HUMANITARIAN LAWS

The imperative need for the government to abide by the International bill of human rights arises out of constitutional requirement, general customary International law, common law background, state practices and above all, the union government's signature and ratification of the two covenants, 1966 on 10 April, 1979.

The bindingness of human-rights law on the part of the union government and its instruments like the security forces or the judiciary etc. arises out of the following norms, NATIONAL obligations and assured compliance:

1. Articles 253, 51,246, schedule VII list I items 10-15, among others, of the Constitution of India;
2. State practices starting from India's becoming a member of the United Nations in 1945, even before two years of her independence;
3. General and customary International law, Jus Cogens as followed by the comity and community of nations, of which India is an inseparable part;
4. The supreme court of India's endorsement of the human rights covenants of the United Nations in the process of evolving 'human rights jurisprudence' in several landmark public interest litigation cases; and the apex court's endorsement of the human rights covenants by incorporation as part of particular fundamental right, is found in the apex court statement in PUCL vs. Union of India (1977)2 JT 3/1/1), among others;
5. Fundamental rights under chapter III of the Constitution which can no longer be suspended even during a situation of emergency, following the 44th amendment of the Constitution;
6. Article 21, compounded with article 14 and 19 of the Constitution that has been placed as a special class of mini-code, especially after the construction of 'due process of law' meaning the 'procedure duly established by law '
7. Rule of law, democracy and judicial review which are the basic features of the Constitution, unlike peripheral and unsustainable special laws, which do not conform to the basic tenets of rule of law.

1. The four Geneva Convention, 1949, signed by the union government of India and Indian enactment of Geneva Convention Act 1960 render that the International Humanitarian Laws are applicable to India and its forces:
2. The protection of life, liberty and property of the civilians, hors de combat is non-derogable under common article 3 of the Conventions and the two Protocols. World Court (ICJ) has endorsed these rights as Jus Cogens and the same under customary international law (Nicaragua vs. USA, 1986):
3. the Government of India has been disempowered to under Common Article 3 to commit extra judicial execution without judicial guarantees. The Supreme Court has to see that AFSPA be struck down, as it is incompatible with common Article 3 of Geneva Conventions and ICCPR article 4. The Judiciary has failed its duty in this context by overlooking 'judicial guarantees' as required by common article 3 of Geneva Conventions. Protected under the law, (see Martens clause). The common article 3 of the 4 Geneva Conventions binding to the government of India and by extended constitutional construction, to the Supreme Court of India provides the law as follows :
   Common article 3(I) ... " To this end, the following acts are and shall remain prohibited at any time and in any place [NE included-sic] whatsoever with respect to the above-mentioned persons [ sic. persons taking no part in hostilities} : (a) violence to life and person,.." (d) " the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court,..." .
4. The Supreme Court Judgment in NPMHR vs. Union of India, 27 November, 1997 has laid down guidelines in Para 56-58, (see document annexed); these guidelines cannot be violated, but has also been violated recurrently. Children under 18 years have also been extra judicially executed for half a century in violation of laws and conventions. Children under 18 years have also been extra judicially executed for half a century in violation of laws and conventions.
5. The insurgents and national liberation movements (INLMs) had been admittedly accepted as subjects of International law, especially after the decolonization movements since the 1960s. Since the beginning of the 1960's - "It has been increasingly the practice among states, based on claims by the Third World and as expressed in United Nations resolutions, to consider manifestations of a people's right to self determination as an International event". Insurgents are also bound by International humanitarian law. The details of the application of the law are widely known.
6. State practices indicate that national liberation movements are legitimate unlike naked terrorism and heinous crimes. UN resolutions passed by the General Assembly, Security Council, International Court of Justice and UN committees make it abundantly clear that legitimate movements are not terrorism per se and internal security matters. Large number of states after 1945 have emanated in this process.
7. In compliance with the current development of International Law, the State of India should deter itself from committing extrajudicial executions, made emphatically in the NSGT of the NE region.
8. The use of force is not only governed by the humanitarian laws and state practices, but also but other principles, like 'Basic Principles on the use of Force and Firearms by Law Enforcement Officials.' [UN, Professional training series No.5, Human Rights and Law enforcement, 1997]. India could not use force against legitimate liberation movements.
9. Since the crystallization of International criminal law jurisdiction in Tokyo and Nuremberg war crime tribunals and in UN jurisdiction in Yugoslav and Rwanda tribunals in the recent years, crimes committed against a race or, mankind are subject to persecution, trial and punishment. Protection of civilian life and property is taken more seriously in armed conflict-situation and it is non-derogable.
10. The International Criminal court has come to exist and is a reality. The Government of India is under obligation to amend its criminal laws in order to fix individual criminal responsibility for commission of heinous crimes and or to adopt the ICC Rome Treaty, 1998 forewith. Heinous criminals- government officials, members of the security forces, guerrillas or soldiers could be prosecuted by the ICC if the union government of India is honest enough to deal with them. The government evades the ICC prosecution by not being a party to the Rome Treaty,1998.