Answer:

Judicial intervention in foreign policy matters, particularly when violations of international humanitarian law (IHL) are alleged, lies at the intersection of domestic legal frameworks and international obligations. Courts play a critical role in safeguarding fundamental rights, but constitutional principles limit the scope of their intervention.

Scope of judicial intervention in cases where foreign policy decisions lead to potential violations of international humanitarian law:

• Judicial Review of Executive Decisions: The Indian judiciary can review executive decisions, including foreign policy actions if they violate fundamental rights or constitutional provisions. Article 32 and Article 226 of the Constitution grant individuals the right to approach the Supreme Court and High Courts to enforce fundamental rights.
• Constitutional Safeguards and Humanitarian Law: The judiciary can invoke Article 21 (right to life and personal liberty) to intervene in cases where foreign policy decisions, such as military actions or international treaties, potentially violate humanitarian laws.
  For instance: In Maneka Gandhi v. Union of India (1978), the court expanded the interpretation of Article 21, emphasising the importance of human rights, which can extend to foreign policy decisions affecting life and liberty.
• International Humanitarian Law as a Legal Standard: India has ratified key IHL treaties such as the Geneva Conventions, which can serve as a legal standard for judicial intervention.
  For instance: The Gujarat High Court in 1999 referred to the principle of non-refoulement under international law to prevent the deportation of two Iraqi refugees, emphasising India’s humanitarian obligations even in foreign policy decisions.
• Global Jurisprudence and Universal Jurisdiction: While India does not have explicit universal jurisdiction laws, courts can still address violations of international humanitarian law in certain circumstances.
  For instance: In NHRC v. State of Arunachal Pradesh (1996), the Supreme Court upheld the right of Chakma refugees to remain in India, invoking both constitutional rights and India’s international obligations.

Limitations of judicial intervention in cases where foreign policy decisions lead to potential violations of international humanitarian law:

• Doctrine of Separation of Powers: Due to the separation of powers, courts often defer to the executive branch on foreign policy matters, limiting judicial intervention. Foreign policy decisions are seen as the executive’s prerogative, especially when they involve sensitive diplomatic concerns, reducing the scope for judicial oversight.
• Lack of Binding Enforcement of International Law: While courts may refer to international humanitarian law, it is not directly enforceable in domestic courts unless incorporated into national legislation.
  For instance: In India, international treaties or conventions require legislative approval to be legally binding, limiting judicial intervention based solely on humanitarian violations.
• National Security Concerns: Judicial intervention is often limited in cases where foreign policy decisions are linked to national security. Courts exercise caution, acknowledging that military operations, defence strategies, or intelligence actions require specialised knowledge beyond their scope.
• Limited Mechanisms for Accountability: Courts may face practical limits in holding the government accountable for foreign policy decisions that lead to IHL violations. Legal remedies are often vague, and enforcing judicial orders in international relations can be diplomatically sensitive, reducing the effectiveness of interventions.
• Non-Justiciability of Political Questions: The political question doctrine limits judicial review in foreign policy matters involving complex political judgments. Courts may consider issues like military or international alliances non-justiciable, as they fall beyond their constitutional mandate.

While courts can uphold humanitarian standards within domestic legal frameworks, the executive’s primacy in foreign policy limits their role. Striking a balance between protecting human rights and respecting national sovereignty and security remains a persistent challenge for the judiciary. Efforts in addressing this challenge is the need of the hour. 

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