Collateral Damage and the Geneva Conventions: The Indian Paradigm

Collateral Damage and the Geneva Conventions: The Indian Paradigm

A 65-year-old man was shot dead on Wednesday morning in the northern district of  Kashmir. The victim, identified by local media as Bashir Ahmed Khan, was accompanied by his three-year-old grandson. One narrative suggests that the civilian died as a part of ‘collateral damage’ during crossfire between Kashmiri insurgents and the armed forces in the Sopore district of Kashmir during which one Indian paramilitary trooper was also killed. However, a counter narrative of the same suggests that the civilian was dragged out from the car and shot dead by the military personnel. Unfortunately, the three-year-old child remains to be the only credible witness to actually determine the turn of events that took place on that day. ‘Wake up grandpa’ were the words of the three-year-old boy sitting on his corpse, dazed and completely traumatised before he was rescued by the police authorities. Irrespective of the two narratives, it’s clear that Kashmiris have been victims of extensive collateral damage since 1947.

After the resolution was adopted by both houses of the Parliament, President Ram Nath Kovind issued Constitutional Order 273 on 6 August 2019 revoking the special status given to Jammu and Kashmir under Article 370. Since then the state has been under an extensive communication blockade, with the people of the state still having access to only 2G connectivity even during a pandemic. Additionally, the lives of ordinary Kashmiris have suffered due to the economic freeze that has occurred due to non-operational offices, shops and factories and zero tourism.

A factor that has also affected the lives of the Kashmiris severely is the stepped up military operations against rebels in the restive territory. The civilians in Kashmir have been victims of collateral damage that has occurred during these aggressive encounters. At such a time it is important to discuss India’s international obligations in terms of collateral damages in a non-international armed conflict, and the unclear stance it has taken thus far.

Geneva Conventions and India’s obligations

The Geneva Conventions of 1949 and their two Additional Protocols of 1977 are the fundamental instruments of humanitarian law. Chapter IV of the basic rules of Geneva Convention specifically relates to “Protection of Civilian Persons and Populations in Time of War”.  India is party to the 1949 Geneva Conventions and but not to the 1977 Additional Protocols.

There are specific instructions for the protection of civilian populations in any conflict. A civilian can be categorised as any person not belonging to the armed forces. The prohibition of attacks on civilian persons and civilian property includes all acts of violence, whether committed in offence or defence.

The purpose of the two Additional Protocols is to extend protection to the victims of armed conflict, therefore, their application to the situations of armed conflict becomes necessary.

It is pertinent to note that the application of these treaties will not grant non-state armed groups any political status or recognition as the emphasis of these treaties is on conduct of the conflict and not on the political legitimacy of the parties involved. However, the application of these treaties in turn, would impose an obligation of compliance on non-state armed groups in Jammu & Kashmir, who are involved in armed conflict with the Indian state.

India has still not acceded to the two additional protocols that fundamentally deal with non-international armed conflicts. The apprehension stems from the fact that the Indian government will have to act according to the principles of non-reciprocity thereby ensuring compliance towards the legal obligations even if the non-state actors do not reciprocate. Since state compliance does not depend on reciprocity, this obligation in all probability would increase the prospects of their defeat and would weaken the position of the Indian forces in the state.

The two Additional Protocols must be ratified by India as it has already become a party to other international treaties which govern non-international armed conflict situations. An example of this is the Convention on Certain Conventional Weapons of 1980, the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices Convention on Certain Conventional Weapons (CCW) and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.

Additionally, Common Article 3 of the Geneva Conventions applies specifically to the case of ‘armed conflict not of an international character’, and is applicable even in regions that are within a country’s boundaries. It lays down a set of ‘minimum’ binding standards on all parties, including protection of medical neutrality, and prohibitions against violent attacks on civilians, prisoners and the wounded; torture, mutilation, humiliating and degrading treatment, and extra-judicial killings.

Internationalising of the dispute and Non-Compliance of Municipal Law

The Indian constitution casts a responsibility on us to comply with the conditions of international agreements, treaties and conventions we have ratified, and to treat them as law of the land. The Supreme Court, most famously in the Vishaka Case, has considerably enlarged the ambit of this principle, by allowing the judiciary to supplement domestic legislation with international convention.

India refrains from upholding the rules of the Geneva Convention precisely because it fears ‘internationalising’ the issue. Additionally, upholding the Geneva Conventions would mean that parties to the conflict, both the Indian armed forces, and militant groups, are protected and regulated by the same internationally accepted common standards. The immunity given to soldiers in India with regards to not facing ordinary court trials will also face obstacles if the Geneva Convention rules are upheld as every person, including army officials, committing the acts of torture, rape, mutilation and other forms of atrocities will be tried as a ‘murderer’.

Since 1947 the people of Kashmir have been victims of Human Rights violations and their concerns have gone unheard because of the lack of representation of a proper case from their local leaders and representatives on various international forums. The Indian Government needs to understand that it is not winning the Kashmir situation until it respects the basic human right of people, whether through moral obligations stemming from international law or those from the municipal law of the land. Collateral damage cannot be used to justify the death of ordinary civilians repeatedly and the government must be held accountable for breaching its international obligations relating to civilian protection.

Note: The views expressed here are those of the author and do not necessarily reflect the views/positions of the Political Chronicler.

Shubham Airi

Shubham Airi is a student at the School of Law. Christ University, Bengaluru, India. He is also the founder of Praxis Education Trust, a Non - Profit Organization working towards access to education, skill training and legal literacy.

%d bloggers like this: