Recently, the Supreme Court of India dismissed a petition challenging India’s military exports to Israel amidst the ongoing Gaza conflict. The petition was filed by former civil servants, academics, and activists, who sought the suspension of existing licences for companies currently exporting military equipment to Israel. Additionally, they called for preventing the issuance of future licences for such exports. The case, titled Ashok Kumar Sharma and Others vs Union of India, raised important questions about India’s role in the conflict and its adherence to international humanitarian obligations.
Arguments by Petitioners
A. International Court of Justice (ICJ) Rulings
- January 2024: The ICJ issued provisional measures against Israel, ordering it to halt all killings and destruction in Gaza. This decision was based on Israel’s violations of the Genocide Convention.
- July 2024: The ICJ declared Israel’s presence in the Occupied Palestinian Territory unlawful. It urged all nations to avoid assisting Israel in maintaining this illegal situation.
- Nicaragua vs Germany case: In the case of Nicaragua vs Germany, the ICJ reminded all states of their obligations regarding arms transfers to conflict parties. It stressed the importance of ensuring that arms are not used to sustain unlawful situations or to facilitate violations of international conventions.
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B. United Nations Experts’ Warnings
- United Nations experts warned that countries providing weapons to nations at war, like Israel, could be involved in international crimes. This is especially important when considering the human rights abuses happening in Gaza.
- They issued warnings against continuing the transfer of weapons to Israel, citing the risk of these weapons being misused in the conflict.
C. Relevant International Conventions
- Genocide Convention: India is a signatory to the Convention on the Prevention and Punishment of the Crime of Genocide, having both signed and ratified it. Thus, india is obligated to prevent genocide and avoid complicity in acts that contribute to such crimes. The petitioners argue that by supplying weapons to Israel, India is violating this obligation and failing to take action to prevent genocide. Article III of the Genocide Convention specifies that complicity in genocide is a punishable offense.
- Geneva Conventions: Common Article 1 of the Geneva Conventions obliges signatory states not to supply weapons that could be used to commit war crimes or to violate international humanitarian law.
In response to similar concerns, countries such as Canada, Spain, and the United Kingdom have suspended arms export licences for companies supplying weapons to Israel.
Geneva Conventions
- The Geneva Conventions are a set of four treaties (on the Wounded and Sick; on land, the Shipwrecked; Prisoners of War; and the Protection of Civilian Persons in Time of War), formalised in 1949, and three additional protocols, the first two of which were formalised in 1977 and the third in 2005. The Geneva Conventions are widely accepted ethical and legal international standards for humanitarian treatment of those impacted by any ongoing war.
- India ratified the Geneva Convention in 1950, becoming the 5th country in the World and the first country in the region to adopt and implement legislation for the 1949 Conventions. India also ratified Protocol III but is not a signatory to the Additional Protocols I and II.
Convention on the Prevention and Punishment of the Crime of Genocide
- The Convention on the Prevention and Punishment of the Crime of Genocide is an international human rights treaty that codified the crime of genocide for the first time. The Genocide Convention was the first human rights treaty adopted by the UN General Assembly on December 9, 1948, and has been in effect since January 12, 1951.
- The Convention defines genocide as five acts — (i) killing members of a group; (ii) causing serious bodily or mental harm; (iii) inflicting on the group conditions of life calculated to bring about their physical destruction; (iv) imposing measures intended to prevent births within a group; and (v) forcibly transferring children of the group to another group — committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.
- India has been a signatory of the United Nations Genocide Convention since 29 Novemeber 1949. India ratified it on 27 August 1959.
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Supreme Court’s Stand
In previous rulings, the Indian Supreme Court had established that domestic laws should be interpreted in light of international obligations. However, in this particular case, the Court rejected the petition without delving into the merits. Despite not ruling on the substantive issue, the Court provided several arguments for its decision to dismiss the petition for the suspension of arms exports to Israel
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- International Obligations Not Binding: The Court argued that international obligations were not binding in this case because Israel, as the accused party, was not directly involved in the proceedings. It implied that without Israel’s participation, the international obligations raised by the petitioners were not applicable.
- Potential Breach of Existing Contracts: The Court expressed concerns over the suspension of export licences, citing the potential breach of existing contracts with Israel. It noted that halting arms exports could have financial and legal consequences, and that Israel should be given an opportunity to present its side.
- Judicial Restraint in Foreign Policy: The Court maintained a policy of judicial restraint, asserting that it would not intervene in matters of foreign policy, which traditionally fall within the purview of the executive branch.
Criticisms of the Court’s Reasoning
- Irrelevance of Israel Not Being a Party: The petition was filed against the Indian government and private companies exporting arms, not Israel. The Court’s reasoning that Israel’s absence from the case affected the petition was irrelevant.
- International organisations, such as the UN, have already gathered substantial evidence implicating Israel in the Gaza conflict. Therefore, the argument that Israel should have had a say is refuted by the existence of this evidence, which formed the basis of the petition.
- Misplaced Concern About Contract Breaches: The Court’s concern about the potential financial and legal fallout from breaching contracts with Israel was misplaced.
- Under international law, contracts can be suspended for justifiable reasons, such as preventing genocide.
- In this case, the suspension of arms exports would serve to protect human lives, making the breach of contracts a smaller issue in comparison to the greater ethical and legal responsibility of preventing war crimes.
- Questionable Application of Foreign Policy Restraint: The Court’s reluctance to intervene due to self-imposed foreign policy restraint contradicts its own earlier stance.
- The Supreme Court has previously emphasised the importance of adhering to international conventions and fulfilling obligations under such agreements.
- It has also ruled that domestic laws should be interpreted in light of these international commitments.
- Failure to Consider International Law Obligations: The Court failed to acknowledge India’s obligations under the Genocide Convention and the Geneva Conventions.
- These international agreements explicitly obligate India not only to refrain from supplying arms to a state involved in genocide but also to actively prevent such crimes.
- The Court overlooked this, even though complicity in genocide is a punishable offense under international law.
Ethical Dimensions of the Case
The ethical dilemma in this case revolves around two conflicting imperatives:
- India’s National Interests: Israel has historically been a significant defence partner for India. Notably, during the Kargil War, Israel provided crucial military support. Given this history, maintaining a strong defence relationship with Israel is strategically important for India. In the event of future conflicts, India could rely on Israel for support, which underscores the strategic value of this partnership.
- Humanitarian Concerns: On the other hand, Israel is accused of committing genocide and causing the deaths of approximately 40,000 civilians in Gaza. India’s continued military exports to Israel amid these allegations raises serious ethical questions. Supporting a nation involved in such grave humanitarian violations creates a moral conflict, challenging India’s commitment to international humanitarian law and human rights.
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Conclusion
In international relations, national interests frequently overshadow ethical concerns. For example, the U.S. supports Israel despite humanitarian issues due to strategic priorities. India faces a similar dilemma, needing to balance its strategic defence relationship with Israel against its obligations under international humanitarian law.
September 17, 2024
