ARMED CONFLICT SITUATIONS AND APPLICABLE INTERNATIONAL HUMANITARIAN LAW VIS-À-VIS THE FIGHT AGAINST RACIST REGIMES IN THE EXERCISE OF THE RIGHT OF SELF-DETERMINATION – A CASE STUDY OF MANIPUR

This thesis was written by Yumnam Premananda Singh, Assistant Professor, Mizoram Law College, Aizawl, and originally posted on E-pao.net

ABSTRACT

Violence and genocide often arise from racial and ethnic discrimination. Discrimination can easily lead to racially and ethnically motivated violence, which in turn, may escalate into genocide.

Manipur had been an independent nation before 1949. Manipur has been under the shadow of racist and repressive legislation the Armed Forces (Special Powers) Act, 1958 for last 50 years and armed conflict between State and non-state actors and between non-state actors are also increasingly violent because of the racist regime and persistent demand for self determination. International standard concerning applicable International Humanitarian Law (IHL) are fragrantly violated by both parties and blanket impunity has been granted to the State actors in violation of established norms of International Human Rights and Humanitarian Laws. Many lives including civilians have been loss, people are brutally tortured, raped, murdered besides committing innumerable cases of extra judicial execution because of recurrent armed conflict prevailing in Manipur.

Not a single case of prosecution for the violation of Genocide Convention and commission of war crimes and crimes against humanity has been reported. The civilian population and property is the main victim of the hostilities and no reparation so far. In this juncture the mitigation of racist and genocidal implication of armed conflict lies strict implementation and enforcement of applicable provisions of IHL in Manipur.

Moreover, in compliance to the Constitutional mandate, the Government of India (GOI), being a party to the four Geneva Conventions, 1949 should recognize the existence of armed conflicts in Manipur to facilitate enforcement of IHL effectively with a view to mitigating the consequences of protracted armed violence in Manipur. The existing stand of GOI requires revolutionary reversal and all the guerrillas should also comply the rules and customs of war.

Armed conflict situations and applicable International Humanitarian Law vis-à-vis fight against racist regimes in the exercise of the right of self-determination – a case study of Manipur

International Humanitarian Law (IHL) is one of the most powerful tools the international community has at its disposal to ensure the safety and dignity of people in times of war. It seeks to preserve a measure of humanity, with the guiding principle that even in war there are limits.

IHL is the body of international law that seeks, for humanitarian reasons, to regulate war or armed conflict. IHL is founded on the following basic principles:

  • distinction (between civilians and combatants; civilian objects and military objectives)
  • 'elementary considerations of humanity' (prohibits inflicting unnecessary suffering, injury and destruction) and the so-called "Martens Clause" (in cases not covered by treaties "civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principle of humanity and from the dictates of public conscience)
  • military necessity (the use of military force is only justified to the extent that it is necessary to achieve a definite military objective)
  • proportionality (the collateral harm must not be "excessive in relating to the concrete and direct military advantage anticipated" when an attack is launched against a military objective)
  • independence of jus in bello from jus ad bellum

Principal sources of IHL are four Geneva Conventions of 1949 supplemented by its two Additional Protocols of 1977 and body of customary laws.

I Definition of armed conflict

IHL is triggered by the existence of an armed conflict but it does not provide a clear definition of armed conflict. This raises questions as to the threshold at which IHL comes into operation.

"An armed conflict exists whenever there is resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. IHL applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, IHL continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there."[1] This test was subsequently endorsed by the International Committee of Red Cross (ICRC) and the Rome Statute of International Criminal Court. The ICTY consequently interpreted the term "protracted armed violence" to refer to the "intensity of the conflict".

It is very interesting to note that Inter-American Commission on Human Rights in La Tablada held that a mere thirty hours of intense and organized hostilities can be sufficient to justify invoking IHL[2] and US Supreme Court also insisting the application of minimum standard of IHL even to members of al Qaeda. [3]

IHL distinguishes two types of armed conflicts, namely International Armed Conflicts and Non-international Armed Conflicts. These two types of armed conflicts need to be defined properly because depending on the type of armed conflict applicable laws are also different.

International Armed Conflict (IAC)

According to common Article 2 to the Geneva Conventions of 1949 (GC) IAC occurs when one or more States have recourse to armed force against another State, regardless of the reasons or the intensity of the confrontation. Relevant rules of IHL may be applicable even in the absence of open hostilities. Moreover, no formal declaration of war or recognition of the situation is required.

Apart from regular, inter-state armed conflicts, Additional Protocol I extends the definition of IAC to include armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes in the exercise of their right to self-determination (wars of national liberation).[4]

Non- international Armed Conflict (NIAC)

Most armed conflicts today are non-international in nature. Two legal sources must be examined in order to determine what a NIAC under the IHL.

(a) NIACs within the meaning of Common Article 3 of the Geneva Conventions of 1949

Common Article 3 applies to "armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties". These include armed conflicts in which one or more non-governmental armed groups are involved. Depending on the situation, hostilities may occur between governmental armed forces and non-governmental armed groups or between such groups only.

In order to distinguish an armed conflict, in the meaning of common Article 3, from less serious forms of violence, such as internal disturbances and tensions, riots or acts of banditry, the situation must reach a certain threshold of confrontation. Two criteria are usually used in this regard: [5]
(1) The hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces.

(2) Non-governmental groups involved in the conflict must be considered as "parties to the conflict", meaning that they possess organized armed forces. This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations. (the armed groups in question must reach a minimum level of organization)

In the current state of IHL, the motives of the non-governmental groups, for example, to cover only groups endeavoring to achieve a political objective as a further condition of NIAC has no legal basis. [6]

(b) NIACs in the meaning of Article 1 of Additional Protocol II

A more restrictive definition of NIAC was adopted for the specific purpose of Additional Protocol II. This instrument applies to armed conflicts "which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol".[7] However, this instrument does not apply to wars of national liberation, which are equated with IACs by virtue of Article 1(4) of Additional Protocol I. This definition is narrower than the notion of NIAC under common Article 3.

In practice, it is often difficult to identify situations that meet the criteria of application established by Additional Protocol II.

In this context, it must be reminded that Additional Protocol II "develops and supplements" common Article 3 "without modifying its existing conditions of application". This means that this restrictive definition is relevant for the application of Protocol II only, but does not extend to the law of NIAC in general. The Statute of the International Criminal Court, in its Article 8, para.2 (f), confirms the existence of a definition of a non-international armed conflict not fulfilling the criteria of Protocol II. Common Article 3 thus preserves its autonomy and covers a larger number of situations.

Law applicable to NIACs conflicts

The rules of IHL applicable in situations of NIACs are found in both treaty and customary law.

Common Article 3 of the Geneva Conventions of 1949 specifically applies in the case of conflicts "not of an international character". Common Article 3, which is sometimes referred to as a "treaty in miniature", stipulates the minimum protection that must be afforded to all those who are not, or who are no longer, taking an active part in hostilities, for examples, civilians, members of armed forces of the parties to the conflict who have been captured, are wounded, or surrendered. It provides for humane treatment and non-discriminatory treatment for all such persons, in particular by prohibiting acts of violence to life and person specifically murder, mutilation, cruel treatment and torture, the taking of hostages, and outrages upon personal dignity, in particular humiliating and degrading treatment. It prohibits also the passing of sentences and carrying out of executions without judgment being pronounced by a regular constituted court providing all judicial guarantees recognized as indispensable.

Finally, it imposes an obligation on the parties to collect the wounded and sick and to care for them.

The application of the common Article 3 shall not affect the legal status of the Parties to the conflict.

Article 3 is the bedrock of IHL as affirmed by the ICJ, recognized within customary law as the absolute minimum of humanitarian treatment applicable during armed conflict of any legal qualification.[8] (jus cogens)

Additional Protocol II (adopted in 1977) supplemented common Article 3, (without modifying its existing conditions of application) which was specifically enacted to apply to certain situations of NIAC; it strengthened protection beyond the minimum standards contained in common Article 3.

Like common Article 3, Additional Protocol II provides the humane and non-discriminatory treatment of all those who are not, or who are no longer, taking part in hostilities.[9] Most of provisions of Protocol II are now considered as a part of customary IHL and, thus, binding on all parties to NIACs.

A limited number of other treaties of humanitarian law, human rights –particularly non-derogable and domestic laws – in the State in which a conflict is taking place are also apply to situations of NIAC. The treaty rules applicable in NIACs are, in fact, rudimentary compared to those applicable in IACs.[10]

Parties bound by humanitarian law in NIACs

All parties to NIACs --- whether State actors [11] (and other persons or groups acting in fact on their instructions or under their direction or control) or armed groups [12] - are bound by the relevant rules of IHL. Even States not party to an armed conflict are required by common Article 1 to Geneva Conventions to neither encourage a party to violate IHL nor to take action that would assist in such violations. Furthermore, common Article 1 is generally interpreted as requiring States not party to an armed conflict to endeavor--- by means of positive action--- to ensure respect for IHL by parties to a conflict.

IHL applicable to (IACs)

There are over 30 international instruments in force dealing with the law of IACs. The most important among them are:-
o 1949 Four Geneva Conventions:
1. Geneva Convention for the Amelioration of the condition of the wounded and sick in armed forces in the field
2. Geneva Convention for the Amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea
3. Geneva Convention relative to the Treatment of prisoners of war
4. Geneva Convention relative to the Protection of civilian persons in time of war
o Protocol Additional to the Geneva Convention of 12 August 1949, and relative to the Protection of victims of International Armed Conflicts (Protocol I).

Other relevant IHL treaties, Human Rights treaties, domestic laws and most importantly customary IHL are also simultaneously applicable in IAC.

II Case Study – Manipur

Historically, Manipur's existence as an independent kingdom can be traced back around two millennia according to the royal chronicle Cheitharol Kumpaba.

It is fact that Manipur was an independent kingdom until it was defeated by the British forces in the Anglo-Manipur War (1891) and became a British protectorate till 1947. Manipur regained her independent on 14 August 1947 after the British left.

The Maharaja-in-Council of independent Manipur drafted and then adopted Manipur State Constitution Act, 1947 and established democratic and secular popular government having the Maharaja as a Constitutional Head based on the British principle of Parliamentary Sovereignty and Collective Responsibility.[13] [14] The State Assembly was inaugurated by the then King Bodha Chandra in October 1948 thereby marking the historic transition from the 2000 year old absolute monarchy to a constitutional monarchy. Probably, Manipur was the first to introduce parliamentary democracy in Southeast Asia. [15] An independent judiciary also existed to safeguard the citizen's fundamental rights and, also, ensure the citizen's duties as well.

Manipur became a part of India through controversial 1949 Merger Agreement [16] and accorded Part C State status (even not a full fledged State). Manipur was a Union Territory of India from 1956 and then later a State of India from 1972 (that also after prolong and sustain struggle by the people of Manipur).

Armed Conflict in Manipur

The indigenous peoples of Manipur (Manipuris) consisting about 36 communities or groups, and they are racially and ethnically akin to the peoples of South East Asia; ethically and culturally are distinct from the rest of mainland India. Popular discontent around the illegal and unconstitutional merger and subsequent state policy of racial discrimination and genocide that fumed resistance movements ever since, and escalated into open armed conflict since late 1970's. The Government of India (GOI) responded by promulgating the colonial, racial and genocidal legislation Armed Forces Special Powers Ordinance on 16 April 1950, and afterward enacted the Armed Forces (Special Powers) Act, 1958 (AFSPA).

Presently, Manipur is one of the highly militarized zones in the world. There are about 350 military installations having around 50 to 60 thousands armed forces of India and roughly one troop for every 15 citizens, a proportion possibly higher than that used in many recognized active war zones. [17] [18] This armed forces of India belonging to a distinctly different ethnic group with distinctive culture, religion and language from the local indigenous population and they considered that the entire population of Manipur are hostile to them. This is the fundamentally racist position characterizing the distinctive context of the on-going armed conflict in Manipur. [19]

The deployment of the armed forces and the invocation of a dozen of draconian laws notably AFSPA for a longer period, the annual reports placed in the parliament by the Home Minister, GOI about the death of Indian soldiers and guerrillas with facts and figures, unambiguously prove the existence of armed conflicts between the state forces and the liberation guerrillas in Manipur. The Justice Reddy Commission's Report on AFSPA (RCR)[20] and the Supreme Court (SC) of India in NPMHR[21] and EEVFAM[[22] cases also indirectly indicates the existence of armed conflicts in Manipur.

Many credible global NGOs like Human Rights Watch, Amnesty International, Asian Centre of Human Rights, and Asian Commission of Human Rights also concludes existence of armed conflict in Manipur.

In Manipur two types of armed conflict is going on viz. IAC between Government armed forces and non-governmental armed forces (National Liberation Movement) and NIACs between non-governmental groups themselves. Even though there is some grey area from the part of GOI to classify the conflict as IAC, from this aspect the conflict may be characterized as NIACs for proper implementation IHL. But the proscribed UNLF (United National Liberation Front) and RPF (Revolutionary People's Front), consistently maintained that they are striving to defend the "right to self-determination" of the peoples of Manipur which had been forcibly annexed by the Indian government and Manipur is Non-self Governing Territory and plebiscite is the ultimate solution.[23] The fact is that indigenous Manipuris people do not have full measure of self-government as the polity is not federal and the nominal local government runs at the mercy of the union government.

The Indo-Manipur armed conflict involves more than a dozen non-governmental armed groups [24] out of which only six groups [25] are declared as proscribed terrorist organizations under the Unlawful Activities (Prevention) Act, 1967. This act of declaration by the GOI is nothing but giving official recognition to be parties to armed conflict means guerrillas in Manipur. As a result of armed conflict in Manipur during 1992 – January 6, 2013 it is estimated that 5842 deaths (which includes 2193 civilians who are not taking direct part in hostilities, 966 security forces personnel and 2683 guerrillas).[26] Civil society sources and independent local media claim the conflict resulted in 3 to 5 deaths daily in recent years and 10 to 20 thousands deaths over the last two decades.[27] The Chief Minister, O. Ibobi Singh, reportedly said that "since 1980 when Manipur became a disturbed area over 8,000 innocent people and 12,000 members of armed opposition groups and security forces have lost their lives". [28]

There is no proper documentation of the fact and what data shows is only a fraction of the real casualties. The civilian populations who are not taking direct part in hostilities are main victims of the conflict in Manipur. Given the longevity of the conflict it is likely that overall at least 40,000 people have been killed since 1979. [29]

Major non-governmental armed groups are to be considered as parties to conflict and they are well organized [30] with command structure and also have the capacity to sustain military operations. Thus the conflict in Manipur is qualified as armed conflict based on dual test of intensity and organization as stipulated by International Tribunals and ICRC. [31]

The existence of armed conflict in so called 'disturbed areas' are also acknowledged by chief of Indian Army,[32] Speaker of Manipur Legislative Assembly[33], the Chief Minister of Manipur[34] and many others including UN Special Rapporteur.[35]

It is also fact that some armed groups operating in Manipur are not qualified as parties to the conflict as they failed to fulfil dual test for characterization of the existence of armed conflict viz. the intensity and organization. They may be better characterized as terrorist or armed gangs mostly involved in extracting money from the local population rather than in fighting governmental forces.

The root causes of Indo-Manipur armed conflict may be briefly mentioned as:
1. The controversial 'Manipur Merger', legally annexation of Manipur and thereby illegally abolition of popular government and State Assembly that culminated into national liberation movement for securing right to self determination by all means available with them towards their own decolonization;
2. The subsequent downgrading of the princely State to a Part C State (even not a full fledged State) with colonial mindset;
3. The imposition of AFSPA - a colonial, racial and genocidal legislation that makes regime racist and state policy of discrimination.

AFSPA – a colonial, racial, discriminatory and genocidal legislation

The AFSPA is racist and it is a symbol of racist regime. Although the situation of law and order in other part of India is much more dangerous and disturbed like Maoist affected areas such legislation has not been in force, it only meant for racially or ethically distinct areas of northeast India (NE) and Jammu and Kashmir. The UN Committee o Elimination of Racial Discrimination (CERD) has also endorsed racial discriminatory nature of the Act.

AFSPA is also a colonial legislation. Its predecessor – the Armed Forces Special Powers Ordinance, 1942 had been enacted in order to neutralize Quit India Movement. It was hundred percent a colonial instrument. In short, the Indian Parliament has been acting virtually as Linlithgow- II in the NE region for more than half a century. [36]

The Act was originally enacted as a temporary measure to suppress demands for self-determination in the post independence period in the Naga Hills but in fact large part of the NE is still declared 'disturbed' under the Act and civilian population is still under grip of the military rule. The Act is described as "dated and colonial-era law that breach contemporary international human rights standards."[37]

Above all the Act is discriminatory and genocidal legislation. Extra-judicial execution, torture, enforced disappearances, rape, illegal detention, committed against the indigenous Manipuris people with intention to destroy, a national or ethnic or racial or religious group is nothing but genocide. This genocidal Act empowers the armed forces of India to kill with impunity and immunity, indigenous Manipuris having distinctive ethnic and racial heritage, and simply transforming the region as a torture-chamber and concentration camp of political dissidents of Delhi regime. And Act itself prima facie discriminatory. RCR also endorsed this aspect very briefly as "the Act … has become a symbol of oppression, an object of hate and instrument of discrimination and high-handedness." [38]

The AFSPA in effect allows the state to override rights in the 'disturbed areas' in a much more intrusive way than would be the case under a state of emergency, since the right to life is in effect suspended, and this is done without the safeguards applicable to states of emergency. A law such as AFSPA has no role to play in a democracy. [39] Under the Act even non-commission officers are empowered to shoot at sight and more interestingly de jure impunity is granted to armed forces of India for their criminal act. [40] It means 'extrajudicial executions under the cloak of AFSPA have become virtually a part of state policy'.

The SC of India[41] very surprisingly upheld the Constitutional validity of the Act.[42] Christof Heyns rightly observed that "it is therefore difficult to understand how the SC, which has been so progressive in other areas, also concerning the right to life, could have ruled in 1997 that AFSPA did not violate the Constitution.."[43] So there no meaning of judicial activism and sacrosanct nature of right to life to the people of Manipur. In short, the SC in spirit had upheld a statute comparable to that of a Nazi statute in post-colonial republic of India and consequently a silent party to the genocide in Manipur. [44]

It seems that all the organs of GOI viz. Executive thorough the machinery of its armed forces, Legislature and Judiciary and national media are collectively act as policy to accomplish their avowed agenda.

The fact of racial, discriminatory and genocidal policy of GOI is also very clear from the fact that the GOI has repealed the Terrorist and Disruptive Activities (Prevention) Act, 1985 and the Prevention of Terrorism Act, 2002 and not the black law AFSPA. The promulgation of the repressive colonial law leads to no other conclusion than that colonialism exists in the NE region. If colonialism exists, liberation movements logically follow. The insurgency situation in the NE has been worsened since the AFSPA has been imposed in the 1950s. The insurgent groups have greatly increased. Their cadres, weapons, tactical capabilities have expanded and improved immensely.

No civilized jurisprudence would justify this additional empowerment given to the armed forces to kill its own citizens. 1997 judgment of apex court has run a short of juristic ammunitions and the verdict borders on the extreme edge of technical formalism of the crudest positivist kind. [45]

GOI's persistent refusal to repeal the Act even though with strong worded recommendations poured from UN human rights bodies, Treaties Monitoring bodies including HRC, CERD; observations by many international rapporteurs, credible international human rights NGOs and its own created commissions[46] clearly shows the colonial mindset of the GOI.

The governmental armed forces too are victims of AFSPA because of retaliation and communal tendency arising from genocide, torture and other inhuman acts committed by them. The simple logic is that "Violence and genocide often arise from racial and ethnic discrimination. Discrimination can easily lead to racially and ethnically motivated violence, which in turn, may escalate into genocide."

This state policy of genocide, extreme persecution coupled by oppression and cycle of legal impunity as a result of AFSPA prove that the existing GOI is racist regime and fighting the regime can be justified under the principle of 'Carence de Souverainte' and that oppressed peoples want to exercise their state right for reversion to sovereign status that existed before the annexation.

Breach of IHL in Indo-Manipur armed conflict
From the very moment of merger of Manipur to Indian Union till now many lives including civilians have loss, people are brutally tortured, murdered, many cases of enforced disappearance, arbitrarily arrested, and women are mercilessly rape and gang rape besides committing innumerable cases of extra judicial execution in the name of counter insurgency.

On the other hand non-governmental armed groups are also violating even the minimum rules of IHL and they are also incurred individual and command responsibility just like governmental armed forces for violation of laws and custom of war. Consequently, the civilian population is between 'a rock and hard place' as they have become a target for state and non-state armed actors alike. CM of Manipur acknowledging the conflict situations in Manipur once stated that "as everyone knows that deteriorating situations is a nadir today with insurgents going beyond their Code of Conducts indulging in unwanted killings, kidnappings, extortions, lootings and fake encounters killings etc." [47]

III Some Cases fragrant violation of IHL

(i.e. grave breach of Geneva Conventions of 1949, Genocide, Crimes against humanity, War Crimes, Serious violations of article 3 common to the four Geneva Conventions of 1949 and others serious violations of laws and customs of war)
o 1528 cases extrajudicial execution including 33 women and 98 children by governmental armed forces since January 1979 till May 2012. (documented by CSCHR & UN)

o 44 cases of torture (documented by HRLN, Manipur)

o 1133 cases of illegal detention and arrest by the governmental armed forces during January 2008 to December 2008 and 1119 from January 2009 to December 2009 (HRI, Human Rights Special Report: Manipur-2009)

o 190 and 142 cases of number of people killed by the unidentified persons and non-state actors during January 2008 to December 2008 and January 2009 to December 2009. (Source: Ibid)

o 16 cases of enforced disappearances from 1980 to 1999. (Source: Ibid)

o 12 cases of Massacres that resulted 110 dead including Malom Killing of 2000, RMC Hospital Killing of 1996, Tera Bazar Killing of 1993, Oinam Village, Senapati Killing of 1987 and Heirangoithong Killing of 1984. (Source: Ibid)

o 10 cases of rape Th. Manarama (Bamon Kampu) of 2001, Ningthoujam ongbi Ahanjoubi (Takyenthongbal) of 1996, and Miss Rose (Ngaprum Khullen, Ukhrul) of 1974. (Source: Ibid)

o Displacement of about 50 villagers from Barak circle (which comprised of eight villages) who were forced to flee fearing persecution by the security forces during "Operation Tornado" launched on 27 October 2005. Several houses were reportedly damaged in the operation. A team of MHRC visited the displaced camping at a relief camp at a town hall in Jiribam district. (Source: The Telegraph, 1 November 2005)

o Wilful killing of thousands of civilians who are not taking direct part in hostilities by both parties to the conflict.

o Recruitment of child soldiers by non-governmental forces. (Source: Child Soldier Global Report 2008)

o 79 non-local who are not taking direct part in hostilities were killed by non-governmental forces and 26 were injured during 2001 to 2011 (Source: SATP)

o During 2000- 2012 (till Feb.1), bomb explosions mostly in civilian areas claimed 104 lives and 532 injured mostly civilians by parties to the conflict. (Source: Ibid)

o Death of a civilian identified as Jaikalung in an encounter that took place between a combined force of suspected ZUF, NSCK-K on one side and NSCN-IM cadres on the other at Tamenglong district headquarters on 2nd October 2012.

o raping of two girl students in the night of Oct 5, 2012 by cadres of the Zeliangrong United Front (ZUF) at Khoupum area of Tamenglong district.

o In 1990s ethnic cauldron where more than 900 'innocent Kukis including children, pregnant women, aged persons were slaughtered' by the NSCN –IM cadres and their collaborators. In a single day on September 13, 1993 altogether 104 Kukis were killed. Around 360 villages were also uprooted and around one lakh Kukis were displaced in the 1990s 'ethnic cleansing' by the NSCN –IM.

o NSCN troops had killed 9 AR personnel and inflicted injury to three personnel on July 9, 1987 at the AR Post near Oinam Village in Senapati district. Post the attack, the AR personnel launched the operation and had allegedly burnt down over a hundred houses, six schools and 10 Churches in the thirty Naga villages. Properties worth of 50, 75,000 were allegedly destroyed from seven villages. Three women were reportedly raped, five women allegedly molested and around 300 persons were tortured by the AR apart from killing 27 persons at different locations on different occasions in Senapati district. Oinam carnage of July 9, 1987 - SDC N Surendra who collected hard evidence of the Indian military personnel's atrocities at Oinam was picked up allegedly by Assam Rifles from the road and killed but his corpse was never found. (The Sangai Express; Scars of Operation Blue Bird at Oinam village: 25 years down the line, justice still awaited, July 11, 2012)

o In February 2009, Kasom Khulle SDO Dr ThingnamKishan and his two subordinate staff – Token and Rajen were abducted by NSCN-IM from Urkhrul and they were murdered and abandoned in the most savage manner at Lukhrabi Thong, Senapati District.

o Fact encounter case of three armed militant viz. Laishram Nobin, N. Ingocha and I. Rosan by 23 Assam Rifles near Chadong Tangkhul village under Litan police station in Urkhrul district on 9th May 2012. It was alleged that Gobi along with two were handed over to one Major Hauman, post commander of 23 AR posted at Nongdam Kukikhul, along with arms for surrendering to the Government of Manipur by his father, but they were killed in a fake encounter and their dead bodies deposited at the morgue of Regional Medical Institute of Medical Science (RIMS).

o Two persons, including the State Secretary of Zeliangrong Students'' Unio, Manipur (ZSUM) Chunthuigai Kamei have been shot dead by alleged NSCN-IM at Tamenglong district area on 16th August 2012. Both died on the spot when a group of NSCN-IM with sophisticated weapons opened fire while they were inside a house. In 24 Mile near Longkao (Nungkao) village, under Tousem police station.

o In Manipur, counter-insurgency operations by the Indian Army against local groups along the border with Burma (Myanmar), as well as ethnic clashes, have resulted in the displacement of at least 6000 people from the Hmar and Paite ethnic groups like IDPs elsewhere in the NE, they are also reported to live in deplorable conditions, lacking food, medicines, warm clothes and other essential commodities. (Source: Monika Menedal; Internal Displacement in India: Status, Condition & Prospects of Return, Refugee Watch, 33, June 2009,p.36)

o August 20, 2006: Two civilians are killed, while four others sustained injuries when a group of ZRA cadres opened fire towards a crowded church targeting a patrol party of the AR at Vengnuom in the Churachandpur district. (Source:SATP)

o The incident of molestation of more than 20 women allegedly by the UNLF and KCP militants at Parbung and Lungthulie under Tipaimukh sub-division in the Churachandpur district in January 2006. (Ibid)

Conclusion

Only way to mitigate the effects of the armed conflict in any part of the world including Manipur is to apply by both parties in hostilities the relevant provisions of IHL. GOI is no option but to repeal racial, discriminatory and genocidal legislation like AFSPA so that GOI may show its face to the world at least that the government is not racist and may also a strong point in support of them that those fighting going on is not against racist regime in the exercise of Manipuris' right of self-determination, as enshrined in the Charter of the United Nations and Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations and thereby denying granting of Prisoners of War status to guerrillas fighting for independence.

Manipur has been the tradition of implementing IHL through ages. In the historic past, when Manipur was still under the division of many principalities like Meitei, Moirang, Khuman, Heireng Khungja, Khendre, Chaireng, etc., there was a strong tradition of organizing bouts of mutual fights among the individuals or chiefs. There is a very old manuscript written in Meitei script called Chainarol.[48] The manuscript chronicles records of seventeen such bouts of mutual fight and all the fundamental principles of IHL were found in it. Saturol Lanturol Sapharol Lanpharol,[49] an ancient manuscript of the Meiteis, elaborates the rules and laws of a warrior had to follow when he is in a combative situation.

Valiant heroes and warriors of the past who had successfully fought many battles and captured or killed ferocious wild animals were strict disciplinarians who followed the traditional laws and codes of conduct without any breach. Another ancient manuscript called Takhel Ngamba[50] details the kinds of foes who should not be killed although fallen at the hands of victor. It records that a foe who has fled from the battlefield or who has disarmed himself should not be killed. A foe who has taken refuge on the top of a tree or who has dipped and taken refuge under water shall not be killed. Further, a foe who pleads for life biting a handful of grass or one who pleads with folded hands shall not be killed. Again, one who is stripped of his clothes or one who is apparently scared of confrontation shall not be killed.

In the present context also, one armed non-governmental organization engaged in the conflict with the Indian government, the Revolutionary People's Front (RPF) and its armed wing the People's Liberation Army (PLA) voluntarily declared to abide by the Common Article 3 of the Geneva Conventions in 1997. [51]

So, in compliance to the mandate of the Constitution of India, the Government of India (GOI), being a party to the Geneva Conventions should recognize the existence of armed conflicts in Manipur to facilitate implementation and enforcement of IHL effectively with a view to mitigating the consequences of armed conflicts and punish the perpetrators of IHL in Manipur. In this regard, the existing stand of the GOI requires revolutionary reversal and all the guerrillas should also comply the rules and customs of war.

Moreover, whatever happening in Manipur particularly military massacres, cold-blooded murdered both by governmental and non-governmental forces, torture is due to the non-declaration of a situation of armed conflict else commander and individual will be responsible for their very responsible for their criminal act under IHL and automatically will deterrent effect.

IHL is the only way available to ferret out workable device to put an end to impunity for grave breach of Geneva Conventions including Common Article 3 so that those persons whether belongs to armed forces of GOI or non-governmental forces must be personally liable and also accrue command responsibility and be punished for the grave and other breaches of Geneva Conventions and other related serious violations of laws and custom of war by establishing International Criminal Tribunal for Manipur, or prosecution under International Criminal Court (ICC) or National Court having jurisdiction to try violation of grave breach of Geneva Conventions and Additional Protocols and other serious violations of laws and customs of war by suitable amendment to existing the Geneva Conventions Act, 1960. GOI must not isolate itself from ICC Statute and it is high time to sign and ratify the same for cause of humanity.

It high time to stop recruitment of child soldier by the non-governmental armed forces immediately as it violates IHL and International Human Rights Law particularly Convention on the Rights of Child, 1989 and its Optional Protocol on the Involvement of Children in Armed Conflict, 2000 and those recruited child soldiers must be properly rehabilitated as per appropriate provisions of CRC.

Perpetrators of IHL must be booked and try by International Tribunal preferably by ICC and the GOI must give free access by ICRC in Manipur. Last but not the least, GOI must sign and ratify - two Additional Protocols to the Geneva Conventions of 1977, ILO Convention No.138, and ICC Statute.

Notes and References

1. ICTY Decision on 2 October 1995, ILR 105 (1997), 419 (453), para 70
2. Juan Carlos Abella v. Argentina, Case 11.137, Report No 55/97, IACHR, OEA/Ser L/V/II.95 Doc.7 rev. at 271 (1997) para 156
3. Hamdan v. Rumsfeld, decided June 29, 2006, the US Supreme Court
4. Article 1(4), Additional Protocol I (1977)
5. ICTY, The Prosecutor v. Dusko Tadic, Judgment, IT-94-I-T, of May 1997, para. 561-568; See also ICTY, The Prosecutor v. Fatmir Limaj, Judgement, IT-03-66-T, 30 November 2005, para.84
6. The Limaj case is the authority of this legal point. The Tribunal ruled that 'the determination of the existence of an armed conflict is based solely on two criteria: the intensity of the conflict and organization of the parties, the purpose of the armed forces to engage in acts of violence or also achieve some further objective is, therefore, irrelevant' (i.e. the Serbian forces were not intended to defeat the enemy army but to carry out 'ethnic cleansing in Kosovo). ICTY, The Prosecutor v. Fatmir Limaj, Judgment, IT-03-66-T, 30 November 2005
7. Article 1(1), Additional Protocol II (1977)
8. ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Merits, ICJ Reports 1986, para. 218
9. It expands the protection provided by common Article 3, by including prohibitions on collective punishment, acts of terrorism, rape, enforced prostitution and indecent assault, slavery and pillage. It sets out specific provisions and protections for certain categories of persons such as children, persons deprived of liberty for reasons related to the conflict, persons prosecuted for criminal offences related to the conflict, persons who are wounded, sick and shipwrecked, medical and religious personnel, and the civilian population (attacks on civilian populations, starvation as a methods of combat, and forced displacement are all prohibited).
10. While common Article 3 is of fundamental importance, it only provides a rudimentary framework of minimum standards. Additional Protocol II usefully supplements common Article 3, but it is still less detailed than the rules governing IACs in the Geneva Conventions and Additional Protocol I. Additional Protocol II contains a mere 15 substantive articles, whereas Additional Protocol I has more than 80. While numbers alone do not tell the full story, they are an indication of a significant disparity in regulation by treaty law between international and non-international armed conflicts, particularly when it comes to detail rules and definitions.
11. States are explicitly bound by the treaties to which they are party and by applicable customary law. In addition, Article 1 common to the four Geneva Conventions requires that States Parties must, in all circumstances, not only "respect", but also " ensure respect", for humanitarian law.
12. Although only States may formally ratify or become party to the various international treaties, armed groups party to a NIAC also must comply with common Article 3, customary IHL, and, where applicable, Additional Protocol II. The extensive practice of international courts and tribunal and other international bodies affirms this obligation.
13. India became a republic in 1950 with a written constitution and it held its first general elections in 1951-52
14. Elections were held on the basis of universal adult franchise in 1948 and accordingly elected a 53 member state legislature. A seven member council of ministers responsible to it then took office to begin a democratic journey to peace and development. The Maharaja of Manipur became a constitutional monarch.
15. Human Rights Special Report Manipur – 2009, HRI Publication 2009, Imphal, p.2
16. Manipur was annexed into the Dominion of India on 15 October 1949. The King signed under duress the 'Manipur Merger Agreement' on 21 September 1949. Under the Vienna Convention on Law of Treaties, 1949 the treaty is void ab initio.
17. UPR, HRC India: Manipur Persistence of Impunity in North-East Region (20 November 2007), Submitted by: CORE Centre for Organization Research and Education 18. There is about 14,000 state police, and an estimated 50,000 soldiers and paramilitary forces of India. ("These fellows must be eliminated", Human Rights Watch, New York, 2008, p. 22 as cited in "We, Widows of the Gun", Frank van Llerde, The Hague, 2011 )
19. Manipur: A Memorandum on Extrajudicial, Arbitrary or Summary Executions; Submitted by Civil Society Coalition on Human Rights in Manipur and the UN, to Christof Heyns, Special Rapporteur on extrajudicial, summary or arbitrary executions, Mission to India, 19-30 March 2012, para. 31
20. Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958, Government of India, Ministry of Home Affairs, 2005
21. Naga People's Movement of Human Rights v. Union of India, AIR 1998 SC 431
22. The PIL filed by the Extrajudicial Execution Victim Families Association, Manipur; the SC asked "How can a State Government file an affidavit stating that they are killing 'us' and so we are killing 'them'. Are we in a state of war?" ("Are We in a state of war? Supreme Court tongue lashes State Govt.": The Sangai Express, November 24, 2012 )
23. "I am not waging war against the Indian government, rather I am striving to defend the 'right to self-determination' of the people of Manipur which had been forcibly annexed by the Indian government", said the chairman of proscribed UNLF, RK Meghen today in his statement submitted to the judge of special NIA court through his counsel. (the Imphal Free Press, December 17, 2010)
In September 2006, the UNFL forwarded a four point formula to start a plebiscite process for resolution of the conflict in Manipur under the supervision of United Nations. (Overview: Insurgency & Peace Efforts in Manipur, Centre for development and peace studies)
Memorandum submitted to the Secretary General United Nations and the Chairman of the Decolonization Committee (Committee of 24) for De-colonization of Manipur from India Colonialism and Alien Racist Regime, enlisting Manipur in the list of the Non-self Governing Territories of the United Nations and, Restoration of Independence and Sovereignty of Manipur; Submitted by Revolutionary People's Front (Source: http:// www.geocities.com/CapitolHill/Congress/4568/memorandum/index.html)
24. Major guerrillas groups in Manipur are United National Liberation Front (UNLF), People's Liberation Army (PLA), People's Revolutionary Party of Kangleipak (PREPAK), Kanglei Yawol Kanna Lup (KYKL), People's United Liberation Front (PULF), United Naga People's Council (UNPC), United People's Party of Kangleipak (UPPK), Kangleipak Communist Party (KCP), Manipur Naga Revolutionary Front (MNRF), Zomi Revolutionary Army (ZRA), Hmar People's Convention-Democratic (HPC-D), Kuki Liberation Army (KLA), Kuki National Army (KNA), Kuki National Front (KNF), Kuki Revolutionary Army (KRA), National Socialist Council of Nagaland – Isak Muivah (NSCN-IM), etc. There are 18 Kuki militant groups in Manipur. These Kuki militant outfits have signed Suspension of Operation (SoO) with Government of India under the banner of United People's Front (UPF) and Kuki National Organization (KNO). KNO signed a SoO with GOI in 2005 and later with the Government of Manipur in 2008. KNF signed a SoO with GOI on August 1, 2005 and later with Government of Manipur on 22 August 2008. (Source: SATP (http://www.satp.org)
25. Proscribed guerrillas operating in Manipur are KCP, KYKL, Manipur People's Liberation Army (MPLF), PLA, PREPAK, UNLF
26. Source: SATP (http://www.satp.org)
27. "We, Widows of the Gun", Frank van Llerde, The Hague, 2011
28. Sangai Express, 16 June 2003
29. Ploughshares: Armed Conflict Report: India-Northeast (1979-first combat death) Updated January 2010
30. For example, UNLF one of the oldest guerrillas group in Manipur formed in 1964 is having clear cut objective with elected leaders through a decision of its General Assembly Session with hierarchical command structure and international disciplinary mechanism. The Central Committee of UNF is the highest decision making body. Its armed wing – MPA under different district commands. A District Command is headed by a district commanders and it is further divided into units. The front's armed wing MPA has three well-trained mobile task forces – Wangbran Task Force, Siroy Task Force and Maril Task Force. The front also maintains an organizational cell, which takes up developmental and welfare measures for the people. Department of Publicity and Propaganda is the publicity wing of the front and all press releases and propaganda work is done by it. The front also has a women's wing. Other major guerrillas also have more or less same structure. (Source: http://indianarmy.nic.in/Site/FormTeplete/frmTempSimpleWithEig... )
31. How is the term "Armed Conflict" Defined in International Humanitarian Law? – International Committee of the Red Cross (ICRC) Opinion Paper, March 2008
32. It needs to be appreciated that while being deployed in 'Disturbed Areas' the Army operates in heightened hostile environment and is faced with well trained and lethally equipped terrorist outfits. These situations which are akin to war are extraordinary and require extraordinary measures to control them. (Ready to face all security challenges: Army chief; the Sangai Express, 17th January 2011)
33. Existence of armed conflict in Manipur is also acknowledged by Manipur Legislative Assembly Speaker, Th. Lokeshaw as the people of the State are into a critical situation in the face of armed conflicts…." (The Sangai Express, May 5, 2012)
34. the Chief Minister, O. Ibobi Singh as " … the state government is giving priority to solving these issues by pressuring the Centre to initiate appropriate measures to tackle the armed conflicts in the State through political means….As it has been generally known that the conflict situation/insurgency in the state is created by opposing political thoughts, one believes in the Indian Parliamentary System and other one is the groups who is Opposing it and instead wants total liberation from the Indian Parliament." (Militarization no solution to conflict in state: Ibobi; the Imphal Free Press, December 24, 2010)
35. The widespread deployment of the military creates an environment in which the exception becomes the rule, and the use of lethal force is seen as the primary response to conflict with a concomitant permissive approach in respect of the use of lethal force. This is also difficult to reconcile in the long run with India's insistence that it is not engaged in armed conflict. (Op. cit. note 19).
36. But the fact was that the 1942 demoniacal ordinance crafted by the British colonialists, among others, had expedited and facilitated the passage of Indian Independence Act, 1947. The 1958 law inherits the same powerful political potency in the NE India. Instead of containing armed conflict it aggravates the situation and lead to birth of many non-governmental armed groups in Manipur.
37. UN Commissioner for Human Rights , Navaethem Pillay; "When will AFSPA be repealed?"; The People's Chronicle, November 8, 2012
38. Op. Cite note 20, p.75
39. Op. cit. note 19
40. Sec. 6 of the AFSPA
41. Naga People's Movement of Human Rights v. Union of India, AIR 1998 SC 431
42. Human Rights groups, journalists and activists harshly criticized the judgment as a "shocking ruling".
43. Op.cit note 19
44. N.Sanajaoba; Human Rights Current Issues, Omsons Publications, 2004, New Delhi, p.170
45. N.Sanajaoba; Current Legal Essays, Akansha Publication, New Delhi, 2007, p.139
46. Justice Jeevan Reddy Commission, Second Administrative Reform Commission and recently Justice JS Verma Commission
47. Op.cit note 34
48. CHAINAROL (The Way of the Warrior); Transcribed & Rendered into modern Manipuri by Chanam Hemchandra, Lamyanba Publication, 2006, Imphal; and also CHAINAROL Way of the warrior (Edited by Irengbam Arun), 2012, Human Rights Alert, Imphal
49. An unpublished ancient manuscript in the custody of Shri Ningthoukhongjam Khelchandra Singh as cited in "The Art of Thang-Ta", L. Kokngang Singh & N. Premchand, Indian Folklife Serial No. 30, August 2008, p.17.
50. An ancient manuscript transferred into modern Manipuri language and published by the late Pundit Shri Oinam Bhogeshwor in 1986 as cited in ibid
51. http://www.satp.org/satorgtp/countries/india/states/manipur/terrorist outfits/pla.htm


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