Table of Contents
THE CONTEXT: The Supreme Court of India recently dismissed a petition that sought to suspend licenses for exporting military equipment to Israel amidst ongoing conflict. This decision raises critical questions about the scope of judicial review over executive actions in foreign policy, particularly concerning international humanitarian law violations.
THE FOUR GENEVA CONVENTIONS OF 1949:
- First Geneva Convention: Protection of wounded and sick soldiers on land during war.
- Second Geneva Convention: Protection of wounded, sick, and shipwrecked military personnel at sea during war.
- Third Geneva Convention: Treatment of prisoners of war.
- Fourth Geneva Convention: Protection of civilian persons in time of war.
KEY PROVISIONS:
- Humane Treatment: All persons not participating in hostilities must be treated humanely without any adverse distinction.
- Protection of Civilians: Parties to a conflict must distinguish between combatants and civilians and not attack civilians.
- Care for the Wounded and Sick: Wounded and sick soldiers must be collected and cared for.
- Prisoners of War: Prisoners must be treated humanely, provided with adequate food and shelter, and protected against violence.
INDIA’S INVOLVEMENT AND OBLIGATIONS:
- Ratification: India ratified the Geneva Conventions on November 9, 1950.
- Obligations:
- Implement International Humanitarian Law (IHL): India is bound to respect and ensure respect for the conventions in all circumstances.
- Legislation: India must enact laws to punish grave breaches of the conventions, such as war crimes.
- Dissemination: India is required to spread knowledge of the conventions among its armed forces and the civilian population.
- Non-Aid to Breaches: India must not aid or assist in violations of the conventions committed by other states.
THE GENOCIDE CONVENTION 1951:
Definition of Genocide (Article II): Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group:
- Killing members of the group.
- Causing severe bodily or mental harm to members of the group.
- Deliberately inflicting conditions of life calculated to bring about the group’s physical destruction.
- Imposing measures intended to prevent births within the group.
- Forcibly transferring children of the group to another group.
Punishable Acts (Article III): Genocide, Conspiracy to commit genocide, Direct and public incitement to commit genocide, attempt to commit genocide, Complicity in genocide.
India’s Involvement and Obligations: India signed the Genocide Convention on December 29, 1949, and ratified it on August 27, 1959.
Obligations:
- Prevent Genocide: India is obligated to take measures to prevent genocide within its territory and not to contribute to genocide elsewhere.
- Punish Perpetrators: India must enact legislation to punish individuals responsible for genocide.
- Avoid Complicity: India must not be complicit in genocide, including refraining from actions that could aid or abet genocidal acts committed by other states.
THE APPLICATIONS:
- Arms Exports to Conflict Zones: When a state is accused of committing genocide or violating the Geneva Conventions, India must assess whether its actions, such as exporting arms, could contribute to those violations. Providing military equipment to a state engaged in genocide or war crimes could render India complicit under international law.
- Judicial Review: Indian courts have the authority to interpret domestic laws considering international obligations. The judiciary can play a role in ensuring that India complies with its international commitments.
THE ISSUES:
- Limits of Judicial Review in Foreign Policy Matters: The Supreme Court’s dismissal of the petition raises questions about the judiciary’s role in reviewing executive decisions related to foreign policy, mainly when such decisions may involve violations of international humanitarian law. The court cited “self-imposed restraint” in entering areas of foreign policy, potentially neglecting its duty to uphold international obligations.
- Interpretation and Application of International Law in Domestic Courts: The Supreme Court has previously held that domestic laws should be interpreted considering international treaties and conventions that India has ratified. The court’s dismissal suggests a departure from this principle, potentially undermining international law’s role in domestic jurisprudence.
- Supreme Court’s Reasoning on Israel Not Being a Party to the Case: The court stated that Israel not being a party to the case limited its ability to adjudicate the matter. This reasoning is challenged because the relief sought was against the Indian government and private companies, not Israel directly.
- Inconsistency with Actions of Other Nations: Other countries like Canada, Spain, and the United Kingdom have suspended arms exports to Israel in adherence to their international obligations. India’s continued exports may isolate it internationally and signal a disregard for collective commitments to uphold international law.
- Judiciary’s Role in Upholding International Commitments: The judiciary is responsible for ensuring that the executive branch acts in accordance with international treaties and conventions. By not intervening, the court may be perceived as neglecting its duty to enforce compliance with international norms.
- Legal Obligations to Prevent Genocide: Under the Genocide Convention, states are obligated to take all measures reasonably available to prevent genocide. The court’s failure to enforce this obligation raises serious legal and moral questions.
THE WAY FORWARD:
- Strengthening Judicial Oversight in Matters of International Law: International law today is not a mere moral code but a body of enforceable legal rules. Therefore, courts should not shy away from enforcing these rules when the executive fails to comply. In Vishaka vs State of Rajasthan (1997), the Supreme Court held that international conventions and norms are to be read into fundamental rights guaranteed by the Constitution in the absence of domestic legislation. This indicates the judiciary’s capacity to enforce international obligations.
- Adhering to International Obligations Under the Genocide and Geneva Conventions: Countries like Canada, Spain, and the United Kingdom have suspended arms exports to Israel in response to the ongoing conflict, recognizing their obligations under international law.
- Legislative Action to Regulate Arms Exports: Countries like Germany have strict arms export control laws that require government approval for exports and prohibit exports that would contribute to human rights violations. Amnesty International advocates for countries to “stop arms transfers to parties to a conflict where there is a clear risk they might be used to commit or facilitate serious violations of international humanitarian or human rights law.”
- Utilizing International Diplomatic Channels: India, as a member of the UN, can use its position to support resolutions and actions to mitigate the conflict and ensure compliance with international law. Historically, India has been a leader in NAM, which could serve as a platform to rally collective action and mediate international conflicts. India’s foreign policy should align with its long-standing principles of non-intervention and respect for international law, advocating for peaceful resolution of disputes.”
- Transparency and Accountability in Foreign Policy Decisions: Strengthening the role of parliamentary committees on foreign affairs and defense to scrutinize arms export decisions. As seen in Sweden and Norway, implementing policies allowing public access to information on arms exports enhances accountability. Openness in defense procurement and exports is essential to prevent corruption and ensure that exports do not contribute to human rights abuses.
THE CONCLUSION:
The Supreme Court’s dismissal underscores the complexities of balancing national interests with international legal obligations. As humanitarian crises persist, the ruling highlights the judiciary’s limited role in influencing foreign policy decisions that may contravene global human rights standards.
UPSC PAST YEAR QUESTION:
Q. ‘India’s relations with Israel have, of late, acquired a depth and diversity, which cannot be rolled back.” Discuss. 2018
MAINS PRACTICE QUESTION:
Q. Discuss the role of the judiciary in interpreting and enforcing international law obligations in India. What are the implications of these judgments for India’s foreign policy and adherence to international humanitarian law?
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