Photograph by New Indian Express
Introduction
This comment will examine the applicability of the law of non-international armed conflicts (LONIAC) to the infamous Naxalite insurgency. In the first instance, a brief outlook of the Naxalite insurgency will be provided to facilitate a perusal of the relevant factors which may indicate the existence of a non-international armed conflict (NIAC). Secondly, the author will throw light on international and national legal instruments which may be used to identify the Naxalite insurgency as a NIAC. Thirdly, it will be conclusively determined that the Naxalite insurgency meets the requirements of a LONIAC where it should be identified as a NIAC, and finally, the conflict will be discussed in light of the ongoing pandemic.
A Brief Outlook on the Naxalite Insurgency
The status of the Naxalite revolution as a NIAC is disputed owing to a lack of international declarations mainly. It has been termed as an insurgency, and the entire conflict is treated as an internal failure of the governmental machinery. But in reality, a situation of civil war has been kept off the limelight, by the central government, who in name of protecting citizens has adopted draconian counterinsurgent measures. The situation fulfils the criteria of intensity and organization, owing to its recent reports of armed violence, and organized hierarchy, and should be identified as a NIAC.
The applicability of international instruments to the domestic law has to be examined in light of Article 51 of the Indian Constitution which stipulates that “the State shall endeavor to foster respect for international law and treaty obligations”. Even so, in Ktaer Abbas Habib Al Qutaifi and Anr. v. Union of India (UOI) and Ors. held that no law in India mandates the implementation of international treaties and conventions including International Humanitarian Law (IHL). However, the Geneva Convention Acts of 1960, which were adopted to render the implementation of the four Geneva Conventions, do not provide for any express bar on the applicability of the provisions to non-international armed conflicts occurring within India. Therefore, it is pointed out that the armed conflicts occurring within India can be examined under the test of IHL indicating the existence of a NIAC.
IHL requires two primary sources to be examined to determine the existence of a NIAC i.e. Common Article 3 of the Geneva Conventions and Article 1 of Additional Protocol II to the Geneva Conventions. India being a High Contracting Party of the Geneva Conventions has failed to ratify the Additional Protocols to the aforesaid Conventions. Therefore, it becomes necessary to fulfill the requirements of the existence of NIAC under Article 3 of the Geneva Conventions.
The Requirements of LONIAC
Summarily, three requirements have to be fulfilled for an armed conflict to be identified as a NIAC: (a) the armed conflict must be within the territory of the Contracting Party (b) the hostilities must be of a minimum level of intensity (c) the insurgent groups must have an organized structure. The Naxalite insurgency has to be tested against these three factors to conclusively determine the insurgency as a NIAC. The threefold test has been applied below.
(a) Within the territory of India
NIAC should have an internal character. Article 3 refers to “an armed conflict not of an international character occurring on the territory of one of the High Contracting Parties”. However, this requirement is diluted to include armed conflicts that lie outside the territory of a State to be included within the meaning of NIAC. The Naxalite insurgency geologically ranges across the immensely inhabited red corridor, however principally concerted in Andhra Pradesh, Chhattisgarh, Jharkhand, and Orissa. The conflict is concentrated only in India and has not spilled over the borders.
(b) Hostilities must reach a minimum level of intensity
International law jurisprudence has made known that the threshold of intensity has to be viewed objectively. In the aftermath of the Tadic decision which laid down the requirement of intensity, the International Criminal Tribunal of Former Yugoslavia (ICTY) reflected upon the factors indicating intensity which may include the use of paramilitary forces, the protracted violence, the sophisticated weaponry, the closure of roads and the siege of towns. It is pertinent to note, that the Naxalite attacks have befallen in extremely high and concentrated corridors within central-east India, not to forget the frequency and death toll that has surpassed between in the last decade. The assaults are neither regional nor sporadic. The insurgency met the minimum level of intensity which was even indicated by the former Prime Minister of India and the current Prime Minister of India, naming Naxalite areas as “the most dangerous zones in India”.
(c) Organized structure
The term ‘parties to the conflict’ under Article 3 of the Geneva Convention also includes insurgent groups rising against the Government. The insurgency has to be distinguished from mob violence and should have an organized character. A mere collective goal is not enough; some leadership is essential. The Naxalite insurgency has to be distinguished from mob violence. The Maoist group consists of a ranked structure, with a Central Committee capable of setting agendas, controlling the actions of secondary committees and dictating control over a Central Military Commission (CMC) that is responsible for coordinating the People’s Liberation Guerilla Army. Moreover, the CMC controls a militarized division and can recruit members at its base in eastern India. There exists a leadership control system that facilitates the achievement of a collective goal. The Naxalite insurgency should be identified as a NIAC to allow the application of IHL. In case we go by the restrictive interpretation of the law, it may yield to draconian setups which will affect the fundamental rights of the civilians involved in the conflict.
The COVID-19 Narrative
With the conflict entering its sixth decade, Maoist groups, especially CPI-Maoists, have pointed fingers at the government’s response of the pandemic as their food and medicine supply has been impeded due to the lockdown. Using COVID-19 to their advantage, a large number of Maoist rebels opened fire on a 63-member security contingent, killing 27 CRPF men with horrifying brutality. From the very beginning of the Naxal movement, the government has adopted a standard repetitive strategy of police brutality after each attack.
So far, India’s counter-insurgency strategy has been coercion, co-optation and containment that has not been much successful. India must realize that strategies should vary over time and space. India’s counter-guerrilla offensives look both brutal and incomplete in response to the insurgent impulses. The problem needs to be dealt with as a threat to national security. The pandemic has already presented a series of challenges and the continuous threats of the urban Naxals coupled with the response of the pandemic by Maoists have caused a massive social upheaval. It is high time that India devises a strategy to expand its counter-insurgency efforts, otherwise the conflict is there to live.
Tushar Behl is a LL.B. (Hons) 2020 Graduate from the School of Law, University of Petroleum and Energy Studies. He is an Advocate from India and currently working as a Legal Consultant at the Supreme court committee on road safety, Ministry of Road Transport and Highways, Government of India. He is an avid reader, writer, and interested in International Relations and Politics.