Naxalite Rebellion: Disenfranchisement, Ideology and Recognition of a Non International Armed Conflict

Home , Hare Krishna Konar, Jangal Santhal, Naxalite, On Protracted War

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Zia Akhtar llb (Lon), llm (Lon), Gray’s Inn. [email protected]

Abstract

The military conflict within India’s borders whose origins are in the marginalisation of tribal peoples involves the government forces and the Naxalite rebels. This conflict has become more intense in the last decade with land being acquired to enable corporations to mine resources and the lack of redress for the Adivasi, who are the indigenous people who inhabit these territories. The alienation of the rural communities and tribes from the north eastern states, which are located on the ‘red corridor’ is because the government has failed to implement protection for Scheduled Tribes who carry a protected status in the Indian constitution. The Naxalite movement has launched a violent struggle which has led to an emergency declared under Article 355, and there has been an incremental increase in the rate of fatalities. The failure of public interest litigation and the enforcement of the Armed Forces Special Power Act (afsa) means that the domestic remedies for empowerment are not successful. The breach of human rights has to be assessed against the insurgency of the Naxalite guerillas and the Geneva Conventions that are applicable under the Non International Armed Conflict (niac). This paper will assess the rural origins of the conflict, environmental damage and the litigation by the Adivasi communities before addressing the rules under which the protections are available in the international humanitarian law. This will argue for the strict implementation of the Geneva Conventions and for niac to be liable for intervention as an International Armed Conflict (iac).

Keywords

Adivasis – non state actors – public interest litigation – international humanitarian law – Tadic principle

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Available Online Date: 23 August 2017 Revised Date: 13 January 2019

Introduction

The Indian state has been facing an insurgency in its geographical north east and its scale involves considerations of international humanitarian law. The asymmetric warfare involves the Naxalites, who comprise the tribal and forest peoples drawn from the rural heartlands of central and north east India and the government’s security forces. The disenchanted populations that form part of the Naxalite communities exist in the tribal belts of nearly 15 Indian states.1 The cpi (M) has since 2006 operated as a centralized, hierarchical guerrilla entity that is active in these states which covers the landscape known as the entire Red Corridor.2 This needs a definition of an Non International Armed Conflict (niac) and the extent to which International humanitarian law (ihl) under its various provisions can provide an enforcement through international tribunals and if it could apply in this case. The origins of the insurrection were incidents in the town of Naxalbari which is a small village in West Bengal.3 Its genesis was the division in the Commu- nist Party of India (Marxist) (cpi-M) in 1967 when it was campaigning against monopolies of ownership by landowners who held title and the peasants were landless tenant farmers. The violent incidents in Naxalbari caused the police force to quell the peasant unrest and these encounters with the authorities en- couraged many rural people to exit from the political movement and become part of the armed rebellion against landowners.4 The ideological motivation of the guerillas sprang from the Maoist strand of Marxist doctrine that advo- cates armed struggle as a legitimate expression of class consciousness. 5 The

1 Bidyut Chakrabarty and Rajat Kumar Kujur, Maoism in India: Reincarnation of Ultra-Left Wing Extremism in the Twenty-First Century (New York: Routledge, 2010), 4. 2 Ibid 195. 3 The original leaders were Charu Majumdar, Kanu Sanyal, and Jangal Santhal of the Party called the Siliguri Kishan Sabha. The Communist Party of India (M) had a large number of urban recruits who subscribed to the writings of Charu Majumdar’s writings, particularly the ‘Historic Eight Documents’ which formed the core principles of Naxalite ideology. Amitabha Chandra, The Naxalbari Movement, The Indian Journal of Political Science, Vol. 51, No. 1 (Jan. – March 1990), pp. 22–45. 4 Nirmal Angshu Mukherji, The Maoists in India: Tribals under Siege (2012), 55–56. 5 Tilak D. Gupta, Maoism in India: Ideology, Programme and Armed Struggle, Economic and Political Weekly Vol. 41, No. 29 (Jul. 22–28, 2006), pp. 3172–3176.

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Naxalites from the cpi (M), increased their activity when the Communist party in West Bengal was elected to the legislature in the State assembly in Calcutta (Kolkata).6 The Marxist party, once in power, abandoned the full programme of land nationalisation upon the instigation of the minister Hare Krishna Konar, who repudiated the radical socialist principles set out in the manifesto.7 The left leaning communists were purged from the party and the two strands adopted separate policies and strategies to achieve their goals. The Naxalite branch which decided upon armed struggle to achieve power was influenced by the Maoist slogan “Political power comes from the barrel of a gun”.8 This conflict that emanated from this rejection of parliamentary democracy has led to nearly 12,000 deaths in the last two decades including 2,700 of security forces personnel who have been killed.9 The Indian government has proclaimed the Naxalite insurgency as “a law and order issue” and employed the paramilitary forces to impose a military crackdown. The strategy to deal with the guerilla and their support network is called samadahan and it comprises a multifaceted tactical approach to the rebels.10 The expansion of the undeclared ‘war’ between the non state actors, the Naxalites’ guerilla bands and the Indian military has been accompanied

6 V. Ramaswamy, ‘It Does Not Die’ – Urban Protest in Kolkata, 1987–2007, An interview with Ranabir Samaddar, South Asia Multi Disciplinary Academic journal, 5/2011. https:// journals.openedition.org/samaj/3230. 7 H-K Konar explained his political programme in an interview in June 1971 as follows: “India is neither China nor the Soviet Union,” he said; “our revolution has to be fashioned by the objective realities of our own society, which neither the Chinese nor the Russians can be expected to understand in all their complexities. The main difference between India and China is that the Chinese have had no experience of legal forms of struggle, as Mao Tse- tung has himself admitted. We in India, on the other hand, have little experience of illegal forms of struggle. Our task is to combine legal and extra-legal forms of struggle to build up a revolutionary momentum amongst the poor and the deprived”. Bhbhani, Sen Gupte, The China Quarterly, Vol. 50, April 1972, p. 290. 8 Chairman Mao tse Tung, “Problems of War and Strategy” (November 6, 1938), Selected Works, Vol. ii, p. 224. 9 Naxal violence claims 12,000 lives in 20 years. 14/7/18, Economic Times. https://economic times.indiatimes.com/news/defence/naxal-violence-claims-12000-lives-in-20-years/ articleshow/59521195.cms. 10 Operation ‘samadhan’ is the brainchild of the Ministry of Home Affairs (mha). The acronym samadhan stands for Smart leadership, Aggressive strategy, Motiva- tion and training, Actionable intelligence, Dashboard Based kpis (key performance indicators) and kras (key result areas), Harnessing technology, Action plan for each theater, and No access to financing. mk Sandhu, 12 Takeaways from Centres new

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4 Akhtar by the question about the scope of the conflict. This is because the international human rights law (ihl) applies during both war and peacetime, while norms of humanitarian law only apply in war and the human rights law is ap- pended to its protection mechanisms.11 The application of ihl permits the rules of engagement that are covered not by domestic law but by international conventions.12 The rights protections under international law applies to all parties universally during a conflict and the definition of the conflict status does not necessarily limit the impact of the legal obligations. If the insurgency can be described as a Non lnternational Armed Conflict (niac) the application of international humanitarian law will determine the conduct of war rather than the Indian Criminal Code. The classification of the war does regulate the behaviour of the combatants under the principles of international human rights.13 This will be deemed as arising under the law of international armed conflict between governmental authorities and a non state actor when both the combatants who must meet the standards of international humanitarian law (ihl).14 The definition of the insurgency as an armed conflict compels both parties’ actions to be subject to international human rights norms and possible

strategy to deal with Naxals, India Today, 8/5/17 https://www.indiatoday.in/india/story/ naxals-mha-rajnath-singh-narendra-modi-government-strategy-975991-2017-05-08. 11 International Legal Protection of Human Rights in Conflict(2011), ochchr p 8 https:// www.ohchr.org/Documents/Publications/HR_in_armed_conflict.pdf. 12 In a non-international armed conflict, each party is bound to apply, as a minimum, the fundamental humanitarian provisions of international law contained in Article 3 common to all four Geneva Conventions. Those provisions are developed in and supplement- ed by Geneva Protocol ii of 1977. Both common Article 3 and Geneva Protocol ii apply with equal force to all parties to an armed conflict, government and rebels alike. In addition, government troops and rebel forces must apply a number of other specific treaty rules relating to internal conflicts, namely: Article 19 of the 1954 Cultural Property Convention and its Second Protocol of 1999 (the latter protocol has not yet entered into force at the time of writing); • Protocol ii to the Conventional Weapons Convention, on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as amended on 3 May 1996; • the Otta- wa landmines treaty of 1997. Law of Armed Conflict, niac, International Committee of the Red Cross, page 4 https://www.icrc.org/eng/assets/files/other/law10_final.pdf. 13 Art. 6, Geneva Convention iv, 1949 according to which “(t)he present Convention shall apply from the outset of any conflict or occupation…” confirms that ihl applies from the beginning of an armed conflict. The same may be said about Art. 3(a), ap 1. states “…the Conventions and this Protocol shall apply from the beginning of any situation referred to in Article 1 of this Protocol”. 14 Ibid.

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Naxalite Rebellion 5 prosecution on the basis of international criminal law, because the military operations may be based on disproportionate force and the question of ac- countability does arise. There is a plausible basis for ihl to apply because its terms distinguish between an armed conflicts that are either international in character or interstate and other forms or civil disturbances such as riots.15 The existing legal standards require the consideration of a violent conflict to define whether it is a territorial war between states or an internal conflict that can deemed a civil war. This needs determination of the extent of the marginalisation of the Adivasis, the tribal peoples who populate the region where the Naxalite insurgency is most prominent. These indigenous communities are designated protection of the Indian Constitution that provides rights for the Scheduled Tribes.16 This needs consideration of the environmental damage, public interest litigation and the emergency powers granted to the military under the Armed Forces Special Power Act (afsa), that are judicially un review- able, to evaluate if this is a domestic disturbance or a niac. This paper sets out the chronology of the Naxalite insurgency and its ideological premises that is based on the Maoist/Marxist doctrine whose wellspring are the organised peasants rather than an industrial proletariat. It deals with the framework of the State and Nonstate Armed Responses under the afsa that has been enforced in other states where there is a rebellion. The qualifica- tion of niac will be discussed under the principles established by the case law, and the landmark Tadić ruling will be set out that determines the international humanitarian legal criteria for intervention.

15 A description of internal disturbances was given at the first session of the Conference of Government Experts on the Reaffirmation and Development of International Humani- tarian Law applicable in Armed Conflicts, held in Geneva from 24 May to 12 June 1971 (Document submitted by the icrc, Vol. v: Protection of victims of non-international armed conflicts, Geneva, January 197 1, pp. 79–85) It states: (“[T]here exists a confrontation within the country, which is characterized by a certain seriousness or duration and which involves acts of violence … all the way from spontaneous generation of acts of re-volt to the struggle between more or less organized groups and the authorities in power…. [T]he authorities in power call upon extensive police forces, or even armed forces, to restore internal order.”) (presented at the conference of government experts on the reaffirmation and development of international humanitarian law applicable in armed conflicts). 16 These are regulated under Article 342 of the Constitution. There are a total of 645 district tribes. The term “Scheduled Tribes” refers to specific indigenous peoples whose status is acknowledged to some formal degree by national legislation. A collective term in use lo- cally to describe most of these peoples is “Upajati” (literally “clans/tribes/groups”). List of Scheduled Tribes by India. http://www.eco.india.com/tribes-in-india/html.

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1 Rural Communism and the Ideological Divide

The armed insurrection of the Naxalities has its genesis in the philosophy of Marxism which considered law as representing the supra structure and economics as the infrastructure of the state. The springboard for Marxist thought was the notion that history is a product of the dialectical forces that interact and produce the next stage in the evolution of human civilisation. This was a principle that rested on dialectic materialism and it considered the economic interest of the ruling class as the basis for all legislation. Accordingly, Marx states in the Communist Manifesto that law is a kernel of rules which protects the privileges of one class over another in the following passage:

In order that these … classes with conflicting economic interests, may not annihilate themselves and society in a useless struggle, a power becomes necessary that stands apparently above society and has the function of keeping down the conflicts and maintaining ‘order.’ And this power, the outgrowth of society, but assuming supremacy over it and becoming more and more divorced from it, is the State.17

The critical mass is reached in the separation of the classes when there is a development of class consciousness of the effected group that has a bearing on the relationship of the state and law to property. Marx illustrates the bourgeois state in particular “in which the individuals of a ruling class assert their common interests, and in which the whole civil society of an epoch is epitomised”. The capitalist state represents an “organisation which the bourgeois are com- pelled to adopt, both for internal and external purposes, for the mutual guar- antee of their property and interests”.18 The Communist Party of India-Marxist (cpi-M) adopted the more orthodox approach of Marxism – Leninsim which was expressed through the democratic participation in the electoral mecha- nism of the state. They were not inclined to precipitate the armed struggle because they inculcated the conventional doctrine that there is a clash of bour- geoisie and the industrialised proletariat for there to be the conditions for a revolution.19

17 Ibid p. 38. 18 Ibid p. 90. 19 In their original concept of scientific socialism Marx and Engels set out the primacy of economics over politics in their theory of state and the law. The Marxian theory presumes that the economic production and the social relationships (the Produktionsverhaelt- nisse) determine the necessity for the proletariat to conquer political power as the only

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The Naxalites, on the other hand, adopted the guerrilla movement for achieving a communist revolution by endorsing the concept of Chairman Mao Tse Tung, who had successfully launched the Long March that led to the ca- pitulation of the nationalist forces of Chang Kei Shek in 1949, when the Peo- ples Republic of China was formed. Mao’s method was based on the armed response by peasants to the structures of the state premised on the notion that “War is the highest form of struggle for resolving contradictions, when they have developed to a certain stage, between classes, nations, states, or political groups, and it has existed ever since the emergence of private property and of classes”.20 The organizational structure of the Naxilites is based on drawing strength from the village level and in order to conduct a people’s war by means of building a grassroots, village-based alternative to the state. The practical measure of their “performance is not the scope or intensity of military actions, but the scope, depth, and vitality of the organizational forms”.21 This by implication is the motivation of the Maoists doctrine that is based on its decentralised structure in form of the local cells of their regional association. In an analysis of their political doctrine Nirmalangshe Mukerjee observes that “most Marxist organisations in an armed protracted war to seize power to establish what Mao called a ‘new democratic order’. In most developing countries with a large peasant population, the protracted war is supposed to be in the form of an agrarian revolution”.22 There is an appeal in South Asia in this form of conducting an armed struggle because of the success in China,

way of carrying out a communist revolution. They state that “Every class which is aiming at domination, even when its domination, as is the case with the proletariat, leads to the abolition of the old form of society in its entirety and of all domination, must first conquer political power”. Ibid p. 47. 20 Mao Tse Tung, Problems of Strategy in China’s Revolutionary War (December 1936), Se- lected Works, Vol. i, p. 180. “In this sense war is politics and war itself is a political action; since ancient times there has never been a war that did not have a political character”…. “On Protracted War” (May 1938), Selected Works, Vol. ii, pp. 152–53; “The commanders and fighters of the entire” Chinese People’s Liberation Army absolutely must not relax in the least their will to fight; any thinking that relaxes the will to fight and belittles the enemy is wrong. “Report to the Second Plenary Session of the Seventh Central Committee of the Communist Party of China” (March 5, 1949), Selected Works, Vol. iv, p. 361. 21 Gordon H. McCormick, “People’s War,” in Encyclopaedia of Conflicts since World War ii, ed. James Ciment (Armonk, New York: Sharpe Reference, 1999), 23–24. Also see Alpa Shah, Nightmarch: Among India’s Revolutionary Guerrillas, Hurst (2018). Shah argues the Naxilites are inspired by the Cultural Revolution in China (1966–76). 22 N. Mukerjee, The Maoists in India: Tribals Under Seige, Pluto Press, (2012) p 1.

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Vietnam and in Nepal where the Maoists later abandoned their radical ideology and accepted a pluralistic democracy.23 There was further polarisation and the scope for the Naxalites to recruit more cadres was increased when the Indian state introduced liberal reforms in its social and economic policy in the early 2000’s. This was with the intended purpose of increasing taxation revenues and grant lucrative mining contracts to multinational corporations, especially in mineral-rich Chhattisgarh and Jharkhand.24 These heartlands of the Maoist insurgents became more resistant to the state and corporate efforts to appropriate land for industrial development. This gave the ideological struggle further affirmation and it exposed the lack of protection by the state of their rights and claims to tile on the land.

2 Land Evictions and Disenfranchisement

The Indian Constitution provides the Adivasi tribes the designation of Sched- uled Tribes who live in the forested areas under Article 342, which includes groups in the list for affirmative action programmes. The tribes are notified of their status under the provision based on the “character, such as primitive traits, geographical isolation, and distinct culture shyness of contact with the community at large, and economically backward”.25 When labelled a “scheduled tribe” the community becomes entitled for the constitutional protection and development programmes designed to end their isolation and help assimi- late them into mainstream society.26

23 In an interview with the journal, Mainstream, the Maoist spokesman crk Azad traced the demise of the ltte (Tamil Tigers ) in 2009 to its non-Proletarian character” as opposed to the Maoist movement in India. Chamkuri Raj kumar Azad, ‘Let us not make truth a casualty in war’. mainstream,vol. 48, no 29, July 2010. 24 Industrial policy was the greatest change, with most central government industrial controls being dismantled. The list of industries reserved solely for the public sector – which used to cover 18 industries, including iron and steel, heavy plant and machinery, telecommunications and telecom equipment, minerals, oil, mining, air transport ser- vices and electricity generation and distribution were reduced to three”. M.S Ahluwalia, India’s Economic Reforms since 1991: Has Gradualism worked. The Journal of Economic Perspectives, vol. 16 no 3, pp 67–88. 25 Lokur Committee Report of the Advisory Committee on the Revision of the Lists of Scheduled Castes and Scheduled Tribes. Government of India (1965). p 2. 26 Tribal People in India: Scheduled Tribes, Scheduled Areas and Tribal Areas. 6/9/12 https:// socialissuesindia.wordpress.com/2012/09/06/scheduled-areas-scheduled-tribes-and -tribal-self-rule/accessed 12/12/17.

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The protections offered are on two different avenues which are meant to provide alternative means of representation and restitution. These are drafted under the Fifth Schedule in the Provision of Administrative and Control of Schedule Areas, and it applies to an overwhelming majority of India’s tribes in nine States. The Sixth Schedule covers areas that are settled in the north eastern States bordering China and Myanmar and is intended to provide devolution and local government. There are no institutional autonomous bodies in the Fifth Schedule’s provision for District Council and the Regional Council such as those under the Sixth Schedule that have actual power to make various legislative enactments and receive grants from the Consolidated Fund of India to meet the requirements of Adivasi people. The Fifth Schedule entitles the powers over a large measure of local and group autonomy in regulating the use of their lands (known as “scheduled areas”). The Panchayat (Extension to the Scheduled Areas) Act (pesa) 1996 sets out mandatory provisions to vest wide ranging powers to the tribal peoples on matters relating to decision making and development of their communisation. The Act has inspired village Panchiyats in the hierarchy of the Gram Panchiyat (gp) and the parallel body of the Gram Sabha (unit of governance in the decision making council) which issues certificates of governance to the gps in the 5th Schedule tribal to act in local matters by overriding the power of state officials. The pesa should have been a landmark for the tribal communities as it empowers the state to devolve certain political, administrative and fiscal powers to local governments elected by the communities. This became exclusive to the Fifth Schedule areas, to promote tribal self-government. The Act was meant to benefit not only the majority of tribal peoples but also extended to cover minority non-tribal communities. It guarantees tribes half of the seats in the elected local governments and the seat of the chairperson at all hierarchical levels of the Panchayat system”.27 Malhotra argues that the 5th Schedule was never implemented and it failed to ensure tribal welfare and self government that was promised under the framework denied autonomy and rights to their communities’ natural resources. This has led to increased marginalisation of the Adivasi people and their lack of consent in the appropriation of the land led to displacement. In Samatha v State of Andhra Pradesh (1997) Case no 4601–02 the Supreme Court ruled that the Fifth Schedule obliges the government to prohibit the

27 Sonum Gayatri Malhotra, Right Arrangement, Wrong Places, 18/6/13 The Hindu News- paper the http://www.thehindu.com/opinion/op-ed/right-place-wrong-arrangement/article48 23988.ece.

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conveyance of tribal land for any mining corporation by any non publicly owned corporation. This judgment resulted in subsequent appeals by the Andhra Pradesh Government, and Union Government which were dismissed by the Court. The process of ‘discovery’ in the case revealed a secret note from the Ministry of Mines of 10 July 2000 (No. 16/48/97-M.vi) that placed the interests of “foreign corporate bodies” superior to the interests of Scheduled tribes that suggests that the judgement can be effectively overturned by effecting the necessary amendments to remove the legal basis of the rulings. This is carried out by the legislative amendment to Article 244 Section 5(2) removing the prohibition and restrictions on the transfer of and by Adivasis to non-Adivasis for under-taking any non-agricultural operations including prospecting and mining.

The ruling was:

Under Section 2 of the Forest Conservation Act 1980 use of any forest land for any non-forest purpose is prohibited without the prior consent of the Central Government and as such mining activities being a non-forest purpose would attract the mischief of said Section 2 of the conservation Act, but in the ab- sence of any materials to conclusively come to the conclusion that the land over which the respondents are carrying on the mining activities form a part of the forest land, it would not be proper for this Court to issue any direction prohibiting the mining activities. At the same time it would be proper to direct the State of Andhra Pradesh through its Forest Department to examine whether the mining activities are being carried on over the forest land and if it comes to the conclusion that the lands do form a part of the forest land then immediate steps should be taken prohibiting continuance of the mining activities until the Central Government in exercise of power under Section 2 agrees to the same, and we accordingly so direct.28 There is debate that the courts are biased against the landless tribal peoples and the judiciary was not protecting the land rights of the indigenous farmers as set out in the Indian constitution.29 This has been reinforced by the inability of the Scheduled Tribes and Traditional Forest Rights Act 2006 to implement

28 Parah 47. 29 As per official reports there were 1.62 lakh cases registered on alienation of tribals by non tribals for restoration of the land. The registered cases concerned 8.5 lakh acres of land. The judgments were not in favor of tribals‘ claim for restitution and have been rejected by the revenue court. P.H. Parekh, Human Rights Year, Book 2007 (New Delhi: Universal Law Publishing, 2007)181; See also Walter Fernandes, Rehabilitation as a Right: Where is the Policy?, Social Action, Vol. 55 No. 2, April–June (2007) 123–137.

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Naxalite Rebellion 11 the Scheduled Tribe provisions under Article 342 for the rights of communities to manage their forests because the state decides whether a certain region is denoted as Village Forest or Reserved Forest under the pesa statute. In this process, many communities were evicted without a proper channel of rehabilitation, and an Indian government report has substantiated these find- ings by stating that transforming the Scheduled v Areas under pesa to promote self governance in order to address the problem of exploitation has not been successful. It states “unfortunately, the implementation of pesa has not been satisfactory despite the guidelines that have been issued in this re- gard to State Governments by the Ministry of Panchayati Raj”. The issues drawn are the failure of the “Forest Rights Act”, lack of “capacity building” and the inability under pesa for “constituting Gram Sabhas” as some of the key factors.30 The Sixth Schedule has also not been able to deliver the devolution to the Adivasi people through the Panchiyats in the local and district councils. This is despite the 73 rd Amendment to the Constitution in 1992 that empowers the Gram Sabhas who under Clause 2 “shall be competent to safeguard and preserve community’s resources”, and under Clause 3 the powers to “prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawful alienation of land of the Scheduled Tribe”. There is a lack of implementation in the states of Assam, Tripura, Meghalaya, and Mizoram autonomous regions under the Sixth Schedule because the process for land acquisition and land reclamation has not been enforced under the Panchayati Raj Act or the Revenue Law to empower the Gram Sabha to restore the unlawfully alienated land to its lawful owner. The transfer of quarries of mines with annual lease above a certain value to the Gram Sabha and Panchayats at different levels has not transpired. This dispensation does not cover all minor minerals and the consent of the Gram Sabha before awarding a lease has also not been made mandatory.31 According to the gk-Current Affairs report the failure can be attributed “to the lack of a proper administrative definition of the village that is not in con- sonance with the pesa and the Forest Rights Act (fra). The conflict of interest appear between the District Councils and the state legislatures, for example, in Meghalaya, despite the formation of the State, the whole of the State con- tinues to be under the Sixth Schedule causing frequent conflicts with the State Government”. The report further states that the conflict also manifest itself in

30 Bukash Rath, A Report of the functioning of pesa in Odisha, Regional Centre for Develop- ment Cooperation and National Institute for Development Innovation, 2013, p. 91. 31 Development and Challenges in Extremist Affected Areas: Report of an Expert Group to Planning Commission, Government of India, 2008, p. 41 planningcommission.nic.in/ reports/publications/rep_dce.pdf.

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12 Akhtar the form of Para 12 (A) of the Sixth Schedule which stipulates that “whenever there is a conflict of interest between the District Councils and the state legislature, the latter would prevail. Thus state enjoys the superiority, but then it is alleged that autonomous councils are mere platforms for aspiring poli- ticians who nurture ambitions to contest assembly polls in the future. There is also disparity among Autonomous Bodies and Local Bodies which presents another important area of conflict. The local bodies established via Seventy- third Amendment are more liberally funded through the State Finance com- missions and a state where there are more than one autonomous councils; one claims that it is being treated less favourably than other. For example, in As- sam, there is a perceived preferential treatment to Bodoland Territorial Coun- cil in matters of budget allocations”.32 Moreover, there is a lack of a process for land reclamation and it has not been enforced under the Panchayati Raj Act 1992 and lack of empowerment for the Gram Sabha to restore the unlawfully alienated land to its lawful owner. The consent provisions in the Act for the transferring of all quarries on mines and minerals extraction with annual lease above a certain value to the Gram Sabha and Panchayats at different levels. The inability to set up an infrastructure to support people from the villages and to provide them with representation has led to the alienation and disenfranchised the tribal peoples from the local government structures. They have not been to claim land back or been left in the communal homes because of the encroachment of the multi nationals and the government authorities who have arrived with mining leases.33

3 Failure of Public Interest Litigation

The issue whether the conflict between the Naxalites and the Indian army is a domestic or an international conflict merits the consideration of access to justice and this involves the possibility of Public Interest Litigation (pil).

32 Sixth Schedule and the Autonomous Administrative Areas in North East India, India’s Dai- ly E Magazine of the General Knowledge (gk) and Current Affairs, 23/12/14, http://www.gk today.in/sixth-schedule-and-the-autonomous-administrative-areas-in-north-east-india/. 33 “Regrettably, no governor of any state in India has ever constituted tribal advisory councils of scheduled tribes living in the reserve forests or scheduled areas of the states they [govern]. In this deliberately created vacuum, the chief ministers of the states have merrily administered their reserve forests by leasing them for mining to private compa- nies, evicting the tribals living in these forests for millennia.” E.N. Rammohan, Unleash the Good Force, Outlook India (July 16, 2012), http://www.outlookindia.com/article. aspx?281554 [http://perma.cc/J2S9-3V6D].

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This in principle provides the local remedies available for the non state actor if group action is initiated in the courts for the breach of the constitution or an international Conventions providing India is a signatory and has ratified its articles that provide minorities protection. The Indian State does have the clause in its constitution under the Part iii (Fundamental Rights) and Part iv (Directive Principles of State Policy) that provides a framework for regulating relations between the state and its citizens and between citizens interse for redress of grievances. Although social and economic rights enshrined in the Indian Constitution under Part iv are not legally enforceable, courts have creatively formulated them into fundamental rights thereby making them judicially enforceable.34 Article 32 allows pil by way of third party petition that may be introduced in a court of law by the court itself (suo motu), rather than the aggrieved party or another third party. For the exercise of the court’s jurisdiction, it is not necessary for the victim of the violation of his or her rights to personally approach the court and the concept is in accordance with the principles enshrined in Article 39A to deliver prompt social justice with the help of law.35 The Scheduled Castes and Tribes are provided legal aid to raise group litigation in the Supreme Court. This is intended as the strategic arm of the legal aid movement which intended to bring justice. The public interest litigation (pil) under the suo motu powers of the Supreme Court has to meet the lack of legal expertise to facilitate the claims of the Adivasi community. Pradeep Prabhu who has worked in pil argues that in “the prevailing legal system rec- ognizes only private property and public property, which belongs to the state. Prior to the imposition of the British legal system there existed a whole tradi- tion of common property which now has no recognition in law. As a result all

34 In Peoples Union for Democratic Rights v. Union of India (a.i.r. 1982, S C 1473) the Supreme Court allowed Public Interest Litigation or Social Interest Litigation at the instance of “Public spirited citizens” for the enforcement of constitutional & legal rights of any person or group of persons who because of their socially or economically disadvantaged position are unable to approach court for relief. Public interest litigation is a part of the process of participate justice and standing in civil litigation of that pattern must have liberal reception at the judicial door steps. 35 In Miss Veena Sethi v. State of Bihar, 1982 (2) scc 583: 1982 scc (Cri) 511: air 1983 sc 339, the court treated a letter addressed to the Supreme Court by the Free Legal Aid Committee in Hazaribagh, Bihar as a writ petition. In Citizens for Democracy through its President v. State of Assam and Others,: air 1996 sc 2193, the court considered a petition from Shri Kuldip Nayar (a journalist acting in his capacity as President of Citizens for Democracy) alleging human-rights violations of Terrorist and Disruptive Activities (Prevention) Act (tada) detainees.

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14 Akhtar forms of collective or shared realities whether they are in the realm of rights, relations, practices or knowledge that are vital for human survival are not part of legal discourse and are often met with surprise, skepticism and cynicism by the judges”.36 In Nomanda Bachoo Andolan v Union of India (2000) 10 scc 664 the Supreme Court held that the right to life of the Adivasi communities will be breached because of the significant impact of the planned resettlement of these communities way of life. The Court dismissed the claim on the grounds that the relocation of the Adivasis was a positive step for the acculturation of the tribal peoples and assimilation into Indian society. This was premised on the “displacement of the tribals and other persons which would not per se result in violation of their fundamental or other rights; their rehabilitation at new lo- cations”. They would be better off than what they were; at the rehabilitation sites they will have more and better amenities than those they enjoyed in their tribal hamlets; and the gradual assimilation in the mainstream of the society would lead to betterment and progress. Gaetano Pentassuglia describes this as an instance of the enduring “paternalistic attitude” of the Indian state towards its Indigenous peoples and a breach of its obligations under the ilo Convention 107 and the ilo Conven- tion 169 which it has ratified. He gives the example of the “Courts not giving the groups an opportunity to articulate their position first; they were heard only after the construction project and its resettlement had been allowed”. These reflect a failure of the “systemic level” in a wider set of problems involving pil in India which are in the “reluctance to challenge governmental policies which are backup up by strong political and economic forces to the at times exceedingly pervasive nature of the judicial intervention in defiance of the separation of powers”.37 Pentasuglia observes that the problems faced in pil to the “inevitable dif- ferences in socio economic conditions” means that the courts are not the cata- lysts for change. However, he states that the courts can represent “deliberate actors” as long as they are exposed to the “public scrutiny and criticism” in the course of the pil.38 The group litigation that leads to claims are dealt with under the suo motu powers of the court is a procedural but a not a source

36 Pradeep Prabhu of Khastakari Sanghatana, Public Interest Litigation in India, 11/12/11, in Juris Consulti, blog of Arjun B Subramanya http://arjuniurisconsulti.blogspot.co.uk/ 2011/12/public-interest-litigation-pil-india.html. 37 Gaetano Pentassuglia, Minority groups and Judicial discourse in International law: A Comparative approach. pp. 207–209. 38 Ibid.

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Naxalite Rebellion 15 of substantive changes through their rulings because of the circumstances in which the Adivasi people have to conduct litigation.39 The lack of impact of public interest litigation has been exacerbated because of the Indian government’s use of vigilantism40 or its security apparatus and emergency powers that cannot be challenged in court. The Armed Forces Special Power Act (afsa) 1958 is effective in north east territories populated by the Adivasi peoples that allows the paramilitary to impose draconian sanctions through the exercise of these powers. This is activated when the governor of the state or union territory issues an official notification in the Gazette of India after which the centre is transferred the authority to send in the armed forces for civilian aid. The afsa was first promulgated in 1958 in Manipur and Assam when the government used powers granted under Article 355 of the Constitution to confer powers to state governors. They could be invoked by the Union to “protect States against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution”. The Act was also effective in Punjab in 1983 (until struck down by the High Court in 1997) and is applicable in Jammu and Kashmir since 1990.41 It has been criticised in public inquiries and judicial Commission reports that all ad- vocated for its repeal.42 This issue has been if the armed forces have unlimited

39 Forster and Jevan have identified a range of beneficial extra judicial effects of pil in relations to human rights compliance which include the “ability to first, mobilise human rights activists, civil society groups, lawyers and academics into a visible and persuasive movement; second, the creation of a forum and nexus where a member of a powerful social actors, institutions, and systems are forced to interact and consider the human rights issues and third a capacity to engender awareness raising when public interest litigation has been unsuccessful”. Christine M. Forster and Vedna Jivan, “Public Interest Litigation and Human Rights Implementation: The Indian and Australian Experience” (2008) 3(1) Asian Journal of Comparative Law’ pp. 143–172. http://hdl.handle.net/104531/10475. 40 In the early 2000s, the Indian government sponsored the creation of local vigilante armies to fight Maoist control. Their scorched-earth destruction of villages accused of helping or harbouring Maoists drove many adivasis into the People’s Liberation Guerrilla Army. Alpa Shah. ‘The intimacy of insurgency: beyond coercion, greed or grievance in Maoist India’, Economy and Society, 42(3), (2013a). pp. 480–506. 41 The military nature of operations in Kashmir is another area which falls under the niac and that would be governed by Common Article 3 and Additional Protocol ii. Jane Boulden,Thomas G. Weiss, Terrorism and the un: Before and After September 11, Indiana University press, (2004) pp. 65–66. 42 “Extrajudicial executions and other naked human rights violations have been a fact of life in the northeastern states of India for the last five decades. N. Sanajaoba, The Armed Forces (Special Powers) Act: An unproclaimed emergency and gross injustice. In, Article 2

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16 Akhtar powers and if they were liable for prosecution in criminal courts if they committed human rights abuses.43 It has been considered in a recent Indian Supreme Court judgment case that discussed the constitutional powers granted to the central government and in terms of the classification of the insurgency of the Adivasi peoples as a domestic conflict. In Extra Judicial Executions Victims Families Association & ans v Union of India & ans wp (Crl) 129/2012 (2016) a petition was brought under Article 32 of the Indian constitution to enforce remedies for enforcement of rights conferred under the courts powers. The judgment addressed

of the International Covenant on Civil and Political Rights. Special Edition: Militarisation and Impunity in Manipur. Vol. 5, No. 6, December 2006, pp. 29–34, at 29. Available at: http://www.article2.org/pdf/v05n06.pdf See also ‘Repeal Armed Forces Act: Official Pan- el,’ The Hindu, 08 October 2006 (containing the first leaked version of the Reddy Commit- tee’s report). Available at: http://www.hindu.com/2006/10/08/stories/2006100806130100. htm 11 Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958. Government of India, Ministry of Home Affairs 2005, at p. 77; In paragraph 12 of its 2007 concluding observations, the Committee observed that the afsa sanctions impunity for serious human rights violations perpetrated against the predominant indigenous population of Manipur and other north-east states. Citing Articles 2 (1)(c), 5(b), 5(d) and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination (“the Convention”), the Committee recommended that this law be repealed and observed that India’s own special commission on afsa (the “Reddy Commission”) had earlier made the same recommendation. The Committee on Amendments to Criminal Law, a three- member committee headed by Jagdish Sharan Verma, a retired Supreme Court judge, set up by the central government in December 2012 to review laws against sexual assault in its 657-page report included a section on sexual violence in conflict zones, in which the committee stated that the afsa legitimized impunity and recommended immediate review of the continuance of the afsa in internal areas of conflict. In January 2013, the Supreme Court appointed a three-member commission headed by Santosh Hegde, in response to a public interest litigation and in its report submitted to the court in April 2013, the commission found that all seven deaths in the six cases it investigated were extrajudicial executions. The commission argued that the continued operation of the afsa in Manipur has made “a mockery of the law,” and that security forces have been “trans- gressing the legal bounds for their counter-insurgency operations in the state of Mani- pur.” Commission of Inquiry. Santosh Hegde Commission Report. Page 93. 4 April 2013. The Report of the Committee on Amendments to Criminal Law Government of India. 23 January 2013. Committee led by retired Justice J.S. Verma; https://docs.google.com/ file/d/OB8cOm1KVR415X2xpa2+neUdFJUo/view?pl=1&SLE=true. 43 afsa – Necessity or a Misused power? Everything you need to know about the Contro- versial Act. Manindar Dubas 12/7/16. http://www.indiatimes.com/news/india/afspa- necessity-or-a-misused-power-everything-you-need-to-know-about-the-controversial -act-258238.html.

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1,528 extra judicial killings based on “fake encounters” of the Manipur communities by the armed forces and district police forces. The Court ruled that “all incidents involving suspected use of excessive ad retaliatory force by police or army must be investigated”. The security forces did not enjoy immunity from criminal prosecution if they committed offences making up abuses the use of excessive force or retaliatory force, resulting in the death of any person, the proceedings in respect thereof can be instituted in a criminal court subject to the appropriate procedure being followed.44 It also alluded to the National Human Rights Commission’s submission in an amicus brief that it had become a “toothless tiger” and observed that the Manipur State Human Rights Com- mission was not functioning because of a “lack of resources”.45 However, the Court accepted the Article 356 which imposes the President’s rule which is then conveyed to the Governor of the state as the instrument for bringing the regions under the remit of afsa. This was because ore is that in the “event of a war, external aggression or an armed rebellion that threat- ens the security of the country or a part thereof, it is the duty of the Union Government to protect the States and depending on the gravity of the situation, the President might also issue a proclamation of emergency”.46 The ruling established three broad principles which were “(a) The public order situation in Manipur is, at best, an internal disturbance. There is no threat to the security of the country or a part thereof either by war or an external aggression or an armed rebellion. (b) For tackling the internal disturbance, the armed forces of the Union can be deployed in aid of the civil power. The armed forces do not supplant the civil administration but only supplement it. (c) The deployment of the armed forces is intended to restore normalcy and it would be extremely odd if normalcy were not restored within some reasonable period, certainly not an indefinite period or an indeterminate period”.47 The effect of the Supreme Court decision is that it has legitimised the scope and powers of the Union government to invoke the afsa on the behest of the state based on the estimation of the threat from the rebellion. It has also declared the conflict as an internal public order matter which conforms to its reasoning that it is a domestic disturbance which is more than a law and order matter. The trust in the constitution has been placed for keeping in check the powers exercised by the paramilitary in implementing afsa despite pro- claiming that the members of the security forces can be tried in the ordinary

44 Parah 173. 45 Parah 176. 46 Parah 88. 47 Parah 92.

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18 Akhtar criminal courts. There has been a retrenchment of the powers for the central government and the Act has been extended in November 2016 to 3 districts to Arunachal Pradesh – Tiraj, Chalglong and Longday which have been declared “disturbed areas” under Section 3 of the Act. 4 Satisfying the Criteria of niac. The failure of pil means that the Adavisi peoples have no recourse to achieve the justice of reclaiming their lands and using them in the traditional manner of indigenous peoples. The tribal communities have not been able to secure their rights by means of invoking the suo motu powers of the Supreme Court. This elevates the issue of the Naxalite insurgency into more than just a domestic offence and it needs examination because it will lead to the evalu- ation based on the ihl law. This requires the determination of whether the insurgency and the Indian military’s armed response has caused a niac and how the liability can be apportioned.

4 Non-International Armed Conflict

The issue arises if the conflict between the Naxalites and the Indian state can be classified as a non international armed conflict (niac). The response to this question will decide which rules of international law will cover this conflict and govern the conduct of the parties with respect to their liabilities. The protection of victims in international armed conflicts and niacs is guaranteed through rules of international law and such rules have been accepted by States who have traditionally accorded recognition to the principle that soldiers kill- ing enemy soldiers on the battlefield may not be punished for their mere participation: in other words, they have a “right to participate” in the hostilities.48 The conflict in India between these opposing forces is not a law and order issue given the commitment of the Maoist guerillas who are highly organised and motivated and have the intention to overthrow the government by force. There is evidence for this perspective in the manner in which the Naxalite insurgency is structured and its ability to mobilise across several states in the ‘Red Corridor’ encompassing the central and north eastern region. Sandeep Avinash Prasanna argues that “the Naxalite insurgency has assumed the traits of a non-international armed conflict by virtue of its level

48 Article 43 (2) Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol i), 8 June 1977.

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Naxalite Rebellion 19 of organization and the intensity of the violence between the Naxalites and the Indian government. First, the Communist Party of India (Maoist) (or ‘cpi -Maoist’) and its associated committees are highly centralized and hierarchical. Second, the casualty rates associated with the insurgency have re- mained reliably high, particularly following the 2004 centralization of Naxalite power in cpi-Maoist. The Indian government has mounted a forceful and large-scale response to the insurgency even as the number of Naxalite troops appears to be high”.49 The treaty-based law applicable to internal armed conflicts is relatively recent and is contained in common Article 3 of the Geneva Conventions, Ad- ditional Protocol ii, and Article 19 of the 1954 Hague Convention on Cultural Property. It is unlikely that there is any body of customary international law applicable to internal armed conflict which does not find its root in these treaty provisions.50 However, Article 3 does not define what constitutes an armed conflict and it has been an issue since the time of drafting the statute. 51 The international humanitarian law pertains to armed conflicts and flows primarily from the their application and appertains to niac and Additional Protocols i and ii expand on substantive elements of international humanitarian law and augment Article 3.52 India is a High Contracting Party to the

49 Sandeep Avinash Prasanna, Red Belt, Green Hunt, Gray Law: India’s Naxalite-Maoist Insurgency and the Law of Non-International Armed Conflict Sandeep Avinash Prasanna, 63 ucla Law Review 486 (2016) pp. 487–527. 50 Commission of Experts appointed to investigate violations of International Humanitar- ian Law in the Former Yugoslavia. un Doc. S/1994/674, para. 52. 51 See Jean S Pictet (ed), The Geneva Conventions of 12 August 1949: Commentary (Interna- tional Committee of the Red Cross, 1952–1960) vol. 1, 28. This describes the specific issue of what was meant by the expression ‘armed conflict not of an international character’, and it ‘arose again and again’ at the Conference as the ‘expression was so general, so vague, that many of the delegations feared that it might cover any act committed by force of arms’: Jean S Pictet (ed), The Geneva Conventions of 12 August 1948: Commentary (International Committee of the Red Cross, 1952–1960) vol. 3, 35. See also Rein Müller- son, ‘International Humanitarian Law in Internal Conflicts’ (1997) 2 Journal of Conflict & Security Law 109, 110–13. 52 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol ii), 8 June 1977. “The only provision applicable to non-international armed conflicts before the adoption of the present Protocol was Article 3 common to all four Geneva Conventions of 1949. This Article proved to be inadequate in view of the fact that about 80% of the victims of armed conflicts since 1945 have been victims of non-international conflicts and that non-international conflicts are often fought with more cruelty than international conflicts. The aim of the present Protocol is to extend the essential rules of the law of armed

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20 Akhtar

Geneva Conventions, but it is not a party to either of the first two Additional Protocols because its perspective is that with the exception of national liberation movements any other conflicts taking place wholly within the territory of a state should be resolved through domestic legal frameworks.53 This approach has been criticised for being very narrow and being out of step with modern intra state conflicts.54 This is an obligation in the framework of the Geneva Conventions that applies to the niacs, which include in common article 3 the provision that those rules be respected by “each Party to the conflict,” created by agreement or cus- tom.55 The States implicitly confer on the non-governmental forces involved in such conflicts the international legal personality necessary to have rights and obligations under those rules. According to this interpretation the States have conferred on rebels through the law of niacs the status of subjects of ihl.56 If this was not applicable their legislative effort would not have the desired effect, the effet utile, and concurrently, the application and applicability of ihl

conflicts to internal wars”. Treaties, States Parties and Conventions. icrc. https://ohtda- tabases-icrc.org/ihl/INTRO/475?Open Document. 53 The Indian representative at the conference stated: “[t]wenty-five years had passed since the signature of the Geneva Conventions. Although the humanitarian principles were still valid, the world situation had undergone considerable changes….The national liberation movements were the first to respect the principles of humanitarian law because they were well aware of the misery and suffering caused by the armed conflicts of which they were the victims. It was therefore essential to supplement and develop the Geneva Conventions in order to adapt them to contemporary needs”. 6 th Meeting of the First session Mr Haskar the Indian representative. Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian law Applicable to Armed Conflicts Geneva (1974–77) Vol. xiv. 54 mt Eqbal observes “First, it is factually incorrect and conceptually narrow to limit the existence of niac only to national liberation movements. niac may take place for various reasons other than anti-colonial struggles, such as ethnic conflict or civil wars, ideology based movements (like Maoist movements in south Asia)”, and secondly “the primary criteria that governs the application of ihl is gravity of conflict on the territory of a state and its humanitarian consequences”. The “analogy can be applied to niac” and it “goes against the factual and conceptual reality of the existence of different forms of niac and also against the fundamental criteria on which ihl is premised”. Md Tabish Eqbal, Revis- iting India’s Non-Ratification of the Additional Protocols to the Geneva Conventions: Does it Hold Up Today?, JURIST — Student Commentary, Aug. 20, 2017, http://jurist.org/ student/2017/08/md-tabish-eqbal-india-nonratification.php. 55 gc i-iv, common Art. 3(1). 56 gc i-iv, common Art. 3(4).

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Naxalite Rebellion 21 by and to rebels would not confer on the latter a legal status under rules of international law (other than those of ihl).57 Article 1(1) of Additional Protocol ii offers further guidance in the definition of niacs and contextualises those armed conflicts that occur between a High Contracting Party’s armed forces and “dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”58 The Addi- tional Protocols i and ii have risen to the level of customary international law and India would be bound by the Additional Protocols’ provisions regardless of whether it had ratified the texts themselves.59 The Additional Protocol ii has been considered in Prosecutor v. Tadić, Case No. it-94-1-t, 2 Opinion and Judgment (Int’l Crim. Trib. for the Former Yugosla- via May 7, 1997) where the special tribunal adjudicating on the alleged crimes in the former Yugoslavia in the course of the civil war determined the guilt of the accused. The test applied by the Appeals Chamber to the existence of an armed conflict for the purposes of the rules contained in Common Article 3 emphasised two aspects of a conflict “the intensity of the conflict and the organization of the parties to the conflict. In an armed conflict of an internal or mixed character, these closely factors are used solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law.60 The Appeals Chamber stated that niac “is … protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”61 This includes any armed confrontation between States, whatever its scale and its duration, whether it is a “war”, considered as a comprehensive military confrontation, or any military clash “short of war”.62

57 gc i-iv, common Art. 3(4) Frits Kalshoven, “Applicability of Customary International Law in Non-International Armed Conflicts”, in Antonio Cassese (ed.), Current Problems of International Law, Milan, Giuffrè, 1975, pp. 267–285. Also see Anthony Cullen, “Key Devel- opments Affecting the Scope of Internal Armed Conflict in International Humanitarian Law”, in Military Law Review, Vol. 183, Spring 2005, pp. 66–109. 58 Ibid. 59 Emily Crawford “Blurring the Lines between International and Non-International Armed Conflicts: the Evolution of Customary International Law Applicable in Internal Armed Conflicts”, in Australian International Law Journal, Vol. 15 (2008), 2009, pp. 29–54. 60 Parah 562. 61 Parah 56 a. 62 Parah 70.

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22 Akhtar

The ruling also established the “Control test” which determines if the insurgency is self managing and not acting in conjunction with another country’s military.63 The significance of this ruling is that it also upheld the decision of the Trial Chamber that the Tribunal had the power to try in respect of crimes against humanity and that this was confined to an international armed conflict. The Chamber concluded that the limitation on the scope of crimes against humanity which was recognized by the Nuremberg Tribunal did not reflect contemporary international law.64 There was no nexus with war crimes or with an armed conflict of any character that was required by modern international law and the Statute was, in fact, more restrictive than was necessary in requiring that a crime against humanity had to have been committed in the course of an armed conflict, whether international or internal, in order to come within the jurisdiction of the Tribunal.65 Greenwood observes that the “Chamber’s decision on this point is in accordance with most modern literature on crimes against humanity and with the Rome Statute for an International Criminal Court, which makes no mention of a nexus between crimes against humanity and armed conflict”. Furthermore, he argues that “the decision in the Tadic case is a carefully reasoned and in- novative judgment which is likely to have a profound effect upon the development of international humanitarian law, particularly in the field of internal armed conflicts, where it has developed both the substantive law and the concept of criminality”.66

5 Customary International Law After the ‘Tadic’ Case

In the aftermath of the Tadic case the ihl of niac has drawn closer to the ihl of international armed conflicts: through the jurisprudence of the In- ternational Criminal Tribunals for the former Yugoslavia and Rwanda based on their assessment of customary international law; in the crimes defined in the icc Statute; because States have accepted the applicability of the Geneva Conventions and the Additional Protocols i and ii. Jean-Marie Henckaerts has argued that “the most significant contribution of customary international

63 Parah 137. 64 Para 96–127. 65 Ibid. 66 Christopher Greenwood, International Humanitarian Law and the Tadic Case, ejil, Volume: 7; Issue: 2; (1996) 265–283.

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humanitarian law to the regulation of internal armed conflicts is that it goes beyond the provisions of Additional Protocol ii. Indeed, practice has created a substantial number of customary rules that are more detailed than the often rudimentary provisions in Additional Protocol ii and has thus filled important gaps in the regulation of internal conflicts”.67 The impact is that the “gaps in the regulation of the conduct of hostilities in Additional Protocol ii have, however, largely been filled through State practice, which has led to the creation of rules parallel to those in Additional Protocol i, but applicable as customary law to non-international armed conflicts”.68 This covers the basic principles on the conduct of hostilities and includes rules on specifically protected persons and objects and specific methods of warfare. An example is that Additional Protocol ii contains only a rudimentary regulation of the conduct of hostilities but Article 13 provides that “the civilian population as such, as well as individual civilians, shall not be the object of attack … unless and for such time as they take a direct part in hostilities”.69 The Tadić test has assumed the status of customary international law, violence must reach a certain level of intensity and the parties must be sufficiently organised in order for Common Article 3 to apply. The test is designed to differ- entiate between situations of internal disturbances (governed by domestic law and human rights law) and situations of armed conflict (which are regulated, in addition by the ihl.) This needs to be distinguished for the purpose of clas- sifying the conflict as a niac and there are leading judgments that set out the principles of interpretation. In Prosecutor v Akayesu (Judgment) (International Criminal Tribunal for Rwanda, Trial Chamber i, Case No ictr-96- 4-t, 2 September 1998) [603] (‘Akayesu (Trial Judgment)’). the Tribunal stated that “whether the hostilities are of sufficient intensity does not depend on the subjective judgement and assessment of the parties to the conflict, but on the objective and actual level of violence involved in the confrontation between warring parties”. The Tribunal held that the term ‘armed conflict’ itself suggests the “existence of hostilities

67 Jean-Marie Henckaerts, Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict, International Review of the Red Cross, Vol. 87, No. 857, March 2005, p. 189, https://www.icrc.org/eng/ assets/files/other/irrc_857_henckaerts.pdf. 68 Ibid. 69 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol ii), 8 June 1977.

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24 Akhtar between armed forces organized to a greater or lesser extent. This consequent- ly rules out situations of internal disturbances and tensions”.70 However, the Tribunal established the parameter of the area of conflict in a niac that will lead to application of ihl:

Thus the mere fact that Rwanda was engaged in an armed conflict meeting the threshold requirements of Common Article 3 and Additional Protocol ii means that these instruments would apply over the whole territory hence encompassing massacres which occurred away from the ‘war front’. From this follows that it is not possible to apply rules in one part of the country (i.e. Common Article 3) and other rules in other parts of the country (i.e. Common Article 3 and Additional Protocol ii). The aforesaid, however, is subject to the caveat that the crimes must not be committed by the perpetrator for purely personal motives.71

While there is broad consensus that a situation of violence must reach a certain level of intensity and that the insurgent group involved must be structured there is no agreement on the minimum elements required to reach acceptable levels of ‘intensity’ and ‘organisation’. In Prosecutor v Milosevic (Decision on Motion for Judgement of Acquittal) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No it-02-54-t, 16 June 2004) [561,628] “the relevant portion of the Tadic test which has been consistently applied within the tribunals is “protracted armed violence between government authorities and organised armed groups”. The Tribunal also dealt with the intensity requirement to determine if it fell within a niac and stated : “One of the main contentious areas regarding the intensity requirement is whether or not the hostilities must be protracted. On one end of the spectrum is the view that a situation of very short duration, where the violence is intense and the parties organised, can reach the intensity threshold”.72 The Tribunal also expressed the view that the Kosovo Liberation

70 Parah 620. see Yves Sandoz, Christophe Swinarski and Bruno Zimmerman (eds), Com- mentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff, 1987) 1354–6 [4471]–[4479]; Also see Oren Gross and Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press, 2006) 342–3, 360. Gross and Ní Aoláin observe that high- intensity emergencies and Common Article 3 situations can overlap but they argue that where states of emergency persist and are essentially permanent, these factors imply the existence of a low-intensity internal armed conflict. 71 Parah 636. 72 Parah 36.

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Naxalite Rebellion 25

Army (kla) “did possess Control over territory to carry out sustained and concerted military operations”. There was “in fact evidence showing that the kla was, at times in 1998 and 1999, in sufficient control of certain territory in Koso- vo to conduct sustained and concerted military actions”.73 In a later case of [Limaj (Trial Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber ii, Case No it-03-66-t, 30 November 2005) 90] there was further consideration of a niac and the scope of the application of the ihl and it was held in determining “the intensity of a conflict and the organisation of the parties are factual matters which need to be decided in light of the particular evidence and on a case-by-case basis. para. 90. “[…] The factors that are taken into account include the “organisation of the parties to the conflict including the existence of headquarters, designated zones of operation, and the ability to procure, transport, and distribute arms”.74 This implies that the “definition of an armed conflict per se is termed in the abstract, and whether or not a situation can be described as an “armed conflict”, meeting the criteria of Common Article 3, is to be decided upon on the evidence.75 The factors that need to be considered “in assessing the intensity of a conflict” consideration is given to “the seriousness of attacks and whether there has been an increase in armed clashes”,76 the “spread of clashes over territory and over a period of time”,77 “any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict”,78” as well as whether the conflict has attracted the attention of the United Nations Security Council, and, whether any resolutions on the matter have been passed”.79 The Tribunal evaluated the Kosovo Liberation Army (kla) and held that it had the formal structure and organisation were necessary to be defined as a niac. It was “indicative of the extent of the kla’s developing formal organisation is the establishment of a military police, which, generally, were responsible for the discipline of the soldiers and for controlling the movements of kla servicemen.80 It accepted that the “General Staff of the kla formally moved to introduce military police within the kla. While it is not apparent on the

73 Parah 32. 74 Milosevic Rule 98bis Decision, paras 23–24. 75 Prosecutor v Rutaganda, Case No ictr-96-3, Judgement, 6 December 1999, para 93. 76 Tadic Trial Judgement, para 565. 77 Tadic Trial Judgement, para 566; Milosevic Rule 98bis Decision, para 29. 78 Milosevic Rule 98bis Decision, paras 30–31. 79 Tadic Trial Judgement, para 567. 80 para 113.

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26 Akhtar

evidence before the Chamber that disciplinary rules were then consistently enforced in kla units, the Chamber regards this step as affording clear evidence of the growing formality and effectiveness of the organisational structure of the kla” and the operational “progress of the General Staff towards ensuring that the kla functioned as a disciplined and coordinated military force”.81 The significance of the ruling is the point at which the legal rules under the ihl become applicable.82 The fact that the fighting is protracted would not seem to be not an additional condition in the reasoning adopted by the icty and it seems that it allows other criteria for the required intensity, which are more advanced than mere acts of banditry, isolated turmoil, sporadic terrorist attacks.83 This is also in accordance with the decision by the Inter-American Commission on Hu- man Rights’ in the case often referred to as Abella v Argentina (Judgment) (Inter-American Commission on Human Rights, Case No 11.137, 18 November 1997) [152] or ‘La Tablada’.84 The Commission stated that the conditions initiat- ing the application of the law of niac were present, in circumstances where “governmental forces had repulsed, through a violent military encounter, the attack by dissident armed forces, the skirmish lasting less than two days”. The indication of its existence would not be mandatory in every instance but was deemed to exist in the circumstances of this case. The application of ihl to a niac has to satisfy a range of issues that separate it from a spontaneous armed uprising and it needs to meet the threshold of a sustained, coordinated and structured organisation that has capabilities to

81 para 117. 82 In Prosecutor v Boškoski (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber ii, Case No it-04-82-t, 10 July 2008) [175] (‘Boškoski (Trial Judgment)’). the icrc provided the following stipulation: ‘In certain cases … it is unclear whether a group resorting to violence can be considered as a “party to the conflict” within the meaning of common Article 3. Apart from the level of violence involved, the nature of the non-governmental group must also be taken into account when a situation is qualified in legal terms. Where the internal structure of the group is loose or where a clandestine chain of command is at play, the question that arises is whether the group is sufficiently organized to be characterized as a party to an armed conflict. Such determinations must be made on a case-by-case basis. Only when the level of violence and the parties involved meet the requirements for a non-international armed conflict do the relevant rules of ihl apply”.’ See Rule 4 Statutes of the International Committee of the Red Cross. Adopted on 21 December 2017 and came into force on 1 January 2018. 83 For a list and analysis of the different criteria see, inter alia, icty, Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. it-04-82-t, Judgement, 10 July 2008, para. 177. 84 See iachr, Case No. 11.137, Juan Carlos Abella v. Argentina, report, 18 November 1997, para. 152.

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Naxalite Rebellion 27 extend its range of activity over a certain geographical area. This insurrection- ary force needs to have a capacity to engage in a protracted military struggle to enable it to engage the regular military of the state against which it is fighting to accomplish its strategic objectives. The Tribunals that have issued judgments to ascribe responsibility on the participants have emphasised that the facts will be considered objectively and on the basis of the evidence available against the accused.

Conclusion

The Indian state has been involved in a military conflict with Naxilite rebels that has its origins in the acquisition of land by eminent domain and the marginalisation of the indigenous communities in the tribal belt of the north central India. The lands of the Adivasis’ have been appropriated for forestry and industrialisation purposes and their title claims have been ignored and this has provided fertile ground for their recruitment by the Maoist organisation. This organised insurgency is pursuing the strategy of guerilla warfare in order to initiate a period of New Democracy after violently overthrowing the state and union governments. The launch of the armed struggle is part of a strategy that has manifested itself in India since nearly five decades and it is conducting a Non International Armed Conflict. The issue that has to be addressed is that if the Naxalite insurgency is a niac and it does have the protection of the ihl then it needs to be enforced. The application of Geneva Convention iv Article 6, is undisputed to all armed conflict and it will apply with the Protocol to the “conflict and occupation” in the war zone. The common article 3 is for application in niac which are between “non-State armed groups and between governmental armed forces or between such groups only”. However, as the four Geneva Conventions have been universally ratified the requirement that the armed conflict must occur “in the territory of one of the High Contracting Parties” has lost its importance because the presumption is that any armed conflict between governmental forces and armed groups takes place on the territory of one of the Parties to the Convention. This is contingent on two requirements which are, firstly, that for such situations to be classified as niac the hostilities must reach a minimum level of intensity which meets the threshold in Naxalite case and, secondly, the Non-state parties involved in the conflict must possess organized armed forces which can also is attribut- able to the Maoist insugency that has a command structure and the ability to sustain their campaign over an extended duration.

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28 Akhtar

The enforcement of ihl comes into effect and should be applied in this case. The scope and intensity of the conflict is sufficient for both sides to respect the ihl and be bound by it. The international bodies such as the irc should take over their functions and ensure the powers that be abide by the Conventions and rules that have been clarified and established in the case law are implemented.

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