Fostering Civil Military Relations :: Part 2
- A Legal Perspective -

Laishram Malem Mangal *

All peoples have a right to self determination. The right to self determination is a long cherished collective right which has accommodated the legitimate aspirations of many peoples who were formerly under colonial and subjugated situations. The foundation of the Indian freedom struggle against the colonial, alien and racist British regime was also laid on the premises of this universal principle.

The UN Charter, UDHR, Declaration on the Principles of International Law concerning Friendly relations and Co-operation among States, ICCPR, ICESCR, among other international instruments recognizes and guarantees the right of self determination. Article 1 (2) of the UN Charter and Article 1 common to both ICCPR and ICESCR provides : "All peoples have a right of self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."

Peoples under colonial and racist regimes or other forms of alien domination have a right to struggle to that end ie to achieve freedom and independence and also the right to seek and receive support, in accordance with the principles of the Charter and in conformity with the Declaration on the Principles of International Law concerning Friendly Relations and Cooperation among States.

The General Assembly Resolution 1514 (XV) of 14th December, 1960 which adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples formally inaugurated the de-colonisation process under the United Nations regime. The Declaration enunciated the principle of self determination as a right of peoples, and its application for the purpose of bringing all colonial situations to a speedy end. Through this resolution, the General Assembly proclaims the necessity of bringing to a speedy and unconditional end of colonialism in all forms and manifestations.

The urgent appeal made to the international community to take steps to bring an end to colonialism immediately is significant in the context of peoples who are still struggling against alien domination and racist regimes and who are yet to exercise their right to self determination. Thus, to this end, the resolution provides under para 5, inter alia: "Immediate steps shall be taken in Trust and non-Self Governing Territories or all other territories, without any conditions, or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom. Any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the UN".

The ICJ in Western Sahara case (reported in 1975) stated that the application of the right of self determination requires a free and genuine expression of the will of the peoples concerned. The ICJ in the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, 1970, with reference to the non-self governing territories stated : "A further important stage in this development was the Declaration on the Granting of Independence to Colonial Countries and Peoples which embraces all peoples and territories which "have not yet attained independence."

Third Issue : International Humanitarian Law

The armed confrontation between groups representing the NLM and armed forces of the Indian State necessitates the application of the rules of law relating to conduct of hostilities. Both the parties to the conflict are under an obligation to comply with certain rules of warfare. These rules are mandatory in character and are not permissible to derogate from under any circumstances. Since the conflict is taking place between groups representing NLM and a High Contracting State Party, the provisions of the Geneva Conventions and Protocol I are applicable in Manipur.

Article 1 (4) of 1977 Protocol I provides : "The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations."

Thus, the armed conflictbetween(sic Manipur-India) groups representing NLM and a High Contracting State Partyfalls under the ambit of Protocol I and hence, both the parties to the conflict are bound by its humanitarian provisions. India being a party to the Four Geneva Conventions and by virtue of the enactment of the Geneva Conventions Act, 1960 international humanitarian law (IHL hereafter) is applicable to its armed forces engaged in the armed conflict in Manipur.Human rights violations taking place as a consequence of the conflict cannot be justified as 'abberations'.

Indian armed forces are under serious legal obligations to ensure respect for IHL and human rights law bothunder international and constitutional rule of law. More specifically, Articles 20 and 21 of the Constitution of India constitutes norm of jus cogens which must be respected at any circumstances.

Armed non-state entities representing NLM are under serious legal obligations arising out of IHL. When these groups pursue their struggle in exercise of right of self determination under principles of international law, their accountability and responsibility is inescapable. The intention and willingness to adhere to the provisions of Geneva Conventions and its Protocols by groups representing NLM can be done by making a unilateral declaration.

For instance, FLN (Nigeria) declared its intention to apply and to be bound by the Geneva Conventions law in 1956 and1958, PLO (Palestine) in 1969, ANC and SWAPO (Africa) in 1980 and 1981 respectively and RPF (Manipur) in 1997. Thus, Article 96 (3) provides:

"The authority representing a people engaged against a High Contracting Party in an armed conflict of the type referred to in Article 1, paragraph 4, may undertake to apply the Conventions and this Protocol in relation to that conflict by means of a declaration addressed to the depositary (Swiss Federation). Such declaration shall upon its receipt by the depositary, have in relation to that conflict the following effects:

(a) the Convention and this Protocol are brought into force for the said authority as a Party to the conflict with immediate effect;

(b) the said authority (sic groups representing NLM) assumes the same rights and obligations as those which have been assumed by a High Contracting Party(sic India) to the Conventions and this Protocol; and

(c) the Conventions and this Protocol are equally binding upon all Parties (sic groups representing NLM and Indian State ) to the conflict.

NLMs will be met with obstacles to their accession to the Geneva Conventions, however, that does not stop them from declaring their intention to apply and be bound by these Conventions (Neolle Higgins: 2004). Groups representing NLM and struggling for self determination are obliged to make such a declaration under Article 96 (3) of Protocol I.

The UN General Assembly has called for application of the Geneva Conventions to wars of NLM for e.g. Resolution 3103 (XXVIII) of 1973. However, the provisions of IHL particularly common Article 3 is applicable in conflict situations such Manipur-India conflcit, immaterial of the fact that whether the parties to the conflict have made declaration to that effect. For the conventions on IHL have attained the status of customary international law (ICJ in Nicaragua v. USA, 1986).

The much familiar Common Article 3 of the Four Geneva Conventions is a norm of jus cogens which no party to a conflict can derogate from. The parties are under a legal obligation to comply with the principles of this universal principle. This principle which lays down minimum basic rules of warfare or IHL obliges both the parties,among others, not to attack civilian persons, non-combatants, horse de combat, prisoners of war, without any distinction as to race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. It absolutely prohibits:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

The peremptory character of Article 3 implies that the parties to a conflict whether, international or non-international, are duty bound to comply with the basic requirements laid down therein immaterial of the fact that whether the parties to the conflict have ratified or otherwise become party to the Geneva Conventions. It is because the norm of Common Article 3 and the conventions on IHL has attained the status of customary international law (ICJ in Nicaragua v. USA, 1986).

The necessity to comply with certain basic humanitarian law is very serious and the violators are accountable and liable for prosecution. More so when the concept of individual criminal responsibility has been successfully established as to warrant prosecution for international crimes after the coming into force of the Rome Statute and functioning of the International Criminal Court since 2002. It implies without hesitation that all and every member of the armed force(s) or combatant(s) taking part in a conflict, whether fighting as a member of the NLM or of the State armed forces are liable for prosecution for their individual acts. Superior order is no more an excuse to avoid individual criminal responsibility.

The combatants of the NLMs are lawful combatants under the Geneva Conventions law. "If States treat NLM combatants as lawful, then necessarily the protection for civilian population is increased legally, more extensive restriction on the methods and means of warfare and thus, much greater humanitarian protection for all those embroiled in the armed conflict".

Thus, when State regulates and applies international humanitarian law in a conflict situation and treats NLM combatants accordingly, the protection for non-combatants, unarmed persons and civilians also increases. This is one way which humanitarian objectives of the IHL can be achieved.

In such a situation, the whole conflict landscape is regulated under the IHL, and the central objective of the IHL ie protection of the unarmed, civilians and the non-combatants, hors de combats, etc is best ensured. IHL does not in any way question or consider the justness or justification of the conflict which is taking place, its sole objective is the protection of humanity from the consequences of brute force (Hans Peter Gazzer: 1993). It does not have any interest in the prevailing conflict. Its mandate is the protection of the defenseless humanity only.

The whole exercise of civic-military programme is beyond the mandate of the armed forces. It is very political in nature. Therefore, without addressing these realities to discuss about fostering relations between the military and civilians would be a futile exercise. Rules of law emanating from International law and (Indian) constitutional law do not provide for any provision which says there should be a relationship between the military and civilians. It is an extra constitutional exercise which is not guaranteed by law.

Concluded......