In this article, We will take an in-depth look at the contours of non-international armed conflicts, and its scope and meaning, as employed by various international courts, in different instances. The principles gleaned from this analysis would then be applied to an issue of great importance to India- the issue of Naxal insurgency. We will apply the requirements provided under the international humanitarian law and explore the question of whether the Naxal Insurgency in India qualifies as a non-international armed conflict, and what are the implications of such qualifications.
Table of Contents
Introduction:
Armed conflicts are the linchpin issue which concerns international humanitarian law. The modern international humanitarian law as it applies today recognizes two kinds of armed conflicts- international armed conflicts, and non-international armed conflicts (or NIACs). Although this field of international law did not start off with any intense focus of NIAs, with changing global relations and geo-politics around the world, NIACs have come to hold a crucial and important place within the field of international humanitarian law. The present geo-political conditions make the interpretation of the scope and meaning of NIACs, of utmost importance.
Laws Relating to Non-International Armed Conflicts:
With the changing geo-politics of the world, the majority of the contemporary armed conflicts involve the State and non-State parties. Therefore, the laws relating to non-international armed conflicts become of importance. In relation to NIAs, the treaty law has been laid down under common Article 3 of 1949 Geneva Conventions and Additional Protocol II. Certain other treaties in relation to prohibition or restriction of certain kinds of weapons also applies in the case of non-international armed conflicts[1]. Furthermore, since the initial rules and treaties under IHL were formulated keeping only IACs (International Armed Conflicts) in mind and not much consideration was given to NIACs, there is some scarcity in the field regarding NIACs, and in case of ambiguity or confusion recourse is often taken to the customary rules of IACs in the general IHL.
Keeping in mind the fact that the original IHL has much more detailed provisions with respect to IACs than NIACs, in order to properly interpret the principles related to NIACs it is necessary to keep the rules under IACs in mind.
Non-international armed conflicts have been defined in Article 1 of the Additional Protocol as,
““all armed conflicts…which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this protocol[2].”
As per this definition, a NIAC is an armed conflict which takes place between a High Contracting Parties armed forces and “dissident armed forces or other organized armed groups” at its bare minimum. Some other key words which should be taken into account while reading this definition are- “responsible command”; “control over territory”; “sustained and concerted military operations.” The role of these terms in determining the contours of the term NIAC would become clearer when their importance is discussed later on as flagged by certain case laws.
The Common Article 3 of the 1949 Geneva Conventions lays down the main obligations of Contracting Parties as well as the key prohibitions which must be followed as a minimum measure by them in case of any armed conflict of a non-international character. It states thus,
“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
- An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
- The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
- The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”
These are some of the basic conditions which are required to be followed by the Contracting parties. At the time of negotiations of the principles of Geneva Conventions it was proposed that all the provisions with respect to international armed conflicts be made applicable in case of non-international armed conflicts as well[3].
However, the States were not willing to adopt a definition which was too broad since there were concerns about the applicability of international norms in a scenario which would start off as a domestic conflict. Therefore, in the end it was decided that the provisions applicable to NIACs should be limited rather than the cases of NIACs to which international humanitarian law would apply[4].
In cases where parties other than two High Contracting parties are involved (wherein it would qualify as an international armed conflict) the question becomes whether such conflicts would qualify as non-international armed conflicts or be termed as mere “internal disturbances (excluded by the Additional Protocol II)[5].” This distinction between the two becomes important because their attribution to either camp would dictate the laws that would apply as well as the obligations which would befall the parties involved[6]. For instance, if a conflict is termed as an internal disturbance, the domestic criminal laws of the area would apply whereas in case it qualifies as a non-international armed conflict, international humanitarian law would apply[7]. Furthermore, depending on the law, limits to violence would vary.
Therefore, it becomes very crucial to determine whether or not a particular conflict qualifies as a NIAC. Since, the treaty law is limited on the subject, assistance is taken from case laws before various International Courts and Tribunals to shed light on the nuances of the issue. Even though such cases may not be binding on any party other than those involved, it goes a long way in clarifying and providing reference material for other occasions concerning the subject.
For instance, one of the most landmark judgments relating to non-international armed conflicts is the case before the International Criminal Tribunal of Yugoslavia called Prosecutor v. Dusko Tadic[8]. This case provided what has since then become the widely accepted definition of NIAC as”
“there is . . . protracted armed violence between governmental authorities and organized armed groups or between such groups within a State[9].”
Due to the wide acceptance of this definition, two crucial elements have been culled out from this judgment. These are- intensity and organization. In other words, “for a situation to be classified as a NIAC, the violence must reach a certain level of intensity and the non-state party must display a certain level of organization[10].”
After the pronouncement of the International Criminal Tribunal of Yugoslavia regarding the definition of NIAC, these elements were revisited in Prosecutor v Limaj[11]. In this case, the issue before the Court was whether an armed conflict existed between the Serbian government forces and the Kosovo Liberation Army. The Court held that the KLA was sufficiently organized to engage in an armed conflict and that the conflict was sufficiently intense[12]. In this case, the defence tried to argue that a set of preconditions were necessary before the Tadic criterion could apply. These preconditions were that “a party to the conflict must be able to implement international humanitarian law and, at the bare minimum, must possess: (i) a basic understanding of the principles laid down in Common Article 3, (ii) a capacity to disseminate rules, and (iii) a method of sanctioning breaches[13].”
However, this argument was rejected by the Court which held that the Tadic elements should be applied as a bare minimum criterion. In fact, the Court went on to expand the Tadic elements by adding to it cases where the involved forces were “organized to a greater or lesser extent” and conflict of “a certain intensity[14].”
Apart from these two cases certain other cases such as the Prosecutor v. Miloševic[15] and the Prosecutor v. Haradinaj[16], gave a non-exhaustive list of factors which show whether sufficient intensity or organization can be said to exist or not. These factors include- “official joint command structure; headquarters; designated zones of operation and/or territorial control; the ability to procure, transport, and distribute arms; the ability to recruit; the presence of a centrally-run police force; and participation in international or bilateral negotiations regarding the conflict[17]” to name a few.
Similarly, in order to provide concrete instances of intensity, ICTY cases provide certain examples. Therefore, sufficient intensity can be said to exist if there are: “a periodic and escalating set of continuous armed clashes that are neither regionally disparate and temporally sporadic nor one-sided after considering civilian displacement, weapon type, physical destruction, quantity of troops, deployment of government forces, and the brokering of ceasefire agreements or other bilateral negotiations[18]”.
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Inception and Escalation of Naxal Insurgency in India:
The Naxal insurgency movement has been raging in India for the last 45 plus years in the central and adjoining areas of the country. The Naxal insurgency has its origin in Naxalbari in March 1967[19]. The extreme left Naxals also known as Maoists claimed to represent the tribal inhabitants of this region in their grievances against the State[20].
In the first phase of this movement which had its climax in the Naxalbari village of West Bengal, the tribal people also known as Adivasis had issues against the feudal lords of the region. Since before Independence, these feudal lords were owners of huge swathes of land in the area given to them by the British rulers for upkeep and tax collection. After the Independence also, since the Indian government did not take any steps to redistribute the lands, the Revenue Ministry of West Bengal showed that out of the total cultivable land (1, 17, 00, 000) around 93% of the land belonged to the feudal lords (1, 09 ,00, 000)[21].
Due to such imbalance and inequality, the peasants and landless tribal people did not have any access to the produce from such lands. Furthermore, there were no laws in place to ensure that they were given a fair share in the produce from such lands. In light of such social, economical and political inequality, the rural oppressed classes were mobilized for revolt against the feudal lords by the radical sections of the communist party. This mobilization and protests reached its peak in Naxalbari in 1967, when a massive revolt broke out. The peasants stormed the granaries of the feudal lords and also destroyed the records of any outstanding debts against them[22]. This uprising which lasted till July 1967, is believed by many to have been the birth of the Naxal Insurgency movement. Following these protests Charu Mazumdar along with his associates Kanu Sanyal and Jangal Santhal formed the Communist Party of India- Marxists Leninist[23].
The second wave of Naxal Insurgency movement was seen in Andhra Pradesh during the period from 1968-1994. In this area as well, the Adivasis and peasants were facing increasing land encroachment by non-tribal parties. The people in this area were mobilized by Charu Mazumdar and other extremist communist leaders to adopt the Naxalbari method and they started grabbing lands in the areas of Srikakulam wherein many non-tribal people had taken control of the land[24]. In light of these activities, the Government after many directives from the High Court decided to pass the Andhra Pradesh Scheduled Areas Land Transfer Regulation with further amendments in 1970[25]. However, even after the enactment of the Act, the tribulations of the affected Adivasi population were not alleviated, since the Government was not keen to implement the regulations therein. As a result, the dissatisfaction amongst the oppressed people grew further exacerbated by the police and paramilitary crackdown implemented by the State government.
In this political vacuum, a new Naxal group was able to emerge called the People’s War Group. This group was able to garner support and validation from the people when they distributed around 400, 000 acres of reserved forest land to the oppressed classes of people[26]. Therefore, the rise of the PWG in Andhra is often termed as the second wave of Naxal Insurgency movement in India.
These incidents were followed by the period of 2004 to present, which is seen at the peak of the activities of the Naxal movement, leading to the biggest loss of life and destruction of property. It was during this period (in 2006) that the then Prime Minister Mr. Manmohan Singh called the Naxal Insurgency “the single biggest internal security challenge” the country has ever faced[27]. The beginning of this period was marked by the formation of the CPI-Maoist party by the combination of the Maoist Communist Centre and the People’s War in 2004. Since then, according to the data released by the Ministry of Home Affairs, 8197 people have been killed by Left Wing Extremism (up to 31.12.2019)[28]. As per the information available on the Ministry of Home Affairs website, the States of Chhattisgarh, Jharkhand, Odisha, Bihar, West Bengal, Andhra Pradesh, Telangana, Maharashtra, Madhya Pradesh, Uttar Pradesh and Kerala are considered to be affected by this insurgency although in varying degrees[29].
Can the Naxal Insurgency be termed an NIAC? Possible Implications:
In light of the analysis undertaken above, given the time span, involvement of people, areas and government resources in case of the Naxal insurgency the question becomes whether this is a question of an “internal disturbance” or whether it can qualify as a non-international armed conflict? Another related question which needs to be asked is why is it important to undertake such a classification?
It is important to undertake such a classification because it has important implications on the kind of law which would apply in the case, which would then also delineate the obligations of the parties involved (the Indian government and the Naxalites). Thus, if the application of the factors delineated above shows that it is possible to qualify the Naxal Insurgency as a NIAC, it would mean that the International Humanitarian law applies and the parties would be required to carry out their obligations under the international law. Furthermore, such a classification could also clarify the rights of the civilians living in such areas.
Applying the factors culled out in the analysis of relevant international case laws undertaken above it is clear that one needs to figure out whether the Naxalite’s insurgency movement has the intensity and the organization which can make it a NIAC. Taking into account the wording of the factors laid down by the Court in Limaj that there must be a “certain intensity” and that the non-State armed forces must be “organized to a greater or lesser extent.” It is clear that the ultimate decision has to be based on qualitative evidence. This can be substantiated by the ruling given in the Limaj case wherein the Court stated,
“the intensity of a conflict and the organisation of the parties are factual matters which need to be decided in light of the particular evidence and on a case-by-case basis[30].”
Furthermore, it was held in the Milosevic case that,
“[…] The factors that are taken into account include the “organisation of the parties to the conflict including the existence of headquarters, designated zones of operation, and the ability to procure, transport, and distribute arms.[31]”
After applying these standards and carrying out a thorough analysis of the factors involved therein many scholars in the field have argued that the Naxal insurgency movement in India does qualify as a Non-international armed conflict[32].
If one looks at the protracted nature of the naxal movement, the organized nature of the party involved (with the CPI-M along with its committees), the duration of the insurgency (2004 to presently ongoing), the number of casualties (8197 as per Ministry of Home Affairs data) as well as the government’s response (deployment of CAPFs among other measures) to the military forces amassed by the Naxalites (Peoples’ Liberation Guerilla Army), it can be reasonably argued that the Naxal insurgency can be qualified as a NIAC.
References:
[1] Dr Nils Melzer, International Humanitarian Law: A Comprehensive Introduction, (ICRC, 2019)
[2] Additional Protocol II, 1977 art 1 (2).
[3] ICRC, Commentary on the First Geneva Convention, 2nd ed., 2016
[4] Dr Nils Melzer, International Humanitarian Law: A Comprehensive Introduction, (ICRC, 2019)
[5] Additional Protocol II, art 1 (2)
[6] Sandeep Avinash Prasanna, “Red Belt, Green Hunt, Gray Law: India’s Naxalite-Maoist Insurgency and the Law of Non-International Armed Conflict”. UCLA Law Review (2016)
[7] Id.
[8] The Prosecutor v Dsuko Tadic IT-94-1-A, 2nd Oct, 1995
[9] Id.
[10] Rishabh Bajoria, “Red Corridor: “Biggest Internal Security Threat” or Non-International Armed Conflict?”14 Socio-Legal Review (2018)
[11] IT-03-66-T, 2005
[12] Id.
[13] Id.
[14] Id.
[15] Case No. IT-02-54-T
[16] Case No. IT-04-84-T
[17] Supra note 6
[18] Id.
[19] Naman Rawat, “Naxalite Insurgency in India and Need for Holistic Counter Responses”, 11 (5) Counter Terrorist Trends and Analyses (2019)
[20] Sandeep Avinash Prasanna, “Red Belt, Green Hunt, Gray Law: India’s Naxalite-Maoist Insurgency and the Law of Non-International Armed Conflict”. UCLA Law Review (2016)
[21] Supra note 18
[22] Id.
[23] Naman Rawat, “Naxalite Insurgency in India and Need for Holistic Counter Responses”, 11 (5) Counter Terrorist Trends and Analyses 13 (2019)
[24] K. Balagopal, “Maoist Movement in Andhra Pradesh,” 41 (29) Economic and Political Weekly 3183-87 (2006); Subba Reddy, “Depriving Tribals of Land: Andhra Move to Amend Land Transfer Laws,” 23 (29) Economic and Political Weekly 1458-61 (1988)
[25] Id.
[26] K. Balagopal, “Maoist Movement in Andhra Pradesh,” 41 (29) Economic and Political Weekly 3183-87 (2006); Subba Reddy, “Depriving Tribals of Land: Andhra Move to Amend Land Transfer Laws,” 23 (29) Economic and Political Weekly 1458-61 (1988)
[27] The Rediff 13 April 2006
[28] Left Wing Extremism Division, available at https://www.mha.gov.in/division_of_mha/left-wing-extremism-division (last visited on Dec 31, 2020).
[29] Id.
[30] IT-03-66-T, 2005
[31] Case No. IT-02-54-T
[32] See, Rishabh Bajoria, “Red Corridor: “Biggest Internal Security Threat” or Non-International Armed Conflict?”14 Socio-Legal Review (2018); Zia Akhtar, “Naxalite Rebellion: Domestic Law and Order, and Humanitarian Law in a Non-International Armed Conflict”, 8 J. of International Humanitarian Legal Studies (2017); Sandeep Avinash Prasanna, “Red Belt, Green Hunt, Gray Law: India’s Naxalite-Maoist Insurgency and the Law of Non-International Armed Conflict”. UCLA Law Review (2016)
BY APORVA PRAGYA | NALSAR UNIVERSITY OF LAW , HYDERABAD