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International Humanitarian Law and Non-state Actors

Human Rights and International Humanitarian Law
The need to uphold human rights is an age old concept that has been nurtured by all civilisations since time immemorial. International law on human rights, on the other hand is of recent origin. The Universal Declaration on Human Rights (UDHR) 1948 and follow up International Covenants, 1966, are the most significant international treaties which have been signed and ratified by most member states. These treaties and numerous other agreements, conventions and declarations which have been adopted so far, have put certain restrictions on the behaviour of member states with respect to their citizens. India’s record in protecting the human rights of its citizens is impeccable. The most significant legal landmark is the enactment of the National Human Rights Act 1993, as amended in October 2006, which covers all possible areas of protection of human rights. The Indian Constitution, the independent Judiciary and NHRC are the most visible symbols concerned with the protection of the human rights of Indian citizens.
 
The other very significant law which is overlooked at times is International Humanitarian Law (IHL),  comprised of the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law. The Geneva Conventions 1949 and the 1977 Additional Protocols provide a reasonably sound regime for the protection of non-combatants and victims of armed conflicts. In the ancient cultures and traditions, the rules for humanitarian conduct of warfare have existed for centuries. All the battles in the Mahabharata were fought under a well established code of conduct. However, these rules are new to Western civilisation. IHL is a set of international rules, established by treaty or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts. IHL protects persons and property that are, or may be, affected by an armed conflict and limits the rights of the parties to a conflict to use methods and means of warfare of their choice.
 
Non-state Actors and International Humanitarian Law
The convergence of Human Rights and International Humanitarian Law is a recent phenomenon. The “Common Article 3” of the Geneva Conventions of 1949, further strengthened by Additional Protocol 1 of 1977 (applicable in international armed conflict – wars involving two or more states) and Additional Protocol 2 of 1977 (applicable in non-international armed conflict – government forces fighting armed insurgents), have attempted to cover all kinds of conflicts of international as well as non-international nature. The Turku Declaration on Minimum Humanitarian Standards initiated in 1987 is a very significant attempt to regulate the behaviour of states even during internal strife and public emergencies which are otherwise not covered under IHL. However, non-state actors do not figure in the prevalent humanitarian regimes simply because they are not organised entities whose members can be held responsible for violations.
 
The Indian security forces have conducted sub-conventional operations for maintaining internal security with the utmost restraint over the last five decades. The principle of ‘use of minimum force’ has always been strictly followed. However, in the past certain types of operations like ‘cordon and search’ of an entire village based on suspicion and frequent spot searches of people and transport were not people friendly. These were seen to have caused immense inconvenience and hardship and have been stopped. Today’s citizens are very well aware of their rights and are also extremely sensitive to heavy-handed operations. Also, the media are becoming increasingly more intrusive and human rights NGOs are becoming more strident and critical of human rights violations. Hence, today it is even more important to ensure that human rights are sincerely respected and violations are eliminated altogether. Where there are incidents of suspected human rights violations, these should be transparently investigated jointly with the police and representatives of the concerned civilian population and exemplary punishment should be awarded where culpability is established.
 
However, non-state actors and terrorist organisations inimical to the state respect no laws and covenants and bring to bear overbearing brutality and ruthlessness in their actions while pursuing their nefarious goals. They kill and maim security forces personnel and innocent civilians with equal ferocity. No amount of intercession by the state can possibly influence these raiders of the night to mend their perverse ways. Members of the LTTE have been alleged to have treated the innocent civilian population trapped with them with unprecedented brutality. The only ray of hope lies in calling on the parents, other close relatives, village elders and loved ones of the extremists to gradually sensitise them about the senselessness of continuing on their chosen path. It is also necessary to convince them to adopt peaceful means within the ambit of the country’s Constitution to achieve their political goals.
 
The Indian Army has mostly conducted internal security operations with one hand tied behind the back. It has never been accused of a My Lai type of massacre and has never had a detention-cum-interrogation facility like Guantanamo Bay. However, even minor transgressions result in bad press and loss of face and it is necessary to put in double the effort to educate troops and their junior leaders about the inescapable need to conduct clean operations so as to avoid being tainted by accusations of the violation of human rights – even while dealing with unscrupulous and vicious non-state actors.

(Disclaimer: The views expressed in this article are those of the author and do not represent the views either of the Editorial Committee or the Centre for Land Warfare Studies).

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Brig Gurmeet Kanwal
Former Director
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