International Humanitarian Law in India: A Critical Case Study

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International Humanitarian Law in India: A Critical Case Study
Article · February 2014

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Online International Interdisciplinary Research Journal, {Bi-Monthly}, ISSN2249-9598, Volume-IV, Issue-I, Jan-Feb 2014
International Humanitarian Law in India: A Critical Case Study
a
Anita Yadav, bAmit Yadav
a
Assistant Professor of Law, Christ University, School of Law, Bangalore, (India)
b
PhD candidate and JRF holder at Lucknow University, (India)
Abstract
Present Article attempts to sketch the application of International Humanitarian Law
in the context of internal armed conflict in India, as well as various approaches at
national and international level to solve this problem. Since Human Rights violation is
no longer contained within the state–private relation spectrum and has spilled outside
it. Therefore, right now there is need for effective implementation machinery to check
such spillage and meet new challenges posed by private actors for the enjoyment of
Human Rights.
KEYWORDS: Human Rights, International Humanitarian Law, Geneva
Conventions, Non-International Armed Conflict etc.
INTRODUCTION
The term International Humanitarian Law (IHL) also known as ‘The law of armed
conflict’ or ‘the law of war 1 ’. It is a branch of International Human Rights Law.
Generally International Humanitarian Law deals with situation of the armed conflict
which is either at international or non-international level. The object of the IHL
(International Humanitarian Law) is to provide protection to all non-combatant and
combatant who have been disabled (accident, retire etc.) during the period of the
armed conflict. Right now International Humanitarian Law comprises following parts:
1. Geneva Convention
2. Hague Convention
3. Customary international law
WHAT IS THE NEED OF INTERNATIONAL HUMANITARIAN LAW (IHL)?
Before 1949, neither the Charter of United Nations, nor any other rule of International
Law, prohibited the use of force by armed group within the state. Even though there is
International Human Rights Law which deals with war as well as peaceful situation.
But there is not as such special provision which regulate the conduct of the state
during the war. After World War II, it is realised that more conflicts is purely internal
character have occurred, which led to violation of human rights and create the
necessity to regulate the conduct of war. Moreover, today we are living in nuclear
arena. Nobody can forget the damage caused by the atomic bombs, in Japanese cities
of Hiroshima and Nagasaki. Day to day advancement of technology increases the
threat to human life. In 21stcentury various kinds of advance weapons have been
developed this includes Cluster ammunitions, Chemical and Biological Weapons. All
1
International Humanitarian law Research
Initative<ihl.ihlresearch.org/index.cfm?fuseaction=page.viewpage&pageid>accessed 29 November
2011.
www.oiirj.org ISSN 2249-9598 Page 402

these technological development extend our abilities to change the world. Hence,
these things compel us to reconsider the role to be played by international law in
accordance with the fast changing world. Therefore, there is an urgent need to modify
the law, so that it keeps pace with the need of the society and gives respect for human
beings.
IHL IN INTERNAL ARMED CONFLICT

Law regulating armed conflict has existed for centuries, but prior to 1949 there was
no exclusive law which dealt with internal armed conflict. Generally, violence within
states remained outside the scope of International Law and thus it could not prohibit
the use of force. This deficiency and lacunae were finally resolved in 1949 with the
adoption of Geneva Conventions 1949.The Common Article 3 of Geneva
Conventions of all the four conventions provides for the respect of basic standards of
human rights in non-international armed conflicts. After some time, it gained
momentum in the 1960's and led to the adoption of two Protocols in 1977, in which
Protocol II relates to non-international armed conflict. 2 Now it is very essential to
analyse the legal provision relating to international armed conflict to access the real
magnitude of the problem, which, we will deal in further part of the article.
INTERNAL ARMED CONFLICT: ANALYSIS OF LEGAL PROVISION
Scope of Common Article 3: Additional Protocol II, 1977 of the Geneva Convention
The concept of non-international armed conflict in humanitarian law can be analyzed
on the basis of two main treaty texts: namely, Article 3common to all the four
Geneva Conventions 1949 and Article 1 of Additional Protocol II of 1977. After
analyzing the provision of Common Article 3 and Article 1 of Protocol II, it can be
clearly documented that, definition given in Article 1of Protocol II is very restrictive
in comparison to Common Article 3, in following aspects:
a) It introduces the requirement of territorial control.

b) It will be applicable only to the armed conflicts between State armed forces
and dissident armed Forces or other organized armed groups.
c) It will not apply to situations of internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence and other acts of a similar nature,
as not being armed conflict3.
Now the main and consistent argument develop here is that, what will be the scope of
the Article 3 in reference of Article 1 of Protocol II? The answer to this question is
enshrined in Article1 of Protocol II itself, which states that, “this Protocol, which
develops and supplements Article 3 common to the Geneva Conventions of 12 August
1949 without modifying its existing conditions of application…”The close analysis of
the content of text connotes that, Protocol II develops in supplements of Common
Article 3. "Without modifying its existing conditions of application."So it can be
conclude, that both Protocol II and common article 3 apply simultaneously, and in
2
David M. Miller, Non International armed
conflicts,<www.wcl.american.edu/journal/lawrev/31/miller.pdf> accesses on 30 October2011.
3
<www.icrc.org › icrc.org › Treaties Home › Introduction>accessed on 22 November, 2011

case of low-intensity conflict,which does not fulfill the conditions for the application
of Protocol II,would be covered under common Article 3. In fact,Article 3 retains an
autonomousexistence; its applicability is neither restricted nor subject to the scope of
the Protocol II4.
WHY HAS INDIA NOT RECOGNIZED PROTOCOL II OF GENEVA

CONVENTION, 1949?
The rules of IHL have been evolved for the purpose of balancing military necessity
and concern for humanity. These rules seek to protect person who are not or no
longer, taking direct part in the hostilities such as civilian, prisoners of war and other
detainees, and the injured and sick5. But ambiguity and non clarity in the provisions
creates initial hurdles in the application of International Humanitarian Law. Apart
from that, the Additional Protocol II of Geneva Convention, 1949has not been
universally accepted and ratified by the following countries like USA, India, Iran,
Myanmar, Pakistan, Afghanistan, Israel, and Srilanka. Now striking question is that,
why India has not recognized Protocol II? We could be found the answer in some of
the following arguments, which have been taken by India during the discussion for
not recognizing the Protocol II of the Geneva Convention. These are as follow:
a)It argued that in the face of equal suffering, victims have the right to the same
protection in all armed conflicts, whether internal or international. Therefore, there is
no need of protocol II.
b) Favoring the high threshold of application6.
The analysis of the above given arguments itself shows the unwillingness of India to
escape from responsibility of domestic matter.
EFFECT OF NON- RECOGNITION OF THE PROTOCOL II
The above arguments justifying non-recognition of protocol II, it connotes how India
tried to drag its feet from its liability to protect the human rights of the people. Now,
the next looming question is that, what would be the legal effect of non-recognition of
the protocol II?
So after analysis of legal provision of Common Article 3 and Protocol II of Geneva
Convention (already mentioned in the Article), it can be clearly documented that, the
scope of Common Article 3 is wider than Protocol II. Even though India has not
recognized protocol II, it cannot avoid application of legal provision on internal
armed conflict, within the ambit of Common Article 3 of Geneva Convention.
THE THRESHOLD OF NON-INTERNATIONAL ARMED CONFLICT:
Right now, the major problem is to examine the threshold between International and
Non- International armed conflict, which is very much essential for proper application
of the International Humanitarian Law. It is thus it is crucial to be clear about the
4
Sylvie Junod , Additional Protocol: It History and Scope,
<www.wcl.american.edu/journal/lawrev/33/junod.pdf>( accessed on 22 November 2011.
5
U C Jha,International Humanitarian law: The laws of War, (Vij Books India Pvt. Ltd: New
Delhi2011).
6
Supra note 4, p.33

internal armed conflict, for proper application of the law. This is the crux of whole
Article.
No universal definition - only a whiff of vague understanding:

There are many definitions for internal armed conflict and civil war but noneof them
is universally acceptable. A widely accepted definition comes from the Peace
Research Institute, Oslo (Prio). The Institute defined the term internal conflict as,“a
‘contested incompatibility’ between a state and internal opposition, regarding the
government of the territory, where the use of the armed force between the parties
result in at least 25 battle related deaths per year civilian military”.7This definition
shows the quantitative approach of internal armed conflict which fixed 25 battle
deaths of human beings as the threshold.
According to ICRC (International Committee of the Red Cross), commission of
experts for the study of the question of aid to the victims of internal conflicts– the
existence of an armed conflict cannot be denied if the hostile action,directed against
the legal government isof a collective character and consists of minimum amount of
organization.
In the year 1997, in Prosecutor v.Dusko Tadic, the International Criminal Tribunal
for the Former Yugoslavia ICTY (International Criminal Tribunal for
Yugoslavia)defined the concept of armed conflict. According to the tribunal, “an
armed conflict exists whenever there is a resort to armed forces between states or
protracted armed violence between governmental authorities and organized
armed groups within a state. In given case, it was stipulated that International
humanitarian law applies from the initiation of such conflict and extends beyond the
cessation of hostilities until a general conclusion of peace is reached or in the case of
internal conflicts a peaceful settlement is achieved.”8
The two aspects of non-international armed conflict stated in Tadic case are:
(1)Armed violence and
(2) Organization of parties to the conflict.
Similarly, the commentary, Elements of War Crimes under the Rome Statute of the
International Criminal Court, indicates that the parties should be ‘organized to a
greater or lesser extent’ in order to qualify as an armed conflict9.
Hence, this Article attempts to define the term international armed conflict. Therefore,
international armed conflict can be defined as, “the use of armed force within the
boundary of one state between one or more armed groups and the acting government,
or between such groups”10.
CASES ON INTERNAL ARMED CONFLICT:
Lebanon
Since 1975, Lebanon has been battered by armed clashes between the government
forces and armed groups and also between rival opposition groups. This conflict has
all the features of a non-international armed conflict; and Article 3 of the Convention
7
Oskar N.T. Thomas & James Ron, Do Human Rights Violation cause internal conflict?The John
Hopkins University Press (2007) Vol. 29, No.3Human Right Quarterly.
8
Tadic (jurisdiction) at para 70
9
Dörmannet al., Elements of War,p. 442.
10
EveLa Haye, War Crimesin Internal armed Conflicts in Cambridge University press (2008).

is applicable here. The relation between the various groups fighting against each other
is also covered by the common article 311.
Tablada Case
In recent Tablada case before the Inter- American Commission on Human Rights,the
question before the commission was to determine, whether the 30 hour long armed
confrontation between attackers and Argentine armed forces was ‘merely an example
of internal disturbances or tensions or whether it constituted a non- international
armed conflict within the meaning of the common Article 3? Commission held that,
common Article 3 stipulate that, armed conflicts do not ‘require the existence of large
scale and generalized hostilities or a situation comparable to a civil war in which
dissident armed groups exercise control over parts of national territory’. It held that
direct involvement of governmental armed forces and the nature and level of the
violation attending the events amounted to the armed conflict12.
PROTECTION UNDER INTERNATIONAL HUMANITARIAN LAW:

OBLIGATION ON INDIA
At the international level, India has certain obligation under some International
Convention and Treaty i.e. The Universal Declaration of the Human Rights (UDHR)
which, opens with the emphatic declaration ‘All human being are born free and equal
in dignity and rights. They are endowed with the reason and conscience and should
act towards one another in a spirit of the brotherhood.’ 13 Closely on the heels of
UDHR followed the two important human right documents, with a new concept of the
binding obligation. The first one is International Covenant on Civil and Political
Rights 1996 (ICCPR) and International Convention on the Economics, Social and
Cultural Rights 1966 (ICESCR).Apart from this India is a signatory of Geneva
Convention, 1949.
CERTAIN ABSOLUTE AND NON- DEROGABLE RIGHTS:

The term ‘absolute and non-derogable rights’ connotes those rights which cannot be
suspended at any time, not even during emergency. Under international law, some
rights are absolute and non-derogable. These rights are given in International
Covenant on Civil and Political Rights 1996 (ICCPR) which is ratified by India.
Article 4(2) of the ICCPR provides that no derogation is permitted for14:
• freedom from torture or cruel, inhuman and degrading treatment or

punishment; and freedom from medical or scientific experimentation without
consent (art 7);
• freedom from slavery and servitude (arts 8(1) and (2));
11
Hans Peter Gasser, Internationalized Non International Armed Conflicts: Case Studies of
Afghanistan, Kampuchea and Lebanon,Vol. 33,American University Law
Review,<www.wcl.american.edu/journal/lawrev/33/gasser.pdf> accessed on 30 October, 2011.
12
Supra note 10, pp. 12, 13.
13
Article 1 UDHR, 1948, available at<www.un.org/en/documents/udhr/>accessed on12 November
2011.
14
International Covenant on Civil and political Rights, <www.ohchr.org/english/law/ccpr.htm>
accessed on 12 November, 2011.

• freedom from imprisonment for inability to fulfill a contractual obligation

(art 11);
• prohibition against the retrospective operation of criminal laws (art 15);
• right to recognition before the law (art 16); and
• Freedom of thought, conscience and religion (art 18).
INDIA’S INTERNATIONAL HUMANITARIAN LAW OBLIGATIONS IN

DOMESTIC LAW
The Indian Government passed THE GENEVA CONVENTIONS ACT, 1960 under
Article 253 of the Indian Constitution, read with entries 13 and 14 of the Union List in
the Seventh Schedule based on Geneva Convention. This Act provides the
punishment for grave breaches of the Geneva Conventions 1949. It regulates legal
proceedings with respect to protected persons (prisoners of war and internees).Apart
from that, the Act also prohibits misuse of the Red Cross and other protected emblems
under the Geneva Conventions. In spite of domestic law India has failed to punish the
violator of the human rights in J&K.
NON- DEROGABLE RIGHTS UNDER THE INDIAN CONSTITUTION

Under the Indian Constitution, 1950 Fundamental Rights are incorporated under part
III of the Constitution from Article 12 to 35. Among them, some rights are absolute
and non-derogable (i.e., Art 20 and 21) which cannot be suspended even drring
emergency15.
HUMANITARIAN LAW IN INDIA: NEED FOR INTERVENTION
“Perpetual peace is no empty idea, but a practical thing which, through its gradual
solution, is coming always nearer its final realization” – Immanuel Kant
At present India is combating two major problem i.e ‘militants’ refers to groups
operating in Jammu and Kashmir to a large extent, in the Northeast while the other is
‘extremists which refers to groups in the Naxal-affected areas. According to the
estimate of the Asian Centre for Human Rights (ACHR) 16 the highest number of
killings has been reported from Chhattisgarh (208) which constitutes 54% of the total
killings, followed by Andhra Pradesh (59), Jharkhand (44) and Bihar(28). There have
been credible reports of serious human rights violations by the security forces while
combating the Naxalites. Though security forces identify all those killed by them as
“Naxalites”, there have been allegations of fake encounter killings17. Therefore, it is
really matter of the serious concern that, in spite of signatory of various human rights
treaties (mentioned in earlier part of the article) India has failed to protect the human
rights of J& K people.
15
Art.359 of The Indian Constitution 1950<indiacode.nic.in/coiweb/welcome.htm>accessed
on6November 2011.
16
Naxal Conflict Monitor, A Quarterly New Shelter of ACHR Vol. II, (April-June 2006)
<www.achrweb.org/reports/india/AR08/chhattisgarh.html>accessed on6 November, 2011.
17
The Naxals get lethal Chhattisgarh continues to be the epicenter of the conflict, Naxal Conflict
Monitor, p. 2,A Quarterly Briefing Article of the Asian Centre for Human
Rights.<www.achrweb.org/ncm/NCM-VOL-02-03.pdf>accessed on3 October, 2011

The decision of the International Court of justice in the case concerning Military
and Paramilitary activities in (Nicaragua v. United States), observed that common
Article 3 of the Geneva Convention, 1949reflected the elementary consideration of
the humanity 18 . Therefore, in case of J& K matter there is clear violation of the
Common Art. 3 of the Geneva Convention under which India is oblige to follow it.
WAR BETWEEN PAKISTAN AND INDIA: VIOLATION OF

HUMANITARIAN LAW
The long-standing border and Kashmir dispute resulted in full-scale wars between
India and Pakistan in September 1965, December 1971 and 1999. Many prisoners of
war were captured by both the countries i.e., India and Pakistan. Recently according
to The Daily Mail, 18 Pakistan Army personnel, who were made Prisoners of War in
1965 and 1971 Indo-Pak Wars, are still being held in Indian custody, contrary to all
norms of humanity as well in direct contravention of the Geneva Convention and, the
Indian government has failed to respond to repeated requests about the status of the
POWs (Prisoners of War)19. This incident clearly, demonstrated the great violation of
the human rights, because both India and Pakistan as signatories to the four Geneva
Conventions III relating to the treatment of the prisoners of war of August 12, 1949
were bound by the rules of POW. The proper treatment of prisoners is the
responsibility of the detaining power, derogation from it may incur liability at both
levels international and domestic, under Geneva Convention III relating to treatment
of the prisoners of war and under THE GENEVA CONVENTIONS ACT, 1960
which is passed by Indian parliament.
THE WAR OF KASHMIR: HUMANITARIAN LAW

The only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others.20
Whenever the question of Human Rights and Humanitarian Law arises in context of
India the first thing that strikes us is Kashmir. Now the question before us is whether
the situation in Kashmir invokes the concept of internal armed conflict or not? After
considering the above-mentioned threshold of internal armed conflict, the conclusion
that can be possibly arrived at is that, the war in Kashmir between the Indian armed
forces and Kashmiri resistance fighters automatically invokes Humanitarian Law. A
long lasting demand of revocation of Armed Forces (Special Powers) Act of 1958
(AFSPA) is still not fulfilled. For the above cause, Iron lady Irom Sharmila has been
on a hunger strike since November 2000 which has been the longest hunger strike
ever. The present Chief Minister Mr. Omar Abdulla has also raised his voice for
withdrawal of the Armed Forces (Special Powers) Act, 1958. 21 The reason for the
strong voice for withdrawal of this act is, because of the violation of Humanitarian
18
<www.icj-cij.org/docket/index.php?sum=367>accessed on 3 October, 2011
19
Available at <www.humanrights.asia/news/...news/.../AHRC-FAT-062-20... - Indonesia>accessed on
12 Nov. 2011.
20
John Stuart Mill, Human Rights and Humanitarian Law Development in Indian and international
Law, p. 17, New Delhi: Oxford University Press, (2008).
21
Figures Back Case for army rollback in Kashmir,The Hindu, ( Bangalore 28 October, 2011) 14.

law in the guise of the instant Act; there are various provisions of the act which arein
clear violation of human rights.
Under this Act, all security forces are given unrestricted and unaccounted power to
carry out their operations, once an area is declared disturbed. Even a non-
commissioned officer is granted the right to shoot, to kill on mere suspicion. The
AFSPA gives wide powers to armed forces to shoot, arrest and search, all in the name
of "aiding civil power." It was first applied to the North Eastern states of Assam and
Manipur and was amended in 1972 to extend it to all the seven states in the north-
eastern region of India. The enforcement of the AFSPA has resulted in innumerable
incidents of arbitrary detention, torture, rape, and looting by security personnel.
This legislation is sought to be justified by the Government of India. There is a strong
movement for self-determination which precedes the formation of the Indian Union.22
Apparel Export Promotion Council v. A K Chopra23Delivering judgment on behalf

of justice V N Khare, the chief justice of India, Justice Dr A S Anand said:
In instant case Court held in all the cases of human rights violation, Courts are under
an obligation to see that the message of the international instruments is not drowned.
Court and counsel must never forget the core principles embodied in the International
Conventions and Instruments and as far as possible give effect to the principles
contained in those international instruments. Further, the Courts are under an
obligation to give due regard to International Conventions and Norms for construing
domestic laws. It is disheartening to note that, Indian government failed to observe the
guidelines of apex court.
International judicial bodies such as European court of Human Rights in Plattfrom

Arzte fur das Leben case 24 and the Inter- American court of Human Rights in
Velasquez Rodriguez case 25have observed that the state is duty bound to safeguard
human rights from the infringement not only by the government, but also by the
private individuals. States thus have a positive obligation to protect individuals from
other individuals including collective individuals, such as armed group.
Prosecutorv.AntoFurundzija26
In this case it was stipulated that the prohibition of torture laid down in human rights
treaties enshrines an absolute right, which can never be derogated , not even at the
time of emergency (on this ground the prohibition also applies to situations of armed
conflict).Therefore, the prohibition on torture is a peremptory norm or jus cogens,
which is irrevocable. The same has been also upheld in the case of Delalic Trial case.
22
Armed forces Special powers Act available at
<www.hrdc.net/sahrdc/resources/armed_forces.htm>accessed on 6 November 2011.
23
[1999] Supreme Court Cases 759 at 776).
24
Available at <www.iidh.ed.cr/.../platform%20arze%20fur%20das%20leben%20> accessed on 6
November, 2011.
25
Chris Jochnick,Confronting the Immunity of Non –State actors: New fields for the Promotion of the
Human Rights, (Feb 1999), Vol.21, , Human Rights Quarterlyp.66.
26
Available at <www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid.>accessed on 7 November,
2011.

Therefore rape of Kashmiri women, constant and continuing armed attacks against the
civilian population. These all are the elements of internal armed conflict, as well as it
amount to the grave breach of the Geneva Convention, 1949.
Hence, the people of Kashmir are in dire need of help. The country is in ruins, there is
need to take action by the United Nations for the protection of innocent people.
Besides that, India signed the ICCPR in 1978; taking on the responsibility of securing
the rights guaranteed by the Covenant to all its citizens, but the greatest outrage of the
provisions of AFSPA under both Indian and International law is the violation of the
right to life. This comes under Article 6 of the ICCPR, and it is a non-derogable right.
Indian Government is liable for putting the life of Kashmiris in peril moreover, liable
for large scale deaths and torture. Although India has not signed the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the
“Torture Convention”) which was adopted by the General Assembly of the United
Nations on 10 December 1984 (resolution 39/46),India still is liable for torture
because now it is customary law as a Jus Cogens, which is also upheld in Sierra
Leone case that even though the country did not ratify the Torture Convention until
2001, prohibition against torture is enshrined in international customary law as a Jus
Cogens norm.27Therefore, it is obligatory even on Indian government also.
US v.Matta- Ballesteros case it was noted in that case, jus cogens norms which are
non derogable and peremptory, enjoy the highest status within customary
international law, are binding on all nations and cannot be pre-empted by the treaty28
HOW DOES THE SITUATION IN KASHMIR ATTRACT THE PROVISION
RELATING TO INTERNAL ARMED CONFLICT?
As it has already been mentioned that, India is signatory of Geneva Convention, 1949.
Therefore, it is bound by the provision of the Common Article 3 of the Geneva
Convention.
There are some of the following current situations in Kashmir, which are sufficient to
meet the threshold of the internal armed conflict. These are as follows:
Existence of internal armed conflict
After considering various definition and cases on internal armed conflict, It
can be clearly documented that, direct involvement of governmental armed
forces and level of the violation in Kashmir i.e. killing, rape, torture etc. itself
invokes the situation of internal armed conflict.
Effective control
No doubt India has effective control over Kashmir. Which is one of the
essential elements to constitute the internal armed conflict.
High contracting party

The provision of Common Article 3 applies to armed conflicts ‘occurring in
the territory of one of the High Contracting Parties’. The meaning of this
element is very controversial. It can be argued that, this specific point was
27
Chandra LekhaSriram,Olga Martin-Ortega and Johanna Herman,War, conflict and Human
Rights,Routledge Taylor & Francis Group: London and New York.p. 95.
28
Cuted in Shaw N.Malcolm, International Law, (2005) 5th ed., (UK: Cambridge University Press)
p.117.

included in order to make it clear that the Common Article 3 may be applied
only in relation to the territory of states that have ratified the Geneva
Conventions, 1949.29
Protracted violence
The problem of Kashmir is not a current problem. However, Since December
1989, the strength of the insurgency in Jammu and Kashmir has fluctuated.
The more prominent of the insurgent groups include the nominally secular,
pro-independence Jammu and Kashmir Liberation Front (JKLF) and the
radical Islamic and pro-Pakistani groups Hizb-ul-Mujahideen (HUM),
Hizbollah, Harkat-ul- Hizb-ul-Ansar, and IkhwanulMuslimeen.30
After analyzing all the above factors, it can be clearly documented, that
conflict of J& K is internal armed conflict.
CONCLUDING THOUGHTS/ SUGGESTION
Now the time has come to break the endless cycle of violence and counter violence.
We should not trade our humanity and friendship for now is time of healing. There is
need to underscore the complexity of the human situation and our limitation in
understanding, which unite us. Such shocking and repeated instances of violation of
Human Rights by the security forces are blot on the country democratic credentials,
its need to be perished. Right now violation of the human rights is a matter of global
concern. Therefore, concept of sovereignty and jurisdiction is immaterial in these
cases. In this regard following are some suggestions:
1. There is a need of implementation machinery at international level.

2. There is a need to demand from the Government of India to take immediate
step to put a stop to the violations of the human rights and humanitarian law in
Kashmir.
3. Need for mandatory periodical inspection in disturbed area by independent
authority like International Committee on Red Cross.
4. Inclusion of non- derogable provision in Geneva Convention, 1949.
5. Amend the draconanian provision of the Armed Forces special power Act.
6. India should accept and ratify The Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment.
7. Need to establish World Human Rights Court.
8. As examined earlier, The Indian Penal code, 1860 not contain any specific
provision on war crimes. Further, it does not provide for universal jurisdiction
over certain crimes, like The German Penal Code which provide universal
jurisdiction, over genocide or other offences which are if they made
punishable by the terms of international treaty binding on Germany (Article 6,
Penal Code of Germany)31.
Therefore, Geneva Convention Act, 1960 does not seem to have an adequate piece of
legislation for incorporating India’s obligation under the International Humanitarian
Law. Therefore, there is needed to take the further step in this regard.
29
Sylvain Vite,Typology of Armed conflicts in International Humanitarian Law: Legal concepts and
situations,(2009)Vol. 91, International Review of the Red Cross.
30
Available at <www.mtholyoke.edu/acad/intrel/sumit.htm> accessed on 1 December 2011.
31
Available at <wings.buffalo.edu/law/bclc/germind.htm> accessed on November 24, 2011.

Rev. Mons Sebastiao Fransisco Xavier Dos Remedios Monterio v. The State of
Goa32
In instant case Indian court analyse the Geneva Convention Act, 1960 by saying, this
Act itself does not give any special remedy. It does give only indirect protection by
providing for the breaches of the convention and convention are not made enforceable
by the government against itself, nor does the act give a cause of action to any party
of the conventions. Thus there is only obligation taken by the India to respect the
convention regarding the treatment of the civilian population, but there is no right
created in respect of the protected person which the court has been asked to enforce.
Therefore, there is need for a thorough revision of the Geneva Convention Act, 1960.
So last but not least in the light of human Rights jurisprudence some innovative
revision and amendment is needed.
REFERENCES
ARTICLES
Chris Jochnick, CONFRONTING THE IMPUNITY OF NON-STATE ACTORS: NEW
FIELDS FOR THE PROMOTION OF HUMAN RIGHTS, Vol.21, Human Rights
Quarterly (Feb 1999).
FIGURES BACK CASE FOR ARMY ROLLBACK IN KASHMIR, The Hindu,
Bangalore edn. October, 28, 2011.
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International Humanitarian Law in India: A Critical Case Study

Article · February 2014

PRISONERS’ RIGHTS IN INDIA: AN ANALYSIS OF LEGAL FRAME WORK View project

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International Humanitarian Law in India: A Critical Case Study

WHAT IS THE NEED OF INTERNATIONAL HUMANITARIAN LAW (IHL)?

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IHL IN INTERNAL ARMED CONFLICT

INTERNAL ARMED CONFLICT: ANALYSIS OF LEGAL PROVISION

a) It introduces the requirement of territorial control.

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WHY HAS INDIA NOT RECOGNIZED PROTOCOL II OF GENEVA

EFFECT OF NON- RECOGNITION OF THE PROTOCOL II

THE THRESHOLD OF NON-INTERNATIONAL ARMED CONFLICT:

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No universal definition - only a whiff of vague understanding:

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PROTECTION UNDER INTERNATIONAL HUMANITARIAN LAW:

CERTAIN ABSOLUTE AND NON- DEROGABLE RIGHTS:

Article 4(2) of the ICCPR provides that no derogation is permitted for14:

• freedom from torture or cruel, inhuman and degrading treatment or

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• freedom from imprisonment for inability to fulfill a contractual obligation

INDIA’S INTERNATIONAL HUMANITARIAN LAW OBLIGATIONS IN

NON- DEROGABLE RIGHTS UNDER THE INDIAN CONSTITUTION

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WAR BETWEEN PAKISTAN AND INDIA: VIOLATION OF

THE WAR OF KASHMIR: HUMANITARIAN LAW

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Apparel Export Promotion Council v. A K Chopra23Delivering judgment on behalf

International judicial bodies such as European court of Human Rights in Plattfrom

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High contracting party

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CONCLUDING THOUGHTS/ SUGGESTION

1. There is a need of implementation machinery at international level.

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