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Anti-Personnel Landmines Still Mutilate Asia: Banning in the Global Politics of Human Rights

Dr. Nafees Ahmad

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In South and Southeast Asia, Afghanistan, India, Nepal, Pakistan, Sri Lanka, and China, Cambodia, Lao PDR, Myanmar, North Korea; South Korea, Philippines, Thailand, Vietnam, and Taiwan have been confronting the curse of landmines. Afghanistan runs the oldest and largest demining programme in the world. Afghanistan remains one of the states with the highest level of contamination from landmines and explosive remnants of war. It has the highest number of casualties caused b ylandmines, explosive remnants of war and improvised explosive devices. 

Human rights are a desultory desire of universal utility, which is nurtured and navigated by the quality of justice system of a nation – state devoid of any political polemics, paradoxical pursuits, and gawky gobbledygook. The administration of criminal justice system gets activated if a person is inflicted with death in its various permutations by someone which is followed by an investigation to rummage and apprehend the culprit and is accordingly brought to justice in any civilized society committed to a desiderata of constitutionalism, rule of law, equality, fraternity, liberty, humanitarianism, social justice, transparency, accountability, good governance and human rights. But in the case of landmine explosions resulting in a mass human pogrom, the justice system is hamstrung. On the other hand, it becomes possible to prosecute the culprit and bring to book for a single act of criminality. But, unfortunately, persons who made people crippled and injured by landmines can never be brought to justice. There would never be an investigation. Even time would find it difficult to heal the whelming wounds and atrophic agonies sustained by victims. Permanent privation of limbs would never be substituted in a normal and natural way. The psychological trauma and diabolical effects received and experienced by the victims haunt them throughout their whole life, and they struggle for their existential survival. Nevertheless, they are not able to eke out an honorable existence in society and destined to drag on their parasitic identity. The magnitude of their suffering and severe disabilities is immeasurable by any yardstick in any form whatsoever developed by perennial human peregrination from avionics to genomics.

This excursus attempts sanities the issue of landmines and their excruciating effects on the human psyche and exhorts upon humanity to exscind its menacing presence for once and all so that posterity could be able to live in peace. The obviation of landmines must be the shibboleth in the 21st century based on a time frame. The international community must subscribe to pragmatism so for their eradication is concerned instead of making sibilatory overtures and resorting to minatory maneuvers with tectonic tendencies to perpetuate and justify their military necessity. Means of warfare must be devised on humanitarian premise while keeping in view broader possible transgressions of human rights during military engagements.

Landmine is a most dreaded, lethal and crippling device of modern warfare and devastates human limbs beyond any possible cue and care. It is the weapon of incendiary nature that once detonated would hurricane dirt particles, metal shards, plastic pebbles, and cordite fragments penetrate deep into the human body and resultant wounds necessitating further amputations. It is a weapon of mass destruction and does not discern between a horse do combat and civilians. It does not identify its targets. It is sardonic to aver that a landmine proceeds to swallow its target sat the pedestal egalitarianism. It does not discriminate between military personnel and or civilian. Consequently, the vast majority of its victims are innocent children and civilians. But the suffering does not bid a farewell here as the repercussions and ramifications of landmine explosion spread far beyond the victim who mules its scourge for rest his/her life.

Landmines are of various types with one commonality, i.e., destruction of genocidal dimensions. There are anti-personnel mines (designed to maim, kill and injure people), anti-vehicle mines (designed to destroy tanks and vehicles) and “smart” anti-personnel mines (mines which are capable of self-destruction or self-Deactivation). These mines are programmed in advance to explode automatically. However, the recent advancements in landmine technology have blurred the conventional dichotomy between anti-personnel and anti-vehicle mines. Today, multi-purpose mines are being developed having diabolical and debilitating dimensions.

A landmine has been defined under Article 2, paras 1 and 2 of convention on the prohibition of the use, stockpiling production and transfer of anti-personnel mines and on their destruction, September 18, 1997, which is popularly known as Ottawa Treaty (hereinafter referred to as Ottawa Treaty) It defines a landmine as under:

 “(1) Anti-personnel mine means a mine designed to be exploded by the presence proximity or contact of a person and that will incapacitate, injure or kill one or more persons. Mines designed to be detonated by the presence, proximity or contact of a vehicle as opposed to a person, that are equipped with anti-handling devices, are not considered anti-personnel mines as a result of being so equipped.”

 “(2) “Mines” means a munition designed to be placed under, on or near the ground or other surface area and to be exploded by the presence, proximity or contact of a person or a vehicle.”

It is axiomatic from the language of the definition that it is framedin general words, which make it comprehensive and inclusive.

There are some International Legal Institutions designed to achieve a landmine-free world through municipal legal jurisdictions. These international conventions envisaged various provisions and clauses by which state parties are made to adhere to it. There is United Nations Convention on the prohibition of Anti-personnel mines and on their destruction 1997, UN Convention of certain conventional weapons (CCW) with its Additional Protocols I,II,III,IV and amended Protocol II. This Additional Protocol concerns different aspects of means of warfare such as undetectable fragments, landmines, incendiary weapons, and blinding laser weapons respectively. There are only 72 countries that had acceded to the CCW so far.

On the other hand, the Ottawa Treaty was signed by 164 countries as of January 2018. However, 32 nation-states remain non-signatories including prominent powers such the US, Russia China and India, and these countries are also the producers and users of landmines. In South and Southeast Asia, countries like India, North Korea, South Korea, Lao PDR, Myanmar, Nepal, Pakistan, Singapore, and Vietnam have not acceded to the Ottawa Treaty. Afghanistan and Bangladesh are the only two countries that have signed the Mine Ban Treaty on September 11, 2002, and May 07, 1998respectively in South Asia; however, 11 states have enacted national legislation. Therefore, II states have announced the destruction of stockpiles and no states so for published total clearance or demining of emplaced mines. There are around 25, 00,000 people globally disabled by landmines of which 600,000 were civilians including women and children who are either wood-hewers or drawers of water.

It is remarkably relevant to note that the initiative to have or ban treaty on landmines was taken by the government of Canada independent of any role of the United Nations. Earlier in 1990, the ICRC and some other non-governmental humanitarian organizations like national Red Cross societies, Red Crescent societies and International Campaign to Ban Landmines (ICBL) began dissemination of awareness of started documenting the higher incidence of landmines casualties of civilians. Consequently, on October 5, 1996, the conference adopted the Ottawa declaration which committed the participants to execute a plan of acting directed to the enhancement of resources and building-up an infrastructure to clear mines, assist victims and rehabilitating them.

Ultimately, the government of Canada invited all national governments to come to Ottawa in Canada in December 1997 to sign a treaty banning the production, stockpiling transfer and use of anti-personnel mines. It is known as the Ottawa Process resulted in a global ban on landmines. This treaty came into force on March 3, 1990. UN Secretary-General has been entrusted with the power to investigate, with prior consent of state parties to the convention, the possible misuse of the convention. The treaty envisages a comprehensive ban, reintegration of victims, their social rehabilitation, dissemination of information and mobilizing national and international public opinion. Although it is heart-wrenching that Ottawa Treaty received only 133 signature and 66 ratifications on March 1, 1999. Unfortunately, India, Pakistan, Russia, and China have not acceded to this important treaty intended to save humanity from 100 million mines in over 60 countries.

When military engagement and hostilities come to an end leading to a state of ceasefire and envisage usually, and the civilians resume routine life, the presence of landmines poses a threat of gravest nature as the cost of dismantling and obliterating them is colossal beyond the resources of the war-ravaged country. Moreover, as landmines do not identify its target, its presence does not make any difference between pre-state of war or post-war situations. It has the same devastating prowess unless pulverized which remains a distant dream, in some locations across the world. Consequently, in a post-war scenario in many countries, civilians become the victims of landmines despite having passed many years in peace and tranquility.

On the other hand, a country impregnated by the landmines cannot resume its economic activities on a healthy footing. Mines make direct bearing on transportation, roadways, waterways, agriculture, industrialization and reconstruction activities leading to unemployment, starvation, malnutrition, low birth rate, mendicancy, poverty and a sudden spurt in crime. Every twenty minutes a landmine maims or kills a person. It is challenging to engage in demining activities. Biting insect’s inaccessible terrain, impenetrable bamboo thickets, and thorn bushes – mine clearance everywhere in the world is a hot, sweaty business at the best of times. Because tripwires hidden in the undergrowth could trig explosions, the vegetation and verdancy have to be uncluttered by hand before mine detection can start. It is a tedious matter and can occupy two-thirds of a mine clearer’s working hours in a day. In the dry season, the land can be indestructible, and deminers must move forwards scrupulously, prodding with a prodder and digging with a small trowel. Only one in a thousand of the searches likely to be an explosive, but we cannot let our concentration slip for a moment. The majority of deminers who undertake this uphill asks are not experts but generally local persons who have gone through a training course of two or three weeks.

In South Asia, India, and Pakistan are two important countries which experienced the scourge of landmines warfare. India is confronted by the acts of non-state actors in insurgency infested Kashmir, and northeast region where mines were laid by the militants, Kargil aggression by Pakistan is a case in sight while retreating mercenaries and army regulars laid landmines. Recently institute of peace, Disarmament and environmental protection and global green peace organized a seminar on “Ban Anti-Personnel Landmines” in Srinagar highlighted the growing incidents of landmines use by the insurgents in the Kashmir.

In Sri Lanka, Tamil Tiger has indigenously developed “Jonny Mine” considered to be the most competent in the world of explosive devices and using them devoid of any humanitarian norms of warfare. There is also a problem of detection of these mines. It has become very difficult mines of plastic and low content of metal. The Indian army has four types of mines. Two of them are anti-personnel, and two are anti-tank mines. M-14 and M-16 are two anti-personnel mines which are similar to M-14 of the U.S. having shallow metal content which is virtually undetectable and highly determined. Pakistan also has some mines and use them in the war of 1965 and recently in Kargil also.

Regional co-operation must form an essential and kernel part of any future legal regime for banning and demining in the South Asia region. SAARC countries have already acknowledgment the dangers and repercussions of landmines. Moreover, efforts are already on the anvil to arrive at a formidable legal regime. Bangladesh, Bhutan, Nepal may become a party to the banning regime soon. India is already a party to 1980 U.N. Convention on certain conventional weapons (CCW) with its additional protocol. Although this convention does not entirely ban landmines even then no other south Asian country acceded to this convention.

India, Maldives, Pakistan and Sri Lanka have expressed identical views on not to use landmines in internal conflicts. Recently the government of India has agreed in principle to be a party to Ottawa Treaty by the end of 1999,but it still lacks a regional consensus on evolving a regional legal regime to deal with the menace of landmines. South and Southeast Asia must enhance its pro-disarmament position in the global politics of banning landmines. Everything, in war, is brutal, brazen and barbaric but the worst barbarity of war is that it compels men collectively to comment acts against which individually they would revolt with their whole existential being. Therefore, it is axiomatic that there is an urgent need to have a thin-tank of lawyers, jurists, defense experts, academicians, NGOs and policy institutions, etc. for evolving and shaping concrete and pragmatic mechanism for a vibrant, vital, legal regional protection regime about landmines. Moreover, Indian Human rights movement must be sensitive enough to incorporate and discourage the non-ethical and immoral use of mines. 

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

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International Law

Sikhs And Justice: An International Humanitarian Law Approach To The Study Of Operation Bluestar

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6th of June 1984 is considered as the darkest day in the history of the Sikhs all around the world. This was the day when the Indian Army stormed the Golden Temple, the holy shrine of the Sikhs to drive out Jarnail Singh Bhindranwale and his armed men who had taken refuge in the Temple complex since 1982. Bhindranwale had started a movement to attain justice for Sikhs who were being discriminated on various grounds. The Indian Government saw this as a secessionist movement, which is why Bhindranwale and his group were considered as a threat to the nation. This paper endeavours to study the Operation Blue Star from the international humanitarian law perspective by establishing it as a non-international armed conflict. It is divided into five parts. The first part deals with the history and the background to the operation and also highlights the reason why the Indian Army attacked Golden Temple; the second part then throws light upon the definition and the types of the armed conflict in the international humanitarian law and also ingredients of a non-international armed conflict; the third part tests the incident of operation against the ingredients of a non-international armed conflict; the fourth part discusses the nature of State’s response which is considered in excess in terms of human rights and humanitarian law obligations. These four parts are then followed by a conclusion.

Background

Sikhism is a religion founded by Guru Nanak Dev Ji in the year 1469 in Punjab, a state being shared by both India and Pakistan. Sikhs, the followers of Sikhism played a major role in the Indian Freedom Movement[1] but did not receive much appreciation even though they were promised jobs and a better livelihood in the post-Independence era. The newly framed Indian Constitution’s Article 25 identifies Sikhs as Hindus, which aggrieved the Sikhs even more leading to a lot of resentment against the Indian state. In the 1950s, the linguistic groups across India sought statehood that led to the formation of a State Re-organisation Commission in 1953. The government of India was apprehensive of carving out a Punjabi speaking state as that would also lead to dividing the state on religious lines between Hindus and Sikhs. The hindi newspapers from Jalandhar urged the hindus to exhort hindi as their mother tongue which is why the demand for a separate Punjabi Suba (State) was defeated. The Akali Dal, a political party formed during the Gurudwara Reform Movement in the 1920s, continued their agitation for the creation of a separate Punjabi Suba and it was finally agreed to in 1966. Thus areas in the South of Punjab that spoke the Haryanvi dialect of the hindi language formed a new state of Haryana, the Pahari speaking areas were merged with Himachal Pradesh and the remaining Punjabi speaking area retained the name Punjab with Chandigarh as a Union Territory and as Punjab and Haryana’s common capital.

This linguistic reorganization of the states created a lot of problems. Many of the Punjabi speaking areas were given to the State of Haryana, Chandigarh was made a Union Territory and the joint capital of the States of Punjab and Haryana and the Centre took control over the waters of the rivers of Ravi, Beas and Sutlej and made arbitrary allocation. The Centre even took control over various power and irrigation projects. After the reorganization of the state, Akali Dal gained the majority in the Punjab Assembly elections in 1967 but Punjab saw an unstable government for five long years owing to defection. Later on in 1972 after the Bangladesh’s Liberation War Congress emerged victorious at both the Centre as well as in Punjab. Nevertheless in 1973 the working group of the Akali Dal came with a resolution, which was adopted at Anandpur Sahib and came to be known as Anandpur Sahib Resolution.  It advocated for the federal structure in which the Central Government should actualize the federal concept of India by granting autonomy to the provincial government in all the areas except defence, currency and foreign relations. It was in 1982 that Jarnail Singh Bhindranwale, leader of Damdami Taksal-a Sikh religious organization joined hands with the Akali Dal in order to implement the Anandpur Resolution. Bhindranwale as he was fondly called grew popular amongst the Sikh population of Punjab but notorious with the government. He was even arrested for the murder of Lala Jagat Narain, editor of a popular Hindi daily newspaper who had campaigned against Punjabi being adopted as a medium of instruction in Hindu schools and even urged the hindus to accept Hindi as their mother tongue and reject Punjabi in order to defeat the Anandpur Sahib resolution. However, Bhindranwale was released without being charge sheeted due to lack of evidence. Meanwhile the law and order situation deteriorated in Punjab and there were a number of confrontations between the police, Babbar Khalsa and Dal Khalsa’s army. Later on sometime in 1982, Bhindranwale was invited by Harchand Singh Longowal to take refuge in Guru Nanak Niwas, Golden Temple’s guest house. Bhindranwale then even took charge of the Akal Takht, one of the five Takhts of the Sikh religion also known as the seat of temporal justice, thus becoming the Takht’s Jathedar. He then fortified the Temple with heavy machine guns and sophisticated self-loading rifles were brought in.[2] Though Bhindranwale strongly advocated for the Anandpur Sahib Resolution which mostly focused on the Centre-State relations, greater status to Punjabi and the distribution of the waters of the rivers yet it was mostly seen as a secessionist movement by the Central Government. Indira  Gandhi then ordered the expulsion of Bhindranwale and his army from the Golden Temple Complex. The Indian National Army took charge of the situation and attacked the Golden Temple with tanks and artillery on the 6th of June 1984. Thousands of pilgrims belonging to the Sikh faith had gathered in and around Golden Temple, to mark the martyrdom day of Guru Arjan Dev Ji, the fifth Guru of the Sikhs and also the founder of the Temple since the 3rd of June and though entry to the Temple was permitted but they were not allowed to exit it. The survivors of the attack are of the view that the Army deliberately chose this day to carry out the operation in order to wipe out as many Sikhs as possible. The unarmed civilians were attacked incessantly. Even the Sikh Reference Library, which is located inside the complex, was attacked and ancient scripts and artefacts were looted by the army and loaded in trucks to be taken to Delhi. The operation was considered extremely disproportionate and not at all necessary, as the number of Bhindrawale’s armed forces was extremely small as compared to the collateral damage. The civilians who survived often call it as a conspiracy to kill Sikhs and finish the faith in one go. Though the official number of casualties is reported as a few hundreds but the actual number soar really high. The operation was seen as an attack to crush the Sikh militants out of the Temple, yet the author in this paper tries to equate it with non-international armed conflict in order to trigger the mechanism of international humanitarian law principles, thus making the Indian State responsible under the international law.

Armed Conflict

International humanitarian law (IHL) is a branch of international law that governs the conduct of armed conflict. It applies only to a situation of an armed conflict.[3] Therefore, in order to determine whether IHL applies to a situation of violence it is necessary to first asses whether the situation amounts to an ‘armed conflict’. IHL does not provide for a definition of armed conflict. However, it recognizes two types of armed conflicts: international armed conflicts (IAC) opposing two or more states and non-international armed conflict (NIAC) between governmental forces and non-governmental armed groups, or between such groups only, which was established by the Geneva Conventions of 1949.[4]Prior to the Geneva Conventions of 1949, it was thought that civil conflicts were outside the scope of international law. Since the situation of Operation Bluestar under study resembles a NIAC therefore only the ingredients of a NIAC would be discussed. NIAC can be applied through Common article 3 to the Geneva Conventions, customary IHL and Additional Protocol II (AP II) where ratified.

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. However, NIAC needs to be distinguished from internal disturbances including isolated and sporadic acts of violence.

AP II on the other hand, applies to armed conflicts “which take place in the territory of aHigh Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over apart of its territory as to enable them to carry out sustained and concerted military operationsand to implement this Protocol”.

This definition is narrower than the notion of NIAC under common Article 3 in two aspects.

Firstly, it introduces a requirement of territorial control, by providing that non-governmental parties must exercise such territorial control “as to enable them to carry out sustained and concerted military operations and to implement this Protocol”.

Secondly, AP II expressly applies only to armed conflicts between State armed forces and dissident armed forces or other organised armed groups. Contrary to common Article 3, the Protocol does not apply to armed conflicts occurring only between non-State armed groups.

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.

Statute of the ICC, art. 8 para. 2 (f): “It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups“.

In order to distinguish an armed conflict, in the meaning of common Article 3, from lessserious forms of violence, such as internal disturbances and tensions, riots or acts ofbanditry, the situation must reach a certain threshold of confrontation. It has been generally accepted that the lower threshold found in Article 1(2) of APII, which excludes internal disturbances and tensions from the definition of NIAC, also applies to common Article 3.

Two criteria are usually used in this regard:

First, 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.

Second, 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.

As per the ICTY Appeals Chamber in Tadic case, an armed conflict involving non-state groups arises only if the violence is protracted and the non-state groups are organized. From the above discussion it can be made out that the following form the ingredients of a NIAC:

Armed conflict between a State and a non-State actor or between these non-State actors

A modicum of organization of any party to the conflict: According to the ICTY Appeals Chamber in Tadic, an armed conflict involving non-State actors must involve ‘organised armed groups’, that have a clear chain of command. Each group involved in an armed conflict need not be clearly differentiated and defined, as there may be a number of loosely related armed groups involved. The ICTY Trial Chamber has further explained the following as ingredients of organization:

The existence of command structure and disciplinary rules;

Control of a determinative territory;

Access to weapons, equipment and military training;

The ability to define military strategy and use military tactics.

Protracted violence: In the Tadic case, the appeals chamber held that for a NIAC to exist there must be ‘protracted armed violence’ which has been authoritatively repeated in article 8(2) of the Rome Statute of the ICC. Yoram dinstein infers that occasional unrest does not amount to NIAC and that there needs to be a series of ‘isolated and sporadic’ internal disturbances for a NIAC to come into existence. The Inter-American Commission on Human Rights in Juan Carlos Abella v. Argentina concluded that an armed conflict has occurred in Argentina, even though the skirmish lasted for 30 hours in total. But Dinstein does not agree with this decision. However, the IACHR holds that in borderline cases there may be a presumption in favour of the existence of an armed conflict.

Intensity of fighting: This requirement should not be looked at as an alternative to protracted violence. The ICTR Trial Chamber in the Akayesu case had stated that the intensity of hostilities ought to be ascertained ‘on the basis of an objective criteria’. In the aftermath of Tadic, multiple judgments of the ICTY have come up with various indicia in order to assess the intensity of the fighting required in a NIAC. These include: the numbers of casualties, the diffusion of violence over territory; deployment of military units against the insurgents; the types of weapons used; the siege of towns; and the closure of towns.

Application of International Humanitarian Law to The Operation Blue Star

The situation of Punjab was dismissed as a mere law and order situation, which is why the State never became liable under the IHL regime. However, this study aims to analyze the situation in Punjab against the ingredients of the NIAC as many Sikh organizations have had asked for a UN probe in this matter as they regard it as a violation of IHL.

Armed Conflict:The situation in the 1984 attack on Golden Temple involved a confrontation between the Indian Army and the armed men, led by Bhindranwale who had taken refuge inside the Golden Temple Complex. There are documented evidences that show that the attack was conducted in a systematic manner with sophisticated weapons being used by both the sides including anti-rocket launchers, AK-47s etc.

Modicum of Organization:  The non-state actors in this conflict i.e. Bhindranwale and his followers were under the command of Jarnail Singh Bhindranwale. There were also other forces some named and some unnamed one of them being, Babbar Khalsa that had joined hands with the Bhindranwale and were indirectly under his control. Bhindranwala’s force had actually fortified the Golden Temple area with sophisticated weapons. General Kuldip Singh Brar who led the Operation Blue Star had pointed out at the foreign assistance received because of the foreign weapons that were seized from the Bhindranwale’s army during the operation.[5]The Khalsa army, as it was mostly referred to, had received their training under the aegis of Major General Shabeg Singh, an Indian army officer noted for his service in training of Mukti Bahini volunteers during the Bangladesh Liberation War. Major General Shabeg Singh taught the army military tactics, that he had acquired during his service with the Indian Army.From this data it can be made out that the Khalsa army satisfied the ingredients of the modicum of organization given out in the Tadic case that have acquired the status of customary international law.

Protracted Violence: The operation was not a single event of violence but rather one of the major events in order to bring the situation in Punjab under control and to drill fear in the minds of the other Sikh outfits that were said to be leading the secessionist movement.

Intensity of Fighting:The operation was one of the very intense operations in the history of the Indian Army. As mentioned above, the official number of casualties is very low, lying somewhere in a few hundreds but eyewitnesses and the survivors’ account tell a different tale altogether. As per the survivors, the pilgrims were being let in the Golden Temple from the 2nd of June 1984 but they were not allowed to leave, which is why the casualties were quite high. Bhindranwale and his army is said to be a few above hundred but the civilians who lost their lives are said to be somewhere above seven thousand. The operation saw a parallel attacks on other gurudwaras in Punjab with the deployment of about 1,00,000 army personnel throughout Punjab. The weapons used on the other hand were highly sophisticated ones. The army even broke the stairs leading to the entrance of the temple to bring in tanks. While Bhindranwale was said to be in possession of foreign weapons including machine guns, anti rocket launchers etc.[6] Most parts of Punjab especially Amritsar were brought under Section 144 of the Criminal Procedure Code (CrPC).

Conclusion

From the analysis made above it can be said that the situation in Punjab was surely not just a law and order situation. It resembles heavily with the ingredients of a non-international armed conflict, thus a deeper study needs to be conducted in order to determine the status of the operation blue star. Sikhs for Justice, a private organization based out of United Kingdom had submitted a memorandum to the United Nations Assistant Secretary for Human Rights calling for the setting up of a tribunal to investigate alleged crimes against the members of the Sikh community during the 1984 Operation Blue Star. It reads that it clearly violated the basic humanitarian law provisions for the protection of the civilian population and for the protection of cultural objects and places of worship as set out in the Geneva conventions.[7] The Sikhs have been awaiting justice for the missing members of their families before and even after the operation, destruction of their holy place of worship, the Sikh Reference Library, the killing of the thousands of the civilians who had gathered inside the Golden Temple just to pay obeisance at the Temple and also for the thousands killed during the anti-Sikh pogrom in Delhi and other parts of India after the assassination of the Indian Prime Minister Indira Gandhi who had ordered the attack at the Golden Temple. Once the Operation is considered a NIAC it would be easy to drag the Indian State to the United Nations and submit her to the jurisdiction of a Tribunal, if it is ever set up.


[1] KS Duggal, “Sikhs in the Freedom Struggle”, Mainstream Weekly, 19 August, 2008 <https://www.mainstreamweekly.net/article891.html>accessed on 21st May, 2020.

[2] Ranbir Sandhu, Sant Jarnail Singh Bhindranwale- Life, Mission and Martyrdom, (Sikh Educational and Religious Foundation, 1997).

[3] Prosecutor v. Dusko Tadic (Appeal Judgment), 15 July 1999, ICTY.

[4]Tadic’s case held that:

…an armed conflict exists wherever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organized armed groups within a State. International humanitarian law 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, international humanitarian law 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.

[5]General Brar had said this in an interview to the press during the operation.

[6] This was revealed by General Kuldip Singh Brar in an interview during the operation.

[7]“Operation Blue Star: Sikh rights group seeks UN probe”, The Indian Express, June 7, 2017 <http://indianexpress.com/article/world/operation-blue-star-sikh-rights-group-seeks-un-probe-4693609/> accessed on May 21st, 2020.

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International Law

A legal analysis of the United Nations response to Covid 19: How the Security Council can still help

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The Covid-19 pandemic, which plagues the world currently has brought to light the inherent deficiencies in the International Legal order and its ability to combat a global catastrophe of this nature. It has caused a complicated situation in which International Law and its subjects; States and International Organisations, in particular, are struggling to uphold the principle of coordination between states, which is one of the founding principles of the system of International Law.

The United Nations is the primary International Organisation in the International Political and Legal arena. It facilitates such coordination and cooperation between states, as well as Non-State entities such as Non-Governmental Organisations and Multi-National Corporations. One of The UN’s primary organs is the Security Council, which has the primary responsibility to maintain International Peace and Security and has the power to promote effective cooperation between states using its powers to pass enforceable resolutions. In the face of arguably the most significant security threat that the world has faced in the recent past, the Security Council has come under much scrutiny for its absenteeism. Estonia, the UNSC president for May, has called the Security Council’s handling of Covid-19 a shame, further stating that the UN body has not fulfilled its responsibilities of tackling the outbreak of Covid-19.

The global nature of this pandemic clearly brings forth the dire need for international cooperation in order to counter the effects of this crisis. This effectively puts the United Nations Security Council at the forefront of any efforts to pave the way for this cooperation. In light of the recent criticism of its inability to do so, the paper seeks to analyze important issues pertaining to the role of the UNSC, its responsibilities, and powers, as well as possible actions that the Council could undertake.

The Security Council’s Mandate and Jurisdiction

The Security Council currently derives its powers to deal with the outbreak of the Novel Coronavirus from past precedent as well as from a purposive interpretation of the United Nations charter. Whilst matters of health are primarily the concern of another UN body, the world health organization, the Security Council has previously discussed and debated global health emergencies, as in the case of Ebola and SARS. The UN charter, in article 24(1), gives a general characterization the Security Council’s functions and powers, which is the responsibility of upholding International peace and security. In the UNSC Resolution 2177 surrounding the Ebola crisis in West Africa, it was declared that the outbreak comes under the duties and jurisdiction of the Security Council as the communicable disease is a threat to International Peace and Security, as it could pose a threat to the stability of nations if it remains unchecked. An analysis of these principles established by the Council itself shows that the Coronavirus is a global issue that the Security Council must deal with, as it threatens International Peace and Security for five reasons. Firstly, the outbreak spans national borders and has become a global issue with an international nature, requiring an International coordinating mechanism. Secondly, it poses a significant threat to the stability of the countries affected, which has affected 213 countries as of June 1, 2020, in that it could lead to civil unrest as well as social tensions, while also affecting the political and security climate. Thirdly, the outbreak is very likely to have exceeded the economic capacity of many governments to respond, thereby outlining the need for International Action appropriately. Fourth, it has taken the lives of more than 374,569 people, as of June 1, 2020. Fifth, it would have a devastating impact on the economy the countries affected by the Coronavirus, and by extension, on the world economy. All of these reasons pose a clear threat to international peace and stability and therefore calls for immediate action by the Security Council. In the next section, the paper seeks to analyze the possible mechanisms that the Security Council could adopt in order to deal with the crisis.

What the Security Council must do

The Security Council must effectively utilize its greatest asset, the ability to coordinate a global response by the member states to combat the effects of the pandemic on the global economy as well as on human health. The Security Council, unlike the WHO, has the ability to coordinate the efforts of different countries and create binding obligations on all member countries to help counter the Coronavirus.

The Security Council, therefore, has the ability to complement the efforts made by the WHO by ensuring that the Member States do not act unilaterally to merely respond to the crisis in their countries, but adopt the more beneficial global approach. The Security Council could, therefore, convert WHO recommendations, in particular those relating to the sharing of scientific information, as well as medical and humanitarian aid amongst countries into binding Security Council resolutions. These resolutions would then become the International Law obligations of the member states, pursuant to Article 25 of the UN charter. They would, therefore, serve as a significant boost to the WHO’s efforts in combating the crisis. Furthermore, the Security Council could provide the impetus for a global coordinating mechanism for Vaccine development in order to boost the efforts made in the field of medical science through multilateral efforts.

The Security Council must also address the implications of the pandemic on the Global Economy. Several economists predict that the Coronavirus would have a devastating impact on the global economy. The Security Council must address these issues through targeted aid, as well as by using coordination mechanisms between countries and the major financial institutions on the global level, such as the World Bank and the IMF. The Security Council is perhaps the only global institution that could coordinate an effective economic response at the moment and must do so immediately, in order to ensure that the global economy is not damaged beyond repair. The Security Council must aim to harmonize national responses, which could include monetary policy, public health interventions as well as stimulus packages in order to address the economic implications of the outbreak.

The Global Response to the Healthcare crisis caused by the coronavirus outbreak stands on the access and availability of healthcare goods that different countries enjoy. These “goods” primarily include masks, trained healthcare workers, protective equipment, ventilators, and in the future, would also include therapeutic treatment and vaccines. Traditionally, access to such goods has been severely inequitable in cases of a global outbreak, with distribution primarily guided by economic and political clout than actual need. This is further exemplified in the case of Intellectual Property rights and vaccines, which often make access to such vaccines to third world countries significantly costlier. This is majorly done at the benefit of the first world, which patents these vaccines and does not allow local companies to create the same vaccine in a cheaper manner in the third world without paying their due for using patented procedures. In the context of this crisis, these healthcare goods are in extremely short supply, with demand rising at unprecedented levels across most countries in the world. The Security Council has the ability to facilitate a global goods coordinating mechanism, through which the production and distribution of such goods could be achieved, in order to ensure equitable access to such goods. This could further engage with Multi-national corporations that participate in the production of such supplies in order to create a mechanism to target areas where these goods are most needed. This would be a significant aid to the states most affected by the crisis, as the UN would help facilitate the routing of these healthcare goods to the countries with the direst needs. Such a mechanism, based on cooperation, could significantly help focus and redirect resources to the most impacted areas, especially those countries that may not be able to afford and produce such goods currently.

Political Implications and Concluding Remarks

The world currently faces a global crisis of an unprecedented level. The United Nations, unlike previous crises, has not been at the forefront of this crisis, which now involves virtually all the countries of the world. At the forefront of this inaction is the conflict between China and the USA regarding responsibility for the Virus, and the role of the WHO. The countries of the European Union are operating as a separate entity altogether. China and Russia are seemingly concerned with their own state apparatus, rather than on a global response. There exists a significant void of consistent political leadership to guide a global response to the crisis. However, as the crisis worsens with every passing day, the hope that countries would come to the realization that a global response is the only way to resolve a crisis of this nature grows stronger. There is still time for the world’s most prominent International Organisation to take action. The paper presents a mechanism that the Security Council could adopt to help diminish the effects of the crisis on the world, both in terms of impacts on health and on the global economy. These emergency measures are in the interests of the world at large and are therefore likely to be adopted by the countries of the Security Council, regardless of their political considerations.

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International Law

Grappling press and Crutching Democracies

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Authors: Saumya Singh and Rajesh Ranjan*

The central tenets of liberal democracy which forms the cornerstone of its provenance, subsist in the Separation of Power among the three organs of the State viz Legislature, Judiciary and, Executive. The democratic system is widely countenanced across the Globe, being predicated on the electorates, who have the authority to elect or defenestrate a political party from the office. The informed opinion, a denouement of Free Press, provides a helm to the electorates to poise democracy and, eschew its dilapidation or debilitation. Being a watchdog, the Press foreshadows the veracity of the functions performed in proportionate tothe functions as asserted by the Government to be performed, thus, holding them answerable and accountable. Thereby, Press is considered a fourth pillar as it typifies Democracy. It acts as an oscillating factor between the two extremes, scilicet the Government and the governed, and makes an endeavor to subdue the state of incommunicado.

Irrespective of the paramount importance of media, it is garroted by mutually contrived attempts in various democratic countries. The Freedom to express and the expressions to be understood are imperiled due to the stinted press; a road to dampened democracy. The Freedom to seek, impart, receive and disseminate information is ostensibly floundering as the autonomous media sector is relegated in some of the most influential democracies. The constant vilification or cracking down of the Press has undermined its paramountcy, autonomy and has rendered it obsequious. The independency of the Press is enthralled within the confines of Confirmation Bias and Filter bubble, puissant factors hidden somewhere within the human psyche. The critical voice of the people, a cherished possession of democracy, is forsaken by the elected leaders.

The Corona pandemic has necessitated the subsistence of free and robust media but the Government has withered it by imposing an aurora of restrictions. Mr. Antonio Guetress, the UN Secretary General, averred that Free Press curbs the pandemic of mis, mal and, disinformation by providing verified, scientific and fact-based news. Antithetical to the view undertaken by the erstwhile, Political leaders being opportunistic are employing the crisis to excoriate Journalism by punishing Journalists, which is a sobering reminder of the threat imposed on democratic liberties. This has been espoused by many leading democracies and autocratic states, as a way of combating permeation of information disorder in the digital milieu. Amid the already ailing and pre-existing vulnerableness, the desperate grapple of the Press Freedom is exacerbated by COVID-19 outbreak. The Country like India has stopped the regular press- briefing, which was meant to inform the Citizens regarding the intricacies of Corona. In the garb of this Humanitarian crisis the World leading democracies has gridlocked the Conduit of information, through direct and indirect means. The trump’s recent executive order to attenuate legal protections to those platform which censors speech for ideological reasons relevels that the leaders’ across the globe are in the quest of embedded journalism.

Flouting Press Freedom across the Globe

Journalism, across the Globe has fallen prey to the concerted acts of the authorities in cracking down on Press Freedom. Journalist are facing physical assault, threat, intimidation calls and are even being criminalized for disseminating any information which is not a friendly and biased propaganda. Journalism is being regulated through exerting financial pressure, co-opting, legislations criminalizing misinformation, fake news and rumor mongering, psychological abuse, sexual harassment and, criminal defamation. The Governments are using the laws at their convenience for harsh reprisal and stamping over Press liberties. Combating fake news can undermine critical journalism, which aids the electorates in the conformation of informed opinion. The report commissioned by UNESCO portends how free press will fall victim to the laws enunciated to curb the rampage spread of fake news. The goal of the authorities is to force media to take a subservient role in democracy by sub serving the Government.

In order to silence the critical media outlets, either the Journalists are being expelled, murdered, framed, assaulted, harassed, imprisoned and are even abducted or the media outlets are shut down and social media sites are blocked. In the specimen, framing charges against Maria Ressa, Uon Chinn and Siddharth Varadarajan, for tax evasion, espionage and reporting on a minister violating lockdown norms, respectively, blocking of Al Jazeera in Bangladesh, bombing the home of Shillong Times Editor, Patrician Mukhim, killing of GauriLankesh, Shujaat Bukhari, Eduardo Dizon, imprisonment of Kishore Chandra Wangkhem and, Li Zehua being missing et all.

In the world’s most populous democracy, India, every attempt has been made to stifle public narratives and to refrain access to information from deadening station’s uplink to blocking news channels. Incumbent Indian government has solicited news executive to publish only ‘positive, optimistic and inspiring stories’ to foreshadow Governments efforts and, has also knocked the doors of SC to direct the media sector to publish only official records. The extent of deterioration of press freedom can be mapped by the murder of a crusading and intrepid Journalist, Gauri Lankesh, in 2017. Modi Government bristles at the accusations of corruption, economic recession, and human rights violations, exacerbation of hate or bias crimes and accretion in white collar crimes. The political acumen of Modi has led to hero-worship by curtailing critical journalism and espousing friendly outlets. The parable of anti- national element to every dissent is a threat to the democracy.  The commitment of current Indian regime to encourage a free and robust media sector and, stamping out Press Freedom by hindering it to inform the public, is oxymoronic. The government endeavors to improve the social cohesion by blemishing it, viz transforming a religiously diverse nation into Hindutva propounders. The mainstream media in India has become a voice of the mandatory and choose to form the narrative which suits the state and incumbent party.

The aristocratic countries, Russia and Hungary, are nailing more power by exploiting access to information in the veneer of battling the unprecedented pandemic. In Russia, if a person or media outlets disseminates fake information about corona virus, can be fined up to €23,000 and imprisonment up to 5 years, in the erstwhile, and a fine of €117,000 in the latter case. Serbia has centralized all the information related to COVID-19 crisis. Other European nations with exiguous media freedom, Romania and Bulgaria, are introducing emergency decrees by enacting and amending laws to control public narratives, to report or shut down the websites spreading fake news sans the right to appeal, to ban publishing or broadcast of any personal opinion, to extend the time limit to answer Freedom of Information requests and, to penalize the spread of fake news.

The modus operandi of the elected leaders in recourse with the fundamental right of access to information has opened a Pandora box. Democracy is built on the Citizen’s access to information and the use of the information to make democracy participative in nature.  The virus has sparked the debate on not only on the future of globalization but also on the democracy, rights of the people, nature of the state and the most significantly the morrow of the nature of  relationship between the State and its citizens. The tamed Citizen, the surveilling state, and deprived masses are redefining the global democracy and posing the question of its existence.  The changing face of information and increasing information warfare, and the elected authoritarian leaders will decide the integrity and resilient nature of Constitutional democracies. 

*Rajesh Ranjanis2nd year law student at NLU Jodhpur and Founding editor at Socio -legal -literary.

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