Fostering Civil Military Relations :: Part 1
- A Legal Perspective -

Laishram Malem Mangal *

The abject failure of the military approach (Jeevan Reddy Committee Report: 2005) adopted by the Indian State to combat the armed movement in Manipur might have propelled the holding of the Seminar on Fostering Civil – Military Relations at the Manipur University in January this year. The event which was composed of Univer-siti-zens– Military –civilians hardly takes place in any part of the intensely militarized globe. The theme of the Seminar and tempo that was current inside the Centenary Hall on that day presented one of the most vivid scenarios which Manipur has been experiencing as a conflict ridden State since its annexation to India in 1949.

Certain core issues which should have been entailed though unaddressed in the rare military-civil event are pertinent to discuss in the context of the prevailing Manipur - India conflict. The political agendas and strategies of the parties involved in a conflict may subjectively vary, certain rules of conduct which the parties therein are bound to comply are however, mandatory and universal. The Seminar had successfully garnered sufficient critiques. Though, to discriminate the legal and political issues involved in such a deliberation is unscientific, the article attempts to examine the milieu from a legal perspective.

First Issue: Annexation

Serial number 19 of the First Schedule under the category of "The States" of the Constitution of India defines Manipur thus: "The territory (sic. Manipur) which immediately before the commencement of this Constitution (Sic. of Indian State) was being administered as if it were a Chief Commissioner's Province under the name of Manipur". It has re–affirmed the historical fact that Manipur State existed or preceded the Union of India. It is testimonial to the existence of an independent and sovereign State of Manipur before the notion of India was ever imagined or shaped.

'Manipur was not a kingdom with a national character'. A kingdom with a national character is not recognised under international law. Such entities do not have the capacity to enter into agreements and treaties such as the 1762 Anglo–Manipuri Treaty. Both the parties to the Treaty of Yandaboo which was concluded following the end of Burmese occupation recognized the independent and sovereign status of Manipur. Thus, the independent and sovereign status of Manipur is legally confirmed by these two international instruments. The international status of pre–1949 Manipur must be determined in accordance with historical records and principles of international jurisprudence.

The 1949 Merger Agreement (21st Sept.) with India was declared as an'Annexation' by a resolution of the People's Democratic Movement in 1995 (PDM: 1995). The legal principles which help to conclude the act as annexation is worth revisiting.

The Vienna Convention on the Law of Treaties, 1969 invalidates a treaty which has been concluded by threat or use of force by one party to forcibly obtain the consent of the other party. Article 51 of the 1969 Vienna Treaty Law provides that the expression of the State's consent to be bound by treaty which has been procured by the coercion of its representatives through acts or threats directed against him shall be without any legal effect.

Article 52 further provides: A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. The International Court of Justice in the Fisheries Jurisdiction case (reported in 1973) had among others, stated that a treaty concluded under threat or use of force is void. The principle that territorial acquisition resulting from threat or use of force is illegal was also reaffirmed by the ICJ in the Construction of a Wall in Occupied Palestinian Territory (decided on July 9, 2004 and Construction of Wall case hereafter). International law disqualifies the illegal occupation of the territory of Manipur by India consequent to the 1949 void treaty.

The International Court of Justice in the Construction of Wall case had stated that annexation of a territory by use of force is violation of the legal principle prohibiting the acquisition of territory by (use of) force and it interferes with the territorial sovereignty of the annexed State. It is a clear violation of the principles of international law particularly the principle of non–use of force. Article 2 (4) of the United Nations Charter law prohibits threat or use of force against the territorial integrity or political independence of States, or in any other manner inconsistent with the Purposes of the United Nations.

The principle of non-use of force enshrined in Article 2 (4) of the UN Charter, among others, has attained the status of international customary law or the peremptory norm of jus cogens. Exceptions to this rule are the rights of self defence; and self determination by peoples against colonial, alien and racist regimes.

Forcible or non-ratified annexation and subsequent usurpation of power by military occupation amounts to aggression. Aggression is an international crime against peace. Article 1 of the Definition of Aggression adopted by the General Assembly of the United Nations in Resolution 3314 (XXIX), 14th December, 1974 provides : "Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition".

When a State is annexed forcibly against the free will of the annexed State by threat or use of force or in any other manner inconsistent with the Charter of the United Nations such act amounts to aggression. Aggression is an act which is prohibited under the rules of international law. Article 2 of the Aggression definition further says that the first use of armed force by a State in contravention of the (UN) Charter shall constitute prima facie evidence of an act of aggression. Military occupation resulting from annexation constitutes aggression. Thus, Article 3 provides, among others : Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of Article 2, qualify as an act of aggression :

(a) the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof.

Article 5 (1) says that there is not any justification for aggression. Article 5 (2) declares aggression as a crime against international peace. Aggression gives rise to international responsibility. Article 5 (3) qualifies any territorial acquisition resulting from an aggression as unlawful and thus, without legal validity. The Nuremberg Military Tribunal has characterised the crime of aggression as the supreme international crime which contains within itself the accumulated evil of the whole (Donald M. Ferencz: 2009).

Thus, by the yardsticks provided under the international law regime, the Indian State had committed, in 1949 the twin international crimes of annexation and aggression against the territorial integrity and political independence of the State of Manipur in violation of the universal principle of non-use of force. Though the episode has been suppressed, unsettled, by geo-politico and military agendas, the regime of the international rule of law has an overdue assignment concerning these international crimes in regard to the struggling peoples of Manipur.

If, in the Seminar, the annexation of Manipur by India was discussed as the subject-matter and the root cause of the turbulence which the State has been going through since 1949, it would have been a landmark event towards bringing down tensions in Manipur-India relations. Holding of such an event with people's participation is historically overdue to Manipur.

Second Issue : International Conflict

Historical records substantiate the fact that the annexation of Manipur triggered off the national liberation movement (NLM hereafter). When the rebellious forces of the erstwhile independent State of Manipur campaign an armed movement against the colonial, alien and racist rule of the Indian State, the conflict that ensues between is one of international character rather than a simple internal law and order problem.

The provisions of Protocol I Additional to the Four Geneva Conventions of 1949 have reinforced the international position of liberation movements. Where an armed non-state entity representing NLM declared its intention and acceptance to adhere to the provisions of Article 3 common to the Four Geneva Conventions, 1949 it corroborates the existence of an international armed conflict (RPF: www.oocities.org/capitolhill/congress/4568/documents/main_d.html.)

The conflict situations carry the unmistakable stamp of international issues which affect the peace and security of the world. The conflicts in the peripheral States (sic Manipur) assume the international character (Sanajaoba: 2000).

Armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self determination are under the 1997 Protocol I of the Geneva Conventions, assimilated to international armed conflicts, although they might otherwise appear to be essentially civil wars (Oppenheim: 2003).

Higgins argues that armed conflict implies a certain level of intensity going beyond isolated acts of violence. The armed struggle for self determination, for freedom from colonial domination, from alien occupation and from racist regimes, which had been developing in political legitimacy over the years through the adoption of various resolutions by the UN and by other regional organisations, was finally legally recognised as a conflict of an international character. It was a victory in political terms for the oppressed over the oppressors (Neolle Higgins : 2004).

The use of force to suppress and deny a people to exercise their right of self determination through NLM is prohibited by international law. The right of NLM to use force in exercise of this right is legitimate and guaranteed under the principles of international law and the UN system. However, the methods and means to adopt the use of force by the NLMs are limited. The whole corpus of jus in bello comes into play in the international conflict between groups (sic RPF, UNLF) representing NLM and High Contracting State Party (sic India).

The special rights, obligations and status of NLMs are by virtue of the universal principle of right of self determination. The right of self determination being pursued by groups representing NLM has been confirmed and legitimised a step further when the ICJ declared that it is today a right ergaomnes (Construction of Wall case).

To be continued......