From the archive, 1998

LIC AND INTERNATIONAL LAW

 

Public International Law is a rudimentary body of law  governing,

to  a limited extent, relations between the constituent  elements

of the international system, that include, primarily, states  and 

supra-national  bodies. With respect to armed conflict,  the  two

streams of international law  are jus-ad-bellum and jus-in-bello.  
 

 

The threat or use of force in international relations is  covered

by jus-ad bellum - law with regard to  initiation of inter  state

armed  conflict, and is subsumed in international  constitutional

law.   It is jus-in bello  that covers the actual application  of

violence  in armed conflict - that is central to the  subject  of

discussion  here. It comprises the Law of Armed  Conflict,  which 

is  international  customary and treaty law  with regard  to  the

application of force in armed conflict.
 

 

Jus-in-bello has had two streams of input- the Geneva Law and the

Hague  law.  Geneva law deals with protection  of  non-combatants

and  combatants placed hors-de-combat.  Hague Law deals with  the

regulations  of  means and methods  application  of  force.   To­

gether these are alternatively called international  humanitarian

law or Law of Armed Conflict.
 

 

Another  body of law, International Human Rights Law, deals  with

the  standards  and regulation of human rights that  states  have

pledged  to foster and maintain with respect to their  citizenry,

as  part  of  their international obligation as  members  of  the

state-centric world order.  Law of Armed Conflict enters into the

picture  with regard to this body of law when these are  effected

by  prevalence  of  internal armed conflict, for  it  deals  with

protection of victims of armed conflict. 
That being a theoretical prelude, a closer look at the confluence
 

of human rights law and humanitarian law is in order. The aim  is

to  study the relationship of Law of Armed Conflict and  Low  In­

tensity  Conflict (LIC).  Having been briefly introduced  to  the

scope of the law of armed conflict, a definitional exercise  with

regard  to  LIC  is required to complete the frame  work  of  the

discussion.   This is followed by a sequential reflection on  the

relationship   of  LIC with international  constitutional,  human

rights, and humanitarian law.
 

LIC
 

 

LIC  is  an American term denoting a low level of  intensity  and

scope  of operations, eg.  US intervention in Grenada ;  the  em­

ployment of  UNITAF as part of UNOSOM; and the post-Dayton  I-FOR

in the Balkans.  In its adaptation to our situation, LIC  implies

politico-military   action to stabilise and reverse a  discordant

internal  security situation.  Whereas, the original  term  could

have been applicable to the situation in Siachen, our  adaptation

of  makes it subsume within it both counter-insurgency and  proxy

war,  while excluding military action along the Line  of  Control

(LC)  and  Line  of Actual Control (LAC).
 

 

In passing it may be mentioned that ours is possibly a corruption

of  Kitson's term Low Intensity Operations, for the inclusion  of

`Conflict' in our terminology implies one between the state and a

portion  of its society- the acceptence of which for a  fact,  as

our usage of the term LIC does, is not politically prudent. 
 

 

LIC  is essentially  an internal security issue,  albeit  (though

not  necessarily so) one in which there is an external source  of

sustenance.   Since human rights are in the domain of a  states's

relationship  with its citizenry as defined by  its  constitution
 

and  promulgated  laws, it is a state  responsibility  to  ensure

preservation  of the same in the conditions obtaining in the  LIC

extant in the area.
 

 

LIC and Human Rights Law
 

 

Firstly,  in so far as the state has bound itself through  treaty

obligation  to  respect human rights, external  interest  in  the

state fulfilling its erga-omnes obligation is explicable.   Thus,

the periodic submission by the states at Geneva based UN  Commis­

sion on Human Rights  on their human rights record is unexceptio­

nable.
 

 

The International Covenants on Human Rights  (on Civil and Polit­

ical   Rights; and Economic, Social and Cultural Rights  (1966));

the UN Charter Article 55 (c) on human rights;  and, the  Univer­

sal  Declaration  on Human Rights (1948) are  binding  as  either

customary  and treaty law.  India has translated these  into  na­

tional law in the form of Fundamental Rights, that are  suspenda­

ble in Emergency ; Directive Principles, that are non-judiciable;

and,  the  protection of Human Rights Act of 1993 ,  that  estab­

lished the National Commission on Human Rights.
 

 

Of interest here, is the ascendance of trans-nationalism as  evi­

denced  by  the self-appropriated supervisory role of  state  be­

havior in relation to human rights by NGOs.  Next, is the politi­

cal use of international  fora by inimical neighbors.  While  the

latter requires a  political answer, the former has to be  appre­

ciated in  the context of the `global village'.  To admit to this

is not to imply that politicization of trans-national  forces  is

being ignored; nor that the debate over priorisation between  the

Third  World's defense of `third generation' rights, such as  the

right  to development, versus the West's concern with the  `first

generation'  civil  and political rights, is  to  be  diluted.
 

 

The trend is also indicative of the CNN connection between  areas

of  domestic strife and donor drawing rooms, as also  of  respon­

siveness of the western governments to the power of their  elect­

orates,  especially  in election years.  This  trend  is  however

subject to donor fatigue through psychic numbing, and the strate­

gic  concerns of the West that, for instance, prioritise  `white'

Balkans over `black' Africa.
 

 

In  this decade there has been increasing resort to  humanitarian

intervention under the binding Chapter VII, given UN responsibil­

ity  as  per  Articles 1:3 and 56 (eg.  Somalia,  Haiti,  Kurdish

Iraq).  At regional level too this has been done under the  guise

of peacekeeping (eg. ECOMOG), in keeping with UN Charter Articles

53, 54 and 56 and existing regional arrangements.  Thus there  is

an expansion of the legal basis and precedent for external inter­

est  in  human  rights issues, under the pretext  of  spill  over

across borders to threaten international peace and security.
 

 

LIC and Jus-ad-bellum
 

 

In  this  connection is the question of ` Proxy  War'.    In  the

Nicaragua  Case  (1986), the International Court of  Justice  has

pronounced  that  a  state may be deemed an  aggressor  when  its

intervention is of the order of an `armed attack'. However polit­

ical,  moral  and material support for a non-state party  to  the

conflict  is intervention in internal affairs and is contrary  to

the  non-intervention  principle,  that  has  jus-cogens  status. 

Where  intervention is deemed of the level of an `armed  attack',

the self-defense doctrine (the sole option for use of violence in

inter-state affairs open to states in the Charter era (Article 51)) becomes operative.   Even

in  this  case  the principal of  proportionality  and  necessity

applies. 
 

 

The  conundrum is that,  short of this, and in the event of  hos­

tilities,  the  Security Council is entitled to  intervene  under

Chapter  VI  (non-military) and VII (military means)  of  the  UN

Charter.  The last remaining option of reprisal  as response  has

been ruled out by the UN Charter.  The problem therefore is  that

`proxy war' below a certain threshold is not subject to  military

response  externally. Another problem is that this  armed  attack

requires to be against the political independence and territorial

integrity  of a state (Article 2:4) to trigger  the  self-defense

measures.
 

 

Taking the case of Kashmir, its locus-standi furnishes Pakistan a

loophole,  in  that, its action is  against  neither  territorial

integrity (as seen from its perspective), nor political  indepen­

dence of India. Though the level of intervention is of the  order

of  an `armed attack' (as evident from the published  figures  of

casualties  and recovery of war-like material enough  to  provoke  

the  resort to force in self-defense), it is not deemed a  viable

option.  Given the partially indigeneous roots of the problem; of

the  economic imperative against `war'; and, fear  of  consequent

internationalisation,  India is constrained to pursue  LIC  there

to its logical conclusion.
 

 

LIC and Humanitarian Law (Jus-in- bello)
 

 

In LIC, the environment is such that human rights of the inhabit­

ants  are  imposed upon, under the  utilitarian  principle.   The

state  grants extra-ordinary power to the security forces,  given

the extra-ordinary threats to stability obtaining in such sce‑
 

narios.   In  India,  these have at various  times  included  the

region-specific Armed Forces  Special Powers Acts, the  Emergency

powers, TADA,the MISA,  the Disturbed Areas Acts etc . The premi­

um on good faith in abiding by the in-house `Do's and Dont's' and

the  principles of impartiality, minimum force, good  faith,  and

no-reprisals  gets strained, given organisational, personal,  and

philosophical  inadequacies  in approach and action.   While  the

strategic  and  political  need for protection  of  human  rights

exists,  it  is tempered by the more fundamental  requirement  of

restoring  state  authority, legitimacy  and  penetration.   (The

requirement  spelt out by the CM to the  Police  Commissioner  of

Mumbai  in the film `Satya' is interesting example).  Given  this

scenario  protection  of the hard-core  non-derogable  rights  of

right  to life, prohibition of torture, slavery and  retro-active

punishment, becomes both necessary and difficult.
 

 

How does international humanitarian law impinge on this seemingly

domestic issue? The development of both Hague Law (limitations on

warfare) and Geneva Law (protection of the defenseless) has  been

in  an inter-state context.  However, the evolution of Hague  Law

that deals with protection of cultural property (1954),  biologi­

cal weapons (1972), chemical weapons (1993), excessively  injuri­

ous  conventional  weapons  (1981),  environmental   modification

techniques  (1977),  mines  (1997), the establishment  of  a  War

Crimes court (1998) etc, also bears on internal armed conflict.
 

 

The   Geneva  Conventions (1949) Common  Article   3,  stipulates

protection  in  terms  of violence to life  and  person,  hostage

taking,  outrages on personal dignity, extra-judicial  sentences,

and medical care for those not taking active part in  hostilities

and protection of members armed
 

forces placed hors-de-combat.  Its applicability is in non-inter­

national armed conflict, and covers all parties to the  conflict. 

The International Committee of the Red Cross is empowered  (Arti­

cle  3, Para 2) to offer its services to the parties to the  con­

flict  to ensure protection of civilian and military  victims  of

the conflict, without prejudice to the status or position of  any

party.  Therein is its applicability to LIC.
 

 

Common  Article 3 has been supplemented by Additional Protocol II

(1977) in order to adapt the laws of war to conditions of contem­

porary hostilities.  The Protocol has applicability only in  non-

international  armed  conflict between a state  party  and  armed

groups  that  are under responsible command and  exercise  enough

control  over territory to enable them to carry out sustained and

concerted military operations, while being able to implement  the

provisions  of the Protocol.  Clearly, this is a highly  restric­

tive  scope,  yet,  despite the  guarantee  of  non-intervention,

states, including India, are not party to it, thereby denying  it

customary  law  status.  The innovative provision  of  illegality

terrorist acts (Article 123)  thus gets neglected.
 

 

India in not signing the Additional Protocols wishes to  preserve

its  internal sovereignity; stands by its domestic criminal  jus­

tice system as adequate to cope with incidental transgression  of

human rights that occur; considers its constitution, legislation,

and organisational (eg. NHRC) measures as appropriate to  protect

human  rights  and humanitarian issues even in such adverse  cir­

cumstances.  In short, similar to its stand on the non-prolifera­

tion  treaty (NPT), it does not have to sign the treaty to  abide

by  its  tenets.  It is also wary of the  instrumental  political

leverage  of  the human rights issue in its  relations  with  the

West,  and  does not wish to give these states another  point  of  

accountability   to  pressurise  it  over  its   vuluerabilities. 

Another  facet  of this is the  felt need to  forward  the  Third

World position in a global agenda apparently appropriated by  the

West, that includes issues of human rights.  Lastly,   unacknowl­

edged,   is  its sensitivity to its own indequacies in  terms  of

soft-ware  and  hard-ware  as a developing state  encompassing  a

turbulent society.
 

[1]Conclusion[1]
 

This  introductory  essay to international law has  used  LIC  to

situate international human rights and humanitarian law for three

reasons.   The first is that LIC is a familiar phenomenon to  us,

and, secondly, it is at the confluence of human rights and human­

itarian law.  The  latter owes to human rights being imposed upon

by the exigencies of armed conflict, and the necessity to protect

the  victims  of the same through implementing  humanitarian  law

therein.  Lastly, is that in the army there is a  legalistic  ap­

proach to understanding human rights issues, which detracts  from

taking  a holistic view of the issue. This article was an  effort

at stimulating self-study towards the latter.
 

 

There has been, over the past decade, a concerted trend of expan­

sion  in international awareness of humanitarian law,  which  has

impacted on India in terms of pressure - given the coincidence of

its economic liberalisation with the onset of a critical internal

security  situation in its geographical periphery.  Consequently,

and  as  a  measure of the maturity of  its  internal  regulatory

mechanisms, there has been societal interest in the human  rights

issues  in such areas. While these have been responded to  appro­

priately  by  both the government and the military,  there  is  a

scope  of improvement in terms of living up to the  standards  of
 

 

 

moral authority of our civilisation, of the expectations of us as

a nation, and the respect that our military commands.
 

Select Reading
 

 

1 Walzer,  M, `Just and Unjust Wars'; New  Yark,  1977.
 

2 Best, G, `Humanity in Warfare ; London, 1980.
 

3 Introduction  to International Humanitarian Law,  ICRC,  New

Delhi, 1997.
 

4 Kalshoven, F, `Constraints on Waging of War'; ICRC, 1992.