Introduction
October 7 marked one year of the Israel-Hamas conflict. After the initial attack of Hamas that took nearly 1200 lives and 150 hostages, Israel launched its counter which has continued for more than a year. Israel’s retaliation has escalated into a humanitarian crisis in Gaza. Ministry of Health, Gaza, has informed that more than 42,000 lives have been claimed by Israel’s attacks. More than 11,000 children have been killed in Gaza. As per a UN report, this number is five times more than the total number of children who died in armed conflicts from 2005-2022. Israel’s action has drawn flak from the world community. In many countries, protests have been organized condemning Israel’s actions in Gaza and demanding a ban on the export of arms to Israel. Since then, France, Spain, Germany, and other countries have suspended or restricted arms exports to Israel. India is also an exporter but has not suspended exports yet.
Recently, in Ashok Kumar Sharma & Ors. V. Union of India, the Supreme Court of India (the SC) heard a Public Interest Litigation (PIL) seeking the revocation of licenses of companies exporting arms to Israel. The Apex Court refused to entertain the petition because they could not issue such a writ under Article 32. Availing a remedy under Article 32 requires a breach of a fundamental right. Violations of international humanitarian law (IHL) in Gaza could not have been taken to violate the fundamental rights of Indian citizens. However, the court’s dismissal was not based on this ground. The court gave other reasons supporting its decision. In a nutshell, the Supreme Court considered it a matter of foreign policy and believed that it had a sound rationale not to interfere in it. The article examines the Supreme Court’s reasoning in the above-mentioned decision and explains how they are untenable. The article argues that this was a fit case for judicial activism and the Supreme Court should have exercised its jurisdiction to protect larger interests. The article then makes a shift towards India’s obligation under International Law and explains how the Government of India has a duty to withhold aiding such violations of humanitarian law.
Supreme Court’s Faulty Premises
The SC cited several reasons for not entertaining the petition. Firstly, the State of Israel is a sovereign state and not amenable to the court’s jurisdiction. The presence of Israel would be necessary to enter a finding of allegations against it. The Supreme Court did not consider that the relief has not been sought against Israel but the Government of India. The presence of Israel is not necessary to grant such relief. Even if the court wanted findings of allegations against Israel, there is enough evidence available from reputed global human rights agencies to reach a conclusion. A recent UN inquiry has found out that Israel’s acts in Gaza amounts to both war crimes and the crime against humanity of extermination. The ICJ has already come to the conclusion that all states are ‘under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence’.
Secondly, the SC stated granting such relief would ‘implicate a judicial breach of international contracts and agreements. However, contractual obligations cannot take precedence over IHL. In February 2024, the Hague Court of Appeal directed the Dutch government to suspend supplying F-35 jet parts to Israel. The Court refused to give a wide margin of appreciation emphasizing that compliance with the Geneva Conventions is of paramount importance. The SC was requested to intervene and effect a similar suspension in order to prevent a genocide and severe violations of IHL. In the given scenario, the SC’s action would not have constituted a ‘judicial breach’.
Thirdly, the court stated that the authority and jurisdiction of conduct of foreign affairs is vested with the Union under Art.73 and 253 of the Indian Constitution. The court overlooked the fact that there is no express bar in the Constitution on hearing foreign matters. When the Constitution bars the jurisdiction of courts in a particular kind of matter, it clearly expresses so. For example, Article 329 clearly mentions that any law relating to the delimitation of constituencies shall not be called into question in any court. Furthermore, Art. 51(c) of the Constitution casts an obligation on the State to endeavor to foster respect for international treaty and obligations. The Supreme Court may have reminded the State of its constitutional duties instead of an outright dismissal of the petition.
Unwarranted Exercise of Self-Imposed Restraint
The court exercised self-imposed restraint in entering into areas of foreign policy. According to it, the restraint is grounded in sound rationale. It is not a case of foreign policy as much of international commerce. What was prayed before the court was not to interfere in foreign affairs but to frustrate some commercial transactions to ensure that India fulfills its obligation under the IHL. There have been cases in the past where the Supreme Court has drawn heavily from international covenants to formulate policies and guidelines for the protection of the human rights of vulnerable groups.
In Lakshmikant Pandey v. Union of India, the SC laid down procedural guidelines for inter-country adoption. The court incorporated several provisions from the Draft Guidelines of Procedures Concerning Inter-Country Adoption formulated at the International Council of Social Welfare Regional Conference of Asia and Western Pacific held in Bombay in 1981. Similarly in Vishakha v. State of Rajasthan, the Supreme Court formulated guidelines for the prevention of sexual harassment of women in the workplace by relying on principles from the Convention on Elimination of All Forms of Discrimination against Women. The court also suggested that the international conventions are to be read in domestic laws to fill the vacuum in the existing domestic legal framework.
The Apex Court has emphasized time and again that international law can be applied to promote human dignity and enhance conformity with the global human rights regime. In K.S. Puttaswamy v. Union of India, the court held that the Court must give an interpretation that abides by the international commitments of the country especially where its constitutional and statutory mandates indicate no deviation. The court noted that under Articles 51 and 253, the State is required to fulfill its international obligations.
There was not any repugnancy between domestic law and international law in the rejected PIL. There was also no required exhaustive act from the Supreme Court such as laying down of guidelines or procedures. The Court simply had to issue a direction asking the Centre to comply with international obligations by suspending the export of arms to Israel. Such direction would have been in line with the jurisprudence developed by the Supreme Court over the years regarding the implementation of international law and obligations.
India’s Obligation under International Law
India stands in a dubious position. It has voted in favor of a ceasefire but continues to supply arms to Israel. Even though the Supreme Court has refused to intervene, it does not in any way lessen India’s obligations under international law.
India’s obligations stem from the UN Charter and the ratification of the Genocide Convention and the Four Geneva Conventions. Article 2 Para 5 of the Charter requires the States to refrain from assisting any State against whom UN is taking preventive or enforcement actions. Article 1 of the Genocide Convention obliges the State parties to prevent and punish genocide. India has also ratified the Four Geneva Conventions of 1949. India enacted the Geneva Convention Act, 1960 to incorporate the treaty obligations. Common Article 1 of the Geneva Conventions casts an obligation on the State Parties to respect and ensure respect for the Conventions in all circumstances. The article has been interpreted to bind the states to prevent grave breaches and stop facilitating or assisting such violations. In light of these conventions, India is under a duty to stop exporting arms to Israel to prevent genocide, and war crimes, and ensure respect for IHL.
Another set of obligations emerges from customary international law and experts’ opinions. Article 16 of the Responsibility of States for Internationally Wrongful Acts makes a State responsible for aiding or assisting another State in the commission of internationally wrongful acts. The state would be responsible if it had the knowledge of the circumstances of the acts and that it would be internationally wrongful if committed. The ICJ in its advisory opinion has stated that all the State Parties to the Fourth Geneva Convention are under an obligation to ensure compliance of IHL by Israel. UN experts have also warned that the supply of arms to Israel would ‘risk state complicity in international crimes’ and may constitute serious violations of human rights. There are no two opinions about serious violations of IHL by Israel in Gaza. There is an increased likelihood that any weapon being supplied to Israel may be used to commit war crimes. India should not risk any complicity in such acts and avoid international responsibility for aiding or assisting in war crimes.
Many countries have made legislation for regulating arms export. The US has Arms Control Act, 1976 for regulating export licenses for arms and military equipment. The US allows the sale of weapons only to friendly countries for internal security and self-defense. Similarly, the UK’s Export Control Act and EU regulations require an assessment of arms export to ensure compliance with IHL. India lacks any regulation of this kind. The Customs Act empowers the Central Government to prohibit the import or export of any goods for the implementation of any treaty, agreement, or convention with any country. Similar provisions are present in Sections 3(5) and 2(l) of the Weapons of Mass Destruction Act, 2005 and the Foreign Trade Act, 1992, respectively. Apart from these general provisions, India does not have any explicit framework to ensure compliance with IHL. A lack of a protective framework and inaction in controlling exports may eventually lead to a breach of international obligations by India. The judiciary had the opportunity to hold the government accountable by highlighting these obligations. The Court’s refusal to entertain the PIL puts the Government in a delicate position. Where the executive is reluctant to take any step, the court’s intervention would have saved India from unsavory criticism by ensuring adherence for IHL by India.
Conclusion
The Court’s refusal to entertain the petition comes as a disappointment especially when similar reliefs are being granted by the courts in other countries. The SC’s rationale for not entertaining the petition lacks depth and fails to convincingly justify the decision. It is imperative to recognize that respect for IHL takes precedence over commercial or any other concerns. The Court’s application of the non-interference principle in foreign matters was also misguided. The Indian Constitution does not bar the courts from hearing foreign matters. In the past, the SC has relied on international conventions and ensured compliance by India. India has a clear obligation under IHL to cease any form of assistance to Israel and the SC had enough constitutional mandates to remind the Government of its duties under international law in the ongoing conflict. The SC could have played a more enabling role in India’s commitment to international peace and security.
Hammad Siddiqui and Sarim Uddin are third-year law students at Jamia Millia Islamia.
Picture Credit: The Daily Guardian
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