Mritunjay Pathak, a Fifth Year, B.A. LL.B (Hons.) at Maharashtra National Law University, Nagpur, India, discusses the possibility of classifying India's Naxalism Insurgent Movement as a Non-International Armed Conflict under International Humanitarian Law...
Recently, on 22 July 2020, there was an exchange of fire between Naxals and police at Korchi in Gadchiroli district of Maharashtra, which is referred to by Maoists as the ‘Liberated Zone’, drawing our attention once again to the insurgency brewing in Central and Eastern India since 1967. Naxalism, also branded as the People’s War, started as a movement to uplift the downtrodden and oppressed people belonging to tribal communities, however, over the time, it has gradually evolved its shape and ideology and is now facilitating the capture of state power through terror and preaches violence against the ruling classes. Interestingly, as per the Indian government, the insurgency in the ‘Red Corridor’, a considerable portion of the Indian territory, is the “biggest internal security challenge”. The government is maneuvering shrewdly from the implications it would have had if we identify the insurrection as a “protracted armed conflict” as per the laws of war. The government is trying to salvage its global reputation and discard its obligations under the Geneva Conventions of 1949 (GCs) and customary international law principles.
In this article, the author has attempted to discuss and debate that the Naxal insurgency, which has led to thousands of deaths and a considerable amount of other causalities, in the last four decades, is not an ‘internal security threat’. Instead, the insurgency constitutes a Non-International Armed Conflict (NIAC) under International Humanitarian Law (IHL).
In the case of Prosecutor v. Dusko Tadic, the ICTY Tribunal observed that an armed conflict is a “resort to armed forces between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. In other words, NIACs are armed conflicts in which at least one party is not a state. Furthermore, it is widely accepted that NIACs, in the light of Common Article 3, which draws a rudimentary framework of the responsibilities of the parties during NIACs, also include those incidents of war where non-state armed groups are fighting against each other and there is no state involvement. In order to differentiate an armed conflict from less severe types of violence, such as internal disturbances and protests, the situation must reach some level of threshold of the confrontation. The following section of the article addresses the two determining factors for establishing the threshold for an armed conflict to qualify as a NIAC.
For the Maoists insurgency to be qualified as a NIAC, it has to meet the two criteria required i.e., some degree of organization among Maoists and intensity of violence. The Naxalite movement, concentrated in CPI (Maoist), is highly hierarchical and centralized. It has a Central Committee (which controls all the operations) and other Subordinate Committees along with Revolutionary People’s Committee (also known as people’s government). By 2003, the Revolutionary People’s Committee has had influence over 2000 villages. Moreover, Central Committee sets agendas and exert control over Central Military Commission that is responsible for coordinating the People’s Liberation Guerrilla Army (PLGA), an armed wing which is said to contain 25,000 soldiers or above. According to various social science experts, discipline is maintained within the ranks of PLGA by punishing those who do not obey orders. Furthermore, they are focused on using military power as a means to establish an independent state and over 12,000 people have been killed in the past 20 years.
The Indian government, with support from various state governments, has deployed its police and paramilitary forces since the beginning of the conflict in response to the Naxalites. There was a state-sponsored militia, Salwa Judum (aka an armed civilian vigilante group) to wage a brutal war against Maoists. Additionally, in 2009, the CRPF began a large scale operation against the Naxalites, which was called by media as the “Operation Green Hunt”, and 84,000 CRPF personnel supposedly have been deployed in Naxalism-infected regions. Indian military denies its direct involvement, nevertheless, the military has been training paramilitary forces and police and may also be involved in counter-insurgency missions. Naxalites display their organizational skills and hierarchical system quite palpably along with the ability to organize armed attacks, plan activities, and project control over a vast territory. As far as the intensity criteria is concerned, more than 50,000 people have been displaced due to the war and the military is believed to be involved in providing weapons and offering training. Talking about the territorial occupation, the ‘Red Corridor’ area extends to over eight states or more including Maharashtra and Telangana. Also, this conflict has led to the killings of 2700 security forces personnel so far. Reading all of the above points holistically suggests that the Maoist insurgency is a NIAC, as all conditions have been effectively met and the humanitarian law is invoked. This suggests that India is struggling to protect the life of its people (civilians) in conflict-stricken stretches.
The IHL rules were formulated with the goal of balancing military needs and respect for humanity. However, it appears that the Indian Government is not in a position to appreciate the same and has waived its commitments by not ratifying the Additional Protocol II (AP). However, Common Article 3 and also the principles of customary international law remain applicable. Before discussing the implications, the author would like to discuss the reasons for India not to ratify the AP-II. Firstly, the Indian government reasoned that the protocol has a high threshold of application and was not embracing the new category of armed conflict i.e., NIAC per se and Secondly, it felt that there is no need for a separate protocol for NIAC because victims of all the armed conflicts have the right to the same protection, whether international or non-International. Honestly speaking, the above-mentioned contentions are not persuasive and show the reluctance of the Indian government to not be tied up with the obvious responsibilities that the ratification of AP-II would have placed.
Speaking of the Geneva Convention Act of 1960, it failed to protect the victims of armed conflict. The apex court in the case of Rev. Mons Sebastiao Fransisco Xavier Dos Remedios Monterio v. The State of Goa observed that this act does not confer any special remedy but merely indirect protection by providing for the breaches of the convention and it is not enforceable against the government.
Firstly, classifying a conflict as a NIAC and putting it under the ambit of IHL places restrictions on the actions of all the parties to the conflict. Secondly, the Naxalites would be subject to international norms and so will be the Indian government. Both of them can be prosecuted for their violent movements against each other. Thirdly, under the customary principle of human treatment, obligations like prohibitions on collective punishments, prohibitions on violence to life and person, and the prohibition on outraging dignity of individuals will flow. Lastly, IHL obliges parties to follow the “principle of distinction” and civilians will enjoy general protection.
India’s Maoists have been fighting for decades, claiming to represent the grievances of tribal peoples who are still not recognized in the mainstream population. This insurgency claimed thousands of lives and displaced hundreds of people. Although the intensity of the insurgency has decreased considerably in the last few years. However, this issue is still a background debate and therefore the author felt that he should give this ‘domestic issue’ an international flavor and study it in the light of IHL. The NIAC law is still being established and has not reached the zenith. However, the jurisprudence has been put into practice by the various Tribunals and the ICC and has developed considerably well. This means that the Maoist insurgency can very well be studied in the light of the principles of Common Article 3 and customary international law. From territorial control to CRPF presence and chain of command, everything has been investigated and then the author reached to the conclusion that insurgency is a NIAC. Because of some reservations, India did not ratify the AP-II, and objected when, contrary to their belief, the UN referred this rebellion to be an armed conflict. It will not, however, relieve India of its responsibility for human rights abuses and obliges all the opposing parties to obey those laws under the principles of customary international law, as well as Common Article 3.
Mritunjay Pathak is a Fifth Year, B.A. LL.B (Hons.) at Maharashtra National Law University, Nagpur, India.
Suggested citation: Mritunjay Pathak, Is Insurgency in India’s Red Corridor a Non-International Armed Conflict?, JURIST – Student Commentary, October 1, 2020, http://www.itbkb.cn/commentary/2020/10/mritunjay-pathak-naxalism-niac/.
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