Read the first part of this post here.
Ishita Chakrabarty | firstname.lastname@example.org
India’s Violation of Customary IHL Principles
The Armed Forces (Special Powers) Acts (AFSPA) and the Public Safety Act introduced the obligation of the prosecutor to obtain prior sanction from the Union Government before initiating prosecution against the police and the paramilitary forces. Various charges have been leveled against officials, ranging from the commission of extra-judicial executions to deliberate torture, the killing of detainees in custody and reprisal killing of civilians. In some cases, the State Police even refused to register the charges. For instance, in 2017, the video of a civilian tied to an army jeep showed the Government’s animosity towards its own citizens. The civilian was being used as a human shield to avert incidents of stone pelting.
It was only after considerable public outcry that the State Police registered charges of abduction with an intent to cause grievous hurt, wrongful confinement and criminal intimidation against the army official. Moreover, family members of known and suspected militants have also been allegedly arrested in the past, their houses having been set ablaze. This has only resulted in an escalation of violence and a tit-for-tat situation, where militants have also resorted to the abduction of family members and relatives of security personnel. Curfews and communication blockades have had major repercussions on health care and led to severe conditions of depression. The regular imposition of curfews and strikes has also had a deterrent effect over education and school drop-out rates because of factors such as migrating populations, vulnerabilities of location and destruction of school premises. The illegal occupation of civilian properties by military personnel, without any redress, has further compounded the situation.
The Apex Court has previously declared that policy decisions within disturbed areas lie in the exclusive domain of the government, without further inquiring into whether the paramilitary forces had violated customary international humanitarian rules. This attitude marks a stark contrast with the way the Indian courts have handled the situation and the way other judicial bodies have interpreted and applied the IHL rules even where they possessed no explicit powers to rule on such violations. These bodies have held that a passive attitude by the courts or the existence of amnesty laws and limitation actions barring prosecution of perpetrators of grave acts of violence violates the civilians’ right to life. Even domestic courts such as the Israeli Supreme Court in the Targeted Killings case have confirmed the existence of an armed conflict and reviewed the national policies in light of humanitarian law, human rights and national laws. The Court here had gone so far as to discuss preventative attacks and the loss of protection of civilians during participation in hostilities. Again, in the case of A & B v. Israel, the Israeli Supreme Court reviewed the legality of internment under the domestic law against international humanitarian law norms under the fourth Geneva Convention.
The European Court of Human Rights (ECtHR) has applied a ‘law-enforcement’ paradigm several times in the context of armed force, establishing the notion that if a member of the armed group can be arrested, interrogated and put on trial, the State should first exhaust those means and must not arbitrarily resort to the use of deadly force. For the Indian Government to follow a lower threshold against its own civilians in Kashmir by resorting to cruel, inhuman and degrading treatment, is to defy the very basic notions of humanity. These rules follow from the fundamental principles of proportionality, which are well established not only under the Conventions, but also as part of customary international law.
As previously stated, collective punishments extend to the violation of third generation rights. In this context, the State machinery is under an obligation to move towards the actualization of not only civil and political, but also social, economic and cultural rights. Provisions requiring the protection of the inherent dignity of human life and the promotion of healthcare are normative and the State cannot justify its non-compliance with these core obligations. The obligation is more onerous in the case of those particularly vulnerable and living under conditions of risk. The State agencies in India could perhaps do good by following in the footsteps of reparations commissions that have granted collective reparations, including the construction of schools and hospitals, establishment of memorials and special development funds, initiation of adequate housing programs or even a public apology.
Notably, the Office of the United Nations High Commissioner for Human Rights (OHCHR) has further published a detailed report on the violations of human rights, and international humanitarian law in the context of the armed conflict in Yemen, around the same time as the report on Kashmir (August 2018). Clearly, it chose not to mince its words in that report. Whatever may have been the reason for the omission, this issue is no longer ‘domestic’. The Indian Government agents and forces deployed have consistently engaged in varying degrees of what seems as only human rights violations but, in substance, are violations of international humanitarian law obligations too, including the obligation to refrain from imposing collective punishments. This coupled with the Government’s persistent failure to investigate the situation despite repeated call-outs for accountability has established a pattern of violence in the valley. The Indian Government ought to embrace the OHCHR report and keep in mind that the pursuance of terror tactics and failure to take procedural actions may prove to be an Achilles’ heel and turn the tables in favour of the separatists with increased civilian rallying for secession.
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.