India’s defence exports and humanitarian law
Context
Recently, a group of retired diplomats, public intellectuals, academicians and activists had filed a petition in Supreme court seeking a halt to arms exports to Israel amid the Gaza conflict.
- The article – “India’s defence exports and humanitarian law”, addresses a legal and ethical issue surrounding the issue of India’s export of defense equipment to countries like Israel, which are accused of violating international humanitarian law (IHL).
- It also explores the need for India to align its defense export policies with global standards on arms trade and IHL compliance.
Relevance:
GS-02 GS-03 (Security, International Relations)
Dimensions of the Article
- Background
- About International Law
- Key arguments
- Way forward
Background:
- A petition was filed in the SC, stating that supplying arms to Israel violates India’s obligations under international law.
- It was argued that it breaches the fundamental rights to life and equality and Article 51C of the Indian Constitution, which directs the State to respect international law.
- Apparently, the Supreme Court of India declined to interfere, stating that foreign policy is beyond its purview.
- The central issue is whether India should continue exporting defense equipment to countries like Israel, considering allegations of war crimes in Gaza.
About International Law:
- Arms Trade Treaty (ATT): It is a international treaty that aims to regulate the global trade of conventional arms. It mainly checks the purpose of the exporting weapons, and if found that the weapons will be used to commit war crimes, it prohibits those countries from exporting such weapons.
- India’s Position: As India is not a signatory to the ATT, it is not legally bound by this treaty. However, some principles of the ATT are part of customary international law, which may still have implications for India.
- Geneva Conventions: India is a part of this convention and the Common Article 1 of the Geneva Conventions, places an obligation on all states to ensure respect for IHL. Which implicitly means that India is bound not to supply arms if it is known or expected that these weapons will be used to violate IHL, such as committing war crimes.
Key arguments:
- India’s IHL Obligations: As a signatory to the Geneva Conventions, India has to refrain itself from exporting arms if it is likely that the importing country will use them to breach IHL obligations.
- Legal Gap in Indian Law: Unlike the U.K. or EU countries, India do not have a domestic law that specifically requires the assessment of IHL compliance of countries receiving Indian defense equipment. Moreover, the existing laws like Foreign Trade Act (FTA) and Weapons of Mass Destruction Act (WMDA), do not impose such a requirement, creating a legal gap.
Way Forward:
- Amending Indian Laws: India should amend its domestic laws like the WMDA and FTA to be in IHL compliance of countries like U.K. or EU and also to align India’s defense export policies with global norms.
- Strengthening Credibility: By integrating the IHL assessments into India’s defense export laws, it would help India enhance its reputation as a responsible arms-exporting nation.
- Judicial Incorporation of International Law: The Supreme Court of India has, in past cases, used international law to fill gaps in domestic laws. This issue provides another opportunity for the judiciary to use international legal principles, ensuring that India’s defense exports align with IHL obligations. However, legislative changes would provide a more concrete and long-term solution.
Conclusion:
- Beyond legal and constitutional violations, there is also a strong ethical argument against supporting anyone engaged in alleged acts of genocide, war crimes, or crimes against humanity.
- India should not forget its stance of non-alignment and peace. Risking itself by sending arms would mean disrespect for the international law obligations, constitutional principles, and ethical considerations.
