journal of international humanitarian legal studies 8 (2017) 1-28 brill.com/ihls Naxalite Rebellion: Disenfranchisement, Ideology and Recognition of a Non International Armed Conflict 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 corpora- tions 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 hu- man 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 © koninklijke brill nv, leiden, 2018 | doi 10.1163/18781527-00801001Downloaded from Brill.com09/24/2021 11:31:15PM via free access <UN> 2 Akhtar 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. journal of international humanitarian legalDownloaded studies from Brill.com09/24/2021 8 (2017) 1-28 11:31:15PM via free access <UN> Naxalite Rebellion 3 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 near- ly 12,000 deaths in the last two decades including 2,700 of security forces per- sonnel 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 ex- perience 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 journal of international humanitarian legal studiesDownloaded 8 (2017)from Brill.com09/24/2021 1-28 11:31:15PM via free access <UN> 4 Akhtar by the question about the scope of the conflict. This is because the interna- tional 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 con- flict 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 com- mon to all four Geneva Conventions. Those provisions are developed in and supplement- ed by Geneva Protocol ii of 1977.