‘Flag of freedom’ should fly ‘not only for ourselves’: Gaza and India’s constitutional responsibility

On August 15, 1947, India made a pledge that it would use its freedom to promote justice, humanity and, of course, freedom everywhere. Has the country's attitude towards Gaza dishonoured this pledge?

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AS we stand on the threshold of the 78th Independence Day of India, how do we mark it? What sense does it make to go back in time to 'a moment' which Jawaharlal Nehru memorably described as coming "but rarely in history when we step out from the old to the new, when an age ends and the soul of a nation long suppressed finds utterance"?

Can an active remembering of our past become a way to shape the future? In the famous 'A tryst with Destiny', one of the themes Nehru brilliantly essayed was the idea that the pledge of service taken on August 15, 1947 was not just for "India and her people", but the "still larger cause of humanity".

The Objectives Resolution, which is the foundational document that shapes both the Preamble and the Constitution, pledges that when "this ancient land attains its rightful and honoured place in the world" it will "make its full and willing contribution to the promotion of world peace and the welfare of mankind".

This theme of India in the world pervades the very idea of India as imagined and brought forth in the Constituent Assembly. When Nehru moved the flag resolution he stated that "this flag that I have the honour to present to you is not, I hope and trust, a flag of [an] empire, a flag of imperialism, a flag of domination over anybody, but a flag of freedom not only for ourselves but a symbol of freedom to all people who may see it".

It is this constitutional imagination of India that stands for certain constitutional ideals that are missing in contemporary foreign policy debates. There is an internationalist legacy of caring about the world, of not being, in Nehru's words again, "a tight little narrow country, disdaining other countries" and of standing for 'freedom' against 'domination' which is part of the legacy of the freedom struggle as captured in the "magic of words" in the Constituent Assembly.

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A failure to remember our history and thereby act within a constitutional compass was most evident in the lack of response of the Indian government to the criminal tragedy of Gaza.

The continuing assault by the Israelis on the hapless people of Gaza has been characterised by different UN agencies as nothing less than an ongoing genocide, which international law characterises as the 'crime of crimes'.

Ever since October 7, 2023, for over nine months, Gaza has been bombed, its hospitals devastated, houses, schools and sites of cultural memory destroyed and its inhabitants deprived of food, water and shelter.

There are over 37,396 deaths reported, but according to The Lancet, "It is not implausible to estimate that up to 186,000 or even more deaths could be attributable to the current conflict in Gaza".

The Lancet also estimates that 35 percent of the buildings in Gaza have been destroyed, including homes, offices, centers of cultural and social life, hospitals, universities and schools.

As per the report of the special rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Francesca Albanese, "Israel has de facto treated an entire protected group and its life-sustaining infrastructure as 'terrorist' or 'terrorist-supporting', thus transforming everything and everyone into either a target or collateral damage, hence killable or destroyable.

"In this way, no Palestinian in Gaza is safe by definition. This has had devastating, intentional effects, costing the lives of tens of thousands of Palestinians, destroying the fabric of life in Gaza and causing irreparable harm to its entire population."

As per the special rapporteur, Israel's defence that the acts characterised as genocide are being perpetrated in response to the crimes of October 7, 2023 is not a legally tenable defence as genocide stands prohibited under any and all circumstances by international law.

The special rapporteur, after outlining her analysis that what is unfolding in Gaza is a genocide, calls upon "member States to enforce the prohibition of genocide in accordance with their non-derogable obligations".

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India is a signatory to the first human rights convention in the history of the world, namely the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. Article I confirms that "genocide, whether committed in time of peace or in time of war, is a crime under international law" which the "contracting parties", undertake to "prevent and to punish".

India has not only been silent on its obligations under the Genocide Convention but has also failed in the most basic obligation of supporting a ceasefire. In the UN General Assembly special session held on October 27, 2023, India abstained from voting in a resolution calling for "an immediate and sustained humanitarian truce leading to a cessation of hostilities".

This abstention by India on the above resolution is not only a betrayal of India's record of support for Palestine but is also in violation of the Directive Principles of State Policy which under Article 51(c) oblige India to "foster respect for international law" and under 51(a) require the State to "promote international peace and security".

Article 1 read with Article 51(a) and (c) would oblige India to not only support a ceasefire but undertake work towards 'prevent[ing] a genocide'.

India's silence on its obligations under the Genocide Convention is telling when contrasted with the action of South Africa, which is another global South country that also has a rich history of struggle against colonial domination.

In December of 2023, South Africa filed a petition before the International Court of Justice alleging that Israel is violating its obligation to "prevent and punish genocide" under the Genocide Convention.

South Africa's petition is an act of remembrance of its past and an act of commitment that what happened to South Africans should not happen to anyone else.

Historical memory is not just a backward-looking gesture but a gesture toward the future. Alexis Tocqueville captured the essence of this sentiment in his profound meditation that when "the past has ceased to throw its light upon the future, the mind of man wanders in obscurity".

While South Africa suffered the domination of one racial group by another racial group, which international law calls 'apartheid', Gazans are today the object of an "intention to destroy in whole or in part a national group" which international law characterises as 'genocide'.

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Both apartheid and genocide are international crimes committed against a collectivity. For South Africa, remembering the past of apartheid results in a commitment that crimes of the same or even larger magnitude are not committed upon the people of Gaza.

This link between the past, present and future is gestured to in the mandate of the special rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence which has recognised the human rights implications of collective remembering.

The question of truth and justice is profoundly wrapped up in the question of 'non-recurrence'. Non-recurrence translates the question of justice from the particularity of a nation's collective experience of unbearable pain and suffering to the universality of a normative prohibition of the infliction of that pain on suffering on any other group.

Compared to South Africa's act of remembering as justice, India suffers from historical amnesia, even as we mark the 78th anniversary of our independence. India remains unmoored from its past, therefore, it is unable to articulate an ethical vision for the future.

Nehru's invocation of the Indian flag symbolising "freedom not only for ourselves, but a symbol of freedom to all people who may see it" and his pledge on August, 15 1947 of service to the "still larger cause of humanity" needs to be consciously remembered.

Out of that conscious remembering we need to craft a foreign policy more in tune with our constitutional vision and the struggles which have shaped that vision. That vision, at the least, would encompass India standing in solidarity with the people of Gaza.

This Independence Day, we need to learn from South Africa, that foreign policy, even when steered by concerns of realpolitik, need not abandon a constitutional compass. We need to turn our history to account and support an immediate ceasefire and work towards holding Israel accountable for its unspeakable and continuing crimes against the people of Gaza.