India may not be a party to the Geneva Convention Additional Protocols but it has a legal obligation to protect civilians caught in the cross-fire between the Maoists and state-sponsored vigilantes in Chhattisgarh. Siddharth Varadarajan writes in The Hindu
States have the right to wage war against one another and against armed insurgents who challenge them but it is a settled principle of international humanitarian law that the methods of warfare employed must at all times conform to the bounds of legality. While all societies have traditionally grappled with what is and is not permissible on the battlefield, the first systematic attempt to modernise the laws of war was made at the international Peace Conference convened in The Hague in 1899. The Conventions of 1899 that emerged were modest even by the standards of the time but the statesmen and jurists who met there had the foresight to acknowledge the limited nature of their initiative. A preambular paragraph known as the 'Martens Clause' was added unanimously to the Hague Conventions II of 1899 noting that the legal protection combatants and civilians were entitled to in a conflict could not be circumscribed by what countries were willing to accept either collectively or individually at any moment in time. "Until a more complete code of the laws of war is issued," the clause said, "the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience."
Neither the principles of international law nor the requirements of public conscience have remained static since then. Law may have always kept one step behind war but it has also tended to catch up each time the actual conduct of warfare outraged the conscience of humanity. The use of poisonous gas and chemicals during World War I led to the prohibition of chemical and biological warfare in 1925. The mistreatment of wounded soldiers and sailors as well as prisoners of war by Nazi Germany and Imperial Japan during World War II led, in 1949, to the revision of the First and Third Geneva Conventions as well as the creation of the Second. The wholesale targeting of civilians by all sides during the war also led to the Fourth Geneva Convention on the protection of civilians during hostilities.
In 1977, with the experience of American military tactics during the Vietnam war fresh in its mind, the international community adopted the two Protocols Additional to the Geneva Conventions. Protocol I relates to the protection of victims of international armed conflict and expands the protections provided by the Fourth Geneva Convention. Protocol II relates to the protection of victims of non-international armed conflict. It builds upon an article found in all four Geneva Conventions — Common Article 3 — prohibiting violence against civilians in conflicts "not of an international character" and expands the explicit prohibitions to include forcible displacement (Article 17) as well as "acts or threats of violence, the primary purpose of which is to spread terror among the civilian population" (Article 13).
Adherence to the Geneva Conventions is now universal. However, despite the fact that more than 160 states have ratified the 1977 protocols, India has preferred not to accede under the belief that non-adherence to the protocols somehow frees it from the obligations enshrined within. This belief is morally unsound, legally untenable and politically unwise. Today, the Martens Clause has become, in the words of Judge Weeramantry, formerly of the International Court of Justice, an "established and integral part of the corpus of current customary international law" whose fundamental validity no state has repudiated. When it comes to the protection of civilians in an armed conflict of any kind, its meaning is clear: no state can cite national law or its non-adherence to an international convention as an excuse to derogate from its obligations.
As a country beset with "non-international armed conflicts" of one kind or another, India sees Protocol II as a burden that would somehow constrain the conduct of counter-insurgency operations. And yet, there is nothing in the protocol that prohibits states from meeting the challenge posed by armed insurgents. Indeed, Article 3 says there is no bar on governments using "all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State." But the emphasis is on "legitimate means," as defined by national statute as well as international humanitarian law (IHL). The only bar, thus, is on illegitimate means, especially those which victimise civilians. For India to not formally enshrine this prohibition is politically unwise because the laws of war cut both ways. National adherence to the protocol would also make insurgents such as the Maoists or various groups in Kashmir and the North-East formally liable for their violations of IHL, which are legion.
It is also sometimes claimed that there are no "armed conflicts" occurring anywhere on the territory of India and hence the question of acceding to the protocol does not arise. This assertion is false. Prime Minister Manmohan Singh has repeatedly said that the naxalite movement is the "biggest security threat" the country has faced since independence. Clearly, the threat posed by Maoists is not of "isolated and sporadic acts of violence" but of "armed" insurgency, which is why the government has chosen to deploy 33 paramilitary force battalions against them and is considering the additional deployment of another 79 battalions.
Indeed, if ever there was a textbook case of the kind of conflict envisaged by Protocol II, the tragedy that is playing out in Chhattisgarh is surely it. At the heart of this tragedy is the criminal vigilantism of Salwa Judum (SJ), a government-sponsored counter-insurgent 'movement' launched in 2005 with the aim of defeating the Maoists by targeting villages believed to be 'pro-naxalite.' Tens of thousands of adivasis have been uprooted from their villages and forcibly regrouped in new settlements or rendered internally displaced. According to official statistics, the total number of civilian deaths in Chhattisgarh in 2005-2006 was 243 while the number of security personnel killed by the Maoists was 65. In the first three months of 2007, as many as 226 civilians were killed in the State. By way of contrast, the official tally of killings by the Maoists in 2003 and 2004 — the years immediately preceding SJ — was 74 and 83 respectively, including policemen. If the idea is to counter naxalite violence, the strategy is clearly not working.
More troubling from the legal standpoint is the gross violation of IHL involved. The political leadership in both Raipur and Delhi cannot evade responsibility on the specious plea that the movement is "spontaneous." Even if 'spontaneity' were conceded, the Union and State governments are legally liable for the consequences. In any case, there is a wealth of documentation establishing the close links between the Chhattisgarh government and the SJ. A 2007 memo by the Collector of Dantewara lists the number of Salwa Judum meetings held from June 2005 till January 2007, the villages which joined SJ and those which have not. Coupled with an earlier document from 2005 — which laid out a 'work proposal' for the SJ including identifying 'friendly' and 'enemy' villages, appointing Special Police Officers, dividing the entire area into clusters and permanently resettling villages next to police stations — the 2007 memo sounds like the report of work successfully done.
The fate of village Vechapad is typical. According to accounts provided by villagers to local journalists and activists, the Naga reserve battalion first came and burnt two houses. All the males in the village then went to Mirtur camp, 10 km away, while the women stayed behind. Slowly, the men fled in ones and twos back to the village. After that, the SJ repeatedly attacked the village. Seven people were killed, most of them old or infirm. Joga refused to join the others in the camp around October 2005 because his sulphi tree was in full sap, so the SJ came to find him. He ran towards the forest, but its members caught and killed him with an axe. In February 2007, Pandru Padami and his son Doga were killed by the SJ as they were cutting bamboo, while Sannu, another old man, was tied to a post outside his house and axed, ostensibly because he gave food to naxalites. Jagannath was killed by the naxalites for being an informer, while Samlu Telam, also an old man, was killed by the SJ and his body thrown into the jungle.
By using the Salwa Judum to target and terrorise so-called "pro-Maoist" villages such as Vechapad and scores of other settlements, and forcibly relocating thousands of civilians, the Government of Chhattisgarh is guilty of violating both Article 13 and 17 of Protocol II, quite apart from Article 19 of the Indian Constitution. Even if India is not a party to the protocols, Common Article 3 of the Geneva Conventions — to which it is a signatory — prohibits the use of violence against non-combatants in an internal conflict. And then there is the Martens Clause. To come back to Judge Weeramantry: "If, as is indisputably the case, the Martens Clause represents a universally accepted principle of international law, it means that beyond the domain of express prohibitions, there lies the domain of the general principles of humanitarian law … A legal system based on the theory that what is not expressly prohibited is permitted would be a primitive system indeed, and international law has progressed far beyond this stage."
The learned jurist was speaking — in his famous dissenting opinion to the ICJ's 1996 advisory opinion — about the illegality of nuclear weapons despite the absence of an international convention on the subject. In the case of Salwa Judum, however, the bar is explicit. The targeting of civilians in an internal conflict violates the public conscience and is expressly prohibited by customary law. There is no way India can claim immunity from its sanctions.