Guiding Principles on Business and Human Rights, which was unanimously endorsed by the UN Human Rights Council in June 2011, all companies have a responsibility to respect human rights and, to meet that responsibility, undertake human rights due diligence to identify, prevent, mitigate and account for how they address both their potential and actual human rights impacts.

"In relation to the defence sector, this means companies must assess and address human rights risks and abuses arising in all aspects of their business, including how clients such as national armies and police forces use their weaponry and related services.

"The primary purpose of due diligence is to avoid causing or contributing to human rights abuses. Therefore if a company cannot prevent or adequately mitigate adverse human rights impacts, it should avoid or cease supplying the relevant arms and related services. These responsibilities exist over and above compliance with national laws and regulations— such as state licensing systems— aimed at protecting human rights."

India does not have the equivalent of the United Kingdom Export Control Joint Unit, which has some guidance on a consolidated list of strategic military and dual-use items that require export authorisation.

India is not a member of the global Arms Trade Treaty. The Indian objections are too clever by half. Dissecting them would require another article.