Ishita Chakrabarty | firstname.lastname@example.org
On 14 June 2018, the OHCHR released a report on the human rights violations committed by India in the Kashmir region. India reacted to the report by snubbing it as “fallacious, tendentious and motivated”. Despite identifying the human rights violations committed by India, the report contains no mention of the State’s constant transgression of International Humanitarian Law (‘IHL’) norms. In light of this omission, the present contribution intends to examine India’s violations of its IHL obligations in the context of the Kashmir situation with a special focus on State-inflicted collective punishments on the civilian population.
Applicability of IHL Rules
Common Article 3 (CA 3) to the Geneva Conventions lays down the minimum standards of conduct in a non-international armed conflict (‘NIAC’). It distinguishes armed conflicts from situations of internal disturbances, tensions, riots and banditry by prescribing a certain threshold of violence. First, the hostilities must exhibit such intensity that the government can no longer rely on ordinary policing methods. Secondly, the insurgent groups involved in the conflict must possess a certain degree of organization. Additional Protocol II (‘AP II’) to the Convention builds on these guarantees. Although the latter applies in cases of conflict between dissident groups and the government, it additionally requires the former to exercise control over a part of the territory. The Tadic decision defined NIACs as situations of “protracted armed violence between governmental authorities and organised armed groups within a state”. A number of authors have claimed that the conflict in India has been transformed into an International Armed Conflict (‘IAC’) following the intervention of Pakistan. However, the intervening state would have to do more than politically, financially or even militarily equip a participant to a conflict to change the qualification of a NIAC into an IAC. As the ICTY emphasized in the Tadic judgment, in the case of private individuals of another state, to satisfy the ‘overall control’ requirement, the dissidents would have to act as de facto organs of the State by following the State’s specific instructions.
The Indian Government has been involved in armed violence since the late 1980’s, with the surfacing of the Jammu-Kashmir Liberation Front (JKLF). In the later phases of the insurgency, groups in favour of accession to Pakistan such as the Hurriyat, LeT (Lashkar-e-Taiba) and Hizbul Mujahedeen also arose, and the wave of militancy moved from urban to rural areas. However, the issue of whether Pakistan as a State has issued any ‘specific instructions’ to these groups is contended.
The Draconian Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA) that was imposed by the Government in 1990 is still in operation, along with the Jammu Kashmir Public Safety Act from 1978. These Acts have led to a round-the-clock military and paramilitary presence throughout the state. While the government has attempted to downplay the situation as resembling ‘jus ad vim’ – a situation of legal uncertainty marked by lower intensity targeting over longer duration of time, the use of terms such as ‘counter-insurgency’, ‘cordon-and-search’, ‘neutralisation’ and ‘ceasefire violations’ indicate the continuance of combat action and that no ‘peaceful settlement’ has been reached. The presence of an armed conflict is judged on the basis of objective, and not subjective criteria, implying that India’s dismissal of the entire situation as mere incidents of sporadic violence or internal disturbances will not disentitle the insurgents or the civilian population from claiming their rightful protection.
Although India has not yet signed the Additional Protocols to the Geneva Conventions, it is not exempted from its IHL obligations under customary international law (‘CIL’) and the treaty obligations arising from the provisions of Common Article 3. This is true irrespective of whether the conflict is characterized as an IAC or NIAC. Therefore, India is bound by the de minimis protections guaranteed by these international rules, including the prohibition of collective punishments and the prohibitions of attacks on civilians and those who are hors de combat.
Meaning and Status of ‘Collective Punishments’ under International Law
Collective punishments imply the imposition of punishment collectively on persons for which some or none of them may have been responsible. The reason why these persons are targeted is not because they have directly participated in the conduct of hostilities, but because they are suspected to have done something considered as condemnable. Under IHL, this prohibition flows from Article 75(2) of AP I and Article 4(2)(b) of AP II.
Collective punishments are also prohibited under CIL as illustrated by the CIL study undertaken by the International Committee for the Red Cross Society (‘ICRC’). CIL norms formulated after observing both state practice and opinio juris are applicable to both IACs and NIACs (Rule 103). It is in part an application of the following norms: that an individual cannot be convicted of an offence except on the basis of individual responsibility (Rule 102), and the principle of distinction (Article 48 of AP I and 13(2) of AP I) which requires the parties to the conflict to distinguish at all times between civilians and insurgents and direct attacks only towards the latter. However, its scope is much wider than the former, since it extends into the sphere of administrative and police sanctions, harassment by state officials, confinements, fines and even loss of property. It includes the prohibition of cruel and degrading treatment and even the using of human shields (Rule 97). Several State manuals and commentaries have also condemned the destruction of civilian infrastructure, including religious, cultural and historical sites, educational institutions, restrictions on civilian movements, attacks on suspected insurgents and their family members or any other act undertaken to worsen the socio-economic status of conditions as a form of collective punishment.
Collective punishments also find a general prohibition under the laws prohibiting the deprivation of liberty, security and the right to a fair trial. In the Advisory Opinion on Construction of the Wall, the ICJ upheld its earlier judgement in the DRC v. Uganda case that the general rules under international human rights instruments will always be applicable during situations of armed conflict along with the more specialized rules on IHL. Therefore, the State cannot derogate from basic principles of human rights under the pretext of war, public emergencies or situations of armed conflict.
Ishita Chakrabarty is currently in the fourth year of her study at Hidayatullah National Law University, Raipur, India. She has previously authored and published a paper with the Queen Mary Law Journal and has had the opportunity of interning in the capacity of a student researcher with Justice Indu Malhotra, Judge, Supreme Court of India and at the Commonwealth Human Rights Initiative.