Alina Malik l

International Humanitarian Law (IHL) is applicable to both international and non-international armed conflicts. In contemporary world, non-international armed conflicts are rampant and have increased insecurity at domestic, regional and international level.

IHL has defined non-international armed conflicts in order to clear the distinctions between them and internal disturbances. Non-international armed conflicts, according to Common Article 3 of the Geneva Convention, are ‘armed conflicts that are non-international in nature occurring in one of the High contracting parties’. Article 1(2) of APII, provided two fundamental differences between internal disturbances and tensions and the non-international armed conflicts. They are as follows:

  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 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 mean for example that these forces have to be under a certain command structure and have the capacity to sustain military operation[1]

India is facing uprisings against its rule and separatist movements in various states. This research aims to analyse Naxalite-Maoist insurgency from international humanitarian law perspective.

NAXALITE-MAOISTS IN CENTRAL AND EASTERN INDIA:

If the Naxalite insurgency in India is not characterized as a non-international armed conflict, then the behavior of Indian state is restricted only by international human rights law. But if it is characterized as a non-international armed conflict between Indian government and Naxalites which is a non-state actor, then all parties must meet the standards of international humanitarian law in addition to human rights law. The Naxalites would also be subjected to international norms and possible prosecution on the basis of international criminal law for possible war crimes or crimes against humanity [2].

The Indian government labels the Naxalite insurgency as an internal disturbance and a law and order situation. It prefers to use the Indian police and paramilitary forces against Maoists insurgents whenever possible. Indian military denies being involved in counterinsurgency operations but it has been training police and paramilitary forces and has been involved in certain counterinsurgency operations such as in ‘Operation Green Hunt’.

In order to label the Maoists insurgency in India as a non-international armed conflict, the conditions given in Article 1(2) of APII, must be met i.e. there must be a minimum level of intensity of Naxalites operations and there must be a certain command and control structure to sustain military operations.

First, the Communist Party of India (Maoist) and its associated committees are highly centralized and hierarchical. It has been functional for several decades now and has only become more effective and organized over the years. Secondly, the casualty rates associated with the insurgency have remained reliably high. Between 2005 to 2015, at least 3000 to 6000 people have been killed in Maoist insurgency. The Indian government response to the Naxalites armed operations has been large scale and forceful[4].

From the above facts, it is clear that the conflict between Naxalites and the Indian government meet the requirements of Article 1(2) of APII. Both the parties involved in this conflict are highly organized and centralized and the casualty rate and the military operations launched to curb this insurgency meet the level of intensity required by above said Article.

Hence, the violent conflict between the Naxalites and the Indian government fits the mold of a non-International armed conflict and International Humanitarian Law must be applied to both parties. Under International Humanitarian Law, civilians are protected. Neither the Indian government forces nor the Naxalite insurgents can target the civilians. Both must abide by the principles of distinction and proportionality[5].

However, many consider IHL as a’ Gray Law’ due to many ambiguities left in the interpretation of its provisions. India has made good use of these ambiguities and has successfully presented the Naxalite insurgency as mere internal disturbance which is to be dealt with according to domestic laws. The Indian government accede to the fact of Naxalite insurgency being organized but has continuously refused to accept that the level of intensity of insurgent attacks and  its response to the insurgency meets the level of intensity as required in Article 1(2) of APII.

Despite of Indian governments refusal to accept Naxalite insurgency as non-international armed conflict, it is clear that it fits the criteria of non-international armed conflict and that International Humanitarian Law is applicable to it.

[1] International Committee of the Red Cross |. Accessed August 25, 2016. https://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf.

[2] UCLA Law Review – UCLA Law Review. Accessed August 30, 2016. http://www.uclalawreview.org/wp-content/uploads/2016/02/Prasanna-63-2.pdf.

[3] UCLA Law Review – UCLA Law Review. Accessed August 30, 2016. http://www.uclalawreview.org/wp-content/uploads/2016/02/Prasanna-63-2.pdf.

[4] “Red Belt, Green Hunt, Gray Law: India’s Naxalite-Maoist Insurgency and the Law of Non-International Armed Conflict by Sandeep Avinash Prasanna :: SSRN.” Search ELibrary :: SSRN. Accessed August 30, 2016. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2668775.

[5] “Does the Naxal Insurgency Qualify As a Non-international Armed Conflict?” Foreign Policy Journal. Accessed August 30, 2016. http://www.foreignpolicyjournal.com/2012/11/21/does-the-naxal-insurgency-qualify-as-a-non-international-armed-conflict/.

Alina Malik is a practicing lawyer who writes on human rights issues. 

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