Aman

| @CB_Aman | October 15,2018

In 1945, the colonial British government initiated the Indian National Army Trials — popularly known as the Red Fort Trials as a consequence of some of the first, and the well known trials being conducted at the Red Fort. The first of these was the often remembered joint court-martial of Colonel Prem Sahgal, Colonel Gurbaksh Singh Dhillon, and Major General Shah Nawaz Khan. These were intended to be a criminal trial against the “rebellious” Indian National Army that waged a war against the colonial British state and all these defendants were to be tried for a “domestic crime” of treason. However, the defence team, led by the acclaimed lawyer Bhulabhai Desai argued that this was not a question for municipal penal law, but rather one for international law. This was indeed quite big — one of the first, biggest and unequivocal rejections of the colonial law (and, consequently the colonial rule) within the British court system itself.

Desai made two important points. One, under international law a subject race with an organised army had the right under international law to take up arms for national liberation. Second, in such wars of national liberation, the members of such organised army of the subject race were immune from domestic criminal law. He said: “If…a subject race finds itself in a position where its organisation is able to declare war, then acts done by the armies on either side come under this. I put a very simple question: What about the acts of those who fought on the aide of the British in this War? They killed lots of people. Would they be put up before this Court under Section 302?”.

One, under international law a subject race with an organised army had the right under international law to take up arms for national liberation. Second, in such wars of national liberation, the members of such organised army of the subject race were immune from domestic criminal law

I will not speak much about the first point here — all that is important to note is that modern international law does identify a right of resistance, even armed, as a defence against certain oppressive, colonial regimes. However, what is more important for this piece is that in suchan armed conflict both armed groups have an equal status as combatants, as Bhulabhai Desai points out;  and the weaker side cannot just be made subject to domination of the other. In this case, for instance,  as he argues — INA members could not be tried under domestic criminal law.

This was a recognition of an important principle by Indian lawyers. In fact, the recognition of “equal status of combatants” forms one of the underlying foundations of modern international law of armed conflict post the Second World War, popularly known as humanitarian law — especially so in the case of international conflicts. In fact, one of the distinguishing features of this area of  law somewhat flows from this. It recognises that the law applies equally to all conflicting sides in terms of both its rights and obligations  — irrespective of which side is the aggressor, and which side is the victim. The idea was — if one were to make the application of humanitarian law contingent on the determination of which side is wrong, the principles would be respected more by their breach than the observance.

 

Introduction to humanitarian law

 

Quite like human rights, humanitarian law affords certain basic protections to individuals (to civilians, combatants, prisoners of war etc.) even in times of armed conflict (for example, humane treatment of the wounded and sick, prevention of slave trade, prevention of hostage taking; prohibition on the use of human shields); besides providing for basic rules for warfare (for example, proportionality of the attack, verification of target, restriction on use of some weapons).

It is also pertinent to note that though humanitarian law is not the same as human rights. Obviously, humanitarian law’s genesis is not solely humanitarian (it also traces its routes to military codes about effective combat).  Moreover, humanitarian law only deals with the very specific problems arising out of an armed conflict; and takes note of the reality of conflict by not demanding the traditionally understood protection of ‘right to life’ of a soldier in an active combat. Quite naturally, the merger of the two areas of law is not possible. However, portraying them as mutually exclusive  is also not correct.

The International Court of Justice, too, in its 2004 Israeli Wall Advisory Opinion also held that both human rights and humanitarian law apply simultaneously. For instance, human rights considerations have to provide a solution for issues where humanitarian law has no specific answer

In fact, one if the biggest aims of modern humanitarian law as we see it today is to avoid making conflict disproportionate and protect basic fundamental humanitarian principles — ideals that are quite aligned to the purpose of human rights law. In fact, though human rights and the humanitarian law instruments were drafted and adopted at the same time but in different contexts, countries and forums without much of link, recent developments show that practice is moving towards a huge convergence, both in terms of law and the rationale of protection of fundamental rights of humans. The International Court of Justice, too, in its 2004 Israeli Wall Advisory Opinion also held that both human rights and humanitarian law apply simultaneously. For instance, human rights considerations have to provide a solution for issues where humanitarian law has no specific answer.

 

The state of many exceptions 

 

 

 

Going back to the colonial state such principle of equal status was clearly disregarded during the wars of national liberation. Not only did the colonial state disrespect such principles through reprisals and repression of the freedom fighters, but the colonial state also avoided placing victims on a truly equal footing by denying them basic humanitarian rights, and shaped perceptions about the moral status of combatants in national liberation struggle and the justice of the causes they espoused. Take the Red Fort Trials, for instance, where the defendants tried were labelled as treasonous under the domestic penal law — and their cause was delegitimised by law. It is also interesting to note how the colonial state visbilised such denigration only to demonstrate the control, and to establish their authority over the minds of the wider population. In this case too, sending a message to the wider public was not just done through exemplary, deterrent punishment awarded to the three (deportation for life) but also holding the trial at the Red Fort in Delhi — a symbol of India’s freedom struggle, and central to INA’s “Dilli Chalo” call.

These colonial sentiments discussed above run deep in India’s counter-insurgency warfare and lawfare (see here, here and here) in Kashmir. Quite recently, in one of few of the many such expressive rejections of the principle of equal application to instil fear, and impose control over the minds and the bodies of Kashmiris a photograph made it to Indian news. It was a photograph of security personnel dragging a body with rope tied to its feet in the Kakriyal forests in the Jammu area. Interestingly, there wasn’t just one such body. Everyone had something to say — the liberals, the nationalists, the strategists.

It was a photograph of security personnel dragging a body with rope tied to its feet in the Kakriyal forests in the Jammu area. Interestingly, there wasn’t just one such body. Everyone had something to say — the liberals, the nationalists, the strategists

Many such liberals were outraged at the picture — making such routine military engagements sound exceptional. The only difference this time was perhaps it was captured on photograph and that it surfaced. It might be eye-opening to note that from the time the photograph surfaced — a lot has happened: for instance, a civilian has been extrajudicially killed during a cordon and search operation, a funeral has been attacked, religious processions have been targeted, and there have been attempts to torch the house of the family of a slain militant. Even the defilement of corpses by state forces is not new. In fact, pretty soon after the incident a video showing soldiers standing on the faces of dead militants also surfaced.

Without surprise we heard obtuse arguments about the safety of soldiers from “grenade booby-traps”, and how tying and dragging corpses of militants kept soldiers safe.  Any one with basic logic would wonder: Wouldn’t dragging cause explosion? And how does the rope help, not that the length is long enough? Or worse, what in the case of bodies that were not tied to ropes? Obviously, if one is blinded by necrophilia, probably even taking a selfie with the anti-national dead body would not strike as problematic.

Without surprise we heard obtuse arguments about the safety of soldiers from “grenade booby-traps”, and how tying and dragging corpses of militants kept soldiers safe. Any one with basic logic would wonder: Wouldn’t dragging cause explosion? And how does the rope help, not that the length is long enough?

What’s worse —  post the killing of Manan Wani, that the popular ‘scholar turned militant’ known for his political writings on occupation and resistance (obviously censored by the State), during a gunfight in Handwara  — we might unfortunately see many more such visbilised “engagements” to contain people, protests, funerals, thoughts; give many more such justifications to shape perceptions.

But what else would one expect in times where the State asks its subjects to celebrate armed conflict (see here too) by observing the “Surgical Strike Day” and; where, without any question, a Ganapati puja is based on the infamous “human shield incident”; and where the Defence Minister of India openly sayswe are also cutting heads, but are not displaying them” and the audience bursts into an applause.

Obviously, like the colonial state, there seems to be no desire to accept that there is an armed conflict for humanitarian law to even apply; and as a consequence give applicable rights and protections to the combatants, victims and prisoners.

 

What is an armed conflict in law?

 

For humanitarian law to apply, one must establish the existence of an armed conflict. However, humanitarian law does not recognise a unitary concept of armed conflict but rather, recognises two types of armed conflicts — international (IAC) and non-international (NIAC).

IAC involves armed hostilities between two or more sovereign States, regardless of whether a ‘state of war’ has been declared or accepted. This also extends to foreign armed intervention in an internal conflict. The threshold for an IAC is rather low – almost any use of armed force by one state against another will bring into effect an IAC  except perhaps in cases where the use of force is unintended (for example, arising out of an error). It makes no difference as to how long the conflict lasts, how many are killed or injured, or how numerous are the participating forces. In fact, even if there has been no fighting, the fact that persons covered by the Conventions are detained by the other armed group is sufficient for the application of humanitarian law.

Besides inter-state conflict, IAC is also applicable in the case of an “occupation” even if such occupation meets no armed resistance, or even in cases where the occupying force is engaged with non-state groups that are not fighting on behalf of the occupied state. Though there has been much contestation as to what constitutes an occupation — traditionally, under law, a territory is considered occupied when it is actually placed under the authority of a hostile army; and the occupier, consequently, exercises effective territorial control, substituting its own authority for the authority of the territorial state. The Israeli occupation of Palestine is one well known and a more acknowledged example of such an occupation.

A relatively more recent, and more contentious, understanding is that wars of national liberation where people are fighting against colonial domination, alien occupation and against racist regimes in the exercise of their right of self-determination are also IACs. Additional Protocol I (AP I) to the Geneva Conventions (which applies to IACs) explicitly applies to such conflicts. Though there are, some serious reservations on whether such a rule has attained the status of customary international law, there is also some support. For instance, some argue that many colonial powers like Britain did not ratify the Geneva Conventions Britain until 1957 out of concern that the ratification would seriously restrict the operations of its security forces when responding to anti-colonial struggles. During the negotiations of the AP I, even India believed (also see here) that Additional Protocols must classify national liberation struggles as international armed conflicts as “they were well aware of the misery and suffering caused by the armed conflicts of which they were the victims”.

A relatively more recent, and more contentious, understanding is that wars of national liberation where people are fighting against colonial domination, alien occupation and against racist regimes in the exercise of their right of self-determination are also IACs. Additional Protocol I (AP I) to the Geneva Conventions (which applies to IACs) explicitly applies to such conflicts

A NIAC on the other hand requires a threshold to be satisfied. For the law to be applicable, there has to be “protracted armed violence between governmental authorities and organised armed groups or between such groups within a State”. Therefore, situations of internal disturbances and tensions, and law and order problems, such as riots, isolated and sporadic acts of violence do not invite the application of humanitarian law. An assessment, therefore, needs to be made of factors like the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number of casualties; the extent of material destruction; and like factors. Its also pertinent to note that even operations conducted by law enforcement agents, like police are not excluded from classification as NIAC.

The recognition of NIAC under humanitarian law is more recent — particularly after the  Second World War. It is interesting to note that though India has signed the Geneva Conventions, it has always expressed concerns about the categorisation of NIAC itself. During the negotiation of Additional Protocol II of the Geneva Conventions (AP II) on NIAC, the Indian delegation raised strong objections to the very idea of AP II on the grounds that once the national liberation movements had been included in AP I as an IAC, AP II would be redundant and impinge on the sovereignty of states because NIAC situations would usually be law and order problems within the exclusive domestic jurisdiction of each state.

When women do speak out, even if it is 10-20 years after the incident, they must be taken at face value, heard, trusted, believed — and be given the right to an investigation into their allegations. To report or not to report is an individual decision, and often depends on their emotional readiness to face the consequences

This categorisation of IAC and NIAC is essential — it determines the scope of applicable rules and protections. However, not so much as it used to — owing to the growing body of rules under customary international law. As seen by concerns raised by India — traditionally, considering it to be an infraction of their sovereignty, states resisted the idea of regulating such internal conflicts like civil wars. Consequently, treaty law such as the Geneva Conventions (to which India is a party), had a very small list of humanitarian protections; and the AP II to the Geneva Conventions (to which India is not a party) that regulates NIAC is smaller than Additional Protocol I (to which India is not a party) that regulates IAC. As mentioned, over the years the gap has been bridged significantly. However, one of the biggest distinguishing factors remains — despite the law demands equal application in this case as well: it cannot be said to affirm an equal legal and moral status of the combatants. Consequently, laws on NIAC do not limit the Government’s right to suppress a rebellion by all the means provided by its own laws; nor does it, in any way affect, the Government’s right to prosecute, try and sentence its adversaries, according to its own laws.

 

Classification of the conflict in Kashmir

 

International law does recognise the existence of mixed, multiple conflicts — Kashmir is one such prime example. There is obviously an IAC between the Indian forces and the armed forces from Pakistan. To the limited extent if one can establish the control (under law) of some of the many operating non-state actors by Pakistan — it is an IAC too quatheir engagements.

There is a very good argument to say that that this will be an international armed conflict being a war of national liberation/self-determination despite India not having signed and ratified AP I. There are two tenable arguments — first, as a consequence of national liberations being categorised as an IAC under customary international law; and second — India’s own, unilateral acknowledgement that such wars must be categorised as IAC

But the most contentious is the categorisation of the framework for the engagements between the Indian armed forces (includes Kashmiri local forces as well) and civilians, local armed combatants, and foreign armed combatants who are not under the control of other states. Quite naturally, these engagements are most abusive as well. There is a very good argument to say that that this will be an international armed conflict being a war of national liberation/self-determination despite India not having signed and ratified AP I. There are two tenable arguments — first,  as a consequence of national liberations being categorised as an IAC under customary international law; and second — India’s own, unilateral acknowledgement that such wars must be categorised as IAC. In any case, one can also argue, as a consequence of Kashmir’s contentious accession that, this constitutes as an occupation. Consequently, any of Indian forces engagements with the civilians and non-state combatants are governed under the framework applicable for IACs. Even if none of these arguments fly, in the least, the engagements between the Indian forces and the civilians, non-state actors operating in Kashmir would be governed under the framework of NIAC — easily having met the threshold of “protracted armed violence” between Indian forces and organised armed groups — in terms of number, duration and intensity.

The Indian categorisation of conflict has been quite opportunistic and manipulative. On one hand, it has categorised Kashmir as a “law and order”, “internal situation”, vocabularising it as “riots”, “disturbances” orchestrated by disillusioned, errant, uneducated youth who do not have “cinemas and coffee shops”. And on the other, the Indian State sets up the most militarised zone in the world, declares the entire state of Jammu and Kashmir as an area for “active service” against the “enemy” under the BSF and Army Act; and deploys martial law

The Indian categorisation of conflict has been quite opportunistic and manipulative. On one hand, it has categorised Kashmir as a “law and order”, “internal situation”, vocabularising it as “riots”, “disturbances” orchestrated by disillusioned, errant, uneducated youth who do not have “cinemas and coffee shops”. And on the other, the Indian State sets up the most militarised zone in the world (see hereand here), declares the entire state of Jammu and Kashmir as an area for “active service” against  the “enemy” under the BSF and Army Act; anddeploys martial law. Shrimoyee Nandini Ghosh, while talking about the importance of calling the conflict in Kashmir by its rightful name i.e. a war,rather than pretending that it doesn’t exist, explains this contrast well: “[t]he ability to opportunistically swing between these positions — rhetorically presenting Kashmir as a law and order issue, a problem of mass civilian criminality, while ensuring simultaneously that any expression of dissent (both armed and unarmed) in Kashmir is dealt with by military force that is legally unencumbered, as in a military operation, and that the Kashmiri civilian population is treated as enemy subjects.” And this isnot just to prevent any internationalisation but also to visiblydeny the protections afforded to combatants, wounded/dead and the civilians just like the colonial state.

 

Is it about the incident?

 

I will close with the discussion about the incident that sparked the piece — the dragging of a militant’s body with rope tied to its feet last month. Having established that there is sure to be an application of humanitarian law — the answer is easy: mutilation of dead bodies is a “clear violation” of both customary, and treaty norms in both IAC and NIAC. Under international criminal law, the prohibition of mutilating dead bodies in international armed conflicts is covered as a war crime. It is so straightforward that there is little scope to argue otherwise. In fact, it is that clear that our self-fulfilling categorisation of these dead armed combatants as “Pakistanis” or “terrorists” does not take away from such violation of the law. But it is not about this incident.

Why is that we normailse the collective punishment of all Kashmiris or justify barbaric display of power and control? Why is that we celebrate death of the assumed enemy – by clicking selfies, celebrate armed attacks and use of human shields or clap when we hear about be-headings? Why are, to state’s surprise, educated men like Wani taking up arms? Why is it that we do not wish to even be ready to hear about legality of accession, occupation and self-determination?

If its all so easy to establish, and so clear to perceive why is it so difficult to acknowledge and digest and punish the perpetrators of such vile crimes? Why every time such questions come up, our default reaction is to talk about the Kashmiri/Pakistani/Islamic terrorist of having done worse (see the OHCHR report on Kashmir for myth busters)? And as a consequence, why is that we normailse the collective punishment of all Kashmiris or justify barbaric display of power and control? Why is that we celebrate death of the assumed enemy –by clicking selfies, celebrate armed attacks and use of human shields or clap when we hear about be-headings? Why are, to state’s surprise, educated men like Wani taking up arms?Why is it that we do not wish to even be ready to hear about legality of accession, occupation and self-determination?

These are, I guess, the real questions we need to ask — especially when the next few days there will be discussions around Wani. If we answer these with honesty and righteousness, we will perhaps know why was it so difficult to acknowledge that there is an armed conflict and why did we not call out this incident, and many such incidents, asclearviolations of humanitarian law.

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