In June 2020, tensions heightened between India and China in Galwan Valley at the Line of Actual Control (“LAC”), when a fight broke out between the Bihar regiment of the Indian army and members of the People’s Liberation Army of China. This resulted in the martyrdom of twenty soldiers and injury of several others from India’s front, and the same for an undisclosed number of Chinese soldiers. However, not a single gun-shot was fired in this stand-off. In fact, there had been no gunfire at the LAC since 1975, as per a long-standing tradition to maintain peace in the region and to honour what had become a mark of mutual respect. This tradition was also codified in Article VI(1) of a confidence-building agreement which was signed in 1996 to further Indo-China peace at the LAC. According to the agreement, members of the armed forces of both states cannot open fire or use explosives within two kilometres of the LAC (except small range firearms for routine firing activities). Thus, the stand-off involved a relatively primitive form of hand-to-hand combat, featuring makeshift weapons of rocks, batons and iron rods, that lasted for hours, leading to the final casualties and injuries.
The episode led to great anxiety of escalation from both fronts. Many analysts commented that it must not escalate to an armed conflagration, as it would hurt the interests of both states. However, having been described as one of the ‘worst’ clashes since Kargil, an issue that requires cognizance is whether there was an international armed conflict (“IAC”) during the stand-off, that would prompt the application of international humanitarian law (“IHL”). The applicability of IHL is a paramount concern as several Indian soldiers had been detained by China, with India concurrently claiming to have had detained Chinese soldiers. While the soldiers were returned shortly after, these soldiers would not have enjoyed Prisoner of War (“PoW”) protection during their detention as provided for in IHL, without an IAC having arisen. Thus, this question also determines if IHL would have continued to protect them in the hypothetical event that their detention extended longer.
This piece will first interpret different provisions of the Geneva Conventions through the mainstream schools of treaty interpretation, to determine whether the hand-to-hand combat in this standoff may have ipso facto given rise to an IAC. Subsequently, the piece focuses on the territorial incursions that occurred in the context of the Sino-India stand-off, and their bearings on the existence of a potential IAC between the countries.
The Arms Question
IHL protection applies wherever there is an IAC, as per Common Article 2 to the Geneva Conventions. In Prosecutor v. Dusko Tadić (1995), the International Criminal Tribunal for the former Yugoslavia held that an IAC arises wherever there is “a resort to armed force between States.” (¶97) This has now become the generally accepted threshold, as confirmed by the International Committee of the Red Cross in its commentary to Common Article 2 (¶251).
The view that the “resort to armed force” is synonymous with the inter-state “use of arms” has been endorsed by the Red Cross, and stands confirmed by several instances of state practice where inter-state “force of arms” or “use of arms” is taken to constitute an IAC. A single such exchange of such inter-state use of arms can give rise to an IAC. This is what is commonly termed as the “first-shot” rule, i.e., a single shot suffices for an IAC to arise. Thus, determining when an IAC arises is purely a factual assessment of whether there has been an inter-state “use of arms”. It is here that the Galwan Valley stand-off becomes contentious, particularly where the assessment is unique to a fact pattern calling for determination surrounding whether fist-fighting or the use of batons constitutes the “use of arms”.
Many authors sought to establish that an IAC indeed arose ipso facto from this combat incident (see here and here). Their claims are based on the Red Cross’ commentary to Common Article 2, where it states that no minimum level of “hostilities” is required for IACs to arise, and that “minor skirmishes” can also give rise to IACs. However, the Red Cross makes both these comments in the context of the use of weapons traditionally understood to constitute “armed force”, such as launching torpedoes and shells (¶¶269-270). Since the Red Cross presupposes the existence of “armed force” in these comments, these claims fail to address the preliminary question of whether this untraditional combat counts as the “use of arms” to begin with.
Interpreting the “Use of Arms”
Article 31(1) of the Vienna Convention on the Law of Treaties, 1969 (“VCLT”), the starting point for treaty interpretation, highlights the good faith obligations of treaty parties. It lays down that the terms of a treaty must be interpreted according to their “ordinary meaning” in their “context” and in light of its “object and purpose.” There are three predominant approaches used in making this assessment — the ‘textual’ school, the ‘teleological’ school, and the ‘intent’ school.
The Geneva Conventions often use the word “arms” in the conjunctive phrase “arms and ammunition”. As per the textual school, the Oxford Learner’s dictionary, the Cambridge dictionary, and Merriam-Webster all realise that the ordinary meaning of “arms and ammunition” connotes military-grade weaponry used in warfare that has some kinetic force, such as grenades and bombs. The Red Cross also tends to use this conjunctive phrase (see here and here) and has used “arms” as equivalent to military-grade weaponry.
As per Article 31(2)(b) of the VCLT, recourse may be had to other treaties which are “related to” the primary treaty in question; particularly to understand the “context” of the terms concerned. Thus, the Protocol Additional I to the Geneva Conventions also adopts the conjunctive phrase “arms and ammunition”. Moreover, the Arms Trade Treaty (2014) is relevant since its preambular principles include ensuring respect for the Geneva Conventions. Article 2(1) of this treaty defines “conventional” arms to include battle tanks, warships, missiles, small arms and light weapons (such as pistols or rifles). As a corollary, “unconventional” arms are taken to include emergent weapons such as lethal autonomous weapons systems. In summary, the ordinary meaning of the word “arms” in the context of the Geneva Conventions connotes a weapon that is treated to be “military-grade” and has some kinetic force. Needless to say, this would exclude fist-fighting or the use of make-shift batons as neither are military-grade weapons or involve kinetic force as presently understood.
The “object and purpose” of the Third Geneva Convention concerning PoW protection is to mitigate the effects of “war” (as well as armed conflicts, when read with Common Article 2). Thus, the ‘intent’ school’s interpretation would align with the textual school’s, since the denial of protection outside such situations as defined in Common Article 2 would be compatible with the parties’ intent. As a result, it is arguable from both these schools that fist-fighting or the use of batons did not ipso facto give rise to an IAC during the Galwan Valley stand-off.
In contrast, the ‘teleological’ school allows for overriding both the text of the treaties and the original intent of the parties, so as to substitute them with a deeper reading of the purpose of the conventions. Such a reading reveals that the Geneva Conventions must be applied to their “fullest extent” required by the persons it protects. Therefore, this school may conclude that even fist-fighting must constitute an IAC in order to protect all members of the armed forces involved in the Galwan Valley standoff.
Yet, this may result in diluting the present IAC threshold, in that any scuffle where one soldier of a state lands a punch unto a soldier of another state may be open to being characterised as an IAC as per the “first-shot” rule. It is debatable if the existing body of IHL can accommodate this interpretation, despite the seemingly narrower intent of the parties. However, for the application of IHL over this stand-off, I contend that this convoluted attempt to establish an IAC is unnecessary. This is if one considers the concurrent fact of military intrusions that began before the stand-off.
Incursions by Chinese Troops Clarified Existence of an IAC
Since May 2020, India claims that China had actively begun launching incursions, i.e., its troops began to cross the LAC into what India regards as its territory, to erect military structures (now confirmed through satellite imagery). Indian officials reported that thousands of Chinese troops forced their way into what China had earlier accepted was Indian territory, coupled with changes in their patrol patterns at the LAC.
In Armed Activities (2005), the World Court held that an IAC arose automatically when Ugandan troops had actively been deployed into the Democratic Republic of Congo’s territory without the latter’s consent (¶208). Such a situation is unequivocally recognised by the Red Cross’ commentary to Common Article 2 as amounting to a use of “armed force,” even without the use of “arms” as explained earlier (¶256). By analogy, since Chinese troops were deployed at what was understood to be Indian territory beyond the LAC without India’s consent, an IAC indeed arose in May when these intrusions had begun, much before the June combat occurred. Thus, all detainees enjoyed PoW protection and would have continued to enjoy it for however long either state had taken to return them.
The debate over whether fist-fighting or the use of make-shift weapons in the initial days of this stand-off could have counted as “use of arms” is insightful in highlighting the implied limits of the IAC threshold, which are often taken for granted. However, tensions between China and India have since June have kept plummeting to such alarming levels that at this juncture, even absent the fact of incursions, there can now be little doubt that an IAC exists between the two states.
In September, the decades-long tradition of not opening fire at the LAC was breached in Ladakh. China claimed that Indian soldiers opened fire to intimidate their Chinese counterparts, while India counter-claimed that it was the Chinese soldiers that fired shots as a military provocation. India’s rules of engagement at the LAC have also changed, with soldiers being allowed to carry open arms in response to these incidents. Analysts now opine that unless both states show mutual trust, it is probable that they could be pushed to the brink of war. The last thing both states need during a global health crisis is further escalation fuelled by nationalist fervour. Swift diplomacy and commitment to peace is needed not only in words but also in action by both states urgently.
Abhijeet Shrivastava is an Associate Editor at the Jindal Forum for International and Economic Laws. He is currently pursuing his B.A., LL.B. (Hons.) at Jindal Global Law School.