Armed conflict situations and applicable International Humanitarian Law
vis-a-vis fight against racist regimes in the exercise of the right of self-determination
– a case study of Manipur
- Part 1 -

Yumnam Premananda Singh *

Army patrolling after a bomb blast on the road median of Tiddim Road near Tidim Ground, Imphal on September 08 2012 :: Pix - David Mayum

ABSTRACT

Violence and genocide often arise from racial and ethnic discrimination. Discrimination can easily lead to racially and ethnically motivated violence, which in turn, may escalate into genocide.

Manipur had been an independent nation before 1949. Manipur has been under the shadow of racist and repressive legislation the Armed Forces (Special Powers) Act, 1958 for last 50 years and armed conflict between State and non-state actors and between non-state actors are also increasingly violent because of the racist regime and persistent demand for self determination. International standard concerning applicable International Humanitarian Law (IHL) are fragrantly violated by both parties and blanket impunity has been granted to the State actors in violation of established norms of International Human Rights and Humanitarian Laws. Many lives including civilians have been loss, people are brutally tortured, raped, murdered besides committing innumerable cases of extra judicial execution because of recurrent armed conflict prevailing in Manipur.

Not a single case of prosecution for the violation of Genocide Convention and commission of war crimes and crimes against humanity has been reported. The civilian population and property is the main victim of the hostilities and no reparation so far. In this juncture the mitigation of racist and genocidal implication of armed conflict lies strict implementation and enforcement of applicable provisions of IHL in Manipur.

Moreover, in compliance to the Constitutional mandate, the Government of India (GOI), being a party to the four Geneva Conventions, 1949 should recognize the existence of armed conflicts in Manipur to facilitate enforcement of IHL effectively with a view to mitigating the consequences of protracted armed violence in Manipur. The existing stand of GOI requires revolutionary reversal and all the guerrillas should also comply the rules and customs of war.

Yumnam Premananda Singh
Assistant Professor,
Mizoram Law College, Aizawl
Email: lawprem(at)yahoo(dot)com


Title: Armed conflict situations and applicable International Humanitarian Law vis-à-vis fight against racist regimes in the exercise of the right of self-determination – a case study of Manipur ###

International Humanitarian Law (IHL) is one of the most powerful tools the international community has at its disposal to ensure the safety and dignity of people in times of war. It seeks to preserve a measure of humanity, with the guiding principle that even in war there are limits.

IHL is the body of international law that seeks, for humanitarian reasons, to regulate war or armed conflict. IHL is founded on the following basic principles:
- distinction (between civilians and combatants; civilian objects and military objectives)
- 'elementary considerations of humanity' (prohibits inflicting unnecessary suffering, injury and destruction) and the so-called "Martens Clause" (in cases not covered by treaties "civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principle of humanity and from the dictates of public conscience)
- military necessity (the use of military force is only justified to the extent that it is necessary to achieve a definite military objective)
- proportionality (the collateral harm must not be "excessive in relating to the concrete and direct military advantage anticipated" when an attack is launched against a military objective)
- independence of jus in bello from jus ad bellum

Principal sources of IHL are four Geneva Conventions of 1949 supplemented by its two Additional Protocols of 1977 and body of customary laws.

I
Definition of armed conflict:

IHL is triggered by the existence of an armed conflict but it does not provide a clear definition of armed conflict. This raises questions as to the threshold at which IHL comes into operation.

"An armed conflict exists whenever there is resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. IHL applies from the initiation of such armed conflicts 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. Until that moment, IHL continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there."[1] This test was subsequently endorsed by the International Committee of Red Cross (ICRC) and the Rome Statute of International Criminal Court. The ICTY consequently interpreted the term "protracted armed violence" to refer to the "intensity of the conflict".

It is very interesting to note that Inter-American Commission on Human Rights in La Tablada held that a mere thirty hours of intense and organized hostilities can be sufficient to justify invoking IHL[2] and US Supreme Court also insisting the application of minimum standard of IHL even to members of al Qaeda. [3]

IHL distinguishes two types of armed conflicts, namely International Armed Conflicts and Non-international Armed Conflicts. These two types of armed conflicts need to be defined properly because depending on the type of armed conflict applicable laws are also different.

International Armed Conflict (IAC):

According to common Article 2 to the Geneva Conventions of 1949 (GC) IAC occurs when one or more States have recourse to armed force against another State, regardless of the reasons or the intensity of the confrontation. Relevant rules of IHL may be applicable even in the absence of open hostilities. Moreover, no formal declaration of war or recognition of the situation is required.

Apart from regular, inter-state armed conflicts, Additional Protocol I extends the definition of IAC to include armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes in the exercise of their right to self-determination (wars of national liberation).[4]

Non- international Armed Conflict (NIAC):

Most armed conflicts today are non-international in nature. Two legal sources must be examined in order to determine what a NIAC under the IHL.

(a) NIACs within the meaning of Common Article 3 of the Geneva Conventions of 1949

Common Article 3 applies to "armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties". These include armed conflicts in which one or more non-governmental armed groups are involved. Depending on the situation, hostilities may occur between governmental armed forces and non-governmental armed groups or between such groups only.

In order to distinguish an armed conflict, in the meaning of common Article 3, from less serious forms of violence, such as internal disturbances and tensions, riots or acts of banditry, the situation must reach a certain threshold of confrontation. Two criteria are usually used in this regard: [5]

(1) The hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces.

(2) Non-governmental groups involved in the conflict must be considered as "parties to the conflict", meaning that they possess organized armed forces. This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations. (the armed groups in question must reach a minimum level of organization)

In the current state of IHL, the motives of the non-governmental groups, for example, to cover only groups endeavoring to achieve a political objective as a further condition of NIAC has no legal basis. [6]

(b) NIACs in the meaning of Article 1 of Additional Protocol II

A more restrictive definition of NIAC was adopted for the specific purpose of Additional Protocol II. This instrument applies to 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".[7] However, this instrument does not apply to wars of national liberation, which are equated with IACs by virtue of Article 1(4) of Additional Protocol I. This definition is narrower than the notion of NIAC under common Article 3.

In practice, it is often difficult to identify situations that meet the criteria of application established by Additional Protocol II.

In this context, it must be reminded that Additional Protocol II "develops and supplements" common Article 3 "without modifying its existing conditions of application". This means that this restrictive definition is relevant for the application of Protocol II only, but does not extend to the law of NIAC in general. The Statute of the International Criminal Court, in its Article 8, para.2 (f), confirms the existence of a definition of a non-international armed conflict not fulfilling the criteria of Protocol II. Common Article 3 thus preserves its autonomy and covers a larger number of situations.

Law applicable to NIACs conflicts:

The rules of IHL applicable in situations of NIACs are found in both treaty and customary law.

Common Article 3 of the Geneva Conventions of 1949 specifically applies in the case of conflicts "not of an international character". Common Article 3, which is sometimes referred to as a " treaty in miniature", stipulates the minimum protection that must be afforded to all those who are not, or who are no longer, taking an active part in hostilities, for examples, civilians, members of armed forces of the parties to the conflict who have been captured, are wounded, or surrendered. It provides for humane treatment and non-discriminatory treatment for all such persons, in particular by prohibiting acts of violence to life and person specifically murder, mutilation, cruel treatment and torture, the taking of hostages, and outrages upon personal dignity, in particular humiliating and degrading treatment. It prohibits also the passing of sentences and carrying out of executions without judgment being pronounced by a regular constituted court providing all judicial guarantees recognized as indispensable.

Finally, it imposes an obligation on the parties to collect the wounded and sick and to care for them.

The application of the common Article 3 shall not affect the legal status of the Parties to the conflict.

Article 3 is the bedrock of IHL as affirmed by the ICJ, recognized within customary law as the absolute minimum of humanitarian treatment applicable during armed conflict of any legal qualification.[8] (jus cogens)

Additional Protocol II (adopted in 1977) supplemented common Article 3, (without modifying its existing conditions of application) which was specifically enacted to apply to certain situations of NIAC; it strengthened protection beyond the minimum standards contained in common Article 3.

Like common Article 3, Additional Protocol II provides the humane and non-discriminatory treatment of all those who are not, or who are no longer, taking part in hostilities.[9] Most of provisions of Protocol II are now considered as a part of customary IHL and, thus, binding on all parties to NIACs.

A limited number of other treaties of humanitarian law, human rights –particularly non-derogable and domestic laws – in the State in which a conflict is taking place are also apply to situations of NIAC. The treaty rules applicable in NIACs are, in fact, rudimentary compared to those applicable in IACs.[10]

Parties bound by humanitarian law in NIACs:

All parties to NIACs --- whether State actors [11] (and other persons or groups acting in fact on their instructions or under their direction or control) or armed groups [12] - are bound by the relevant rules of IHL. Even States not party to an armed conflict are required by common Article 1 to Geneva Conventions to neither encourage a party to violate IHL nor to take action that would assist in such violations. Furthermore, common Article 1 is generally interpreted as requiring States not party to an armed conflict to endeavor--- by means of positive action--- to ensure respect for IHL by parties to a conflict.

IHL applicable to (IACs):

There are over 30 international instruments in force dealing with the law of IACs. The most important among them are:-
o 1949 Four Geneva Conventions:
1. Geneva Convention for the Amelioration of the condition of the wounded and sick in armed forces in the field
2. Geneva Convention for the Amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea
3. Geneva Convention relative to the Treatment of prisoners of war
4. Geneva Convention relative to the Protection of civilian persons in time of war
o Protocol Additional to the Geneva Convention of 12 August 1949, and relative to the Protection of victims of International Armed Conflicts (Protocol I).

Other relevant IHL treaties, Human Rights treaties, domestic laws and most importantly customary IHL are also simultaneously applicable in IAC.

Read the Notes and References used in this article here

To be continued...