Revisiting the Armed Forces Special Powers Act, 1958
- Part 4 -
Laishram Malem Mangal *
(d)AFSPA and International Humanitarian Law
International humanitarian law also called the law of the armed conflict and previously known as the law of war – is a special branch of law governing situations of armed conflict or in a word – war.
Its objective is to protect the human being and to safeguard the dignity of man in extreme situations of war. They are bound to an ideal: the protection of man from the consequences of brute force.
The duty to respect the individual takes on special significance when the perpetrator of the violence is the state.[37]
The Four Geneva Conventions of 12th August 1949 along with the 2 Additional Protocols constitute the international humanitarian law.[38] As set forth in Common Article 2 of the Four Geneva Conventions "the present conventions shall apply in all cases of declared war or of any other armed conflict which may arise between 2 or more of the high contracting parties, even if the state of war is not recognized by one of them".
If there is an armed conflict between 2 or more states, international humanitarian law is automatically applicable, whether or not a declaration of war has been made and immaterial of whether the parties to the conflict have recognized the existence of war.
Hans-Peter Gasser writes – the only thing required for international humanitarian law to be applicable is the circumstance of an armed conflict. "Armed conflict" under Common Art.3 of the Four Geneva Conventions includes 'non-international armed conflicts, i.e. a confrontation not between states but between the Government and a rebel movement.[39]
Therefore, the prevailing situation in the north east automatically come within the purview of international humanitarian law. Killing of civilians and suspected persons under AFSPA is strictly prohibited at all times even in war and this is an established principle of international law.
Common Art.3 of the Four Geneva Conventions 1949 and the 2 Additional Protocols stipulates for the protection of life (and property) of civilians, hors de combat as non-derogable. 'The International Court of Justice has endorsed this right (to life of civilians) as Jus Cogens – absolutely binding international law in its judgment dated, 27th June, 1986 (Nicaragua v.USA, 1986)[40]
Violation of Common Art.3 of the Four Geneva Conventions under AFSPA by the Government of India is in contradiction to its obligation under Art.51( c ) of the Constitution which provides to foster respect for international law and treaty obligations in the dealings of organized people with one another.[41]
Beside the rule of Jus Cogens or peremptory norm of general international law, India has statutory obligations by virtue of the enactment of the Geneva Conventions Act, 1961.[42]
India cannot derogate from international humanitarian law for it has been accepted as the peremptory norm of Jus Cogens.[43]
Conventions on international humanitarian law have acquired the status of customary international law by ICJ's advisory opinion in 1996.[44]
So, ratification or vice-versa is not an issue, no state can derogate from the international humanitarian law – principle of Jus Cogens.[45]
To be continued.....
Authors Notes:
This is a paper presented at the Human Rights Day, 10th December, 2008 organized by the LMS Law College, Imphal on the theme "Human Rights, Law and Society". The topic of my paper is Revisiting the Armed Forces Special Powers Act, 1958.
* Laishram Malem Mangal is a student at LMS Law College, Imphal and contributes to e-pao.net for the first time. The writer can be contacted at malem(dot)mangal(at)gmail(dot)com
This article was webcasted on July 30th, 2009.
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