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Fostering Civil Military Relations – A Legal Perspective

The abject failure of the military approach (Jeevan Reddy Committee Report: 2005) adopted by the Indian State to combat the armed movement in Manipur might have propelled the holding of the Seminar on Fostering Civil – Military Relations at the Manipur University in January this year. The event which was composed of Universitizens– Military –civilians hardly takes place in any part of the intensely militarized globe. The theme of the Seminar and tempo that was current inside the Centenary Hall on that day presented one of the most vivid scenarios which Manipur has been experiencing as a conflict ridden State since its annexation to India in 1949.

Certain core issues which should have been entailed though unaddressed in the rare military-civil event are pertinent to discuss in the context of the prevailing Manipur – India conflict. The political agendas and strategies of the parties involved in a conflict may subjectively vary; certain rules of conduct which the parties therein are bound to comply are however, mandatory and universal. The Seminar had successfully garnered sufficient critiques. Though, to discriminate the legal and political issues involved in such a deliberation is unscientific, the article attempts to examine the milieu from a legal perspective.

First Issue: Annexation

Serial number 19 of the First Schedule under the category of “The States” of the Constitution of India defines Manipur thus: “The territory (sic. Manipur) which immediately before the commencement of this Constitution (Sic. of Indian State) was being administered as if it were a Chief Commissioner’s Province under the name of Manipur”. It has re–affirmed the historical fact that Manipur State existed or preceded the Union of India. It is testimonial to the existence of an independent and sovereign State of Manipur before the notion of India was ever imagined or shaped.

‘Manipur was not a kingdom with a national character’. A kingdom with a national character is not recognized under international law. Such entities do not have the capacity to enter into agreements and treaties such as the 1762 Anglo–Manipuri Treaty. Both the parties to the Treaty of Yandaboo which was concluded following the end of Burmese occupation recognized the independent and sovereign status of Manipur. Thus, the independent and sovereign status of Manipur is legally confirmed by these two international instruments. The international status of pre–1949 Manipur must be determined in accordance with historical records and principles of international jurisprudence.

The 1949 Merger Agreement (21st Sept.) with India was declared as an ‘Annexation’ by a resolution of the People’s Democratic Movement in 1995 (PDM: 1995). The legal principles which help to conclude the act as annexation is worth revisiting.

The Vienna Convention on the Law of Treaties, 1969 invalidates a treaty which has been concluded by threat or use of force by one party to forcibly obtain the consent of the other party. Article 51 of the 1969 Vienna Treaty Law provides that the expression of the State’s consent to be bound by treaty which has been procured by the coercion of its representatives through acts or threats directed against him shall be without any legal effect.

Article 52 further provides: A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. The International Court of Justice in the Fisheries Jurisdiction case (reported in 1973) had among others, stated that a treaty concluded under threat or use of force is void. The principle that territorial acquisition resulting from threat or use of force is illegal was also reaffirmed by the ICJ in the Construction of a Wall in Occupied Palestinian Territory (decided on July 9, 2004 and Construction of Wall case hereafter). International law disqualifies the illegal occupation of the territory of Manipur by India consequent to the 1949 void treaty.

The International Court of Justice in the Construction of Wall case had stated that annexation of a territory by use of force is violation of the legal principle prohibiting the acquisition of territory by (use of) force and it interferes with the territorial sovereignty of the annexed State. It is a clear violation of the principles of international law particularly the principle of non–use of force. Article 2 (4) of the United Nations Charter law prohibits threat or use of force against the territorial integrity or political independence of States, or in any other manner inconsistent with the Purposes of the United Nations.

The principle of non-use of force enshrined in Article 2 (4) of the UN Charter, among others, has attained the status of international customary law or the peremptory norm of jus cogens. Exceptions to this rule are the rights of self defense; and self determination by peoples against colonial, alien and racist regimes.

Forcible or non-ratified annexation and subsequent usurpation of power by military occupation amounts to aggression. Aggression is an international crime against peace. Article 1 of the Definition of Aggression adopted by the General Assembly of the United Nations in Resolution 3314 (XXIX), 14th December, 1974 provides: “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition”.

When a State is annexed forcibly against the free will of the annexed State by threat or use of force or in any other manner inconsistent with the Charter of the United Nations such act amounts to aggression. Aggression is an act which is prohibited under the rules of international law. Article 2 of the Aggression definition further says that the first use of armed force by a State in contravention of the (UN) Charter shall constitute prima facie evidence of an act of aggression. Military occupation resulting from annexation constitutes aggression. Thus, Article 3 provides, among others: Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of Article 2, qualify as an act of aggression:

(a) the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof.

Article 5 (1) says that there is not any justification for aggression. Article 5 (2) declares aggression as a crime against international peace. Aggression gives rise to international responsibility. Article 5 (3) qualifies any territorial acquisition resulting from an aggression as unlawful and thus, without legal validity. The Nuremberg Military Tribunal has characterized the crime of aggression as the supreme international crime which contains within itself the accumulated evil of the whole (Donald M. Ferencz: 2009).

Thus, by the yardsticks provided under the international law regime, the Indian State had committed, in 1949 the twin international crimes of annexation and aggression against the territorial integrity and political independence of the State of Manipur in violation of the universal principle of non-use of force. Though the episode has been suppressed, unsettled, by geo-politico and military agendas, the regime of the international rule of law has an overdue assignment concerning these international crimes in regard to the struggling peoples of Manipur.

If, in the Seminar, the annexation of Manipur by India was discussed as the subject-matter and the root cause of the turbulence which the State has been going through since 1949, it would have been a landmark event towards bringing down tensions in Manipur-India relations. Holding of such an event with people’s participation is historically overdue to Manipur.

Second Issue: International Conflict

Historical records substantiate the fact that the annexation of Manipur triggered off the national liberation movement (NLM hereafter). When the rebellious forces of the erstwhile independent State of Manipur campaign an armed movement against the colonial, alien and racist rule of the Indian State, the conflict that ensues between is one of international character rather than a simple internal law and order problem.

The provisions of Protocol I Additional to the Four Geneva Conventions of 1949 have reinforced the international position of liberation movements. Where an armed non-state entity representing NLM declared its intention and acceptance to adhere to the provisions of Article 3 common to the Four Geneva Conventions, 1949 it corroborates the existence of an international armed conflict (RPF: www.oocities.org/capitolhill/congress/4568/documents/main_d.html.)

The conflict situations carry the unmistakable stamp of international issues which affect the peace and security of the world. The conflicts in the peripheral States (sic Manipur) assume the international character (Sanajaoba: 2000).

Armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self determination are under the 1997 Protocol I of the Geneva Conventions, assimilated to international armed conflicts, although they might otherwise appear to be essentially civil wars (Oppenheim: 2003). Higgins argues that armed conflict implies a certain level of intensity going beyond isolated acts of violence. The armed struggle for self determination, for freedom from colonial domination, from alien occupation and from racist regimes, which had been developing in political legitimacy over the years through the adoption of various resolutions by the UN and by other regional organizations, was finally legally recognized as a conflict of an international character. It was a victory in political terms for the oppressed over the oppressors (Neolle Higgins: 2004).

The use of force to suppress and deny a people to exercise their right of self determination through NLM is prohibited by international law. The right of NLM to use force in exercise of this right is legitimate and guaranteed under the principles of international law and the UN system. However, the methods and means to adopt the use of force by the NLMs are limited. The whole corpus of jus in bello comes into play in the international conflict between groups (sic RPF, UNLF) representing NLM and High Contracting State Party (sic India).

The special rights, obligations and status of NLMs are by virtue of the universal principle of right of self determination. The right of self determination being pursued by groups representing NLM has been confirmed and legitimized a step further when the ICJ declared that it is today a right ergaomnes (Construction of Wall case).

All peoples have a right to self determination. The right to self determination is a long cherished collective right which has accommodated the legitimate aspirations of many peoples who were formerly under colonial and subjugated situations. The foundation of the Indian freedom struggle against the colonial, alien and racist British regime was also laid on the premises of this universal principle. The UN Charter, UDHR, Declaration on the Principles of International Law concerning Friendly relations and Co-operation among States, ICCPR, ICESCR, among other international instruments recognizes and guarantees the right of self determination. Article 1 (2) of the UN Charter and Article 1 common to both ICCPR and ICESCR provides: “All peoples have a right of self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

Peoples under colonial and racist regimes or other forms of alien domination have a right to struggle to that end i.e. to achieve freedom and independence and also the right to seek and receive support, in accordance with the principles of the Charter and in conformity with the Declaration on the Principles of International Law concerning Friendly Relations and Cooperation among States.

The General Assembly Resolution 1514 (XV) of 14th December, 1960 which adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples formally inaugurated the de-colonization process under the United Nations regime. The Declaration enunciated the principle of self determination as a right of peoples, and its application for the purpose of bringing all colonial situations to a speedy end. Through this resolution, the General Assembly proclaims the necessity of bringing to a speedy and unconditional end of colonialism in all forms and manifestations. The urgent appeal made to the international community to take steps to bring an end to colonialism immediately is significant in the context of peoples who are still struggling against alien domination and racist regimes and who are yet to exercise their right to self determination. Thus, to this end, the resolution provides under para 5, inter alia: “Immediate steps shall be taken in Trust and non-Self Governing Territories or all other territories, without any conditions, or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or color, in order to enable them to enjoy complete independence and freedom. Any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the UN”.

The ICJ in Western Sahara case (reported in 1975) stated that the application of the right of self determination requires a free and genuine expression of the will of the peoples concerned. The ICJ in the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, 1970, with reference to the non-self governing territories stated: “A further important stage in this development was the Declaration on the Granting of Independence to Colonial Countries and Peoples which embraces all peoples and territories which “have not yet attained independence.”

Third Issue: International Humanitarian Law

The armed confrontation between groups representing the NLM and armed forces of the Indian State necessitates the application of the rules of law relating to conduct of hostilities. Both the parties to the conflict are under an obligation to comply with certain rules of warfare. These rules are mandatory in character and are not permissible to derogate from under any circumstances. Since the conflict is taking place between groups representing NLM and a High Contracting State Party, the provisions of the Geneva Conventions and Protocol I are applicable in Manipur. Article 1 (4) of 1977 Protocol I provides : “The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.” Thus, the armed conflict between (sic Manipur-India) groups representing NLM and a High Contracting State Party falls under the ambit of Protocol I and hence, both the parties to the conflict are bound by its humanitarian provisions. India being a party to the Four Geneva Conventions and by virtue of the enactment of the Geneva Conventions Act, 1960 international humanitarian law (IHL hereafter) is applicable to its armed forces engaged in the armed conflict in Manipur. Human rights violations taking place as a consequence of the conflict cannot be justified as ‘aberrations’. Indian armed forces are under serious legal obligations to ensure respect for IHL and human rights law both under international and constitutional rule of law. More specifically, Articles 20 and 21 of the Constitution of India constitutes norm of jus cogens which must be respected at any circumstances.

Armed non-state entities representing NLM are under serious legal obligations arising out of IHL. When these groups pursue their struggle in exercise of right of self determination under principles of international law, their accountability and responsibility is inescapable. The intention and willingness to adhere to the provisions of Geneva Conventions and its Protocols by groups representing NLM can be done by making a unilateral declaration. For instance, FLN (Nigeria) declared its intention to apply and to be bound by the Geneva Conventions law in 1956 and1958, PLO (Palestine) in 1969, ANC and SWAPO (Africa) in 1980 and 1981 respectively and RPF (Manipur) in 1997. Thus, Article 96 (3) provides:

“The authority representing a people engaged against a High Contracting Party in an armed conflict of the type referred to in Article 1, paragraph 4, may undertake to apply the Conventions and this Protocol in relation to that conflict by means of a declaration addressed to the depositary (Swiss Federation).

Such declaration shall upon its receipt by the depositary, have in relation to that conflict the following effects:

(a) the Convention and this Protocol are brought into force for the said authority as a Party to the conflict with immediate effect;

(b) the said authority (sic groups representing NLM) assumes the same rights and obligations as those which have been assumed by a High Contracting Party (sic India) to the Conventions and this Protocol; and

(c) the Conventions and this Protocol are equally binding upon all Parties (sic groups representing NLM and Indian State) to the conflict.

NLMs will be met with obstacles to their accession to the Geneva Conventions, however, that does not stop them from declaring their intention to apply and be bound by these Conventions (Neolle Higgins: 2004). Groups representing NLM and struggling for self determination are obliged to make such a declaration under Article 96 (3) of Protocol I. The UN General Assembly has called for application of the Geneva Conventions to wars of NLM for e.g. Resolution 3103 (XXVIII) of 1973. However, the provisions of IHL particularly common Article 3 is applicable in conflict situations such Manipur-India conflict, immaterial of the fact that whether the parties to the conflict have made declaration to that effect. For the conventions on IHL have attained the status of customary international law (ICJ in Nicaragua v. USA, 1986).

The much familiar Common Article 3 of the Four Geneva Conventions is a norm of jus cogens which no party to a conflict can derogate from. The parties are under a legal obligation to comply with the principles of this universal principle. This principle which lays down minimum basic rules of warfare or IHL obliges both the parties, among others, not to attack civilian persons, non-combatants, horse de combat, prisoners of war, without any distinction as to race, color, religion or faith, sex, birth or wealth, or any other similar criteria. It absolutely prohibits:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

The peremptory character of Article 3 implies that the parties to a conflict whether, international or non-international, are duty bound to comply with the basic requirements laid down therein immaterial of the fact that whether the parties to the conflict have ratified or otherwise become party to the Geneva Conventions. It is because the norm of Common Article 3 and the conventions on IHL has attained the status of customary international law (ICJ in Nicaragua v. USA, 1986).

The necessity to comply with certain basic humanitarian law is very serious and the violators are accountable and liable for prosecution. More so when the concept of individual criminal responsibility has been successfully established as to warrant prosecution for international crimes after the coming into force of the Rome Statute and functioning of the International Criminal Court since 2002. It implies without hesitation that all and every member of the armed force(s) or combatant(s) taking part in a conflict, whether fighting as a member of the NLM or of the State armed forces are liable for prosecution for their individual acts. Superior order is no more an excuse to avoid individual criminal responsibility.

The combatants of the NLMs are lawful combatants under the Geneva Conventions law. “If States treat NLM combatants as lawful, then necessarily the protection for civilian population is increased legally, more extensive restriction on the methods and means of warfare and thus, much greater humanitarian protection for all those embroiled in the armed conflict”.

Thus, when State regulates and applies international humanitarian law in a conflict situation and treats NLM combatants accordingly, the protection for non-combatants, unarmed persons and civilians also increases. This is one way which humanitarian objectives of the IHL can be achieved.

In such a situation, the whole conflict landscape is regulated under the IHL, and the central objective of the IHL i.e. protection of the unarmed, civilians and the non-combatants, hors de combats, etc is best ensured. IHL does not in any way question or consider the justness or justification of the conflict which is taking place, its sole objective is the protection of humanity from the consequences of brute force (Hans Peter Gazzer: 1993). It does not have any interest in the prevailing conflict. Its mandate is the protection of the defenseless humanity only.

The whole exercise of civic-military program is beyond the mandate of the armed forces. It is very political in nature. Therefore, without addressing these realities to discuss about fostering relations between the military and civilians would be a futile exercise. Rules of law emanating from International law and (Indian) constitutional law do not provide for any provision which says there should be a relationship between the military and civilians. It is an extra constitutional exercise which is not guaranteed by law.

*The article is written by Laishram Malem Mangal

(Courtesy: The Sangai Express)

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